As filed with the Securities and Exchange Commission on August 21, 2014
Registration No. 333-195899
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment
No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE
SECURITIES ACT OF 1933
POSTROCK ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware |
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210 Park Avenue
Oklahoma City, OK 73102
(405) 600-7704 |
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27-0981065 |
(State or other jurisdiction of
incorporation or organization) |
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(Address, including zip code, and telephone number, including area code, of registrants principal executive offices) |
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(I.R.S. Employer
Identification No.) |
Stephen L. DeGiusti
PostRock Energy Corporation
210 Park Avenue
Oklahoma
City, OK 73102
(405) 600-7704
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Tull R. Florey
Baker Botts L.L.P.
910 Louisiana Street
Houston, Texas 77002-4995
(713) 229-1234
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 to be offered pursuant to dividend or interest reinvestment plans, please 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, as amended (the Securities Act), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
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. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act (Check One).
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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(Do not check if smaller reporting company) |
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Smaller reporting company |
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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 the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may determine.
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 and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST 21, 2014
PROSPECTUS
POSTROCK ENERGY CORPORATION
$100,000,000
Common
Stock
Preferred Stock
Debt Securities
Warrants
We may issue and sell from time to time securities described in this prospectus for a total initial offering price of up to $100,000,000. We
will provide the specific terms of these offerings and the securities in supplements to this prospectus. You should read this prospectus and any prospectus supplement carefully before you invest. Our shares of common stock are listed on the NASDAQ
Global Market under the symbol PSTR. The last reported sale price of our common stock on August 20, 2014, as reported by the NASDAQ, was $1.21 per share.
As of July 8, 2014, the aggregate market value of our outstanding common stock held by non-affiliates was $29,918,922, based on 30,930,166
shares of outstanding common stock, of which 19,554,740 were held by non-affiliates, and the last reported sale price of our common stock on that day of $1.53 per share. As of the date of this prospectus, we have not sold any securities pursuant to
General Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on and includes the date of this prospectus.
Investing in
our securities involves risks. Please carefully review the information under the heading Risk Factors on page 1. In addition, risks associated with any investment in our securities may be described in the
applicable prospectus supplement and certain of our filings with the Securities and Exchange Commission, as described in Risk Factors on page 1.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined whether this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date
of this prospectus is , 2014
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission using a shelf
registration process. Under this shelf registration process, we may offer any combination of the securities described in this prospectus in one or more offerings with a total initial offering price of up to $100,000,000. This prospectus provides you
with a general description of the securities we may offer. Each time we use this prospectus to offer securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering and the securities being
offered. The prospectus supplement may also add to, update or change the 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.
You should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. We have not authorized anyone to provide you with additional or different information. This prospectus may only be used where it is legal to sell the offered securities. You should assume that the
information in this prospectus is accurate only as of the date on the front cover of this prospectus and that the information incorporated by reference in this prospectus is accurate only as of the date the respective information was filed with the
Securities and Exchange Commission. Our business, financial condition, results of operations and prospects may have changed since those dates.
ABOUT POSTROCK ENERGY CORPORATION
We are an independent oil and gas company engaged in the acquisition, exploration, development, production and gathering of crude oil and
natural gas. Our primary production activity is focused in the Cherokee Basin, a 15-county region in southeastern Kansas and northeastern Oklahoma, and Central Oklahoma. We also have minor oil and gas producing properties in the Appalachian Basin.
Our executive offices are located at 210 Park Avenue, Oklahoma City, Oklahoma 73102, and our telephone number is (405) 600-7704.
RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks described in our filings with the SEC
referred to under the heading Where You Can Find More Information, as well as the risks included and incorporated by reference in this prospectus, including the risk factors incorporated by reference herein from our most recent annual
report on Form 10-K and quarterly reports on Form 10-Q and from other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein, together with all of the other information included in
this prospectus, the applicable prospectus supplement and the documents we incorporate by reference.
If any of these risks were to occur,
our business, financial condition, results of operations or cash flows could be adversely affected. You could lose all or part of your investment. When we offer and sell any securities pursuant to a prospectus supplement, we may include additional
risk factors relevant to that offering in the prospectus supplement.
FORWARD-LOOKING INFORMATION
This prospectus, including the information we incorporate by reference, contains various statements, including those that express a belief,
expectation, or intention, as well as those that are not statements of historical fact, which are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements include those regarding
projections and estimates concerning the timing and success of specific projects; financial position; business strategy; budgets; amount, nature and timing of capital expenditures; drilling of wells and construction of pipeline infrastructure;
acquisition and development of oil and natural gas properties and related pipeline infrastructure; timing and amount of future production of oil and natural gas; operating costs and other expenses; estimated future net revenues from oil and natural
gas reserves and the present value thereof; cash flow and anticipated liquidity; funding of our capital expenditures; ability to meet our debt service obligations; and other plans and objectives for future operations.
When we use the words believe, intend, expect, may, will, should,
anticipate, could, estimate, plan, predict, project, or their negatives, or other similar expressions, the statements which include those words are usually forward-looking
statements. When we describe strategy that involves risks or uncertainties, we are making forward-looking statements. The factors impacting these risks and uncertainties include, but are not limited to, the risks and uncertainties described under
Risk Factors above and in our most recent annual report on Form 10-K and quarterly reports on Form 10-Q and the following:
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current weak economic conditions; |
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volatility of oil and natural gas prices; |
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increases in the cost of drilling, completion and gas gathering or other costs of developing and producing our reserves; |
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access to capital, including debt and equity markets; |
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results of our hedging activities; |
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drilling, operational and environmental risks; and |
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regulatory changes and litigation risks. |
We have based these forward-looking statements on
our current expectations and assumptions about future events. The forward-looking statements in this prospectus speak only as of the date of this prospectus; we disclaim any obligation to update these statements unless required by securities law,
and we caution you not to rely on them unduly. Readers are urged to carefully review and consider the various disclosures made by us in our reports filed with the SEC, which attempt to advise interested parties of the risks and factors that may
affect our business, financial condition, results of operation and cash flows. If one or more of these risks or uncertainties materialize, or if the underlying assumptions prove incorrect, our actual results may vary materially from those expected
or projected.
USE OF PROCEEDS
Unless we inform you otherwise in an applicable prospectus supplement, we expect to use the net proceeds from the sale of securities offered
by us under this prospectus for general corporate purposes. These purposes may include:
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repayment, refinancing or redemption of indebtedness or other securities. |
Pending any specific application,
we may initially invest funds in short-term marketable securities or apply them to the reduction of short-term indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
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Predecessor |
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Successor |
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Year ended December 31, |
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January 1, to March 5, |
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March 6, to December 31, |
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Year ended December 31, |
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Six months ended |
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2009 |
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2010 |
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2010 |
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2011 |
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2012 |
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2013 |
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June 30, 2014 |
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Ratio of earnings to fixed charges |
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(1) |
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5.2x |
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3.3x |
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2.7x |
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(1) |
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(1) |
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(1) |
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Ratio of earnings to combined fixed charges and preferred stock dividend requirements |
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(1) |
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5.2x |
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3.0x |
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1.5x |
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(1) |
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Due to our loss for 2009, our earnings were insufficient to cover our fixed charges by $235.7 million. Due to our losses for the six months ended June 30, 2014 and for 2013 and 2012, our earnings were insufficient to
cover (i) our fixed charges by $12.3 million, $8.9 million and $44.7 million, respectively, and (ii) our fixed charges and preferred stock dividend requirements by $20.2 million, $23.3 million and $55.7 million, respectively. |
We have computed the ratio of earnings to fixed charges by dividing earnings by fixed charges. For this purpose, earnings includes
income (loss) from continuing operations before income taxes adjusted for (i) amortization of capitalized interest and (ii) fixed charges (excluding capitalized interest). Fixed charges consists of interest expense (including
interest capitalized during the period), amortization of deferred financing costs and the portion of rent expense we believe is representative of the interest factor. Combined fixed charges and preferred stock dividend requirements consist of fixed
charges, as defined above, and the amount of dividends required on our outstanding preferred stock, and accretion of the carrying value of our outstanding preferred stock. We had no preferred stock outstanding in any period presented prior to the
third quarter of 2010.
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DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our general unsecured obligations. We will issue senior debt securities under an
indenture to be entered into between us and a trustee we will name in the prospectus supplement relating to senior debt securities. We refer to this indenture as the senior indenture. We will issue subordinated debt securities under an indenture to
be entered into between us and a trustee we will name in the prospectus supplement relating to subordinated debt securities. We refer to this indenture as the subordinated indenture. We refer to the senior indenture and the subordinated indenture
collectively as the indentures. The indentures will be substantially identical, except for provisions relating to subordination.
We have
summarized material provisions of the indentures and the debt securities below. This summary is not complete. We have filed the forms of indentures with the SEC as exhibits to the registration statement, and you should read the indentures for
provisions that may be important to you. Please read Where You Can Find More Information.
In this summary description of the
debt securities, unless we state otherwise or the context clearly indicates otherwise, all references to we, us or our refer to PostRock Energy Corporation only and not to any of its subsidiaries.
General
Neither indenture limits the
amount of debt securities that may be issued under that indenture, and neither limits the amount of other unsecured debt or securities that we may issue. We may issue debt securities under the indentures from time to time in one or more series, each
in an amount authorized prior to issuance.
The senior debt securities will constitute our senior unsecured indebtedness and will rank
equally in right of payment with all of our other unsecured and unsubordinated debt and senior in right of payment to all of our subordinated indebtedness. The senior debt securities will be effectively subordinated to, and thus have a junior
position to, our secured indebtedness with respect to the assets securing that indebtedness. The subordinated debt securities will rank junior to all of our senior indebtedness and may rank equally with or senior to other subordinated indebtedness
we may issue from time to time.
We currently conduct our operations through subsidiaries, and our operating income and cash flow are
generated by our subsidiaries. As a result, cash we obtain from our subsidiaries is the principal source of funds necessary to meet our debt service obligations. Contractual provisions or laws, as well as our subsidiaries financial condition
and operating requirements, may limit our ability to obtain cash from our subsidiaries that we require to pay our debt service obligations, including payments on the debt securities. In addition, holders of the debt securities will have a junior
position to the claims of creditors, including trade creditors and tort claimants, of our subsidiaries on their assets and earnings.
Neither indenture contains any covenants or other provisions designed to protect holders of the debt securities in the event we participate in
a highly leveraged transaction or upon a change of control. The indentures also do not contain provisions that give holders of the debt securities the right to require us to repurchase their securities in the event of a decline in our credit rating
for any reason, including as a result of a takeover, recapitalization or similar restructuring or otherwise.
Terms
The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These
terms will include some or all of the following:
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whether the debt securities will be senior or subordinated debt securities; |
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the price at which we will issue the debt securities; |
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the title of the debt securities; |
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the total principal amount of the debt securities; |
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whether we will issue the debt securities in individual certificates to each holder or in the form of temporary or permanent global securities held by a depositary on behalf of holders; |
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the date or dates on which the principal of and any premium on the debt securities will be payable; |
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any interest rate, the date from which interest will accrue, interest payment dates and record dates for interest payments; |
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whether and under what circumstances we will pay any additional amounts with respect to the debt securities; |
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the place or places where payments on the debt securities will be payable; |
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any provisions for optional redemption or early repayment; |
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any sinking fund or other provisions that would obligate us to redeem, purchase or repay the debt securities; |
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the denominations in which we will issue the debt securities if other than $1,000 and integral multiples of $1,000; |
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whether payments on the debt securities will be payable in foreign currency or currency unit or another form and whether payments will be payable by reference to any index or formula; |
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the portion of the principal amount of debt securities that will be payable if the maturity is accelerated, if other than the entire principal amount; |
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any additional means of defeasance of the debt securities, any additional conditions or limitations to defeasance of the debt securities or any changes to those conditions or limitations; |
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any changes or additions to the events of default or covenants described in this prospectus; |
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any restrictions or other provisions relating to the transfer or exchange of debt securities; |
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any terms for the conversion or exchange of the debt securities for other securities; |
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with respect to the subordinated indenture, any changes to the subordination provisions for the subordinated debt securities; and |
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any other terms of the debt securities not inconsistent with the applicable indenture. |
We may
sell the debt securities at a discount, which may be substantial, below their stated principal amount. These debt securities may bear no interest or interest at a rate that at the time of issuance is below market rates. If we sell these debt
securities, we will describe in the prospectus supplement any material United States federal income tax consequences and other special considerations.
If we sell any of the debt securities for any foreign currency or currency unit or if payments on the debt securities are payable in any
foreign currency or currency unit, we will describe in the prospectus supplement the restrictions, elections, tax consequences, specific terms and other information relating to those debt securities and the foreign currency or currency unit.
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Subordination
Under the subordinated indenture, payment of the principal of and any premium and interest on the subordinated debt securities will generally
be subordinated and junior in right of payment to the prior payment in full of all Senior Debt (as defined below). Unless we inform you otherwise in the prospectus supplement, we may not make any payment of principal of or any premium or interest on
the subordinated debt securities if:
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we fail to pay the principal, interest, premium or any other amounts on any Senior Debt when due; or |
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we default in performing any other covenant (a covenant default) on any Senior Debt that we have designated if the covenant default allows the holders of that Senior Debt to accelerate the maturity of the
Senior Debt they hold. |
Unless we inform you otherwise in the prospectus supplement, a covenant default will prevent us from
paying the subordinated debt securities only for up to 179 days after holders of the designated Senior Debt give the trustee for the subordinated debt securities notice of the covenant default.
The subordination does not affect our obligation, which is absolute and unconditional, to pay, when due, the principal of and any premium and
interest on the subordinated debt securities. In addition, the subordination does not prevent the occurrence of any default under the subordinated indenture.
The subordinated indenture does not limit the amount of Senior Debt that we may incur. As a result of the subordination of the subordinated
debt securities, if we become insolvent, holders of subordinated debt securities may receive less on a proportionate basis than other creditors.
Unless we inform you otherwise in the prospectus supplement, Senior Debt will mean all of our indebtedness, including guarantees,
unless the indebtedness states that it is not senior to the subordinated debt securities or our other junior debt. Senior Debt with respect to a series of subordinated debt securities could include other series of debt securities issued under the
subordinated indenture.
Consolidation, Merger and Sales of Assets
The indentures generally permit a consolidation or merger involving us. They also permit us to sell, lease, convey, assign, transfer or
otherwise dispose of all or substantially all of our assets. We have agreed, however, that we will not consolidate with or merge into any entity or sell, lease, convey, assign, transfer or dispose of all or substantially all of our assets to any
entity unless:
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we are the continuing entity, or |
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if we are not the continuing entity, the resulting entity is organized under the laws of any United States jurisdiction and assumes by a supplemental indenture the due and punctual payments on the debt securities and
the performance of our covenants and obligations under the indentures, and |
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immediately after giving effect to the transaction, no default or event of default under the indentures has occurred and is continuing or would result from the transaction. |
This covenant will not apply to any merger of another entity into us. Upon any transaction of the type described in and effected in accordance
with this section, the resulting entity will succeed to and be substituted for us and may exercise all of our rights and powers under the applicable indenture and the debt securities with the same effect as if the resulting entity had been named as
us in the indenture. In the case of any asset transfer or disposition other than a lease, when the resulting entity assumes all of our obligations and covenants under the applicable indenture and the debt securities, we will be relieved of all such
obligations.
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Events of Default
Unless we inform you otherwise in the applicable prospectus supplement, the following are events of default with respect to a series of debt
securities:
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our failure to pay interest on any debt security of that series for 30 days when due; |
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our failure to pay principal of or any premium on any debt security of that series when due; |
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our failure to deposit any sinking fund payment for 30 days when due; |
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our failure to comply with any covenant or agreement in that series of debt securities or the applicable indenture (other than an agreement or covenant that has been included in the indenture solely for the benefit of
other series of debt securities) for 90 days after written notice by the trustee or by the holders of at least 25% in principal amount of the outstanding debt securities issued under that indenture that are affected by that failure;
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specified events involving bankruptcy, insolvency or reorganization of us; and |
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any other event of default provided for that series of debt securities. |
A default under one
series of debt securities will not necessarily be a default under any other series. If a default or event of default for any series of debt securities occurs, is continuing and is known to the trustee, the trustee will notify the holders of
applicable debt securities within 90 days after it occurs. The trustee may withhold notice to the holders of the debt securities of any default or event of default, except in any payment on the debt securities, if the trustee in good faith
determines that withholding notice is in the interests of the holders of those debt securities.
If an event of default for any series of
debt securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of the series affected by the default (or, in some cases, 25% in principal amount of all debt securities
issued under the applicable indenture that are affected, voting as one class) may declare the principal of and all accrued and unpaid interest on those debt securities to be due and payable immediately. If an event of default relating to certain
events of bankruptcy, insolvency or reorganization of our company occurs, the principal of and accrued and unpaid interest on all the debt securities issued under the applicable indenture will become immediately due and payable without any action on
the part of the trustee or any holder. At any time after a declaration of acceleration has been made, the holders of a majority in principal amount of the outstanding debt securities of the series affected by the default (or, in some cases, of all
debt securities issued under the applicable indenture that are affected, voting as one class) may in some cases rescind this accelerated payment requirement and its consequences.
A holder of a debt security of any series issued under an indenture may pursue any remedy under that indenture only if:
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the holder gives the trustee written notice of a continuing event of default with respect to that series; |
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the holders of at least 25% in principal amount of the outstanding debt securities of that series make a written request to the trustee to pursue the remedy; |
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the holders offer to the trustee indemnity satisfactory to the trustee against any loss, liability or expense; |
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the trustee does not comply with the request within 60 days after receipt of the request and offer of indemnity; and |
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during that 60-day period, the holders of a majority in principal amount of the debt securities of that series do not give the trustee a direction inconsistent with the request. |
This provision does not, however, affect the right of a holder of a debt security to sue for enforcement of any overdue payment.
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In most cases, the trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request or direction of any of the holders unless those holders have offered to the trustee indemnity satisfactory to it. Subject to this provision for indemnification, the holders of a majority in principal amount of the
outstanding debt securities of a series (or of all debt securities issued under the applicable indenture that are affected, voting as one class) generally may direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee; or |
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exercising any trust or power conferred on the trustee relating to or arising as a result of an event of default. |
If an event of default occurs and is continuing, the trustee will be required to use the degree of care and skill of a prudent person in the conduct of his
own affairs.
The indentures require us to furnish to the trustee annually a statement as to our performance of certain of our obligations
under the indentures and as to any default in performance.
Modification and Waiver
We and the trustee may supplement or amend each indenture with the consent of the holders of at least a majority in principal amount of the
outstanding debt securities of all series issued under that indenture that are affected by the amendment or supplement (voting as one class). Without the consent of the holder of each debt security affected, however, no modification may:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce the rate of or change the time for payment of interest on the debt security; |
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reduce the principal of the debt security or change its stated maturity; |
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reduce any premium payable on the redemption of the debt security or change the time at which the debt security may or must be redeemed; |
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change any obligation to pay additional amounts on the debt security; |
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make payments on the debt security payable in currency other than as originally stated in the debt security; |
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impair the holders right to institute suit for the enforcement of any payment on or with respect to the debt security; |
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make any change in the percentage of principal amount of debt securities necessary to waive compliance with certain provisions of the indenture or to make any change in the provision related to modification;
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with respect to the subordinated indenture, modify the provisions relating to the subordination of any subordinated debt security in a manner adverse to the holder of that security; |
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waive a continuing default or event of default regarding any payment on the debt securities; or |
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if applicable, make any change that materially and adversely affects the right to convert any debt security. |
We and the trustee may supplement or amend each indenture or waive any provision of that indenture without the consent of any holders of debt
securities issued under that indenture in certain circumstances, including:
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to cure any ambiguity, omission, defect or inconsistency; |
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to provide for the assumption of our obligations under the indenture by a successor upon any merger, consolidation or asset transfer permitted under the indenture; |
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities or to provide for bearer debt securities; |
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to provide any security for, or to add any guarantees of or obligors on, any series of debt securities; |
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to comply with any requirement to effect or maintain the qualification of that indenture under the Trust Indenture Act of 1939; |
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to add covenants that would benefit the holders of any debt securities or to surrender any rights we have under the indenture; |
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to add events of default with respect to any series of debt securities; |
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to make any change that does not adversely affect any outstanding debt securities of any series issued under that indenture in any material respect; and |
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to establish the form or terms of any debt securities and to accept the appointment of a successor trustee, each as permitted under the indenture. |
The holders of a majority in principal amount of the outstanding debt securities of any series (or, in some cases, of all debt securities
issued under the applicable indenture that are affected, voting as one class) may waive any existing or past default or event of default with respect to those debt securities. Those holders may not, however, waive any default or event of default in
any payment on any debt security or compliance with a provision that cannot be amended or supplemented without the consent of each holder affected.
Defeasance and Discharge
Defeasance. When we use the term defeasance, we mean discharge from some or all of our obligations under an indenture. If we deposit
with the trustee under an indenture any combination of money or government securities sufficient to make payments on the debt securities of a series issued under that indenture on the dates those payments are due, then, at our option, either of the
following will occur:
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we will be discharged from our obligations with respect to the debt securities of that series (legal defeasance); or |
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we will no longer have any obligation to comply with specified restrictive covenants with respect to the debt securities of that series, the covenant described under Consolidation, Merger and Sales of
Assets and other specified covenants under the applicable indenture, and the related events of default will no longer apply (covenant defeasance). |
If a series of debt securities is defeased, the holders of the debt securities of that series will not be entitled to the benefits of the applicable
indenture, except for obligations to register the transfer or exchange of debt securities, replace stolen, lost or mutilated debt securities or maintain paying agencies and hold money for payment in trust. In the case of covenant defeasance, our
obligation to pay principal, premium and interest on the debt securities will also survive.
Unless we inform you otherwise in the
prospectus supplement, we will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the debt securities to recognize income, gain or loss for U.S. federal income tax
purposes and that the holders would be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the deposit and related defeasance had not occurred. If we elect legal defeasance,
that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service or a change in law to that effect.
Under current U.S. federal income tax law, legal defeasance would likely be treated as a taxable exchange of debt securities to be defeased
for interests in the defeasance trust. As a consequence, a United States holder would recognize gain or loss equal to the difference between the holders cost or other tax basis for the debt
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securities and the value of the holders interest in the defeasance trust, and thereafter would be required to include in income a share of the income, gain or loss of the defeasance trust.
Under current U.S. federal income tax law, covenant defeasance would not be treated as a taxable exchange of such debt securities.
Satisfaction and Discharge. In addition, an indenture will cease to be of further effect with respect to the debt securities of a
series issued under that indenture, subject to exceptions relating to compensation and indemnity of the trustee under that indenture and repayment to us of excess money or government securities, when:
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all outstanding debt securities of that series have been delivered to the trustee for cancellation; or |
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all outstanding debt securities of that series not delivered to the trustee for cancellation either: |
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have become due and payable, |
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will become due and payable at their stated maturity within one year, or |
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are to be called for redemption within one year; and |
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we have deposited with the trustee any combination of money or government securities in trust sufficient to pay the entire indebtedness on the debt securities of that series when due; and |
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we have paid all other sums payable by us with respect to the debt securities of that series. |
Governing
Law
New York law will govern the indentures and the debt securities.
The Trustees
We will name the trustee
under the applicable indenture in the prospectus supplement. Each indenture contains limitations on the right of the trustee, if it or any of its affiliates is then our creditor, to obtain payment of claims or to realize on certain property received
for any such claim, as security or otherwise. The trustee and its affiliates are permitted to engage in other transactions with us. If, however, the trustee acquires any conflicting interest, it must eliminate that conflict or resign within 90 days
after ascertaining that it has a conflicting interest and after the occurrence of a default under the applicable indenture, unless the default has been cured, waived or otherwise eliminated within the 90-day period.
Payment and Paying Agents
Unless we
inform you otherwise in a prospectus supplement, we will make payments on the debt securities in U.S. dollars at the office of the trustee and any paying agent. At our option, however, payments may be made by wire transfer for global debt securities
or by check mailed to the address of the person entitled to the payment as it appears in the security register. Unless we inform you otherwise in a prospectus supplement, we will make interest payments to the person in whose name the debt security
is registered at the close of business on the record date for the interest payment.
Unless we inform you otherwise in a prospectus
supplement, the trustee under the applicable indenture will be designated as the paying agent for payments on debt securities issued under that indenture. We may at any time designate additional paying agents or rescind the designation of any paying
agent or approve a change in the office through which any paying agent acts.
If the principal of or any premium or interest on debt
securities of a series is payable on a day that is not a business day, the payment will be made on the following business day. For these purposes, unless we inform you
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otherwise in a prospectus supplement, a business day is any day that is not a Saturday, a Sunday or a day on which banking institutions in any of New York, New York or a place of
payment on the debt securities of that series is authorized or obligated by law, regulation or executive order to remain closed.
Subject
to the requirements of any applicable abandoned property laws, the trustee and paying agent will pay to us upon written request any money held by them for payments on the debt securities that remains unclaimed for two years after the date upon which
that payment has become due. After payment to us, holders entitled to the money must look to us for payment. In that case, all liability of the trustee or paying agent with respect to that money will cease.
Form, Exchange, Registration and Transfer
We will issue the debt securities in registered form, without interest coupons. Debt securities of any series will be exchangeable for other
debt securities of the same series, the same total principal amount and the same terms but in different authorized denominations in accordance with the applicable indenture. Holders may present debt securities for registration of transfer at the
office of the security registrar or any transfer agent designated by us. The security registrar or transfer agent will effect the transfer or exchange if its requirements and the requirements of the applicable indenture are met. We will not charge a
service charge for any registration of transfer or exchange of the debt securities. We may, however, require payment of any transfer tax or similar governmental charge payable for that registration.
We will appoint the trustee as security registrar for the debt securities. If a prospectus supplement refers to any transfer agents we
initially designate, we may at any time rescind that designation or approve a change in the location through which any transfer agent acts. We are required to maintain an office or agency for transfers and exchanges in each place of payment. We may
at any time designate additional transfer agents for any series of debt securities.
In the case of any redemption of debt securities of a
series or any repurchase of debt securities of a series required under the terms of the series, we will not be required to register the transfer or exchange of:
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any debt security of that series during a period beginning 15 business days prior to the mailing of the relevant notice of redemption or repurchase and ending on the close of business on the day of mailing of such
notice; or |
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any debt security of that series that has been called for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. |
Book-Entry Debt Securities
We may issue
the debt securities of a series in the form of one or more global debt securities that would be deposited with a depositary or its nominee identified in the prospectus supplement. We may issue global debt securities in either temporary or permanent
form. We will describe in the prospectus supplement the terms of any depositary arrangement and the rights and limitations of owners of beneficial interests in any global debt security.
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 100.0 million shares of common stock, par value $0.01 per share, and 5.0 million shares of
preferred stock, par value $0.01 per share. The following describes our common stock, preferred stock, restated certificate of incorporation and bylaws. This description is a summary only. We encourage you to read the complete text of our restated
certificate of incorporation and bylaws, which we have filed as exhibits to the registration statement of which this prospectus is a part.
Common
Stock
The holders of our common stock are entitled to one vote per share on each matter properly submitted to a vote of our
stockholders generally, including the election of directors. There are no cumulative voting rights, meaning that the holders of a majority of the voting power voting for the election of directors can elect all of the directors standing for election.
Our common stock carries no preemptive or other subscription rights to purchase shares of our stock and is not convertible, redeemable or
assessable or entitled to the benefits of any sinking fund. Holders of common stock will be entitled to dividends in the amounts and at the times declared by our board of directors out of funds legally available for the payment of dividends.
If we are liquidated, dissolved or wound up, the holders of common stock will share pro rata in our assets after satisfaction of all of our
liabilities and the prior rights of any outstanding class of preferred stock.
Preferred Stock
Our board of directors has the authority, without stockholder approval, to issue shares of preferred stock from time to time in one or more
series and to fix the number of shares and terms of each series. The board may determine the designation and other terms of each series, including, among others:
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conversion and exchange rights; |
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liquidation preferences. |
The prospectus supplement relating to any series of preferred stock
we are offering will include specific terms relating to the offering and the name of any transfer agent for that series. We will file the form of the preferred stock with the SEC before we issue any of it, and you should read it for provisions that
may be important to you. The prospectus supplement will include some or all of the following terms:
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the title of the preferred stock; |
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the maximum number of shares of the series; |
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the dividend rate or the method of calculating the dividend, the date from which dividends will accrue and whether dividends will be cumulative; |
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any liquidation preference; |
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any optional redemption provisions; |
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any sinking fund or other provisions that would obligate us to redeem or purchase the preferred stock; |
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any terms for the conversion or exchange of the preferred stock for other securities of us or any other entity; |
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any other preferences and relative, participating, optional or other special rights or any qualifications, limitations or restrictions on the rights of the shares. |
The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could
reduce the relative voting power of holders of common stock. It also could affect the likelihood that holders of common stock will receive dividend payments and payments upon liquidation.
Our board of directors has designated two series of preferred stock, Series A Cumulative Redeemable Preferred Stock and Series B Voting
Preferred Stock. The holders of Series B preferred stock are entitled to vote in the election of directors and on all other matters submitted to a vote of the holders of our common stock, with the holders of Series B preferred stock and the holders
of common stock voting together as a single class.
Anti-Takeover Provisions of Our Restated Certificate of Incorporation and Bylaws
Our restated certificate of incorporation and bylaws contain provisions that could delay or make more difficult the acquisition of control of
our company through a hostile tender offer, open market purchases, proxy contest, merger or other takeover attempt that a stockholder might consider to be in his or her best interest, including those attempts that might result in a premium over the
market price of our common stock.
Authorized but Unissued Stock
We have 40 million authorized shares of common stock and 5 million authorized shares of preferred stock. One of the consequences of
our authorized but unissued common stock and undesignated preferred stock may be to enable the board of directors to make more difficult or to discourage an attempt to obtain control of our company. If, in the exercise of its fiduciary obligations,
our board of directors determined that a takeover proposal was not in our best interest, the board could authorize the issuance of some or all of those shares without stockholder approval. The shares could be issued in one or more transactions that
might prevent or make the completion of a proposed change of control transaction more difficult or costly by:
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diluting the voting or other rights of the proposed acquiror or insurgent stockholder group; |
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creating a substantial voting block in institutional or other hands that might undertake to support the position of the incumbent board; or |
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effecting an acquisition using shares as consideration that might complicate or preclude the takeover. |
In this regard, our restated certificate of incorporation grants the board of directors broad power to establish the rights and preferences of
the authorized and unissued preferred stock. Our board could establish one or more series of preferred stock that entitle holders to, among other things:
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vote separately as a class on any proposed merger or consolidation; |
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cast a proportionately larger vote together with the common stock on any transaction or for all purposes; |
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elect directors having terms of office or voting rights greater than those of other directors; |
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convert preferred stock into a greater number of shares of common stock or other securities; |
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demand redemption at a specified price under prescribed circumstances related to a change of control of us; or |
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exercise other rights designed to impede a takeover. |
In addition, the number of authorized
shares of preferred stock or common stock may be increased by the affirmative vote of the holders of a majority of the voting power of our outstanding voting stock.
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Stockholder Action by Written Consent; Special Meetings of Stockholders
Our restated certificate of incorporation provides that no action that is required or permitted to be taken by the stockholders at any annual
or special meeting may be taken by written consent of stockholders in lieu of a meeting. This provision of the restated certificate of incorporation may only be amended or repealed by a vote of 80% of the voting power of the outstanding capital
stock entitled to vote generally in the election of directors. Our restated certificate of incorporation also provides that special meetings of stockholders may be called only by the board of directors, the chairman of the board, the chief executive
officer or three or more directors.
Amendment of the Bylaws
Under Delaware law, the power to adopt, amend or repeal bylaws is conferred upon the stockholders. A corporation may, however, in its
certificate of incorporation also confer upon the board of directors the power to adopt, amend or repeal its bylaws. Our restated certificate of incorporation and bylaws grant the board of directors the power to adopt, amend and repeal our bylaws
with the affirmative vote of a majority of the total number of directors authorized to be in office regardless of vacancies. Our stockholders may also adopt, amend or repeal our bylaws by the affirmative vote of the holders of a majority of the
voting power of our outstanding voting stock.
Election and Removal of Directors
Directors may be removed, with or without cause, by the affirmative vote of the holders of a majority of the voting power of our stock entitled
to vote in the election of directors. A vacancy on our board of directors may be filled by a vote of a majority of the directors in office or, if there are no directors remaining, by the stockholders. A director elected to fill a vacancy will serve
until the next annual meeting of stockholders. The number of directors on the board generally will be fixed exclusively by, and may be increased or decreased exclusively by, the board of directors.
Advance Notice Procedure for Director Nominations and Stockholder Proposals
Our bylaws provide the manner in which stockholders may give notice of business and director nominations to be brought before an annual meeting
of stockholders. In order for an item to be properly brought before the meeting by a stockholder, the stockholder must be a holder of record at the time of the giving of notice and on the record date for the determination of stockholders entitled to
vote at the annual meeting, and must be entitled to vote at the annual meeting. The item to be brought before the meeting must be a proper subject for stockholder action, and the stockholder must have given timely advance written notice of the item.
For notice to be timely, it must be delivered to, or mailed and received at, our principal office at least 90 days but not more than 120 days prior to the first anniversary of the prior years annual meeting date. If, however, the scheduled
annual meeting date differs from such anniversary date by more than 30 days, then notice of an item to be brought before the annual meeting may be timely if it is delivered or received not earlier than the close of business on the 120th day and not
later than the close of business on the later of the 90th day prior to the date of the annual meeting or, if less than 100 days prior notice or public disclosure of the scheduled meeting date is given or made, the 10th day following the
earlier of the day on which the notice of such meeting was mailed to stockholders or the day on which such public disclosure was made. The notice must set forth the information required by the provisions of our bylaws dealing with stockholder
proposals and nominations of directors.
Stockholders are not permitted to propose business to be brought before a special meeting of the
stockholders.
These provisions of our bylaws may limit the ability of stockholders to bring business before a stockholders meeting,
including the nomination of directors and the consideration of any transaction that could result in a change of control and that may result in a premium to our stockholders.
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Limitation of Liability of Directors
Our directors will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except,
if required by Delaware law, for liability:
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for any breach of the duty of loyalty to us or our stockholders; |
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for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law; |
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for unlawful payment of a dividend or unlawful stock purchases or redemptions; and |
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for any transaction from which the director derived an improper personal benefit. |
If Delaware
law is amended to authorize the further elimination or limitation of directors liability, then the liability of our directors shall automatically be limited to the fullest extent provided by law. Our bylaws also contain provisions to indemnify
directors and officers to the fullest extent permitted by applicable law. In addition, we have entered into indemnification agreements with our directors and officers.
These provisions and agreements may have the practical effect in certain cases of eliminating the ability of stockholders to collect monetary
damages from directors and officers.
Delaware Anti-Takeover Law
We are a Delaware corporation subject to Section 203 of the Delaware General Corporation Law, which regulates corporate acquisitions.
Section 203 prevents an interested stockholder, which is defined generally as a person owning 15% or more of a corporations voting stock, or any affiliate or associate of that person, from engaging in a broad range of
business combinations with the corporation for three years after becoming an interested stockholder unless:
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the board of directors of the corporation had previously approved either the business combination or the transaction that resulted in the stockholders becoming an interested stockholder; |
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upon completion of the transaction that resulted in the stockholders becoming an interested stockholder, that person owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding shares owned by persons who are directors and also officers and shares owned in employee stock plans in which participants do not have the right to determine confidentially whether shares held subject to the plan
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following the transaction in which that person became an interested stockholder, the business combination is approved by the board of directors of the corporation and holders of at least two-thirds of the outstanding
voting stock not owned by the interested stockholder. |
Under Section 203, the restrictions described above also do not
apply to specific business combinations proposed by an interested stockholder following the announcement or notification of designated extraordinary transactions involving the corporation and a person who had not been an interested stockholder
during the previous three years or who became an interested stockholder with the approval of a majority of the corporations directors, if such extraordinary transaction is approved or not opposed by a majority of the directors who were
directors prior to any person becoming an interested stockholder during the previous three years or were recommended for election or elected to succeed such directors by a majority of such directors.
Section 203 may make it more difficult for a person who would be an interested stockholder to effect various business combinations with a
corporation for a three-year period.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Shareowner Services.
Market Information
Our common stock is
listed on the NASDAQ Global Market under the symbol PSTR.
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DESCRIPTION OF WARRANTS
We may issue warrants to purchase any combination of debt securities, common stock, preferred stock or other securities of our company or any
other entity. We may issue warrants independently or together with other securities. Warrants sold with other securities may be attached to or separate from the other securities. We will issue warrants under one or more warrant agreements between us
and a warrant agent that we will name in the prospectus supplement.
The prospectus supplement relating to any warrants we are offering
will include specific terms relating to the offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important to you. The prospectus supplement will include some or
all of the following terms:
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the title of the warrants; |
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the aggregate number of warrants offered; |
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the designation, number and terms of the debt securities, common stock, preferred stock or other securities purchasable upon exercise of the warrants, and procedures by which those numbers may be adjusted;
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the exercise price of the warrants; |
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the dates or periods during which the warrants are exercisable; |
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the designation and terms of any securities with which the warrants are issued; |
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if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security will be separately transferable; |
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated; |
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any minimum or maximum amount of warrants that may be exercised at any one time; and |
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants. |
PLAN OF DISTRIBUTION
We may sell the securities on a delayed or continuous basis in and outside the United States through underwriters or dealers as designated
from time to time, directly to purchasers, through agents or through a combination of these methods.
Sale Through Underwriters or Dealers
If we use underwriters in the sale of securities, the underwriters will acquire the securities for their own account. The underwriters may
resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. Unless we inform you otherwise in the prospectus supplement and except as described below, the obligations of the underwriters to purchase the securities will be subject to conditions, and the
underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to
dealers.
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Underwriters may sell shares of our common stock under this prospectus by any method permitted by
law deemed to be an at the market offering as defined in Rule 415 under the Securities Act of 1933, which includes sales made directly on the NASDAQ Global Market, on any other existing trading market for our common stock or to or
through a market maker, or in privately negotiated transactions. Unless we inform you otherwise in the prospectus supplement, the sales agent with respect to any such at-the-market offering will make all sales using commercially reasonable efforts
consistent with its normal trading and sales practices, on mutually agreeable terms between the sales agent and us. We will include in the prospectus supplement the amount of any compensation to be received by the sales agent.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These
transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters also may impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at
any time.
If we use dealers in the sale of securities, we will sell the securities to them as principals. They may then resell those
securities to the public at varying prices determined by the dealers at the time of resale. The dealers participating in any sale of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect to any
sale of those securities. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
Direct Sales and
Sales Through Agents
We may sell the securities directly. In that event, no underwriters or agents would be involved. We may also sell
the securities through agents we designate from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable by us to the agent. Unless we
inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act of 1933 with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Delayed Delivery Contracts
If we so
indicate in the prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These
contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for
solicitation of those contracts.
Remarketing
We may offer and sell any of the securities in connection with a remarketing upon their purchase, in accordance with a redemption or repayment
by their terms or otherwise, by one or more remarketing firms acting as principals for their own accounts or as our agents. We will identify any remarketing firm, the terms of any remarketing agreement and the compensation to be paid to the
remarketing firm in the prospectus supplement. Remarketing firms may be deemed underwriters under the Securities Act of 1933.
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Derivative Transactions
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third parties may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those
derivatives to close out any related open borrowings of stock. The third parties in these sale transactions will be underwriters and will be identified in the applicable prospectus supplement or in a post-effective amendment to the registration
statement of which this prospectus forms a part.
General Information
We may have agreements with the agents, dealers and underwriters to indemnify them against certain civil liabilities, including liabilities
under the Securities Act of 1933, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers and underwriters may be customers of, engage in transactions with or perform services for
us in the ordinary course of their businesses.
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LEGAL MATTERS
Certain legal matters in connection with this offering will be passed upon for us by Baker Botts L.L.P., Houston, Texas. Any underwriters will
be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The consolidated financial statements of PostRock Energy Corporation and Subsidiaries as of December 31, 2013 and 2012, and for each of the
three years in the period ended December 31, 2013 incorporated herein by reference from our Annual Report in Form 10-K for the year ended December 31, 2013 have been audited by UHY LLP, an independent registered public accounting firm, as set forth
in their report therein, and are incorporated in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
Certain estimates of our proved oil and gas reserves have been incorporated by reference herein in reliance upon engineering reports prepared
by Cawley, Gillespie & Associates, Inc., independent petroleum engineers, incorporated by reference herein, and upon the authority of said firm as experts in such matters.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act relating to the securities offered by this prospectus. The
registration statement, including the attached exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from this prospectus.
In addition, we file annual, quarterly and other reports, proxy statements and other information with the SEC. You may read and copy any
document we file at the SECs public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-732-0330 for further information on the operation of the SECs public reference room. Our SEC filings are
available on the SECs web site at http://www.sec.gov. We also make available free of charge on our website, at http://www.pstr.com, all materials that we file electronically with the SEC, including our annual report on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K, Section 16 reports and amendments to these reports as soon as reasonably practicable after such materials are electronically filed with, or furnished to, the SEC. Information contained on our
website or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus.
The
SEC allows us to incorporate by reference the information we have filed with the SEC. This means that we can disclose important information to you without actually including the specific information in this prospectus by referring you to
other documents filed separately with the SEC. These other documents contain important information about us. The information incorporated by reference is an important part of this prospectus. Information that we file later with the SEC will
automatically update and may replace information in this prospectus and information previously filed with the SEC.
We incorporate by
reference in this prospectus the documents listed below and any subsequent filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (excluding information deemed to be furnished and not filed
with the SEC) until all offerings under this registration statement are completed or terminated:
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our annual report on Form 10-K for the year ended December 31, 2013 (the Form 10-K); |
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our quarterly reports on Form 10-Q for the quarters ended March 31, 2014 and June 30, 2014; |
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the information contained in our definitive proxy statement on Schedule 14A for our 2014 annual meeting of stockholders to the extent incorporated by reference in Part III of the Form 10-K;
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our current reports on Form 8-K filed on January 14, 2014, March 20, 2014, March 27, 2014, April 4, 2014, May 22, 2014 and August 8, 2014; and |
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the description of our common stock contained in our registration statement on Form 8-A (File No. 001-34635) filed on February 18, 2010, as that description may be updated from time to time. |
We also are incorporating by reference all additional documents that we may file with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date hereof and prior to the effectiveness of the registration statement.
You may request a copy of these
filings, other than an exhibit to these filings unless we have specifically incorporated that exhibit by reference into the filing, at no cost, by writing or telephoning us at the following address:
PostRock Energy Corporation
Attn: Corporate Secretary
210
Park Avenue
Oklahoma City, OK 73012
(405) 600-7704
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses payable by PostRock Energy Corporation, a Delaware corporation (PostRock), in
connection with the offering described in this Registration Statement.
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Registration fee |
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$ |
12,880 |
* |
Printing expenses |
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Accounting fees and expenses |
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Legal fees and expenses |
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Rating agency fees |
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Fees and expenses of trustee |
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Miscellaneous |
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Total |
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* |
Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(o) under the Securities Act and exclusive of accrued interest, distributions and dividends, if any. |
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Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that PostRock anticipates it will incur in connection with the
offering of securities under this Registration Statement. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement.
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Item 15. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 102(b)(7) of the Delaware General Corporation Law (the DGCL) permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability for any of the following:
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any breach of the directors duty of loyalty to the corporation or its stockholders, |
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acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, |
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under Section 174 of the DGCL, or |
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any transaction from which the director derived an improper personal benefit. |
Under
Section 145 of the DGCL, a corporation may indemnify any individual made a party or threatened to be made a party to any type of proceeding, other than an action by or in the right of the corporation, because he or she is or was an officer,
director, employee or agent of the corporation or was serving at the request of the corporation as an officer, director, employee or agent of another corporation or entity against expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such proceeding: (1) if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation; or (2) in the case of a
criminal proceeding, he or she had no reasonable cause to believe that his or her conduct was unlawful. A corporation may indemnify any individual made a party or threatened to be made a party to any threatened, pending or completed action or suit
brought by or in the right of the corporation because he or she was an officer, director, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
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corporation or other entity, against expenses actually and reasonably incurred in connection with such action or suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, provided that such indemnification will be denied if the individual is found liable to the corporation unless, in such a case, the court determines the person is nonetheless
entitled to indemnification for such expenses. A corporation must indemnify a present or former director or officer who successfully defends himself or herself in a proceeding to which he or she was a party because he or she was a director or
officer of the corporation against expenses actually and reasonably incurred by him or her. Expenses incurred by a director or officer in defending civil or criminal proceedings may be paid by the corporation in advance of the final disposition of
such proceedings upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Delaware law regarding
indemnification and expense advancement is not exclusive of any other rights which may be granted by PostRocks certificate of incorporation or bylaws, a vote of shareholders or disinterested directors, agreement or otherwise. Under the DGCL,
termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that such person is prohibited from being indemnified.
PostRocks Restated Certificate of Incorporation
PostRock is a Delaware corporation. PostRocks restated certificate of incorporation provides that no director will be personally liable
to PostRock or its stockholders for monetary damages for breach of a fiduciary duty as a director to the fullest extent permitted by the DGCL.
PostRocks Bylaws
PostRocks bylaws provide that PostRock will indemnify and hold harmless, to the fullest extent permitted by applicable law in effect as
of the date of the effectiveness of the bylaws and to such greater extent as applicable law may thereafter permit, any person who is or is threatened to be made a witness in or a party to any action, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative (a proceeding) by reason of the fact that he or she is or was a director or officer of PostRock or is or
was serving at the request of PostRock as a director, officer or other designated legal representative of another entity (corporate status) against any and all losses, liabilities, costs, claims, damages and expenses actually and
reasonably incurred by such person or on his or her behalf by reason of his corporate status.
Item 16. Exhibits.
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Exhibit No. |
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Description of Exhibit |
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3.1* |
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Restated Certificate of Incorporation of PostRock (incorporated herein by reference to Exhibit 3.1 to PostRocks Current Report on Form 8-K filed on March 10, 2010). |
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3.2* |
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Certificate of Amendment to Restated Certificate of Incorporation of PostRock (incorporated herein by reference to Exhibit 3.2 to PostRocks Registration Statement on Form S-8 filed on May 17, 2012, Registration No.
333-181480). |
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3.3* |
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Bylaws of PostRock (incorporated herein by reference to Exhibit 3.2 to PostRocks Current Report on Form 8-K filed on March 10, 2010). |
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3.4* |
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Second Amended and Restated Certificate of Designations for the Series A Cumulative Redeemable Preferred Stock (incorporated herein by reference to Exhibit 4.1 to PostRocks Current Report on Form 8-K filed on December 21,
2012). |
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3.5* |
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Certificate of Designations for the Series B Voting Preferred Stock (incorporated herein by reference to Exhibit 4.2 to PostRocks Current Report on Form 8-K filed on September 23,
2010). |
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Exhibit No. |
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Description of Exhibit |
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4.1* |
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Specimen of certificate for shares of Common Stock of PostRock (incorporated herein by reference to Exhibit 4.1 to Amendment No. 1 to PostRocks Registration Statement on Form S-4 filed on December 17, 2009, Registration
No. 333-162366). |
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4.2* |
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Form of Indenture between PostRock and the trustee thereunder (the Senior Trustee), relating to senior debt securities (incorporated herein by reference to Exhibit 4.2 to Amendment No. 1 to PostRocks Registration
Statement on Form S-3 filed on May 12, 2011, Registration No. 333-173896). |
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4.3* |
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Form of Indenture between PostRock and the trustee thereunder (the Subordinated Trustee), relating to subordinated debt securities (incorporated herein by reference to Exhibit 4.3 to Amendment No. 1 to PostRocks
Registration Statement on Form S-3 filed on May 12, 2011, Registration No. 333-173896). |
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5.1 |
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Opinion of Baker Botts L.L.P. as to the legality of the securities. |
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12.1 |
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Computation of ratio of earnings to fixed charges and preferred stock dividends. |
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23.1 |
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Consent of UHY LLP. |
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23.2 |
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Consent of Cawley, Gillespie & Associates, Inc. |
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23.3 |
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1). |
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24.1** |
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Powers of Attorney. |
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PostRock will file as an exhibit to a Current Report on Form 8-K (i) any underwriting, remarketing or agency agreement relating to the securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock or warrants, (iii) any additional required opinions of counsel with respect to legality of the securities offered hereby, (iv) any required opinion of counsel as to certain tax matters relative to the
securities offered hereby and (v) any required Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Senior Trustee and the Subordinated Trustee on Form T-1. |
* |
Incorporated by reference as indicated. |
Item 17. Undertakings.
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(a) |
The undersigned Registrant hereby undertakes: |
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(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
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(i) |
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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(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) of the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective Registration Statement; and |
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(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;
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II-3
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provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(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. |
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(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. |
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(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. |
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(4) |
That, for the purpose of determining liability under the Securities Act to any purchaser: |
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(A) |
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration
Statement; and |
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(B) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the Registration Statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the Registration Statement relating to the securities in the Registration Statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the Registration Statement or made in a document incorporated or deemed incorporated by reference into the Registration
Statement or prospectus that is part of the Registration Statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the Registration Statement or prospectus that
was part of the Registration Statement or made in any such document immediately prior to such effective date. |
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(5) |
That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities: |
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The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to the 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: |
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(i) |
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
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(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
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(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
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(iv) |
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
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(b) |
The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) 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. |
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(c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
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(d) |
The undersigned registrant hereby undertakes that: |
(1) For purposes of determining any
liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(e) |
The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of each of the Senior Trustee and the Subordinated Trustee to act under subsection (a) of section
310 of the Trust Indenture Act of 1939 (the Act) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oklahoma City, State of Oklahoma, on August 21, 2014.
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POSTROCK ENERGY CORPORATION |
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/s/ TERRY W. CARTER |
Terry W. Carter |
Chief Executive Officer and President |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed
by the following persons in the capacities and on the dates indicated.
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Name |
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Capacity |
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Date |
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/s/ TERRY W. CARTER
Terry W. Carter |
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Chief Executive Officer and President and Director (Principal Executive and Financial Officer) |
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August 21, 2014 |
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/s/ CASEY E. BIGELOW
Casey E. Bigelow |
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Chief Accounting Officer
(Principal Accounting Officer) |
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August 21, 2014 |
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* Duke R.
Ligon |
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Chairman of the Board |
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August 21, 2014 |
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* Nathan M.
Avery |
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Director |
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August 21, 2014 |
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* William H.
Damon III |
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Director |
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August 21, 2014 |
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* Thomas J.
Edelman |
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Director |
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August 21, 2014 |
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* J. Philip
McCormick |
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Director |
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August 21, 2014 |
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*By: |
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/S/ TERRY W. CARTER |
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Terry W. Carter
Attorney-in-fact |
INDEX TO EXHIBITS
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Exhibit No. |
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Description of Exhibit |
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3.1* |
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Restated Certificate of Incorporation of PostRock (incorporated herein by reference to Exhibit 3.1 to PostRocks Current Report on Form 8-K filed on March 10, 2010). |
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3.2* |
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Certificate of Amendment to Restated Certificate of Incorporation of PostRock (incorporated herein by reference to Exhibit 3.2 to PostRocks Registration Statement on Form S-8 filed on May 17, 2012, Registration No.
333-181480). |
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3.3* |
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Bylaws of PostRock (incorporated herein by reference to Exhibit 3.2 to PostRocks Current Report on Form 8-K filed on March 10, 2010). |
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3.4* |
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Second Amended and Restated Certificate of Designations for the Series A Cumulative Redeemable Preferred Stock (incorporated herein by reference to Exhibit 4.1 to PostRocks Current Report on Form 8-K filed on December 21,
2012). |
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3.5* |
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Certificate of Designations for the Series B Voting Preferred Stock (incorporated herein by reference to Exhibit 4.2 to PostRocks Current Report on Form 8-K filed on September 23, 2010). |
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4.1* |
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Specimen of certificate for shares of Common Stock of PostRock (incorporated herein by reference to Exhibit 4.1 to Amendment No. 1 to PostRocks Registration Statement on Form S-4 filed on December 17, 2009, Registration
No. 333-162366). |
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4.2* |
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Form of Indenture between PostRock and the trustee thereunder (the Senior Trustee), relating to senior debt securities (incorporated herein by reference to Exhibit 4.2 to Amendment No. 1 to PostRocks Registration
Statement on Form S-3 filed on May 12, 2011, Registration No. 333-173896). |
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4.3* |
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Form of Indenture between PostRock and the trustee thereunder (the Subordinated Trustee), relating to subordinated debt securities (incorporated herein by reference to Exhibit 4.3 to Amendment No. 1 to PostRocks
Registration Statement on Form S-3 filed on May 12, 2011, Registration No. 333-173896). |
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5.1 |
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Opinion of Baker Botts L.L.P. as to the legality of the securities. |
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12.1 |
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Computation of ratio of earnings to fixed charges and preferred stock dividends. |
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23.1 |
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Consent of UHY LLP. |
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23.2 |
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Consent of Cawley, Gillespie & Associates, Inc. |
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23.3 |
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1). |
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24.1** |
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Powers of Attorney. |
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PostRock will file as an exhibit to a Current Report on Form 8-K (i) any underwriting, remarketing or agency agreement relating to the securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock or warrants, (iii) any additional required opinions of counsel with respect to legality of the securities offered hereby, (iv) any required opinion of counsel as to certain tax matters relative to the
securities offered hereby and (v) any required Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Senior Trustee and the Subordinated Trustee on Form T-1. |
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Incorporated by reference as indicated. |
Exhibit 5.1
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ONE SHELL PLAZA 910 LOUISIANA
HOUSTON, TEXAS 77002-4995
TEL +1 713.229.1234
FAX +1 713.229.1522 BakerBotts.com |
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ABU DHABI AUSTIN
BEIJING BRUSSELS
DALLAS DUBAI
HONG KONG |
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HOUSTON LONDON
MOSCOW NEW YORK
PALO ALTO RIO DE JANEIRO
RIYADH WASHINGTON |
August 21, 2014
080428.0101
PostRock Energy Corporation
210 Park Avenue
Oklahoma City, Oklahoma 73102
Ladies and Gentlemen:
As set forth in the
Registration Statement on Form S-3 (No. 333-195899; the Registration Statement) filed by PostRock Energy Corporation, a Delaware corporation (the Company), with the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended (the Act), relating to the offering of securities that may be issued and sold by the Company from time to time pursuant to Rule 415 under the Act for an aggregate
initial offering price not to exceed $100,000,000, certain legal matters in connection with such securities are being passed upon for you by us. Such securities include (a) the Companys unsecured senior debt securities (the Senior
Debt Securities); (b) the Companys unsecured subordinated debt securities (the Subordinated Debt Securities and, together with the Senior Debt Securities, the Debt Securities); (c) shares of common
stock, par value $0.01 per share, of the Company (Common Stock); (d) shares of preferred stock, par value $0.01 per share, of the Company (Preferred Stock); and (e) warrants to purchase other securities
(Warrants). The Debt Securities, Common Stock, Preferred Stock and Warrants are collectively referred to herein as the Securities. At your request, this opinion is being furnished to you for filing as Exhibit 5.1 to the
Registration Statement.
Each series of Senior Debt Securities is to be issued pursuant to an indenture to be entered into between the
Company and the trustee thereunder (the Senior Indenture); and each series of Subordinated Debt Securities is to be issued pursuant to an indenture to be entered into between the Company and the trustee thereunder (the Subordinated
Indenture and, together with the Senior Indenture, the Indentures). Each Indenture is to be supplemented, in connection with the issuance of each such series, by a supplemental indenture, officers certificate or other writing
thereunder establishing the form and terms of such series.
In our capacity as your counsel in the connection referred to above, we have
examined originals, or copies certified or otherwise identified, of the Companys Restated Certificate of Incorporation and Bylaws, each as amended to date (the Charter Documents), the forms of Senior Indenture and Subordinated
Indenture (each in the form to be filed as an exhibit
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PostRock Energy Corporation |
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August 21, 2014 |
to the Registration Statement) and corporate records of the Company, including minute books of the Company, as furnished to us by the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents as a basis for the opinions hereinafter expressed. In giving such opinions, we have relied upon certificates of officers of the Company and of public officials with respect
to the accuracy of the material factual matters contained in such certificates. In giving the opinions below, we have assumed, without independent investigation, that the signatures on all documents examined by us are genuine, that all documents
submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof and that all information submitted to us was accurate and complete. In connection with this
opinion, we also have assumed that:
(a) the Registration Statement and any amendments thereto will have become effective
under the Act;
(b) a prospectus supplement will have been prepared and filed with the Commission describing the
Securities offered thereby;
(c) all Securities will be offered, issued and sold in compliance with applicable securities
laws and in the manner stated in the Registration Statement and the applicable prospectus supplement, including in compliance with any applicable limitations set forth in General Instruction I.B.6 of Form S-3;
(d) the Board of Directors of the Company or, to the extent permitted by the General Corporation Law of the State of Delaware
and the Charter Documents, a duly constituted and acting committee thereof (such Board of Directors or committee thereof being hereinafter referred to as the Board) will have taken all necessary corporate action to authorize the issuance
of the Securities and any other Securities issuable on the conversion, exchange, redemption or exercise thereof, and to authorize the terms of the offering and sale of such Securities and related matters;
(e) a definitive purchase, underwriting or similar agreement with respect to any Securities being offered will have been duly
authorized and validly executed and delivered by the Company and the other parties thereto (the Purchase Agreement);
(f) any securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will have been
duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise;
(g) all Securities, and any certificates in respect thereof, will be delivered either (i) in accordance with the
provisions of the applicable Purchase Agreement approved by the Board upon payment of the consideration therefor provided for therein or (ii) upon conversion, exchange, redemption or exercise of any other Security, in accordance with the terms
of such Security or the instrument governing such Security
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PostRock Energy Corporation |
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August 21, 2014 |
providing for such conversion, exchange, redemption or exercise as approved by the Board, for the consideration approved by the Board;
(h) in the case of shares of Common Stock or Preferred Stock, certificates representing such shares will have been duly
executed, countersigned, registered and delivered, or if uncertificated, valid book-entry notations will have been made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents; there will be
sufficient shares of Common Stock or Preferred Stock authorized under the Charter Documents and not otherwise issued or reserved for issuance; and the purchase price therefor payable to the Company or, if such shares are issuable on the conversion,
exchange, redemption or exercise of another Security, the consideration payable to the Company for such conversion, exchange, redemption or exercise will not be less than the par value of such shares, in the case of shares of Common Stock, or the
purchase price or consideration, as the case may be, as approved by the Board with respect to such issuance, in the case of shares of Preferred Stock;
(i) in the case of shares of Preferred Stock of any series, the Board will have taken all necessary corporate action to
designate and establish the terms of such series and will have caused a certificate of designations respecting such series to be prepared and filed with the Secretary of State of the State of Delaware;
(j) in the case of Warrants, the Board will have taken all necessary corporate action to authorize the creation of and the
terms of such Warrants and the issuance of the Securities to be issued pursuant thereto and to approve the warrant agreement relating thereto; such Warrants and warrant agreement will be governed by the laws of the State of New York; such warrant
agreement will have been duly executed and delivered by the Company and the warrant agent thereunder appointed by the Company; neither such Warrants nor such warrant agreement will include any provision that is unenforceable; and such Warrants or
certificates representing such Warrants will have been duly executed, countersigned, registered and delivered in accordance with the provisions of such warrant agreement;
(k) in the case of a series of Senior Debt Securities or Subordinated Debt Securities:
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an indenture substantially in the form of the Senior Indenture or the Subordinated Indenture, as the case may be, will have been duly executed and delivered by the Company and the trustee thereunder; |
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the Board will have taken all necessary corporate action to designate and establish the terms of such Debt Securities in accordance with the terms of the Indenture under which such Debt Securities will be issued, and
such Debt Securities will not include any provision that is unenforceable; |
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PostRock Energy Corporation |
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August 21, 2014 |
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the Indenture under which such Debt Securities will be issued will have become qualified under the Trust Indenture Act of 1939, as amended; and |
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forms of Debt Securities complying with the terms of the Indenture under which such Debt Securities will be issued and evidencing such Debt Securities will have been duly executed, authenticated, issued and delivered in
accordance with the provisions of such Indenture. |
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that:
1. The shares of Common Stock and Preferred Stock included
in the Securities, when issued, will have been duly authorized by all necessary corporate action on the part of the Company and validly issued and will be fully paid and nonassessable.
2. The Warrants included in the Securities, when issued, will have been duly authorized by all necessary corporate action on the part of the
Company and validly issued and will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof is subject to any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other laws relating to or affecting creditors rights generally, and general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Debt Securities included in the Securities, when issued, will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof is subject to any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other laws relating to or affecting creditors rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
The opinions set forth above are limited in all respects to matters of the contract law of the State of New York, the General Corporation Law
of the State of Delaware and applicable federal law. We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our Firm under the heading Legal Matters in
the prospectus forming a part of the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Baker Botts L.L.P.
Exhibit 12.1
POSTROCK ENERGY CORPORATION
RATIOS OF EARNINGS TO FIXED CHARGES AND TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
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Predecessors |
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Year Ended December 31, |
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January 1 to March 5, |
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March 6 to December 31, |
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Year Ended December 31, |
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Six Months Ended June 31, |
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2009 |
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2010 |
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2010 |
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2011 |
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2012 |
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2013 |
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2014 |
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($ in thousands) |
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Earnings |
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Income (loss) from continuing operations before income taxes and minority interest |
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$ |
(235,721 |
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$ |
22,595 |
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$ |
48,487 |
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$ |
19,387 |
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$ |
(44,717 |
) |
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$ |
(8,856 |
) |
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$ |
(12,311 |
) |
Fixed charges |
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30,265 |
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5,440 |
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20,693 |
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11,254 |
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10,996 |
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3,647 |
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2,059 |
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Amortization of capitalized interest |
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59 |
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Earnings, as adjusted |
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$ |
(205,397 |
) |
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$ |
28,035 |
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$ |
69,180 |
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$ |
30,641 |
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$ |
(33,721 |
) |
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$ |
(5,209 |
) |
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$ |
(10,252 |
) |
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Fixed charges and preferred stock dividend requirements |
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Interest expense |
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$ |
21,812 |
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$ |
3,246 |
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$ |
14,416 |
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$ |
9,002 |
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$ |
7,680 |
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$ |
2,781 |
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$ |
1,618 |
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Estimated interest expense in rental expense |
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692 |
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100 |
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524 |
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544 |
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496 |
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405 |
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181 |
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Loan cost amortization |
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7,761 |
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2,094 |
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5,753 |
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1,708 |
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2,820 |
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461 |
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260 |
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Total fixed charges |
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30,265 |
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5,440 |
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20,693 |
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11,254 |
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10,996 |
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3,647 |
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2,059 |
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Preferred stock dividend requirements, pre-tax |
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2,307 |
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9,359 |
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10,993 |
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14,442 |
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7,889 |
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Combined fixed charges and preferred stock dividend requirements |
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$ |
30,265 |
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$ |
5,440 |
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$ |
23,000 |
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$ |
20,613 |
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$ |
21,989 |
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$ |
18,089 |
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$ |
9,948 |
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Ratio of earnings to fixed charges |
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(6.8x |
) |
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5.2x |
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3.3x |
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2.7x |
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(3.1x |
) |
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(1.4x |
) |
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(5.0x |
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Ratio of earnings to combined fixed charges and preferred stock dividend requirements |
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(6.8x |
) |
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5.2x |
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3.0x |
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1.5x |
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(1.5x |
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(0.3x |
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(1.0x |
) |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in Amendment No. 1 to the Registration Statement on
Form S-3 (No. 333-195899) of PostRock Energy Corporation (PostRock) of our report dated March 27, 2014 with respect to the consolidated
financial statements of PostRock and Subsidiaries as of December 31, 2013 and 2012, and for each of the three years in the period ended December 31, 2013, which is included in PostRocks Annual Report on Form 10-K for the year ended December 31, 2013.
We also consent to the reference to our Firm under the heading
Experts in such Registration Statement.
/s/ UHY LLP
Houston, Texas
August 19, 2014
Exhibit 23.2
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, we hereby consent to the incorporation by reference in the Registration Statement on Form S-3 of PostRock Energy
Corporation of information relating to our reserve report with respect to the estimated quantities of oil and gas reserves and present value of future net reserves of PostRock Energy Corporation as of December 31, 2013. We also consent to the
references to our firm contained in the Registration Statement and related Prospectus, including under the caption Experts.
J. Zane Meekins, P.E.
Executive Vice President
Cawley, Gillespie &
Associates, Inc.
Petroleum Engineers
Ft. Worth, Texas
August 21, 2014
Grafico Azioni PostRock Energy (CE) (USOTC:PSTRQ)
Storico
Da Gen 2025 a Feb 2025
Grafico Azioni PostRock Energy (CE) (USOTC:PSTRQ)
Storico
Da Feb 2024 a Feb 2025