As filed with the Securities and Exchange Commission on February 27, 2009
Registration No. 333-___
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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HESS CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware
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(State or other jurisdiction of
incorporation or organization)
13-4921002
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(I.R.S. Employer Identification No.)
1185 Avenue of the Americas
New York, New York 10036
(212) 997-8500
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(Address, including zip code, and telephone number,
including area code, of
Registrant's principal executive offices)
Timothy B. Goodell
Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
(212) 997-8500
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Kevin Keogh, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being 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, 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. [X]
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 the definitions of "large accelerated filer," "accelerated filer" and
"smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer [X] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [ ]
(Do not check if a smaller
reporting company)
CALCULATION OF REGISTRATION FEE
Amount to be registered/Proposed maximum offering
Title of each class of price per unit/Proposed maximum aggregate
securities to be registered offering price/Amount of registration fee (1)
--------------------------- --------------------------------------------------
Debt Securities
Warrants
Common Stock $1.00 par
value
Preferred Stock, $1.00 par
value
Depositary Shares (2)
Purchase Contracts (3)
Units (4)
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(1) An indeterminate aggregate initial offering price or number of the
securities of each identified class is being registered as may from
time to time be sold at indeterminate prices. Separate consideration
may or may not be received for securities that are issuable on
exercise, conversion or exchange of other securities. In accordance
with Rules 456(b) and 457(r), the Registrant is deferring payment of
the registration fee.
(2) In the event that the Company elects to offer to the public fractional
interests in shares of Preferred Stock registered hereunder,
Depositary Shares, evidenced by depositary receipts issued pursuant to
a deposit agreement, will be distributed to those persons purchasing
such fractional interests, and the shares of Preferred Stock will be
issued to the depositary under any such agreement.
(3) Purchase Contracts issued hereunder may require the holder thereof to
purchase or sell Debt Securities, Preferred Stock, Depositary Shares
or Common Stock of Hess Corporation.
(4) Any Units to be offered hereunder will consist of one or more
Securities.
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ii
PROSPECTUS
HESS CORPORATION
DEBT SECURITIES
WARRANTS
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
PURCHASE CONTRACTS
UNITS
We may offer and sell, from time to time, one or any combination of
the securities we describe in this prospectus. The debt securities may be
convertible into or exchangeable for our common stock or our other securities,
or debt or equity securities of one or more other entities. When we offer
securities, we will provide you with a prospectus supplement describing the
terms of the specific issue of securities including the offering price of the
securities.
You should read this prospectus and the prospectus supplement relating
to the specific issue of securities carefully before you invest.
We may offer and sell these securities to or through one or more
underwriters, dealers or agents, or directly to purchasers, on a continuous or
delayed basis.
Our common stock is listed on the New York Stock Exchange under the
symbol "HES." Any common stock sold pursuant to a prospectus supplement will be
listed, subject to notice of issuance, on the New York Stock Exchange. If we
decide to list or seek a quotation for any other securities we may offer and
sell from time to time, the prospectus supplement relating to those securities
will disclose the exchange or market on which those securities will be listed or
quoted.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this prospectus is February 27, 2009.
Table of Contents
ABOUT THIS PROSPECTUS..........................................................3
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS...........................3
WHERE YOU CAN FIND MORE INFORMATION............................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................3
OUR COMPANY....................................................................4
USE OF PROCEEDS................................................................5
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS...................................5
DESCRIPTION OF SECURITIES WE MAY OFFER.........................................5
DEBT SECURITIES................................................................5
WARRANTS......................................................................15
COMMON STOCK..................................................................16
PREFERRED STOCK...............................................................18
DEPOSITARY SHARES.............................................................22
PURCHASE CONTRACTS............................................................25
UNITS.........................................................................26
HEDGING IN CONNECTION WITH DISTRIBUTIONS......................................27
VALIDITY OF THE SECURITIES....................................................27
EXPERTS.......................................................................27
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a "shelf" registration
process. Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings. This prospectus provides
you with a general description of the securities we may offer. Each time we
offer to sell any of the 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, update or
change information contained in this prospectus. You should read this prospectus
and the applicable prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
In this prospectus, the terms "we," "us," "our," the "Company" and
"Hess" refer to Hess Corporation and its direct and indirect subsidiaries, as
the context requires.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some statements contained in this prospectus, including information
incorporated by reference, are "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934, as amended, and are intended to be covered by the safe
harbor created by those sections. Words such as "expect(s)", "feel(s)",
"believe(s)", "will", "may", "anticipate(s)", "estimate(s)", "should",
"intend(s)" and similar expressions are intended to identify forward-looking
statements. Our forward-looking statements are based on our current
understanding and assessment of relevant factors and reasonable assumptions
about the future. They are subject to risks and uncertainties, including
commodity risks related to the change in price of crude oil, natural gas,
refined products and electricity, as well as to changes in market conditions,
interest rates, foreign currency values, tax rates, government regulations and
other factors, including those described in "Risk Factors" incorporated by
reference herein, which could cause actual results to differ materially from
future results expressed or implied by those forward-looking statements.
Given these uncertainties, investors are cautioned not to place undue
reliance on our forward looking statements. We disclaim any intent or obligation
to update publicly any forward-looking statements set forth in this prospectus
or incorporated herein by reference, whether as a result of new information,
future events or otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy this information at the
SEC's Public Reference Room, 100 F Street, N.E. Washington, D.C. 20549. You may
obtain information on the operation of the SEC's Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet worldwide
web site that contains reports, proxy and information statements and other
information about issuers, like us, that file electronically with the SEC. The
address of that site is http://www.sec.gov.
You should also be able to inspect reports, proxy statements and other
information about us at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
We have filed a registration statement on Form S-3 with the SEC
covering the securities that may be sold under this prospectus. For further
information on us and the securities, you should refer to our registration
statement and its exhibits. This prospectus summarizes material provisions of
contracts and other documents that we refer you to. Because the prospectus may
not contain all the information that you may find important, you should review
the full text of these documents.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
information contained in documents that we file with them, which means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We also specifically incorporate by
reference the following documents, which we have already filed with the SEC:
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(i) our Annual Report on Form 10-K for the year ended December 31,
2008; and
(ii) our Current Reports on Form 8-K, filed on January 7, 2009;
February 4, 2009 and February 10, 2009.
In addition, we also incorporate by reference additional documents
that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and until the
termination of this offering. These documents include periodic reports, such as
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K, as well as proxy statements. Nothing in this prospectus shall be
deemed to incorporate information furnished but not filed with the SEC pursuant
to Item 2, Item 7 or Item 8 of Form 8-K.
We encourage you to read our periodic and current reports. We think
these reports provide additional information about our company which prudent
investors find important. You may request a copy of these filings as well as any
future filings incorporated by reference, at no cost, by writing or telephoning
us at our principal executive offices at the following address:
Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention: Corporate Secretary
(212) 997-8500
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
OUR COMPANY
We are a global integrated energy company engaged in the exploration
for and the production, purchase, transportation and sale of crude oil and
natural gas, as well as the production and sale of refined petroleum products.
Exploration and production activities take place primarily in Algeria,
Australia, Azerbaijan, Brazil, Denmark, Egypt, Equatorial Guinea, Gabon, Ghana,
Indonesia, Libya, Malaysia, Norway, Peru, Russia, Thailand, the United Kingdom
and the United States. The majority of our capital employed is in exploration
and production and most of our capital expenditures are spent in the exploration
for, and the development and production of, crude oil and natural gas. Our
estimated proved reserves at year end and production for the year are set forth
in our most recent Annual Report on Form 10-K filed with the SEC.
Refined petroleum products are manufactured at the HOVENSA refinery in
St. Croix, United States Virgin Islands, which is owned jointly with Petroleos
de Venezuela S.A. (PDVSA). The HOVENSA refinery, which is one of the world's
largest with a crude oil processing capacity of approximately 500,000 barrels of
oil per day (BPD), produces high-quality, clean-burning fuel oils, gasoline and
other petroleum products. We also have a 70,000 BPD fluid catalytic cracking
facility in Port Reading, New Jersey which mostly produces gasoline and heating
oil. Our strategically placed terminals provide us with extensive storage
capacity on the East Coast of the United States, through which we distribute
HESS products to customers from Massachusetts to Florida. We market refined
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petroleum products, natural gas and electricity to wholesale distributors,
industrial and commercial users, other petroleum companies, governmental
agencies, and public utilities. We also market refined petroleum products to the
motoring public through approximately 1,350 HESS brand retail gasoline and
convenience store outlets.
We are a Delaware corporation. Our principal executive offices are
located at 1185 Avenue of the Americas, New York, New York 10036, and our
telephone number is (212) 997-8500. We maintain a website at http://www.hess.com
where general information about us is available. We are not incorporating the
contents of the website into this prospectus.
To find more information about us, please see the sections entitled
"Where You Can Find More Information" and "Incorporation of Certain Documents by
Reference".
USE OF PROCEEDS
Unless we otherwise specify in the applicable prospectus supplement,
the net proceeds we receive from the sale of the securities offered by this
prospectus and the accompanying prospectus supplement will be used for general
corporate purposes. General corporate purposes may include but are not limited
to the repayment of debt, investments in or extensions of credit to our
subsidiaries or the financing of possible acquisitions, capital expenditures or
business expansion. The net proceeds may be invested temporarily or applied to
repay short-term debt until they are used for their stated purpose.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratio of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred stock dividends for each of the five most
recently completed fiscal years and any required interim periods will each be
specified in a prospectus supplement or in a document we file with the SEC and
incorporate by reference.
We compute the ratio of earnings to fixed charges by dividing earnings
by fixed charges. For purposes of this computation, fixed charges consist of
interest expense, capitalized interest, amortization of debt discount and
financing costs and an estimated interest portion of rental expense. Earnings
are defined as income before income taxes, plus fixed charges, excluding
capitalized interest but including amortization of capitalized interest, and net
distributed earnings of investees accounted for under the equity method. We
compute the ratio of earnings to combined fixed charges and preferred stock
dividends by dividing earnings by the sum of fixed charges and dividends on
preferred stock.
DESCRIPTION OF SECURITIES WE MAY OFFER
DEBT SECURITIES
General
We may offer either senior debt securities or subordinated debt
securities through this prospectus. The senior and subordinated debt securities
may both be convertible into shares of our common or preferred stock. We will
issue the debt securities under one of two separate indentures between us and
The Bank of New York Mellon, as trustee. The indentures allow us to issue senior
and subordinated debt securities and convertible debt securities from time to
time up to the aggregate principal amount we authorize from time to time.
Pursuant to the terms of the indentures, we may register additional debt
securities and issue an unlimited total principal amount of debt securities. We
may issue the debt securities in one or more series with the same or different
terms. We may issue debt securities of the same series at different times. All
debt securities of the same series need not bear interest at the same rate or
mature on the same date. Each indenture permits the appointment of a different
trustee for each series of debt securities. If there is at any time more than
one trustee under the indentures, the term `trustee' means each such trustee and
will apply to each such trustee only with respect to those series of debt
securities for which it is serving as trustee.
Except as otherwise provided in the prospectus supplement relating to
a particular series of debt securities, the indentures might not limit the
amount of other debt, secured or unsecured, that we can issue, and might not
5
contain financial or similar restrictive covenants. The indentures might not
contain any provision to protect holders of debt securities against a sudden or
dramatic decline in our ability to pay our debt.
The following summary of the debt securities is not complete. The
prospectus supplement will describe the particular terms of any debt securities
we may offer and may differ from the terms below.
The description will include:
o the title of the debt securities;
o whether the debt securities are senior debt securities or
subordinated debt securities;
o the total principal amount of the debt securities;
o the percentage of the principal amount at which the debt
securities will be issued;
o the date or dates on which principal will be payable and whether
the debt securities will be payable on demand on any date;
o the interest rate or rates and the method for calculating the
interest rate;
o the interest payment dates;
o the maturity dates;
o optional or mandatory redemption terms;
o any sinking fund provisions;
o authorized denominations;
o the currency in which the debt securities will be denominated;
o whether the principal and any premium or interest is payable in a
different currency than the currency in which the debt securities
are denominated, including a currency other than U.S. dollars;
o the manner in which any payments of principal and any premium or
interest will be calculated, if the payment will be based on an
index or formula;
o whether the debt securities are to be issued as individual
certificates to each holder or in the form of global securities
held by a depositary on behalf of holders or in uncertificated
form;
o whether the debt securities will be issued as registered
securities or as bearer securities;
o information describing any book-entry features;
o whether and under what circumstances we will pay additional
amounts on any debt securities held by a person who is not a
United States person for tax purposes and whether we can redeem
the debt securities if we have to pay additional amounts;
o provisions, other than those already in the indentures, that
allow for the discharge of our obligations under the indentures;
6
o if the debt securities are convertible into shares of our common
or preferred stock, the terms and conditions upon which
conversion will be effected, including the conversion price, the
conversion period and whether conversion is mandatory, at the
option of the holder or at our option; and
o any other terms.
If interest is payable on the debt securities, the persons to which
and the manner in which the interest will be paid will be set forth in the
prospectus supplement relating to the debt securities. Unless otherwise
indicated in the applicable prospectus supplement, the debt securities will not
be listed on any securities exchange.
Some of the debt securities may be sold at a substantial discount
below their stated principal amount. These debt securities may either bear no
interest or may bear interest at a rate which at the time of issuance is below
market rates. The U.S. federal income tax consequences and other special
considerations applicable to the discounted debt securities will be described in
the prospectus supplement relating to these debt securities.
Unless the prospectus supplement for a particular series of debt
securities provides that the debt securities of that series may be redeemed at
the option of the holder, the indentures and the debt securities will not
provide for redemption at the option of a holder nor necessarily afford holders
protection in the event of a highly leveraged or other transaction that might
adversely affect holders.
Covenants
We may agree to some restrictions on our activities for the benefit of
holders of the debt securities. The restrictive covenants summarized below may
apply (unless the covenants are waived or amended) so long as any of the debt
securities are outstanding unless the prospectus supplement states otherwise. We
have provided a glossary at the end of this prospectus to define capitalized
terms used in the covenants. The prospectus supplement may describe different
covenants. In the covenants, all references to us, we, our and ours mean Hess
Corporation only and not any of our subsidiaries.
Limitation on Secured Indebtedness. We may agree that we will not, and
we will not permit any of our Restricted Subsidiaries to, create, assume, incur
or guarantee any Secured Indebtedness unless we secure these debt securities to
the same extent as the Secured Indebtedness. However, we may incur Secured
Indebtedness without securing these debt securities if, immediately after
incurring the Secured Indebtedness, the aggregate amount of all Secured
Indebtedness and the Attributable Debt payable under leases entered into in
connection with sale and leaseback transactions subject to the amount limitation
described below would not exceed 15% of Consolidated Net Tangible Assets. The
aggregate amount of all Secured Indebtedness in the preceding sentence excludes
Secured Indebtedness that is secured to the same extent as these debt securities
and Secured Indebtedness that is being repaid concurrently.
Limitation on Sale and Leaseback Transactions. We may agree that we
will not, and we will not permit any of our Restricted Subsidiaries to, enter
into any lease longer than three years covering any Principal Property of ours
or of any of our Restricted Subsidiaries that is sold to any other person in
connection with the lease, unless immediately after consummation of the sale and
leaseback transaction either:
o the sum of the Attributable Debt and the aggregate amount of all
Secured Indebtedness, excluding Secured Indebtedness which is
secured to the same extent as these debt securities or that is
being repaid concurrently, does not exceed 15% of Consolidated
Net Tangible Assets; or
o an amount equal to the net proceeds received in connection with
such sale is used within 180 days to retire or redeem
indebtedness of ours or our Restricted Subsidiaries, the proceeds
are at least equal to the fair market value of the property sold
and the trustee is informed of the transaction.
o provided, further, that, in lieu of applying all of or any part
of such net proceeds to such retirement, the Company may, within
75 days after such sale, cancel or deliver or cause to be
delivered to the applicable trustee for cancellation either
debentures or notes evidencing indebtedness of the Company (which
may include the Securities) or of a Restricted Subsidiary
previously issued or authenticated and delivered by the
applicable trustee, and not theretofore tendered for sinking fund
purposes or
7
called for a sinking fund or otherwise applied as a credit
against an obligation to redeem or retire such notes or
debentures, and an Officers' Certificate (which shall be
delivered to the trustee) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu
of retiring indebtedness as hereinabove provided.
Consolidation, Merger or Sale
We may agree not to consolidate with or merge into any other person or
convey or transfer substantially all of our properties and assets to any person,
unless:
o the successor is a U.S. corporation; and
o the successor corporation expressly assumes by a supplemental
indenture the due and punctual payment of the principal of and
any premium or any interest on all the debt securities and the
performance of every covenant in such indenture that we would
otherwise have to perform.
Modification of the Indentures
Under each indenture, our rights and obligations and the rights of the
holders may be modified if the holders of a majority in aggregate principal
amount of the outstanding debt securities of all series voting as a single class
affected by the modification consent. However, no modification of the principal
or interest payment terms, and no modification reducing the percentage required
for modifications, is effective against any holder without its consent.
Events of Default, Notice and Waiver
When we use the term "Event of Default" in the indentures, here are
some examples of what we mean.
Unless otherwise specified in a prospectus supplement, an Event of
Default with respect to a series of debt securities occurs if:
o we fail to pay the principal of, or any premium on, any debt
security when due;
o we fail to pay interest when due on any debt security for 30
days;
o we fail to perform any other covenant in such indenture and this
failure continues for 60 days after we receive written notice of
it from the trustee or from the holders of 25% in principal
amount of the outstanding debt securities of the series;
o we default under any other loans or similar indebtedness in an
amount in excess of $50,000,000 and that default results in the
acceleration of the loan and the situation continues for a period
of 20 days after we receive written notice from the trustee or
from holders of 25% of the principal amount of the outstanding
securities of such series; or
o we or a court take certain actions relating to the bankruptcy,
insolvency or reorganization of Hess Corporation for the benefit
of our creditors.
A supplemental indenture may include, or pursuant to a resolution from
our board of directors there may be added, additional Events of Default or
changes to the Events of Default described above with respect to a particular
series of debt securities. For the Events of Default applicable to a particular
series of debt securities, see the prospectus supplement relating to the series.
Under each indenture, there will not be an Event of Default if a
change in generally accepted accounting principles causes a change in our
financial statements or causes us to change our accounting practices and such
change results in us not being in compliance with one or more of our covenants.
8
The trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal or interest) if it considers
withholding of notice to be in the best interests of the holders. No notice of a
covenant default may be given until 30 days after the default occurs. By default
we mean any event which is an Event of Default described above or would become
an Event of Default with the giving of notice or the passage of time.
If a payment Event of Default for any series of debt securities occurs
and continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may require us to repay immediately:
o the entire principal of the debt securities of the series or, if
the debt securities are original issue discount securities, the
portion of the principal described in the applicable prospectus
supplement; and
o all the accrued interest.
If the default results from a failure to perform a covenant or the
acceleration of other indebtedness, the trustee or the holders of 25% in
aggregate principal amount of all debt securities may require the immediate
payment of principal and interest. If the default is in connection with an event
of bankruptcy or similar event, the principal and interest will become
immediately due and payable.
The holders of a majority of the principal amount of the debt
securities of the affected series can rescind this accelerated payment
requirement or waive any past default or Event of Default or allow us to not
comply with any provision in such indenture. However, rescission is not
permitted if there is a default in payment of principal of, or premium or
interest on, any of the debt securities of the series apart from the
acceleration itself.
Other than its duties during a default, the trustee is not obligated
to exercise any of its rights or powers under such indenture at the request,
order or direction of any holders, unless the holders offer the trustee
reasonable indemnity. If they provide this indemnity, the holders of 25% of the
principal amount of any series of debt securities may, subject to limitations,
direct the time, method and place of conducting any proceeding or any remedy
available to the trustee, or exercising any power conferred on the trustee, for
any series of debt securities.
Defeasance of the Indentures and Debt Securities
Each indenture permits us to be discharged from our obligations under
such indenture and the debt securities if we comply with the following
procedures. This discharge from our obligations is referred to in this
prospectus as defeasance.
Unless the applicable prospectus supplement states otherwise, if we
deposit with the trustee sufficient cash or U.S. government securities to pay
and discharge the principal and premium, if any, and interest, if any, to the
date of maturity on such series of debt securities then following such deposit:
o we will be deemed to have paid and discharged the entire
indebtedness on the debt securities of any series; and
o our obligations under such indenture with respect to the debt
securities of such series will cease to be in effect.
Following such defeasance, holders of the applicable debt securities
would be able to look only to the trust fund for payment of principal and
premium, if any, and interest, if any, on their debt securities.
We must deliver to the trustee a ruling by the United States Internal
Revenue Service or an opinion of counsel to the effect that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes.
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Concerning the Trustee
The Bank of New York Mellon is the trustee under the indentures. The
Bank of New York Mellon also serves as the trustee under other indentures
pursuant to which certain of our debt securities are outstanding. We have had
and may continue to have commercial banking relationships with the trustee and
the Bank of New York, an affiliate of the trustee, in the ordinary course of
business.
Except during the continuance of an event of default, the trustee, or
if there is more than one trustee under the indentures, each such trustee, will
perform only those duties that are specifically set forth in such trustees'
respective indenture. During the continuance of any event of default under
either of the indentures, the trustee thereunder will exercise its rights and
powers under the indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use his rights under the
circumstances in the conduct of his own affairs.
Payment and Transfer
We will normally issue the debt securities only in book-entry form,
which means that they will be represented by one or more permanent global
certificates registered in the name of The Depository Trust Company, New York,
New York ("DTC"), or its nominee. We will refer to this form here and in the
prospectus supplement as "book-entry only."
Alternatively, we may issue the debt securities in certificated form
registered in the name of the holder. Under these circumstances, holders may
receive certificates representing the debt securities. Debt securities in
certificated form will be issued only in increments of $1,000 and will be
exchangeable without charge except for reimbursement of taxes or other
governmental charges, if any. We will refer to this form in the prospectus
supplement as "certificated."
If we issue original issue discount debt securities, we will describe
the special United States federal income tax and other considerations of a
purchase of original issue discount debt securities in the prospectus
supplement. By "original issue discount debt securities," we mean securities
that are issued at a substantial discount below their principal amount because
they pay no interest or pay interest that is below market rates at the time of
issuance.
The following discussion pertains to debt securities that are issued
in book-entry only form. We have obtained the information regarding DTC from
sources that we believe to be reliable.
One or more global securities would be issued to DTC or its nominee.
DTC would keep a computerized record of its participants (for example, your
broker) whose clients have purchased the debt securities. The participant would
then keep a record of its clients who purchased the debt securities. A global
security may not be transferred, except that DTC, its nominees and their
successors may transfer an entire global security to one another.
Under book-entry only, we will not issue certificates to individual
holders of the debt securities. Beneficial interests in global securities will
be shown on, and transfers of global securities will be made only through,
records maintained by DTC and its participants.
DTC is:
o a limited-purpose trust company organized under the New York
Banking Law;
o a "banking organization" within the meaning of the New York
Banking Law;
o a member of the United States Federal Reserve System;
o a "clearing corporation" within the meaning of the New York
Uniform Commercial Code; and
o a "clearing agency" registered under Section 17a of the
Securities Exchange Act of 1934.
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DTC holds securities that its participants deposit with DTC. DTC also
facilitates settlement among participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participants' accounts. This eliminates the need to exchange certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant. The rules that apply to DTC and its participants are on file with
the SEC. DTC is a wholly-owned subsidiary of The Depository Trust and Clearing
Corporation (DTCC) which is owned by the users of its regulated subsidiaries.
We will wire principal and interest payments to DTC's nominee. We and
the trustee will treat DTC's nominee as the owner of the global securities for
all purposes. Accordingly, we and the trustee will have no direct responsibility
or liability to pay amounts due on the securities to owners of beneficial
interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal
or interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records as of the record date for such payment. In addition, it
is DTC's current practice to assign any consenting or voting rights to
participants whose accounts are credited with securities on a record date, by
using an omnibus proxy. Payments by participants to owners of beneficial
interests in the global securities, and voting by participants, will be governed
by the customary practices between the participants and owners of beneficial
interests, as is the case with debt securities held for the account of customers
registered in "street name". However, these payments will be the responsibility
of the participants and not of DTC, the trustee or us.
Debt securities represented by a global security would be exchangeable
for debt securities represented by certificates with the same terms in
authorized denominations only if:
o DTC notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be a clearing agency registered
under applicable law; or
o we instruct the trustee that the global security is now
exchangeable; or
o an event of default has occurred and is continuing.
Governing Law
The debt securities and the indentures under which they will be issued
are governed by the laws of the State of New York.
Provisions Applicable Solely to Subordinated Debt Securities
General
We may issue subordinated debt securities under the subordinated debt
indenture. Holders of subordinated debt securities should recognize that
contractual provisions in that indenture may prohibit us from making payments on
these securities. The subordinated debt securities may rank on an equal basis
with certain other subordinated debt of ours that may be outstanding from time
to time and will rank junior to all senior indebtedness (as defined below or may
be defined in the indenture) of ours (including any senior debt securities) that
may be outstanding from time to time.
If we issue subordinated debt securities, the aggregate principal
amount of senior indebtedness outstanding as of a recent date will be set forth
in the applicable prospectus supplement. The indenture does not restrict the
amount of senior indebtedness that we may incur.
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Subordination
The payment of the principal of, and premium, if any, and interest on
the subordinated debt securities is expressly subordinated, to the extent and in
the manner set forth in the subordinated debt indenture, in right of payment to
the prior payment in full of all of our senior indebtedness. The term senior
indebtedness is defined in the indenture as indebtedness we incur for money
borrowed, all deferrals, renewals or extensions of any such indebtedness and all
evidences of indebtedness issued in exchange for any such indebtedness unless
such indebtedness provides that is not senior indebtedness. Senior indebtedness
also includes our guarantees of the foregoing items of indebtedness for money
borrowed by persons other than us, unless, in any such case, such indebtedness
or guarantee provides by its terms that it will not constitute senior
indebtedness.
The subordinated debt indenture provides that, unless all principal of
and any premium or interest on, the senior indebtedness has been paid in full,
or provision has been made to make these payments in full, no payment or other
distribution may be made with respect to the subordinated indebtedness in the
following circumstances:
o any acceleration of the principal amount due on the subordinated
debt securities;
o the dissolution or winding-up or total or partial liquidation or
reorganization of Hess Corporation, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings;
o a default in the payment of principal, premium, if any, sinking
fund or interest with respect to any senior indebtedness; or
o an event of default (other than a default in the payment of
principal, premium, if any, sinking funds or interest) with
respect to any senior indebtedness, as defined in the instrument
under which the same is outstanding, permitting the holders of
senior indebtedness to accelerate its maturity, and such event of
default has not been cured or waived.
A merger, consolidation or conveyance of all or substantially all of
our assets on the terms and conditions provided in the indenture will not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of these subordination provisions.
If the holders of subordinated securities receive any payment or
distribution of our assets not permitted by the subordination provisions, the
holders of subordinated debt securities will have to repay such amount to the
holders of the senior debt securities or to the trustee.
Subrogation
After the payment in full of all senior indebtedness, the holders of
the subordinated debt securities will be subrogated to the rights of the holders
of senior indebtedness to receive payments or distributions of our assets or
securities applicable to the senior indebtedness until the subordinated debt
securities are paid in full. Under these subrogation provisions, no payments or
distributions to the holders of senior indebtedness which otherwise would have
been payable or distributable to holders of the subordinated debt securities
will be deemed to be a payment by us to or on the account of the senior
indebtedness. These provisions of the indenture are intended solely for the
purpose of defining the relative rights of the holders of the subordinated debt
securities and the holders of the senior debt securities. Nothing contained in
the indenture is intended to impair our absolute obligation to pay the principal
of and interest on the subordinated debt securities in accordance with their
terms or to affect the relative rights of the holders of the subordinated debt
securities and our creditors other than the holders of the senior indebtedness.
These subrogation provisions of the indenture will not prevent the holder of any
subordinated debt security from exercising all remedies otherwise permitted by
applicable law upon default of such security, subject to the rights of
subordination described above.
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Provisions Applicable Solely to Convertible Debt Securities
General
The following provisions may apply to senior debt or subordinated debt
securities that will be convertible into our common stock or preferred stock,
unless otherwise provided in the prospectus supplement relating to the specific
issue of debt securities. In the case of subordinated debt securities, these
provisions are in addition to any provisions that apply because the debt
securities are subordinated. The holder of any convertible debt securities will
have the right, exercisable at any time during the time period specified in the
applicable prospectus supplement, unless previously redeemed, to convert the
convertible debt securities into shares of our common stock or preferred stock
at the conversion rate and upon the terms specified in the applicable prospectus
supplement. The holder of convertible debt securities may convert any portion
thereof which is $1,000 or any integral multiple of $1,000. In the case of
convertible debt securities called for redemption, conversion rights will expire
at the close of business on the date fixed for the redemption, except that, in
the case of redemption at the option of the holder, if applicable, the
conversion right will terminate upon receipt of written notice of the exercise
of the option.
Adjustment
For each series of convertible debt securities, the conversion price
or rate will be subject to adjustment as contemplated in the indenture.
Unless otherwise provided in the applicable prospectus supplement, these
adjustments may occur as a result of:
o our issuance of shares of common stock as a dividend;
o subdivisions and combinations of our common stock
o the issuance to all holders of our common stock of rights or
warrants entitling holders to subscribe for or purchase our
shares at a price per share less than the market price at the
time of issuance; and
o the distribution to all holders of our common stock of:
o shares of our capital stock other than our common stock;
o evidences of indebtedness or assets other than cash
dividends paid from retained earnings and dividends payable
in common stock referred to above; or
o subscription rights or warrants other than those referred to
above.
In any case no adjustment of the conversion price or rate will be
required unless an adjustment would require a cumulative increase or decrease of
at least 1% in such price or rate. We will not issue any fractional shares of
our common stock upon conversion, but, instead, we will pay a cash adjustment.
If indicated in the applicable prospectus supplement, convertible debt
securities convertible into our common stock which are surrendered for
conversion between the record date for an interest payment, if any, and the
interest payment date, other than convertible debt securities called for
redemption on a redemption date during that period, must be accompanied by
payment of an amount equal to interest which the registered holder is entitled
to receive. We may, from time to time, reduce the conversion price by any amount
for a period of not less than 20 days, provided that the reduced price is not
less than the par value of a share of common stock.
We will determine the adjustment provisions for convertible debt
securities at the time of issuance of each series of convertible debt
securities. These adjustment provisions will be described in the applicable
prospectus supplement.
Other Purchasers
Except as set forth in the applicable prospectus supplement, any
convertible debt securities called for redemption, unless surrendered for
conversion on or before the close of business on the redemption date, are
subject
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to being purchased from the holder of the convertible debt securities by one or
more investment banking firms or other purchasers who may agree with us to
purchase our convertible debt securities and convert them into common stock or
preferred stock, as the case may be.
Subordination
Our obligation to make payment on account of the principal of, and
premium, if any, and interest on subordinated debt securities that are converted
into convertible debt securities may be subordinated and junior in right of
payment to our senior obligations, as described above under the heading
"Provisions Applicable Solely to Subordinated Debt Securities" and in the
prospectus supplement.
GLOSSARY
We have used the following definitions in describing the restrictive
covenants that we have agreed to in the indentures. You can also find the
precise legal definitions of these terms in Section 1.01 of each indenture.
"Attributable Debt" means, when used in connection with a sale and
lease-back transaction referred to in the indenture, on the date upon which the
amount is to be determined, the product of
o the net proceeds from the sale and lease-back transaction
multiplied by
o a fraction, the numerator of which is the number of full years of
the term of the lease relating to the property involved in that
sale and lease-back transaction (without regard to any options to
renew or extend such term) remaining on that date and the
denominator of which is the number of full years on the term of
that lease measured from the first day of the term.
"Consolidated Net Tangible Assets" means our total assets and those of
our consolidated subsidiaries, less current liabilities and intangible assets.
"Principal Property" means any oil or gas producing property, onshore
or offshore, or any refining or manufacturing plant owned or leased under a
capital lease by us or any of our Restricted Subsidiaries, but does not include
any property that has been determined by a resolution of our board of directors
not to be of material importance to the business conducted by us and our
subsidiaries taken as a whole.
"Restricted Subsidiary" means any Subsidiary that owns or leases under
a capital lease any Principal Property.
"Secured Indebtedness" means indebtedness of ours or any Restricted
Subsidiary for borrowed money secured by any lien on (or in respect of any
conditional sale or other title retention agreement covering) any Principal
Property or the stock or indebtedness of a Restricted Subsidiary, but excluding
from such definition all indebtedness:
o secured by liens (or arising from conditional sale or other title
retention agreements) existing on the date of the indenture;
o owing to us or any other Restricted Subsidiary;
o secured by liens on Principal Property or the stock or
indebtedness of Restricted Subsidiaries and existing at the time
of acquisition thereof;
o in connection with industrial development bond, pollution control
revenue bond or similar financings;
o secured by purchase money security interests;
o secured by liens existing at the time a corporation becomes a
Restricted Subsidiary;
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o statutory liens, liens made in connection with bids and other
standard exempted liens;
o in connection with liens on oil or gas properties or other
mineral interests arising as a security in connection with
conducting certain business;
o in connection with royalties and other payments to be paid out of
production from oil or gas properties or other mineral interests
from the proceeds from their sale; and
o in connection with any replacement, extension or renewal of any
such indebtedness to the extent such indebtedness is not
increased.
"Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the outstanding
voting equity is owned, directly or indirectly, by such person and one or more
other subsidiaries of such person.
WARRANTS
General
The following is a summary of material provisions of the warrants that
we may issue pursuant to one or more separate warrant agreements, either
independently or together with other securities. This summary does not include
all of the provisions of the warrants. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and a warrant
agent. The warrant agent will act solely as our agent in connection with the
warrants of such series and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of warrants. We
urge you to read the form of warrant agreement filed in connection with the
applicable prospectus supplement. The terms of the warrants to subscribe for our
debt securities include those stated in the forms of warrant agreements.
Provisions of the forms of warrant agreements or terms defined in the forms of
warrant agreements summarized below are incorporated into this prospectus by
reference.
We may issue warrants for the purchase of:
o debt securities,
o preferred stock, or
o common stock.
The warrants may be issued in one or more series. Please refer to the
prospectus supplement relating to particular series of warrants for specific
terms of the warrants, including the following terms:
o the type and number of warrants;
o the name, amount and terms of the securities for which the
warrants may be exercised;
o if applicable, the name and terms of the securities with which
the warrants are issued and the number of warrants issued with
each such security;
o the expiration date of the warrants;
o the period during which warrants may be exercised;
o the exercise price of the warrants;
o the minimum or maximum amount of the warrants that may be
exercised at any one time;
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o any mandatory or optional call provisions;
o the identity of the warrant agent;
o a discussion of certain Federal income tax considerations; and
o any other terms of the warrants offered thereunder.
The warrants will be represented by warrant certificates. We will pay
all stamp taxes and any other duties to which the original issuance of the
warrant certificates may be subject.
Transfer and Exchange
Warrants may be transferred or exchanged pursuant to procedures
outlined in the applicable warrant agreement. No service charge will be made for
registration or transfer or exchange upon surrender of any warrant certificate
at the office of the applicable warrant agent maintained for that purpose. We
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of warrant certificates.
No warrant or warrant certificate will entitle the holder thereof to
any of the rights of a holder of the security for which the warrant may be
exercised, including the right to receive payments of principal or interest on
debt securities or to enforce any of the covenants in any indenture relating to
debt securities or the right to receive dividends on common or preferred stock
or vote with common or preferred stock.
Exercise of Warrants
In order to exercise warrants, the holder of the warrants will be
required to surrender to the warrant agent the related warrant certificate and
pay in full the exercise price for the securities to be subscribed for upon such
exercise. The exercise price must be paid in cash or by certified or official
bank check or by wire transfer to an account we designate for such purpose. The
warrant agent then will deliver the applicable securities to the holder, and
will issue a new warrant certificate for any warrants not exercised.
Amendment of Warrant Agreement
From time to time, we and the warrant agent under the relevant warrant
agreement, may amend or supplement the warrant agreement for certain purposes
without the consent of the holders of the warrants issued thereunder, including
to cure defects or inconsistencies or make any change that does not materially
and adversely affect the rights of any holder. Any amendment or supplement to a
warrant agreement that has a material adverse effect on the interests of the
holders of the warrants issued thereunder will require the written consent of
the holders of a majority of the outstanding warrants issued thereunder.
The written consent of each holder of the warrants affected shall be
required for any amendment that:
o increases the exercise price;
o shortens the period during which warrants may be exercised; or
o if the warrants may be redeemed at our option, reduces the price
at which the warrants may be redeemed.
COMMON STOCK
We outline below a summary of material information relating to our
common stock, including summaries of certain provisions of our restated
certificate of incorporation, as amended, and our by-laws, as amended. This
summary does not include all of the provisions of our restated certificate of
incorporation or by-laws. These state-
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ments do not purport to be complete, or to give full effect to the provisions
of statutory or common laws, and are subject to, and are qualified in their
entirety by reference to, the terms and detailed provisions of the certificate
of incorporation and of the by-laws. We urge you to read our full certificate
of incorporation and by-laws.
We are incorporated in the State of Delaware, United States and
operate in accordance with the Delaware General Corporation Law, or DGCL. The
rights of our stockholders are determined by the DGCL, the securities and other
legislation of the United States, our restated certificate of incorporation and
our by-laws. Our shares of common stock are traded on the New York Stock
Exchange. Our shares are issued in registered form. Every holder of our shares
is entitled to a share certificate. Holders of our shares are entitled, subject
to the prior rights, if any, of holders of shares of any series of preferred
stock that the board of directors may establish, to such dividends as may be
declared by our board of directors out of funds legally available for this
purpose.
Annual Meeting
Annual meetings of our stockholders are held on the date designated in
accordance with our by-laws. Written notice must be mailed to each stockholder
entitled to vote not less than ten nor more than 60 days before the date of the
meeting. The presence in person or by proxy of the holders of record of a
majority of our issued and outstanding shares entitled to vote at such meeting
constitutes a quorum for the transaction of business at meetings of the
stockholders. Special meetings of the stockholders may be called for any purpose
by the board of directors and shall be called by the chairman of the board or
the secretary upon the written request, stating the purpose of such meeting, of
the holders of a majority of the outstanding shares of all classes of capital
stock entitled to vote at the meeting.
Voting Rights
The holders of our shares of common stock are entitled to one vote for
each share held of record and may vote by proxy. Except as may be otherwise
provided by applicable law, our restated certificate of incorporation or our
by-laws, all elections and all questions shall be decided by a plurality of the
votes cast by stockholders entitled to vote thereon at a duly held meeting of
stockholders at which a quorum is present.
Liquidation, Dissolution or Winding-Up
In the event of our liquidation, dissolution or winding-up, the
holders of our shares of common stock are entitled to share ratably according to
the number of shares held by them in all remaining assets available for
distribution to the holders of our shares after discharge of outstanding
liabilities and payment of such liquidation preference, if any, of any series of
preferred stock that our board of directors may establish.
Takeover Provisions
Certain provisions of our restated certificate of incorporation and
by-laws may have the effect of delaying, deferring or preventing a change of
control in connection with certain extraordinary corporate transactions. An
article of the restated certificate of incorporation requires that business
combinations, which term is defined to include certain mergers, asset sales,
security issuances, recapitalizations and liquidations, involving us or any of
our subsidiaries and certain acquiring persons (namely, a person, entity or
specified group which beneficially owns or controls at least 20 per cent of our
voting stock) be approved by the holders of two-thirds of our voting stock (not
including shares held by an acquiring person with which or by or on whose behalf
a business combination is proposed) unless such business combination either: (i)
has been authorized by the board of directors prior to the time that the
acquiring person involved in such business combination became an acquiring
person, or (ii) will result in the receipt by the other stockholders of a
specified minimum amount and form of payment for their shares.
Our restated certificate of incorporation and by-laws also provide for
a board of directors divided as nearly equally as possible into three classes.
Each class is elected to a term expiring at the annual meeting of stockholders
held in the third year following the year of such election. In addition, the
restated certificate of incorporation and the by-laws require (i) approval of
holders of 80 per cent of our voting stock to remove directors or to amend,
alter or repeal the provisions as to the classified board and other related
provisions, (ii) advance notice of, and a specified procedure for, shareholder
nominations for director, (iii) the taking of stockholder action only at annual
or special meetings (to be called only by the chairman of the board, the
President or a majority of the board of directors) and
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prohibiting stockholder action by written consent, and (iv) the filling of
vacancies on the board by remaining directors, though less than a quorum. Such
provisions of the restated certificate of incorporation and the by-laws may
make it more difficult for a person or entity to acquire and exercise control
of the company and remove incumbent directors and officers.
We are also subject to the anti-takeover provisions of Section 203 of
the DGCL.
Other Rights
Holders of our shares of common stock have no pre-emption, redemption,
conversion or other subscription rights.
PREFERRED STOCK
General
The following description sets forth certain general terms of the
preferred stock and any related depositary shares that we may issue. The terms
of any series of the preferred stock and any related depositary shares will be
described in the applicable prospectus supplement relating to the preferred
stock and any related depositary shares being offered. The description set forth
below and in any prospectus supplement is not complete, and is subject to, and
qualified in its entirety by reference to, our restated certificate of
incorporation, as amended, and the certificate of designations relating to each
particular series of the preferred stock and any related depositary shares,
which was or will be filed with the SEC at or before the issuance of the series
of preferred stock.
Terms of the Preferred Stock
Under our restated certificate of incorporation, we are authorized to
issue up to 20,000,000 shares of preferred stock, par value $1.00 per share. Our
board of directors has the authority, without approval of the stockholders, to
issue all of the shares of preferred stock which are currently authorized in one
or more series and to fix the number of shares and the rights, preferences,
privileges, qualifications, restrictions and limitations of each series.
The applicable prospectus supplement will describe the terms of each
series of preferred stock, including, where applicable, the following:
o the designation, stated value, liquidation preference and number
of shares offered;
o the offering price or prices;
o the dividend rate or rates, or method of calculation, the
dividend periods, the dates on which dividends shall be payable
and whether dividends are cumulative or non-cumulative and, if
cumulative, the dates from which dividends begin to cumulate;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o any voting rights;
o whether the preferred stock will be issued in certificated or
book-entry form;
o whether the preferred stock will be listed on a national
securities exchange;
o information with respect to any book-entry procedures; and
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o any additional rights, preferences, privileges, limitations and
restrictions of the preferred stock which are not inconsistent
with the provisions of the restated certificate of incorporation.
The preferred stock will be, when issued against payment, fully paid
and non-assessable. Holders will have no preemptive rights to subscribe for any
additional securities which we may issue. Unless otherwise specified in the
applicable prospectus supplement, the shares of each series of preferred stock
will rank equally with all other outstanding series of preferred stock issued by
us as to payment of dividends, other than with respect to cumulation of
dividends, and as to the distribution of our assets upon liquidation,
dissolution, or winding up. Each series of preferred stock will rank senior to
the common stock, and any other stock of ours that is expressly made junior to
that series of preferred stock.
Unless otherwise specified in the applicable prospectus supplement,
The Bank of New York will be the transfer agent, dividend disbursing agent and
registrar for the shares of the preferred stock.
Dividends and Distributions
Holders of shares of the preferred stock will be entitled to receive,
as, if and when declared by our board of directors, or a duly authorized
committee of our board of directors, out of funds legally available for the
payment of dividends, cash dividends at the rate set forth in, or calculated in
accordance with the formula set forth in, the prospectus supplement relating to
the preferred stock being offered.
Dividends on the preferred stock may be cumulative or non-cumulative
as provided in the applicable prospectus supplement. Dividends on the cumulative
preferred stock will accumulate from the date of original issue and will be
payable in arrears on the dates specified in the applicable prospectus
supplement. If any date so specified as a dividend payment date is not a
business day, declared dividends on the preferred stock will be paid on the
immediately succeeding business day, without interest. The applicable prospectus
supplement will set forth the applicable dividend period with respect to a
dividend payment date. If our board of directors, or a duly authorized committee
of our board of directors, fails to declare a dividend on any series of
non-cumulative preferred stock for any dividend period, we will have no
obligation to pay a dividend for that period, whether or not dividends on that
series of non-cumulative preferred stock are declared for any future dividend
period. Unless otherwise specified in the applicable prospectus supplement,
dividends on the preferred stock will be payable to record holders as they
appear on our stock books on each record date, not more than 30 nor less than 15
days preceding the applicable payment date, as shall be fixed by our board of
directors or a duly authorized committee of our board of directors.
No dividends will be declared or paid or set apart for payment on the
preferred stock of any series ranking, as to dividends, equally with or junior
to any other series of preferred stock for any period unless dividends have been
or are contemporaneously declared and paid or declared and a sum sufficient for
the payment of those dividends has been set apart for, in the case of the
cumulative preferred stock, all dividend periods terminating on or before the
date of payment of full cumulative dividends, or in the case of non-cumulative
preferred stock, the immediately preceding dividend period.
When dividends are not paid in full upon any series of preferred
stock, and any other preferred stock ranking equally as to dividends with that
series of preferred stock, all dividends declared upon shares of that series of
preferred stock and any other preferred stock ranking equally as to dividends
will be declared pro rata so that the amount of dividends declared per share on
that series of preferred stock and any other preferred stock ranking equally as
to dividends per share on the shares of that series of preferred stock and the
other preferred stock bear to each other. In the case of non-cumulative
preferred stock, any accrued dividends described in the immediately preceding
paragraph will not include any accumulation in respect of unpaid dividends for
prior dividend periods.
Except as provided in the immediately preceding paragraph, unless full
dividends on all outstanding shares of any series of preferred stock have been
declared and paid, in the case of a series of cumulative preferred stock, for
all past dividend periods, or in the case of non-cumulative preferred stock, for
the immediately preceding dividend period, then:
o we may not declare dividends or pay or set aside for payment or
other distribution on any of our capital stock ranking junior to
or equally with that series of preferred stock as to dividends or
upon liquidation, other than dividends or distributions paid in
shares of, or options, warrants or rights to
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subscribe for or purchase shares of, our common stock or our
other capital stock ranking junior to that series of
preferred stock as to dividends and upon liquidation, and
o other than in connection with the distribution or trading of any
of our capital stock, we may not redeem, purchase or otherwise
acquire any of our capital stock ranking junior to or equally
with that series of preferred stock as to dividends or upon
liquidation, for any consideration or any moneys paid to or made
available for a sinking fund for the redemption of any shares of
any of our capital stock, except by conversion or exchange for
our capital stock ranking junior to that series of preferred
stock as to dividends and upon liquidation.
Unless otherwise specified in the applicable prospectus supplement,
the amount of dividends payable for any period shorter than a full dividend
period shall be computed on the basis of twelve 30-day months, a 360-day year
and the actual number of days elapsed in any period of less than one month.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding
up of us, the holders of the preferred stock will have preference and priority
over our common stock and any other class of our stock ranking junior to the
preferred stock upon liquidation, dissolution or winding up, for payments out of
or distributions of our assets or proceeds from any liquidation, whether from
capital or surplus, of the amount per share set forth in the applicable
prospectus supplement plus all accrued and unpaid dividends, whether or not
earned or declared, to the date of final distribution to such holders. After any
liquidating payment, the holders of preferred stock will be entitled to no other
payments. If, in the case of any liquidation, dissolution or winding up of us,
our assets or the proceeds from any liquidation should be insufficient to make
the full liquidation payment in the amount per share set forth in the applicable
prospectus supplement relating to a series of preferred stock, plus all accrued
and unpaid dividends on that preferred stock, and liquidating payments on any
other preferred stock ranking as to liquidation, dissolution or winding up
equally with that preferred stock, then any assets and proceeds will be
distributed among the holders of the preferred stock and any other preferred
stock ratably in accordance with the respective amounts which would be payable
on those shares of preferred stock and any other preferred stock if all amounts
payable were paid in full. In the case of non-cumulative preferred stock,
accrued and unpaid dividends will not include cumulation of unpaid dividends
from prior dividend periods. A consolidation or merger of us with one or more
corporations will not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of us.
Redemption
If specified in the prospectus supplement relating to a series of
preferred stock being offered, we may, at our option, at any time or from time
to time on not less than 30 nor more than 60 days notice, redeem that series of
preferred stock in whole or in part at the redemption prices and on the dates
set forth in the applicable prospectus supplement.
If less than all outstanding shares of a series of preferred stock are
to be redeemed, the selection of the shares to be redeemed shall be determined
by lot or pro rata as may be determined by our board of directors or a duly
authorized committee of our board of directors to be equitable. From and after
the redemption date, unless we are in default in providing for the payment of
the redemption price, dividends shall cease to accrue on the shares of that
series of preferred stock called for redemption and all rights of the holders
shall cease, other than the right to receive the redemption price.
Voting Rights
Unless otherwise described in the applicable prospectus supplement,
holders of the preferred stock will have no voting rights except as set forth
below or as otherwise required by law.
Whenever dividends payable on the preferred stock are in arrears for a
number of dividend periods, whether or not consecutive, which in the aggregate
is equivalent to six calendar quarters, the holders of outstanding shares of the
preferred stock, voting as a class with holders of shares of all other series of
preferred stock ranking equally with the preferred stock either as to dividends
or the distribution of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are exercisable, will be
entitled to vote for
20
the election of two additional directors on the terms set forth below. These
voting rights will continue, in the case of any series of cumulative preferred
stock, until all past dividends accumulated on shares of cumulative preferred
stock are paid in full and, in the case of non-cumulative preferred stock, until
all dividends on shares of non-cumulative preferred stock are paid in full for
at least one calendar year. Upon payment in full of these dividends, the voting
rights will terminate except as expressly provided by law. Holders of all series
of preferred stock which are granted these voting rights and which rank equally
with the preferred stock will vote as a class, and, unless otherwise specified
in the applicable prospectus supplement, each holder of the preferred stock will
have one vote for each share of stock held. In the event that the holders of
shares of the preferred stock are entitled to vote as described in this
paragraph, our board of directors will be increased by two directors, and the
holders of the preferred stock will have the exclusive right as members of that
class, as outlined above, to elect two directors at the next annual meeting of
shareholders.
Upon termination of the right of the holders of the preferred stock to
vote for directors as discussed in the preceding paragraph, the term of office
of all directors then in office elected by those holders will terminate
immediately. Whenever the term of office of the directors elected by those
holders ends and the related special voting rights expire, the number of
directors will automatically be decreased to the number of directors as would
otherwise prevail.
So long as any shares of preferred stock remain outstanding, we shall
not, without the affirmative vote or consent of the holders of at least a
majority of the shares of the preferred stock outstanding at the time, voting as
a class with all other series of preferred stock ranking equally with the
preferred stock either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, given in person or by proxy, either in
writing or at a meeting:
o issue or increase the authorized or issued amounts of, the
preferred stock or any class or series of stock ranking pari
passu with preferred stock (unless the board of directors was
authorized to do so without the consent of holders of the
preferred stock at the time the existing series was created),
and, without the approval of at least two-thirds of the shares
referred to above:
o create any class or series of stock ranking senior to the
preferred stock with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding
up of us (unless the board of directors was authorized to do so
without the consent of holders of the preferred stock at the time
the existing series was created); or
o amend, alter or repeal, whether by merger, consolidation or
otherwise, the provisions of our restated certificate of
incorporation or the certificate of designations of the preferred
stock so as to materially and adversely affect any right,
preference, privilege or voting power of the preferred stock or
the holders of the preferred stock;
provided, however, that any increase in the amount of authorized preferred stock
or the creation and issuance, or an increase in the authorized or issued amount,
of other series of preferred stock, or any increase in the amount of authorized
shares of preferred stock, in each case ranking equally with or junior to the
preferred stock with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up of us will not be deemed to
materially and adversely affect these rights, preferences, privileges or voting
powers.
The foregoing voting provisions will not apply if all outstanding
shares of preferred stock have been redeemed or sufficient funds have been
deposited in trust to effect such a redemption which is scheduled to be
consummated within three months after the time that such rights would otherwise
be exercisable.
Conversion or Exchange Rights
The prospectus supplement relating to a series of preferred stock that
is convertible or exchangeable will state the terms on which shares of that
series are convertible or exchangeable into common stock, another series of
preferred stock or debt securities.
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DEPOSITARY SHARES
General
We may choose to offer fractional shares or some multiple of shares of
our preferred stock, rather than whole individual shares. If we decide to do so,
we will issue the preferred stock in the form of depositary shares. Each
depositary share would represent a fraction or multiple of a share of the
preferred stock and would be evidenced by a depositary receipt. We will issue
depositary shares under a deposit agreement between a depositary, which we will
appoint at our discretion, and us.
Deposit Agreement
We will deposit the shares of preferred stock to be represented by
depositary shares under a deposit agreement. The parties to the deposit
agreement will be:
o Hess Corporation;
o a bank or other financial institution selected by us and named in
the applicable prospectus supplement, as preferred stock
depositary; and
o the holders from time to time of depositary receipts issued under
that depositary agreement.
Each holder of a depositary share will be entitled to all the rights
and preferences of the underlying preferred stock, including, where applicable,
dividend, voting, redemption, conversion and liquidation rights, in proportion
to the applicable fraction or multiple of a share of preferred stock represented
by the depositary share. The depositary shares will be evidenced by depositary
receipts issued under the deposit agreement. The depositary receipts will be
distributed to those persons purchasing the fractional or multiple shares of
preferred stock. A depositary receipt may evidence any number of whole
depositary shares.
We will file the deposit agreement, including the form of depositary
receipt, with the SEC, either as an exhibit to an amendment to the registration
statements of which this prospectus forms a part or as an exhibit to a current
report on Form 8-K. See "Where You Can Find More Information" above for
information on how to obtain a copy of the form of deposit agreement.
Dividends and Other Distributions
The preferred stock depositary will distribute any cash dividends or
other cash distributions received in respect of the deposited preferred stock to
the record holders of depositary shares relating to the underlying preferred
stock in proportion to the number of depositary shares owned by the holders. The
preferred stock depositary will distribute any property received by it other
than cash to the record holders of depositary shares entitled to those
distributions, unless it determines that the distribution cannot be made
proportionally among those holders or that it is not feasible to make a
distribution. In that event, the preferred stock depositary may, with our
approval, sell the property and distribute the net proceeds from the sale to the
holders of the depositary shares in proportion to the number of depositary
shares they own.
The amounts distributed to holders of depositary shares will be
reduced by any amounts required to be withheld by the preferred stock depositary
or by us on account of taxes or other governmental charges.
Redemption of Preferred Stock
If we redeem preferred stock represented by depositary shares, the
preferred stock depositary will redeem the depositary shares from the proceeds
it receives from the redemption, in whole or in part, of the preferred stock.
The preferred stock depositary will redeem the depositary shares at a price per
share equal to the applicable fraction or multiple of the redemption price per
share of preferred stock. Whenever we redeem shares of preferred stock held by
the preferred stock depositary, the preferred stock depositary will redeem as of
the same date the number of depositary shares representing the redeemed shares
of preferred stock. If fewer than all the depositary shares are to
22
be redeemed, the preferred stock depositary will select the depositary shares to
be redeemed by lot or ratably or by any other equitable method it chooses.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding, and all rights of the
holders of those shares will cease, except the right to receive the amount
payable and any other property to which the holders were entitled upon the
redemption. To receive this amount or other property, the holders must surrender
the depositary receipts evidencing their depositary shares to the preferred
stock depositary. Any funds that we deposit with the preferred stock depositary
for any depositary shares that the holders fail to redeem will be returned to us
after a period of two years from the date we deposit the funds.
Withdrawal of Preferred Stock
Unless the related depositary shares have previously been called for
redemption, any holder of depositary shares may receive the number of whole
shares of the related series of preferred stock and any money or other property
represented by those depositary receipts after surrendering the depositary
receipts at the corporate trust office of the preferred stock depositary, paying
any taxes, charges and fees provided for in the deposit agreement and complying
with any other requirement of the deposit agreement. Holders of depositary
shares making these withdrawals will be entitled to receive whole shares of
preferred stock, but holders of whole shares of preferred stock will not be
entitled to deposit that preferred stock under the deposit agreement or to
receive depositary receipts for that preferred stock after withdrawal. If the
depositary shares surrendered by the holder in connection with withdrawal exceed
the number of depositary shares that represent the number of whole shares of
preferred stock to be withdrawn, the preferred stock depositary will deliver to
that holder at the same time a new depositary receipt evidencing the excess
number of depositary shares.
Voting Deposited Preferred Stock
When the preferred stock depositary receives notice of any meeting at
which the holders of any series of deposited preferred stock are entitled to
vote, the preferred stock depositary will mail the information contained in the
notice to the record holders of the depositary shares relating to the applicable
series of preferred stock. Each record holder of the depositary shares on the
record date, which will be the same date as the record date for the preferred
stock, may instruct the preferred stock depositary to vote the amount of the
preferred stock represented by the holder's depositary shares. To the extent
possible, the preferred stock depositary will vote the amount of the series of
preferred stock represented by depositary shares in accordance with the
instructions it receives. We will agree to take all reasonable actions that the
preferred stock depositary determines are necessary to enable the preferred
stock depositary to vote as instructed. If the preferred stock depositary does
not receive specific instructions from the holders of any depositary shares
representing a series of preferred stock, it will vote all shares of that series
held by it proportionately with instructions received.
Conversion of Preferred Stock
If the prospectus supplement relating to the depositary shares says
that the deposited preferred stock is convertible into or exercisable or
exchangeable for common stock, preferred stock of another series or other
securities of Hess Corporation, the following will apply. The depositary shares,
as such, will not be convertible into or exercisable or exchangeable for any
securities of Hess Corporation. Rather, any holder of the depositary shares may
surrender the related depositary receipts to the preferred stock depositary with
written instructions to instruct us to cause conversion, exercise or exchange of
the preferred stock represented by the depositary shares into or for whole
shares of common stock, shares of another series of preferred stock or other
securities of Hess Corporation. Upon receipt of those instructions and any
amounts payable by the holder in connection with the conversion, exercise or
exchange, we will cause the conversion, exercise or exchange using the same
procedures as those provided for conversion, exercise or exchange of the
deposited preferred stock. If only some of the depositary shares are to be
converted, exercised or exchanged, a new depositary receipt or receipts will be
issued for any depositary shares not to be converted, exercised or exchanged.
Amendment and Termination of the Deposit Agreement
We may amend the form of depositary receipt evidencing the depositary
shares and any provision of the deposit agreement at any time and from time to
time by agreement with the preferred stock depositary. However,
23
any amendment that imposes additional charges or materially and adversely alters
any substantial existing right of the holders of depositary shares will not be
effective unless the holders of at least a majority of the affected depositary
shares then outstanding approve the amendment. We will make no amendment that
impairs the right of any holder of depositary shares, as described above under
"-- Withdrawal of Preferred Stock", to receive shares of the related series of
preferred stock and any money or other property represented by those depositary
shares, except in order to comply with mandatory provisions of applicable law.
Holders who retain or acquire their depositary receipts after an amendment
becomes effective will be deemed to have agreed to the amendment and will be
bound by the amended deposit agreement.
The deposit agreement will automatically terminate if:
o all outstanding depositary shares have been redeemed or converted
or exchanged for any other securities into which they or the
underlying preferred stock are convertible or exchangeable; or
o a final distribution in respect of the preferred stock has been
made to the holders of depositary shares in connection with any
liquidation, dissolution or winding up of Hess Corporation.
We may terminate the deposit agreement at any time, and the preferred
stock depositary will give notice of that termination to the recordholders of
all outstanding depositary receipts not less than 30 days before the termination
date. In that event, the preferred stock depositary will deliver or make
available for delivery to holders of depositary shares, upon surrender of the
depositary receipts evidencing the depositary shares, the number of whole or
fractional shares of the related series of preferred stock as are represented by
those depositary shares.
Charges of Preferred Stock Depositary; Taxes and Other Governmental Charges
We will pay the fees, charges and expenses of the preferred stock
depositary provided in the deposit agreement to be payable by us. Holders of
depositary receipts will pay any taxes and governmental charges and any charges
provided in the deposit agreement to be payable by them, including a fee for the
withdrawal of shares of preferred stock upon surrender of depositary receipts.
If the preferred stock depositary incurs fees, charges or expenses for which it
is not otherwise liable at the election of a holder of a depositary receipt or
other person, that holder or other person will be liable for those fees, charges
and expenses.
Resignation and Removal of Depositary
The preferred stock depositary may resign at any time by giving us
notice, and we may remove or replace the preferred stock depositary at any time.
Reports to Holders
We will deliver all required reports and communications to holders of
the preferred stock to the preferred stock depositary. It will forward those
reports and communications to the holders of depositary shares.
Limitation on Liability of the Preferred Stock Depositary
The preferred stock depositary will not be liable if it is prevented
or delayed by law or any circumstances beyond its control in performing its
obligations under the deposit agreement. The obligations of the preferred stock
depositary under the deposit agreement will be limited to performance in good
faith of its duties under the agreement, and it will not be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares,
depositary receipts or shares of preferred stock unless satisfactory and
reasonable protection from expenses and liability is furnished. This is called
an indemnity. The preferred stock depositary may rely upon written advice of
counsel or accountants, upon information provided by holders of depositary
receipts or other persons believed to be competent and upon documents believed
to be genuine.
Form of Preferred Stock and Depositary Shares
We may issue preferred stock in book-entry form. Preferred stock in
book-entry form will be represented by a global security registered in the name
of a depositary, which will be the holder of all the shares of preferred
24
stock represented by the global security. Those who own beneficial interests in
shares of preferred stock will do so through participants in the depositary's
system, and the rights of these indirect owners will be governed solely by the
applicable procedures of the depositary and its participants. However,
beneficial owners of any preferred stock in book-entry form will have the right
to obtain their shares in non-global form.
PURCHASE CONTRACTS
General
We may issue purchase contracts for the purchase or sale of, or whose
cash value is determined by reference or linked to the performance, level or
value of, our common or preferred stock, debt securities, depositary shares or
other securities described in this prospectus.
We refer to each property described above as a "purchase contract
property". Each purchase contract will obligate:
o the holder to purchase or sell, and obligate us to sell or
purchase, on specified dates, one or more purchase contract
properties at a specified price or prices; or
o the holder or us to settle the purchase contract by reference to
the value, performance or level of one or more purchase contract
properties, on specified dates and at a specified price or
prices.
Some purchase contracts may include multiple obligations to purchase
or sell different purchase contract properties, and both we and the holder may
be sellers or buyers under the same purchase contract. No holder of a purchase
contract will have any rights of a holder of the purchase contract property
purchasable under the contract, including any right to receive payments on that
property.
Terms of the Purchase Contracts
Your prospectus supplement may contain, where applicable, the
following information about your purchase contract:
o whether the purchase contract obligates the holder to purchase or
sell, or both purchase and sell, one or more purchase contract
properties and the nature and amount of each of those properties,
or the method of determining those amounts;
o whether the purchase contract is to be prepaid or not and the
governing document for the contract;
o whether the purchase contract is to be settled by delivery, or by
reference or linkage to the value, performance or level of, the
purchase contract properties;
o any acceleration, cancellation, termination or other provisions
relating to the settlement of the purchase contract;
o whether the purchase contract will be issued as part of a unit
and, if so, the other securities comprising the unit and whether
any unit securities will be subject to a security interest in our
favor as described below; and
o whether the purchase contract will be issued in fully registered
or bearer form and in global or non-global form.
If we issue a purchase contract as part of a unit, the accompanying
prospectus supplement will state whether the contract will be separable from the
other securities in the unit before the contract settlement date.
25
UNITS
General
We may issue units comprised of one or more debt securities, warrants,
purchase contracts, shares of preferred stock and depositary shares in any
combination. Each unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The unit
agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
The applicable prospectus supplement may describe:
o the designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
o any provisions of the governing unit agreement that differ from
those described here; and
o any provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the units.
General Provisions of a Unit Agreement
Enforcement of Rights
The unit agent under a unit agreement will act solely as our agent in
connection with the units issued under that agreement. The unit agent will not
assume any obligation or relationship of agency or trust for or with any holders
of those units or of the securities comprising those units. The unit agent will
not be obligated to take any action on behalf of those holders to enforce or
protect their rights under the units or the included securities.
Generally, except as described in the next paragraph, a holder of a
unit may, without the consent of the unit agent or any other holder, enforce its
rights as holder under any security included in the unit, in accordance with the
terms of that security and the indenture, warrant agreement, unit agreement or
trust agreement under which that security is issued. Those specific terms will
be described elsewhere in the applicable prospectus supplement under the
sections relating to debt securities, warrants, purchase contracts and capital
securities. Notwithstanding the foregoing, a unit agreement may limit or
otherwise affect the ability of a holder of units issued under that agreement to
enforce its rights, including any right to bring a legal action, with respect to
those units or any securities, other than debt securities, prepaid purchase
contracts, warrants issued under the warrant indenture and capital securities,
that are included in those units. Limitations of this kind will be described in
the applicable prospectus supplement.
Modification Without Consent of Holders
We and the applicable unit agent may amend any unit or unit agreement
without the consent of any holder (i) to cure any ambiguity, (ii) to correct or
supplement any defective or inconsistent provision or (iii) to make any other
change that we believe is necessary or desirable and will not adversely affect
the interests of the affected holders in any material respect.
We will not need any approval to make changes that affect only units
to be issued after the changes take effect. We may also make changes that do not
adversely affect a particular unit in any material respect, even if they
adversely affect other units in a material respect. In those cases, we do not
need to obtain the approval of the holder of the unaffected unit; we need only
obtain any required approvals from the holders of the affected units.
26
Modification With Consent of Holders
We generally may not amend any particular unit or a unit agreement
with respect to any particular unit unless we obtain the consent of the holder
of that unit, if the amendment would (i) impair any right of the holder to
exercise or enforce any right under a security included in the unit if the terms
of that security require the consent of the holder to any changes that would
impair the exercise or enforcement of that right, (ii) impair the right of the
holder to purchase or sell, as the case may be, the purchase contract property
under any non-prepaid purchase contract issued under the unit agreement, or to
require delivery of or payment for that property when due or (iii) reduce the
percentage of outstanding units of any series or class the consent of whose
holders is required to amend that series or class, or the applicable unit
agreement with respect to that series or class.
Any other change to a particular unit agreement and the units issued
under that agreement would require the following approval:
o If the change affects only the units of a particular series
issued under that agreement, the change must be approved by the
holders of a majority of the outstanding units of that series.
o If the change affects the units of more than one series issued
under that agreement, it must be approved by the holders of a
majority of all outstanding.
o units of all series affected by the change, with the units of all
the affected series voting together as one class for this
purpose.
These provisions regarding changes with majority approval also apply
to changes affecting any securities issued under a unit agreement, as the
governing document.
HEDGING IN CONNECTION WITH DISTRIBUTIONS
We may enter into derivative transactions with third parties or sell
securities not covered by this prospectus to third parties in
privately-negotiated transactions. If the applicable prospectus supplement so
indicates, in connection with those derivatives, the third parties may sell
securities covered by this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close
out any related open borrowings of stock, and may use securities received from
us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and
will be identified in the applicable prospectus supplement or a post-effective
amendment.
VALIDITY OF THE SECURITIES
In connection with particular offerings of the securities in the
future, and if stated in the applicable prospectus supplements, the validity of
those securities may be passed upon for the Company by White & Case LLP and for
any underwriters or agents by counsel named in the applicable prospectus
supplement.
EXPERTS
The consolidated financial statements of Hess Corporation appearing in
Hess Corporation's Annual Report on Form 10-K for the year ended December 31,
2008 including the schedule appearing therein, and the effectiveness of Hess
Corporation's internal control over financial reporting as of December 31, 2008
have been audited by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such reports given on the authority of such
firm as experts in accounting and auditing.
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses (not including underwriting discounts
and commissions) payable by the Registrant in connection with the issuance and
distribution of the securities being registered hereby are set forth in the
following table:
SEC registration fee $ (1)
FINRA fees $ (1)
Trustee's fees $ (1)
Printing expenses $ (1)
Rating agency fees $ (1)
Accounting fees and expenses $ (1)
Legal fees and expenses $ (1)
Blue Sky fees and expenses $ (1)
Miscellaneous $ (1)
------------
Total $ (1)
============
----------
(1) Expense information is not known at the time of filing this registration
statement.
Item 15. Indemnification of Directors and Officers.
Every person who is or was a director, officer or employee of the
Corporation, or of any other corporation which he serves or served as such at
the request of the Corporation, shall, in accordance with the by-laws, but not
if prohibited by law, be indemnified by the Corporation against reasonable
expense and any liability paid or incurred by him in connection with or
resulting from any threatened or actual claim, action, suit or proceeding
(whether brought by or in the right of the Corporation or such other corporation
or otherwise), civil, criminal, administrative or investigative, in which he may
be involved, as a party or otherwise, by reason of his being or having been a
director, officer or employee of the Corporation or such other corporation, or
by reason of any action taken or not taken in his capacity as such director,
officer or employee, whether or not he continues to be such at the time such
expense or liability shall have been paid or incurred.
Item 16. Exhibits.
The exhibits to this registration statement are listed in the exhibit
index, which appears elsewhere herein and is incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the
1
registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by a Registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in
the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to
the securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of a Registrant
under the Securities Act of 1933 to any purchaser in the initial distribution of
the securities, the undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
2
(i) Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used or
referred to by the undersigned Registrant;
(iii)The portion of any other free writing prospectus relating
to the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby further undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a Registrant of expenses incurred or paid by a director, officer or
controlling person of 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 of 1933 and will be governed by the final adjudication of such
issue.
3
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
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 New York, State of New York, on February 27, 2009.
HESS CORPORATION
BY: /s/ John P. Rielly
----------------------------
Name: John P. Rielly
Title: Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints J. Barclay Collins II, Timothy B. Goodell and John P. Rielly and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments) and any related registration
statements filed pursuant to Rule 462(b) under the Securities Act of 1933, and
to file the same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and to perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully and to all intents and purposes as he might
or would do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
NAME POSITION DATE
--------------------------- ------------------------- ----------------------
/s/ John B. Hess Chairman of the Board and February 27, 2009
--------------------------- Chief Executive Officer
(John B. Hess) (Principal Executive
Officer)
/s/ Nicholas F. Brady Director February 27, 2009
---------------------------
(Nicholas F. Brady)
/s/ J. Barclay Collins II Executive Vice President February 27, 2009
--------------------------- and Director
(J. Barclay Collins II)
/s/ Edith E. Holiday Director February 27, 2009
---------------------------
(Edith E. Holiday)
4
NAME POSITION DATE
--------------------------- ------------------------- ----------------------
/s/ Thomas H. Kean Director February 27, 2009
---------------------------
(Thomas H. Kean)
/s/ Dr. Risa Lavizzo-Mourey Director February 27, 2009
---------------------------
(Dr. Risa Lavizzo-Mourey)
/s/ Craig G. Matthews Director February 27, 2009
---------------------------
(Craig G. Matthews)
/s/ John J. O'Connor Director February 27, 2009
---------------------------
(John J. O'Connor)
/s/ Frank A. Olson Director February 27, 2009
---------------------------
(Frank A. Olson)
/s/ F. Borden Walker Director February 27, 2009
---------------------------
(F. Borden Walker)
/s/ Ernst H. von Metzsch Director February 27, 2009
---------------------------
(Ernst H. von Metzsch)
/s/ Robert N. Wilson Director February 27, 2009
---------------------------
(Robert N. Wilson)
/s/ John H. Mullin Director February 27, 2009
---------------------------
(John H. Mullin)
/s/ John P. Rielly Senior Vice President and February 27, 2009
--------------------------- Chief Financial Officer
(John P. Rielly) (Principal Financial
Officer and Principal
Accounting Officer)
5
EXHIBIT INDEX
Exhibit
Number Description of Documents
------- ----------------------------------------------------------------------
1.1 Form of Underwriting Agreement*
3.1 Restated Certificate of Incorporation, including amendment
thereto dated May 3, 2006 (incorporated by reference to Exhibit 3 of
Hess Corporation's Quarterly Report on Form 10-Q filed August 8, 2006)
3.2 By-laws (incorporated by reference to Exhibit 3 of Hess
Corporation's Quarterly Report on Form 10-Q filed August 7, 2002)
4.1 Indenture, dated as of March 1, 2006, between Hess Corporation and The
Bank of New York Mellon as successor to JPMorgan Chase Bank, N.A., as
Trustee, including form of Note (incorporated by reference to
Exhibit 4 of Hess Corporation's Registration Statement on Form S-3ASR,
Registration No. 333-132145, filed March 1, 2006)
4.2 Indenture, dated as of March 1, 2006, between Hess Corporation and The
Bank of New York Mellon as successor to JPMorgan Chase Bank, N.A., as
Trustee, including form of Note (incorporated by reference to Exhibit
4.1 of Hess Corporation's Registration Statement on Form S-3ASR,
Registration No. 333-132145, filed March 1, 2006)
4.3 Form of Warrant Agreement for Warrants Sold Alone (incorporated by
reference to Exhibit 4.3 of Hess Corporation's Registration Statement
on Form S-3, Registration No. 333-110294, filed November 6, 2003)
4.4 Form of Warrant Agreement for Warrants Sold Attached to Securities
(incorporated by reference to Exhibit 4.4 of Hess Corporation's
Registration Statement on Form S-3, Registration No. 333-110294,
filed November 6, 2003)
4.5 Form of Depositary Agreement, including form of depositary receipt *
4.6 Form of Unit Agreement, including form of unit certificate *
4.7 Form of Unit Agreement Without Holders' Obligation *
4.8 Form of Prepaid Purchase Contract *
5.1 Opinion of White & Case LLP as to the legality of the Offered
Securities
12.1 Computation of Ratio of Earnings to Fixed Charges and of Combined
Fixed Charges and Preference Dividends to Earnings *
23.1 Consent of Ernst & Young LLP
23.2 Consent of White & Case LLP (included in Exhibit 5)
24.1 Power of Attorney (included in Part II of this Registration Statement)
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25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York Mellon, as trustee under the indenture
dated as of March 1, 2006
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The Bank of New York Mellon, as trustee under the indenture
dated as of March 1, 2006
* To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein in connection with an offering of the offered securities.
7