AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 2002
REGISTRATION NO. 333-96565
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COOPER CAMERON CORPORATION
Co-registrants are listed on the following pages.
(Exact name of registrant as specified in its charter)
Delaware 3533 76-0451843
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
1333 WEST LOOP SOUTH, SUITE 1700
HOUSTON, TEXAS 77027
(713) 513-3300
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
WILLIAM C. LEMMER
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1333 WEST LOOP SOUTH, SUITE 1700
HOUSTON, TEXAS 77027
(713) 513-3300
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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COPIES TO:
T. WILLIAM PORTER ALAN J. BOGDANOW
PORTER & HEDGES, L.L.P. VINSON & ELKINS L.L.P.
700 LOUISIANA, 35TH FLOOR 2001 ROSS AVENUE
HOUSTON, TEXAS 77002 DALLAS, TEXAS 75201
(713) 226-0600 (214) 220-7700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED AUGUST 13, 2002
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The information in this prospectus is not complete and may be changed. We may
not offer these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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PROSPECTUS
LOGO
$500,000,000
COOPER CAMERON CORPORATION
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
-----------
We may offer and sell from time to time:
- debt securities;
- common stock;
- preferred stock;
- depositary shares; and
- warrants.
We will provide specific terms of the securities and that offering in a
supplement to this prospectus. The prospectus supplement also may add, update or
change information in this prospectus. You should read this prospectus and any
supplement to this prospectus before you invest. This prospectus may be used to
offer and sell securities only if accompanied by a prospectus supplement.
PLEASE READ AND CONSIDER CAREFULLY THE "RISK FACTORS" BEGINNING ON PAGE 2 IN
THIS PROSPECTUS.
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Neither the SEC nor any state securities commission has approved these
securities or determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
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This prospectus is dated ____________, 2002.
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 TO SELL THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
TABLE OF CONTENTS
SECTION PAGE
------- ----
About This Prospectus.................................................... 1
Cooper Cameron Corporation............................................... 1
Risk Factors............................................................. 2
Forward-Looking Statements............................................... 4
Where You Can Find More Information...................................... 4
Recent Developments - Adoption of New Accounting Standards............... 6
Use of Proceeds.......................................................... 6
Ratio of Earnings to Fixed Charges....................................... 7
Description of Debt Securities........................................... 8
Description of Capital Stock............................................. 14
Description of Warrants.................................................. 17
Plan of Distribution..................................................... 19
Legal Matters............................................................ 20
Experts.................................................................. 21
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the Securities and Exchange Commission utilizing a "shelf" registration
process. Using this process, we may sell the securities described in this
prospectus in one or more offerings with a total initial offering price of up to
$500,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide a
prospectus supplement and, if applicable, a pricing supplement. The prospectus
supplement and any pricing supplement will describe the specific terms of that
offering. The prospectus supplement and any pricing supplement may also add to,
update or change the information in this prospectus. Please carefully read this
prospectus, the prospectus supplement and any pricing supplement, in addition to
the information contained in the documents we refer to under the heading "Where
You Can Find More Information."
COOPER CAMERON CORPORATION
Our operations are organized into three business segments -
- Cameron,
- Cooper Cameron Valves, and
- Cooper Compression Services.
Through these segments we design, manufacture, market and service
equipment used by the oil and gas industry and industrial manufacturing
companies. This equipment includes oil and gas pressure control systems,
including valves, wellheads, controls, chokes, blowout preventers, drilling and
production control systems and assembled systems for oil and gas drilling,
production and transmission used in onshore, offshore and subsea applications;
gas compressors and turbochargers used principally in oil and gas production and
transmission applications and in industrial, manufacturing and power generation
applications; and integrally geared centrifugal air compressors that provide
oil-free air for use in a variety of industrial applications. We operate
internationally and have manufacturing plants and service centers in numerous
locations worldwide.
Our principal executive offices are located at 1333 West Loop South, Suite
1700, Houston, TX 77027, and our phone number is (713) 513-3300.
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISKS DESCRIBED BELOW AND
OTHER INFORMATION IN THIS PROSPECTUS BEFORE DECIDING TO INVEST IN OUR
SECURITIES. OTHER RISKS FACING OUR COMPANY OR RELATED TO EACH OFFERING MAY ALSO
BE INCLUDED IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND WE URGE YOU TO READ
CAREFULLY ANY ACCOMPANYING PROSPECTUS SUPPLEMENT BEFORE YOU MAKE YOUR DECISION
TO INVEST IN OUR SECURITIES.
DOWNTURNS IN THE OIL AND GAS INDUSTRY HAVE HAD, AND MAY IN THE FUTURE HAVE, A
NEGATIVE EFFECT ON OUR SALES AND PROFITABILITY.
Demand for most of our products and services, and therefore our revenues,
depend to a large extent upon the level of capital expenditures related to oil
and gas exploration, production, development, processing and transmission.
Declines in oil and gas prices negatively affect the level of these activities.
Factors that contribute to the volatility of oil and gas prices include the
following:
- the demand for oil and gas, which is negatively impacted by
economic downturns;
- the ability of the Organization of Petroleum Exporting
Countries ("OPEC") to set and maintain production levels and
pricing;
- the level of production in non-OPEC countries;
- governmental policies regarding exploration and development of
oil and gas reserves;
- the political environments of oil and gas producing regions;
- the depletion rates of gas wells in North America; and
- advances in exploration and development technology.
OUR INTERNATIONAL OPERATIONS EXPOSE US TO INSTABILITY AND CHANGES IN ECONOMIC
AND POLITICAL CONDITIONS, FOREIGN CURRENCY FLUCTUATIONS, CHANGES IN FOREIGN
REGULATIONS AND OTHER RISKS INHERENT TO INTERNATIONAL BUSINESS.
We have manufacturing and service operations that are essential parts of
our business in developing countries and economically and politically volatile
areas in Africa, Latin America and the Asia-Pacific region. The risks of
international business that we are exposed to include the following:
- volatility in general economic, social and political conditions;
- differing tax rates, tariffs, exchange controls or other
similar restrictions;
- changes in currency rates;
- inability to repatriate income or capital;
- changes in, and compliance with, domestic and foreign laws and
regulations which impose a range of restrictions on operations, trade
practices, trade partners and investment decisions;
- reductions in the number or capacity of qualified personnel; and
- seizure of equipment.
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We also purchase a large portion of our raw materials and components from
a relatively small number of foreign suppliers in countries such as India, China
and Pakistan. The ability of these suppliers to meet our demand could be
adversely affected by the factors described above.
WE ARE SUBJECT TO ENVIRONMENTAL, HEALTH AND SAFETY LAWS AND REGULATIONS THAT
EXPOSE US TO POTENTIAL LIABILITY.
Our operations are subject to a variety of foreign, federal, state and
local laws and regulations, including laws and regulations relating to the
protection of the environment. We are required to invest financial and
managerial resources to comply with these laws and anticipate that we will
continue to do so in the future. To date, the cost of complying with
governmental regulation has not been material, but the fact that such laws or
regulations are changed frequently makes it impossible for us to predict the
cost or impact of such laws and regulations on our future operations. The
modification of existing laws or regulations or the adoption of new laws or
regulations imposing more stringent environmental restrictions could adversely
affect us.
EXCESS CASH IS INVESTED IN MARKETABLE SECURITIES WHICH MAY SUBJECT US TO
POTENTIAL LOSSES.
We invest excess cash in publicly-traded debt and equity securities.
Changes in the financial markets, including interest rates, as well as the
performance of the issuing companies can affect the market value of our
short-term investments. We had approximately $118.4 million of short-term
investments at March 31, 2002.
IMPLEMENTATION OF A NEW ENTERPRISE-WIDE SOFTWARE SYSTEM COULD DISRUPT
OUR BUSINESS PROCESSES.
We are in the process of implementing a new enterprise-wide software
system. Although we believe we have developed an implementation plan which will
allow for a successful transition to the new system, any disruption in this plan
could negatively affect our ability to develop, procure, manufacture and/or
deliver products, and could disrupt our financial reporting system.
CHANGES IN THE FINANCIAL CONDITION OF OUR CUSTOMERS COULD IMPACT OUR
BUSINESS.
Erosion of the financial condition of customers could adversely affect our
business with regard to both receivables exposure and future revenue
realization. In both the Cooper Compression Services and Cooper Cameron Valves
divisions, a significant portion of revenues for 2001 were derived from a
relatively concentrated group of customers in the pipeline and gas compression
business, some of which are reported to be experiencing financial and/or other
difficulties related to their capitalization. To the extent these customers'
difficulties continue, or worsen, and/or curtail their expenditures with us, our
revenues and earnings could be negatively affected.
OUR DEEPWATER SUBSEA PROJECTS EXPOSE US TO RISKS.
We continue to expand into the deepwater subsea systems market. This
market potentially subjects us to greater risk than has historically been
present in our surface market as the size and relative concentration of exposure
in individual subsea projects magnify the other risks discussed herein.
3
FORWARD-LOOKING STATEMENTS
We have made "forward-looking statements" within the meaning of Section
27A of the Securities Act and Section 21E of the Securities Exchange Act in this
prospectus and in the documents that are incorporated by reference in this
prospectus that are subject to risks and uncertainties. Forward-looking
statements generally can be identified by the use of words such as "may,"
"will," "expect," "intend," "estimate," "anticipate," "believe," or similar
expressions.
Although we believe that the expectations in our forward-looking
statements are reasonable, we cannot give any assurance that those expectations
will be correct. Our operations are subject to numerous uncertainties, risks and
other influences, many of which are outside our control and any of which could
materially affect our results of operations and ultimately cause the statements
we make to be inaccurate. We caution you not to place undue reliance on these
forward-looking statements, which speak only as of the date of this prospectus.
Future events and actual results may differ materially from the results
set forth or implied in the forward-looking statements. Factors that might cause
such a difference include:
- the overall demand for, and pricing of, our products and services;
- the size and timing of orders;
- the existence of competitors, technological changes and developments
in the industry;
- changes in the price of and demand for oil and gas in both domestic
and international markets;
- political and social issues affecting the countries in which we
do business
- fluctuations in currency and financial markets;
- variations in global economic activity; and
- the other factors discussed under "Risk Factors."
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 (registration no.
333-96565) with the SEC with respect to the securities we are offering. This
prospectus is a part of that registration statement; however, it does not
contain all the information contained in the registration statement, including
its exhibits and schedules. You should refer to the registration statement,
including the exhibits and schedules, for further information about us and the
securities we are offering. Statements we make in this prospectus about certain
contracts or other documents are not necessarily complete. When we make those
statements, we refer you to the copies of the contracts or documents that are
filed as exhibits to the registration statement, because those statements are
qualified in all respects by reference to those exhibits. The registration
statement, including exhibits and schedules, is on file at the offices of the
SEC and may be inspected without charge.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our filings, including the registration statement, are
available to the public over the Internet at the SEC's web site at
HTTP://WWW.SEC.GOV. You also may read and copy any document we file at the SEC's
public reference rooms in Washington, D. C. and Chicago, Illinois. Please call
the SEC at 1-800-SEC-0330 for further information about the public reference
rooms.
SEC rules allow us to "incorporate by reference" into this prospectus the
information we file with it, which means we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is considered part of this prospectus from the date we file that
document. Any reports
4
filed by us with the SEC after the date of this prospectus and before we sell
all of the securities offered through this prospectus will automatically
update and, where applicable, supersede any information contained in this
prospectus or incorporated by reference in this prospectus. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act until
we sell all of the securities covered by this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 2001;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2002;
- Current Report on Form 8-K dated July 11, 2002; and
- The description of our common stock, preferred stock and preferred
stock purchase rights contained in the registration statement on Form
8-A filed on July 27, 1995.
You can obtain any of the documents incorporated by reference in this
prospectus through us, or from the SEC through the SEC's web site at the address
provided above. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents unless the exhibit is
specifically incorporated by reference as an exhibit in this prospectus. You can
obtain documents incorporated by reference in this prospectus free of charge by
requesting them in writing or by telephone from us at the following address and
telephone number:
Cooper Cameron Corporation
1333 West Loop South, Suite 1700
Houston, Texas 77027
Attn: Corporate Secretary
(713) 513-3322
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RECENT DEVELOPMENTS - ADOPTION OF NEW ACCOUNTING STANDARDS
Effective January 1, 2002, we adopted Statement of Financial Accounting
Standards No. 142, Goodwill and Other Intangible Assets, which we refer to as
SFAS 142. Under SFAS 142, goodwill and intangible assets with indefinite lives
are no longer amortized but are reviewed at least annually for impairment. If we
implemented SFAS 142 as of January 1, 1999, our net income and earnings per
share amounts would have been as follows:
Fiscal Year Ended December 31,
--------------------------------
2001 2000 1999
-------- ------- -------
Pro forma results assuming adoption of SFAS
142, effective January 1, 1999
Net income (dollars in thousands) $109,064 $37,748 $53,212
Earnings per share:
Basic $ 2.01 $ 0.71 $ 1.00
Diluted $ 1.93 $ 0.69 $ 0.97
The pro forma results by quarter for the years 2001 and 2000 assuming
adoption of SFAS 142, effective January 1, 1999 would have been as follows:
2001 (by quarter)
-----------------------------------------------
QUARTER 1 QUARTER 2 QUARTER 3 QUARTER 4
--------- --------- --------- ---------
Net income (dollars in thousands) $16,743 $22,449 $37,189 $32,683
Earnings per share:
Basic $ 0.31 $ 0.41 $ 0.68 $ 0.61
Diluted $ 0.30 $ 0.40 $ 0.64 $ 0.57
2000 (by quarter)
-----------------------------------------------
QUARTER 1 QUARTER 2 QUARTER 3 QUARTER 4
--------- --------- --------- ---------
Net income (loss) (dollars in thousands) $15,218 $18,615 $10,833 $(6,918)
Earnings (loss) per share:
Basic $ 0.30 $ 0.35 $ 0.20 $ (0.13)
Diluted $ 0.28 $ 0.34 $ 0.19 $ (0.13)
The above amounts differ from the amounts reported in our Annual Report on
Form 10-K for the year ended December 31, 2001, which is incorporated by
reference into this prospectus, due to the exclusion of goodwill amortization in
each period presented above.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we will use
the net proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include acquisitions, working capital, capital
expenditures, repayment and refinancing of indebtedness and repurchases and
redemptions of our securities. We may initially invest those funds in marketable
securities or use them to repay short-term indebtedness until they are used for
their stated purpose.
6
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of our earnings to fixed charges for each of the periods
indicated is as follows:
FISCAL YEAR ENDED DECEMBER 31, THREE MONTHS
----------------------------------------------------------- ENDED
1997 1998 1999 2000 2001 MARCH 31, 2002
---- ---- ---- ---- ---- --------------
6.9 5.4 3.0 2.8 7.3 8.2
For these ratios, earnings represent income (including only distributed
income of less-than-50%-owned entities) before income taxes and fixed charges.
Fixed charges represent the sum of interest charges and the portions of rental
expenses representative of an interest factor. Excluding nonrecurring/unusual
charges of $22.0 million in fiscal 1998, $10.6 million in fiscal 1999, $77.4
million in fiscal 2000 and $20.2 million in fiscal 2001, the ratio of earnings
to fixed charges for each of these periods would be 5.9, 3.3, 5.9 and 8.2,
respectively. There was no preferred stock outstanding for any of the periods
shown above.
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DESCRIPTION OF DEBT SECURITIES
The debt securities will be our direct unsecured general obligations. The
debt securities will be either senior debt securities or subordinated debt
securities. The senior debt securities will rank equally with all of our
existing and future unsecured and unsubordinated indebtedness. The subordinated
debt securities will rank junior to all of our existing and future senior
indebtedness in right of payment. The debt securities issued may be convertible
into shares of our common stock, preferred stock, depositary shares or warrants.
The senior debt securities and the subordinated debt securities will be
issued under separate indentures between us and a U.S. banking institution (a
"Trustee"). The Trustee for each series of debt securities will be identified in
the applicable prospectus supplement. Senior debt securities will be issued
under a senior indenture and subordinated debt securities will be issued under a
subordinated indenture. Together, the senior indenture and the subordinated
indenture are called the "Indentures." We have summarized selected provisions of
the Indentures below. The summary is not complete. The forms of the Indentures
have been filed as exhibits to the registration statement, and you should read
the Indentures for provisions that may be important to you. In the summary, we
have included references to section numbers of the Indentures so that you can
easily locate those provisions. Capitalized terms used in this summary have the
meanings used in the Indentures.
GENERAL
At March 31, 2002, we did not have any outstanding preferred stock and we
had approximately $460.5 million of outstanding long-term debt, including the
long-term portion of obligations under capital leases.
- the Indentures do not limit the aggregate principal amount of
debt securities that can be issued thereunder. (Section 301)
- debt securities may be issued in one or more series, each in an
aggregate principal amount we authorize before issuance, and
may be in any currency or currency unit that we may designate.
(Section 301)
- debt securities of a series may be issued in registered or
global form. (Sections 201, 203 and 301)
- the Indentures do not limit the amount of other unsecured debt or
securities that we can issue.
- the senior debt securities will rank equally with all of our other
senior debt.
- the subordinated debt securities will have a junior position to
all of our senior debt. (Section 1301)
A prospectus supplement and a supplemental indenture relating to any
series of debt securities being offered will include specific terms relating to
the offering. These terms will include some or all of the following:
- the title and type of debt securities being offered;
- the total principal amount of debt securities being offered;
- the dates on which the principal of, and premium, if any, on
the offered debt securities is payable;
- the interest rate or rates (or the method by which rates will be
determined), and the dates for which interest, if any, will accrue;
- the interest payment dates;
- any optional redemption periods;
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- any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
- whether the debt securities will be convertible into shares of common
stock or exchangeable for other of our securities, and if so, the terms
of conversion or exchange;
- events causing acceleration of maturity;
- any provisions granting special rights to holders when
specified events occur;
- any changes to or additional events of default or covenants;
- any special tax implications of the debt securities; and
- any other terms of the debt securities. (Section 301)
DENOMINATIONS
The debt securities will be issued in denominations of $1,000 or
multiples thereof. (Section 302)
SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities generally will be subordinated
and junior in right of payment to the prior payment in full of all senior debt.
The subordinated indenture provides that no payment of principal, interest
and/or premium on the subordinated debt securities may be made in the event:
- of any insolvency, bankruptcy or similar proceeding involving
us or our property;
- we fail to pay the principal, interest, any premium or any
other amounts on any senior debt when due; or
- a default occurs with respect to any "Designated Senior Indebtedness"
(as defined in the subordinated indenture), which permits the holders
of such debt to accelerate its maturity (until such default is cured or
a period of 179 days from receipt of notice has passed). (Sections
1301, 1302 and 1303)
The subordinated indenture will not limit the amount of senior debt that
we may incur.
Senior Indebtedness is defined to include all our secured and unsecured
direct or contingent liabilities and obligations, including our guarantees for
money we borrow, which is not expressed to be subordinate to, or junior in right
of payment to, any of our other indebtedness, our trade payables and our tax
liabilities.
EVENTS OF DEFAULT
The following are Events of Default under each Indenture:
- failure to pay principal or any premium on any debt security
when due;
- failure to pay any interest on any debt security when due,
continued for 30 days;
- failure to deposit any mandatory sinking fund payment when due,
continued for 30 days;
- failure to perform any other covenant in the Indenture that
continues for 90 days after written notice;
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- certain events of bankruptcy, insolvency or reorganization; and
- any other event of default as may be specified in the
supplemental indenture with respect to debt securities of such
series. (Section 501)
An Event of Default for a particular series of debt securities does not
necessarily constitute an Event of Default for any other series of debt
securities. The Trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal, premium or interest) if the
Trustee considers the withholding of notice to be in the best interest of the
holders. (Section 602)
ACCELERATION OF DEBT UPON AN EVENT OF DEFAULT
If an Event of Default occurs, either the Trustee or the holders of at
least 25% in principal amount of the outstanding debt securities may declare the
principal amount of all the debt securities of the applicable series to be due
and payable immediately. (Section 502) If this happens, subject to certain
conditions, the holders of a majority of the outstanding principal amount of a
series of debt securities can void the declaration. These conditions include the
requirement that we have paid or deposited with the Trustee a sum sufficient to
pay all overdue principal and interest payments on the series of debt securities
subject to the default. (Section 502)
If an Event of Default occurs due to certain events of bankruptcy,
insolvency or reorganization, the principal amount of the outstanding debt
securities of all series will become immediately due and payable without any
declaration or other act on the part of either Trustee or any holder. (Section
502)
Depending on the terms of our indebtedness, an Event of Default under an
Indenture may cause a cross default on our other indebtedness.
DUTIES OF TRUSTEE
Other than its duties in the case of default, the Trustee is not obligated
to exercise any of its rights or powers under either Indenture at the request,
order or direction of any holders unless the holders offer the Trustee
satisfactory security or indemnity. (Section 603)
If the holders provide satisfactory security or indemnification, the
holders of a majority of principal amount of any series of debt securities may
direct the time, method and place of conducting any proceeding or any remedy
available to the Trustee, or exercising any power conferred upon the Trustee for
any series of debt securities.
(Section 512)
COVENANTS
Under the Indentures, we will:
- pay the principal, interest and premium, if any, on the debt
securities when due;
- maintain a place of payment;
- deliver a report to the Trustee at the end of each fiscal year
reviewing our obligations under the Indentures; and
- deposit sufficient funds with any payment agent on or before
the due date for the payment of any principal, interest or
premium. (Sections 1001, 1002, 1003 and 1005)
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MODIFICATION OF INDENTURES
Each Indenture provides that we and the Trustee may, without the consent
of any holders of debt securities, enter into supplemental indentures for the
purposes, among other things, of:
- adding to our covenants;
- adding additional events of default;
- changing or eliminating any provisions of the indentures so
long as there are no holders entitled to the benefit of the
provisions;
- establishing the form or terms of any series of debt
securities; or
- curing ambiguities, defects or inconsistencies in the
Indentures or making any other provisions with respect to
matters or questions arising under the Indentures. (Section
901)
With specific exceptions, the Indentures or the rights of the holders of
the debt securities may be modified by us and the Trustee with the consent of
the holders of a majority of the outstanding principal amount of the debt
securities of each series affected by the modification, but without the consent
of the holders of each outstanding debt security affected, no modification may
be made which would:
- change the maturity of any payment of principal of, or any
premium on, or any installment of interest on any debt security;
- change the terms of any sinking fund with respect to any debt
security;
- reduce the principal amount of, or the interest or any premium
on, any debt security upon redemption or repayment at the
option of the holder;
- change any place of payment where, or the currency in which,
any debt security or any premium or interest is payable;
- impair the right to sue for the enforcement of any payment on
or with respect to any debt security; or
- reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required for
any such modification or amendment of the Indenture, or the consent of
whose holders is required for any waiver of compliance with certain
provisions of the Indenture or for waiver of specific defaults.
(Section 902)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture generally permits a consolidation or merger between us and
another company, and permits us to sell all or substantially all of our property
and assets. If this happens, the remaining or acquiring company will assume all
of our responsibilities and liabilities under the Indentures, including the
payment of all amounts due on the debt securities and performance of the
covenants in the Indentures. (Section 801)
We will only consolidate or merge with or into another company or sell all
or substantially all of our assets according to the terms and conditions of the
Indentures. The remaining or acquiring company will assume our obligations under
the Indentures with the same effect as if it had been an original party to the
Indentures and we shall be released from all our liabilities and obligations
under either Indenture and any debt securities. (Sections 801 and 802)
Thereafter, the successor company may exercise our rights and powers under
either Indenture, in our name or in its own name. Any act or proceeding required
or permitted to be done by our board of directors or any of our officers may be
done by the board or officers of the successor company.
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DISCHARGE AND DEFEASANCE
We will be discharged from all obligations under the applicable indenture
with respect to any series of debt securities, except for surviving obligations
to register the transfer or exchange of the debt securities, if:
- all debt securities of the series previously authenticated and
delivered under the relevant indenture have been delivered to the
indenture trustee for cancellation; or
- all debt securities of that series have become due and payable or will
become due and payable, at maturity or by redemption, and we deposit
with the applicable trustee funds or government securities sufficient
to make payments on the debt securities of that series on the dates
those payments are due. (Section 401)
To exercise our right to be discharged, we must deliver the following to
the applicable trustee:
- an opinion of counsel to the effect that the holders will not recognize
income, gain or loss for federal income tax purposes as a result of the
exercise of such option and will be subject to U.S. federal income tax
on the same amount in the same manner and at the same time as if such
option had not been exercised; and
- an officers' certificate and an opinion of counsel, each stating that
all conditions precedent to the satisfaction and discharge of the
applicable indenture with respect to such series have been complied
with. (Section 401)
In addition to our right of discharge described above, we may deposit with
the applicable trustee funds or government securities sufficient to make
payments on the debt securities of a series on the dates those payments are due
and payable; then, at our option, either of the following will occur:
- we will be discharged from our obligations with respect to the
debt securities of that series ("legal defeasance"); or
- we will no longer have any obligation to comply with the restrictive
covenants under the applicable indenture, and the related events of
default will no longer apply to us, but some of our other obligations
under the indenture and the debt securities of that series, including
our obligation to make payments on those debt securities, will survive
("covenant defeasance"). (Section 403)
If we defease a series of debt securities, the holders of the debt
securities of the series affected will not be entitled to the benefits of the
applicable indenture, except for our obligations to:
- register the transfer or exchange of debt securities;
- replace stolen, lost or mutilated debt securities; and
- maintain paying agencies and hold monies for payment in trust.
(Section 403)
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the applicable trustee an opinion of counsel that the
deposit and related defeasance would not cause the holders of the debt
securities to recognize income, gain or loss for U.S. federal income tax
purposes. If we elect legal defeasance, that opinion of counsel must be based on
a ruling from the U.S. Internal Revenue Service or a change in law to that
effect. (Section 403)
12
PAYMENT AND PAYING AGENTS
Principal, interest and premium, if any, on fully registered securities
will be paid at designated places. Payment will be made by check mailed to the
person in whose name the debt securities are registered on the day specified in
the Indentures or any prospectus supplement. Payments in other forms will be
paid at a place designated by us and specified in a prospectus supplement.
(Section 307)
Fully registered securities may be transferred or exchanged at the
corporate trust office of the Trustee or at any other office or agency
maintained by us for such purposes without the payment of any service charge
except for any tax or governmental charge. (Section 1002)
GLOBAL SECURITIES
The debt securities of a series may be issued in the form of one or more
global certificates that will be deposited with a depositary or its nominee
identified in a prospectus supplement. We may issue global debt securities in
either temporary or permanent form. We will describe in the prospectus
supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global debt security.
(Sections 201, 203 and 301)
13
DESCRIPTION OF CAPITAL STOCK
Our certificate of incorporation authorizes us to issue up to 150,000,000
shares of common stock, par value $0.01 per share, and 10,000,000 shares of
preferred stock, par value $0.01 per share. As of March 31, 2002 there were
approximately 54,071,292 shares of common stock outstanding and we do not have
any shares of preferred stock outstanding.
COMMON STOCK
The holders of common stock as of the applicable record date are entitled
to one vote per share on all matters to be voted upon by the stockholders. The
holders of common stock do not have cumulative voting rights for the election of
our directors in accordance with our bylaws and Delaware law. Subject to
preferences applicable to any outstanding preferred stock, the holders of common
stock are entitled to receive ratably such dividends as may be declared from
time to time by the board of directors out of funds legally available for
distribution, and, in the event of our liquidation, dissolution or winding up,
the holders of common stock are entitled to share in all assets remaining after
payment of liabilities. The common stock has no preemptive or conversion rights
and is not subject to further calls or assessments by us. The common stock
currently outstanding is validly issued, fully paid and nonassessable.
See "-Stockholder Rights Plan; Preferred Stock Rights Agreement" for
information regarding the rights that currently attach to each outstanding share
of our common stock.
The transfer agent and registrar for the common stock is First Chicago
Trust Division of EquiServe.
ANTI-TAKEOVER EFFECTS OF DELAWARE LAW
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law, which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any interested
stockholder for a period of three years following the time that such stockholder
became an interested stockholder, unless:
1. prior to such time, the board of directors of the
corporation approved either the business combination or the
transaction that resulted in the stockholder's becoming an
interested stockholder;
2. upon consummation of the transaction that resulted in the
stockholder's becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned:
- by persons who are directors and also officers; and
- by employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange
offer; or
3. at or subsequent to such time, the business combination is approved
by the board of directors and authorized at an annual or special
meeting of the stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock
that is not owned by the interested stockholder.
14
Section 203 defines "business combination" to include:
1. any merger or consolidation involving the corporation and
the interested stockholder;
2. any sale, transfer, pledge or other disposition of 10% or
more of the assets of the corporation involving the
interested stockholder;
3. subject to certain exceptions, any transaction that results
in the issuance or transfer by the corporation of any stock
of the corporation to the interested stockholder;
4. any transaction involving the corporation that has the
effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by
the interested stockholder; or
5. the receipt by the interested stockholder of the benefit of
any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation.
In general, Section 203 defines an "interested stockholder" as any entity
or person which or who beneficially owns (or within three years did own) 15% or
more of the outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by such entity or person.
The existence of this provision can be expected to have an anti-takeover
effect with respect to transactions not approved in advance by our board of
directors, including discouraging attempts that might result in a premium over
the market price for the shares of common stock held by stockholders.
Our certificate of incorporation requires that any business combination
involving us and a person who beneficially owns 20% or more of our common stock
must be approved by the holders of at least 80% of the voting power of our
outstanding shares of capital stock, voting together as a single class. This
provision does not apply if either (a) the business combination is approved by a
two-thirds vote of the continuing directors, as defined in our certificate of
incorporation, or (b) certain "fair price" and disclosure conditions are met.
STOCKHOLDER RIGHTS PLAN; PREFERRED STOCK RIGHTS AGREEMENT
The following summary of the principal terms of the rights and the
Preferred Stock Rights Agreement, referred to as the rights agreement, is a
general description only and is subject to the detailed terms and conditions of
the rights agreement.
In 1995, our board of directors declared a dividend distribution of one
right for each outstanding share of our common stock. Each right is subject to
the terms of the rights agreement. The rights agreement provides that each share
of our outstanding common stock will have the right to purchase one
one-hundredth of a share of our Series A Junior Participating Preferred Stock at
an exercise price of $300.00, subject to adjustment.
The rights under the rights agreement currently are attached to and trade
together with our common stock. The rights will separate from our common stock
and be represented by separate and distinct certificates approximately ten days
after someone acquires or commences a tender offer for 20% or more of our
outstanding common stock.
After the rights separate from our common stock, certificates representing
the rights will be mailed to record holders of our common stock. Once
distributed, the rights certificates alone will represent the rights.
All shares of our common stock issued prior to the date the rights
separate from the common stock will be issued with the rights attached. The
rights are not exercisable until the date the rights separate from the common
stock. The rights will expire on October 31, 2007 unless earlier redeemed or
exchanged by us.
15
If an acquiror, which could be a person or group, obtains, or commences a
tender or exchange offer to obtain, 20% or more of our common stock, then each
right will entitle the holder to purchase a number of shares of our common stock
having a then-current market value equal to two times the exercise price.
Each right will entitle the holder to purchase a number of shares of
common stock of the acquiring entity having a then-current market value of twice
the purchase price if an acquiror obtains 20% or more of our common stock and
any of the following occurs:
- we merge into another entity; or
- we sell more than 50% of our assets or earning power.
Under the rights agreement, any rights that are or were owned by an
acquiror, or its affiliates, of more than 20% of our outstanding common stock
will be null and void.
At its option, our board of directors may redeem all of the outstanding
rights under the rights agreement at any time on or prior to the close of
business on the tenth day following the time that an acquiror obtains 20% or
more of our outstanding common stock.
The redemption price under the rights agreement is $0.01 per right. The
right to exercise the rights will terminate upon the action of our board of
directors ordering the redemption of the rights and the only right of the
holders of the rights will be to receive the redemption price.
The rights issued under the rights agreement are designed to protect and
maximize the value of our common stock in the event of an unsolicited attempt to
acquire us in a manner or on terms that are not approved by our board of
directors. The rights are designed to deter unfair tactics, including a gradual
accumulation of shares in the open market of a 20% or greater position, followed
by a merger or a partial or two-tier tender offer that does not treat all
stockholders equally.
Subject to the restrictions described above, the rights may be redeemed by
us at $0.01 per right at any time prior to the time the rights separate from the
common stock. Accordingly, the rights should not interfere with any merger or
business combination approved by our board of directors. The rights are not
intended to prevent a transaction that is in the best interest of our
stockholders. However, the rights may have the effect of rendering more
difficult or discouraging an acquisition that our board of directors deemed
undesirable. The rights will cause substantial dilution to a person or group
that attempts to acquire us on terms or in a manner not approved by our board of
directors, except pursuant to an offer conditioned upon redemption of the
rights.
PREFERRED STOCK
Our certificate of incorporation authorizes us to issue shares of
preferred stock in one or more series. Our board of directors has the authority,
without stockholder consent and subject to certain limitations imposed by law or
our bylaws, to issue one or more series of preferred stock at any time. The
certificate of designation relating to each series will fix the voting power,
rights, preferences and restrictions of the preferred stock of each series. A
prospectus supplement relating to each such series will specify the terms of the
preferred stock as determined by our board of directors, including the
following:
- the number of shares in any series;
- the dividend rate and whether dividends on that series of preferred
stock will be cumulative, noncumulative or partially cumulative;
- the voting rights of that series of preferred stock, if any;
- any conversion provisions applicable to that series of
preferred stock;
16
- any redemption or sinking fund provisions applicable to that series of
preferred stock including whether there is any restriction on the
repurchase or redemption of the preferred stock while there is any
arrearage in the payment of dividends or sinking fund installments;
- the liquidation preference per share of that series of
preferred stock, if any; and
- the terms of any other preferences or rights, if any, applicable to
that series of preferred stock.
All shares of preferred stock offered will, when issued, be fully paid and
non-assessable.
The transfer agent, registrar, and dividend disbursement agent for a
series of preferred stock will be named in a prospectus supplement. The
registrar for shares of preferred stock will send notices to stockholders of any
meetings at which holders of the preferred stock have the right to elect
directors or to vote on any other matter.
We will describe the specific terms of a particular series of preferred
stock in the prospectus supplement relating to that series. The description of
preferred stock above and the description of the terms of a particular series of
preferred stock in the related prospectus supplement will not be complete. You
should refer to the certificate of designation for complete information.
Although it has no present intention to do so, our board of directors,
without stockholder approval, may issue preferred stock with voting and
conversion rights, which could adversely affect the voting power of the holders
of common stock. If we issue preferred stock, it may have the effect of
delaying, deferring or preventing a change of control.
DEPOSITARY SHARES
At our option, we may elect to offer fractional shares of preferred stock,
rather than full shares of preferred stock. If we do, we will issue to the
public receipts for depositary shares and each of these depositary shares will
represent a fraction, to be set forth in the prospectus supplement, of a share
of a particular series of preferred stock. Each owner of a depositary share will
be entitled, in proportion to the applicable fractional interest in shares of
preferred stock underlying that depositary share, to all rights and preferences
of the preferred stock underlying that depositary share. Those rights include
dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares will be
deposited with a bank or trust company selected by us to act as depositary,
under a deposit agreement between us, the depositary and the holders of the
depositary receipts. The depositary will be the transfer agent, registrar and
dividend disbursing agent for the depositary shares.
Depositary receipts issued pursuant to the depositary agreement will
evidence the depositary shares. Holders of depositary receipts agree to be bound
by the deposit agreement, which requires holders to take certain actions such as
filing proof of residence and paying certain charges.
The summary of terms of the depositary shares contained in this prospectus
is not complete. You should refer to the forms of the depositary agreement, our
certificate of incorporation and the certificate of amendment for the applicable
series of preferred stock that are, or will be, filed with the SEC.
DESCRIPTION OF WARRANTS
We may issue warrants, including warrants to purchase debt securities,
preferred stock, common stock or other securities. We may issue warrants
independently or together with other securities that may be attached to or
separate from the warrants.
If we issue warrants, we may do so under one or more warrant agreements
between us and a warrant agent that we will name in the prospectus supplement.
17
The prospectus supplement relating to any warrants being offered will
include specific terms relating to the offering. These terms will include some
or all of the following:
- the title of the warrants;
- the designation, number and terms of the debt securities, common stock,
preferred stock or other securities purchasable upon exercise of the
warrants and procedure by which those numbers may be adjusted;
- the exercise price of the warrants;
- the aggregate number of warrants offered;
- the price or prices at which each warrant will be issued;
- the procedures for exercising the warrants;
- dates or periods during which the warrants are exercisable; and
- the expiration date and any other material terms of the
warrants.
18
PLAN OF DISTRIBUTION
We may sell the securities in and outside the United States (1) through
underwriters or dealers, (2) directly to purchasers or (3) through agents.
The prospectus supplement will set forth the following information:
- the terms of the offering;
- the names of any underwriters or agents;
- the name or names of any managing underwriter or underwriters;
- the purchase price of the securities from us;
- the net proceeds we will receive from the sale of the
securities;
- any delayed delivery arrangements;
- any underwriting discounts, commissions and other items
constituting underwriters' compensation;
- the initial public offering price;
- any discounts or concessions allowed or reallowed or paid to
dealers; and
- any commissions paid to agents.
SALE THROUGH UNDERWRITERS OR DEALERS
If we use underwriters in the sale of the offered securities, the
underwriters will acquire the securities for their own account. The
underwriters may resell the securities from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Underwriters may
offer securities to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. Unless we inform you otherwise in the
prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to several conditions, and the underwriters will
be obligated to purchase all the offered securities if they purchase any of
them. The underwriters may change from time to time any initial public
offering price and any discounts or concessions allowed or reallowed or paid
to dealers.
If we use underwriters in the sale of the offered securities, rules of
the SEC may limit the ability of the underwriters and certain selling group
members to bid for and purchase our securities until the distribution of the
offered securities is completed. As an exception to these rules, the
underwriters are permitted to engage in certain transactions that stabilize,
maintain or otherwise affect the price of the offered securities.
In connection with an underwritten offering, the underwriters may make
short sales of the offered securities and may purchase our securities on the
open market to cover positions created by short sales. Short sales involve
the sale by the underwriters of a greater number of securities than they are
required to purchase in the offering. "Covered" short sales are made in an
amount not greater than the over-allotment option we may grant to the
underwriters in connection with the offering. The underwriters may close out
any covered short position by either exercising the over-allotment option or
purchasing our securities in the open market. In determining the source of
securities to close out the covered short position, the underwriters will
consider, among other things, the price of securities available for purchase
in the open market as compared to the price at which they may purchase
securities through the over-allotment option. "Naked" short sales are sales
in excess of the over-allotment option. The underwriters must close out any
naked short position by purchasing our securities in the open market. A naked
short position is more likely to be created if the underwriters are concerned
that there may be downward pressure on the
19
price of the securities in the open market after pricing that could adversely
affect investors who purchase in the offering.
The underwriters may also impose a penalty bid on certain selling group
members. This means that if the underwriters purchase our securities in the
open market to reduce the selling group members' short position or to
stabilize the price of the securities, they may reclaim the amount of the
selling concession from the selling group members who sold those securities
as part of the offering.
In general, purchases of a security for the purpose of stabilization or
to reduce a short position could cause the price of the security to be higher
than it might be in the absence of those purchases, or those purchases could
prevent or retard a decline in the price of the security. The imposition of a
penalty bid might also have an effect on the price of a security to the
extent, if any, that it discourages a resales of the security.
Neither we nor the underwriters will make any representation or
prediction as to the direction or magnitude of any effect that the
transactions we describe above may have on the price of the offered
securities. In addition, neither we nor the underwriters will make any
representation that the underwriters will engage in these transactions or
that these transactions, once commenced, will not be discontinued without
notice.
If we use dealers in the sale of securities, we will sell the
securities to them as principals. They may then resell those securities to
the public at varying prices determined by the dealers at the time of resale.
We will include in the prospectus supplement the names of the dealers and the
terms of the transactions.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In that event, no underwriters or
agents would be involved. We may also sell the securities through agents we
designate from time to time. In the prospectus supplement, we will name any
agent involved in the offer or sale of the offered securities, and we will
describe any commissions payable by us to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to use its
reasonable best efforts to solicit purchases for the period of its
appointment.
We may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of these securities. We will describe
the terms of any such sales in the prospectus supplement.
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers from selected types of
institutions to purchase securities from us at the public offering price
under delayed delivery contracts. These contracts would provide for payment
and delivery on a specified date in the future. The contracts would be
subject only to those conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for solicitation
of those contracts.
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against civil liabilities, including liabilities under the
Securities Act, or to contribute with respect to payments that the agents,
dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
LEGAL MATTERS
Certain legal matters relating to the validity of the common stock,
debt securities, preferred stock and warrants will be passed upon for the
Company by Porter & Hedges, L.L.P., Houston, Texas and for any underwriters
or agents by Vinson & Elkins L.L.P., Dallas, Texas.
20
EXPERTS
The consolidated financial statements Cooper Cameron Corporation
incorporated by reference in Cooper Cameron Corporation's Annual Report (Form
10-K) for the year ended December 31, 2001 have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated
by reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon
such report given on the authority of such firm as experts in accounting and
auditing.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses payable by Cooper Cameron
Corporation (the "Company") in connection with the issuance and distribution
of the securities being registered. All the amounts shown are estimates,
except the SEC registration fee.
SEC registration fee.............................................. $ 46,000
Printing expenses................................................. 50,000
Legal fees and expenses........................................... 100,000
Accounting fees and expenses...................................... 25,000
Fees and expenses of trustee and counsel.......................... 15,000
Fee and expenses of transfer agent................................ 10,000
Rating agency fees................................................ 150,000
Miscellaneous expenses............................................ 25,000
--------
Total*..................................................... $421,000
========
*All of the above expenses are estimated except for the SEC filing fee. The
Company has offset against the full amount of the $46,000 filing fee required
in connection with this registration statement, filing fees paid in
connection with a prior registration statement as described in Note 4 to the
Calculation of Registration Fee table in this registration statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action.
In a suit brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorneys' fees,
actually and reasonably incurred in connection with the defense or settlement
of the case, and the corporation may not indemnify for amounts paid in
satisfaction of a judgment or in settlement of the claim. In any such action,
no indemnification may be paid in respect of any claim, issue or matter as to
which such persons shall have been adjudged liable to the corporation except
as otherwise approved by the Delaware Court of Chancery or the court in which
the claim was brought. In any other type of proceeding, the indemnification
may extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceedings, as well as to
expenses (including attorneys' fees).
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation
and, in the case of criminal actions or proceedings, the person had no
reasonable cause to believe his conduct was unlawful. There are additional
limitations applicable to criminal actions and to actions brought by or in
the name of the corporation. The determination as to whether a person seeking
indemnification has met the required standard of conduct is to be made (i) by
a majority vote of a quorum of disinterested members of the board of
directors; or (ii) by independent legal counsel in a written opinion, if such
quorum does not exist or if the disinterested directors so direct; or (iii)
by the stockholders.
II-1
The Amended Certificate of Incorporation of the Registrant (the
"Certificate") and bylaws of the Registrant require the Registrant to
indemnify the Registrant's directors and officers to the fullest extent
permitted under Delaware law, and to implement provisions pursuant to
contractual indemnity agreements the Company has entered into with its
directors and executive officers. The Certificate limits the personal
liability of a director to the Registrant or its stockholders to damages for
breach of the director's fiduciary duty. The Registrant has purchased
insurance on behalf of its directors and officers against certain liabilities
that may be asserted or incurred by such persons in their capacities as
directors or officers of the Registrant, or that may arise out of their
status as directors or officers of the Registrant, including liabilities
under the federal and state securities laws.
Section 102(b)(7) of the DGCL ("Section 102(b)") authorizes
corporations to limit or to eliminate the personal liability of directors to
corporations and their stockholders for monetary damages for breach of
directors' fiduciary duty of care. Although Section 102(b) does not change
directors' duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or recession. The Certificate limits
the liability of directors to the Registrant or its stockholders to the
fullest extent permitted by Section 102(b). Specifically, directors of the
Registrant will not be personally liable for monetary damages for breach of a
director's fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Registrant or its
stockholders; (ii) for acts or omissions not in good faith, or which involve
intentional misconduct or a knowing violation of law; (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the DGCL; or (iv) for any transaction from which
the director derived an improper personal benefit. In the view of the
Commission, the limitation of monetary liability pursuant to state law does
not apply to liabilities under the federal securities laws.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
--------------------- ------------------------------------------------------------------------
+1.1 -- Form of Underwriting Agreement
*4.1 -- Form of Senior Indenture
*4.2 -- Form of Subordinated Indenture
*5.1 -- Opinion of Porter & Hedges, L.L.P.
*12.1 -- Statement Regarding Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1)
*23.2 -- Consent of Ernst & Young LLP
*24.1 -- Power of Attorney
+25.1 -- Statement of Eligibility of Trustee on Form T-1
-----------------
* Previously filed.
+ The Company will file as an exhibit to a current report on Form 8-K (i) any
underwriting agreement relating to the securities offered hereby or (ii) any
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939, as amended, of the applicable trustee.
II-2
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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 this 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; provided,
however, that 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 the undertakings set forth in clauses (i)
and (ii) above do not apply if the information required to be
included in a post-effective amendment by those clauses is contained
in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this 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.
II-3
(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 purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities and
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 this 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.
(5) 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.
(6) That for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it
was declared effective.
(7) That for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(8) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to our directors, officers
and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the
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 us of expenses incurred
or paid by our director, officer or controlling person 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, we 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 them is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Houston, State of Texas, on August 13, 2002.
By: *
-----------------------------------
Sheldon R. Erikson
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, Amendment No. 1 to
the Registration Statement has been signed by the following persons in the
indicated capacities and on August 13, 2002.
SIGNATURE TITLE
--------- -----
* Chairman of the Board, President and
--------------------------------------- Chief Executive Officer (Principal
Sheldon R. Erickson Executive Officer)
* Senior Vice President of Finance and
--------------------------------------- Chief Financial Officer (Principal
Thomas R. Hix Financial Officer)
* Vice President and Corporate
--------------------------------------- Controller (Principal Accounting
Charles M. Sledge Officer)
*
--------------------------------------- Director
Nathan M. Avery
*
--------------------------------------- Director
C. Baker Cunningham
*
--------------------------------------- Director
Lamar Norsworthy
*
--------------------------------------- Director
Michael Patrick
*
--------------------------------------- Director
David Ross
* By /s/ WILLIAM C. LEMMER
--------------------------
William C. Lemmer
Attorney-in-Fact
EXHIBITS
EXHIBIT NO. DESCRIPTION
--------------- ------------------------------------------------------------------------
+1.1 -- Form of Underwriting Agreement
*4.1 -- Form of Senior Indenture
*4.2 -- Form of Subordinated Indenture
*5.1 -- Opinion of Porter & Hedges, L.L.P.
*12.1 -- Statement Regarding Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1)
*23.2 -- Consent of Ernst & Young LLP
*24.1 -- Power of Attorney
+25.1 -- Statement of Eligibility of Trustee on Form T-1
-----------------
* Previously filed.
+ The Company will file as an exhibit to a current report on Form 8-K (i) any
underwriting agreement relating to the securities offered hereby or (ii) any
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939, as amended, of the applicable trustee.