As
filed with the Securities and Exchange Commission on March 23,
2007
Registration
No. 333-128888
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Post-Effective
Amendment No. 2
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ROSETTA
RESOURCES INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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1311
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43-2083519
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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717
Texas, Suite 2800
Houston,
TX 77002
(713)
335-4000
(Address,
including zip code, and telephone number, including area code, of Registrant’s
principal executive offices)
Michael
J. Rosinski
Executive
Vice President,
Chief
Financial Officer, Secretary & Treasurer
Rosetta
Resources Inc.
717
Texas, Suite 2800
Houston,
TX 77002
(713)
335-4000
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copies
to:
Thomas
R. Lamme
Thompson &
Knight LLP
333
Clay Street, Suite 3300
Houston,
TX 77002
(713)
654-8111
Approximate
date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement is declared effective.
If
any
securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the “Securities Act”), 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, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. o
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 post-effective amendment filed pursuant to Rule 462(d) 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. £
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 or until this registration statement shall become effective
on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 2 to the Registration Statement incorporates
by reference the Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2006, as filed with the Securities and Exchange Commission on
March 16, 2007.
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The
information in this prospectus is not complete and may be changed.
These
securities may not be sold until the registration statement filed
with the
Securities and Exchange Commission is effective. This prospectus
is not an
offer to sell these securities and it is not soliciting an offer
to buy
these securities in any state where such offer or sale is not
permitted.
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SUBJECT
TO COMPLETION
PRELIMINARY
PROSPECTUS DATED MARCH 23, 2007
PROSPECTUS
50,000,000 Shares
Common
Stock
This
prospectus relates to up to 50,000,000 shares of the common stock of
Rosetta Resources Inc., which may be offered for sale by the selling
stockholders named in this prospectus. The selling stockholders acquired the
shares of common stock offered by this prospectus in private equity placements.
We are registering the offer and sale of the shares of common stock to satisfy
registration rights we have granted.
We
are
not selling any shares of common stock under this prospectus and will not
receive any proceeds from the sale of common stock by the selling stockholders.
The shares of common stock to which this prospectus relates may be offered
and
sold from time to time directly from the selling stockholders or alternatively
through underwriters or broker-dealers or agents. The shares of common stock
may
be sold in one or more transactions, at fixed prices, at prevailing market
prices at the time of sale or at negotiated prices. Because all of the shares
being offered under this prospectus are being offered by selling stockholders,
we cannot currently determine the price or prices at which our shares of common
stock may be sold under this prospectus. Shares of our common stock are listed
on the NASDAQ Global Select Market under the symbol “ROSE.” On March 21, 2007,
the closing price of our common stock as reported on the NASDAQ Global Select
Market was $20.45 per share. Please read “Plan of Distribution.”
Investing
in our common stock involves risks. You should read the section entitled “Risk
Factors” beginning on page 13 of our Annual Report on Form 10-K for
the fiscal year ended December 31, 2006, which is incorporated by reference
herein, for a discussion of certain risk factors that you should consider before
investing in our common stock.
You
should rely only on the information contained in or incorporated by reference
into this prospectus or any prospectus supplement or amendment. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not
permitted.
Neither
the Securities and Exchange Commission (the “SEC”) nor any state securities
commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary
is a
criminal offense.
The
date
of this prospectus is
,
2007.
(
ii )
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Page
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(iv)
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46
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48
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49
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52
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54
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54
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55
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We
have
filed with the SEC, under the Securities Act of 1933, as amended (the
“Securities Act”), a registration statement on Form S-1 (No. 333-128888)
with respect to the common stock offered by this prospectus. This prospectus,
which constitutes part of the registration statement, does not contain all
the
information set forth in the registration statement or the exhibits and
schedules which are part of the registration statement, portions of which are
omitted as permitted by the rules and regulations of the SEC. Statements made
in
this prospectus regarding the contents of any contract or other documents are
summaries of the material terms of the contract or document. You should not
assume that the information contained in this prospectus is accurate as of
any
date other than the date on the front of this document. Our business, financial
condition, results of operations and prospects may have changed since that
date.
Any information we have incorporated by reference is accurate only as of the
date of the document incorporated by reference. With respect to each contract
or
document filed as an exhibit to the registration statement, reference is made
to
the corresponding exhibit. For further information pertaining to us and to
the
common stock offered by this prospectus, reference is made to the registration
statement, including the exhibits and schedules thereto, copies of which may
be
inspected without charge at the public reference facilities of the SEC at
100 F Street, N.E., Washington, D.C. 20549. Copies of all or any
portion of the registration statement may be obtained from the SEC at prescribed
rates. Information on the public reference facilities may be obtained by calling
the SEC at 1-800-SEC-0330. In addition, the SEC maintains a web site that
contains reports, proxy and information statements and other information that
is
filed electronically with the SEC. The web site can be accessed at
www.sec.gov.
We
are
required to comply with the informational requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and, accordingly, we file
current reports on Form 8-K, quarterly reports on Form 10-Q, annual
reports on Form 10-K, proxy statements and other information with the SEC.
Those reports, proxy statements and other information will be available for
inspection and copying at the public reference facilities and internet site
of
the SEC referred to above.
We
have
elected to “incorporate by reference” certain information into this prospectus,
which means we can disclose important information to you by referring you to
another document filed with the SEC. The information incorporated by reference
is deemed to be part of this prospectus. Please read “Incorporation by
Reference.” You should only rely on the information contained in this prospectus
and incorporated by reference in it. We have not authorized anyone to provide
you with any additional information.
We
are
incorporating by reference into this prospectus the following documents filed
with the SEC (excluding any portions of such documents that have been
“furnished” but not “filed” for purposes of the Exchange Act):
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—
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Our
annual report on Form 10-K for the fiscal year ended
December 31, 2006, filed with the SEC on March 16, 2007;
and
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—
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Our
proxy statement on Schedule 14A filed with the SEC on ,
2007.
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Any
statement contained in this prospectus or a document incorporated by reference
in this prospectus will be deemed to be modified or superseded for purposes
of
this prospectus to the extent that a statement contained in this prospectus
or
in any other subsequently filed document that is incorporated by reference
in
this prospectus modifies or supersedes the statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
The
documents incorporated by reference in this prospectus are available from us
upon request. We will provide a copy of any and all of the information that
is
incorporated by reference in this prospectus to any person, without charge,
upon
written or oral request. Requests for such copies should be directed to the
following:
Rosetta
Resources Inc.
717
Texas, Suite 2800
Houston,
Texas 77002
Telephone
Number: (713) 335-4000
Attention:
Chief Financial Officer
This
summary highlights information contained herein and incorporated by reference
in
this prospectus. It is not complete and does not contain all of the information
you may wish to consider before investing in the shares. We urge you to read
this entire prospectus and the information incorporated herein by reference
carefully, including the “Risk Factors” beginning on page 13 of our Annual
Report on Form 10-K for the year ended December 31, 2006, which is
incorporated by reference herein and the financial statements incorporated
by
reference in this prospectus. References to “Rosetta”, “the Company,” “we,”
“us,” and “our” refer to Rosetta Resources Inc. and our consolidated
subsidiaries. The estimates of our proved reserves as of December 31, 2006
and 2005 included or incorporated by reference in this prospectus are
based on reserve reports prepared by Netherland, Sewell & Associates, Inc.,
independent petroleum engineers (“Netherland Sewell”).
We
have provided definitions for some of the industry terms used in this prospectus
in the “Glossary of Oil and Natural Gas Terms” beginning on page 55 of this
prospectus.
Our
Company
General
Rosetta
Resources Inc. was formed in June 2005 to acquire Calpine Natural Gas L.P.
the
domestic oil and natural gas business formerly owned by Calpine Corporation
and
affiliates (“Calpine”). We (“Successor”) acquired Calpine Natural Gas
L.P. (“Predecessor”) in July 2005 (hereinafter, the “Acquisition”) and together
with all subsequently acquired oil and gas properties is engaged in oil and
natural gas exploration, development, production and acquisition activities
in
the United States, and operates in one business segment. Our operations are
primarily concentrated in the Sacramento Basin of California, the Lobo and
Perdido Trends in South Texas, the State Waters of Texas, the Gulf of Mexico
and
the Rocky Mountains. We have grown our existing property base through
exploitation of our leasehold acreage and by: purchasing new undeveloped leases;
acquiring oil and gas producing properties from third parties; and acquiring
drilling prospects with third parties where we earn an ownership interest in
new
third party properties or otherwise participate in exploration.
Pursuant
to the Acquisition, we entered into several operative contracts with Calpine,
including a purchase and sale agreement (together with the interrelated
agreements concurrently executed on or about July 7, 2005, are hereinafter,
collectively, the “Purchase Agreement”) under which we have indemnification
rights and obligations with respect to Calpine. Currently, Calpine markets
our
oil and gas under a marketing services agreement whose term runs through June
30, 2007. We also sell a significant portion of our gas to Calpine pursuant
to
certain gas purchase and sales contracts, all of which were part of the
Acquisition documents.
In
October 1999, Calpine purchased Sheridan Energy, Inc. (“Sheridan”), a natural
gas exploration and production company operating in northern California and
the
Gulf Coast region. Sheridan, renamed Calpine Natural Gas Company, provided
the
initial management team an operational infrastructure to evaluate and acquire
oil and natural gas properties for Calpine. In December 1999, Calpine purchased
Vintage Petroleum, Inc.’s interest in the Rio Vista Gas Unit and related areas,
representing primarily natural gas reserves located in the Sacramento Basin
in
northern California. In October 2001, Calpine Natural Gas Company completed
the
acquisition of 100% of the voting stock of Michael Petroleum Corporation, a
natural gas exploration and production company with operations in South
Texas. Calpine Natural Gas Company was merged into Calpine in April
2002 and Calpine Natural Gas L.P. was subsequently established. In
September 2004, Calpine and Calpine Natural Gas L.P. sold their natural gas
reserves in the New Mexico San Juan Basin and Colorado Piceance Basin and such
properties have been reflected as discontinued operations for all periods
presented herein. Several members of the Calpine management team, who were
responsible for operating Calpine’s oil and natural gas business, joined the
Company concurrently with the Acquisition.
Our
Strengths
We
believe our historical success is, and future performance will be, directly
related to the following combination of strengths:
High
Quality, Diversified Asset Base. We own a geographically
diversified asset base comprised of long-lived reserves along with
shorter-lived, higher return reserves. Approximately 96% of our reserves are
natural gas and almost all of our assets are located in the Sacramento Basin
of
California, South Texas, the Gulf of Mexico and the Rocky Mountains. We believe
this geographic and production profile diversity will enhance the stability
of
our cash flows while providing us with a large number of development and
exploration opportunities, as well as support for additional
acquisitions.
Development
and Exploration Drilling Inventory. We have identified over 500
drillable, low to moderate risk opportunities providing us with multiple years
of drilling inventory, and we expect to drill approximately 190 of these
locations during 2007. Approximately 20% of these locations are classified
as
proved undeveloped. We also have a large and diversified portfolio of what
we
designate as development and exploration prospects. Our capital expenditure
budget is approximately $250 million for 2007. We will manage our exploratory
risks and expenditures by selectively reducing our capital exposure in certain
high risk projects by partnering with others in our industry.
Operational
Control. We operate approximately 90% of our estimated proved
reserves, which allows us to more effectively manage expenses and control the
timing of capital allocation of our development and exploration
activities.
Experienced
Management Team. Our executive management team has an average of
over 30 years of experience in the oil and natural gas industry as well as
strong technological backgrounds.
Proven
Technical and Land Personnel with Access to Technological
Resources. Our technical staff of 28 includes geologists,
geophysicists, landmen, engineers and technicians with an average of over 20
years of relevant technical experience. Our staff has a proven record of
analyzing complex structural and stratigraphic plays using 3-D geophysical
expertise, producing and optimizing low pressure natural gas reservoirs,
detecting low contrast, low permeability pay opportunities, drilling, completing
and fracing of deep tight natural gas reservoirs, operating in the Gulf of
Mexico and managing horizontal drilling and coalbed methane operations. These
core competencies helped us to achieve a drilling success rate of 85% for the
year ended December 31, 2006 and has helped maximize recovery from our
reservoirs. Our definition of drilling success is a well that produces
hydrocarbons at sufficient rates, to allow us to recover, at a minimum, our
capital investment and operating costs.
Our
Strategy
Our
strategy is to increase stockholder value by profitably increasing our reserves,
production, cash flow and earnings using a balanced program of
(1) developing existing properties, (2) exploring undeveloped
properties, (3) completing strategic acquisitions, (4) maintaining
financial flexibility, (5) striving to be a low cost producer and (6)
maintaining financial flexibility. We will seek to accomplish
these goals while working to protect shareholder interest by conserving natural
resources, monitoring emerging trends, minimizing liabilities through an
aggressive approach to governmental compliance, respecting the dignity of human
life, and protecting the environment. The following are key elements
of our strategy:
Further
Development to Existing Properties. We intend to further develop
the significant remaining upside potential of our properties by working over
existing wells, drilling in-fill locations, drilling step-out wells to expand
known field outlines, recomplete to logged behind pipe pays and lowering field
line pressures through compression for additional recoveries.
Exploration
Growth. We intend to focus on niche areas in which we have
technological and operational advantages. This growth will come from
higher-risk, higher-impact opportunities in the Gulf of Mexico, Texas and
Louisiana State Waters, in deep horizons in the Sacramento Basin, and from
lower-risk, longer-lived opportunities in the shallow Sacramento Basin, the
Lobo
and Perdido Sand Trends in South Texas, Niobrara chalk in the DJ Basin and
coalbed methane in the San Juan Basin. While the majority of our prospects
will
be internally generated, we will, from time to time, participate in third-party
drilling opportunities.
Acquisition
Growth. We continually review opportunities to acquire producing
properties, undeveloped acreage and drilling prospects. We focus on
opportunities where we believe our reservoir management and operational
expertise will enhance the value and performance of acquired properties.
Acquisition targets will generally be in and around our major producing and
activity areas. We will also use our minor producing field ownerships as islands
of control and knowledge to make strategic acquisitions. Historically, our
management team has demonstrated success in oil and gas acquisitions and has
developed a significant oil and gas knowledge base in fields throughout the
United States.
Maintain
Technological Expertise. We intend to maintain the technological
expertise that helped us achieve a drilling success rate of 85% for the year
ended December 31, 2006, and helped us maximize field recoveries. We will
use advanced geological and geophysical technologies, detailed petrophysical
analyses, state-of-the-art reservoir engineering and sophisticated completion
and stimulation techniques to grow our reserves and production.
Endeavor
to be a Low Cost Producer. We will strive to minimize our
operating costs by concentrating our assets within geographic areas where we
can
capture operating efficiencies. This is particularly true in the Sacramento
Basin and South Texas where we are a dominant producer in each
region.
Maintain
Financial Flexibility. We intend to optimize unused borrowing
capacity under our revolving line of credit by periodically refinancing our
bank
debt in the capital markets when conditions are favorable. As of
December 31, 2006, we had $159.0 million available for borrowing under
our revolving line of credit. Additionally, we expect internally generated
cash
flow to provide additional financial flexibility, allowing us to pursue our
business strategy. We intend to actively manage our exposure to commodity price
risk in the marketing of our oil and natural gas production. As part of this
strategy and in connection with our credit facilities, we entered into natural
gas fixed-price swaps and costless collar transactions for a significant portion
of our expected production through 2009. We may enter into other agreements,
including fixed price, forward price, physical purchase and sales, futures,
financial swaps, option and put option contracts.
Calpine
Bankruptcy
On
December 20, 2005 Calpine and certain of its subsidiaries filed for protection
under federal bankruptcy laws in the United States Bankruptcy Court of the
Southern District of New York (the “Bankruptcy Court”). The filing
raises certain concerns regarding aspects of our relationship with Calpine
which
we will continue to monitor closely as the Calpine bankruptcy
proceeds.
As
to all
of these matters, see also “Risk Factors—Risks Relating to Our
Business—Calpine’s recent bankruptcy filing may adversely affect us in several
respects” in our Annual Report of Form 10-K for the year ended December 31,
2006, for a further discussion of the potential risks relating to Calpine’s
bankruptcy.
CRUDE
OIL AND NATURAL GAS OPERATIONS
Production
by Operating Area
The
following table presents certain information with respect to our production
data
for the period presented:
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For
the Year Ended December 31, 2006 (1)
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Natural
Gas
(Bcf)
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Oil
(MMBbls)
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Equivalents
(Bcfe)
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California
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11.4
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-
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11.5
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Lobo
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9.3
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-
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9.7
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Perdido
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4.0
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-
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4.2
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State
Waters
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1.1
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-
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1.1
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Gulf
of Mexico
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1.5
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0.3
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3.0
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Other
Onshore
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2.4
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0.2
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3.3
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Rocky
Mountains
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0.4
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-
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0.4
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Mid-Continent
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0.2
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-
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0.2
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30.3
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0.5
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33.4
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___________________
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(1)
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Excludes
properties not conveyed as part of the Acquisition of the domestic
oil and
natural gas properties of Calpine, as described in the footnotes
for
proved reserves below.
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Proved
Reserves
There
are
a number of uncertainties inherent in estimating quantities of proved reserves,
including many factors beyond our control, such as commodity pricing. Therefore,
the reserve information in this report represents only estimates. Reserve
engineering is a subjective process of estimating underground accumulations
of
oil and natural gas that can not be measured in an exact manner. The accuracy
of
any reserve estimate is a function of the quality of available data and of
engineering and geological interpretation and judgment. As a result, estimates
of different engineers may vary. In addition, results of drilling, testing
and
production subsequent to the date of an estimate may justify revising the
original estimate. Accordingly, initial reserve estimates are often different
from the quantities of oil and natural gas that are ultimately recovered. The
meaningfulness of such estimates depends primarily on the accuracy of the
assumptions upon which they were based. Except to the extent that we acquire
additional properties containing proved reserves or conduct successful
exploration and development activities, or both, our proved reserves will
decline as reserves are produced.
As
of
December 31, 2006, we had 407.8 Bcfe of proved oil and natural gas
reserves, including 390.2 Bcf of natural gas and 2,930 MBbls of oil and
condensate. Using prices as of December 31, 2006, (adjusted for basis and
quality differentials) the estimated standardized measure of discounted future
net cash flows was $721.7 million. The following table sets forth by operating
area a summary of our estimated net proved reserve information as of
December 31, 2006:
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Estimated
Proved Reserves at December 31, 2006 (1) (2) (3)
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Developed
(Bcfe)
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Undeveloped
(Bcfe)
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Total
(Bcfe)
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Percent
of
Total
Reserves
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California
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115.4
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37.2
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152.6
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37 | % | |||||||||||
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Lobo
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87.7
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83.7
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171.4
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42 | % | |||||||||||
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Perdido
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8.3
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11.6
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19.9
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5 | % | |||||||||||
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State
Waters
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2.2
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-
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2.2
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1 | % | |||||||||||
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Gulf
of Mexico
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13.8
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1.8
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15.6
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4 | % | |||||||||||
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Other
Onshore
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18.4
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6.6
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25.0
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6 | % | |||||||||||
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Rocky
Mountains
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15.0
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3.5
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18.5
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4 | % | |||||||||||
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Mid-Continent
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2.1
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0.5
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2.6
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1 | % | |||||||||||
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Total
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262.9
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144.9
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407.8
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100 | % | |||||||||||
___________________
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(1)
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These
estimates are based upon a reserve report prepared by Netherland
Sewell
using criteria in compliance with the SEC guidelines and excludes
23.4
Bcfe of proved oil and gas reserves with an SEC PV-10 value of $53.0
million pretax representing the total allocated value of wells and
the
associated leases described in footnote 2
below.
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(2)
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At
the July 2005 closing of the Acquisition, we withheld $68 million
for
properties (excluding that portion of the properties subject to the
preferential right) which Calpine agreed to transfer legal title
to us but
for which Calpine had not then secured consents to assign, which
the
parties believed at that time were required (“Non-Consent Properties”).
Subsequent analysis determined that a portion of these properties,
having
an allocated value withheld under the Purchase Agreement at closing
of $29
million, did not require such consent. Consents now have been received
for
the remaining properties as to which the allocated value under the
Purchase Agreement withheld at closing, was $39 million (“Cured
Non-Consent Properties”). We are prepared to pay Calpine the retained
portion of the original purchase price, upon our receipt from Calpine
of
record legal title on these properties, free of any encumbrance,
subject to appropriate adjustment for the net revenues through the
relevant pre-petition period related to the Cured Non-Consent Properties,
and Calpine’s performance of its obligations under the “further
assurances” provisions of the Purchase
Agreement.
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(3)
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Includes
properties subject to additional documentation or completion of
ministerial actions by federal or state agencies necessary to perfect
legal title issues discovered during routine post-closing analysis
after
the Acquisition of the domestic oil and natural gas business from
Calpine,
for which Calpine is contractually obligated to assist in
resolving.
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2006
Capital Expenditures
The
following table summarizes information regarding development and exploration
capital expenditures for the year ended December 31, 2006 (Successor), six
months ended December 31, 2005 (Successor), the six months ended
June 30, 2005 (Predecessor) and the capital expenditures for the year ended
December 31, 2004 (Predecessor).
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Successor
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Predecessor
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|||||||||||||||
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Year
Ended
December
31, 2006
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Six
Months Ended
December
31, 2005
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Six
Months Ended
June
30, 2005
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Year
Ended
December
31, 2004
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|||||||||||||
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(In
thousands)
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Capital
Expenditures by Operating Area:
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California
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$ |
39,691
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$ |
3,933
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$ |
4,572
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$ |
8,239
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Lobo
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51,911
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6,775
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2,020
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8,670
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Perdido
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25,971
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9,268
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12,441
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18,683
|
||||||||||||
|
Texas
State Waters
|
13,028
|
3,023
|
3,417
|
-
|
||||||||||||
|
Other
Onshore
|
10,207
|
10,831
|
2,300
|
8,207
|
||||||||||||
|
Gulf
of Mexico
|
17,958
|
9,369
|
4,556
|
4,174
|
||||||||||||
|
Rocky
Mountains
|
15,299
|
3,035
|
1,102
|
-
|
||||||||||||
|
Mid-Continent
|
3,371
|
317
|
220
|
300
|
||||||||||||
|
Leasehold
|
16,383
|
9,224
|
2,617
|
3,559
|
||||||||||||
|
New
acquisitions
|
35,105
|
5,524
|
-
|
-
|
||||||||||||
|
Delay
rentals
|
728
|
143
|
443
|
507
|
||||||||||||
|
Geological
and geophysical/seismic
|
3,748
|
5,659
|
513
|
199
|
||||||||||||
|
Total
capital expenditures (1)
|
$ |
233,400
|
$ |
67,101
|
$ |
34,201
|
$ |
52,538
|
||||||||
___________________
|
(1)
|
Capital
expenditures for the year ended December 31, 2006 (Successor)
excludes capitalized overhead costs of $3.4 million, capitalized
interest of $2.1 million and corporate other capitalized costs of
$1.7
million. The six months ended December 31, 2005 (Successor) excludes
capitalized interest of $0.6 million, corporate other capitalized
costs of
$1.6 million and capitalized overhead costs of $1.7 million.
Corporate other capitalized costs consist of costs related to IT
software/hardware, office furniture and fixtures and license transfer
fees. The six-month period ended June 30, 2005 (Predecessor) excludes
$(0.7) million of capitalized interest and $1.7 million of overhead.
The
amount for 2004 (Predecessor) excludes $1.3 million of capitalized
interest, $3.1 million of overhead, $10.0 million of compressor station
and gathering system expense and $1.4 million for acquisition properties.
Our total capital expenditures in 2004 of $52.5 million, including
these
exclusions, corresponds to 2004 total capital costs of $69 million
as
defined under Statement of Financial Accounting Standards (“SFAS”)
No. 19, “Financial Accounting and Reporting by Oil and Gas Producing
Companies” in the Supplemental Oil and Gas Disclosure under Item 8 of
our Annual Report on Form 10-K for the year ended December 31,
2006.
|
Operating
Data
The
following table presents certain information with respect to our production
and
operating data for the periods presented, all of which is domestic
production.
|
Successor-Consolidated
|
Predecessor-Combined
|
|||||||||||||||
|
Year
Ended
December
31, 2006
|
Six
Months Ended
December
31, 2005
|
Six
Months Ended
June
30, 2005
|
Year
Ended
December
31, 2004
|
|||||||||||||
|
(In
thousands, except per unit amounts)
|
||||||||||||||||
|
Production:
|
||||||||||||||||
|
Natural
gas (Bcf)
|
30.3
|
12.4
|
14.5
|
37.3
|
||||||||||||
|
Oil
(MBbls)
|
551.3
|
185.6
|
163.8
|
600.0
|
||||||||||||
|
Total
equivalents (Bcfe)
|
33.4
|
13.5
|
15.5
|
40.9
|
||||||||||||
|
Average
realized sales price per unit:
|
||||||||||||||||
|
Natural
gas price per Mcf
|
$ |
7.81
|
$ |
8.23
|
$ |
6.59
|
$ |
6.02
|
||||||||
|
Natural
gas price per Mcf excluding hedging
|
6.83
|
9.57
|
-
|
-
|
||||||||||||
|
Oil
price per Bbl
|
64.01
|
59.52
|
49.86
|
39.08
|
||||||||||||
|
Revenue
per Mcfe
|
$ |
8.14
|
$ |
8.38
|
$ |
6.70
|
$ |
6.06
|
||||||||
|
Expenses
per Mcfe
|
||||||||||||||||
|
Average
lease operating expense (1)
|
$ |
1.09
|
$ |
1.16
|
$ |
1.08
|
$ |
0.75
|
||||||||
|
Average
depreciation, depletion and amortization (excluding
impairments)
|
3.17
|
3.00
|
1.98
|
2.00
|
||||||||||||
|
Average
general and administrative
|
$ |
1.00
|
$ |
1.09
|
$ |
0.63
|
$ |
0.48
|
||||||||
___________________
|
(1)
|
Lease
operating expense for 2006 (Successor) includes workover expense,
ad
valorem taxes and insurance of $0.19 per Mcfe, $0.20 per Mcfe and
$0.04
per Mcfe, respectively. The six months ended December 31, 2005 (Successor)
includes workover expense, ad valorem taxes and insurance of $0.22
per
Mcfe, $0.25 per Mcfe and $0.04 per Mcfe, respectively. The high rate
of
workover expense relates to the workover of our High Island #A-442
well
and an aggressive rehabilitation program to boost production on existing
wells. The six months ended June 30, 2005 (Predecessor) includes
workover
expense, ad valorem taxes and insurance of $0.22 per Mcfe, $0.22
per Mcfe,
and $0.06 per Mcfe, respectively. Ad valorem taxes for the six months
ended June 30, 2005 (Predecessor) includes higher taxes in South
Texas and
a special reclamation tax in California. Lease operating expense
for 2004
(Predecessor) includes workover expense and ad valorem taxes of $0.04
per
Mcfe and $0.15 per Mcfe,
respectively.
|
Corporate
Information
We
were
incorporated in June 2005 as a Delaware corporation. Our principal executive
offices are located at 717 Texas, Suite 2800, Houston, TX 77002 and our
telephone number is (713) 335-4000. Our website is
http://www.rosettaresources.com.
THE
OFFERING
|
Common
stock offered by selling stockholders
|
50,000,000
shares
|
|
Common
stock to be outstanding after this offering
|
50,732,694
shares(1)
|
|
Dividend
policy
|
We
do not anticipate that we will pay cash dividends in the foreseeable
future. Our credit facilities restrict our ability to pay cash
dividends.
|
|
Use
of proceeds
|
We
will not receive any proceeds from the sale of the shares of common
stock
offered in this prospectus.
|
|
Risk
factors
|
For
a discussion of factors you should consider in making an investment,
see
“Risk Factors” below.
|
|
NASDAQ
symbol
|
ROSE
|
___________________
|
(1)
|
Includes
673,875 shares of our restricted common stock issued to employees
and
directors under our 2005 Long-Term Incentive Plan as of December
31, 2006,
and 50,396 shares of our common stock, which have been exercised
from a
total of 903,250 options to purchase our common stock issued under
our
2005 Long-Term Incentive Plan as of December 31, 2006. Certain of
the
shares of our restricted common stock and the unexercised options
are
subject to vesting requirements.
|
You
should carefully consider all of the information contained in or incorporated
by
reference into this prospectus from our Annual Report on Form 10-K for the
year
ended December 31, 2006 prior to investing in the common stock. In particular,
we urge you to carefully consider the information under “Risk Factors” starting
on page 13 of our Annual Report on Form 10-K for the year ended December 31,
2006 incorporated by reference into this prospectus so that you understand
the risks associated with an investment in our company and the common stock.
The
risks, contingencies and uncertainties relate to, among other matters, the
following:
|
—
|
the
timing and extent of changes in commodity prices, particularly
natural
gas;
|
|
—
|
various
drilling and exploration risks that may delay or prevent commercial
operation of new wells;
|
|
—
|
economic
slowdowns that can adversely affect consumption of oil and natural
gas by
businesses and consumers;
|
|
—
|
Calpine’s
bankruptcy;
|
|
—
|
uncertainties
that actual costs may be higher than
estimated;
|
|
—
|
factors
that impact the exploration of oil or natural gas resources, such
as the
geology of a resource, the total amount and costs to develop recoverable
reserves, and legal title, regulatory, natural gas administration,
marketing and operational factors relating to the extraction of
oil and
natural gas;
|
|
—
|
uncertainties
associated with estimates of oil and natural gas
reserves;
|
|
—
|
our
ability to access the capital markets on attractive terms or at
all;
|
|
—
|
refusal
by or inability of our current or potential counterparties or vendors
to
enter into transactions with us or fulfill their obligations to
us;
|
|
—
|
our
inability to obtain credit or capital in desired amounts or on
favorable
terms;
|
|
—
|
present
and possible future claims, litigation and enforcement
actions;
|
|
—
|
effects
of the application of regulations, including changes in regulations
or the
interpretation thereof;
|
|
—
|
availability
of processing and
transportation;
|
|
—
|
potential
for disputes with mineral lease and royalty owners regarding calculation
and payment of royalties, including basis of pricing, adjustment
for
quality, measurement and allowable costs and
expenses;
|
|
—
|
developments
in oil-producing and natural gas-producing
countries;
|
|
—
|
competition
in the oil and natural gas
industry;
|
|
—
|
adverse
weather conditions and other natural disasters which may occur
in areas of
the United States in which we have operations, including the Federal
waters of the Gulf of Mexico;
and
|
|
—
|
other
risks identified in this
prospectus.
|
Various
statements, other than statements of historical fact, included in this
prospectus, are forward-looking statements. In some cases, you can identify
a
forward-looking statement by terminology such as “may”, “could”, “should”,
“expect”, “plan”, “project”, “intend”, “anticipate”, “believe”, “estimate”,
“predict”, “potential”, “pursue”, “target” or “continue”, the negative of such
terms or other comparable terminology.
The
forward-looking statements contained in this prospectus are largely based on
our
expectations, which reflect estimates and assumptions made by our management.
These estimates and assumptions reflect our best judgment based on currently
known market conditions and other factors. Although we believe such estimates
and assumptions to be reasonable, they are inherently uncertain and involve
a
number of risks and uncertainties that are beyond our control. In addition,
management’s assumptions about future events may prove to be inaccurate.
Management cautions all readers that the forward-looking statements contained
in
this prospectus are not guarantees of future performance, and we cannot assure
any reader that such statements will be realized or the forward-looking events
and circumstances will occur. Actual results may differ materially from those
anticipated or implied in the forward-looking statements due to the factors
listed in the “Risk Factors” section and elsewhere in this prospectus. All
forward-looking statements speak only as of the date of this prospectus. We
do
not intend to publicly update or revise any forward-looking statements as a
result of new information, future events or otherwise. These cautionary
statements qualify all forward-looking statements attributable to us, or persons
acting on our behalf.
We
will
not receive any of the proceeds from the sale of the shares of common stock
offered by this prospectus. Any proceeds from the sale of the shares by this
prospectus will be received by the selling stockholders.
We
do not
expect to declare or pay any cash or other dividends in the foreseeable future
on our common stock, as we intend to use cash flow generated by operations
to
expand our business. Our credit facilities restrict our ability to pay cash
dividends on our common stock, and we may also enter into credit agreements
or
other borrowing arrangements in the future that restrict our ability to declare
or pay cash dividends on our common stock. As discussed below in
“Capitalization”, our Board of Directors has the authority to issue preferred
stock and to fix dividend rights that may have preference to common
shares.
Our
company was formed in June 2005. We began active oil and natural gas operations
in July 2005 following the Acquisition. The funding for the Acquisition was
through a private placement of 45,312,500 shares of our common stock to
qualified institutional buyers, and non-U.S. persons in transactions exempt
from
registration under the Securities Act. We also used borrowings of $325 million
under our credit facilities to complete the Acquisition. Additionally, we sold
4,687,500 shares of our common stock in an exempt transaction to fulfill the
over-allotment option we granted to our underwriter. The net proceeds from
the
exercise of the over-allotment option (after paying transaction fees) were $70
million. A significant portion of these proceeds were used to repay $60 million
of debt under our new revolving credit facility in July 2005, and the remaining
amount was used for unspecified operating costs of our oil and natural gas
properties and general and administrative costs of our oil and natural gas
operations. Following the closing of the Acquisition and our receipt of these
additional proceeds, we increased our development and acquisition
activities.
We
have
reserved a total of 3,000,000 shares of our common stock for issuance to
employees pursuant to our 2005 Long-Term Incentive plan. Under this
plan, as of December 31, 2006, we had issued 673,875 shares of common stock
as
restricted stock grants and 903,250 options to purchase our common stock, of
which 50,396 shares of our common stock have been acquired by exercise of
options.
The
Board
of Directors has the authority to issue up to 5,000,000 shares of preferred
stock in one or more series and to fix the rights, preferences, privileges
and
restrictions thereof, including dividend rights, dividend rates, conversion
rates, voting rights, terms of redemption, redemption prices, liquidation
preferences and the number of shares constituting any series or the designation
of that series, which may be superior to those of the common stock, without
further vote or action by the stockholders. The issuance of shares of the
preferred stock by our Board of Directors as described above may adversely
affect the rights of the holders of common stock. For example, preferred stock
issued by us may rank prior to the common stock as to dividend rights,
liquidation preference or both may have full or limited voting rights, and
may
be convertible into shares of common stock. Accordingly, the issuance of shares
of preferred stock may discourage bids for our common stock or may otherwise
adversely affect the market price of our common stock. As of the date of this
prospectus, no preferred was stock outstanding.
The
following table sets forth our cash and capitalization as of December 31, 2006,
which reflects our private placement offering in July 2005, the borrowings
under
our credit facilities, the Acquisition and the application of the net proceeds.
You should refer to “Managements Discussion and Analysis of Financial Condition
and Results of Operations” in our Annual Report on Form 10-K for the year ended
December 31, 2006 and the annual audited Combined/Consolidated Financial
Statements and related notes thereto included in our Annual Report on Form
10-K
for the year ended December 31, 2006 in evaluating the material presented
below.
|
As
of December 31, 2006
|
||||
|
(In
thousands)
|
||||
|
Cash
and cash equivalents
|
$ |
62,780
|
||
|
Long-term
debt
|
$ |
240,000
|
||
|
Total
stockholders’ equity
|
$ |
822,289
|
||
|
Total
capitalization
|
$ |
1,062,289
|
||
The
following table sets forth our selected financial data. For the year ended
December 31, 2006 (Successor) and the six months ended December 31, 2005
(Successor), the financial data has been derived from the consolidated financial
statements of Rosetta Resources Inc. For the six months ended June 30, 2005
(Predecessor) and for the years ended December 31, 2004, 2003 and 2002
(Predecessor), the financial data was derived from the combined financial
statements of the domestic oil and natural gas properties of Calpine and are
presented on a carve-out basis to include the historical operations of the
domestic oil and natural gas business. You should read the following selected
historical consolidated/combined financial data in connection with “Management’s
Discussion and Analysis of Financial Condition and Results of Operation” and the
audited Consolidated/Combined Financial Statements and related notes included
in
our Annual Report on From 10-K for the year ended December 31,
2006.
Additionally,
the historical financial data reflects successful efforts accounting for oil
and
natural gas properties for the Predecessor periods described above and the
full
cost method of accounting for oil and natural gas properties effective
July 1, 2005 for the Successor periods. In addition, Calpine adopted on
January 1, 2003, SFAS No. 123, “Accounting for Stock-Based Compensation”,
as amended by SFAS No. 148, “Accounting for Stock-Based
Compensation—Transition and Disclosure” (SFAS No. 123”) to measure the cost
of employee services received in exchange for an award of equity instruments,
whereas we adopted the intrinsic value method of accounting for stock options
and stock awards pursuant to Accounting Principles Board Opinion No. 25,
“Stock Issued to Employees” (“APB No. 25”) effective July 2005, and as
required have adopted the guidance for stock-based compensation under SFAS
No.
123 (revised 2004) “Share-Based Payments” (“SFAS No. 123R”) effective January 1,
2006. The selected historical results are not necessarily indicative
of results to be expected in future periods.
|
Successor-Consolidated
|
Predecessor
- Combined
|
|||||||||||||||||||||||
|
Year
Ended
December
31,
|
Six
Months Ended
December
31,
|
Six
Months Ended
June
30,
|
Year
Ended
December
31,
|
|||||||||||||||||||||
|
2006
|
2005
|
2005
|
2004
|
2003
|
2002
|
|||||||||||||||||||
|
(In
thousands, except per share data)
|
||||||||||||||||||||||||
|
Operating
Data:
|
||||||||||||||||||||||||
|
Total
revenue
|
$ |
271,763
|
$ |
113,104
|
$ |
103,831
|
$ |
248,006
|
$ |
279,916
|
$ |
157,372
|
||||||||||||
|
Income
(loss) from continuing operations (1)
|
44,608
|
17,535
|
18,681
|
(78,836 | ) |
66,879
|
1,484
|
|||||||||||||||||
|
Net
income (loss)
|
44,608
|
17,535
|
18,681
|
(10,396 | ) |
71,440
|
(168 | ) | ||||||||||||||||
|
Income
per share:
|
||||||||||||||||||||||||
|
Income
(loss) from continuing operations
|
||||||||||||||||||||||||
|
Basic
|
0.89
|
0.35
|
0.37
|
(1.58 | ) |
1.34
|
0.03
|
|||||||||||||||||
|
Diluted
|
0.88
|
0.35
|
0.37
|
(1.58 | ) |
1.33
|
0.03
|
|||||||||||||||||
|
Net
income (loss)
|
||||||||||||||||||||||||
|
Basic
|
0.89
|
0.35
|
0.37
|
(0.21 | ) |
1.43
|
-
|
|||||||||||||||||
|
Diluted
|
0.88
|
0.35
|
0.37
|
(0.21 | ) |
1.42
|
-
|
|||||||||||||||||
|
Cash
dividends declared per common share
|
-
|
-
|
-
|
-
|
-
|
-
|
||||||||||||||||||
|
Balance
Sheet Data (At the end of the Period)
|
||||||||||||||||||||||||
|
Total
assets
|
1,219,405
|
1,119,269
|
-
|
656,528
|
990,893
|
940,619
|
||||||||||||||||||
|
Long-term
debt
|
240,000
|
240,000
|
-
|
-
|
507
|
684
|
||||||||||||||||||
|
Stockholders'
equity/owner's net investment
|
822,289
|
715,423
|
-
|
223,451
|
233,847
|
162,407
|
||||||||||||||||||
_______________________
|
(1)
|
Includes
a $202.1 million impairment for the year ended December 31,
2004.
|
The
following unaudited pro forma statement of operations for the year ended
December 31, 2005 has been prepared based on the historical
Consolidated/Combined Statements of Operations of Rosetta Resources Inc. for
the
six months ended December 31, 2005 (Successor) and the six months ended
June 30, 2005 (Predecessor) incorporated herein by reference, to reflect
the Acquisition of Calpine’s domestic oil and natural gas business, the private
equity offerings completed in July 2005, borrowings under our credit facilities
and related assumptions set forth in the accompanying footnotes.
On
July 7, 2005, we acquired the oil and natural gas business of Calpine for
approximately $910 million. The Acquisition was funded with the issuance of
common stock totaling $725 million and borrowings of $325 million under our
credit facilities. Our credit facilities, as amended, consist of a four-year
senior secured revolving line of credit of up to $400 million and a five-year
$75 million senior second lien term loan. The revolving line of credit, as
amended, provides for a borrowing base of $325 million subject to certain
adjustments and hedging requirements. To secure the borrowings, we have pledged
100% of the equity of our domestic subsidiaries, caused such subsidiaries to
guarantee such debt and have provided mortgages covering approximately 80%
of
the total present value of our proved reserves.
At
the
time of the Acquisition, we did not obtain required third party consents or
waivers of preferential purchase rights necessary in order to affect transfer
of
title for certain properties. At July 7, 2005, we withheld from Calpine $75
million of the purchase price with respect to these properties. These funds
are
held by us and despite Calpine’s bankruptcy filing management believes that it
remains highly likely that conveyance of these properties will occur. Upon
conveyance, such additional purchase price will be paid to Calpine, and will
be
incremental to the preliminary purchase price of $910 million. However, we
have
excluded the results of operations for these properties from our pro forma
financial data for the year ended December 31, 2005. If the assignment of
these properties does not occur, the portion of the purchase price we held
back
pending obtaining consent of these properties will be available to us for
general corporate purposes or to acquire other properties.
The
unaudited pro forma statement of operations for the year ended December 31,
2005 assumes the acquisition of Calpine’s domestic oil and natural gas business
and the related financings occurred on January 1, 2004. We believe the
assumptions used provide a reasonable basis for presenting the significant
effects directly attributable to such transactions. The unaudited pro forma
financial statements do not purport to represent what our results of operations
would have been if such transactions had occurred on such date. These unaudited
pro forma financial statements should be read in conjunction with the historical
Consolidated/Combined Financial Statements of Rosetta Resources Inc.(Successor
and Predecessor), included in our Annual Report on Form 10-K for the year ended
December 31, 2006, which is incorporated by reference in this
prospectus.
|
Successor
Six
months ended December 31, 2005
|
Predecessor
Six
months ended June 30, 2005
|
Pro
Forma Adjustments
|
Pro
Forma Historical
Year
Ended December 31, 2005
|
|||||||||||||
|
(In
thousands, except per share date)
|
||||||||||||||||
|
Revenues:
|
||||||||||||||||
|
Oil
sales
|
$ |
11,046
|
$ |
8,166
|
$ | (139 | )(g) | $ |
19,073
|
|||||||
|
Natural
gas sales
|
102,044
|
13,637
|
72,657 | (a)(g) |
188,338
|
|||||||||||
|
Natural
gas sales to affiliate
|
-
|
81,952
|
(81,952 | )(a) |
-
|
|||||||||||
|
Other
revenue
|
14
|
76
|
90
|
|||||||||||||
|
Total
revenue
|
113,104
|
103,831
|
207,501
|
|||||||||||||
|
Costs
and expenses:
|
||||||||||||||||
|
Lease
operating expense
|
15,674
|
16,629
|
(1,129 | )(g) |
31,174
|
|||||||||||
|
Production
taxes
|
3,975
|
2,755
|
(59 | )(g) |
6,671
|
|||||||||||
|
Depreciation,
depletion and amortization
|
40,500
|
30,679
|
8,636 | (b)(g) |
79,815
|
|||||||||||
|
Exploration
and dry hole costs
|
-
|
4,317
|
(4,317 | )(b) |
-
|
|||||||||||
|
Treating
and transportation costs
|
2,665
|
1,998
|
815 | (a)(g) |
5,478
|
|||||||||||
|
Affiliated
marketing fees
|
-
|
913
|
(913 | )(a) |
-
|
|||||||||||
|
General
and administrative costs
|
14,687
|
9,677
|
- | (e) |
24,364
|
|||||||||||
|
Total
costs and expenses
|
77,501
|
66,968
|
147,502
|
|||||||||||||
|
Operating
income
|
35,603
|
36,863
|
59,999
|
|||||||||||||
|
Other
income expense:
|
||||||||||||||||
|
Interest
income expense, net
|
6,379
|
6,479
|
3,361 | (c)(b) |
16,219
|
|||||||||||
|
Other
income expense, net
|
152
|
207
|
359
|
|||||||||||||
|
Total
other income expense
|
6,531
|
6,686
|
16,578
|
|||||||||||||
|
Income
before provision for income taxes
|
29,072
|
30,177
|
43,421
|
|||||||||||||
|
Provision
for income taxes
|
11,537
|
11,496
|
(6,049 | )(d) |
16,984
|
|||||||||||
|
Net
income
|
$ |
17,535
|
$ |
18,681
|
$ |
26,437
|
||||||||||
|
Earnings
per share
|
||||||||||||||||
|
Basic
|
$ |
0.35
|
$ |
0.37
|
$ |
0.53
|
||||||||||
|
Diluted
|
$ |
0.35
|
$ |
0.37
|
$ |
0.53
|
||||||||||
|
Weighted
average shares outstanding:
|
||||||||||||||||
|
Basic
|
50,000 | (f) | 50,000 | (f) | 50,000 | (f) | ||||||||||
|
Diluted
|
50,160 | (f) | 50,160 | (f) | 50,160 | (f) | ||||||||||
|
(a)
|
Adjustment
to reflect change of the relationship from affiliates to non-affiliates
due to the Acquisition.
|
|
(b)
|
Adjustment
to reflect depreciation, depletion and amortization using the unit
of
production method under the full cost method of accounting, as calculated
using the new fair market value assigned to property and equipment.
Under
the full cost method, all costs incurred in exploring for, acquiring,
and
developing oil and natural gas properties are capitalized to a full
cost
pool, whether or not the activities to which they apply are successful,
inclusive of exploration and dry hole costs. Internal general and
administrative costs are also capitalized if they can be directly
identified with acquisition, exploration and development
activities.
|
|
(c)
|
Adjustment
to reflect interest on our senior secured revolving credit facility
and
second lien term loan based on LIBOR of 3.10%. This rate is based
on the
average actual LIBOR rate for the six months ended June 30, 2005
(Predecessor). This rate was used for calculating pro forma interest
expense for the six months ended June 30, 2005 compared to the actual
LIBOR rate ranging from 1.125% to 3.13% for the same period. During
the
periods covered by these unaudited pro forma combined financial
statements, the senior secured revolving credit facility bore interest
at
2.125% over the LIBOR rate and the second lien term loan bore interest
at
5.00% over the LIBOR rate. For every 1/8 percent change in the interest
rate for these borrowings, interest expense for the twelve months
ended
December 31, 2005 would change by approximately $0.3
million.
|
|
(d)
|
Adjustment
to reflect a provision for income taxes based on the Pro Forma Financial
Statements at the statutory rate of 38.1% at June 30,
2005.
|
|
(e)
|
Expense
amounts in our combined historical financial statements are based
on stock
based compensation granted to our employees by Calpine. Stock options
are
granted at an option price equal to the quoted market price at the
date of
the grant or award, In 2002, Calpine applied APB No. 25, “Stock Issued to
Employees”, whereby no compensation expense was recorded in the 2002
combined financial statements as the stock options were granted at
an
exercise price equal to the fair market value of Calpine’s stock on the
date of the grant.
|
On
January 1, 2003, Calpine prospectively adopted using the fair market value
method of accounting for stock based employee compensation pursuant to
SFAS No. 123, Rosetta adopted the intrinsic value method of
accounting for stock options effective July 1, 2005, and prospectively
adopted the guidance for stock based compensation under SFAS No. 123R effective
January 1, 2006.
This
adjustment reflects issuance of common stock resulting from the Acquisition
and
future vesting of options on common stock as accounted for under the APB,
whereby no compensation expense is recognized in the period that the grants
were
awarded, as the option price was equal to the market price at the date of grant
of the award. The stock options outstanding and the related obligations were
retained by Calpine in the Acquisition.
|
(f)
|
The
weighted average shares outstanding for computing basic earnings
per share
were 50,000,000 shares for the year ended December 31, 2005. The
weighted average shares outstanding from computing diluted earnings
per
share were 50,160,481 for the year ended December 31,
2005.
|
|
Weighted
average number of common shares outstanding:
|
||||
|
Basic
|
50,000,000
|
|||
|
Effect
of dilution:
|
||||
|
Stock
options
|
31,176
|
|||
|
Restricted
stock
|
129,305
|
|||
|
Weighted
average number of common and potential common
shares—Diluted
|
50,160,481
|
|||
|
(g)
|
This
adjustment reflects the elimination of results of operations for
properties which require third party consents or waivers of preferential
purchase rights necessary in order to affect transfer of title. At
July 7, 2005, we retained $75 million of the purchase price with
respect to these properties. These funds are held by us and, as a
result
of Calpine’s bankruptcy filing, it remains uncertain if and when this will
occur. Consequently, we have excluded the results of operations for
these
properties from our pro forma financial data for the year ended
December 31, 2005. If the assignment of these properties does not
occur, the portion of the purchase price we held back pending obtaining
consent will be available to us for general corporate purposes or
to
acquire other properties.
|
Overview
On
July 7, 2005, we completed a private offering of 45,312,500 shares of our
common stock exempt from registration under the Securities Act for aggregate
consideration of $725 million or $16.00 per share. We used the net proceeds
from
the offering and borrowings of $325 million under our credit facilities to
purchase Calpine’s domestic oil and natural gas exploration and production
business. In connection with that offering, on July 13, 2005, we sold an
additional 4,687,500 shares of our common stock in an exempt transaction to
fulfill the over-allotment option we granted for $75 million before fees, also
at $16.00 per share. The net proceeds generated from the exercise of our
over-allotment option were used to repay $60 million of debt under our new
revolving credit facility in July 2005 and the remaining amount was used for
unspecified operating costs of our oil and natural gas properties and general
and administrative costs of our oil and natural gas operations. Following the
closing of our Acquisition and our receipt of these additional proceeds, we
increased our development and acquisition activities.
Prior
to
our separation from Calpine on July 7, 2005, the domestic oil and natural gas
business purchased by Rosetta from Calpine was wholly owned by Calpine. Rosetta
was formed by Calpine in June 2005 to acquire all of Calpine’s domestic oil and
natural gas business and engage in a sale of all its equity to investors to
fund
a large portion of the purchase price. We acquired Calpine’s domestic oil and
natural gas business in a series of steps in which we acquired subsidiaries
of
Calpine that owned the domestic oil and natural gas business. For federal income
tax and financial accounting purposes, we have treated the Acquisition as an
asset purchase. Accordingly, we have stepped up the tax basis and book basis
of
the purchased assets to the purchase price. This basis has been allocated among
the assets acquired and liabilities assumed based on their fair market
values.
The
structure of the transaction was determined by senior management of Calpine
and
did not directly involve any current members of Rosetta’s management team.
During this process, Calpine did consult with certain members of Rosetta’s
management, as necessary. Thus, prior to the sale of 100% of the equity of
Rosetta to a group of sophisticated investors on July 7, 2005, Rosetta was
wholly owned and controlled by Calpine, and, accordingly, the terms of the
purchase agreement, as well as the terms of the related Rosetta equity offering,
were determined by Calpine at the direction of its senior management and with
the advice of Calpine’s various outside advisors, including advice as to market
terms provided by Friedman, Billings, Ramsey & Co., Inc., investment bankers
(“FBR”), as initial purchaser of, and placement agent for, Rosetta’s
equity.
A
primary
objective of Calpine in selling its domestic oil and natural gas business was
to
maximize its proceeds from the sale of the business and utilize the proceeds
to
reduce Calpine’s indebtedness and for other corporate purposes. The equity
interests in Rosetta, which provided a large portion of the funds to complete
the Acquisition, were purchased by sophisticated investors who conducted,
directly and through their advisors, substantial due diligence as to Rosetta
and
the business we acquired from Calpine. Management of Rosetta, while not directly
involved in negotiations for the sale of the business, was advised that Calpine
pursued a number of opportunities to sell the business, and ultimately
determined that the structure by which Rosetta was formed and funded produced
the best return available to Calpine.
Calpine’s
secured lenders, who held mortgage liens on the domestic oil and natural gas
properties, voluntarily released their liens against the business acquired
by
Rosetta on July 7, 2005, so that Rosetta could acquire the business free and
clear of all liens in favor of those secured creditors. Rosetta was thus able
to
provide a new first lien to its new secured, independent creditors at closing.
Although Rosetta’s management was not involved in all of the actions and
decisions made by Calpine in this process, Rosetta believes Calpine followed
customary procedures and received appropriate advice in coming to the conclusion
that the transaction with Rosetta was the most appropriate way to receive the
best value at the time for the domestic oil and natural gas business. In
addition, Calpine represented to Rosetta that it was solvent at the time of
the
sale of the business to Rosetta.
Management
of Rosetta believes that the price paid by Rosetta for the business acquired
from Calpine was set primarily by market forces, as further discussed below.
The
structure of the transaction, as presented to the sophisticated investors,
was
that the investors would acquire 100% of the equity of Rosetta, which would
include specified, disclosed properties and assets being acquired by Rosetta
from Calpine, subject to specific, disclosed secured indebtedness of $325
million. Thus, through market action, in a process similar to the establishment
of a market price for equities in a public offering of equity, management of
Rosetta believes that the price for the Rosetta equity, and thus the purchase
price for Calpine’s domestic oil and natural gas business now owned by Rosetta,
was negotiated at arm’s length between senior management of Calpine, the
sophisticated investors, and FBR as the initial purchaser and placement agent
of
Rosetta’s equity.
In
connection with the transaction, we entered into several agreements with Calpine
or Calpine’s subsidiaries, including transition agreement and natural gas
contracts. Descriptions of these agreements are discussed below.
Structuring
the Acquisition Transaction
Before
making a final decision on the structure or price of the Acquisition, Calpine
marketed its domestic oil and natural gas business to potential purchasers
over
a period of months and considered a number of alternatives to maximize its
financial return from the properties. After conducting this process and
following consultations with its financial advisors Calpine ultimately concluded
that the structure that would generate the highest and best sales price for
the
properties was through the sale of 100% of the equity of a newly created
subsidiary that would own the properties, that new subsidiary being Rosetta.
The
Acquisition was structured as a sale by Calpine of its 100% equity interest
in
Rosetta, and the consummation at closing of a series of agreements with Rosetta
pursuant to which Rosetta agreed to pay Calpine the net proceeds of the sale
of
all of Rosetta’s equity interests in a private offering to a large group of
qualified institutional buyers, plus $325 million in proceeds received from
debt
financing by Rosetta. In connection with the sale of the equity, Calpine agreed
at closing to contribute all of its domestic oil and natural gas business to
Rosetta. The net effect of the structure of the transaction was that the
purchase price paid to Calpine for the properties was established through the
market mechanisms inherent in the offering of the equity of Rosetta. In effect,
the purchasers of the equity, who were sophisticated investors acting of their
own free will, established the purchase price ultimately received by Calpine.
Calpine was under no commitment to transfer the properties to Rosetta or sell
the equity until the pricing and closing of the equity offering. Accordingly,
Calpine was able to continue to seek the highest price obtainable for these
assets up to the date of closing, at whatever means would maximize its return
on
the properties. Ultimately, Calpine determined after consultation with its
various financial and other advisors, its management and its Board of Directors,
that the transfer to Rosetta and the proceeds from the sale of Rosetta’s equity
along with $325 million in proceeds received from debt financing by Rosetta,
as
outlined above, resulted in the best price obtainable by Calpine for these
assets.
Calpine
was first introduced to this structure by FBR in February 2005 as one of the
potential forms of transaction for Calpine to realize the value in its domestic
oil and natural gas business. From February 2005 until closing on July 7, 2005,
Calpine, its management and financial advisors continued to explore various
alternative options to the Acquisition. Calpine and Rosetta subsequently engaged
FBR to complete Rosetta’s equity offering and the Acquisition.
After
determining that Rosetta could obtain financing of $375 million with respect
to
the properties, management of Rosetta and Calpine agreed that the debt proceeds
to be paid to Calpine would be set at $325 million, leaving $50 million,
together with the net proceeds from the production and sale of hydrocarbons
from
the properties from May 1, 2005 through the date of closing, as working capital
for Rosetta going forward . Based on its prior marketing efforts and in
discussions with its financial advisors, Calpine sought a minimum gross proceeds
from the sale of the properties of $1 billion, before expenses and closing
adjustments but after underwriter’s discount. Immediately prior to the closing
of the Acquisition, the gross proceeds from Rosetta’s sale of common stock and
from the issuance of indebtedness equaled $1.05 billion, which was used to
complete the Acquisition and to pay for closing costs and expenses.
Additionally, Rosetta withheld from Calpine approximately $75 million for
properties not transferred at the initial closing on July 7, 2005, which were
intended to be transferred at a subsequent closing upon receipt of record legal
title. Calpine’s recent bankruptcy has caused a delay in closing these
subsequent transfers. See “Management’s Discussion and Analysis of Financial
Condition and Results of Operations—Liquidity and Capital Resources” of our
Annual Report on Form 10-K for the year ended December 31, 2006 for a
description of our credit facilities utilized to complete the
transaction.
To
effect
the equity placement, Calpine and Rosetta prepared appropriate offering
documents to provide to potential investors. The offering documents included
a
full description of the properties Rosetta would acquire as well as the modified
roll forward sensitivity estimates prepared by Netherland Sewell at
April 30, 2005, for the oil and natural gas properties and the debt
structure and amount of debt proceeds to be paid to Calpine at closing. The
marketing of the Rosetta equity was directed to sophisticated and knowledgeable
investors with substantially all the shares being purchased by qualified
institutional buyers who own and invest a minimum of $100 million in securities
of unaffiliated issuers and non-US purchasers. All potential investors were
provided an opportunity to participate in “road show” presentations, which
included members of management of Rosetta, and the opportunity to ask questions
concerning the Acquisition and to have access to and review any additional
information regarding the properties and the terms of the Acquisition. Several
of the investors, including some of the large investors in Rosetta, participated
in due diligence meetings in both Denver, Colorado and Houston, Texas along
with
key members of Rosetta’s management.
Following
an extensive offering process and in response to subscriptions of significant,
sophisticated investors, Calpine and Rosetta accepted an offering price of
$16
per share of stock, or a gross aggregate of $725 million. The proceeds of the
equity offering, after deducting certain agreed closing payments and
adjustments, together with $325 million of debt proceeds, were paid by Rosetta
to Calpine to complete the obligations relating to the transfer of the oil
and
natural gas properties to Rosetta. We
believe that the process followed in the transfer by Calpine of its domestic
natural gas and oil business as described above resulted in Calpine receiving
fair value for its properties. The process included a number of financial
advisors for Calpine and was a process conducted over several months, with
a
wide range of options, including asset sales in total or by region to one or
more third party purchasers, pursued to achieve the highest available price
at
that time for the assets. The structuring of the process and the establishment
of the purchase price pursuant to which we acquired the business were designed,
in large measure, to permit market forces, between a sophisticated corporate
seller and sophisticated institutional buyers, to establish a fair price, based
on thorough knowledge by both the purchasers and the seller of all material
facts and circumstances, the knowledge of prices being paid in comparable
transactions and the equal knowledge of the pricing and prospects for oil and
gas activities at that time. Following the date of the Acquisition, commodity
prices for oil and natural gas have risen. However, the standard for determining
the fair value of the transaction requires that the fair value be determined
at
the date of the transaction and not based on unforeseeable and possible
unsustainable spikes in commodity prices. We are confident that a fair value
for
our transaction both at the effective date and the closing date was achieved
for
all the reasons set out above.
Calpine
Bankruptcy
Calpine
Corporation and certain of its subsidiaries filed for protection under the
federal bankruptcy laws in the Bankruptcy Court on December 20, 2005.
The
filing raises certain concerns regarding aspects of our relationship with
Calpine which we will closely monitor as the Calpine bankruptcy proceeds. See
further discussion of our concerns under Item 1A. Risk Factors in our Annual
Report on Form 10-K for the year ended December 31, 2006.
Transfers
of Legal Title Pending at Calpine’s Bankruptcy
At
the
closing of the Acquisition on July 7, 2005, we retained approximately $75
million of the purchase price in respect to Non-Consent Properties identified
by
Calpine at the time of the Acquisition as requiring third party consents or
waivers of preferential rights to purchase that were not received before
closing. Legal title for those Non-Consent Properties was not delivered at
the
closing. Subsequent analysis determined that a portion of the Non-Consent
Properties, with an approximate allocation value of $29 million under the
Purchase Agreement did not require consents or waivers. For that portion of
the
Non-Consent Properties for which third party consents were in fact required
(having an approximate value of $39 million under the Purchase Agreement) and
for which we obtained the required consents or waivers, as well as for all
Non-Consent Properties that did not require consents or waivers, we believe
that
Calpine was and is obligated to have transferred to us the record legal title,
free of any mortgages and other liens.
The
approximate allocated value under the Purchase Agreement for the portion of
the
Non-Consent Properties subject to a third party’s preferential right to purchase
is $7.4 million. We have retained $7.1 million of the purchase price under
the
Purchase Agreement for the Non-Consent Properties subject to a third party’s
preferential right to purchase, and, in addition, a post-closing adjustment
is
required to credit us for approximately $0.3 million for a property which was
transferred to us but will be transferred to the appropriate third party should
it properly exercise its preferential purchase right and upon Calpine’s
performance of its remaining obligations under the Purchase
Agreement.
We
believe all conditions precedent for our receipt of record title, free of any
mortgages or other liens, for substantially all of the Non-Consent Properties
(excluding that portion of these properties for which a third party’s
preferential right to purchase was properly exercised) were satisfied earlier,
and certainly no later than December 15, 2005, when we tendered once again
the
amounts necessary to conclude the settlement of the Non-Consent
Properties.
We
believe we are the equitable owner of each of the Non-Consent Properties for
which Calpine was and is obligated to have transferred to us the record legal
title and that such properties are not part of Calpine’s bankruptcy estate. Upon
our receipt from Calpine of record legal title, free of any mortgages or other
liens, to these Non-Consent Properties and Calpine’s performance or its further
assurances required to eliminate any open issues on title to the remaining
properties discussed below, we are prepared to pay Calpine approximately $68
million, subject to appropriate adjustment for the associated net revenues
and
expenses through December 15, 2005 and performance of Calpine’s obligations
under the “further assurances” provisions of the Purchase and Sale Agreement.
Our statement of operations for the year ended December 31, 2006 and six months
ended December 31, 2005 does not include any net revenues or production from
any
of the Non-Consent Properties, or those properties subject to preferential
rights.
If
Calpine does not provide us with record legal title, free of any mortgages
for
all of these properties and other liens, to any of the Non-Consent Properties
(excluding that portion of these properties subject to a validly exercised
third
party’s preferential right to purchase), we will have a total of approximately
$68 million available to us for general corporate purposes, including for the
purpose of acquiring additional properties. We also have approximately $7.1
million, previously withheld for that portion of the Non-Consent Properties
subject to a third party’s preferential right to purchase, which will also be
available to us for general corporate purposes, including for the purpose of
acquiring additional properties should that third party properly exercise their
preferential rights.
In
addition, as to certain of the other oil and natural gas properties we purchased
from Calpine in the Acquisition and for which payment was made on July 7, 2005,
we will seek additional documentation from Calpine to eliminate any open issues
in our title or resolve any issues as to the clarity of our ownership. Requests
for additional documentation are customary in connection with transactions
similar to the Acquisition. In the Acquisition, certain of these properties
require ministerial governmental action approving us as qualified assignee
and
operator, which is typically required even though in most cases Calpine has
already conveyed the properties to us free and clear of mortgages and liens
by
Calpine’s creditors. As to certain other properties, the documentation delivered
by Calpine at closing under the Purchase Agreement was incomplete. We remain
hopeful that Calpine will work cooperatively with us to secure these ministerial
governmental approvals and to accomplish the curative corrections for all of
these properties. In addition, as to all properties acquired by us in the
Acquisition, Calpine contractually agreed to provide us with such further
assurances as we may reasonably request. Nevertheless, as a result of Calpine’s
bankruptcy filing, it remains uncertain as to whether Calpine will respond
cooperatively. If Calpine does not fulfill its contractual obligations and
does
not complete the documentation necessary to resolve these issues, we will pursue
all available remedies, including but not limited to a declaratory judgment
to
enforce our rights and actions to quiet title. After pursuing these matters,
if
we experience a loss of ownership with respect to these properties without
receiving adequate consideration for any resulting loss to us, an outcome our
management considers to be remote, then we could experience losses which could
have a material adverse effect on our financial condition, statement of
operations and cash flows.
On
June
29, 2006, Calpine filed a motion in connection with its pending bankruptcy
proceeding in the Bankruptcy Court seeking the entry of an order authorizing
Calpine to assume certain oil and natural gas leases Calpine has previously
sold
or agreed to sell to us in the Acquisition, to the extent those leases
constitute “unexpired leases of non-residential real property” and were not
fully transferred to us at the time of Calpine’s filing for bankruptcy.
According to this motion, Calpine filed it in order to avoid the automatic
forfeiture of any interest it may have in these leases by operation of a
statutory deadline. Calpine’s motion did not request that the Bankruptcy Court
determine whether these properties belong to us or Calpine, but we understand
it
was meant to allow Calpine to preserve and avoid forfeiture under the Bankruptcy
Code of whatever interest Calpine may possess, if any, in these oil and natural
gas leases. We dispute Calpine’s contention that it may have an interest in any
significant portion of these oil and natural gas leases and intend to take
the
necessary steps to protect all of our rights and interest in and to the leases.
On July 7, 2006, we filed an objection in response to Calpine’s motion, wherein
we asserted that oil and natural gas leases constitute interests in real
property that are not subject to “assumption” under the Bankruptcy Code. In the
objection we also requested that (a) the Bankruptcy Court eliminate from the
order certain Federal offshore leases from the Calpine motion because these
properties were fully conveyed to us in July 2005, and the Minerals Management
Service has subsequently recognized us as owner and operator of all but three
of
these properties, and (b) any order entered by the Bankruptcy Court be without
prejudice to, and fully preserve our rights, claims and legal arguments
regarding the characterization and ultimate disposition of the remaining
described oil and natural gas properties. In our objection, we also urged the
Bankruptcy Court to require the parties to promptly address and resolve any
remaining issues under the pre-bankruptcy definitive agreements with Calpine
and
proposed to the Bankruptcy Court that the parties seek arbitration (or at least
mediation) to complete the following:
|
|
—
|
Calpine’s
conveyance of the Non-Consent Properties to
us;
|
|
|
—
|
Calpine’s
execution of all documents and performance of all tasks required
under
“further assurances” provisions of the Purchase Agreement with respect to
certain of the oil and natural gas properties for which we have already
paid Calpine; and
|
|
|
—
|
Resolution
of the final amounts we are to pay Calpine, which we have concluded
are
approximately $79 million, consisting of roughly $68 million for
the
Non-Consent Properties and approximately $11 million in other true-up
payment obligations.
|
At
a
hearing held on July 12, 2006, the Bankruptcy Court took the following
steps:
|
|
—
|
In
response to an objection filed by the Department of Justice and asserted
by the California State Lands Commission that the Debtors’ Motion to
Assume Non-Residential Leases and Set Cure Amounts (the “Motion”), did not
allow adequate time for an appropriate response, Calpine withdrew
from the
list of Oil and Gas Leases that were the subject of the Motion those
leases issued by the United States (and managed by the Minerals Management
Service of the United States Department of Interior) (the “MMS Oil and Gas
Leases”) and the State of California (and managed by the California State
Lands Commission) (the “CSLC Leases”). Calpine and both the Department of
Justice and the State of California agreed to an extension of the
existing
deadline to November 15, 2006 to assume or reject the MMS Oil and
Gas
Leases and CSLC Leases under Section 365 of the Bankruptcy Code,
to the
extent the MMS Oil and Gas Leases and CSLC Leases are leases subject
to
Section 365. The effect of these actions was to render our objection
inapplicable at that time; and
|
|
|
—
|
The
Bankruptcy Court also encouraged Calpine and us to arrive at a business
solution to all remaining issues including approximately $68 million
payable to Calpine for conveyance of the Non-Consent
Properties.
|
On
August
1, 2006, we filed a number of proofs of claim in the Calpine bankruptcy
asserting claims against a variety of Calpine debtors seeking recovery of $27.9
million in liquidated amounts as well as unliquidated damages in amounts that
can not presently be determined. We continue to work with Calpine on a
cooperative and expedited basis toward resolution of unresolved conveyance
of
properties and post-closing adjustments under the Purchase
Agreement.
With
respect to the stipulations between Calpine and MMS and Calpine and CSLC
extending the deadline to assume or reject the MMS Oil and Gas Leases, these
parties have further extended this deadline time by stipulation. The deadline
was first extended to January 31, 2007 and recently was further extended to
April 15, 2007 with respect to the MMS Oil and Gas Leases and April 30, 2007
with respect to the CSLC Leases. The Bankruptcy Court entered Orders related
to
the MMS Oil and Gas Leases and CSLC Leases which included appropriate language
that we negotiated with Calpine for our protection in this regard.
Recently,
Calpine sought and obtained an extension to June 20, 2007 from the Bankruptcy
Court for the period in which only Calpine, exclusively, may file its plan
of
reorganization. While there is no assurance that Calpine will file a plan of
reorganization by the deadline, or that such a plan will be approved by the
creditors and the Bankruptcy Court, we remain optimistic that the issues
involving conclusion of the remaining conveyances of the Non-Consent Properties
and obtaining the further assurances from Calpine under the Purchase Agreement,
including perhaps resolution of any and all claims, may occur during
2007.
Calpine
recently requested Bankruptcy Court approval of a new credit facility which
would require it to grant liens to these new lenders in all of its assets,
including any interest it may still hold in any oil and gas properties it
obligated itself to convey to us under the Purchase Agreement. The Bankruptcy
Court entered into an Order approving Calpine’s ability to obtain this new loan
which includes appropriate language that we negotiated with Calpine for our
protection in this regard.
However,
there can be no assurance that Calpine, its creditors or other interest holders
will not challenge the fairness of the Acquisition. For a number of reasons,
including our understanding of the process that Calpine followed in allowing
market forces to set the purchase price for the Acquisition, we continue to
believe that it is unlikely that any challenges by the Calpine debtors or their
creditors to the overall fairness of the Acquisition would be successful. We
will take all necessary action to ensure our rights under the Purchase
Agreement, the MMS Oil and Gas Leases, the CSLC Leases and the Bankruptcy Code
are fully protected.
Purchase
and Sale Agreement
In
order
to consummate the Acquisition with Calpine, we entered into a purchase and
sale
agreement with Calpine, Calpine Natural Gas Holdings LLC (an entity formed
as
the holding company for several of the entities acquired from Calpine; “CGH”)
and Calpine Fuels Corporation (“Calpine Fuels”) to acquire all of the equity
interests of Calpine’s indirect subsidiaries that owned substantially all of
Calpine’s domestic oil and natural gas properties. In connection with the
purchase of the entities, we agreed that the purchased entities would assume
or
continue to be responsible for the liabilities and obligations arising from
Calpine’s domestic oil and natural gas business, except for certain liabilities
expressly retained by Calpine and its affiliates. The liabilities retained
by
Calpine include obligations relating to sales of oil and natural gas to its
affiliates before the May 1, 2005 effective date of the Acquisition and
liabilities of Calpine and its subsidiaries that are not related to the
businesses of the purchased entities.
Additionally,
the purchase and sale agreement provided that Calpine retain all oil and natural
gas properties that were not transferred because consents for their transfer
were not received at the time of the Acquisition. We and Calpine agreed to
use
our commercially reasonable efforts to obtain the consents necessary to allow
the transfer of the retained properties and, if the consents are received for
the retained properties during the six months following the July 2005 closing,
we will purchase the retained properties at their allocated values under the
purchase and sale agreement as adjusted for any income or expenses relating
to
the retained properties during the period from the effective date until the
transfer of the retained properties. Under the transition services agreement,
we
agreed to operate the retained properties for a period of up to two years
following the July 7, 2005 closing. Although the purchase and sale
agreement affords for a conveyance once monthly for those retained properties
for which consents have been received in the interim, we had mutually agreed
to
an initial conveyance of retained properties in the fourth quarter of 2005
and
subsequent conveyance(s) at such times thereafter as such consents are obtained.
At each such conveyance, Calpine would deliver partial releases from its lenders
and indenture holders will convey all corresponding retained properties in
exchange for such allocated values as adjusted. Because of Calpine’s
bankruptcy filing in December 2005, Calpine has not completed these additional
closing and subsequent conveyances. Prior to the Calpine bankruptcy
filing, we were ready to close a significant percentage of these outstanding
properties.
The
purchase and sale agreement contains cross-indemnities that make us responsible
for certain liabilities (excepting those liabilities for royalties, employee
matters, taxes and scheduled litigation retained by Calpine and other sellers)
from the current and historical operations of the purchased companies regardless
of when those liabilities arise, and allocate responsibility for liabilities
from the other operations of Calpine, CGH or Calpine Fuels to those companies.
The purchase and sale agreement also contains indemnification provisions under
which we, on the one hand, and, Calpine, CGH and Calpine Fuels, on the other
hand, indemnify each other with respect to breaches by the indemnifying party
of
the purchase and sale agreement. We agreed to indemnify Calpine, CGH and Calpine
Fuels for any liabilities arising from misstatements or omissions in the various
offering documents for this offering, including this prospectus, except for
information regarding Calpine, CGH and Calpine Fuels provided by those companies
for inclusion in those documents. Calpine, CGH and Calpine Fuels agreed to
indemnify us against liabilities arising from misstatements or omissions in
the
various offering documents for this offering, including this prospectus to
the
extent such liabilities arise from information regarding Calpine and its
affiliates that is provided by them for inclusion in the offering documents.
Calpine’s recent bankruptcy may affect or preclude our ability to enforce our
indemnification rights.
In
connection with the transfer and assumption agreement and purchase and sale
agreement, we assumed the liabilities for certain alleged underpaid royalty
claims involving Calpine’s domestic oil and gas business, which have been
resolved or are immaterial. Calpine retains liability for all other scheduled
claims and litigation. In the Acquisition, we acquired Calpine Natural Gas
L.P.
(since renamed Rosetta Resources Operating LP), which is a named party to two
remaining scheduled claims and litigation. Calpine is indemnifying us for any
liability and is providing our defense in connection with these scheduled claims
and litigation. Calpine’s recent bankruptcy may affect or preclude our ability
to enforce our indemnification rights. We have otherwise assumed responsibility
for litigation and claims arising out of the normal course of Calpine’s oil and
gas business that we acquired in the Acquisition. For environmental matters,
we
do not have any indemnity from Calpine for events occurring prior to
closing.
Except
for certain excluded items and retained liabilities, Calpine, Calpine Fuels
and
CGH agreed to indemnify us only to the extent the indemnified losses exceed
$10
million in the aggregate. We are restricted from making any claim for
indemnification to the extent a single claim is less than $50,000; however,
those claims are accumulated in determining whether we have reached the $10
million limitation. Except for certain excluded items and retained liabilities,
Calpine’s, Calpine Fuels’ and CGH’s obligation to indemnify us is limited to a
maximum aggregate liability of $100 million. Except for certain items, we are
obligated to indemnify Calpine, Calpine Fuels, CGH and their affiliates only
to
the extent the indemnified losses exceed $10 million in the aggregate and any
individual claim exceeds $50,000 (provided that any claim below that amount
will
be accumulated to determine whether the $10 million limitation has been
reached). There is no limitation on our maximum liability for
indemnification.
The
purchase and sale agreement contains a general release under which we release
Calpine, CGH, Calpine Fuels and their affiliates, successors and assigns, and
Calpine, CGH and Calpine Fuels release us, from any liabilities arising from
events between us on the one hand, and Calpine, CGH and Calpine Fuels on the
other hand, occurring on or before the closing of the transactions under the
purchase and sale agreement, including events in connection with activities
to
implement this offering. The general release does not apply to obligations
under
the purchase and sale agreement or any ancillary agreement, to liabilities
transferred to us or retained by Calpine, CGH or Calpine Fuels, to future
transactions between us, on the one hand, and Calpine, CGH and Calpine Fuels,
on
the other hand, or to other specified contractual arrangements.
Service
Agreement
We
entered into a marketing and services agreement with Calpine Producer Services,
L.P. (“CPS”) for the period through June 30, 2007. The agreement covers all
our current and future production during the term of the agreement. CPS will
provide services related to the sale of our production including nominating,
scheduling, balancing and other customary marketing services and will assist
us
with volume reconciliation, well connections, credit review, training, severance
and other similar taxes, royalty support documentation, contract administration,
billing, collateral management, and other administrative functions. All CPS
activities will be performed as agent and on our behalf, and under our control
and direction. The fee payable by us under the agreement is based on net
proceeds of all commodity sales multiplied by 0.75%. We can request a reduction
in the fee if our volume increases to 130,000 MMBtu per day and 190,000 MMBtu
per day to 0.625% and 0.50% respectively. The service agreement provides that
all contracts, agreements, collateral and funds related to the marketing and
sales activity be contracted directly with us or our designee, and paid directly
to us. This agreement permits either party to audit the other’s financial
information or records to determine any compensation paid or owed, and to audit
the prices negotiated by CPS on our behalf to confirm that we are receiving
market pricing and that the various deductions are appropriate.
Since
the
date of the Calpine bankruptcy, we have continued to receive these services
at
generally the same level we previously have. If necessary, after failure of
Calpine to cure deficiencies that may occur, we will replace these services
by
engaging third parties or undertake these functions in-house and we believe
we
can do so without any significant effect on our costs or our
operations.
Gas
Purchase and Sale Contract
We
entered into a contract with Calpine Energy Services, L.P. (“CES”), for the sale
of all natural gas produced from all of our existing producing leases in
production as of May 1, 2005 located in the Sacramento Basin of California,
through December 31, 2009. This production comprises approximately 40% of
our current overall production based on MMcfe/d. Under these contracts, we
are
required to sell but CES is not required to purchase this
production.
The
price
to be paid for the natural gas under the contract is the first of month spot
market price defined as the price for natural gas deliveries at the “PG&E
Citygate” as published in Natural Gas Intelligence Bidweek Survey less
the then effective “As Available” PG&E Silverado transportation and
shrinkage rate as found in the most recent tariff. Payment for the natural
gas
is due on the 25th day of each month following each month of production.
Payments under the contract are collateralized by daily margin payments by
Calpine to our collateral account. In the event of a default by Calpine, we
could be exposed to the loss of up to four days of natural gas sales revenue,
which at December 31, 2006 prices and volumes would be approximately $2.5
million.
If
payment is not received by the due date or if the obligations are not fully
collateralized, we may immediately cease delivering natural gas under the
contract and re-sell the natural gas on a spot basis until the default is cured
and/or the appropriate security is re-established. If any payment default is
paid within 60 days of the default and collateral is re-established, we have
agreed to resume deliveries under the contract. If any payment default is not
cured within 60 days, we may terminate the contract.
We
have
no specific volume delivery commitments under the contract but must deliver
all
of our natural gas that we produce from the covered Sacramento Basin of
California leases. If CES refuses to take natural gas, whether at CES’ option in
its sole discretion, because the natural gas fails to meet quality
specifications or the occurrence of a force majeure event, we may sell the
natural gas to other purchasers in transactions committing our natural gas
for
up to 30 days at a time, until such time as Calpine is able to accept the
natural gas production. If CES does not take natural gas for 120 consecutive
days, we have the right to terminate the contract early.
The
contract also gives CES a right to match any offer by a third party to purchase
all or a portion of the covered Sacramento Basin of California natural gas
production, under industry standard terms and conditions with comparable price
and credit support for a ten year period after December 31, 2009. Calpine’s
recent bankruptcy may affect Calpine’s ability to continue purchasing natural
gas from us. If the contract terminates, we will sell to third parties our
natural gas at market prices.
This
prospectus covers shares sold in our recent private equity offering to
“accredited investors” as defined by Rule 501(a) under the Securities Act
pursuant to an exemption from registration provided in Regulation D, Rule 506
under Section 4(2) of the Securities Act, to “qualified institutional buyers,”
as defined by Rule 144A under the Securities Act, and to non-U.S. persons
pursuant to Regulation S under the Securities Act. The selling stockholders
who
purchased shares from us in the private equity offerings may from time to time
offer and sell under this prospectus any or all of the shares listed opposite
each of their names below. We are required by our registration rights agreement
to register for resale the shares of our common stock described in the table
below.
The
following table sets forth information about the number of shares owned by
each
selling stockholder that may be offered from time to time under this prospectus.
Certain selling stockholders may be deemed to be “underwriters” as defined in
the Securities Act. Any profits realized by the selling stockholder may be
deemed to be underwriting commissions.
The
table
below has been prepared based upon the information furnished to us by the
selling stockholders initially as of December 15, 2005 and updated through
the date of this prospectus. The selling stockholders identified below may
have
sold, transferred or otherwise disposed of some or all of their shares since
the
date on which the information in the following table is presented in
transactions exempt from or not subject to the registration requirements of
the
Securities Act. Information concerning the selling stockholders may change
from
time to time and, if necessary, we will amend or supplement this prospectus
accordingly. We cannot give an estimate as to the amount of shares of common
stock that will be held by the selling stockholders upon termination of this
offering because the selling stockholders may offer some or all of their common
stock under the offering contemplated by this prospectus. The total number
of
shares that may be sold hereunder will not exceed the number of shares offered
hereby. Please read “Plan of Distribution.”
We
have
been advised, as noted below in the footnotes to the table, two of the selling
stockholders are broker-dealers and 42 of the selling stockholders are
affiliates of broker-dealers. We have been advised that each of such selling
stockholders purchased our common stock in the ordinary course of business,
not
for resale, and that none of such selling stockholders had, at the time of
purchase, any agreements or understandings, directly or indirectly, with any
person to distribute the common stock. All selling stockholders are subject
to
Rule 105 of Regulation M and are precluded from engaging in any short selling
activities prior to effectiveness.
The
following table sets forth the name of each selling stockholder, the nature
of
any position, office, or other material relationship, if any, which the selling
stockholder has had, within the past three years, with us or with any of our
predecessors or affiliates, and the number of shares of our common stock owned
by such stockholder prior to the offering. We have assumed all shares reflected
on the table will be sold from time to time.
|
Selling
Stockholder
|
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
|
|
A&R
Agreement of Trust for Joan M. Welsh~DTD 08/31/1990~Joan M. Welsh
TTEE(1)
|
|
1,220
|
|
*
|
|
A.
Albinsson & M. Wahlstrom(4)
|
|
6,900
|
|
*
|
|
A.
Bartley Bryt and Maud S. Bryt
|
|
3,500
|
|
*
|
|
A-Able
Transmission—Corporate Investment Account(1)
|
|
640
|
|
*
|
|
ABN
Amro Bank(2)
|
|
2,800
|
|
*
|
|
Adam
H. Brown
|
|
1,400
|
|
*
|
|
Adam
H. Brown Article IV Trust(3)
|
|
1,600
|
|
*
|
|
Adam
H. Brown Article V Trust(3)
|
|
700
|
|
*
|
|
AGS
Investments(4)
|
|
2,700
|
|
*
|
|
AIM
Capital Development Fund(5)†
|
|
765,100
|
|
1.51%
|
|
AIM
Dynamics Fund(5)†
|
|
1,236,400
|
|
2.44%
|
|
AIM
Mid Cap Growth Fund(5)†
|
|
114,200
|
|
*
|
|
AIM
V.I. Capital Development Fund(5)†
|
|
116,100
|
|
*
|
|
AIM
V.I. Dynamics Fund(5)†
|
|
68,200
|
|
*
|
|
Alan
W. Steinberg, LP(6)
|
|
13,850
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Albert
Sinal, Jr. and Tina Sinal
|
|
6,000
|
|
*
|
|
Alexis
A. Shehata Personal Portfolio(1)
|
|
1,420
|
|
*
|
|
Alice
Cordelia Brown
|
|
9,700
|
|
*
|
|
Allan
and Terry Peck—Combined Portfolio
|
|
1,330
|
|
*
|
|
Allan
P. Rothstein
|
|
5,000
|
|
*
|
|
Amaranth
LLC(7)††
|
|
80,000
|
|
*
|
|
American
Funds Insurance Series, Asset Allocation Fund(8)
|
|
2,520,000
|
|
4.98%
|
|
American
Funds Insurance Series, Growth Fund(8)
|
|
1,980,000
|
|
3.91%
|
|
Andrea
L. Killian Trust ~ DTD 9/25/97 ~ Andrea L. Kilian TTEE(1)
|
|
150
|
|
*
|
|
Andrea
Pollack 75 Rev Trust(4)
|
|
5,700
|
|
*
|
|
Andrea
Pollack Rev Trust(4)
|
|
8,500
|
|
*
|
|
Angler
Construction Company—401(k) Profit Sharing Plan-Equity(1)
|
|
300
|
|
*
|
|
Anita
L. Rankin Revocable Trust U/A DTD 4/28/1995~Anita L. Rankin
TTEE(1)
|
|
350
|
|
*
|
|
Anitia
T. Loehmann Charitable Trust(3)
|
|
300
|
|
*
|
|
Ann
Cox Bartram Trust(3)
|
|
3,500
|
|
*
|
|
Ann
K. Miller Personal Portfolio(1)
|
|
5,840
|
|
*
|
|
Anne
Marie Romer Personal Portfolio(1)
|
|
1,180
|
|
*
|
|
Anthony
G. Perry IRA(4)
|
|
7,300
|
|
*
|
|
Anthony
L. Kremer IRA(1)
|
|
940
|
|
*
|
|
Anthony
L. Kremer Revocable Living Trust(1)
|
|
860
|
|
*
|
|
Antonio
Perez
|
|
2,800
|
|
*
|
|
AR
Inc. Master Retirement Trust(9)†
|
|
104,500
|
|
*
|
|
Arbiter
Partners, LLC(10)
|
|
193,750
|
|
*
|
|
Aubrey
L. Roberts IRA(1)
|
|
2,620
|
|
*
|
|
Aurelia
Palcher Combined Portfolio(1)
|
|
990
|
|
*
|
|
Auto
Disposal Systems—401(k)—All Cap Value Account(1)
|
|
620
|
|
*
|
|
Auto
Disposal Systems—401(k)—Balanced 60 Account(1)
|
|
390
|
|
*
|
|
Auto
Disposal Systems—401(k)—Small Cap Value Account(1)
|
|
560
|
|
*
|
|
Aviation
Sales Inc.—401(k) Profit Sharing Plan~Rick J. Penwell
TTEE(1)
|
|
1,190
|
|
*
|
|
Azzinaro
Management, LLC(11)†
|
|
3,500
|
|
*
|
|
Baker
Hazel Funeral Home, Inc.(1)
|
|
300
|
|
*
|
|
Baker
Hazel Funeral Home, Inc. 401(k) Plan(1)
|
|
430
|
|
*
|
|
Barbara
A. Muth IRA(1)
|
|
240
|
|
*
|
|
Barbara
A. Muth Revocable Living Trust U/A DTD 10/31/96~Barbara A. Muth
TTEE(1)
|
|
1,160
|
|
*
|
|
Barbara
B. Chisolm Irrevocable Trust FBO Alison Wilde DTD 12/23/96~O. Beirne
Chisolm TTEE(1)
|
|
820
|
|
*
|
|
Barbara
B. Chisolm Irrevocable Trust~FBO Serena B. Wille Dtd 12/23/96~O.
Beirne
Chisolm TTEE(1)
|
|
820
|
|
*
|
|
Barbara
Bitticker—Inherited IRA(1)
|
|
1,260
|
|
*
|
|
Barbara
McCarty~Personal Portfolio(1)
|
|
420
|
|
*
|
|
Bay
Pond Investors (Bermuda) L.P.(12)
|
|
11,800
|
|
*
|
|
Bay
Pond Partners, L.P.(12)
|
|
37,400
|
|
*
|
|
Bel
Air Opportunistic Fund(13)†
|
|
82,800
|
|
*
|
|
Belfer
Investment Partners, LP(14)
|
|
48,500
|
|
*
|
|
Bennett
Family LLC(15)
|
|
5,000
|
|
*
|
|
Benny
L. & Alexandra P. Tumbleston—JTWROS(1)
|
|
1,470
|
|
*
|
|
Bert
Fingerhut
|
|
2,500
|
|
*
|
|
Billy
A. West
|
|
4,210
|
|
*
|
|
BLT
Enterprises, LLLP~Partnership(1)
|
|
1,340
|
|
*
|
|
Blueprint
Partners LP(16)
|
|
15,000
|
|
*
|
|
Boston
Partners Asset Management, LLC(17)†
|
|
517,710
|
|
1.02%
|
|
Bradley &
Danielle Barton
|
|
6,250
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Bradley
J. Hausfeld IRA(1)
|
|
580
|
|
*
|
|
Brady
Retirement Fund, LP(18)
|
|
17,200
|
|
*
|
|
Brian
Rommel
|
|
1,000
|
|
*
|
|
Brownlie
Family Partnership(4)
|
|
5,300
|
|
*
|
|
Bruce
E. Dines IRA(4)
|
|
7,300
|
|
*
|
|
Caisse
De Depot Et Placement Du Quebec(19)
|
|
3,125,000
|
|
6.18%
|
|
Cal
Hendricks Wies and Margaret Bailey Hardenbergh(3)
|
|
800
|
|
*
|
|
Capital
Growth Fund(3)
|
|
2,200
|
|
*
|
|
Carl
Forstmann Foundation(3)
|
|
2,000
|
|
*
|
|
Carl
W. Goeckel~Combined Portfolio(1)
|
|
2,040
|
|
*
|
|
Carlton
Capital Group, LLC(20)
|
|
12,500
|
|
*
|
|
Carmine
and Wendy Guerro Living Trust~U/A DTD 7/31/2000~C Guerro and W Guerro,
TTEES(1)
|
|
1,000
|
|
*
|
|
Carmine
Guerro IRA Rollover(1)
|
|
1,950
|
|
*
|
|
Carol
D. Shellabarger Green~Revocable Trust DTD 4/21/00~Carol Downing Green
TTEE(1)
|
|
570
|
|
*
|
|
Carol
Downing Green IRA(1)
|
|
360
|
|
*
|
|
Caroline
Hicks
|
|
2,500
|
|
*
|
|
Cassandra
Toro
|
|
7,500
|
|
*
|
|
CastleRock
Partners, L.P.(21)
|
|
38,500
|
|
*
|
|
Catherine
Hirsch
|
|
1,562
|
|
*
|
|
Cathy
Haberland(3)
|
|
3,100
|
|
*
|
|
Charles
C. Loehmann Charitable Trust(3)
|
|
750
|
|
*
|
|
Charles
Carpenter IRA(3)
|
|
5,900
|
|
*
|
|
Charles
L. & Miriam L. Bechtel~Joint Personal Portfolio(1)
|
|
330
|
|
*
|
|
Charles
Post
|
|
5,000
|
|
*
|
|
Cheryl
L. Coleman—IRA Rollover(1)
|
|
310
|
|
*
|
|
Cheyne
Special Situations Fund, LP(22)
|
|
295,000
|
|
*
|
|
Chris
H. & Linda M. Kapolas~Joint Personal Portfolio(1)
|
|
2,290
|
|
*
|
|
Christina
Mattin
|
|
12,000
|
|
*
|
|
Christine
Lindeman-Thomas~IRA Rollover~Gregory J. Thomas, POA(1)
|
|
710
|
|
*
|
|
Christopher
J. Stratis(3)
|
|
1,500
|
|
*
|
|
Christopher
Shaw Lippman
|
|
5,000
|
|
*
|
|
Cindy
Ernst~Personal Portfolio(1)
|
|
8,970
|
|
*
|
|
Cintra
Pollack 93 Trust(4)
|
|
2,800
|
|
*
|
|
Clark
Manufacturing Co.~Pension Plan DTD 5/16/1998~John A. Barron
TTEE(1)
|
|
170
|
|
*
|
|
Clark
Manufacturing Co.~PSP DTD 5/16/98~John A. Barron TTEE(1)
|
|
360
|
|
*
|
|
CNF
Investments, LLC(23)
|
|
156,250
|
|
*
|
|
Congress
Ann Hazel IRA(1)
|
|
530
|
|
*
|
|
Cora &
John Davis Foundation(24)
|
|
6,000
|
|
*
|
|
Craig &
Mary Jo Sanford~Joint Personal Portfolio(1)
|
|
6,800
|
|
*
|
|
Craig
Fuller
|
|
6,250
|
|
*
|
|
Cynthia
A. Hackett~Personal Portfolio(1)
|
|
540
|
|
*
|
|
D.B.
Zwirn Special Opportunities Fund, L.P.(25)
|
|
56,355
|
|
*
|
|
D.B.
Zwirn Special Opportunities Fund, Ltd.(25)
|
71,145
|
*
|
||
|
Dan
Roach IRA Rollover(1)
|
|
370
|
|
*
|
|
Daniel
Huthwaite and Constance Huthwaite
|
|
3,125
|
|
*
|
|
Daniel
R. Paladino and Pauline M. Paladino
|
|
3,500
|
|
*
|
|
Darryl
W. Copeland, Jr.
|
|
7,500
|
|
*
|
|
David &
Sharon Neenan(4)
|
|
1,500
|
|
*
|
|
David
G. Neenan Keogh(4)
|
|
1,400
|
|
*
|
|
David
H. Bartram(3)
|
|
300
|
|
*
|
|
David
Keith Ray IRA(1)
|
|
880
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
David
L. Roer~Personal Portfolio(1)
|
|
220
|
|
*
|
|
David
M. Golush
|
|
2,000
|
|
*
|
|
David
M. Gray~Revocable Trust DTD 07-19-96~David M. Gray,
TTEE(1)
|
|
390
|
|
*
|
|
David
M. Morad Jr.~Combined Portfolio(1)
|
|
2,710
|
|
*
|
|
David
M. Morad Jr.~Revocable Living Trust U/A DTD 9/15/97~David M. Morad
Jr. & Semele Foundas TTEE(1)
|
|
1,330
|
|
*
|
|
David
R. & Renee M. Ernst~Joint Personal Portfolio(1)
|
|
2,900
|
|
*
|
|
David
R. Kremer Revocable Living Trust~DTD 5/7/1996~David R. Kremer &
Ruth E. Kremer, TTEES(1)
|
|
1,170
|
|
*
|
|
David
Reznick and Sandra Reznick
|
|
5,000
|
|
*
|
|
David
Ross~Revocable Living Trust U/A DTD 11/04/00~David Ross
TTEE(1)
|
|
930
|
|
*
|
|
David
W. Campbell and Mary W. Campbell
|
|
1,000
|
|
*
|
|
David
Wallace(4)
|
|
2,700
|
|
*
|
|
DBAG
London(26)†
|
|
250,000
|
|
*
|
|
Dean
L. Overman and Linda J. Overman
|
|
6,250
|
|
*
|
|
Deanne
W. Joseph IRA Rollover(1)
|
|
350
|
|
*
|
|
Deborah
Keinbord(24)
|
|
2,000
|
|
*
|
|
Deephaven
Distressed Opportunities Trading Ltd(27)†
|
|
675,000
|
|
1.33%
|
|
Deephaven
Event Trading Ltd(27)†
|
|
1,350,000
|
|
2.67%
|
|
Deephaven
Growth Opportunities Trading Ltd(27)†
|
|
675,000
|
|
1.35%
|
|
Dennis
M. Langley
|
|
6,250
|
|
*
|
|
Detroit
Diesel Corporation Employee Pension Plan(9)†
|
|
72,000
|
|
*
|
|
Deutsche
Bank Alternative Trading(28)
|
|
100,000
|
|
*
|
|
Diaco
Investments, L.P.(29)
|
|
711,750
|
|
1.41%
|
|
Diana
M. Best IRA Rollover(1)
|
|
2,140
|
|
*
|
|
Diane
W. Colaizzi IRA Rollover(1)
|
|
210
|
|
*
|
|
Dolores
H. Russ Trust~DTD 4/20/2000~Dolores H. Russ, TTEE(1)
|
|
9,430
|
|
*
|
|
Don
A. & Linda B. Maccubbin~Revocable Trust DTD 05/04/93~Don
A. & Linda B. Maccubbin, TTEES(1)
|
|
1,940
|
|
*
|
|
Don
A. Maccubbin IRA(1)
|
|
580
|
|
*
|
|
Don
Keasel IRA Rollover(1)
|
|
760
|
|
*
|
|
Donald
A. Porter IRA – Small Cap(1)
|
|
960
|
|
*
|
|
Donald
Bavely & Kathleen Bavely
|
|
4,375
|
|
*
|
|
Donald
G. Tekamp Revocable Trust ~DTD 8/16/2000~Donald G. Tekamp
TTEE(1)
|
|
1,140
|
|
*
|
|
Donald
Gorman~Personal Portfolio(1)
|
|
520
|
|
*
|
|
Donald
H. Nguyen, M.D. IRA Rollover(1)
|
|
250
|
|
*
|
|
Donald
Harrison
|
|
6,250
|
|
*
|
|
Donald
L. and Edythe Aukerman~Joint Personal Portfolio(1)
|
|
380
|
|
*
|
|
Donald
L. Aukerman IRA(1)
|
|
590
|
|
*
|
|
Donna
G. Dahm IRA(1)
|
|
260
|
|
*
|
|
Dorothy
H. Dines(4)
|
|
4,400
|
|
*
|
|
Dorothy
W. Savage-Kemp IRA(1)
|
|
410
|
|
*
|
|
Dorothy
W. Savage-Kemp TOD(1)
|
|
760
|
|
*
|
|
Dottie
L. Brown~Personal Portfolio(1)
|
|
160
|
|
*
|
|
Douglas &
Melissa Marchal~Joint Personal Portfolio(1)
|
|
270
|
|
*
|
|
Douglass
McCorkindale
|
|
12,500
|
|
*
|
|
Dr. Donald H.
Nguyen & Lynn A. Buffington—JTWROS(1)
|
|
790
|
|
*
|
|
Dr. Juan M.
Palomar IRA Rollover(1)
|
|
1,400
|
|
*
|
|
Dr. Michael T.
Kunesh Revocable Trust(1)
|
|
1,640
|
|
*
|
|
Dr. Neil
Kantor~Combined Portfolio(1)
|
|
3,260
|
|
*
|
|
Dr. William R.
Levin, DMD P.A. Retirement(3)
|
|
800
|
|
*
|
|
Drake
Associates L.P.(30)
|
|
20,000
|
|
*
|
|
Dwayne
Barfell & Margaret Harris
|
|
3,125
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
E.
Mortimer FBO Mara Wharton(3)
|
|
1,400
|
|
*
|
|
EBS
Asset Management—Profit Sharing Plan(1)
|
|
8,280
|
|
*
|
|
EBS
Microcap Partners~Combined Portfolio(1)
|
|
10,100
|
|
*
|
|
EBS
Partners~Combined Portfolio(1)
|
|
34,100
|
|
*
|
|
Edna
Isacs(3)
|
|
1,000
|
|
*
|
|
Edward
Fox IRA(31)
|
|
9,375
|
|
*
|
|
Edward
J. Nusrala
|
|
2,000
|
|
*
|
|
Edward
Richard Marek, Jr.
|
|
1,562
|
|
*
|
|
Edward
W. & Frances L. Eppley~Combined Portfolio(1)
|
|
540
|
|
*
|
|
Edwin
L. Johnson(3)
|
|
600
|
|
*
|
|
Eileen
M. Jackson~TOD(1)
|
|
2,810
|
|
*
|
|
Elaine
S. Berman~Combined Portfolio(1)
|
|
530
|
|
*
|
|
Elaine
S. Berman~Inherited IRA~Beneficiary of Freda Levine(1)
|
|
600
|
|
*
|
|
Elaine
S. Berman SEP—IRA(1)
|
|
500
|
|
*
|
|
Elias
M. & Ann C. Karter~Combined Portfolio(1)
|
|
6,960
|
|
*
|
|
Elizabeth
Brown Warters Article IV Trust(3)
|
|
2,200
|
|
*
|
|
Elizabeth
Brown Warters Article V Trust(3)
|
|
700
|
|
*
|
|
Elliot
Horowitz Trust 11/1/89 (35)
|
7,000
|
*
|
||
|
Emerson
Partners(51)
|
16,000
|
|||
|
Ernst
Enterprises~Deferred Compensation DTD 05/20/90~fbo Mark Van de
Grift(1)
|
|
1,260
|
|
*
|
|
Ernst
Enterprises~Deferred Compensation Plan DTD 05/20/90~fbo Terry
Killen(1)
|
|
1,470
|
|
*
|
|
Evan
Julber
|
|
6,000
|
|
*
|
|
Excelsior
Value & Restructuring(32)
|
|
2,750,000
|
|
5.44%
|
|
FBO
Marjorie G. Kasch~U/A/D 3/21/80~Thomas A. Holton TTEE(1)
|
|
640
|
|
*
|
|
Felice
M. Kantor~Combined Portfolio(1)
|
|
4,780
|
|
*
|
|
Ferguson
Locke†
|
|
2,500
|
|
*
|
|
First
Bank Trust(33)†
|
|
10,000
|
|
*
|
|
Flanagan
Family Limited Partnership(34)
|
|
6,250
|
|
*
|
|
Forney
M. Hoke III IRA Rollover(1)
|
|
260
|
|
*
|
|
Forney
M. Hoke III Personal Portfolio(1)
|
|
2,950
|
|
*
|
|
FPA
Capital Fund, Inc.(9)†
|
|
4,455,800
|
|
8.81%
|
|
Francis
C. Rooney, Jr.(3)
|
|
1,500
|
|
*
|
|
Frank
B. Day(4)
|
|
17,500
|
|
*
|
|
Frank
B. Day CRT (4)
|
|
1,200
|
|
*
|
|
Frank
D. Day Lead Annuity Trust(4)
|
|
1,200
|
|
*
|
|
Frank
M. Ewing
|
|
27,500
|
|
*
|
|
Frederick
R. Bartram(3)
|
|
1,200
|
|
*
|
|
Gardner
Lewis Fund, L.P.(35)
|
|
96,000
|
|
*
|
|
Gary
M. Youra, M.D. IRA Rollover(1)
|
|
1,930
|
|
*
|
|
Geary
Partners, L.P.(36)
|
|
56,600
|
|
*
|
|
General
Electric Pension Trust(9)†
|
|
588,900
|
|
1.16%
|
|
Geoffrey
Pohanka
|
|
26,000
|
|
*
|
|
George
H. Welsh~Revocable Living Trust DTD 8/1/90—Trust B~Joan M. Welsh,
Co-TTEE(1)
|
|
2,950
|
|
*
|
|
George
Hicks~Personal Portfolio(1)
|
|
800
|
|
*
|
|
George
W. Ledford IRA Rollover(1)
|
|
3,270
|
|
*
|
|
Gerald
Allen IRA(1)
|
|
400
|
|
*
|
|
Gerald
E. & Deanne W. Joseph~Combined Portfolio(1)
|
|
1,250
|
|
*
|
|
Gerald
J. Allen~Personal Portfolio(1)
|
|
3,310
|
|
*
|
|
Giacomo
Trusts~Combined Portfolio(1)
|
|
3,620
|
|
*
|
|
Gina
R. Day(4)
|
|
5,700
|
|
*
|
|
Gina
R. Day CRT(4)
|
|
11,000
|
|
*
|
|
GLG
Market Neutral Fund(37)
|
|
600,000
|
|
1.19%
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Global
Capital Ltd.(38)
|
|
12,500
|
|
*
|
|
Gloria
Trumpower
|
|
2,000
|
|
*
|
|
GMF
Global Natural Resources Fund(39)
|
|
863
|
|
*
|
|
Goldman
Sachs GMS Funds LLC(9)†
|
|
559,300
|
|
1.11%
|
|
Goldsmith
Family Foundation (35)
|
7,400
|
*
|
||
|
Goldsmith
Family Investments, LLC (35)
|
5,500
|
*
|
||
|
Grace
G. Miller~Personal Portfolio(1)
|
|
640
|
|
*
|
|
Granville
Gray Valentine Trust(40)†
|
|
25,000
|
|
*
|
|
Gregory
A. & Bibi A. Reber~Joint Personal Portfolio(1)
|
|
550
|
|
*
|
|
Gregory
J. Thomas IRA-SEP(1)
|
|
360
|
|
*
|
|
Greystone
Energy, L.P.(41)
|
|
6,250
|
|
*
|
|
Greystone
Resources, L.P.(41)
|
|
6,250
|
|
*
|
|
Gruber &
McBaine International(42)
|
|
11,000
|
|
*
|
|
Gwendolyn
D. Harmon~Personal Portfolio(1)
|
|
1,530
|
|
*
|
|
Gwendolyn
D. Harmon Revocable Living Trust(1)
|
|
1,240
|
|
*
|
|
H.
Joseph & Rosemary Wood~Joint Personal
Portfolio(1)
|
|
800
|
|
*
|
|
Harlene
Brady IRA(1)
|
|
170
|
|
*
|
|
Harley
G. Higbie, III(4)
|
|
1,900
|
|
*
|
|
Harley
G. Higbie, Jr.(4)
|
|
5,300
|
|
*
|
|
Harold &
Congress Hazel Trust~U/A DTD 04/21/1991~Congress Ann Hazel,
TTEE(1)
|
|
690
|
|
*
|
|
Harold
A. & Lois M. Ferguson~Joint Personal Portfolio(1)
|
|
960
|
|
*
|
|
Harry
L. Dolan Trust —IMA(43)
|
|
1,667
|
|
*
|
|
Haussuann
Holdings N.V. (114)
|
24,200
|
*
|
||
|
Hazel
B. Kidd~Personal Portfolio(1)
|
|
840
|
|
*
|
|
Hedgenergy
Master Fund(44)
|
|
330,000
|
|
*
|
|
Heidi
Cox(3)
|
|
3,900
|
|
*
|
|
Helen
G. Moody~Revocable Living Trust DTD 01/17/02~Helen G. Moody
TTEE(1)
|
|
550
|
|
*
|
|
Henry
Ripp
|
|
2,000
|
|
*
|
|
Herman
Isacs III U/A Marital Trust(3)
|
|
1,500
|
|
*
|
|
HFR
Asset Management, LLC(45)
|
|
84,900
|
|
*
|
|
HFR
HE Beryllium(46)
|
|
90,900
|
|
*
|
|
HFR
HE Systematic Master Trust(45)
|
|
117,700
|
|
*
|
|
HH
Managed Account 7 Limited(47)
|
|
24,200
|
|
*
|
|
Highbridge
Event Driven / Relative Value Fund, LP(48)
|
|
102,225
|
|
*
|
|
Highbridge
Event Driven / Relative Value Fund, Ltd.(48)
|
|
692,775
|
|
1.37%
|
|
Highbridge
International LLC(48)
|
|
705,000
|
|
1.39%
|
|
Hildreth
D. Wold(4)
|
|
1,900
|
|
*
|
|
Hillel
Weinberger and Elaine Weinberger
|
|
100,000
|
|
*
|
|
Howard
W. Smith & Margaret W. Aldridge~Combined
Portfolio(1)
|
|
1,530
|
|
*
|
|
Hsien-Ming
Meng IRA Rollover(1)
|
|
910
|
|
*
|
|
Industrial
Grinding~Profit Sharing Plan U/A 10/1/84(1)
|
|
1,550
|
|
*
|
|
ING
Columbia Small Cap Val II Port (113)
|
4,242
|
*
|
||
|
ING
MFS Utilities Portfolio(49)
|
|
93,780
|
|
*
|
|
Investors
of America(50)†
|
|
850,000
|
|
1.68%
|
|
J.
Carter Beese, Jr.
|
|
3,125
|
|
*
|
|
J.
Steven Emerson(51)
|
|
45,000
|
|
*
|
|
J.
Steven Emerson IRA Rollover II(51)
|
350,000
|
*
|
||
|
J.
Steven Emerson Roth IRA(51)
|
115,000
|
*
|
||
|
Jack
Barrish
|
|
5,000
|
|
*
|
|
Jack
E. & Sandra McMaken~Joint Personal Portfolio(1)
|
|
320
|
|
*
|
|
Jack
R. Scherer Liv Trust~DTD 4/3/97~Jack R. & Lana B. Scherer
TTEES(1)
|
|
1,460
|
|
*
|
|
Jack
Wold Family Partnership(4)
|
|
2,000
|
|
*
|
|
Jacqueline
Slyman~Personal Portfolio(1)
|
|
1,320
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
James
A. Syme and Phyllis K. Syme
|
|
4,375
|
|
*
|
|
James
B. Wallace(4)
|
|
3,200
|
|
*
|
|
James
C. Dascoli†
|
|
2,000
|
|
*
|
|
James
D. Locke and Susan P. Locke
|
|
7,500
|
|
*
|
|
James
M. Earnest
|
|
1,000
|
|
*
|
|
James
N. & Jean C. Marten~Combined Portfolio(1)
|
|
570
|
|
*
|
|
James
R. Goldstein~Personal Portfolio(1)
|
|
530
|
|
*
|
|
James
T. Lehner, M.D. IRA(1)
|
|
1,390
|
|
*
|
|
Jan
Munroe Trust(52)
|
|
4,000
|
|
*
|
|
Janice
S. Harmon~Personal Portfolio(1)
|
|
390
|
|
*
|
|
JCK
Partners Opportunities Fund, Ltd.(53)
|
|
22,500
|
|
*
|
|
Jean
C. Marten~Personal Portfolio(1)
|
|
210
|
|
*
|
|
Jeannine
E. Phlipot~Personal Portfolio(1)
|
|
760
|
|
*
|
|
Jeannine
E. Philpot IRA(1)
|
|
710
|
|
*
|
|
Jeffrey
H. Howard and Brenda H. Howard
|
|
3,125
|
|
*
|
|
Jeffrey
M. Grieco~Revocable Living Trust DTD 7/19/2001~Jeffrey M. Grieco,
TTEE(1)
|
|
900
|
|
*
|
|
Jennifer
A. Roer IRA(1)
|
|
340
|
|
*
|
|
Jennifer
Roach IRA(1)
|
|
520
|
|
*
|
|
Jerald
Siegel and Francine Siegel
|
|
1,000
|
|
*
|
|
Jeremy
Hirst
|
|
2,000
|
|
*
|
|
Jerome
E. Muth IRA—Roth(1)
|
|
2,030
|
|
*
|
|
Jerome
E. Muth~Revocable Living Trust U/A DTD 10/31/96~Jerome E. Muth,
TTEE(1)
|
|
360
|
|
*
|
|
Jerry
Armstrong(4)
|
|
6,000
|
|
*
|
|
Joan
M. O’Neil~Combined Portfolio(1)
|
|
2,070
|
|
*
|
|
Johanne
S. Rupp IRA(54)
|
|
1,500
|
|
*
|
|
John &
Lisa O’Neil~Joint Personal Portfolio(1)
|
|
1,140
|
|
*
|
|
John &
Mary Ann Duffey(4)
|
|
4,400
|
|
*
|
|
John
Barron, Jr.-Personal Portfolio(1)
|
350
|
|||
|
John
A. Barron—Personal Portfolio Mississippi(1)
|
|
160
|
|
*
|
|
John
A. Barron—Personal Portfolio Ohio(1)
|
|
370
|
|
*
|
|
John
A. Barron IRA Rollover(1)
|
|
2,170
|
|
*
|
|
John
B. Maynard—Personal Portfolio(1)
|
|
9,050
|
|
*
|
|
John
B. Maynard Jr.~Irrevocable Trust U/A DTD 12/12/93~John B. Maynard
Sr.,
TTEE(1)
|
|
300
|
|
*
|
|
John
C. & Sarah L. Kunesh—JTWROS(1)
|
|
570
|
|
*
|
|
John
C. Ernst, Jr.~Revocable Trust~John C. Ernst, Jr. TTEE(1)
|
|
8,050
|
|
*
|
|
John
C. York
|
|
8,125
|
|
*
|
|
John
D. Thiel
|
|
3,125
|
|
*
|
|
John
Duffey IRA(4)
|
|
2,600
|
|
*
|
|
John
E. Meyer~Combined Portfolio(1)
|
|
44,760
|
|
*
|
|
John
E. Palcher IRA Rollover(1)
|
|
510
|
|
*
|
|
John
Eubel & Betty Eubel~Combined Portfolio(1)
|
|
3,990
|
|
*
|
|
John
Glickstein & Eileen Glickstein
|
|
2,000
|
|
*
|
|
John
H. Lienesch IRA(1)
|
|
1,630
|
|
*
|
|
John
Hancock Advisors FBO JHIC Vermont—Hallmark Cards,
Inc.(55)†
|
|
28,750
|
|
*
|
|
John
Hancock Balanced Fund(55)
|
|
87,750
|
|
*
|
|
John
Hancock Funds II (JH2)(32)
|
|
85,342
|
|
*
|
|
John
Hancock Large Cap Equity Fund(55)
|
|
971,845
|
|
1.92%
|
|
John
Hancock Mid Cap Growth Fund(55)
|
|
118,808
|
|
*
|
|
John
Hancock Trust (JH1)(32)
|
|
76,885
|
|
*
|
|
John
Hancock Trust Utilities Trust(56)
|
|
77,190
|
|
*
|
|
John
J. Miller~Personal Portfolio(1)
|
|
630
|
|
*
|
|
John
J. Pohanka Family Foundation(57)
|
|
20,000
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
John
M. Walsh, Jr. IRA Rollover(1)
|
|
910
|
|
*
|
|
John
M. & Patricia D. Coleman JTWROS
|
12,500
|
*
|
||
|
John
O’Meara IRA Rollover(1)
|
|
310
|
|
*
|
|
John
Sarron, Jr.—Personal Portfolio(1)
|
|
350
|
|
*
|
|
John
T. & Julia M. Paas—JTWROS(1)
|
|
650
|
|
*
|
|
John
T. Beaty Jr.
|
|
2,500
|
|
*
|
|
John
T. Dahm IRA(1)
|
|
2,170
|
|
*
|
|
John
T. Dahm IRA Rollover(1)
|
|
680
|
|
*
|
|
John
Whalen and Linda Rabbitt
|
|
6,250
|
|
*
|
|
Johnson
Revocable Living Trust(58)
|
|
10,000
|
|
*
|
|
Jon
D. & Linda N. Gruber Trust(59)
|
|
13,000
|
|
*
|
|
Jon
R. Yenor & Caroline L. Brecker – Joint Tenants(1)
|
|
970
|
|
*
|
|
Jon
R. Yenor IRA Rollover(1)
|
|
720
|
|
*
|
|
Joseph
D. & Julia A. DiCicco~Combined Portfolio(1)
|
|
2,350
|
|
*
|
|
Joseph
D. & Suzanne F. Mackil~Combined Portfolio(1)
|
|
3,270
|
|
*
|
|
Joseph
D. Maloney~Personal Portfolio(1)
|
|
830
|
|
*
|
|
Joseph
F. & Mary K. Scullion~Combined Portfolio(1)
|
|
1,360
|
|
*
|
|
Joseph
H. Szymanski
|
|
6,250
|
|
*
|
|
Joyce
Ann Porter~Revocable Living Trust dtd 12/1/00~Joyce Ann Porter,
TTEE(1)
|
|
1,070
|
|
*
|
|
Judith
Keasel~IRA Rollover(1)
|
|
320
|
|
*
|
|
Kandythe
J. Miller~Combined Portfolio(1)
|
|
730
|
|
*
|
|
Karen
Shay IRA(4)
|
|
4,800
|
|
*
|
|
Karfunkel
Family Foundation(60)
|
|
5,000
|
|
*
|
|
Kathleen
J. Lienesch~Combined Portfolio(1)
|
|
1,180
|
|
*
|
|
Kathleen
J. Lienesch IRA(1)
|
|
230
|
|
*
|
|
Kathleen
Swanson Revocable Trust(61)
|
|
6,250
|
|
*
|
|
Kathryn
A. Leeper~Combined Portfolio(1)
|
|
520
|
|
*
|
|
Keith
L. Aukerman IRA Rollover(1)
|
|
1,240
|
|
*
|
|
Kenneth
E. & Doreen G. Klaus~Joint Personal Portfolio(1)
|
|
310
|
|
*
|
|
Kenneth
E. Shelton IRA Rollover(1)
|
|
760
|
|
*
|
|
Kenneth
F. Rupp Revocable Trust(62)
|
|
1,500
|
|
*
|
|
Kettering
Anesthesia Associates—Profit Sharing Plan FBO David J.
Pappenfus(1)
|
|
1,160
|
|
*
|
|
Kevin
E. Slattery~Trust B DTD 5/17/99~De Ette Rae Hart TTEE(1)
|
|
950
|
|
*
|
|
King
Investment Advisors, Inc. FBO Alice R. Hudspeth(63)
|
|
4,500
|
|
*
|
|
King
Investment Advisors, Inc. FBO Barnett L. Gershen(63)
|
|
4,300
|
|
*
|
|
King
Investment Advisors, Inc. FBO Bill Ham(63)
|
|
12,000
|
|
*
|
|
King
Investment Advisors, Inc. FBO Bill Ham, IRA Rollover(63)
|
|
5,500
|
|
*
|
|
King
Investment Advisors, Inc. FBO Charles O. Requadt and Julie K.
Requadt(63)
|
|
3,700
|
|
*
|
|
King
Investment Advisors, Inc. FBO David A. Todd(63)
|
|
3,600
|
|
*
|
|
King
Investment Advisors, Inc. FBO E. Holt Williams(63)
|
|
1,100
|
|
*
|
|
King
Investment Advisors, Inc. FBO Emily L. Todd(63)
|
|
4,600
|
|
*
|
|
King
Investment Advisors, Inc. FBO First Security Bank Commingled Investment
Fund for Qualified Employee Benefit Plans(63)
|
|
74,100
|
|
*
|
|
King
Investment Advisors, Inc. FBO Gerald Wayne Broesche and Brooke Anne
Broesch(63)
|
|
3,700
|
|
*
|
|
King
Investment Advisors, Inc. FBO Greg Kung(63)
|
|
7,000
|
|
*
|
|
King
Investment Advisors, Inc. FBO H. J Foster, IRA
Rollover(63)
|
|
4,000
|
|
*
|
|
King
Investment Advisors, Inc. FBO J & S Black FLP(63)
|
|
4,000
|
|
*
|
|
King
Investment Advisors, Inc. FBO James E. Brasher, IRA
Rollover(63)
|
|
1,500
|
|
*
|
|
King
Investment Advisors, Inc. FBO Kevin Raine(63)
|
|
6,800
|
|
*
|
|
King
Investment Advisors, Inc. FBO Lucie W. Todd(63)
|
|
7,000
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
King
Investment Advisors, Inc. FBO Mary L. G. Theroux Charitable Remainder
Unitrust(63)
|
|
3,600
|
|
*
|
|
King
Investment Advisors, Inc. FBO Mary L. G. Theroux Revocable Living
Trust(63)
|
|
4,100
|
|
*
|
|
King
Investment Advisors, Inc. FBO Onedia Tribe of Indians(63)
|
|
22,000
|
|
*
|
|
King
Investment Advisors, Inc. FBO Shirley P. Rabke(63)
|
|
4,700
|
|
*
|
|
King
Investment Advisors, Inc. FBO Wray & Todd Interests,
Ltd.(63)
|
18,200
|
|
*
|
|
|
Kirby
C. Leeper IRA Rollover(1)
|
|
560
|
|
*
|
|
LH
Rich Companies(64)
|
|
10,000
|
|
*
|
|
Lagunitas
Partners LP(42)
|
|
41,000
|
|
*
|
|
Lannan
Foundation(9)†
|
|
177,500
|
|
*
|
|
Larry &
Marilyn Lehman~Combined Portfolio(1)
|
|
1,350
|
|
*
|
|
Lauren
Peck~Combined Portfolio(1)
|
|
750
|
|
*
|
|
Lawrence
Chimevine
|
|
3,000
|
|
*
|
|
Lawrence
J. Harmon Trust A~DTD 1/29/2001~G Harmon & T Harmon & H
Wall TTEES(1)
|
|
540
|
|
*
|
|
Lawrence
S. Connor~Personal Portfolio(1)
|
|
1,510
|
|
*
|
|
Lee
S. Johnson FBO Edwin Johnson(3)
|
|
1,300
|
|
*
|
|
Lee
S. Johnson FBO Susanne Mann(3)
|
|
1,300
|
|
*
|
|
Lehman
Brothers(65)††
|
|
75,000
|
|
*
|
|
Leo
K. & Katherine H. Wingate~Joint Personal
Portfolio(1)
|
|
540
|
|
*
|
|
Leo
Mullen and Helene Patterson
|
|
6,250
|
|
*
|
|
Leonard
Weinglass (35)
|
5,200
|
*
|
||
|
LeRoy
Eakin, III & Lindsay Eakin
|
|
15,625
|
|
*
|
|
Leslie
L. Alexander
|
|
175,000
|
|
*
|
|
Lester
J. & Suzan A. Charnock ~JTWROS(1)
|
|
1,690
|
|
*
|
|
Lia
K. Stratis(3)
|
|
1,500
|
|
*
|
|
Liebro
Partners, LLC(66)
|
|
2,500
|
|
*
|
|
Lime
Partners, LLC(67)
|
|
24,000
|
|
*
|
|
Linda
M. Meister MD~Combined Portfolio(1)
|
|
860
|
|
*
|
|
LJB
Inc. Savings Plan & Trust~U/A DTD 1/1/1985 FBO T. Beach~Stephen
D. Williams TTEE(1)
|
|
470
|
|
*
|
|
Lolita
Higbie Living TR(4)
|
|
2,100
|
|
*
|
|
Lorraine
L. Earman IRA Rollover(1)
|
|
200
|
|
*
|
|
Louis
D. Cohen REVTR—IMA(43)
|
|
2,500
|
|
*
|
|
Lucy
Wallace(4)
|
|
2,700
|
|
*
|
|
Lynda
Goldstein(4)
|
|
20,000
|
|
*
|
|
M.
Sinclair Adams Ziesing(3)
|
|
8,000
|
|
*
|
|
M.J.
Murdock Charitable Trust(35)
|
|
53,900
|
|
*
|
|
MA
Deep Event, Ltd.(27)†
|
|
72,100
|
|
*
|
|
Manulife
Utilities Fund
|
|
10,300
|
|
*
|
|
Mara
Wharton(3)
|
|
2,000
|
|
*
|
|
Marc
Bettius
|
|
3,125
|
|
*
|
|
Marcia
M. O’Rourke~Combined Portfolio(1)
|
|
2,070
|
|
*
|
|
Margaret
Bailey Hardenbergh(3)
|
|
400
|
|
*
|
|
Margaret
S. Adam Revocable TRUST~DTD 4/10/02~Margaret S. Adam,
TTEE(1)
|
|
410
|
|
*
|
|
Maria
Gray Valentine Curtis Trust(68)†
|
|
6,000
|
|
*
|
|
Marie
D. Wootton(3)
|
|
600
|
|
*
|
|
Marjorie
Mead Marshall Trust(3)
|
|
750
|
|
*
|
|
Mark
Ristow Roth IRA(69)
|
|
2,500
|
|
*
|
|
Mark
S. Wallace(4)
|
|
1,400
|
|
*
|
|
Martha
Cox Farrell(3)
|
|
900
|
|
*
|
|
Martha
S. Senkiw~Revocable Living Trust DTD 11/02/98~Martha S. Senkiw,
TTEE(1)
|
|
350
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Martin
Hirschhorn
|
|
20,000
|
|
*
|
|
Martin
J. & Lisa L. Grunder~Combined Portfolio(1)
|
|
430
|
|
*
|
|
Marvin
E. Nevins~Personal Portfolio(1)
|
|
860
|
|
*
|
|
Mary
Ann Duffey IRA(4)
|
|
1,600
|
|
*
|
|
Mary
Clark Stambaugh(3)
|
|
400
|
|
*
|
|
Mary
Ellen Kremer Living Trust~U/A DTD 01/27/1998~Mary Ellen Kremer
TTEE(1)
|
|
960
|
|
*
|
|
Mary
J. Dolan Trust—IMA(43)
|
|
1,667
|
|
*
|
|
Mary
J. Gitzinger IRA(1)
|
|
1,620
|
|
*
|
|
Mary
Kunesh~Combined Portfolio(1)
|
|
4,340
|
|
*
|
|
Mary
Lou R. Baggott~Personal Portfolio(1)
|
|
1,110
|
|
*
|
|
Mary
M. Stratis(3)
|
|
5,800
|
|
*
|
|
Mary
M. Stratis Trust(70)
|
|
1,900
|
|
*
|
|
Mary
Stratis Limited Partnership(3)
|
|
3,000
|
|
*
|
|
Masters
Select Smaller Companies Fund(9)†
|
|
179,900
|
|
*
|
|
Matthew
C. May
|
|
3,125
|
|
*
|
|
Maureen
D. Weaver~Combined Portfolio(1)
|
|
520
|
|
*
|
|
Maureen
K. Aukerman IRA Rollover(1)
|
|
810
|
|
*
|
|
Maureen
K. Aukerman Personal Portfolio(1)
|
|
170
|
|
*
|
|
Melinda
L. Eubel IRA(1)
|
|
620
|
|
*
|
|
Melodee
Ruffo~Personal Portfolio(1)
|
|
680
|
|
*
|
|
Melvin
Don Henry, Jr.
|
|
3,000
|
|
*
|
|
Mercury
Global Allocation Strategy Portfolio(71)
|
|
10,900
|
|
*
|
|
Mercury
Global Allocation V.I. Fund(71)
|
|
30,100
|
|
*
|
|
Merril
Mason(3)
|
|
2,200
|
|
*
|
|
Merrill
Lynch Global Allocation Fund, Inc.(71)†
|
|
500,000
|
|
*
|
|
MFS
Mid Cap Value Fund(56)†
|
|
313,200
|
|
*
|
|
MFS
Utilities Fund(56)†
|
|
895,410
|
|
1.77%
|
|
MFS
Utilities Portfolio (IIU)(56)†
|
|
29,370
|
|
*
|
|
MFS
Variable Insurance Trust—MFS Utilities Series(56)†
|
|
551,080
|
|
1.09%
|
|
MFS/Sun
Life Series Trust—Mid Cap Value Series(56)†
|
|
11,600
|
|
*
|
|
MFS/Sun
Life Series Trust—Utilities Series(56)†
|
|
195,350
|
|
*
|
|
Miami
Valley Cardiologists, Inc. Profit Sharing Plan Trust—EBS Equity
100(1)
|
|
8,610
|
|
*
|
|
Miami
Valley Cardiologists, Inc. Profit Sharing Plan Trust—EBS Small
Cap(1)
|
|
3,590
|
|
*
|
|
Michael &
Marilyn E. Lipson—JTWROS(1)
|
|
260
|
|
*
|
|
Michael
A. Houser & H. Stephen Wargo—JTWROS(1)
|
|
250
|
|
*
|
|
Michael &
Andrea Dakin~Combined Portfolio(1)
|
|
960
|
|
*
|
|
Michael
F. Horn, Sr.
|
|
4,375
|
|
*
|
|
Michael
G. Lunsford IRA(1)
|
|
590
|
|
*
|
|
Michael
G. Lunsford Personal Portfolio(1)
|
|
290
|
|
*
|
|
Michael
G. & Dara L. Bradshaw~Combined Portfolio(1)
|
|
1,530
|
|
*
|
|
Michael
J. Mathile~Revocable Living Trust DTD 10/03/96(1)
|
|
1,990
|
|
*
|
|
Michael
J. McQuiston IRA Rollover(1)
|
|
1,150
|
|
*
|
|
Michael
J. Suttman~Personal Portfolio(1)
|
|
580
|
|
*
|
|
Michael
J. Wenzler~Personal Portfolio(1)
|
|
310
|
|
*
|
|
Michael
K. Stout Revocable Liv Trust~Dtd 12/27/94~Michael K. & Carol A.
Stout(1)
|
|
1,220
|
|
*
|
|
Michael
Kerr
|
|
175,000
|
|
*
|
|
Michael
Lipson Profit Sharing Plan~DTD 1/1/03~Michael Lipson,
TTEE(1)
|
|
1,320
|
|
*
|
|
Michael
S. Greger
|
|
3,125
|
|
*
|
|
Michelle
Tagliamonte IRA Rollover(1)
|
|
610
|
|
*
|
|
Milo
Noble~Personal Portfolio(1)
|
|
5,090
|
|
*
|
|
Milton
V. Peterson Revocable Trust(72)
|
|
93,750
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Modern
Capital Fund, LLC(73)
|
|
25,000
|
|
*
|
|
Monte
R. Black~Personal Portfolio(1)
|
|
4,180
|
|
*
|
|
Monte
T. Brown(3)
|
|
5,000
|
|
*
|
|
Monte
T. Brown L.(3)
|
|
1,500
|
|
*
|
|
Moore
Fixed Income Fund, Ltd.(74)
|
|
625,000
|
|
1.24%
|
|
Moore
Macro Fund, L.P.(74)
|
|
701,200
|
|
1.39%
|
|
Morgan
Moran(3)
|
|
100
|
|
*
|
|
Munder
Small Cap Value Fund(75)†
|
|
270,000
|
|
*
|
|
Natelli
Communities, LP(76)
|
|
15,625
|
|
*
|
|
Nationwide
Small Cap Fund(39)
|
|
1,637
|
|
*
|
|
Nayann
B. Pazyniak IRA Rollover(1)
|
|
300
|
|
*
|
|
Neal
L. & Kandythe J. Miller~Joint Personal
Portfolio(1)
|
|
490
|
|
*
|
|
Neal
L. Miller IRA Rollover(1)
|
|
210
|
|
*
|
|
Neil
Hazel IRA Rollover(1)
|
|
3,830
|
|
*
|
|
Neil
W. & Jeanne K. Hazel~Joint Personal Portfolio(1)
|
|
710
|
|
*
|
|
Neil
W. Hazel Personal Trust(1)
|
|
1,090
|
|
*
|
|
NH
Horizons Investments(77)
|
|
234,000
|
|
*
|
|
Noah
Pollack 93 Trust(4)
|
|
2,700
|
|
*
|
|
Noah
Pollack Rev Trust(4)
|
|
1,200
|
|
*
|
|
Nosrat
M. Hillman~Personal Portfolio(1)
|
|
390
|
|
*
|
|
Northern
Light Management(78)
|
|
20,000
|
|
*
|
|
Pacific
Credit Corp(13)
|
|
17,200
|
|
*
|
|
Pam
Graeser~Personal Portfolio(1)
|
|
340
|
|
*
|
|
Pamela
S. Carroll~Combined Portfolio(1)
|
|
260
|
|
*
|
|
Park
West Investors, LLC(79)
|
|
66,495
|
|
*
|
|
Park
West Partners International, Ltd.(79)
|
|
16,105
|
|
*
|
|
Pat &
Christine Beach
|
|
2,500
|
|
*
|
|
Patricia
A. Kremer Revocable Trust~DTD 04/29/04~Donald G. Kremer,
TTEE(1)
|
|
980
|
|
*
|
|
Patricia
Meyer Dorn~Combined Portfolio(1)
|
|
2,730
|
|
*
|
|
Patrick
A. Mickley & Amy Jo Mickley~Joint Personal
Portfolio(1)
|
|
910
|
|
*
|
|
Patrick
J. Coleman IRA Rollover(1)
|
|
1,320
|
|
*
|
|
Patrick
L. & Jackie L. McGohan~Joint Personal
Portfolio(1)
|
|
910
|
|
*
|
|
Paul &
Joan Strausbaugh~Personal Portfolio(1)
|
|
1,060
|
|
*
|
|
Paul
J. Routh IRA(1)
|
|
420
|
|
*
|
|
Paul
R. & Dina E. Crnkovich~Joint Personal
Portfolio(1)
|
|
3,710
|
|
*
|
|
Paul
R. Crnkovich~IRA Rollover(1)
|
|
650
|
|
*
|
|
Paul
S. & Cynthia J. Guthrie~Joint Personal
Portfolio(1)
|
|
1,370
|
|
*
|
|
Paul
W. Nordt III IRA Rollover—401(k)(1)
|
|
1,090
|
|
*
|
|
Peck
Family Investments, Ltd.(1)
|
|
690
|
|
*
|
|
Pennsylvania
Public School Employee Retirement Fund(9)†
|
|
1,222,400
|
|
2.42%
|
|
Pennsylvania
Treasury Department—Tuition Account Program(1)
|
|
21,730
|
|
*
|
|
Perrino
Fernandez~Combined Portfolio(1)
|
|
980
|
|
*
|
|
Peter &
Noreen McInnes~Combined Portfolio(1)
|
|
8,770
|
|
*
|
|
Peter
D. Senkiw~Revocable Living Trust DTD 11/02/98~Peter D. Senkiw,
TTEE(1)
|
|
360
|
|
*
|
|
Peter
H. Huizenga
|
|
41,625
|
|
*
|
|
Peter
M. DeProsperis, Jr.
|
|
3,125
|
|
*
|
|
Peter
R. Newman IRA Rollover(1)
|
|
2,260
|
|
*
|
|
Peter
R. Ziesing(3)
|
|
300
|
|
*
|
|
Philip
H. Wagner~Combined Portfolio(1)
|
|
12,130
|
|
*
|
|
Philip
M. Haisley IRA Rollover(1)
|
|
310
|
|
*
|
|
Phillip
Edwin Crystal Trust(3)
|
|
2,000
|
|
*
|
|
Pioneer
Funds—U.S. Small Companies (LUX)(80)
|
|
57,800
|
|
*
|
|
Pioneer
Small Cap Value Fund(80)
|
|
325,300
|
|
*
|
|
Pioneer
Small Cap Value VCT Portfolio(80)
|
|
16,900
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Placer
Creek Investors Bermuda L.P.(12)
|
|
120,700
|
|
*
|
|
Placer
Creek Partners, L.P.(12)
|
|
165,600
|
|
*
|
|
Pohanka
Oldsmobile, Inc.(57)
|
|
40,000
|
|
*
|
|
Potato
Patch CRUT(4)
|
|
8,000
|
|
*
|
|
Presidio
Partners, LP(81)
|
|
76,200
|
|
*
|
|
Quissett
Investors Bermuda L.P.(12)
|
|
319,500
|
|
*
|
|
Quissett
Partners, L.P.(12)
|
|
190,400
|
|
*
|
|
R&D
Investment Partnership~Combined Portfolio(1)
|
|
13,960
|
|
*
|
|
Raj
Singh and Neera Singh
|
|
60,900
|
|
*
|
|
Randy
H. & Pamela F. Yoakum~Joint Personal Portfolio(1)
|
|
670
|
|
*
|
|
Ray
O. Brownlie(4)
|
|
6,700
|
|
*
|
|
Raymond
W. Lane~Personal Portfolio(1)
|
|
1,570
|
|
*
|
|
Raytheon
Company Combined DB/DC Master Trust(12)
|
|
85,500
|
|
*
|
|
Raytheon
Master—Pension Trust(1)
|
|
80,000
|
|
*
|
|
Rensselaer
Polytechnic Institute(9)†
|
|
75,700
|
|
*
|
|
Richard
D. Smith MD~Combined Portfolio(1)
|
|
1,130
|
|
*
|
|
Richard
E. Holmes IRA Rollover—Sharon Longo & Marianne Nestor, Durable
POA(1)
|
|
1,210
|
|
*
|
|
Richard
E. Holmes~Revocable Living Trust DTD 08/25/94~Richard E. Holmes,
TTEE—Sharon Longo & Marianne Nestor, Durable
POA(1)
|
|
5,350
|
|
*
|
|
Richard
Feinberg
|
|
10,000
|
|
*
|
|
Richard
H. LeSourd, Jr. IRA-SEP(1)
|
|
1,160
|
|
*
|
|
Richard
S. Bodman Revocable Trust(82)
|
|
14,062
|
|
*
|
|
Richard
T. Wharton Trust Article 2(3)
|
|
1,700
|
|
*
|
|
Richard
Thomas Wharton(3)
|
|
500
|
|
*
|
|
RNR
II, LP(46)
|
|
279,300
|
|
*
|
|
RNR
III, LP(46)
|
|
115,500
|
|
*
|
|
RNR
III, Ltd(46)
|
|
59,300
|
|
*
|
|
ROBECO
USA, LLC(83)†
|
|
46,410
|
|
*
|
|
Robert &
Candy Goldstein
|
|
5,000
|
|
*
|
|
Robert
A. Riley Beneficiary—Inherited IRA(1)
|
|
1,070
|
|
*
|
|
Robert
A. Riley ~Revocable Family Trust DTD 5/8/97~Robert A. Riley
TTEE(1)
|
|
280
|
|
*
|
|
Robert
Binderman
|
|
2,000
|
|
*
|
|
Robert
C. Kettler
|
|
15,625
|
|
*
|
|
Robert
C. Rewey, Jr. Revocable Trust(84)
|
|
3,625
|
|
*
|
|
Robert
Colaizzi IRA(1)
|
|
2,760
|
|
*
|
|
Robert
F. Mays Trust~DTD 12/7/95~Robert F. Mays TTEE(1)
|
|
1,160
|
|
*
|
|
Robert
Feinberg
|
|
5,000
|
|
*
|
|
Robert
Grew(3)
|
|
2,800
|
|
*
|
|
Robert
L. Kilian IRA Rollover(1)
|
|
680
|
|
*
|
|
Robert
L. Kilian~Trust U/A DTD 9/25/97~Robert L. Kilian TTEE(1)
|
|
1,050
|
|
*
|
|
Robert
Lowry IRA(1)
|
|
300
|
|
*
|
|
Robert
N. Sturwold~Personal Portfolio(1)
|
|
480
|
|
*
|
|
Robert
Slayton
|
|
2,000
|
|
*
|
|
Robert
W. Lowry ~Personal Portfolio(1)
|
|
1,760
|
|
*
|
|
Rockbay
Capital Fund, LLC(85)
|
|
7,848
|
|
*
|
|
Rockbay
Capital Institutional Fund, LLC(85)
|
|
116,542
|
|
*
|
|
Rockbay
Capital Offshore Fund, Ltd.(85)
|
|
305,610
|
|
*
|
|
Rodney
K. Jones IMA(43)
|
|
4,166
|
|
*
|
|
Roland
and Fanny Anderson—JTWROS(1)
|
|
1,050
|
|
*
|
|
Ronald
E. & Sharon S. Yoakum~Joint Personal Portfolio(1)
|
|
1,850
|
|
*
|
|
Ronald
L. Gallatin
|
|
30,000
|
|
*
|
|
Ronald
Lee Devore MD & Duneen Lynn Devore—JTWROS(1)
|
|
250
|
|
*
|
|
Rosemary
Winner Wood IRA(1)
|
|
610
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
Ruth
E. Kremer Revocable Living Trust~DTD 5/7/96~David R. Kremer &
Ruth E. Kremer, TTEES(1)
|
|
780
|
|
*
|
|
Samuel
L. Lim IRA Rollover(86)
|
|
3,500
|
|
*
|
|
Samuel
W. Lumby~Personal Portfolio(1)
|
|
1,090
|
|
*
|
|
Sandra
E. Nischwitz~Personal Portfolio(1)
|
|
1,130
|
|
*
|
|
Saratoga
Capital, LLC(87)
|
|
60,000
|
|
*
|
|
Scorpius
Sicav(88)
|
|
12,500
|
|
*
|
|
Scudder
Dreman Small Cap Value Fund(89)
|
|
219,300
|
|
*
|
|
Sean
R. Convery~Personal Portfolio (1)
|
|
290
|
|
*
|
|
Semele
Foundas~Revocable Living Trust U/A DTD 9/15/97~Semele Foundas &
David M. Morad Jr. TTEE(1)
|
|
2,110
|
|
*
|
|
SF
Capital Partners Ltd.(90)†
|
|
425,000
|
|
*
|
|
Sharon
A. Lowry~IRA~Robert W. Lowry, POA(1)
|
|
1,450
|
|
*
|
|
Shay
Enterprises(4)
|
|
3,200
|
|
*
|
|
Sibley
Mason Lyons U/D Trust(3)
|
|
2,000
|
|
*
|
|
Skarpia
Sicav(91)
|
|
18,750
|
|
*
|
|
Sonia
L. Stratis(3)
|
|
1,500
|
|
*
|
|
Southern
Farm Bureau Life Insurance Company(9)†
|
|
1,016,400
|
|
2.01%
|
|
Spindrift
Investors Bermuda L.P.(12)
|
|
935,200
|
|
1.85%
|
|
Spindrift
Partners, L.P.(12)
|
|
790,200
|
|
1.56%
|
|
Stanley &
Cynthia Rainey~Combined Portfolio(1)
|
|
1,060
|
|
*
|
|
Stanley
J. Katz IRA(1)
|
|
320
|
|
*
|
|
Stephen &
Cynthia Hopf~Joint Personal Portfolio(1)
|
|
580
|
|
*
|
|
Stephen
M. Bartram(3)
|
|
3,200
|
|
*
|
|
Steven &
Victoria Conover~Joint Personal Portfolio(1)
|
|
440
|
|
*
|
|
Steven
A. Miller~Revocable Living Trust U/A June 5, 1998~Steven A. Miller,
C.E. Liesner TTEES(1)
|
|
2,910
|
|
*
|
|
Steven
E. & Mary J. Ross~Joint Personal Portfolio(1)
|
|
7,610
|
|
*
|
|
Steven
K. Suttman IRA Rollover(1)
|
|
470
|
|
*
|
|
Steven
M. & Rebecca A. Nelson~Combined Portfolio(1)
|
|
1,120
|
|
*
|
|
Steven
Rothstein
|
|
5,000
|
|
*
|
|
Stewart
Investment Company(92)
|
|
62,500
|
|
*
|
|
Storebrand
Investments(93)
|
|
625,000
|
|
1.24%
|
|
Stratford
Partners, L.P.(94)
|
|
30,000
|
|
*
|
|
Stuckey
Timberland, Inc.(95)
|
|
15,625
|
|
*
|
|
Suellen
Louis IRA(1)
|
|
260
|
|
*
|
|
Susan
J. Gagnon~Revocable Living Trust UA 8/30/95~Susan J. Gagnon
TTEE(1)
|
|
1,960
|
|
*
|
|
Susanne
Mann(3)
|
|
100
|
|
*
|
|
SVS
Dreman Small Cap Value Portfolio(89)
|
|
130,700
|
|
*
|
|
Tanya
P. Hrinyo Pavlina~Revocable Trust DTD 11/21/95~Tanya P. Hrinyo Pavlina
TTEE(1)
|
|
1,120
|
|
*
|
|
TBP
Capital Advisors Growth Fund(3)
|
|
2,200
|
|
*
|
|
Teressa
G. Perry(4)
|
|
5,700
|
|
*
|
|
The
Anderson Family~Revocable Trust, DTD 09/23/02~J. Kendall & Tamera
L. Anderson, TTEES(1)
|
|
1,620
|
|
*
|
|
The
Charles T. Walsh Trust~DTD 12/6/2000~Charles T. Walsh
TTEE(1)
|
|
2,340
|
|
*
|
|
The
Christine F. Lindeman-Thomas~Revocable Living Trust DTD 08/22/91~Christine
F. Lindeman-Thomas, TTEE Gregory J. Thomas, POA(1)
|
|
2,060
|
|
*
|
|
The
Holland Company(96)
|
|
1,687
|
|
*
|
|
The
Killen Family Revocable Living Trust~DTD 4/27/2004~Terry L. Killen
and/or
Esther H. Killen Grantors and/or Trustees(1)
|
|
890
|
|
*
|
|
The
Louis J. Thomas~Irrevocable Trust DTD 08/22/91~Gregory J. Thomas,
TTEE(1)
|
|
490
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
The
Northwestern Mutual Life Insurance Company(97)†
|
|
1,500,000
|
|
2.97%
|
|
The
Ospraie Portfolio Ltd.(98)
|
|
75,000
|
|
*
|
|
The
Shaar Fund, Ltd.(99)
|
|
25,000
|
|
*
|
|
The
Thomas & Carolyn Mlinac ~ Combined Portfolio(1)
|
|
710
|
|
*
|
|
The
Third Avenue Small Cap Value Fund Series(100)†
|
|
800,000
|
|
1.58%
|
|
The
William K. Warren Foundation(101)
|
|
15,000
|
|
*
|
|
The
X Account(24)
|
|
6,000
|
|
*
|
|
Thomas
A. & Nancy A. Miller~Joint Personal Portfolio(1)
|
|
1,250
|
|
*
|
|
Thomas
A. Miller IRA Rollover(1)
|
|
860
|
|
*
|
|
Thomas
B. Parsons
|
|
2,000
|
|
*
|
|
Thomas
First and Kristan First
|
|
3,000
|
|
*
|
|
Thomas
G. Brown Article IV Trust(3)
|
|
1,300
|
|
*
|
|
Thomas
G. Brown Article V Trust(3)
|
|
600
|
|
*
|
|
Thomas
Hughes
|
|
1,500
|
|
*
|
|
Thomas
J. & Susan J. Maio~Joint Personal Portfolio(1)
|
|
670
|
|
*
|
|
Thomas
J. Maio IRA Rollover(1)
|
|
220
|
|
*
|
|
Thomas
L. & Mary Leslie Falvey~Combined Portfolio(1)
|
|
1,470
|
|
*
|
|
Thomas
L. Hausfeld IRA(1)
|
|
370
|
|
*
|
|
Thomas
Shannon
|
|
2,000
|
|
*
|
|
Thomas
V. & Charlotte E. Moon Family Trust~Joint Personal
Trust(1)
|
|
670
|
|
*
|
|
Thomson
Hirst & Gloria Trumpower, TBE
|
|
10,000
|
|
*
|
|
Tim
Rupli
|
|
1,875
|
|
*
|
|
Timothy &
Jayne Donahue
|
|
27,500
|
|
*
|
|
Timothy
A. Pazyniak IRA Rollover(1)
|
|
2,600
|
|
*
|
|
Timothy
B. Matz and Jane F. Matz
|
|
1,000
|
|
*
|
|
Timothy
J. Beach Trust~DTD 4/22/02~Timothy J. Beach, TTEE(1)
|
|
420
|
|
*
|
|
TNM
Investments LTD~Partnership(1)
|
|
290
|
|
*
|
|
Tobey
Titus(3)
|
|
200
|
|
*
|
|
Toby
G. Weber~Combined Portfolio(1)
|
|
4,230
|
|
*
|
|
Tom
Wallace(4)
|
|
2,700
|
|
*
|
|
Tonya
S. Harmon Revocable Living Trust(1)
|
|
1,230
|
|
*
|
|
Trident
Selections(12)
|
|
55,700
|
|
*
|
|
Trousil &
Associates(4)
|
|
4,800
|
|
*
|
|
Union
Bancaire Privee(102)
|
|
46,875
|
|
*
|
|
United
Capital Management(103)
|
|
15,000
|
|
*
|
|
Upnorth
Investments, Ltd. Trust(1)
|
|
11,150
|
|
*
|
|
Venture
Sim, Inc.(104)
|
|
6,250
|
|
*
|
|
Verle
McGillvray IRA Rollover(1)
|
|
530
|
|
*
|
|
Vestal
Venture Capital(105)
|
|
51,000
|
|
*
|
|
Victoire
Finance ET Gettion B.V.(99)
|
|
31,250
|
|
*
|
|
Victoria
Hyman
|
|
24,000
|
|
*
|
|
Virginia &
Edward O’Neil—JTWROS(1)
|
|
1,500
|
|
*
|
|
Vivian
D. Bichsel Revocable Living Trust~DTD 11/18/93~Vivian D. Bichsel,
TTEE(1)
|
|
1,080
|
|
*
|
|
Wallace
F. Holladay, Jr.
|
|
12,500
|
|
*
|
|
Wallace
Family Partnership(4)
|
|
8,000
|
|
*
|
|
Walter
A. Mauck IRA Rollover(1)
|
|
1,030
|
|
*
|
|
Whitebox
Hedged High Yield Partners, LP(106)
|
|
57,500
|
|
*
|
|
Whitebox
Intermarket Partners, LP(106)
|
|
57,500
|
|
*
|
|
Wiegers
Capital Management(107)
|
|
30,000
|
|
*
|
|
Wilbur
L. & Evilina A. Brown—JTWROS—All Cap Value(1)
|
|
2,540
|
|
*
|
|
Wilbur
L. & Evilina A. Brown—JTWROS—Small Cap Value(1)
|
|
310
|
|
*
|
|
William
A. Hazel Revocable Trust (108)
|
|
12,500
|
|
*
|
|
William
Achenbach IRA(4)
|
|
4,000
|
|
*
|
|
William
and Jonell Gharst~Combined Portfolio(1)
|
|
2,280
|
|
*
|
|
Selling
Stockholder
|
Number
of Shares of
Common
Stock
That
May Be Sold
|
Percentage
of
Common
Stock
Outstanding
|
||
|
William &
Sonja Kasch~Combined Portfolio(1)
|
|
1,110
|
|
*
|
|
William
J. Turner Revocable Living Trust~DTD 05/20/98 Schwab Account~William
J.
Turner, TTEE(1)
|
|
530
|
|
*
|
|
William
M. & Carla D. Thornton~Combined Portfolio(1)
|
|
1,380
|
|
*
|
|
William
Marr Campbell III
|
|
6,250
|
|
*
|
|
William
R. McCarty IRA Rollover(1)
|
|
1,350
|
|
*
|
|
William
R. Morris III
|
|
5,000
|
|
*
|
|
William
Regardie Rollover IRA(24)
|
|
3,000
|
|
*
|
|
William
Sneath(3)
|
|
15,500
|
|
*
|
|
WIRE
Family Trust (109)
|
|
4,000
|
|
*
|
|
WPG
Opportunistic Value Overseas Fund, Ltd.(83)†
|
|
27,900
|
|
*
|
|
WPG
Tudor Fund(109)
|
|
27,100
|
|
*
|
|
Wynnefield
Partners Small Cap Value LP I(110)
|
|
219,000
|
|
*
|
|
Wynnefield
Partners Small Cap Value, LP(110)
|
|
50,300
|
|
*
|
|
Wynnefield
Small Cap Value Offshore Fund, Ltd.(111)
|
|
148,000
|
|
*
|
|
Yale
Zimmerman
|
|
4,252
|
|
*
|
|
Yvonne
A. Grieco~Revocable Living Trust DTD 7/19/01~Yvonne A. Grieco,
TTEE(1)
|
|
810
|
|
*
|
|
Zweig-DiMenna
Fund Ltd.(47)
|
|
27,500
|
|
*
|
|
Zweig-DiMenna
International Ltd.(47)
|
|
323,500
|
|
*
|
|
Zweig-DiMenna
Natural Resources, L.P.(112)
|
|
16,300
|
|
*
|
|
Zweig-DiMenna
Partners, L.P.(47)
|
|
164,500
|
|
*
|
|
Zweig-DiMenna
Select, L.P.(47)
|
|
31,500
|
|
*
|
|
Zweig-DiMenna
Special Opportunities, L.P.(47)
|
|
62,500
|
|
*
|
_______________
*
Less
than one percent.
|
(1)
|
Paul
Crichton is the Director of Trading of EBS Asset Management, which
is the
Investment Advisor for this selling stockholder. By virtue of his
position
with EBS Asset Management, Mr. Crichton is deemed to hold investment
power and voting control over the shares held by this
shareholder.
|
|
(2)
|
Antonio
Perez is the Portfolio Manager of ABN Amro Bank and is deemed to
hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(3)
|
John
H. Plunkett is the President and Gerald D. Levitz is the Executive
Vice
President of TBP Advisors, Ltd., which is the Investment Advisor
of this
selling shareholder. By virtue of their positions with TBP Advisors,
Ltd.,
Mr. Plunkett and Mr. Levitz are deemed to hold investment power
and voting control over the shares held by this selling
stockholder.
|
|
(4)
|
George
F. Wood is the President of Wood & Co., which is the Investment
Advisor for this selling shareholder. By virtue of his position with
Wood & Co., Mr. Wood is deemed to hold investment power and
voting control over the shares held by this
shareholder.
|
|
(5)
|
J.
Philip Ferguson is the Vice President of AIM Advisors, Inc. which
is the
investment manager of this selling stockholder. By virtue of his
position
with AIM Advisors, Inc., Mr. Ferguson is deemed to hold investment
power and voting control over the shares held by this selling
stockholder.
|
|
(6)
|
Thomas
M. Yehle, Gary J. Frohman and Alan W. Steinberg are deemed to hold
shared
investment power and voting control over the shares held by this
selling
stockholder.
|
|
(7)
|
Karl
J. Wachter is the Authorized Signatory of Amaranth Advisor L.L.C.,
which
is the Trading Advisor of this selling shareholder. By virtue of
he
position with Amaranth Advisor L.L.C., Ms. Wachter is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(8)
|
The
selling shareholder is an investment company registered under the
Investment Company Act of 1940. Capital Research and Management Company
(CRMC), an investment adviser registered under the Investment Advisers
Act
of 1940, is the investment adviser to this selling shareholder. In
that
capacity, CRMC is deemed to be the beneficial owner of shares held
by this
selling shareholder.
|
|
(9)
|
J.
Richard Atwood is the Principal and Chief Operating Officer of First
Pacific Advisors, Inc., which is the Investment Advisor of this selling
shareholder. By virtue of his position with First Pacific Advisors,
Inc.,
Mr. Atwood is deemed to hold investment power and voting control over
the shares held by this selling stockholder.
|
|
(10)
|
Paul
J. Isaac is the Manager of Arbiter Partners, LP and is deemed to
hold
investment power and voting control over the shares held by this
selling
stockholder.
|
|
(11)
|
James
C. Pascoli is the President of Azzinaro Management, LLC and is deemed
to
hold investment power and voting control over the shares held by
this
selling stockholder.
|
|
(12)
|
Wellington
Management Company LLP is the Investment Advisor of this selling
shareholder. Wellington Management Company, LLP is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(13)
|
Michael
Powers is Managing Director of Bel Air Investment Advisors LLC, which
is
the investment manager of this selling stockholder. By virtue of
his
position with Bel Air Investment Advisors LLC, Mr. Powers is deemed
to hold investment power and voting control over the shares held
by this
selling stockholder.
|
|
(14)
|
Robert
Belfer is the managing general partner and Laurence Belfer is the
associate general partner of this selling stockholder. By virtue
of their
positions with the selling shareholder, Robert Belfer and Laurence
Belfer
are deemed to hold investment power and voting control over the shares
held by this selling stockholder.
|
|
(15)
|
LuAnn
Bennett is the Managing Member of Bennett Family LLC and is deemed
to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(16)
|
Rajesh
Idnani is the Manager of Blueprint Partners LP is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(17)
|
Mary
Ann Ludice is the Chief Compliance Officer of Boston Partners Asset
Management, LLC, which is the investment manager of this selling
shareholder. By virtue of her position at Boston Partners Asset
Management, LLC, Ms. Ludice is deemed to hold investment power and
voting control over the shares held by this selling
stockholder.
|
|
(18)
|
William
J. Brady is the general partner of Brady Retirement Fund, LP and
as such
is deemed to hold investment power and voting control over the shares
held
by this selling stockholder.
|
|
(19)
|
Eric
Cantin is the Investment Manager of Caisse De Depot Et Placement
Du Quebec
and is deemed to hold investment power and voting control over the
shares
held by this selling stockholder.
|
|
(20)
|
William
C. Eacho is the Manager of Carlton Capital Group, LLC and is deemed
to
hold investment power and voting control over the shares held by
this
selling shareholder.
|
|
(21)
|
Ellen
H. Adams is the Principal of CastleRock Management, LLC, which is
the
Investment Adviser of this selling shareholder. By virtue of her
position
with CastleRock Management, Ms. Adams is deemed to hold investment
power and voting control over the shares held by this selling
shareholder.
|
|
(22)
|
Jean
Philippe Flament is the Portfolio Manager of Cheyne Capital and is
deemed
to hold investment power and voting control over the shares held
by this
selling shareholder.
|
|
(23)
|
Robert
J. Flanagan is the Manager of CNF Investments, LLC and as such is
deemed
to hold investment power and voting control over the shares held
by this
selling shareholder.
|
|
(24)
|
Harold
Zirkin is the President of Zirkin Cuther Investment, which is the
Investment Advisor of this selling shareholder. By virtue of his
position
with Zirkin Cuther Investment, Mr. Zirkin is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(25)
|
Daniel
B. Zwirn is the Managing Member of D.B. Zwirn Holdings, LLC, the
general
partner of D.B. Zwirn Special Opportunities Fund, LP. By virtue of
his
position at the general partner, Mr. Zwirn is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(26)
|
As
an officer of the selling shareholder, Patrick Corrigan holds investment
power and voting control over the shares held by this selling
shareholder.
|
|
(27)
|
Matthew
Halbower is the Portfolio Manager of Deephaven Capital Management
LLC,
which is the General Partner of this selling shareholder. By virtue
of his
position with Deephaven Capital Management LLC, Mr. Halbower is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(28)
|
David
Baker is the Managing Director of Deutsche Bank Alternative Trading
and is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(29)
|
Simon
Glick is the manager of Siget, LLC, which is the General Partner
of this
selling shareholder. By virtue of his position with Siget, LLC,
Mr. Glick is deemed to hold investment power and voting control over
the shares held by this selling stockholder.
|
|
(30)
|
Alexander
W. Rutherford is the Portfolio Manager of Drake Asset Management
LLC,
which is the General Partner of this selling shareholder. By virtue
of his
position with Drake Asset Management LLC, Mr. Rutherford is deemed to
hold investment power and voting control over the shares held by
this
selling shareholder.
|
|
(31)
|
Edward
Fox has investment power and voting control over the shares held
by this
selling stockholder.
|
|
(32)
|
David
Williams is the Managing Director of U.S. Trust, which is the Investment
Advisor of this selling shareholder. By virtue of his position with
U.S.
Trust, Mr. Williams is deemed to hold investment power and voting
control over the shares held by this selling
shareholder.
|
|
(33)
|
James
Cornfeld is the Vice President of First Bank, Inc. and is deemed
to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(34)
|
Robert
J. Flanagan is the General Partner of Flanagan Family Limited Partnership
and is deemed to hold investment power and voting control over the
shares
held by this selling shareholder.
|
|
(35)
|
William
D. Zantzinger Jr. is a Partner of Gardner Lewis Asset Management,
which is
the Investment Advisor of this selling shareholder. By virtue of
his
position with Gardner Lewis Asset Management , Mr. Zantzinger is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(36)
|
William
J. Brady is the general partner of Geary Partners, LP and as such
is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(37)
|
Noam
Gottesman, Pierre Lagrange, Philippe Jabre and Emmanuel Roman are
Directors of GLG Partners LP, which is the Investment Manager of
this
selling shareholder. By virtue of their positions with GLG Partners
LP,
the above listed directors are deemed to hold investment power and
voting
control over the shares held by this selling
shareholder.
|
|
(38)
|
Brandon
R. Perry is the Principal of Global Capital Ltd. and is deemed to
hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(39)
|
Richard
F. Fonash is the Vice President and COO-Investments of Gartmore Global
Investment, which is the Investment Advisor of this selling shareholder.
By virtue of his position with Gartmore Global Investment, Mr. Fonash
is deemed to hold investment power and voting control over the shares
held
by this selling shareholder.
|
|
(40)
|
Wilfred
Goodwin is the Trustee of this selling shareholder and is deemed
to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(41)
|
Roland
A. Von Metzsch is the Managing Member of Greystone Management, LLC,
which
is the General Partner of this selling shareholder. By virtue of
his
position with Greystone Management, LLC, Mr. Metzsch is deemed to
hold investment power and voting control over the shares held by
this
selling shareholder.
|
|
(42)
|
Jon
D. Gruber and J. Patterson McBain are Managers of Gruber & McBain
Capital Management, which is the Investment Advisor of this selling
shareholder. By virtue of their positions with Gruber & McBain
Capital Management, Mr. Gruber and Mr. McBain are deemed to hold
investment power and voting control over the shares held by this
selling
stockholder.
|
|
(43)
|
Albert
Powell is the Assistant Vice President of First Bank, which is the
Investment Advisor of this selling shareholder. By virtue of his
position
with First Bank, Mr. Powell is deemed to hold investment power and
voting control over the shares held by this selling
shareholder.
|
|
(44)
|
B.T.
Willingham is the Chief Investment Officer of Moncrief Willingham
Energy
Advisers, which is the Investment Adviser of this selling shareholder.
By
virtue of his position with Moncrief Willingham Energy Advisers,
Mr. Willingham is deemed to hold investment power and voting control
over the shares held by this selling shareholder.
|
|
(45)
|
Dora
Hines is the Chief Operations Officer of HFR Asset Management, LLC,
which
is the Investment Advisor of this selling shareholder. By virtue
of her
position at HFR Asset Management, LLC, Ms. Hines is deemed to hold
investment power and voting control over the shares held by this
selling
stockholder.
|
|
(46)
|
W.
Russell Ramsey is the Principal of Ramsey Asset Management, which
is the
Investment Advisor of this selling shareholder. By virtue of his
position
with Ramsey Asset Management, Mr. Ramsey is deemed to hold investment
power and voting control over the shares held by this selling
shareholder.
|
|
(47)
|
Martin
E. Zweig, Joseph A. DiMenna, Carol R. Whitehead, Kevin P. Cannon
and
Jeannine M. Lanese share investment power and voting control over
the
shares held by this selling stockholder as officers of Zweig-DiMenna
Partners, LP.
|
|
(48)
|
Highbridge
Capital Management, L.L.C., the Trading Advisor for this selling
shareholder, exercises dispositive powers with respect to these shares
and
as such may be deemed to have beneficial ownership of such shares.
Highbridge Capital Management, L.L.C. has designated authorized
signatories who will sign on behalf of the selling stockholder. Glenn
Dubin and Henry Swieca are co-chief executive officers of Highbridge
Capital Management, L.L.C.
|
|
(49)
|
Todd
Modic is the Senior Vice President of ING Fund Services, which is
the
Investment Advisor of this selling shareholder. By virtue of his
position
with ING Fund Services, Mr. Modic is deemed to hold investment power
and voting control over the shares held by this selling
shareholder.
|
|
(50)
|
James
Dierberg is the President of Investors of America and is deemed to
hold
investment power and voting control over the shares held by this
selling
stockholder.
|
|
(51)
|
J.
Steven Emerson is deemed to hold investment power and voting control
over
the shares held by this selling shareholder.
|
|
(52)
|
Jan
Munroe is the trustee of this selling stockholder and has sole voting
and
has investment power and voting control over the shares held by this
selling stockholder.
|
|
(53)
|
Joseph
C. Kusnan is the Managing Partner of JCK Partners Opportunities Fund,
Ltd.
and is deemed to hold investment power and voting control over the
shares
held by this selling shareholder.
|
|
(54)
|
Johanne
S. Rupp has investment power and voting control over the shares held
by
this selling stockholder.
|
|
(55)
|
Barry
Evans, Ismail Gunes and Timothy Keefe are Officers of John Hancock
Advisors, which is the Investment Advisor of this selling shareholder.
By
virtue of their positions with John Hancock Advisors, the above listed
officers are deemed to hold investment power and voting control over
the
shares held by this selling shareholder.
|
|
(56)
|
Robin
Stelmach is the Chief Operating Officer of MFS Investment Management,
which is the Investment Advisor of this selling shareholder. By virtue
of
her position with MFS Investment Management, Ms. Stelmach is deemed
to hold investment power and voting control over the shares held
by this
selling shareholder.
|
|
(57)
|
John
J. Pohanka and Geoffrey Pohanka share voting and investment power
over the
shares held by this selling stockholder.
|
|
(58)
|
Richard
Johnson is the trustee of this selling stockholder and has sole voting
and
has investment power and voting control over the shares held by this
selling stockholder.
|
|
(59)
|
Jon
D. Gruber is the Manager of Gruber & McBaine Cap Mgmt, which is
the Investment Advisor of this selling shareholder. By virtue of
his
position with Gruber & McBaine Cap Mgmt, Mr. Gruber is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(60)
|
George
Karfunkel is the trustee of this selling stockholder and has sole
voting
and has investment power and voting control over the shares held
by this
selling stockholder.
|
|
(61)
|
Kathleen
Swanson is the trustee of this selling stockholder and has sole voting
and
has investment power and voting control over the shares held by this
selling stockholder.
|
|
(62)
|
Kenneth
F. Rupp is the trustee of this selling stockholder and has sole voting
and
has investment power and voting control over the shares held by this
selling stockholder.
|
|
(63)
|
Roger
E. King is the Chief Investment Officer of King Investment Advisors,
Inc.,
which is the Investment Advisor of this selling shareholder. By virtue
of
his position with King Investment Advisors, Inc., Mr. Swanson is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(64)
|
Steven
Spector is the general partner of this selling stockholder. As such,
Mr. Spector has investment power and voting control over the shares
held by this selling stockholder.
|
|
(65)
|
John
Lupo is the Senior Vice President and William Yelsits is the Vice
President of Lehman Brothers and are deemed to hold investment power
and
voting control over the shares held by this selling
shareholder.
|
|
(66)
|
Ronald
Liebowitz is the managing member of Liebro Partners, LLC, the selling
stockholder. By virtue of his position with the selling stockholder,
Mr. Liebowitz is deemed to hold investment power and voting control
over the shares held by this selling stockholder.
|
|
(67)
|
Eileen
Aptman is the managing member of this selling stockholder and is
deemed to
hold investment power and voting control over the shares held by
this
selling stockholder.
|
|
(68)
|
Wilfred
Goodwyn is the trustee of this selling stockholder and has sole voting
and
has investment power and voting control over the shares held by this
selling stockholder.
|
|
(69)
|
Mark
Ristow has investment power and voting control over the shares held
by
this selling stockholder.
|
|
(70)
|
Julie
Van Houten is the trustee of this selling stockholder and has sole
voting
and has investment power and voting control over the shares held
by this
selling stockholder.
|
|
(71)
|
Karen
Morely Westcott is a Fund Analyst for the Investment Manager of this
selling shareholder. By virtue of this position, Ms. Westcott is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(72)
|
Milton
V. Peterson is the trustee of this selling stockholder and has sole
voting
and has investment power and voting control over the shares held
by this
selling stockholder.
|
|
(73)
|
Dennis
T. Mykytyn is the managing member of Modern Capital Fund, LLC, the
selling
stockholder. By virtue of his position with the selling stockholder,
Mr. Mykytyn is deemed to hold investment power and voting control
over the shares held by this selling stockholder.
|
|
(74)
|
Anthony
Gallagher is the Director of Operations of Moore Capital Management,
LLC,
which is the Trading Manager of this selling shareholder. By virtue
of his
position with Moore Capital Management, LLC, Mr. Gallagher is deemed
to hold investment power and voting control over the shares held
by this
selling shareholder.
|
|
(75)
|
The
Fund has adopted proxy voting policies pursuant to which Munder Capital
Management’s proxy voting committee, which is made up of Mary Ann C.
Shumaker (non-voting), Stephen J. Shekenberg (non-voting), Andrea
Leistra,
Debbie Leich and Thomas Mudie, is responsible for exercising voting
power
on behalf of the Find. The Fund’s portfolio managers, John P. Richardson,
Robert E. Crosby and Julie R. Hollingshead; officers Enrique Chang,
Stephen J. Shenkenberg, Peter K Hoglund, Cherie N. Ugotowski, David
W.
Rumph, Bradford E. Smith, Kevin R. Kuhl, Mary Ann C. Chumaker, Malanie
Mayo West and Amy D. Eisenbeis; and other designated personnel of
Munder
Capital, John S. Adams, Peter G. Root, Anne K Kennedy, Dennis M.
Fox,
Benjamin W. Upward, Jon G. Wilcox and William “Chip” H. Hoisington may
exercise investment power on behalf of the
fund.
|
|
(76)
|
William
Moore is the Chief Financial Officer of Natelli Communities, LP and
is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(77)
|
Chana
Edelstein Isaac Hebroni are Directors of Horizons Cayman Trading,
Ltd,
which is the General Partner of this selling shareholder. By virtue
their
positions with Horizons Cayman Trading, Ltd, Ms. Edelstein and
Mr. Hebroni are deemed to hold investment power and voting control
over the shares held by this selling shareholder.
|
|
(78)
|
Carl
Andersen is the Portfolio Manager of Northern Light Management and
is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(79)
|
Peter.
S. Park is the Principal of Park West Asset Management, LLC, which
is the
managing member of this selling stockholder. By virtue of his position
with the managing member, Mr. Park is deemed to hold investment power
and voting control over the shares held by this selling
stockholder.
|
|
(80)
|
Pioneer
Investment Management Inc. is the Investment Advisor of this selling
shareholder and holds investment power and voting control over the
shares
held by this selling shareholder.
|
|
(81)
|
William
J. Brady is the general partner of Presidio Partners, LP and as such
is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(82)
|
Richard
S. Bodman is the Trustee of Richard S. Bodman Revocable Trust and
is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(83)
|
Daniel
Vandivort is the Chief Investment Officer and Richard Shuster is
the
Managing Director of Weiss, Peck and Gardener Investments, which
is a
division of Robeco USA, LLC, which is the managing member of the
supervisory general partner of this selling stockholder. By virtue
of
their positions with Weiss, Peck and Gardener Investments,
Mr. Vandivort and Mr. Shuster are deemed to hold investment
power and voting control over the shares held by this selling
stockholder.
|
|
(84)
|
Robert
L. Rewey, Jr. is the trustee of this selling stockholder and has
sole
voting and has investment power and voting control over the shares
held by
this selling stockholder.
|
|
(85)
|
Atul
Khanna is the Chief Executive Officer of Rockbay Capital Advisors,
Inc.,
which is the general partner of Rockbay Capital Management, LP, which
is
the investment manager of this selling stockholder. By virtue of
his
position with the investment manager, Mr. Khanna is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(86)
|
Samuel
L. Lim is the owner of this account and has investment power and
voting
control over the shares.
|
|
(87)
|
Edward
B. Grier is the Manager of Saratoga Capital, LLC and is deemed to
hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(88)
|
Alberto
Spagnolo Azkarate is the Investment Director of Scorpius Sicav and
is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(89)
|
Nelson
Woodard is the Managing Director of Dreman Value Management, which
is the
investment manager of this selling shareholder. By virtue of his
position
at Dreman Value Management, Mr. Woodard is deemed to hold investment
power and voting control over the shares held by this selling
stockholder.
|
|
(90)
|
As
officers of the selling shareholder, Michael A. Roth and Brian J.
Stark
share investment power and voting control over the shares held by
this
selling shareholder.
|
|
(91)
|
Alberto
Spagnolo Azkarate is the Investment Director of Skarpia Sicav and
is
deemed to hold investment power and voting control over the shares
held by
this selling shareholder.
|
|
(92)
|
Frank
T. Stewart, Guy T. Stewart and Leonard P. Stewart share investment
power
and voting control over the shares held by this selling
stockholder.
|
|
(93)
|
Haakon
Aschehoug is the Portfolio Manager of Storebrand Investments and
is deemed
to hold investment power and voting control over the shares held
by this
selling shareholder.
|
|
(94)
|
Chad
Comiteau is the General Partner of Stratford Partners, LP and is
deemed to
hold investment power and voting control over the shares held by
this
selling stockholder.
|
|
(95)
|
Miles
A. Stone is president of this selling stockholder and has investment
power
and voting control over the shares held by this selling
stockholder.
|
|
(96)
|
Dean
L. Overman is the President of this selling stockholder and has sole
voting and has investment power and voting control over the shares
held by
this selling stockholder.
|
|
(97)
|
Jerome
R. Baier is a portfolio manager of Northwestern Investment Management
Company, LLC, which is the Investment Advisor of this selling shareholder.
By virtue of his position with Northwestern Investment Management
Company,
LLC, Mr. Baier is deemed to hold shared investment power and voting
control over the shares held by this selling
shareholder.
|
|
(98)
|
Dwight
Anderson is the President and Controlling Equity Owner of Ospraie
Management, Inc., which is the General Partner of Ospraie Holding
I, L.P.,
which is the Managing Member of Ospraie Management, LLC, which is
the
Investment Manager of this selling shareholder. By virtue of his
position
with Ospraie Management, Inc., Mr. Anderson is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder. Mr. Anderson disclaims any beneficial ownership in such
shares except to the extent of any pecuniary interest
therein.
|
|
(99)
|
As
officers of the selling shareholder, Maarten Robberts and Peter Ijsseling
share investment power and voting control over the shares held by
this
selling shareholder.
|
|
(100)
|
David
A. Banse is the Chief Executive Officer of Third Avenue Management
LLC,
which is the Investment Advisor of Third Avenue Trust, which is the
Investment Advisor of this selling shareholder. By virtue of his
position
with Third Avenue Management LLC, Mr. Banse is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(101)
|
Mark
A. Buntu is the Chief Financial Officer of The William K. Warren
Foundation and is deemed to hold investment power and voting control
over
the shares held by this selling shareholder.
|
|
(102)
|
F.
Rossi is the Investment Advisor of Union Bancaire Privee and is deemed
to
hold investment power and voting control over the shares held by
this
selling shareholder.
|
|
(103)
|
James
A. Lustig is the President of United Capital Management and is deemed
to
hold investment power and voting control over the shares held by
this
selling shareholder.
|
|
(104)
|
J.A.
Syme is the President of Venture Sim. By virtue of his position the
selling stockholder, Mr. Syme is deemed to hold investment power and
voting control over the shares held by this selling
stockholder.
|
|
(105)
|
Allan
R. Lyons is the managing member of 21st Century Strategic Investment
Planning, LLC, which is the general Partner of this selling stockholder.
By virtue of his position with the managing member, Mr. Lyons is
deemed to hold investment power and voting control over the shares
held by
this selling stockholder.
|
|
(106)
|
Jason
Cross as Fund Manager, Gary Kohler as Fund Manager, and Andrew Redleaf
as
Managing Member of Whitebox Advisors, LLC, which is the General Partner
of
this selling shareholder are deemed to share investment power and
voting
control over the shares held by this selling
shareholder.
|
|
(107)
|
As
officers of the selling shareholder, Alex Wiegers, George Wiegers
and
Deane Kreitler share investment power and voting control over the
shares
held by this selling shareholder
|
|
(108)
|
William
A. Hazel is the Trustee of William A. Hazel Revocable Trust and is
deemed
to hold investment power and voting control over the shares held
by this
selling shareholder.
|
|
(109)
|
As
trustees of this selling stockholder, Abraham Witteles is deemed
to have
voting and investment control over the shares held by this selling
stockholder.
|
|
(110)
|
William
G. Butterlyan is the Senior Managing Director of Robeco USA LLC,
which is
the Investment Advisor of this selling shareholder. By virtue of
his
position with Bobero USA LLC, Mr. Butterlyan is deemed to hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(111)
|
Nelson
Ohus is the President of this selling shareholder and is deemed to
hold
investment power and voting control over the shares held by this
selling
shareholder.
|
|
(112)
|
Jeannie
Lanese is the V.P. Operations of Zweig-DiMenna Natural Resources,
L.P. and
is deemed to hold investment power and voting control over the shares
held
by this selling shareholder.
|
|
(113)
|
Maria
M. Anderson is the V.P. Mutual Fund Compliance of ING Fund Services,
LLC
and is deemed to hold investment power and voting control over the
shares
held by this selling shareholder.
|
|
(114)
|
Marc
Hoegger is the director of this selling stockholder and is deemed
to hold
investment power and voting control over the shares held by this
selling
stockholder.
|
We
are
registering the common stock covered by this prospectus to permit the selling
stockholders to conduct public secondary trading of these shares from time
to
time after the date of this prospectus. Under the Registration Rights Agreement
we entered into with selling stockholders, we agreed to, among other things,
bear all expenses, other than brokers’ or underwriters’ discounts and
commissions, in connection with the registration and sale of the common stock
covered by this prospectus. We will not receive any of the proceeds of the
sale
of the common stock offered by this prospectus. The aggregate proceeds to the
selling stockholders from the sale of the common stock will be the purchase
price of the common stock less any discounts and commissions. A selling
stockholder reserves the right to accept and, together with their agents, to
reject, any proposed purchases of common stock to be made directly or through
agents.
The
common stock offered by this prospectus may be sold from time to time to
purchasers:
|
—
|
directly
by the selling stockholders and their successors, which includes
their
donees, pledges or transferees or their successors-in-interest,
or
|
|
—
|
through
underwriters, broker-dealers or agents, who may receive compensation
in
the form of discounts, commissions or agent’s commissions from the selling
stockholders or the purchasers of the common stock. These discounts,
concessions, or commissions may be in excess of those customary
in the
types of transactions
involved.
|
The
selling stockholders and any underwriters, broker-dealers or agents who
participate in the sale or distribution of the common stock may be deemed to
be
“underwriters” within the meaning of the Securities Act. The selling
stockholders identified as registered broker-dealers in the selling stockholders
table above (see “Selling Stockholders”) are deemed to be underwriters. As a
result, any profits on the sale of the common stock by such selling stockholders
and any discounts, commissions or agent’s commissions or concessions received by
any such broker-dealer or agents may be deemed to be underwriting discounts
and
commissions under the Securities Act. Selling stockholders who are deemed to
be
“underwriters” with the meaning of Section 2(11) of the Securities Act will
be subject to prospectus delivery requirements of the Securities Act.
Underwriters are subject to certain statutory liabilities, including, but not
limited to, Sections 11, 12 and 17 of the Securities Act.
The
common stock may be sold in one or more transactions at:
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—
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fixed
prices;
|
|
—
|
prevailing
market prices at the time of
sale;
|
|
—
|
prices
related to such prevailing market
prices;
|
|
—
|
varying
prices determined at the time of sale;
or
|
|
—
|
negotiated
prices.
|
These
sales may be effected in one or more transactions:
|
—
|
on
any national securities exchange or quotation on which the common
stock
may be listed or quoted at the time of the
sale;
|
|
—
|
in
the over-the-counter market;
|
|
—
|
in
transactions on such exchanges or services or in the over-the-counter
market;
|
|
—
|
through
the writing of options (including the issuance by the selling stockholders
of derivative securities), whether the options or such other derivative
securities are listed on an options exchange or
otherwise;
|
|
—
|
through
the settlement of short sales (only after the initial effectiveness
of
registration statement 333-128888);
or
|
|
—
|
through
any combination of the
foregoing.
|
These
transactions may include block transactions or crosses. Crosses are transactions
in which the same broker acts as an agent on both sides of the
trade.
In
connection with the sales of the common stock, the selling stockholders may
enter into hedging transactions with broker-dealers or other financial
institutions that in turn may:
|
—
|
engage
in short sales of the common stock (only after the initial effectiveness
of registration statement 333-128888) in the course of hedging
their
positions;
|
|
—
|
sell
the common stock short and deliver the common stock to close out
short
positions;
|
|
—
|
loan
or pledge the common stock to broker-dealers or other financial
institutions that in turn may sell the common
stock;
|
|
—
|
enter
into option or other transactions with broker-dealers or other
financial
institutions that require the delivery to the broker-dealer or
other
financial institution of the common stock, which the broker-dealer
or
other financial institution may resell under the
prospectus; or
|
|
—
|
enter
into transactions in which a broker-dealer makes purchases as a
principal
for resale for its own account or through other types of
transactions.
|
To
our
knowledge, there are currently no plans, arrangements or understandings between
any selling stockholders and any underwriter, broker-dealer or agent regarding
the sale of the common stock by the selling stockholders.
Our
common stock is listed on The NASDAQ Global Select Market under the symbol
“ROSE”.
There
can
be no assurance that any selling stockholder will sell any or all of the common
stock under this prospectus. Further, we cannot assure you that any such selling
stockholder will not transfer, devise or gift the common stock by other means
not described in this prospectus. In addition, any common stock covered by
this
prospectus that qualifies for sale under Rule 144 or Rule 144A of the
Securities Act may be sold under Rule 144 or Rule 144A rather than
under this prospectus. The common stock covered by this prospectus may also
be
sold to non-U.S. persons outside the U.S. in accordance with
Regulation S under the Securities Act rather than under this prospectus.
The common stock may be sold in some states only through registered or licensed
brokers or dealers. In addition, in some states the common stock may not be
sold
unless it has been registered or qualified for sale or an exemption from
registration or qualification is available and complied with.
The
selling stockholders and any other person participating in the sale of the
common stock will be subject to the Exchange Act. The Exchange Act rules
include, without limitation, Regulation M, which may limit the timing of
purchases and sales of any of the common stock by the selling stockholders
and
any other such person. In addition, Regulation M may restrict the ability
of any person engaged in the distribution of the common stock to engage in
market-making activities with respect to the particular common stock being
distributed. This may affect the marketability of the common stock and the
ability of any person or entity to engage in market-making activities with
respect to the common stock.
We
have
agreed to indemnify the selling stockholders against certain liabilities,
including liabilities under the Securities Act.
We
have
agreed to pay substantially all of the expenses incidental to the registration,
offering and sale of the common stock to the public, including the payment
of
federal securities law and state blue sky registration fees, except that we
will
not bear any underwriting discounts or commissions or transfer taxes relating
to
the sale of shares of our common stock.
Pursuant
to our certificate of incorporation, we have the authority to issue an aggregate
of 155,000,000 shares of capital stock, consisting of 150,000,000 shares of
common stock, par value $0.001 per share, and 5,000,000 shares of preferred
stock, par value $0.001 per share.
Selected
provisions of our organizational documents are summarized below. Copies of
our
organizational documents will be provided upon request and are available on
our
website, http://www.rosettaresources.com. In addition, you should be
aware that the summary below does not give full effect to the terms of the
provisions of statutory or common law which may affect your rights as a
stockholder.
Common
Stock
As
of
December 31, 2006, we have a total of 50,732,694 shares of common stock
outstanding, of which 673,875 have been issued to certain employees, directors
and service providers. We have reserved a total of 3,000,000 shares of our
common stock for issuance to employees pursuant to our 2005 Long-Term Incentive
Plan. Our Board of Directors has granted to certain employees and directors
options to purchase up to a total of 903,250 shares of our common
stock.
Voting
rights. Each share of common stock is entitled to
one vote in the election of directors and on all other matters submitted to
a
vote of our stockholders. Our stockholders may not cumulate their votes in
the
election of directors.
Dividends,
distributions and stock splits. Holders of our
common stock are entitled to receive dividends if, as and when such dividends
are declared by our Board out of assets legally available therefore after
payment of dividends required to be paid on shares of preferred stock, if
any.
Liquidation. In
the event of any dissolution, liquidation, or winding up of our affairs, whether
voluntary or involuntary, after payment of our debts and other liabilities
and
making provision for any holders of our preferred stock that have a liquidation
preference, our remaining assets will be distributed ratably among the holders
of common stock.
Fully
paid. All the shares of common stock outstanding as
of the date of this prospectus are fully paid and nonassessable.
Other
rights. Holders of our common stock have no
redemption or conversion rights and no preemptive or other rights to subscribe
for our securities.
Preferred
Stock
The
Board
of Directors has the authority to issue up to 5,000,000 shares of preferred
stock in one or more series and to fix the rights, preferences, privileges
and
restrictions thereof, including dividend rights, dividend rates, conversion
rates, voting rights, terms of redemption, redemption prices, liquidation
preferences and the number of shares constituting any series or the designation
of that series, which may be superior to those of the common stock, without
further vote or action by the stockholders. No shares of preferred stock are
currently outstanding, and we have no present plans to issue any preferred
stock.
One
of
the effects of undesignated preferred stock may be to enable our Board of
Directors to render it more difficult to or to discourage an attempt to obtain
control of us by means of a tender offer, proxy contest, merger or otherwise,
and as a result to protect the continuity of our management. The issuance of
shares of the preferred stock by our Board of Directors as described above
may
adversely affect the rights of the holders of common stock. For example,
preferred stock issued by us may rank prior to the common stock as to dividend
rights, liquidation preference or both, may have full or limited voting rights,
and may be convertible into shares of common stock. Accordingly, the issuance
of
shares of preferred stock may discourage bids for our common stock or may
otherwise adversely affect the market price of our common stock.
Liability
and Indemnification of Officers and Directors
Our
certificate of incorporation contains certain provisions permitted under the
Delaware General Corporation Law relating to the liability of directors. These
provisions eliminate a director’s personal liability for monetary damages
resulting from a breach of fiduciary duty, except that a director will be
personally liable:
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—
|
for
any breach of the director’s duty of loyalty to us or our
stockholders;
|
|
—
|
for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
|
|
—
|
under
Section 174 of the Delaware General Corporation Law relating to
unlawful stock repurchases or dividends;
or
|
|
—
|
for
any transaction from which the director derives an improper personal
benefit.
|
These
provisions do not limit or eliminate our rights or those of any stockholder
to
seek non-monetary relief, such as an injunction or rescission, in the event
of a
breach of a director’s fiduciary duty. These provisions will not alter a
director’s liability under federal securities laws.
Our
certificate of incorporation and bylaws also provide that we must indemnify
our
directors and officers to the fullest extent permitted by Delaware law and
also
provide that we must advance expenses, as incurred, to our directors and
officers in connection with a legal proceeding to the fullest extent permitted
by Delaware law, subject to very limited exceptions.
We
have
entered into separate indemnification agreements with our directors and officers
that, in some cases, are broader than the specific indemnification provisions
contained in our certificate of incorporation, bylaws or the Delaware General
Corporation Law. The indemnification agreements require us, among other things,
to indemnify the officers and directors against certain liabilities, other
than
liabilities arising from willful misconduct that may arise by reason of their
status or service as directors or officers. We believe that these
indemnification arrangements are necessary to attract and retain qualified
individuals to serve as directors and officers.
Anti-Takeover
Effects of Provisions of Delaware Law, Our Certificate of Incorporation and
Bylaws
Our
certificate of incorporation, bylaws and the Delaware General Corporation Law
contain certain provisions that could discourage potential takeover attempts
and
make it more difficult for our stockholders to change management or receive
a
premium for their shares. Our certificate of incorporation and bylaws prohibit
our stockholders from taking action by written consent absent approval by all
members of our Board of Directors. Further, our stockholders will not have
the
power to call a special meeting of stockholders.
Delaware
Law
We
are
subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover provision. In general, the provision prohibits a publicly-held
Delaware corporation from engaging in a business combination with an “interested
stockholder” for a period of three years after the date of the transaction in
which the person became an interested stockholder. A “business combination”
includes a merger, sale of 10% or more of our assets and certain other
transactions resulting in a financial benefit to the stockholder. For purposes
of Section 203, an “interested stockholder” is defined to include any
person that is:
|
—
|
the
owner of 15% or more of the outstanding voting stock of the
corporation;
|
|
—
|
an
affiliate or associate of the corporation and was the owner of
15% or more
of the voting stock outstanding of the corporation, at any time
within
three years immediately prior to the relevant date;
or
|
|
—
|
an
affiliate or associate of the persons described in the foregoing
bullet
points.
|
However,
the above provisions of Section 203 do not apply if:
|
|
—
|
our
Board approves the transaction that made the stockholder an interested
stockholder prior to the date of that
transaction; or
|
|
—
|
after
the completion of the transaction that resulted in the stockholder
becoming an interested stockholder, that stockholder owned at least 85% of
our voting stock outstanding at the time the transaction commenced,
excluding shares owned by our officers and directors; or on or
subsequent
to the date of the transaction, the business combination is approved
by
our board and authorized at a meeting of our stockholders by an
affirmative vote of at least two-thirds of the outstanding voting
stock
not owned by the interested
stockholder.
|
Stockholders
may, by adopting an amendment to the corporation’s certificate of incorporation
or bylaws, elect for the corporation not to be governed by Section 203,
effective 12 months after adoption. Neither our certificate of incorporation
nor
our bylaws exempt us from the restrictions imposed under Section 203. It is
anticipated that the provisions of Section 203 may encourage companies
interested in acquiring us to negotiate in advance with our board.
Charter
and Bylaw Provisions
Our
certificate of incorporation and bylaws provide that any action required or
permitted to be taken by our stockholders may only be effected at a duly called
annual or special meeting of the stockholders and may not be taken by written
consent of the stockholders unless our Board of Directors approves the taking
of
the action by written consent. If our Board of Directors authorizes our
stockholders to take action by written consent, our stockholders may take action
by written consent if the consent is signed by stockholders having not less
than
the minimum number of votes necessary to take the action. Special meetings
of
stockholders may be called only by our chairman, our chief executive officer
or
by a majority of our board.
Directors
may be removed with the approval of the holders of a majority of the shares
then
entitled to vote at an election of directors. Directors may be removed by
stockholders with or without cause. Vacancies and newly-created directorships
resulting from any increase in the number of directors may be filled by a
majority of the directors then in office, though less than a quorum. If there
are no directors in office, then an election of directors may be held in the
manner provided by law.
Transfer
Agent and Registrar
Our
transfer agent and registrar for our common stock will be American Stock
Transfer & Trust Company.
Restricted
Stock Agreements
The
673,875 shares of common stock as of December 31, 2006, acquired by members
of
management and other employees are subject to restrictions under applicable
restricted stock grant agreements. The restrictions generally require the
employee, director or other service provider to remain continuously in the
service of Rosetta or an affiliate through certain vesting dates. For 271,000
of
the restricted shares, the requirement was that the recipient remains
continuously in our service at least through the effective date of the original
registration statement registering shares for resale. Those shares
vested in February 2006. For 402,875 of the restricted shares, the
grants vest 25% after the first anniversary of the grant, 25% after the second
anniversary of the grant, and 50% after the third anniversary of the grant,
assuming that the recipient remains in our service on those dates.
Because
we have registered a substantial number of our shares of common stock for
resale, the sale of those shares in the public market after the date of this
prospectus, or the perception that such sales may occur, could adversely affect
the prevailing market price of our common stock.
We
have
50,732,694 shares of common stock outstanding as of December 31, 2006. Of those
shares, all of the shares of our common stock sold under this prospectus will
be
freely tradable without restriction or further registration under the Securities
Act, unless the shares are purchased by “affiliates” as that term is defined in
Rule 144 under the Securities Act. Any shares purchased by an affiliate may
not be resold except in compliance with Rule 144 volume limitations, manner
of sale and notice requirements, pursuant to another applicable exemption from
registration or pursuant to an effective registration statement. The shares
of
common stock held by our employees are “restricted securities” as that term is
defined in Rule 144 under the Securities Act. These restricted securities
may be sold in the public market by our employees only if they are registered
or
if they qualify for an exemption from registration under Rule 144 or
Rule 144(k) under the Securities Act. These rules are summarized
below.
Rule 144
In
general, under Rule 144 as currently in effect, a person or persons whose
shares are aggregated, who have beneficially owned restricted shares for at
least one year, including persons who may be deemed to be our “affiliates,”
would be entitled to sell within any three-month period a number of shares
that
does not exceed the greater of (i) 1% of the number of shares of common
stock then outstanding, or (ii) the average weekly trading volume of our
common stock during the four calendar weeks before a notice of the sale on
SEC
Form 144 is filed.
Sales
under Rule 144 are also subject to certain manner of sale provisions and
notice requirements and to the availability of certain public information about
us.
Rule 144(k)
Under
Rule 144(k), a person who is not deemed to have been one of our
“affiliates” at any time during the 90 days preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years,
including the holding period of any prior owner other than an “affiliate,” is
entitled to sell these shares without complying with the manner of sale, public
information, volume limitation or notice provisions of
Rule 144.
Stock
Issued Under Employee Plans
We
have
filed a registration statement on Form S-8 under the Securities Act
(333-131791) to register 2,688,600 shares of common stock issuable, with respect
to options and restricted stock units to be granted, or otherwise, under our
employee plans or otherwise for resale. In connection with our acquisition
of
our business and separation from Calpine, as well as the need to attract new
employees, through December 31, 2006, we issued 903,250 options to purchase
our
common stock and 673,875 shares of our restricted stock to our employees,
directors and other service providers. Shares issued upon the
exercise of stock options or restricted stock after the effective date of the
Form S-8 registration statement will be eligible for resale in the public
market without restriction, subject to Rule 144 limitations applicable to
affiliates. Under Rule 701 under the Securities Act, as currently in
effect, each of our employees, officers, directors, and consultants who
purchased or received shares pursuant to a written compensatory plan or contract
is eligible to resell those shares 90 days after February 13, 2006, the
date of the prospectus which was a part of our initial effective registration
statement in reliance upon Rule 144, but without compliance with specific
restrictions. Rule 701 provides that affiliates may sell their
Rule 701 shares under Rule 144 without complying with the holding
period requirement and that non-affiliates may sell their shares in reliance
on
Rule 144 without complying with the holding period, public information,
volume limitation, or notice provisions of Rule 144.
NON-U.S.
HOLDERS OF OUR COMMON STOCK
The
following discussion describes the material U.S. federal income tax consequences
to non-U.S. holders (as defined below) of the acquisition, ownership and
disposition of our common stock. This discussion is not a complete analysis
of
all the potential U.S. federal income tax consequences relating thereto, nor
does it address any tax consequences arising under any state, local or foreign
tax laws or any other U.S. federal tax laws. This discussion is based on the
Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations
promulgated thereunder, judicial decisions, and published rulings and
administrative pronouncements of the Internal Revenue Service (the “IRS”), all
as in effect as of the date of this prospectus. These authorities may change,
possibly retroactively, resulting in U.S. federal income tax consequences
different from those discussed below. No ruling from the IRS has been or will
be
sought with respect to the matters discussed below, and there can be no
assurance that the IRS will not take a contrary position regarding the tax
consequences of the acquisition, ownership or disposition of our common stock,
or that any such contrary position would not be sustained by a
court.
This
discussion is limited to non-U.S. holders who purchase our common stock and
who
hold our common stock as a capital asset within the meaning of Section 1221
of the Code (generally, property held for investment). This discussion does
not
address all U.S. federal income tax considerations that may be relevant to
a
particular holder in light of that holder’s particular circumstances. This
discussion also does not consider any specific facts or circumstances that
may
be relevant to holders subject to special rules under the U.S. federal income
tax laws, including, without limitation, U.S. expatriates, partnerships,
“controlled foreign corporations,” “passive foreign investment companies,”
corporations that accumulate earnings to avoid U.S. federal income tax,
financial institutions, insurance companies, brokers, dealers or traders in
securities, commodities or currencies, tax-exempt organizations, tax-qualified
retirement plans, persons subject to the alternative minimum tax, and persons
holding our common stock as part of a hedge, straddle or other risk reduction
strategy or as part of a conversion transaction or other integrated
investment.
For
the
purposes of this discussion, a non-U.S. holder is any beneficial owner of our
common stock that is not a “U.S. person” for U.S. federal income tax purposes. A
U.S. person is any of the following:
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a
citizen or resident of the United
States;
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a
corporation or partnership (or other entity treated as a corporation
or a
partnership for U.S. federal income tax purposes) created or organized
under the laws of the United States, any state thereof or the District
of
Columbia;
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an
estate, the income of which is subject to U.S. federal income tax
regardless of its source; or
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a
trust that (1) is subject to the primary supervision of a U.S. court
and the control of one or more U.S. persons or (2) has validly
elected to be treated as a U.S. person for U.S. federal income
tax
purposes.
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If
a
partnership (or other entity taxed as a partnership for U.S. federal income
tax
purposes) holds our common stock, the tax treatment of a partner in the
partnership generally will depend on the status of the partner and upon the
activities of the partnership. Accordingly, partnerships that hold our common
stock and partners in such partnerships are urged to consult their tax advisors
regarding the specific U.S. federal income tax consequences to
them.
Distributions
on our Common Stock
We
do not
presently anticipate paying cash dividends on shares of our common stock. For
more information, please see “Dividend Policy.” If dividends are paid on shares
of our common stock, however, such payments will constitute dividends for U.S.
federal income tax purposes to the extent paid from our current or accumulated
earnings and profits, as determined under U.S. federal income tax principles.
Amounts not treated as dividends for U.S. federal income tax purposes will
constitute a return of capital and will first be applied against and reduce
a
holder’s adjusted tax basis in the common stock, but not below zero. Any excess
will be treated as capital gain.
Dividends
paid to a non-U.S. holder of our common stock that are not effectively connected
with a U.S. trade or business conducted by such holder generally will be subject
to U.S. federal withholding tax at a rate of 30% of the gross amount of the
dividends, or such lower rate specified by an applicable tax treaty. To receive
the benefit of a reduced treaty rate, a non-U.S. holder must furnish to us
or
our paying agent a valid IRS Form W-8BEN (or applicable successor form)
certifying such holder’s qualification for the reduced rate. This certification
must be provided to us or our paying agent prior to the payment of dividends
and
must be updated periodically. Non-U.S. holders that do not timely provide us
or
our paying agent with the required certification, but which qualify for a
reduced treaty rate, may obtain a refund of any excess amounts withheld by
timely filing an appropriate claim for refund with the IRS.
If
a
non-U.S. holder holds our common stock in connection with the conduct of a
trade
or business in the United States, and dividends paid on the common stock are
effectively connected with such holder’s U.S. trade or business, the non-U.S.
holder will be exempt from U.S. federal withholding tax. To claim the exemption,
the non-U.S. holder must furnish to us or our paying agent a properly executed
IRS Form W-8ECI (or applicable successor form).
Any
dividends paid on our common stock that are effectively connected with a
non-U.S. holder’s U.S. trade or business (or if required by an applicable tax
treaty, attributable to a permanent establishment maintained by the non-U.S.
holder in the United States) generally will be subject to U.S. federal income
tax on a net income basis in the same manner as if such holder were a resident
of the United States, unless an applicable tax treaty provides otherwise. A
non-U.S. holder that is a foreign corporation also may be subject to a branch
profits tax equal to 30% (or such lower rate specified by an applicable tax
treaty) of a portion of its effectively connected earnings and profits for
the
taxable year. Non-U.S. holders are urged to consult any applicable tax treaties
that may provide for different rules.
Gain
on Disposition of our Common Stock
A
non-U.S. holder generally will not be subject to U.S. federal income tax on
any
gain realized upon the sale or other disposition of our common stock
unless:
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the
gain is effectively connected with the non-U.S. holder’s conduct of a
trade or business in the United States, or if required by an applicable
tax treaty, attributable to a permanent establishment maintained
by the
non-U.S. holder in the United
States;
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the
non-U.S. holder is a nonresident alien individual present in the
United
States for 183 days or more during the taxable year of the disposition
and
certain other requirements are met;
or
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our
common stock constitutes a U.S. real property interest by reason
of our
status as a “United States real property holding corporation” for U.S.
federal income tax purposes (a “USRPHC”) at any time within the shorter of
the five-year period preceding the disposition or your holding
period for
our common stock.
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Unless
an
applicable tax treaty provides otherwise, the gain described in the first bullet
point above will be subject to U.S. federal income tax on a net income basis
in
the same manner as if such holder were a resident of the United States. Non-U.S.
holders that are foreign corporations also may be subject to a branch profits
tax equal to 30% (or such lower rate specified by an applicable tax treaty)
of a
portion of its effectively connected earnings and profits for the taxable year.
Non-U.S. holders are urged to consult any applicable tax treaties that may
provide for different rules.
The
gain
described in the second bullet point above will be subject to U.S. federal
income tax at a flat 30% rate, but may be offset by U.S. source capital
losses.
We
believe that we are a USRPHC. Nonetheless, a non-United States holder generally
will not be subject to United States federal income tax on any gain realized
on
a disposition of our common stock as a result of the third bullet point above
if
our common stock is considered to be “regularly traded on an established
securities market,” within the meaning of Section 897 of the Code and the
applicable Treasury Regulations, at any time during the calendar year in which
the sale or other disposition occurs, and the non-United States holder does
not
actually or constructively own, at any time during the five-year period ending
on the date of the sale or other disposition, more than 5% of our common stock.
Even after this shelf registration statement becomes effective, it is possible
that our common stock will not be considered regularly traded if it is not
regularly quoted by brokers or dealers making a market in our common stock.
If
our common stock is not considered to be “regularly traded on an established
securities market,” a non-United States holder may be subject to withholding at
a 10% rate and the non-United States holder generally will be taxed on its
net
gain derived from the disposition of our common stock at the regular graduated
U.S. federal income tax rates and in much the same manner as is applicable
to
U.S. persons. If the non-United States holder is a foreign corporation, the
additional “branch profits tax” described above may also apply. Non-United
States holders should consult their own tax advisors with respect to the
application of the foregoing rules to their ownership and disposition of our
common stock.
Information
Reporting and Backup Withholding
We
must
report annually to the IRS and to each non-U.S. holder the amount of dividends
on our common stock paid to such holder and the amount of any tax withheld
with
respect to those dividends. These information reporting requirements apply
even
if no withholding was required because the dividends were effectively connected
with the holder’s conduct of a U.S. trade or business, or withholding was
reduced or eliminated by an applicable tax treaty. This information also may
be
made available under a specific treaty or agreement with the tax authorities
in
the country in which the non-U.S. holder resides or is established. Backup
withholding, however, generally will not apply to payments of dividends to
a
non-U.S. holder of our common stock provided the non-U.S. holder furnishes
to us
or our paying agent the required certification as to its non-U.S. status, such
as by providing a valid IRS Form W-8BEN or W-8ECI. The gross amount of dividends
paid to a non-U.S. holder that fails to certify its non-U.S. holder status
in
accordance with applicable U.S. Treasury Regulations generally will be reduced
by backup withholding tax at a current rate of 28%.
Payment
of the proceeds from a disposition by a non-U.S. holder of our common stock
to
or through the U.S. office of a broker generally will be subject to information
reporting and backup withholding unless the non-U.S. holder certifies as to
its
non-U.S. holder status under penalties of perjury, such as by providing a valid
IRS Form W-8BEN or W-8ECI, or otherwise establishes an exemption from
information reporting and backup withholding. The payment of the proceeds on
the
disposition of common stock by a non-U.S. holder to or through a non-U.S. office
of a broker generally will not be reduced by backup withholding or reported
to
the IRS. If, however, the broker is a U.S. person or has specified connections
with the United States, unless some conditions are met, the proceeds from that
disposition generally will be reported to the IRS, but not reduced by backup
withholding. Notwithstanding the foregoing, information reporting and backup
withholding may apply if either we or our paying agent has actual knowledge,
or
reason to know, that you are a U.S. person.
Backup
withholding is not an additional tax. Any amounts withheld under the backup
withholding rules may be allowed as a refund or a credit against a non-U.S.
holder’s U.S. federal income tax liability, provided the required information is
timely furnished to the IRS.
PROSPECTIVE
INVESTORS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE PARTICULAR
U.S.
FEDERAL INCOME TAX CONSEQUENCES TO THEM OF ACQUIRING, OWNING AND DISPOSING
OF
OUR COMMON STOCK, AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER ANY STATE,
LOCAL
OR FOREIGN TAX LAWS AND ANY OTHER U.S. FEDERAL TAX LAWS.
We
entered into a registration rights agreement in connection with our private
equity placement in July 2005. In the registration rights agreement we agreed,
for the benefit of the purchasers of our common stock in the private equity
placement, that we would, at our expense:
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file
with the SEC (which occurs pursuant to the filing of the shelf
registration statement of which this prospectus is a part), within
120 days after the closing date of the private equity placement, a
registration statement (a “shelf registration
statement”);
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use
our commercially reasonable efforts to cause the shelf registration
statement to become effective under the Securities Act as soon
as
practicable after the filing;
and
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continuously
maintain the effectiveness of the shelf registration statement
under the
Securities Act until the shares of our common stock set forth in
“Selling
Stockholders” are no longer eligible to be included in this shelf
registration statement after:
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the
sale of all of the shares of common stock covered by the shelf
registration statement pursuant to a registration
statement;
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the
sale, transfer or other disposition of the shares of common stock
covered
by the shelf registration statement or pursuant to Rule 144 under the
Securities Act;
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such
time as the shares covered by the shelf registration statement
and not
held by affiliates of us are, in the opinion of our counsel, eligible
for
sale pursuant to Rule 144(k) (or any successor or analogous rule)
under the Securities Act; and
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such
time as the shares covered by the shelf registration statement
are
eligible for sale without restriction pursuant to an available
exemption
from registration under the Securities Act; or the shares have
been sold
to us or any of our
subsidiaries.
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We
have
filed the registration statement to satisfy our obligations under the
registration rights agreement, which registration statement was declared
effective. This prospectus is part of a post-effective amendment to
that registration statement. A purchaser of our common stock in
connection with this prospectus will not receive the benefits of the
registration rights agreement.
Notwithstanding
the foregoing, we will be permitted, under limited circumstances, to suspend
the
use, from time to time, of the shelf registration statement of which this is
a
part (and therefore suspend sales under the registration statement of which
this
prospectus is a part) for certain periods, referred to as “blackout periods,”
if, among other things, any of the following occurs:
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The
representative of the underwriters of an underwritten offering
of primary
shares by us has advised us that the sale of shares of our common
stock
under the shelf registration statement would have a material adverse
effect on our initial public offering; a majority of our Board
of
Directors, in good faith, determines that (1) the offer or sale of
any shares of our common stock would materially impede, delay or
interfere
with any proposed financing, offer or sale of securities, acquisition,
merger, tender offer, business combination, corporate reorganization,
consolidation or other significant transaction involving us;
(2) after the advice of counsel, the sale of the shares covered by
the shelf registration statement would require disclosure of non-public
material information not otherwise required to be disclosed under
applicable law; or (3) either (x) we have a bona fide business
purpose for preserving the confidentiality of the proposed transaction,
(y) disclosure would have a material adverse effect on us or our
ability to consummate the proposed transaction, or (z) the proposed
transaction renders us unable to comply with SEC
requirements; or
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a
majority of our Board of Directors, in good faith, determines,
that we are
required by law, rule or regulation to supplement the shelf registration
statement or file a post-effective amendment to the shelf registration
statement in order to incorporate information into the shelf registration
statement for the purpose of (1) including in the shelf registration
statement a prospectus required under Section 10(a)(3) of the
Securities Act; (2) including in the prospectus included in the shelf
registration statement any facts or events arising after the effective
date of the shelf registration statement (or the most-recent
post-effective amendment) that, individually or in the aggregate,
represents a fundamental change in the information set forth in
the
prospectus; or (3) including in the prospectus included in the shelf
registration statement any material information with respect to
the plan
of distribution not disclosed in the shelf registration statement
or any
material change to such
information.
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The
cumulative blackout periods in any 12 month period commencing on the
closing of the private equity placement may not exceed an aggregate of
90 days and furthermore may not exceed 60 days in any 90-day period,
except as a result of a review of any post-effective amendment by the SEC prior
to declaring it effective; provided we have used all commercially reasonable
efforts to cause such post-effective amendment to be declared
effective.
In
addition to this limited ability to suspend use of the shelf registration
statement, until we are eligible to incorporate by reference into the
registration statement our periodic and current reports, which will not occur
until at least one year following the end of the month in which the registration
statement of which this prospectus is a part is declared effective, we will
be
required to amend or supplement the shelf registration statement to include
our
quarterly and annual financial information and other developments material
to
us. Therefore, sales under the shelf registration statement will be suspended
until the amendment or supplement, as the case may be, is filed and
effective.
A
holder
of shares of our common stock eligible to include shares on this shelf
registration statement will be required to deliver a questionnaire to us to
verify the holder’s information with respect to our common stock.
A
holder
who sells our common stock pursuant to the shelf registration statement will
be
required to be named as a selling stockholder in this prospectus, as it may
be
amended or supplemented from time to time, and to deliver a prospectus to
purchasers, will be subject to certain of the civil liability provisions under
the Securities Act in connection with such sales and will be bound by the
provisions of the registration rights agreement that are applicable to such
holder (including certain indemnification rights and obligations). In addition,
each holder of our common stock must deliver information to be used in
connection with the shelf registration statement in order to have such holder’s
shares of our common stock included in the shelf registration
statement.
Each
holder will be deemed to have agreed that, upon receipt of notice of the
occurrence of any event which makes a statement in the prospectus which is
a
part of the shelf registration statement untrue in any material respect or
which
requires the making of any changes in such prospectus in order to make the
statements therein not misleading, or of certain other events specified in
the
registration rights agreement, such holder will suspend the sale of our common
stock pursuant to such prospectus until we have amended or supplemented such
prospectus to correct such misstatement or omission and have furnished copies
of
such amended or supplemented prospectus to such holder or we have given notice
that the sale of the common stock may be resumed.
The
validity of the shares offered hereby will be passed upon for us by
Thompson & Knight LLP.
The
combined financial statements of the Domestic Oil & Natural Gas
Properties of Calpine Corporation and Affiliates (Predecessor) for the six
months ended June 30, 2005 and for the year ended December 31, 2004,
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
for the year ended December 31, 2006 have been so incorporated in reliance
on
the report (which contains an explanatory paragraph relating to the significant
transactions and relationships with related parties as described in Note 17
to
the combined financial statements) of PricewaterhouseCoopers LLP, an independent
registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The
information included in this prospectus or incorporated by reference into this
prospectus regarding estimated quantities of proved reserves and their present
value is based, in part, on estimates of the proved reserves and present values
of proved reserves as of December 31, 2006 based on a reserve report as of
December 31, 2006 prepared by Netherland Sewell & Associates,
Inc., independent petroleum engineers. These estimates are included in this
prospectus in reliance upon the authority of the firm as experts in these
matters.
The
following is a description of the meanings of some of the oil and natural gas
industry terms used in this prospectus.
3-D
seismic. (Three-Dimensional
Seismic Data) Geophysical data that depicts the subsurface strata in three
dimensions. 3-D seismic data typically provides a more detailed and accurate
interpretation of the subsurface strata than two-dimensional seismic
data.
Amplitude. The
difference between the maximum displacement of a seismic wave and the point
of
no displacement, or the null point.
(Amplitude
plays) anomalies. An abrupt increase in
seismic amplitude that can in some instances indicate the presence of
hydrocarbons.
Anticline. An
arch-shaped fold in rock in which layers are upwardly convex, often forming
a
hydrocarbon trap. Anticlines may form hydrocarbon traps, particularly in folds
with reservoir-quality rocks in their core and impermeable seals in the outer
layers of the fold.
Appraisal
well. A well drilled several spacing
locations away from a producing well to determine the boundaries or extent
of a
productive formation and to establish the existence of additional
reserves.
Bbl. One
stock tank barrel, or 42 U.S. gallons liquid volume, of oil or other liquid
hydrocarbons.
Bcf. Billion
cubic feet of natural gas.
Bcfe. Billion
cubic feet equivalent determined using the ratio of six Mcf of natural gas
to
one Bbl of crude oil, condensate or natural gas liquids.
Behind
Pipe Pays. Reserves expected to be recovered from zones in
existing wells, which will require additional completion work or future
recompletion prior to the start of production
Block. A
block depicted on the Outer Continental Shelf Leasing and Official Protraction
Diagrams issued by the U.S. Minerals Management Service or a similar depiction
on official protraction or similar diagrams, issued by a state bordering on
the
Gulf of Mexico.
Btu
or British thermal unit. The quantity of
heat required to raise the temperature of one pound of water by one degree
Fahrenheit.
Coalbed
methane. Coal is a carbon-rich sedimentary
rock that forms from the remains of plants deposited as peat in swampy
environments. Natural gas associated with coal, called coal gas or coalbed
methane, can be produced economically from coal beds in some areas.
Completion. The
installation of permanent equipment for the production of oil or natural
gas.
Developed
acreage. The number of acres that are
allocated or assignable to productive wells or wells capable of
production.
Development
well. A well drilled within the proved
boundaries of an oil or natural gas reservoir with the intention of completing
the stratigraphic horizon known to be productive.
Dry
hole. A well found to be incapable of
producing hydrocarbons in sufficient quantities such that proceeds from the
sale
of such production exceeds production expenses and taxes.
Dry
hole costs. Costs incurred in drilling a
well, assuming a well is not successful, including plugging and abandonment
costs.
Exploratory
well. A well drilled to find and produce
oil or natural gas reserves not classified as proved, to find a new reservoir
in
a field previously found to be productive of oil or natural gas in another
reservoir or to extend a known reservoir.
Fault. A
break or planar surface in brittle rock across which there is observable
displacement.
Faulted
downthrown rollover anticline. An
arch-shaped fold in rock in which the convex geological structure is tipped
as
opposed to perpendicular to the ground and in which a visible break or
displacement has occurred in brittle rock, often forming a hydrocarbon
trap.
Field. An
area consisting of either a single reservoir or multiple reservoirs all grouped
on or related to the same individual geological structural feature and/or
stratigraphic condition.
Finding
and development
costs. Capital costs
incurred in the acquisition, exploration, development and revisions of proved
oil and natural gas reserves divided by proved reserve additions.
Fracing
or fracture stimulation technology. The
technique of improving a well’s production or injection rates by pumping a
mixture of fluids into the formation and rupturing the rock, creating an
artificial channel. As part of this technique, sand or other material may also
be injected into the formation to keep the channel open, so that fluids or
natural gases may more easily flow through the formation.
Gross
acres or gross wells. The total acres or
wells, as the case may be, in which a working interest is owned.
Horizontal
drilling. A drilling
operation in which a portion of the well is drilled horizontally within a
productive or potentially productive formation. This operation usually yields
a
well that has the ability to produce higher volumes than a vertical well drilled
in the same formation.
Hydrocarbon
indicator. A type of seismic amplitude
anomaly, seismic event, or characteristic of seismic data that can occur in
a
hydrocarbon-bearing reservoir.
Infill
well. A well drilled between known
producing wells to better exploit the reservoir.
Injection
well or injection. A well
which is used to place liquids or natural gases into the producing zone during
secondary/tertiary recovery operations to assist in maintaining reservoir
pressure and enhancing recoveries from the field.
Lease
operating expenses. The expenses of lifting
oil or natural gas from a producing formation to the surface, and the
transportation and marketing thereof, constituting part of the current operating
expenses of a working interest, and also including labor, superintendence,
supplies, repairs, short-lived assets, maintenance, allocated overhead costs,
ad
valorem taxes and other expenses incidental to production, but excluding lease
acquisition or drilling or completion expenses.
MBbls. Thousand
barrels of crude oil or other liquid hydrocarbons.
Mcf. Thousand
cubic feet of natural gas.
Mcfe. Thousand
cubic feet equivalent determined using the ratio of six Mcf of natural gas
to
one Bbl of oil, condensate or natural gas liquids.
MMBbls. Million
barrels of oil or other liquid hydrocarbons.
MMBtu. Million
British Thermal Units.
MMcf. Million
cubic feet of natural gas.
MMcfe. Million
cubic feet equivalent determined using the ratio of six Mcf of natural gas
to
one Bbl of oil, condensate or natural gas liquids.
Net
acres or net wells. The sum of the
fractional working interests owned in gross acres or wells, as the case may
be.
Net
revenue interest. An interest in all oil
and natural gas produced and saved from, or attributable to, a particular
property, net of all royalties, overriding royalties, net profits interests,
carried interests, reversionary interests and any other burdens to which the
person’s interest is subject.
Nonoperated
working interests. The
working interest or fraction thereof in a lease or unit, the owner of which
is
without operating rights by reason of an operating agreement.
NYMEX. New
York Mercantile Exchange.
Operated
working interests. Where
the working interests for a property are co-owned, and where more than one
party
elects to participate in the development of a lease or unit, there is an
operator designated “for full control of all operations within the limits of the
operating agreement” for the development and production of the wells on the
co-owned interests. The working interests of the operating party become the
“operated working interests.”
Payout. Generally
refers to the recovery by the incurring party of its costs of drilling,
completing, equipping and operating a well before another party’s participation
in the benefits of the well commences or is increased to a new
level.
Permeability. The
ability, or measurement of a rock’s ability, to transmit fluids, typically
measured in darcies or millidarcies. Formations that transmit fluids readily
are
described as permeable and tend to have many large, well-connected
pores.
Porosity. The
percentage of pore volume or void space, or that volume within rock that can
contain fluids.
PV-10
or present value of estimated future net
revenues. An estimate of the present value
of the estimated future net revenues from proved oil and natural gas reserves
at
a date indicated after deducting estimated production and ad valorem taxes,
future capital costs and operating expenses, but before deducting any estimates
of federal income taxes. The estimated future net revenues are discounted at
an
annual rate of 10%, in accordance with the Securities and Exchange Commission’s
practice, to determine their “present value.” The present value is shown to
indicate the effect of time on the value of the revenue stream and should not
be
construed as being the fair market value of the properties. Estimates of future
net revenues are made using oil and natural gas prices and operating costs
at
the date indicated and held constant for the life of the reserves.
Productive
well. A well that is found to be capable of
producing hydrocarbons in sufficient quantities such that proceeds from the
sale
of such production exceed production expenses and taxes.
Progradation. The
accumulation of sequences by deposition in which beds are deposited successively
basinward because sediment supply exceeds accommodation.
Prospect. A
specific geographic area which, based on supporting geological, geophysical
or
other data and also preliminary economic analysis using reasonably anticipated
prices and costs, is deemed to have potential for the discovery of commercial
hydrocarbons.
Proved
developed non-producing reserves. Proved
developed reserves expected to be recovered from zones behind casing in existing
wells. See Rule 4-10(a), paragraph (2) through (2)iii for a more complete
definition.
Proved
developed producing reserves. Proved
developed reserves that are expected to be recovered from completion intervals
currently open in existing wells and capable of production to market. See Rule
4-10(a), paragraph (2) through (2)iii for a more complete
definition.
Proved
developed reserves. Proved reserves that
can be expected to be recovered from existing wells with existing equipment
and
operating methods. See Rule 4-10(a), paragraph (3) for a more complete
definition.
Proved
reserves. The estimated quantities of oil,
natural gas and natural gas liquids that geological and engineering data
demonstrate with reasonable certainty to be recoverable in future years from
known reservoirs under existing economic and operating conditions. See Rule
4-10(a), paragraph (2) through (2)iii for a more complete
definition.
Proved
undeveloped reserves. Proved reserves that
are expected to be recovered from new wells on undrilled acreage or from
existing wells where a relatively major expenditure is required for
recompletion. See Rule 4-10(a), paragraph (4) for a more complete
definition.
Reserve
life index. This index is calculated by
dividing year-end reserves by the average production during the past year to
estimate the number of years of remaining production.
Reservoir. A
porous and permeable underground formation containing a natural accumulation
of
producible oil and/or natural gas that is confined by impermeable rock or water
barriers and is individual and separate from other reservoirs.
Resistivity. The
ability of a material to resist electrical conduction. Resistivity is used
to
indicate the presence of water and /or hydrocarbons.
Secondary
recovery. An artificial
method or process used to restore or increase production from a reservoir after
the primary production by the natural producing mechanism and reservoir pressure
has experienced partial depletion. Natural gas injection and waterflooding
are
examples of this technique.
Shelf. Areas
in the Gulf of Mexico with depths less than 1,300 feet. Our shelf area and
operations also includes a small amount of properties and operations in the
onshore and bay areas of the Gulf Coast.
Stratigraphy. The
study of the history, composition, relative ages and distribution of layers
of
the earth’s crust.
Stratigraphic
trap. A sealed geologic container capable
of retaining hydrocarbons that was formed by changes in rock type or pinch-outs,
unconformities, or sedimentary features such as reefs.
Tcf. Trillion
cubic feet of natural gas.
Tcfe. Trillion
cubic feet equivalent determined using the ratio of six Mcf of natural gas
to
one Bbl of oil, condensate or natural gas liquids.
Trap. A
configuration of rocks suitable for containing hydrocarbons and sealed by a
relatively impermeable formation through which hydrocarbons will not
escape.
Undeveloped
acreage. Lease acreage on which wells have
not been drilled or completed to a point that would permit the production of
commercial quantities of oil or natural gas regardless of whether or not such
acreage contains proved reserves.
Waterflooding. A
secondary recovery operation in which water is injected into the producing
formation in order to maintain reservoir pressure and force oil toward and
into
the producing wells.
Working
interest. The operating interest that gives
the owner the right to drill, produce and conduct operating activities on the
property and receive a share of production.
Workover. The
repair or stimulation of an existing production well for the purpose of
restoring, prolonging or enhancing the production of hydrocarbons.
Workover
rig. A portable rig used to repair or
adjust downhole equipment on an existing well.
/d. “Per
day” when used with volumetric units or dollars.
50,000,000 Shares
Of
Common
Stock
Prospectus
,
2007
Part
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
ITEM
13.
|
Other
Expenses of Issuance and
Distribution
|
The
following is an itemized statement of the estimated amounts of all expenses
payable by the registrant in connection with the offering described in the
Registration Statement, other than underwriting discounts and
commissions:
|
SEC
Registration Fee
|
$ | - | * | |
|
NASD
Filing Fee
|
$ | - | * | |
|
Listing
application and listing fees
|
$ | - | * | |
|
Accountants
fees and expenses
|
$ | 10,000 | ** | |
|
Legal
fees and expenses
|
$ | 50,000 | ** | |
|
Printing
and engraving expenses
|
$ | 5,000 | ** | |
|
Transfer
agent’s and registrar’s fees
|
$ | 5,000 | ** | |
|
Miscellaneous
|
$ | 2,000 | ** | |
|
Total
|
$ | 72,000 | ** |
_______________________
|
*
|
Paid
with original filing
|
|
**
|
Estimates
|
|
ITEM
14.
|
Indemnification
of Directors and Officers
|
Section
145 of the Delaware General Corporation Law (“Section 145”) permits
indemnification of directors, officers, agents and controlling persons of a
corporation under certain conditions and subject to certain limitations. Article
X of our Certificate of Incorporation and Article VIII of our Bylaws provide
for
the indemnification of its directors, officers and other authorized
representatives to the maximum extent permitted by the Delaware General
Corporation Law. Section 145 empowers 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
or
agent of the corporation or another enterprise if serving at the request of
the
corporation. Depending on the character of the proceeding, a corporation may
indemnify against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified 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, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. In
the
case of an action by or in the right of the corporation, no indemnification
may
be made with respect to any claim, issue or matter as to which such person
shall
have been adjudged to be liable to the corporation unless and only to the extent
that the court of chancery or the court in which such action or suit was brought
shall determine that despite the adjudication of liability such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall
deem proper. Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action,
suit
or proceeding referred to above or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection therewith.
We
currently carry directors and officers liability insurance and have entered
into
indemnification agreements with each of our directors and executive officers
that provide for indemnification and expense advances to the fullest extent
permitted under the Delaware General Corporation Law.
|
ITEM
15.
|
Recent
Sales of Unregistered
Securities
|
Issuance
of Capital Stock.
In
the
three years preceding the filing of this registration statement, we have issued
and sold the following securities that were not registered under the Securities
Act:
|
Date
of Sale
|
Title
and Amount
of
Securities Sold
|
Name
or Class of Purchaser of Securities
|
Consideration
|
|
July
7, 2005
|
45,312,500
-
Common
Stock
|
Qualified
Institutional Buyers and Offshore Parties
|
$725
Million
|
|
July
13, 2005
|
4,687,500
–
Common
Stock
|
Qualified
Institutional Buyers and Accredited Investors
|
$75
Million
|
Friedman,
Billings & Ramsey Co, Inc. act as underwriter and as placement agent in the
foregoing sales of securities. For its role as underwriter and
placement agent, FBR received an underwriter’s discount equal to seven percent
(7%) of the aggregate consideration. All such sales were made in
reliance upon an exemption from the registration provisions of the Securities
Act set forth in Section 4(2) thereof relating to sales by an issuer not
involving any public offering or the rules and regulations
thereunder.
|
Date
of Issuance
|
Title
and Amount of
Securities
Issued
|
Name
or Class of Purchaser
of
Securities
|
Consideration
|
|||
|
July7,
2005
|
231,400
- Common Stock
|
Officers
and Other employees
|
$-0-
|
|||
|
July8,
2005
|
253,500
- Common Stock
|
Employees
|
$-0-
|
|||
|
July
13, 2005
|
5,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
July
15, 2005
|
1,000
- Common Stock
|
Employees
|
$-0-
|
|||
|
July
25, 2005
|
1,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
August
1, 2005
|
21,500 - Common Stock
|
Directors
and Employees
|
$-0-
|
|||
|
August
3, 2005
|
5,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
August
15, 2005
|
12,500
- Common Stock
|
Employees
|
$-0-
|
|||
|
August
22, 2005
|
500 - Common Stock
|
Employees
|
$-0-
|
|||
|
September
1, 2005
|
2,500
- Common Stock
|
Employees
|
$-0-
|
|||
|
September
6, 2005
|
12,500
- Common Stock
|
Employees
|
$-0-
|
|||
|
September
14, 2005
|
5,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
September
19, 2005
|
500 - Common Stock
|
Employees
|
$-0-
|
|||
|
September
28, 2005
|
8,500
- Common Stock
|
Employees
|
$-0-
|
|||
|
October
21, 2005
|
2,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
October
31, 2005
|
10,000
- Common Stock
|
Employees
|
$-0-
|
|||
|
November
1, 2005
|
7,000
- Common Stock
|
Employees
|
$-0-
|
|||
|
November
14, 2005
|
6,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
November
21, 2005
|
2,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
December
1, 2005
|
4,500
- Common Stock
|
Consultants
and Employees
|
$-0-
|
|||
|
December
6, 2005
|
1,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
December
12, 2005
|
1,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
January
3, 2006
|
8,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
January
13, 2006
|
1,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
January
30, 2006
|
1,000 - Common Stock
|
Employees
|
$-0-
|
|||
|
February
13, 2006
|
1,000
- Common Stock
|
Employees
|
$-0-
|
No
underwriters were used in the foregoing issuances of securities. All
such issuances were made in reliance upon an exemption from the registration
provisions of the Securities Act set forth in Rule 701 as promulgated under
the
Securities Act relating to issuances of securities under compensatory
plans.
Grants
of Stock Options
Additionally,
we have granted to our employees, including executive officers, options to
purchase 706,550 shares of our common stock at exercise prices ranging from
$16
per share to $19 per share. All such issuances were made in reliance
on Rule 701 as promulgated under the Securities Act relating to issuances of
securities under compensatory plans.
|
ITEM
16.
|
Exhibits
and Financial Statement
Schedules
|
|
(a)
|
Exhibits
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
*3.1
|
|
Certificate
of Incorporation
|
|
*3.2
|
|
Bylaws
|
|
*4.1
|
|
Registration
Rights Agreement
|
|
5.1
|
|
Opinion
of Thompson and Knight LLP
|
|
*10.1
|
|
Purchase
and Sale Agreement with Calpine Corporation, Calpine Gas Holdings,
L.L.C.
and Calpine Fuels Corporation
|
|
*10.2
|
|
Transfer
and Assumption Agreements with Calpine Corporation and Subsidiaries
of
Rosetta Resources Inc.
|
|
*10.4
|
|
Gas
Purchase and Sale Contract with Calpine Energy Services,
L.P.
|
|
*10.5
|
|
Services
Agreement with Calpine Producer Services, L.P.
|
|
*10.9
|
|
2005
Long-Term Incentive Plan
|
|
*10.10
|
|
Form
of Option Grant Agreement
|
|
*10.11
|
|
Form
of Restricted Stock Agreement
|
|
*10.12
|
|
Form
of Bonus Restricted Stock Agreement
|
|
*10.13
|
|
Employment
Agreement with B.A. Berilgen
|
|
*10.14
|
|
Amended
and Restated Employment Agreement with Michael J.
Rosinski
|
|
*10.15
|
|
Employment
Agreement with Charles F. Chambers
|
|
*10.16
|
|
Employment
Agreement with Edward E. Seeman
|
|
*10.17
|
|
Employment
Agreement with Michael H. Hickey
|
|
*10.18
|
|
Senior
Revolving Credit Agreement
|
|
*10.19
|
|
Second
Lien Term Loan Agreement
|
|
*10.20
|
|
Guarantee
and Collateral Agreement
|
|
*10.21
|
|
Second
Lien Guarantee and Collateral Agreement
|
|
*10.22
|
|
First
Amendment to Senior Revolving Credit Agreement
|
|
*10.23
|
|
First
Amendment to Second Lien Term Loan Agreement
|
|
*10.24
|
|
First
Amendment to Guarantee and Collateral Agreement
|
|
*10.25
|
|
First
Amendment to Second Lien Guarantee and Collateral
Agreement
|
|
*10.26
|
|
Deposit
Account Control Agreement
|
|
*10.27
|
|
Amendment
No. 1 to B.A. Berilgen Employment Agreement
|
|
*10.28
|
|
First
Amendment to 2005 Long-Term Incentive Plan
|
|
*10.29
|
|
Non-Executive
Employee Change of Control Plan
|
|
*21.1
|
|
Subsidiaries
of the registrant
|
|
23.1
|
|
Consent
of PricewaterhouseCoopers LLP
|
|
23.2
|
|
Consent
of PricewaterhouseCoopers LLP
|
|
23.3
|
|
Consent
of Netherland, Sewell & Associates, Inc.
|
|
23.4
|
|
Consent
of Thompson & Knight LLP (included in exhibit 5.1)
|
|
24.1
|
|
Power
of Attorney (included in signature
page)
|
___________________
*
Previously filed
|
(b)
|
Financial
Statement Schedules
|
All
schedules have been omitted because they are not required, are not applicable,
or the information is included in the Financial Statements or Notes
thereto.
|
ITEM
17.
|
Undertakings
|
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective
date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement.
(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.
(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, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
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 first use, 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 date of first use.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted
by such
director, officer or controlling person in connection with the securities
being
registered, the registrant will, unless in the opinion of its counsel the
matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
has duly caused this Post-Effective Amendment No. 2 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 March 23,
2007.
| ROSETTA RESOURCES INC. | ||
|
By:
|
/s/
B.A. Berilgen
|
|
|
B.A.
Berilgen, Chairman of the Board,
President
and
Chief
Executive Officer
|
||
POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each of the persons whose names appear below
hereby appoint and constitute B.A. Berilgen and Michael J. Rosinski, and each
of
them, his or her true and lawful attorney-in-fact and agent, with full power
of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to execute any and all amendments to
the
within Post-Effective Amendment No. 2 to Form S-1 and the original Registration
Statement amended hereby, and to sign any and all registration statements or
amendments thereto relating to the same offering of securities as this
Post-Effective Amendment No. 2 to Form S-1 and the original Registration
Statement amended hereby or any amendments that are filed pursuant to Rule
462(b) of the Securities Act of 1933, as amended, and to file the same, together
with all exhibits thereto, with the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc., and such other agencies,
offices and persons as may be required by applicable law, granting unto each
said attorney-in-fact and agent, full power and authority to do and perform
each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact
and
agent may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 2 to the Registration Statement has been signed
by
the following persons in the capacities and on the dates
indicated:
|
Signature
|
Title
|
Date
|
||
|
/s/
B.A. Berilgen
|
Chairman
of the Board, President and Chief
|
March
23, 2007
|
||
|
B.A.
Berilgen
|
Executive Officer (Principal Executive Officer) | |||
|
/s/
Michael J. Rosinski
|
Executive
Vice President and Chief Financial
|
March
23, 2007
|
||
|
Michael
J. Rosinski
|
Officer (Principal Financial Officer) | |||
|
/s/
Denise D. Bednorz
|
Vice
President, Controller (Principal
|
March
23, 2007
|
||
|
Denise
D. Bednorz
|
Accounting Officer) | |||
|
*
|
Director
|
March
23, 2007
|
||
|
Richard
W. Beckler
|
||||
|
*
|
Director
|
March
23, 2007
|
||
|
Donald
D. Patteson, Jr.
|
||||
|
*
|
Director
|
March
23, 2007
|
||
|
D.
Henry Houston
|
||||
|
/s/
G. Louis Graziadio, III
|
Director
|
March
23, 2007
|
||
|
G.
Louis Graziadio, III
|
||||
|
/s/
Josiah O. Low, III
|
Director
|
March
23, 2007
|
||
|
Josiah
O. Low, III
|
*
By: /s/ Michael J. Rosinski
Attorney-in-fact
INDEX
TO EXHIBITS
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
*3.1
|
|
Certificate
of Incorporation
|
|
*3.2
|
|
Bylaws
|
|
*4.1
|
|
Registration
Rights Agreement
|
|
|
Opinion
of Thompson and Knight LLP
|
|
|
*10.1
|
|
Purchase
and Sale Agreement with Calpine Corporation, Calpine Gas Holdings,
L.L.C.
and Calpine Fuels Corporation
|
|
*10.2
|
|
Transfer
and Assumption Agreements with Calpine Corporation and Subsidiaries
of
Rosetta Resources Inc.
|
|
*10.4
|
|
Gas
Purchase and Sale Contract with Calpine Energy Services,
L.P.
|
|
*10.5
|
|
Services
Agreement with Calpine Producer Services, L.P.
|
|
*10.9
|
|
2005
Long-Term Incentive Plan
|
|
*10.10
|
|
Form
of Option Grant Agreement
|
|
*10.11
|
|
Form
of Restricted Stock Agreement
|
|
*10.12
|
|
Form
of Bonus Restricted Stock Agreement
|
|
*10.13
|
|
Employment
Agreement with B.A. Berilgen
|
|
*10.14
|
|
Amended
and Restated Employment Agreement with Michael J.
Rosinski
|
|
*10.15
|
|
Employment
Agreement with Charles F. Chambers
|
|
*10.16
|
|
Employment
Agreement with Edward E. Seeman
|
|
*10.17
|
|
Employment
Agreement with Michael H. Hickey
|
|
*10.18
|
|
Senior
Revolving Credit Agreement
|
|
*10.19
|
|
Second
Lien Term Loan Agreement
|
|
*10.20
|
|
Guarantee
and Collateral Agreement
|
|
*10.21
|
|
Second
Lien Guarantee and Collateral Agreement
|
|
*10.22
|
|
First
Amendment to Senior Revolving Credit Agreement
|
|
*10.23
|
|
First
Amendment to Second Lien Term Loan Agreement
|
|
*10.24
|
|
First
Amendment to Guarantee and Collateral Agreement
|
|
*10.25
|
|
First
Amendment to Second Lien Guarantee and Collateral
Agreement
|
|
*10.26
|
|
Deposit
Account Control Agreement
|
|
*10.27
|
|
Amendment
No. 1 to B.A. Berilgen Employment Agreement
|
|
*10.28
|
|
First
Amendment to 2005 Long-Term Incentive Plan
|
|
*10.29
|
|
Non-Executive
Employee Change of Control Plan
|
|
*21.1
|
|
Subsidiaries
of the registrant
|
|
|
Consent
of PricewaterhouseCoopers LLP
|
|
|
|
Consent
of PricewaterhouseCoopers LLP
|
|
|
|
Consent
of Netherland, Sewell & Associates, Inc.
|
|
|
23.4
|
|
Consent
of Thompson & Knight LLP (included in exhibit 5.1)
|
|
24.1
|
|
Power
of Attorney (included in signature
page)
|
___________________
* Previously
filed