As filed with the Securities and Exchange Commission on June 9, 2006
Registration No.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Delaware 95-4352386
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
717 Texas Avenue, Suite 3100
Houston, Texas 77002
(Address of Principal Executive Offices)
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CHENIERE ENERGY, INC.
AMENDED AND RESTATED
2003 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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Don A. Turkleson
Chief Financial Officer
Cheniere Energy, Inc.
717 Texas Avenue, Suite 3100
Houston, Texas 77002
(713) 659-1361
(Name and address of agent for service)
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Copy to:
Geoffrey K. Walker
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4757
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CALCULATION OF REGISTRATION FEE
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Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of securities registered (1) offering price aggregate offering registration fee
to be registered (1)(2) per share (3) price (3)
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Common Stock, par value $.003 per share, 3,000,000 shares $38.94 $116,820,000 $12,500
including associated rights attached thereto
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(1) This Registration Statement is filed pursuant to General Instruction E to Form S-8. Registration Statement No. 333-112379 previously registered 1,000,000 shares of Cheniere Energy, Inc. common stock, par value $.003 per share ("Common Stock") under the Cheniere Energy, Inc. 2003 Stock Incentive Plan ("Plan"), together with an indeterminate amount of Plan interests. The number of previously registered shares had been adjusted to 2,000,000 shares of Common Stock to reflect the two-for-one stock split as set forth in Cheniere Energy, Inc.'s Current Report on Form 8-K filed on March 14, 2005. Registration Statement No. 333-127266 previously registered 6,000,000 additional shares of Common Stock that may be issued under the Plan and included an indeterminate number of shares that may be issuable by reason of stock splits, stock dividends or similar transactions. The aggregate number of shares issuable pursuant to the Plan and registered pursuant to this and the earlier registration statement is 11,000,000 shares of Common Stock.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan.
(3) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act of 1933, as amended, based on the average of the high and low prices reported by the American Stock Exchange on June 6, 2006.
INCORPORATION BY REFERENCE OF PRIOR REGISTRATION STATEMENT
The contents of Registration Statement Nos. 333-112379 and 333-127266 are incorporated herein by reference, except for Items 3, 5 and 8, which are included below. The number of shares contained in Registration Statement No. 333-112379 has been adjusted (as reflected on our Current Report on Form 8-K filed on March 14, 2005) to reflect a two-for-one stock split effective as of April 22, 2005 so that the aggregate number of shares issuable pursuant to the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan is 11,000,000 shares of Common Stock.
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Cheniere Energy, Inc. (the "Company") with the Securities and Exchange Commission (the "SEC") are incorporated herein by reference into the Registration Statement:
(a) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2005, filed with the SEC on March 13, 2006;
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2006, filed with the SEC on May 5, 2006;
(c) Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 7, 2006;
(e) Our Current Reports on Form 8-K filed on January 5, 2006, February 23, 2006, March 15, 2006, March 29, 2006, April 3, 2006, April 6, 2006 and April 13, 2006;
(f) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above;
(g) The description of our common stock set forth in our Registration Statement on Form S-3 (Registration Statement No. 333-11454), filed with the SEC on September 3, 2004, including any subsequent amounts or reports filed for the purpose of updating such description; and
(h) The description of the rights to purchase Series A Junior Participating Preferred Stock contained in our Registration Statement on Form 8-A, filed with the SEC on November 1, 2004, as amended by Amendment No. 1 thereto, filed with the SEC on January 24, 2005.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby is being passed upon for us by Andrews Kurth LLP. Attorneys at the law firm of Andrews Kurth LLP beneficially own 17,000 shares of our Common Stock.
Item 8. EXHIBITS
The following exhibits have been filed as part of this Registration Statement and are specifically incorporated by reference:
4.1 Restated Certificate of Incorporation of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to Cheniere's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2004, as filed with the SEC on August 10, 2004 (SEC File No. 001-16383)).
4.2 Certificate of Amendment of Restated Certificate of Incorporation of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to Cheniere's Current Report on Form 8-K, as filed with the SEC on February 8, 2005 (SEC File No. 001-16383)).
4.3 Amended and Restated By-laws of Cheniere Energy, Inc. (incorporated by
reference to Exhibit 4.3 to Cheniere's Registration Statement on Form
S-8, as filed with the SEC on January 30, 2004 (SEC File No.
333-112379)).
4.4 Amendment No. 1 to Amended and Restated By-Laws of Cheniere Energy,
Inc. (incorporated by reference to Exhibit 3.1 to Cheniere's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2005, as
filed with the SEC on May 6, 2005 (SEC File No. 001-16383)).
4.5 Specimen Common Stock Certificate of Cheniere Energy, Inc.
(incorporated by reference to Exhibit 4.1 to Cheniere's Registration
Statement on Form S-1, as filed with the SEC on August 27, 1996 (SEC
File No. 333-10905)).
4.6 Certificate of Designation of Series A Junior Participating Preferred
Stock (incorporated by reference to Exhibit 3.1 to Cheniere's Current
Report on Form 8-K, as filed with the SEC on October 14, 2004 (SEC File
No. 001-16383)).
4.7 Rights Agreement by and between the Company and U.S. Stock Transfer
Corp., as Rights Agent, dated as of October 14, 2004 (incorporated by
reference to Exhibit 4.1 to Cheniere's Current Report on Form 8-K, as
filed with the SEC on October 14, 2004 (SEC File No. 001-16383)).
4.8 First Amendment to Rights Agreement by and between the Company and U.S.
Stock Transfer Corp., as Rights Agent, dated January 24, 2005
(incorporated by reference to Exhibit 4.1 to Cheniere's Current Report
on Form 8-K, as filed with the SEC on January 24, 2005 (SEC File No.
001-16383)).
4.9 Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan.,
dated September 8, 2005 (incorporated by reference to Exhibit 10.14 of
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005, as filed with the SEC on November 4, 2005 (SEC File
No. 001-16383)).
4.10* Amendment No. 1 to Cheniere Energy, Inc. Amended and Restated 2003
Stock Incentive Plan.
5.1* Opinion of Andrews Kurth LLP regarding legality of common stock.
23.1* Consent of Andrews Kurth LLP (included in Exhibit 5.1).
23.2* Consent of UHY Mann Frankfort Stein & Lipp CPAs, LLP.
23.3* Consent of Hein & Associates LLP
23.4* Consent of Sharp Petroleum Engineering Inc.
24.1* Powers of Attorney (included on signature page).
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* Filed herewith
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on this 9th day of June, 2006.
CHENIERE ENERGY, INC.
By:/s/ CHARIF SOUKI ------------------------------ Name: Charif Souki Title: Chief Executive Officer and Chairman of the Board |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of the registrant hereby constitutes and appoints Don A. Turkleson and Zurab S. Kobiashvili, each as his lawful attorney-in-fact and agent, with full power of substitution, for him and on his behalf and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act of 1933, as amended, and any and all amendments (including, without limitation, post-effective amendments), with all exhibits and any and all documents required to be filed with respect thereto, with the Securities and Exchange Commission or any regulatory authority, granting unto such 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 in order to effectuate the same, as fully to all intents and purposes as he himself might or could do, if personally present, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates stated.
Name and Signature Title Date ---------------------- ----- ---- /s/ CHARIF SOUKI Chief Executive Officer and June 9, 2006 |
---------------------- Chairman of the Board Charif Souki (Principal Executive Officer)
/s/ STANLEY C. HORTON President and Chief Operating Officer June 9, 2006 ---------------------- (Principal Executive Officer) Stanley C. Horton /s/ WALTER L. WILLIAMS Vice Chairman of the Board and June 9, 2006 ---------------------- Director Walter L. Williams /s/ DON A. TURKLESON Senior Vice President, Chief Financial June 9, 2006 ---------------------- Officer & Secretary Don A. Turkleson (Principal Financial Officer) /s/ CRAIG K. TOWNSEND Vice President and Chief Accounting June 9, 2006 ---------------------- Officer (Principal Accounting Craig K. Townsend Officer) /s/ Vicky A. Bailey Director June 9, 2006 ---------------------- Vicky A. Bailey /s/ NUNO BRANDOLINI Director June 9, 2006 ---------------------- Nuno Brandolini /s/ KEITH F. CARNEY Director June 9, 2006 ---------------------- Keith F. Carney /s/ PAUL J. HOENMANS Director June 9, 2006 ---------------------- Paul J. Hoenmans /s/ DAVID B. KILPATRICK Director June 9, 2006 ---------------------- David B. Kilpatrick /s/ J. ROBINSON WEST Director June 9, 2006 ---------------------- J. Robinson West |
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to Cheniere's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2004, as filed with the SEC on August 10, 2004 (SEC File No. 001-16383)).
4.2 Certificate of Amendment of Restated Certificate of Incorporation of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to Cheniere's Current Report on Form 8-K, as filed with the SEC on February 8, 2005 (SEC File No. 001-16383)).
4.3 Amended and Restated By-laws of Cheniere Energy, Inc. (incorporated by
reference to Exhibit 4.3 to Cheniere's Registration Statement on Form
S-8, as filed with the SEC on January 30, 2004 (SEC File No.
333-112379)).
4.4 Amendment No. 1 to Amended and Restated By-Laws of Cheniere Energy,
Inc. (incorporated by reference to Exhibit 3.1 to Cheniere's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2005, as
filed with the SEC on May 6, 2005 (SEC File No. 001-16383)).
4.5 Specimen Common Stock Certificate of Cheniere Energy, Inc.
(incorporated by reference to Exhibit 4.1 to Cheniere's Registration
Statement on Form S-1, as filed with the SEC on August 27, 1996 (SEC
File No. 333-10905)).
4.6 Certificate of Designation of Series A Junior Participating Preferred
Stock (incorporated by reference to Exhibit 3.1 to Cheniere's Current
Report on Form 8-K, as filed with the SEC on October 14, 2004 (SEC File
No. 001-16383)).
4.7 Rights Agreement by and between the Company and U.S. Stock Transfer
Corp., as Rights Agent, dated as of October 14, 2004 (incorporated by
reference to Exhibit 4.1 to Cheniere's Current Report on Form 8-K, as
filed with the SEC on October 14, 2004 (SEC File No. 001-16383)).
4.8 First Amendment to Rights Agreement by and between the Company and U.S.
Stock Transfer Corp., as Rights Agent, dated January 24, 2005
(incorporated by reference to Exhibit 4.1 to Cheniere's Current Report
on Form 8-K, as filed with the SEC on January 24, 2005 (SEC File No.
001-16383)).
4.9 Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan.,
dated September 8, 2005 (incorporated by reference to Exhibit 10.14 of
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005, as filed with the SEC on November 4, 2005 (SEC File
No. 001-16383)).
4.10* Amendment No. 1 to Cheniere Energy, Inc. Amended and Restated 2003
Stock Incentive Plan.
5.1* Opinion of Andrews Kurth LLP regarding legality of common stock.
23.1* Consent of Andrews Kurth LLP (included in Exhibit 5.1).
23.2* Consent of UHY Mann Frankfort Stein & Lipp CPAs, LLP.
23.3* Consent of Hein & Associates LLP
23.4* Consent of Sharp Petroleum Engineering Inc.
24.1* Powers of Attorney (included on signature page).
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* Filed herewith
EXHIBIT 4.10
AMENDMENT NO. 1
CHENIERE ENERGY, INC.
AMENDED AND RESTATED
2003 STOCK INCENTIVE PLAN
WHEREAS, Cheniere Energy, Inc. (the "Company") and the stockholders of the Company have heretofore adopted and approved the Cheniere Energy, Inc. 2003 Stock Incentive Plan (the "Plan"); and
WHEREAS, the Board has heretofore adopted and approved an amended and restated Plan (the "Restated Plan"); and
WHEREAS, the Board and the stockholders of the Company have approved an increase in the number of authorized shares under the Restated Plan by an additional 3,000,000 shares so that a total of 11,000,000 shares of common stock, $.003 par value, of the Company is authorized under the Restated Plan;
NOW, THEREFORE, the Restated Plan is hereby amended, effective as of June 23, 2006, as follows:
1. The first sentence of Section 1.2 (Shares Subject to the Plan) shall be replaced in its entirety by the following:
"The aggregate number of shares of Common Stock that may be issued under the Plan shall not exceed 11,000,000."
2. Except as modified herein, the Plan is hereby specifically ratified and affirmed.
EXHIBIT 5.1
[GRAPHIC OMITTED] 600 Travis, Suite 4200
Houston, Texas 77002
713.220.4200 Phone
713.220.4285 Fax
andrewskurth.com
June 9, 2006
Cheniere Energy, Inc.
717 Texas Avenue, Suite 3100
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel to Cheniere Energy, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing of the Registration Statement on Form S-8 (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Securities Act"), relating to the issuance and proposed sale by the Company under the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan (the "Plan") of up to 3,000,000 shares (the "Shares") of the Company's common stock, par value $0.003 per share (the "Common Stock").
We have examined originals or copies of (i) the Registration Statement,
(ii) the Plan, (iii) the Restated Certificate of Incorporation of the Company,
as amended, (iv) the Amended and Restated By-laws of the Company, as amended,
(v) certain resolutions of the Board of Directors of the Company certified to us
to be true and correct by the Secretary of the Company, and (vi) such other
documents and records as we have deemed necessary and relevant for purposes
hereof. We have relied upon certificates of public officials and officers of the
Company as to certain matters of fact relating to this opinion and have made
such investigations of law as we have deemed necessary and relevant as a basis
hereof. We have not independently verified any factual matter relating to this
opinion.
We have assumed and have not verified (i) the genuineness of all signatures on all documents that we have examined, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals and (iv) the conformity to the authentic originals of all documents supplied to us as certified or photostatic or faxed copies.
Based upon the foregoing, and subject to the limitations and assumptions set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that the issuance of the Shares in accordance with the Plan has been duly authorized by the Company and, when issued and delivered upon receipt by the Company of lawful consideration under Delaware law in accordance with the Plan, will be validly issued, fully paid and non-assessable.
We express no opinion other than as to the federal laws of the United States of America and the Delaware General Corporation Law (which is deemed to include the applicable provisions of the Delaware Constitution and reported judicial opinions interpreting those laws).
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations issued thereunder. Our opinion is rendered as of the date hereof, and we assume no obligation to update or supplement our opinion to reflect any change of fact, circumstance or law after such time as the Registration Statement becomes effective.
Very truly yours,
/s/ Andrews Kurth LLP |
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 10, 2006, relating to the consolidated financial statements of Cheniere Energy, Inc., Cheniere Energy, Inc.'s management assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting of Cheniere Energy, Inc. which appear on pages 74 and 75 in Cheniere Energy, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2005 and filed with the Securities and Exchange Commission on March 13, 2006.
/s/ UHY MANN FRANKFORT STEIN & LIPP CPAs, LLP
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UHY MANN FRANKFORT STEIN & LIPP CPAs, LLP
June 9, 2006
Houston, Texas
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EXHIBIT 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 16, 2006, relating to the financial statements of Freeport LNG Development, L.P., which appears on page 125 in Cheniere Energy, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2005 and filed with the Securities and Exchange Commission on March 13, 2006.
/s/ HEIN & ASSOCIATES LLP
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HEIN & ASSOCIATES LLP
June 8, 2006
Dallas, Texas
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EXHIBIT 23.4
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reserve reports which appear in Cheniere Energy, Inc.'s Annual Report on Form 10-K, for the year ended December 31, 2005 and filed with the Securities and Exchange Commission on March 13, 2006.
/s/ SHARP PETROLEUM ENGINEERING, INC.
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SHARP PETROLEUM ENGINEERING, INC.
June 8, 2006
Houston, Texas
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