As filed with the Securities and Exchange Commission on June 16, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHENIERE ENERGY, INC.
(Exact name
of registrant as specified in its charter)
|
|
|
|
|
Delaware
|
|
95-4352386
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification Number)
|
|
|
|
|
|
700 Milam Street, Suite 800
Houston, Texas 77002
|
|
77002
|
|
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
Cheniere Energy, Inc. Amended
and Restated 2003 Stock Incentive Plan
(Full title of the plan)
Meg A. Gentle
Senior Vice President and Chief Financial Officer
Cheniere Energy, Inc.
700 Milam Street, Suite 800
Houston, Texas 77002
(713) 375-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Geoffrey K. Walker
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”,
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
|
|
Large accelerated filer
|
|
¨
|
|
Accelerated filer
|
|
x
|
|
Non-accelerated filer
|
|
¨
|
|
Smaller reporting company
|
|
¨
|
CALCULATION OF REGISTRATION
FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
Title of Securities to be Registered (1)
|
|
Amount
to be
Registered (1)
|
|
Proposed
Maximum
Offering Price
Per Share
|
|
Proposed
Maximum
Aggregate
Offering Price
|
|
Amount of
Registration Fee
|
|
Common Stock, par value $0.003 per share, including associated rights attached thereto
|
|
10,000,000 shares
|
|
$3.835(2)
|
|
$38,350,000
|
|
$2,139.93
|
|
|
|
|
|
(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 $0.003 per share (the “Common Stock”), under the Cheniere Energy, Inc. 2003 Stock Incentive Plan, as amended to date (the “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. Registration Statement No. 333-134886 previously registered 3,000,000 additional shares of Common Stock under the Plan 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 statements is 21,000,000 shares of Common Stock.
|
|
(2)
|
Estimated solely for the purpose of determining the amount of the registration fee in accordance with 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 on the NYSE Amex on June 12, 2009
|
INCORPORATION BY REFERENCE OF PRIOR REGISTRATION STATEMENT
The contents of Registration Statement Nos. 333-112379, 333-127266 and 333-134886 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 now issuable pursuant to the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan, as amended to date (the “Plan”), is 21,000,000 shares of Common Stock.
|
Item 3.
|
Incorporation of Documents by Reference
|
The
following documents filed by Cheniere Energy, Inc. (the “Company”) with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference into the Registration Statement:
|
|
(a)
|
The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the Commission on February 27, 2009;
|
|
|
(b)
|
The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, filed with the Commission on May 8, 2009;
|
|
|
(c)
|
The Company’s Current Reports on Form 8-K, filed with the Commission on February 27, 2009, March 4, 2009, April 6, 2009, May 5, 2009, May 29, 2009
and June 15, 2009 (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any Current Report on Form 8-K);
|
|
|
(d)
|
All other reports filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year
covered by the Annual Report referred to in (a) above;
|
|
|
(e)
|
The description of the Company’s common stock, par value $0.003 per share, in our Registration Statement on Form 8-A, filed with the Commission on March 2, 2001; and
|
|
|
(f)
|
The description of the Company’s rights to purchase Series A Junior Participating Preferred Stock in our Registration Statement on Form 8-A, filed with the Commission on
November 1, 2004, as amended by Amendment No. 1 thereto, filed with the Commission on January 24, 2005, and as further amended by Amendment No. 2 thereto, filed with the Commission on October 24, 2008.
|
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the
date of this registration statement and prior to the filing of a post-effective amendment, which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in this registration statement
or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any subsequently filed
document, which also is, or is deemed to be, incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
|
Item 5.
|
Interests 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 22,000 shares of our Common Stock.
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
4.1
|
|
Restated Certificate of Incorporation of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004,
filed with the Commission on August 10, 2004).
|
|
|
|
|
4.2
|
|
Certificate of Amendment of Restated Certificate of Incorporation of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with
the Commission on February 8, 2005).
|
|
|
|
|
4.3*
|
|
Certificate of Amendment of Restated Certificate of Incorporation of Cheniere Energy, Inc.
|
|
|
|
|
4.4
|
|
Amended and Restated By-laws of Cheniere Energy, Inc. (incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 30,
2004).
|
|
|
|
|
4.5
|
|
Amendment No. 1 to Amended and Restated By-Laws of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended March
31, 2005, filed with the Commission on May 6, 2005).
|
|
|
|
|
4.6
|
|
Amendment No. 2 to Amended and Restated By-laws of Cheniere Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the Commission
on September 12, 2007).
|
|
|
|
|
4.7
|
|
Specimen Common Stock Certificate of Cheniere Energy, Inc. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1, filed with the Commission on August
27, 1996 (SEC File No. 333-10905)).
|
|
|
|
|
4.8
|
|
Certificate of Designation of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the
Commission on October 14, 2004).
|
|
|
|
|
4.9
|
|
Rights Agreement by and between Cheniere Energy, Inc. and U.S. Stock Transfer Corp., as Rights Agent, dated as of October 14, 2004 (incorporated by reference to Exhibit 4.1 to the Company’s
Current Report on Form 8-K, as filed with the Commission on October 14, 2004).
|
|
|
|
|
4.10
|
|
First Amendment to Rights Agreement by and between Cheniere Energy, Inc. and U.S. Stock Transfer Corp., as Rights Agent, dated January 24, 2005 (incorporated by reference to Exhibit 4.1 to the
Company’s Current Report on Form 8-K, as filed with the Commission on January 24, 2005).
|
|
|
|
|
4.11
|
|
Second Amendment to Rights Agreement by and between Cheniere Energy, Inc. and Computershare Trust Company, N.A. (formerly U.S. Stock Transfer Corp.), as Rights Agent, dated as of October 24,
2008 (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, as filed with the Commission on October 24, 2008).
|
|
|
|
|
4.12
|
|
Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan, dated September 8, 2005 (incorporated by reference to Exhibit 10.13 to the Company’s Quarterly Report on Form 10-Q for
the quarter ended September 30, 2005, filed with the Commission on November 4, 2005).
|
|
|
|
|
4.13
|
|
Amendment No. 1 to the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan (incorporated by reference to Exhibit 10.10 to the Company’s Registration Statement on Form S-8,
filed with the Commission on June 9, 2006 (SEC File No. 333-134886)).
|
|
|
|
|
|
4.14
|
|
Amendment No. 2 to the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan (incorporated by reference to Exhibit 10.84 to the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2006, filed with the Commission on February 27, 2007).
|
|
|
|
|
4.15
|
|
Amendment No. 3 to the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement on Schedule
14A, filed with the Commission on April 23, 2008).
|
|
|
|
|
4.16
|
|
Amendment No. 4 to the Cheniere Energy, Inc. Amended and Restated 2003 Stock Incentive Plan (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, as filed
with the Commission on June 15, 2009).
|
|
|
|
|
5.1*
|
|
Opinion of Andrews Kurth LLP with respect to legality of common stock.
|
|
|
|
|
23.1*
|
|
Consent of Andrews Kurth LLP (included as part of Exhibit 5.1).
|
|
|
|
|
23.2*
|
|
Consent of Ernst & Young LLP.
|
|
|
|
|
23.3*
|
|
Consent of UHY LLP.
|
|
|
|
|
24.1*
|
|
Powers of Attorney (set forth on the signature page of this registration statement).
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 June 15, 2009.
|
|
|
|
|
CHENIERE ENERGY, INC.
|
|
|
|
|
By:
|
|
/s/ Meg A. Gentle
|
|
|
|
Meg A. Gentle
|
|
|
|
Senior Vice President and Chief Financial Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Charif Souki, Meg A. Gentle and Timothy J.
Neumann his or her true and lawful attorney-in-fact and agent, with full power to act with or without the others and with full power of substitution and resubstitution, to execute in his or her name, place and stead, in any and all capacities, any
or all amendments (including pre-effective and post-effective amendments) to this Registration Statement and any registration statement for the same offering filed pursuant to Rule 462 under the Securities Act of 1933, as amended, and to file the
same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform in the name of and on behalf of the
undersigned, in any and all capacities, each and every act and thing necessary or desirable to be done in and about the premises, to all intents and purposes and as fully as they might or could do in person, hereby ratifying, approving and
confirming all that said attorney-in-fact and agent or his substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to
the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Charif Souki
Charif Souki
|
|
Chief Executive Officer, President
and Chairman of the Board
(Principal Executive Officer)
|
|
June 15, 2009
|
|
|
|
|
|
/s/ Meg A. Gentle
Meg A. Gentle
|
|
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
|
|
June 4, 2009
|
|
|
|
|
|
/s/ Jerry D. Smith
Jerry D. Smith
|
|
Vice President and
Chief Accounting Officer
(Principal Accounting Officer)
|
|
June 8, 2009
|
|
|
|
|
|
/s/ Vicky A. Bailey
Vicky A. Bailey
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
/s/ Nuno Brandolini
Nuno Brandolini
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Keith F. Carney
Keith F. Carney
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
/s/ John M. Deutch
John M. Deutch
|
|
Director
|
|
June 4, 2009
|
|
|
|
|
|
/s/ Paul J. Hoenmans
Paul J. Hoenmans
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
/s/ David B. Kilpatrick
David B. Kilpatrick
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
/s/ Jason G. New
Jason G. New
|
|
Director
|
|
June 11, 2009
|
|
|
|
|
|
/s/ D. Dwight Scott
D. Dwight Scott
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
/s/ J. Robinson West
J. Robinson West
|
|
Director
|
|
June 15, 2009
|
|
|
|
|
|
/s/ Walter L. Williams
Walter L. Williams
|
|
Director
|
|
June 11, 2009
|
Exhibit 4.3
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
CHENIERE ENERGY, INC.
Pursuant to Section 242 of the General Corporation Law of the State of Delaware, Cheniere Energy, Inc., a corporation organized
and existing under the Delaware General Corporation Law (the “Corporation”), does hereby certify:
|
|
1.
|
That the Board of Directors of the Corporation duly adopted a resolution setting forth a proposed amendment to the Restated Certificate of Incorporation of the Corporation, as
amended by a Certificate of Amendment dated February 8, 2005, declaring its advisability and directing that this amendment be submitted for consideration by its stockholders. The resolution is as follows:
|
RESOLVED
, that the first sentence of Article FIFTH of the Restated Certificate of Incorporation, as amended, be amended and restated in its
entirety to read as follows:
FIFTH: “The total number of shares of stock that the Company shall have authority to issue is 245,000,000
shares, consisting of:
|
|
(i)
|
240,000,000 shares of Common Stock, having a par value of $.003 per share; and
|
|
|
(ii)
|
5,000,000 shares of Preferred Stock, having a par value of $.0001 per share.”
|
|
|
2.
|
That thereafter, stockholders of the Corporation at a special meeting thereof, duly adopted the foregoing amendment.
|
|
|
3.
|
That said amendment was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law.
|
|
|
4.
|
That the capital of the Corporation shall not be reduced under or by reason of said amendment.
|
IN WITNESS WHEREOF
, the Corporation has caused this Certificate to be executed as of the 12
th
day of June, 2009.
|
|
|
|
|
Cheniere Energy, Inc.
|
|
|
|
|
By:
|
|
/s/ Meg A. Gentle
|
|
Name:
|
|
Meg A. Gentle
|
|
Title:
|
|
Senior Vice President and Chief Financial Officer
|
1
Exhibit 5.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
600 Travis, Suite 4200
|
|
|
|
|
Houston, Texas 77002
|
|
|
|
|
713.220.4200 Phone
|
|
|
|
|
713.220.4285 Fax
|
|
|
|
|
andrewskurth.com
|
June 16, 2009
Cheniere Energy, Inc.
700 Milam Street, Suite 800
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, as amended to date (the “
Plan
”), of up to 10,000,000 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 Corporate 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 the (i) genuineness of all signatures on all documents that we have examined, (ii) legal capacity of all
natural persons, (iii) authenticity of all documents submitted to us as originals and (iv) 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, the Shares will be validly issued, fully paid and non-assessable.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Austin
|
|
Beijing
|
|
Dallas
|
|
Houston
|
|
London
|
|
Los Angeles
|
|
New York
|
|
The Woodlands
|
|
Washington, DC
|
Cheniere Energy, Inc.
June 16, 2009
Page
2
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
|