sctovtza
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER
SECTION 14(d)(1)
OR SECTION 13(e)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934.
(Amendment
No. 3)
PETROHAWK ENERGY
CORPORATION
(Name of Subject Company
(Issuer))
NORTH AMERICA HOLDINGS II
INC.
a wholly owned subsidiary
of
BHP BILLITON PETROLEUM (NORTH
AMERICA) INC.
a wholly owned subsidiary
of
BHP BILLITON LIMITED
(Names of Filing Persons
(Offerors))
Common Stock, par value $0.001
per share
(Title of Class of
Securities)
716495106
(CUSIP Number of Class of
Securities)
Kirsten Gray
Vice President Group Legal
BHP Billiton Limited
180 Lonsdale Street
Melbourne Victoria 3000
Australia
+61 1300 55 47 57
(Name, address and telephone
number of person authorized
to receive notices and communications on behalf of filing
persons)
with copies to:
James C. Morphy
Krishna Veeraraghavan
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
CALCULATION
OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$12,158,162,297
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$
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1,411,563
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*
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The transaction valuation is an
estimate calculated solely for purposes of determining the
amount of the filing fee. The transaction valuation is equal to
the sum of (a) an amount equal to $38.75, the per share
tender offer price, multiplied by the sum of 303,892,075, the
number of shares of common stock issued and outstanding
(including 2,227,908 shares of restricted stock), plus
(b) an amount equal to 9,866,952, the number of shares of
common stock that were reserved for issuance pursuant to stock
option and stock appreciation rights plans, multiplied by
$38.75. No shares of common stock were held by the issuer in its
treasury. The foregoing share figures have been provided by the
issuer to the offerors and are as of July 15, 2011, the
most recent practicable date.
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**
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The amount of the filing fee is
calculated in accordance with
Rule 0-11
of the Securities Exchange Act of 1934, as amended, and Fee
Advisory #5 for fiscal year 2011, issued December 22, 2010,
by multiplying the transaction valuation by 0.0001161.
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þ
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Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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Amount Previously Paid:
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$1,411,563
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Filing Party:
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Purchaser, Parent and
BHP Billiton Limited
(each as defined below)
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Form or Registration No.:
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Schedule To
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Date Filed:
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July 25, 2011
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o Check
the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions
to which the statement relates:
þ third-party
tender offer subject to
Rule 14d-1.
o issuer
tender offer subject to
Rule 13e-4.
o going-private
transaction subject to
Rule 13e-3.
o amendment
to Schedule 13D under
Rule 13d-2.
Check the following box if the filing is a final amendment
reporting the results of the tender
offer: o
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
o Rule 13e-4(i)
(Cross-Border Issuer Tender Offer).
o Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer).
This Amendment No. 3 (this Amendment) amends
and supplements Items 3-6 and 11 in the Tender Offer
Statement on Schedule TO, filed on July 25, 2011 (the
Schedule TO) with the Securities and Exchange
Commission by BHP Billiton Limited, a corporation organized
under the laws of Victoria, Australia (BHP Billiton
Limited), BHP Billiton Petroleum (North America) Inc., a
Delaware corporation (Parent) and a wholly owned
subsidiary of BHP Billiton Limited, and North America
Holdings II Inc., a Delaware corporation
(Purchaser) and a wholly owned subsidiary of Parent,
as amended on July 27, 2011 and July 28, 2011.
Except as otherwise indicated in this Amendment, the information
set forth in the Schedule TO remains unchanged. Capitalized
terms used but not defined herein have the meanings ascribed to
them in the Schedule TO.
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Item 2.
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Subject
Company Information
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The section of the Offer to Purchase entitled Certain
Information Concerning Petrohawk Petrohawk Financial
Forecasts is hereby amended by amending and restating in
its entirety the table entitled Certain Unaudited
Prospective Financial Information of Petrohawk and
corresponding footnotes to read as follows:
CERTAIN
UNAUDITED PROSPECTIVE FINANCIAL INFORMATION OF
PETROHAWK
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For the Fiscal Year Ending December 31,
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2011
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2012
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2013
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2014
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2015
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Production (Mmcfe/d)
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965
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1,171
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1,518
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1,961
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2,378
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Haynesville
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669
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672
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706
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770
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1,031
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Eagle Ford
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238
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384
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632
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933
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1,058
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Permian and Other
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61
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114
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179
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259
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289
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Benchmark Prices
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Natural Gas NYMEX ($/Mmbtu)
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$
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4.39
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$
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4.80
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$
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5.11
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$
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5.41
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$
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5.71
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Crude Oil NYMEX ($/Bbl)
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$
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97.74
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$
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99.25
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$
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100.05
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$
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99.98
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$
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99.70
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Revenue ($ in millions)
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$
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2,144
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$
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2,725
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$
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3,898
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$
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5,340
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$
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6,632
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Adjusted EBITDA ($ in
millions)(1)
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$
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1,500
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$
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2,012
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$
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3,000
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$
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4,177
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$
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5,195
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Capital Expenditures ($ in millions)
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$
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2,973
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$
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2,750
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$
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2,875
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$
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3,250
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$
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3,450
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Free Cash Flow ($ in
millions)(2)
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$
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(1,758
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$
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(1,060
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$
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(225
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$
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674
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$
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1,614
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(1) |
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Adjusted EBITDA is a non-GAAP measure and is used by
Petrohawks management to measure the operating performance
of the business. Petrohawk defines Adjusted EBITDA as EBITDA,
after adding back unrealized gains and losses on derivative
contracts, stock-based compensation and amortization of deferred
gain on sale of gas gathering systems. Petrohawk defines EBITDA
as income from continuing operations, net of income taxes before
interest expense, interest income, income tax and depletion,
depreciation and amortization. |
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(2) |
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Free Cash Flow is a non-GAAP measure and is used by
Petrohawks management to measure the operating performance
of the business. Petrohawk defines Free Cash Flow as cash flow
from operations less capital expenditures. |
1
The information set forth in the section of the Offer to
Purchase entitled Certain Information Concerning
Petrohawk Petrohawk Financial Forecasts is
hereby amended and supplemented by inserting the following table
immediately below the table entitled Reconciliation of
Adjusted EBITDA To Net Income From Continuing Operations:
RECONCILIATION
OF FREE CASH FLOW TO CASH FLOW FROM OPERATIONS
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For the Fiscal Year Ending December 31,
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2011
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2012
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2013
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2014
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2015
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Cash flow from operations
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$
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1,215
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$
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1,690
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$
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2,650
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$
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3,925
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$
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5,064
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Capital expenditures
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$
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2,973
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$
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2,750
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$
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2,875
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$
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3,250
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$
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3,450
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Free Cash Flow
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$
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(1,758
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$
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(1,060
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$
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(225
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$
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674
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$
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1,614
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Item 3. Identity
and Background of Filing Person.
The information set forth in Annex B of the Offer to
Purchase is hereby amended by replacing: (i) the first
entry under Director Since with respect to Douglas
D. Handyside with July 2011 and (ii) both
entries of the starting date for Mr. Handysides
principal occupation as Acting President Production Petroleum,
BHP Billiton Petroleum, with July 2011.
Item 4. Terms
of the Transaction.
The first sentence of the last paragraph in the section of the
Offer to Purchase entitled Withdrawal Rights is
hereby amended and restated in its entirety to read as follows:
All questions as to form and validity (including time of
receipt) of any notice of withdrawal will be determined by
Purchaser in its sole discretion, and its determination will be
final and binding on all persons, subject to the right of
tendering holders of Shares to challenge Purchasers
determination in a court of competent jurisdiction.
The last paragraph in the section of the Offer to Purchase
entitled Conditions to the Offer is hereby amended
and restated in its entirety to read as follows:
The foregoing conditions are for the sole benefit of Purchaser
and may be asserted by Purchaser regardless of the circumstances
giving rise to any such conditions and may be waived by
Purchaser in whole or in part, in each case (other than the
CFIUS Condition), as of the Expiration Date and in each case
except for the Minimum Condition, in its sole discretion,
subject to the terms of the Merger Agreement and applicable law.
The foregoing conditions are in addition to, and not in
limitation of, the rights and obligations of Parent and
Purchaser to extend, terminate or modify the Offer as described
in Section 1 Terms of the Offer and
Section 11 The Merger Agreement; Other
Agreements. The Purchaser may terminate the Offer only
pursuant to the terms and conditions specified in this Offer to
Purchase, and any termination of the Offer will be followed as
promptly as practicable by public announcement thereof. Unless
otherwise mutually agreed to by Purchaser and Petrohawk, any
Shares subject to notices of guaranteed delivery will be deemed
not to be validly tendered for purposes of satisfying the
Minimum Condition unless and until the Shares underlying such
notices of guaranteed delivery are delivered to or on behalf of
Purchaser. Any reference in the conditions to the Offer or in
the Merger Agreement to a condition or requirement being
satisfied will be deemed to be satisfied if such condition or
requirement is waived. The failure by Purchaser at any time to
exercise any of the foregoing rights will not be deemed a waiver
of any such right and each such right may be deemed an ongoing
right that may be asserted in each case (other than the CFIUS
Condition), as of the Expiration Date. Each of the foregoing
conditions is independent of any of the other foregoing
conditions; the exclusion of any event from a particular
condition does not mean that such event may not be included in
another condition.
2
Items 4
through 6 and 11. Terms of the Transaction;
Past Contacts, Transactions, Negotiations and Agreements;
Purposes of the Transaction and Plans or Proposals; and
Additional Information.
The second paragraph in the section of the Offer to Purchase
entitled Background of the Offer; Past Contacts or
Negotiations with Petrohawk Background of the
Offer is hereby amended and restated in its entirety to
read as follows:
In May 2011, BHP Billiton engaged Barclays Capital as a
financial advisor in connection with a potential transaction
with Petrohawk, the engagement letter for which was executed on
June 1, 2011. In May 2011, a representative of Barclays
Capital, on BHP Billitons behalf, contacted Floyd C.
Wilson, the Chief Executive Officer of Petrohawk and the
Chairman of the Petrohawk Board, to inquire about the
possibility of Petrohawk meeting with representatives of BHP
Billiton to discuss potential business opportunities, which Mr.
Wilson agreed to arrange.
The sixth sentence of the fifth paragraph in the section of the
Offer to Purchase entitled Background of the Offer; Past
Contacts or Negotiations with Petrohawk Background
of the Offer is hereby amended and restated in its
entirety to read as follows:
Mr. Yeager also informed Mr. Wilson that a key factor in BHP
Billitons determination of whether to proceed with a
transaction involving Petrohawk was BHP Billitons ability
to retain Petrohawks employees due to their technical
capability and unique knowledge of the assets (Mr. Yeager did
not discuss any details of possible retention arrangements).
The third sentence of the seventh paragraph in the section of
the Offer to Purchase entitled Background of the Offer;
Past Contacts or Negotiations with Petrohawk
Background of the Offer is hereby amended and restated in
its entirety to read as follows:
Mr. Yeager responded that he believed that a price per
Share of $40.00 was too high and countered with a price per
Share of $38.75, indicating that, while he believed that such
price reflected a significant premium across a variety of
metrics, he believed that the board of directors of BHP Billiton
Limited and BHP Billiton Plc would be willing to increase the
offer to that price and to reduce the proposed termination fee
and match right period provided that Petrohawk agreed to
negotiate exclusively with BHP Billiton for a period of time.
The second sentence of the tenth paragraph in the section of the
Offer to Purchase entitled Background of the Offer; Past
Contacts or Negotiations with Petrohawk Background
of the Offer is hereby amended and restated in its
entirety to read as follows:
The board of directors of BHP Billiton Limited and BHP Billiton
Plc approved the continuation of discussions with
representatives of Petrohawk regarding the potential acquisition
on the basis of the terms outlined in the June 21 letter and
thereafter Mr. Yeager informed Mr. Wilson of such
approval.
Item 11. Additional
Information
The section of the Offer to Purchase entitled The Merger
Agreement; Other Agreements Other
Agreements Retention Agreements is hereby
amended and supplemented by adding the following paragraph at
the end thereof:
Petrohawks compensation committee (comprised solely of
independent directors in accordance with the
requirements of
Rule 14d-10(d)(2)
under the Exchange Act and the instructions thereto) has
approved, in accordance with the non-exclusive safe harbor
provisions contained in
Rule 14d-10
under the Exchange Act, among other things, each of the
arrangements set forth above as an employment
compensation, severance or other employee benefit
arrangement within the meaning of
Rule 14d-10(d)
under the Exchange Act.
3
The section of the Offer to Purchase entitled Certain
Legal Matters; Regulatory Approvals Litigation
is hereby amended and restated in its entirety to read as
follows:
Petrohawk and the members of the Petrohawk Board are named as
defendants in purported class action lawsuits brought by
Petrohawks stockholders challenging the proposed
transaction (the Stockholder Actions). The
Stockholder Actions were filed in: the Court of Chancery of the
State of Delaware, Astor BK Realty Trust v. Petrohawk
Energy Corp., et al., C.A.
No. 6675-CS,
Grossman v. Petrohawk Energy Corp., et al., C.A.
No. 6688-CS,
Marina Gincherman, IRA v. Petrohawk Energy Corp., et
al., C.A.
No. 6700-CS,
and Binkowski v. Petrohawk Energy Corp., et al.,
C.A.
No. 6706-CS,
the District of Harris County, Texas, Iron Workers District
Counsel of Tennessee Valley & Vicinity Pension
Plan v. Petrohawk Energy Corp., et al., C.A.
No. 42124, Iron Workers Mid-South Pension Fund v.
Petrohawk Energy Corp., et al., C.A. No. 42590, and
L.A. Murphy v. Wilson, et al., C.A. No. 42772,
and the United States District Court for the Southern District
of Texas, Houston Division, Barrett v. Wilson, et
al.,
No. 11-cv-02852.
BHP Billiton Limited, Parent and Purchaser are named as
defendants in the Grossman, Gincherman and the two
Iron Workers actions, BHP Billiton Limited and Parent are
named as defendants in the Binkowski action, and BHP
Billiton Limited and Purchaser are named as defendants in the
Barrett action. The four Delaware actions have been
consolidated into a single action and the plaintiffs have filed
a consolidated amended complaint that includes Petrohawk, the
members of the Petrohawk Board, BHP Billiton Limited, Parent and
Purchaser as defendants. The three Texas state-court actions
have also been consolidated into a single action and the
plaintiffs have filed a consolidated amended petition that
includes Petrohawk, the members of the Petrohawk Board, BHP
Billiton Limited, Parent and Purchaser as defendants. The
Stockholder Actions seek certification of a class of
Petrohawks stockholders and generally allege, among other
things, that: (i) each member of the Petrohawk Board
breached his fiduciary duties in connection with the
transactions contemplated by the Merger Agreement by failing to
maximize stockholder value, agreeing to preclusive deal
protection provisions, failing to protect against conflicts of
interest,
and/or
failing to disclose material information to stockholders;
(ii) Petrohawk aided and abetted Petrohawks
directors purported breaches of their fiduciary duties;
and/or
(iii) BHP Billiton Limited, Parent and Purchaser parties
aided and abetted the purported breaches of fiduciary duties by
Petrohawks directors. The Barrett action also
alleges that the Petrohawk Board and Petrohawk violated
§ 14(e) of the Exchange Act by disseminating a false
and misleading
Schedule 14D-9.
The Stockholder Actions seek, among other relief, an injunction
prohibiting the transactions contemplated by the Merger
Agreement, rescission in the event such transactions are
consummated, damages and attorneys fees and costs. BHP
Billiton Limited, Parent and Purchaser believe the Stockholder
Actions are without merit and intend to defend themselves
vigorously.
4
SIGNATURES
After due inquiry and to the best of their knowledge and belief,
each of the undersigned certifies that the information set forth
in this statement is true, complete and correct.
NORTH AMERICA HOLDINGS II INC.
Name: David Powell
Title: Vice President
BHP BILLITON PETROLEUM (NORTH AMERICA) INC.
Name: David Powell
Title: Vice President
BHP BILLITON LIMITED
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By:
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/s/ David
A. Williamson
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Name: David A. Williamson
Title: Head of Group Legal and Chief
Compliance
Officer
Dated: August 10, 2011
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