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As filed with the Securities and Exchange Commission on June 13, 2001
REGISTRATION NO. 333-60800
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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POGO PRODUCING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 74-1659398
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
GERALD A. MORTON
5 GREENWAY PLAZA, VICE PRESIDENT--LAW
SUITE 2700 AND CORPORATE SECRETARY
HOUSTON, TEXAS 77046 POGO PRODUCING COMPANY
(713) 297-5000 5 GREENWAY PLAZA, SUITE 2700
(713) 297-4900 (FAX) HOUSTON, TEXAS 77046
(713) 297-5017
(713) 297-4970 (FAX)
(Address, including zip code, and telephone number, including (Name, address, including zip code, and telephone number,
area code, of registrant's principal executive offices) including area code, of agent for service)
Copy to:
Stephen A. Massad
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
(713) 229-1234
(713) 229-1522 (Fax)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[ ]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by Pogo
Producing Company ("Pogo" or the "Company") in connection with the offering
described in this Registration Statement.
Registration fee............................................................... $125,000
Printing expenses.............................................................. 30,000
Accounting fees and expenses................................................... 10,000
Legal fees and expenses........................................................ 50,000
Trustee fees and expenses...................................................... 5,000
Rating agency fees............................................................. 25,000
Miscellaneous.................................................................. 5,000
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Total................................................................... $250,000
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*To be provided by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, inter alia,
empowers a Delaware 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 (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of another corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he 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. Similar indemnity is authorized for such persons against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person 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 provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries' officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act of 1933, as amended.
Article X of the Restated Certificate of Incorporation of the Company
eliminates the personal liability of each director of the Company to the Company
and its stockholders for monetary damages for breach of fiduciary duty as a
director involving any act or omission of any such director occurring on or
after September 30, 1986; provided, however, that such provision does not
eliminate or limit the liability of a director (i) for any breach of such
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Title 8, Section 174 of the General
Corporation Law of the State of Delaware or (iv) for any transaction from which
such director derived an improper personal benefit.
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The Bylaws of the Company provide that the Company will indemnify and
hold harmless, to the fullest extent permitted by applicable law as in effect as
of the date of the adoption of the Bylaws or as it may thereafter be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee, fiduciary or agent of another
corporation or of a partnership, joint venture, trust, enterprise or non-profit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such person. The
Bylaws further provide that the Company will indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Company.
The Bylaws further provide that the Company will pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a director or
officer in his capacity as a director or officer (except with regard to service
to an employee benefit plan or non-profit organizations in advance of the final
disposition of the proceeding) will be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified.
The Company has placed in effect insurance which purports (a) to insure
it against certain costs of indemnification which may be incurred by it pursuant
to the aforementioned Bylaw provision or otherwise and (b) to insure the
officers and directors of the Company and of specified subsidiaries against
certain liabilities incurred by them in the discharge of their functions as
officers and directors except for liabilities arising from their own
malfeasance.
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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*1.1 Form of Underwriting Agreement (Debt Securities)
*1.2 Form of Underwriting Agreement (Preferred Stock)
*1.3 Form of Underwriting Agreement (Common Stock)
+4.1 Form of Indenture relating to the Senior Debt Securities
+4.2 Form of Indenture relating to the Subordinated Debt Securities
+4.3 Restated Certificate of Incorporation of the Company, as Amended
**4.4 Amended and Restated Bylaws of the Company (filed as exhibit 3(b)
to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997 and incorporated herein by reference)
**4.5 Certificate of Designation, Preferences and Rights of Preferred
Stock of the Company, dated March 25, 1997 (filed as Exhibit
3(a)(1) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1987 and incorporated herein by reference)
**4.6 Rights Agreement dated as of April 26, 1994 between the Company
and Harris Trust Company of New York, as Rights Agent (filed as
Exhibit 4 to the Company's Current Report on Form 8-K filed April
26, 1994 and incorporated herein by reference)
**4.7 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Company dated April 26, 1994 (filed as
Exhibit 4(d) to the Company's Registration Statement on Form S-8
(File No. 33-54969) filed August 9, 1994 and incorporated herein
by reference)
5.1 Opinion of Gerald A. Morton
+12.1 Statement re computation of ratios of earnings to fixed charges
+23.1 Consent of Arthur Andersen LLP
+23.2 Consent of Ryder Scott Company, L.P.
+23.3 Consent of Miller and Lents, Ltd.
+23.4 Consent of Gerald A. Morton (included in Exhibit 5.1)
+24.1 Powers of Attorney for the Company
+25 Statement of Eligibility of Trustee on Form T-1
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* To be filed by amendment or by a report on Form 8-K pursuant to Regulation
S-K, Item 601(b).
** Incorporated herein by reference as indicated.
+ Previously filed with this Registration Statement.
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ITEM 17. UNDERTAKINGS
(a) 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) of the Securities Act if, in the aggregate,
the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference 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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrants have been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the 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 Act and will be
governed by the final adjudication of such issue.
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(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it
was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to
the securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee under and Indenture to act under subsection (a) of
Section 310 of the Trust Indenture Act of 1939 (the "Act") in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant 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 13, 2001.
POGO PRODUCING COMPANY
By: /s/ PAUL G. VAN WAGENEN
--------------------------------------
Paul G. Van Wagenen
Chairman, President and Chief
Executive Officer
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.
NAME TITLE DATE
---- ----- ----
/s/ PAUL G. VAN WAGENEN Chairman, President and Chief Executive June 13, 2001
----------------------------------- Officer (Principal Executive Officer and
Paul G. Van Wagenen Director)
/s/ JAMES P. ULM, II Vice President and June 13, 2001
----------------------------------- Chief Financial Officer
James P. Ulm, II (Principal Financial Officer)
/s/ THOMAS E. HART
-----------------------------------
Thomas E. Hart Vice President and Controller June 13, 2001
(Principal Accounting Officer)
* Director June 13, 2001
-----------------------------------
Jerry M. Armstrong
* Director June 13, 2001
-----------------------------------
W. M. Brumley, Jr.
* Director June 13, 2001
-----------------------------------
Stephen A. Wells
* Director June 13, 2001
-----------------------------------
William L. Fisher
* Director June 13, 2001
-----------------------------------
Robert H. Campbell
* Director June 13, 2001
-----------------------------------
Gerrit W. Gong
* Director June 13, 2001
-----------------------------------
Frederick A. Klingenstein
*By: /s/ THOMAS E. HART
-------------------------------
Thomas E. Hart, Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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*1.1 Form of Underwriting Agreement (Debt Securities)
*1.2 Form of Underwriting Agreement (Preferred Stock)
*1.3 Form of Underwriting Agreement (Common Stock)
+4.1 Form of Indenture relating to the Senior Debt Securities
+4.2 Form of Indenture relating to the Subordinated Debt Securities
+4.3 Restated Certificate of Incorporation of the Company, as Amended
**4.4 Amended and Restated Bylaws of the Company (filed as Exhibit 3(b)
to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997 and incorporated herein by reference)
**4.5 Certificate of Designation, Preferences and Rights of Preferred
Stock of the Company, dated March 25, 1997 (filed as Exhibit
3(a)(1) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1987 and incorporated herein by reference)
**4.6 Rights Agreement dated as of April 26, 1994 between the Company
and Harris Trust Company of New York, as Rights Agent (filed as
Exhibit 4 to the Company's Current Report on Form 8-K filed April
26, 1994 and incorporated herein by reference)
**4.7 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Company dated April 26, 1994 (filed as
Exhibit 4(d) to the Company's Registration Statement on Form S-8
(File No. 33-54969) filed August 9, 1994 and incorporated herein
by reference)
5.1 Opinion of Gerald A. Morton
+12.1 Statement re computation of ratios of earnings to fixed charges
+23.1 Consent of Arthur Andersen LLP
+23.2 Consent of Ryder Scott Company, L.P.
+23.3 Consent of Miller and Lents, Ltd.
+23.4 Consent of Gerald A. Morton (included in Exhibit 5.1)
+24.1 Powers of Attorney for the Company
+25 Statement of Eligibility of Trustee on Form T-1
* To be filed by amendment or by a report on Form 8-K pursuant to Regulation
S-K, Item 601(b).
** Incorporated herein by reference as indicated.
+ Previously filed with this Registration Statement.