<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 1996
REGISTRATION STATEMENT NO. 333-03281
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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MESA OPERATING CO., ISSUER
MESA INC., GUARANTOR
(Exact name of registrants as specified in charters)
<TABLE>
<S> <C>
DELAWARE 75-2516853
TEXAS 75-2394500
(States or other jurisdictions of (I.R.S. Employer
incorporation or organization) Identification Nos.)
STEPHEN K. GARDNER
1400 WILLIAMS SQUARE WEST 1400 WILLIAMS SQUARE WEST
5205 NORTH O'CONNOR BOULEVARD 5205 NORTH O'CONNOR BOULEVARD
IRVING, TEXAS 75039 IRVING, TEXAS 75039
(214) 444-9001 (214) 444-9001
(Address, including zip code, and telephone (Name, address, including zip code,
number, including area code, of registrants' and telephone number, including
principal executive offices) area code, of agent for service)
</TABLE>
---------------------
Copies to:
<TABLE>
<S> <C>
STEPHEN A. MASSAD GARY L. SELLERS
BAKER & BOTTS, L.L.P. SIMPSON THACHER & BARTLETT
ONE SHELL PLAZA, 910 LOUISIANA 425 LEXINGTON AVENUE
HOUSTON, TEXAS 77002 NEW YORK, NEW YORK 10017
(713) 229-1475 (212) 455-2000
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable 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 TO BE 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, CHECK THE FOLLOWING BOX. / /
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, 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. / /
The Prospectus constituting part of this Registration Statement is a
combined prospectus as permitted by Rule 429(a) under the Securities Act of
1933, as amended, and also relates to a Registration Statement on Form S-3
(Registration Statement No. 033-52627) filed by MESA Inc. and Mesa Operating Co.
and declared effective on November 2, 1994.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses of the issuance and distribution of
the securities being registered, all of which will be borne by Mesa.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................................ $ 68,966
NASD fee........................................................................... 20,500
Printing and engraving expenses.................................................... 200,000
Accounting fees and expenses....................................................... 100,000
Blue Sky fees and expenses......................................................... 10,000
Legal fees and expenses............................................................ 250,000
Trustee fees and expenses.......................................................... 15,000
Rating agency fees................................................................. 50,000
Miscellaneous...................................................................... 135,534
--------
Total..................................................................... $850,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Mesa Operating Co.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits a
corporation to indemnify any director or officer of the corporation against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit
or proceeding brought by reason of the fact that such person 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, partnership, joint venture, trust or other enterprise, if
such person acted in good faith and in a manner that 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, if he had no reasonable cause to believe
his conduct was unlawful. In a derivative action (i.e., one brought by or in the
right of the corporation), indemnification may be made only for expenses
actually and reasonably incurred by any officer or director in connection with
the defense or settlement of such an action or suit if such person acted in good
faith and in a manner that he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of 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 in which such action or suit was brought shall determine that, such person
is fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Delaware law also permits a corporation to purchase and maintain insurance
on behalf of any person who is or was a director or officer against any
liability asserted against him and incurred by him in such capacity or arising
out of his status as such, whether or not the corporation has the power to
indemnify him against that liability under Section 145 of the DGCL.
The Company's Bylaws provide that the Company may indemnify each person who
is involved in any litigation or other proceeding because such person is or was
a director or officer of the Company or its subsidiaries or is or was serving as
an officer or director of another entity at the request of the Company, against
all expenses reasonably incurred in connection therewith. Such indemnification
will be made upon a determination by the Board of Directors of the Company,
independent legal counsel or the stockholders of the Company that such
indemnification is proper in the circumstances because such person has met the
applicable standard of conduct. The Bylaws also provide that the Company will
indemnify a director or officer against such expenses to the extent that he has
been successful on the merits or otherwise in defense of any such litigation or
other proceeding. The Bylaws also provide that the right to indemnification
includes the right to be paid expenses incurred in defending any proceeding in
advance of its final disposition; provided, however, that such advance payment
will only be made upon the delivery to the Company of an undertaking, by or on
behalf of the
II-1
<PAGE> 3
director or officer, to repay all amounts so advanced if it is ultimately
determined that such director or officer is not entitled to indemnification.
The Company's Certificate of Incorporation provides that the personal
liability of a director of the Company will be limited to the fullest extent
permitted by the DGCL. Pursuant to Section 102(b)(7) of the DGCL, Article Sixth
of the Company's Certificate of Incorporation eliminates the personal liability
of a director to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liabilities arising (i) from any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) from acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
(iv) from any transaction from which the director derived an improper personal
benefit.
The above discussion of the Company's Bylaws and Certificate of
Incorporation is not intended to be exhaustive and is respectively qualified in
its entirety by such documents.
MESA Inc.
Article 2.02-1 of the Texas Business Corporation Act provides that a
corporation may indemnify any director or officer who was, is or is threatened
to be made a named defendant or respondent in a proceeding because he is or was
a director or officer, provided that the director or officer (i) conducted
himself in good faith, (ii) reasonably believed (a) in the case of conduct in
his official capacity, that his conduct was in the corporation's best interests,
(b) in all other cases, that his conduct was at least not opposed to the
corporation's best interests and (iii) in the case of any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. Subject to certain
exceptions, a director or officer may not be indemnified if the person is found
liable to the corporation or if the person is found liable on the basis that he
improperly received a personal benefit. Under Texas law, reasonable expenses
incurred by a director or officer may be paid or reimbursed by the corporation
in advance of a final disposition of the proceeding after the corporation
receives a written affirmation by the director of his good faith belief that he
has met the standard of conduct necessary for indemnification and a written
undertaking by or on behalf of the director to repay the amount if it is
ultimately determined that the director or officer is not entitled to
indemnification by the corporation. Texas law requires a corporation to
indemnify an officer or director against reasonable expenses incurred in
connection with the proceeding in which he is named defendant or respondent
because he is or was a director or officer if he is wholly successful in defense
of the proceeding.
Texas law also permits a corporation to purchase and maintain insurance or
another arrangement on behalf of any person who is or was a director or officer
against any liability asserted against him and incurred by him in such a
capacity or arising out of his status as such a person, whether or not the
corporation would have the power to indemnify him against that liability under
Article 2.02-1.
The Parent's Bylaws provide for the indemnification of its officers and
directors, and the advancement to them of expenses in connection with
proceedings and claims, to the fullest extent permitted by the Texas Business
Corporation Act. The Parent has also entered into indemnification agreements
with its executive officers and directors that contractually provide for
indemnification and expense advancement. Both the Bylaws and the agreements
include related provisions meant to facilitate the indemnitees' receipt of such
benefits. These provisions cover, among other things: (i) specification of the
method of determining entitlement to indemnification and the selection of
independent counsel that will in some cases make such determination, (ii)
specification of certain time periods by which certain payments or
determinations must be made and actions must be taken and (iii) the
establishment of certain presumptions in favor of an indemnitee. The benefits of
certain of these provisions are available to an indemnitee only if there has
been a change in control (as defined). In addition, the Parent carries customary
directors' and officers' liability insurance policies for its directors and
officers. Furthermore, the Bylaws and agreements with directors and officers
provide for indemnification for amounts (i) in respect of the deductibles for
such insurance policies, (ii) that exceed the liability limits of such insurance
policies and (iii) that would have been covered by prior insurance policies of
the Parent or its predecessors. Such indemnification may be made even though
directors and officers would not otherwise be entitled to indemnification under
other provisions of the Bylaws or such agreements.
The above discussion of the Parent's Bylaws and of Article 2.01-1 of the
Texas Business Corporation Act is not intended to be exhaustive and is
respectively qualified in its entirety by such statute and the Bylaws.
II-2
<PAGE> 4
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
<TABLE>
<S> <C>
*1.1 Form of Underwriting Agreement.
*4.1 Form of Senior Subordinated Note Indenture among Mesa Operating Co., MESA Inc. and Harris
Trust and Savings Bank, as trustee.
*4.2 Form of Senior Subordinated Discount Note Indenture among Mesa Operating Co., MESA Inc. and
Harris Trust and Savings Bank, as trustee.
*5 Opinion of Baker & Botts, L.L.P.
*8 Tax Opinion of Baker & Botts, L.L.P.
*12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP, independent accountants.
*23.2 Consent of Baker & Botts, L.L.P. (included in Exhibit 5 and Exhibit 8 to this Registration
Statement).
23.3 Consents of Persons Named as About to Become Directors.
*24 Powers of Attorney of directors and officers of Mesa Operating Co. and MESA Inc. (included
on signature pages to this Registration Statement).
*25 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939.
</TABLE>
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* Previously filed.
ITEM 17. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Parent's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
Each of the undersigned registrants 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 a 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 the
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.
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 provisions described under Item 15 above, or
otherwise, each of the registrants 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, State of Texas, on the 24th day of June, 1996.
MESA OPERATING CO.
By: /s/ BOONE PICKENS*
------------------------------------
Boone Pickens,
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------- ------------------------------------- --------------
<C> <S> <C>
/s/ BOONE PICKENS* Director, President, Chief Executive June 24, 1996
- ------------------------------------------------- Officer and Chief Operating Officer
Boone Pickens (Principal Executive Officer)
/s/ STEPHEN K. GARDNER Vice President and Chief Financial June 24, 1996
- ------------------------------------------------- Officer (Principal Financial
Stephen K. Gardner Officer)
/s/ WILLIAM D. BALLEW* Controller (Principal Accounting June 24, 1996
- ------------------------------------------------- Officer)
William D. Ballew
*By: /s/ STEPHEN K. GARDNER
- -------------------------------------------------
Stephen K. Gardner
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, State of Texas, on the 24th day of June, 1996.
MESA Inc.
By: /s/ BOONE PICKENS*
---------------------------------
Boone Pickens,
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------- ------------------------------- --------------------
<C> <S> <C>
/s/ BOONE PICKENS* President, Chief Executive June 24, 1996
- ------------------------------------------------- Officer, Chief Operating
Boone Pickens Officer and Chairman of the
Board of Directors (Principal
Executive Officer)
/s/ STEPHEN K. GARDNER Vice President and Chief June 24, 1996
- ------------------------------------------------- Financial Officer (Principal
Stephen K. Gardner Financial Officer)
/s/ WILLIAM D. BALLEW* Controller (Principal June 24, 1996
- ------------------------------------------------- Accounting Officer)
William D. Ballew
/s/ PAUL W. CAIN* Director June 24, 1996
- -------------------------------------------------
Paul W. Cain
/s/ JOHN S. HERRINGTON* Director June 24, 1996
- -------------------------------------------------
John S. Herrington
/s/ WALES H. MADDEN, JR.* Director June 24, 1996
- -------------------------------------------------
Wales H. Madden, Jr.
Director
- -------------------------------------------------
Dorn Parkinson
Director
- -------------------------------------------------
Joel L. Reed
/s/ FAYEZ S. SAROFIM* Director June 24, 1996
- -------------------------------------------------
Fayez S. Sarofim
/s/ ROBERT L. STILLWELL* Director June 24, 1996
- -------------------------------------------------
Robert L. Stillwell
*By: /s/ STEPHEN K. GARDNER
- -------------------------------------------------
Stephen K. Gardner
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------
<S> <C>
*1.1 Form of Underwriting Agreement.
*4.1 Form of Senior Subordinated Note Indenture among Mesa Operating Co., MESA Inc. and Harris
Trust and Savings Bank, as trustee.
*4.2 Form of Senior Subordinated Discount Note Indenture among Mesa Operating Co., MESA Inc. and
Harris Trust and Savings Bank, as trustee.
*5 Opinion of Baker & Botts, L.L.P.
*8 Tax Opinion of Baker & Botts, L.L.P.
*12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP, independent accountants.
*23.2 Consent of Baker & Botts, L.L.P. (included in Exhibit 5 and Exhibit 8 to this Registration
Statement).
23.3 Consents of Persons Named as About to Become Directors.
*24 Powers of Attorney of directors and officers of Mesa Operating Co. and MESA Inc.
*25 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939.
</TABLE>
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* Previously filed.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated March 6, 1996 (except with respect to the matter discussed in Note
13, as to which the date is May 7, 1996) (and all references to our firm)
included in or made a part of this Registration Statement and to the
incorporation by reference in this Registration Statement of our report dated
March 6, 1996, included in Mesa Inc.'s Annual Report on Form 10-K/A for the
year ended December 31, 1995. It should be noted that we performed no audit
procedures subsequent to March 6, 1996, except with respect to the matter
discussed in Note 13, as to which the date is May 7, 1996. Furthermore, we have
not audited any financial statements of Mesa Inc. as of any date or for any
period subsequent to December 31, 1995.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Houston, Texas
June 20, 1996
<PAGE> 1
CONSENT TO BE NAMED IN REGISTRATION STATEMENTS
I hereby consent to be named in (i) the Registration Statement on Form
S-3 of Mesa Operating Co. ("MOC") relating to the offering of _____% Senior
Subordinated Notes due 2006 and _____% Senior Subordinated Discount Notes due
2006 of MOC, as issuer, and MESA Inc. ("MESA"), as guarantor (No. 333-03281),
and (ii) the Registration Statement on Form S-3 of MESA relating to the
offering of shares of Series A 8% Cumulative Convertible Preferred Stock (No.
333- 03365), as a person to become a director of MESA, and to the filing of
this Consent as an exhibit to such Registration Statements.
/s/ RICHARD E. RAINWATER
------------------------
Date: June 24, 1996 Richard E. Rainwater
<PAGE> 2
CONSENT TO BE NAMED IN REGISTRATION STATEMENTS
I hereby consent to be named in (i) the Registration Statement on Form
S-3 of Mesa Operating Co. ("MOC") relating to the offering of _____% Senior
Subordinated Notes due 2006 and _____% Senior Subordinated Discount Notes due
2006 of MOC, as issuer, and MESA Inc. ("MESA"), as guarantor (No. 333-03281),
and (ii) the Registration Statement on Form S-3 of MESA relating to the
offering of shares of Series A 8% Cumulative Convertible Preferred Stock (No.
333- 03365), as a person to become a director of MESA, and to the filing of
this Consent as an exhibit to such Registration Statements.
/s/ DARLA D. MOORE
------------------------
Date: June 24, 1996 Darla D. Moore
<PAGE> 3
CONSENT TO BE NAMED IN REGISTRATION STATEMENTS
I hereby consent to be named in (i) the Registration Statement on Form
S-3 of Mesa Operating Co. ("MOC") relating to the offering of _____% Senior
Subordinated Notes due 2006 and _____% Senior Subordinated Discount Notes due
2006 of MOC, as issuer, and MESA Inc. ("MESA"), as guarantor (No. 333-03281),
and (ii) the Registration Statement on Form S-3 of MESA relating to the
offering of shares of Series A 8% Cumulative Convertible Preferred Stock (No.
333- 03365), as a person to become a director of MESA, and to the filing of
this Consent as an exhibit to such Registration Statements.
/s/ PHILIP B. SMITH
------------------------
Date: June 24, 1996 Philip B. Smith
<PAGE> 4
CONSENT TO BE NAMED IN REGISTRATION STATEMENTS
I hereby consent to be named in (i) the Registration Statement on Form
S-3 of Mesa Operating Co. ("MOC") relating to the offering of _____% Senior
Subordinated Notes due 2006 and _____% Senior Subordinated Discount Notes due
2006 of MOC, as issuer, and MESA Inc. ("MESA"), as guarantor (No. 333-03281),
and (ii) the Registration Statement on Form S-3 of MESA relating to the
offering of shares of Series A 8% Cumulative Convertible Preferred Stock (No.
333- 03365), as a person to become a director of MESA, and to the filing of
this Consent as an exhibit to such Registration Statements.
/s/ KENNETH A. HERSH
------------------------
Date: June 24, 1996 Kenneth A. Hersh
