Attached files
file | filename |
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EX-5.1 - EX-5.1 - ENERGY CORP OF AMERICA | l39163fexv5w1.htm |
EX-1.1 - EX-1.1 - ENERGY CORP OF AMERICA | l39163fexv1w1.htm |
EX-8.1 - EX-8.1 - ENERGY CORP OF AMERICA | l39163fexv8w1.htm |
As filed with the Securities and Exchange Commission on June
25, 2010
Registration No. 333-165833
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 4
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ECA Marcellus Trust I (Exact name of co-registrant as specified in its charter) |
Energy Corporation of America (Exact name of co-registrant as specified in its charter) |
|
Delaware (State or other jurisdiction of incorporation or organization) |
West Virginia (State or other jurisdiction of incorporation or organization) |
|
1311 (Primary Standard Industrial Classification Code Number) |
1311 (Primary Standard Industrial Classification Code Number) |
|
27-6522024 (I.R.S. Employer Identification No.) |
84-1235822 (I.R.S. Employer Identification No.) |
|
919 Congress Avenue Suite 500 Austin, Texas 78701 (512) 236-6599 |
4643 South Ulster Street Suite 1100 Denver, Colorado 80237 (303) 694-2667 |
|
(Address, including zip code,
and telephone number, including area code, of agent of service) |
(Address, including zip code,
and telephone number, including area code, of agent of service) |
|
The Bank of New York Mellon Trust Company, N.A. 919 Congress Avenue Suite 500 Austin, Texas 78701 (512) 236-6599 Attention: Michael J. Ulrich |
Donald C. Supcoe 4643 South Ulster Street Suite 1100 Denver, Colorado 80237 (303) 694-2667 |
|
(Name, address, including zip
code, and telephone number, including area code, of agent for service) |
(Name, address, including zip
code, and telephone number, including area code, of agent for service) |
Approximate date of commencement of proposed sale to the
public:
As soon as practicable after this Registration Statement becomes
effective.
Copies to:
David P. Oelman Vinson & Elkins L.L.P. First City Tower 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 (713) 758-2222 |
Thomas R. Goodwin Tammy J. Owen Goodwin & Goodwin, LLP 300 Summers Street Suite 1500 Charleston, West Virginia 25301 (304) 346-7000 |
Joshua Davidson Baker Botts L.L.P. One Shell Plaza 910 Louisiana St. Houston, Texas 77002 (713) 229-1234 |
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, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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. o
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. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) 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. o
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 o | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
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, or until this Registration Statement
shall become effective on such date as the Securities and
Exchange Commission (or the SEC), acting pursuant to
said Section 8(a), may determine.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 13. | Other Expenses Of Issuance And Distribution. |
Set forth below are the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities registered
hereby. With the exception of the Securities and Exchange
Commission registration fee, the FINRA filing and the NYSE
listing fee, the amounts set forth below are estimates.
Registration fee
|
$ | 15,498 | ||
FINRA filing fee
|
$ | 22,235 | ||
NYSE listing fee
|
$ | 250,000 | ||
Printing and engraving expenses
|
$ | 500,000 | ||
Fees and expenses of legal counsel
|
$ | 1,800,000 | ||
Accounting fees and expenses
|
$ | 500,000 | ||
Transfer agent and registrar fees
|
$ | 25,000 | ||
Miscellaneous
|
$ | 87,267 | ||
Total
|
$ | 3,200,000 | ||
* | To be provided by amendment |
Item 14. | Indemnification Of Directors And Officers. |
The trust agreement provides that the trustee and its officers,
agents and employees shall be indemnified from the assets of the
trust against and from any and all liabilities, expenses,
claims, damages or loss incurred by it individually or as
trustee in the administration of the trust and the trust assets,
including, without limitation, any liability, expenses, claims,
damages or loss arising out of or in connection with any
liability under environmental laws, or in the doing of any act
done or performed or omission occurring on account of it being
trustee or acting in such capacity, except such liability,
expense, claims, damages or loss as to which it is liable under
the trust agreement. In this regard, the trustee shall be liable
only for fraud or gross negligence or for acts or omissions in
bad faith and shall not be liable for any act or omission of any
agent or employee unless the trustee has acted in bad faith or
with gross negligence in the selection and retention of such
agent or employee. The trustee is entitled to indemnification
from the assets of the trust and shall have a lien on the assets
of the trust to secure it for the foregoing indemnification.
The West Virginia Business Corporation Act also allows a
corporation to indemnify any person who was or is threatened to
be made party to any action or suit brought by or in the right
of the corporation against all expenses, fines, judgments and
payments made in settlement, including legal fees. The person
must have acted in good faith with no reason to believe the
actions taken were in opposition to the corporation.
Indemnification is not permitted in situations where the party
seeking the indemnity was adjudged liable for negligence or
misconduct regarding tax matters.
The West Virginia Business Corporation Act also provides that
corporations may purchase and maintain insurance to cover
possible indemnities, regardless of whether the corporation is
otherwise allowed to indemnify the party under its provisions.
Article XI of Energy Corporation of Americas
Certificate of Incorporation provides that no director of Energy
Corporation of America shall be liable to Energy Corporation of
America or its
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stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of
the directors duty of loyalty to Energy Corporation of
America 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 Section 9 of the
Corporation Act or (iv) for any transaction from which the
director derived an improper personal benefit.
Item 15. | Recent Sales Of Unregistered Securities. |
None.
Item 16. | Exhibits. |
The following documents are filed as exhibits to this
registration statement:
Exhibit |
||||||
Number |
Description
|
|||||
1 | .1*** | | Form of Underwriting Agreement | |||
3 | .1* | | Certificate of Trust of ECA Marcellus Royalty Trust I | |||
3 | .2* | | Articles of Incorporation of Energy Corporation of America. | |||
3 | .3* | | Amended Articles of Incorporation of Energy Corporation of America dated July 31, 1998. | |||
3 | .4* | | Amended Articles of Incorporation of Energy Corporation of America dated December 10, 1998. | |||
3 | .5* | | Amended Bylaws of Energy Corporation of America. | |||
4 | .1* | | Trust Agreement dated March 19, 2010. | |||
4 | .2* | | First Amendment to the Trust Agreement dated May 7, 2010. | |||
4 | .3* | | Form of Amended and Restated Trust Agreement among Energy Corporation of America and . | |||
5 | .1*** | | Opinion of Richards, Layton & Finger, P.A. relating to the validity of the trust units | |||
8 | .1*** | | Opinion of Vinson & Elkins L.L.P. relating to tax matters | |||
10 | .1* | | Second Amended and Restated Credit Agreement dated September 7, 2007 by and among Energy Corporation of America, the Lenders signatory thereto and Wells Fargo Foothill, Inc. (now Wells Fargo Capital Finance, Inc.), as the Arranger and Administrative Agent. | |||
10 | .2* | | First Amendment to Second Amended and Restated Credit Agreement dated August 4, 2008, 2009 by and among Energy Corporation of America, the Lenders signatory thereto and Wells Fargo Foothill, Inc. (now Wells Fargo Capital Finance, Inc.), as the Arranger and Administrative Agent. | |||
10 | .3* | | Second Amendment to Second Amended and Restated Credit Agreement dated June 17, 2010 by and among Energy Corporation of America, the Lenders signatory thereto and Wells Fargo Foothill, Inc. (now Wells Fargo Capital Finance, Inc.), as the Arranger and Administrative Agent. | |||
10 | .4* | | Form of Term Overriding Royalty Interest Conveyance (PDP) | |||
10 | .5* | | Form of Term Overriding Royalty Conveyance (PUD) | |||
10 | .6* | | Form of Perpetual Overriding Royalty Interest Conveyance (PDP) | |||
10 | .7* | | Form of Perpetual Overriding Royalty Conveyance (PUP) | |||
10 | .8* | | Form of Private Investor Assignment and Conveyance | |||
10 | .9* | | Form of Private Investor Conveyance | |||
10 | .10* | | Form of Administrative Services Agreement |
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Exhibit |
||||||
Number |
Description
|
|||||
10 | .11* | | Form of Development Agreement | |||
10 | .12* | | Form of Swap Agreement | |||
10 | .13* | | Form of Drilling Support Lien | |||
10 | .14* | | Form of Royalty Interest Lien | |||
10 | .15* | | Form of Registration Rights Agreement | |||
21 | .1* | | Subsidiaries of Energy Corporation of America | |||
23 | .1* | | Consent of Ernst & Young LLP | |||
23 | .2*** | | Consent of Richards, Layton & Finger, P.A. (contained in Exhibit 5.1) | |||
23 | .3*** | | Consent of Vinson & Elkins, L.L.P. (contained in Exhibit 8.1) | |||
23 | .4* | | Consent of Ryder Scott | |||
24 | .1* | | Power of Attorney set forth on the signature page contained in Part II |
* | Previously filed | |
** | To be filed by amendment | |
*** | Filed herewith |
Item 17. | Undertakings. |
The undersigned registrants hereby undertake that:
(1) For the purpose of determining liability under the
Securities Act to any purchaser, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(2) For the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
i. | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; | |
ii. | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
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iii. | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and | |
iv. | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(3) 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 registrants 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.
(4) 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.
The undersigned registrants hereby undertake that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrants 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 plans 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.
The undersigned registrants hereby undertake to provide to the
underwriter at the closing specified in the underwriting
agreements certificates in such denominations and registered in
such names as required by the underwriter to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers, and controlling persons of the registrants 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 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
registrants of expenses incurred or paid by a director, officer
or controlling person of a 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 registrants will, unless in the
opinion of their respective counsel the matter has been settled
by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them
is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned thereunto duly
authorized, in the City of Austin, State of Texas, on
June 25, 2010.
ECA Marcellus Trust I
By: |
The Bank of New York Mellon Trust Company, N.A. |
|
By: |
/s/ Mike
J. Ulrich
|
Name: Mike J. Ulrich
Title: Trustee |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned thereunto duly
authorized, in the City of Denver, State of Colorado, on
June 25, 2010.
Energy Corporation of America
By: |
/s/ John
Mork
|
Name: John Mork
Title: | President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities as of the date indicated above.
Signature | Title | |||
/s/ John
Mork John Mork |
President and Chief Executive Officer (Principal executive officer) |
|||
/s/ Donald
C. Supcoe Donald C. Supcoe |
Senior Vice President; Secretary and General Counsel |
|||
/s/ Michael
S. Fletcher Michael S. Fletcher |
Chief Financial Officer (Principal accounting and financial officer) |
|||
* W. Gaston Caperton, III |
Director | |||
* Peter H. Coors |
Director | |||
* L.B. Curtis |
Director | |||
* John J. Dorgan |
Director | |||
* John Fischer |
Director | |||
* Thomas R. Goodwin |
Director | |||
* F.H. McCullough, III |
Director |
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Signature | Title | |||
* Julie Mork |
Director | |||
* Jerry Neely |
Director | |||
* Arthur C. Nielsen, Jr. |
Director | |||
* Jay S. Pifer |
Director | |||
*By: |
/s/ Donald
C. Supcoe Donald C. Supcoe Attorney-in-fact |
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