As filed
with the Securities and Exchange Commission on June 29, 2009
Registration
No. ___________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CHINA
NORTH EAST PETROLEUM HOLDINGS LIMITED
(Exact
name of registrant as specified in its charter)
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Nevada
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1311
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87-0638750
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(State
or other jurisdiction of
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(Primary
Standard Industrial
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(I.R.S.
Employer
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incorporation
or organization)
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Classification
Code Number)
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Identification
Number)
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445 Park
Avenue
New York,
NY 10022
(212)
307-3568
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Wang Hong
Jun
445 Park
Avenue
New York,
NY 10022
(212)
307-3568
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Mark E.
Crone, Esq.
The Crone
Law Group
101
Montgomery Street, Suite 1950
San
Francisco, CA 94104
Tel No.:
(415) 955-8900
Fax No.:
(415) 955-8910
Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement as determined by the
Registrant.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment
plans, 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 lit 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
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, please check
the following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, please
check the following box. 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):
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Large
accelerated filer o
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Accelerated
filer o
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Non-accelerated
filer o
(Do
not check if a smaller reporting company)
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
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Title
of each Class of
Security
being Registered
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Amount
being
Registered
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Proposed
Maximum
Offering
Price Per
Security
(1)
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Proposed
Maximum
Aggregate
Offering
Price
(2)
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Amount
of
Registration
Fee
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Common
Stock, $0.001 par value per share(2)
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(3)(4)
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(3)
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(3)
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(3)
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Common
Stock Purchase Rights(2)
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(3)(4)
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(3)
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(3)
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(3)
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Warrants
(2)
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(3)(4)
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(3)
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(3)
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(3)
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Debt
Securities
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(3)(4)
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(3)
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(3)
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(3)
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Units
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(3)(4)
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(3)
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(3)
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(3)
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Total
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$40,000,000
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100%
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$40,000,000
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$2,232
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(1) This
registration statement includes $40,000,000 of securities which may be issued by
the registrant from time to time in indeterminate amounts and at indeterminate
times. Securities registered hereunder may be sold separately, together or as
units with other securities registered hereunder.
(2)
Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended (the
“Securities Act”).
(3) Not
required to be included in accordance with General Instruction II.D. of Form S-3
under the Securities Act.
(4)
Subject to footnote (1), there is also being registered hereunder such
indeterminate amount of securities (including shares or other classes of the
registrant’s stock that may be issued upon reclassification of unissued,
authorized stock of the registrant) as may be issued in exchange for or upon
conversion of, as the case may be, the other securities registered hereunder. No
separate consideration will be received for any securities registered hereunder
that are issued in exchange for, or upon conversion of, as the case may be, such
other securities.
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment that 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 Commission, acting pursuant to said Section 8(a), may
determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
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Prospectus
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Subject
to Completion, Dated June 29, 2009
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CHINA
NORTH EAST PETROLEUM HOLDINGS LIMITED
$40,000,000
Common
Stock
Common
Stock Purchase Rights
Warrants
Debt
Securities
Units
We may
offer and sell, from time to time in one or more offerings, any combination of
common stock, common stock purchase rights, warrants, debt securities, or units
having an aggregate initial offering price not exceeding $40,000,000. When we
decide to sell a particular class or series of securities, we will provide
specific terms of the offered securities in a prospectus
supplement.
We will
provide specific terms of the offerings of our securities in supplements to this
prospectus. The prospectus supplement may also add, update or change information
contained in or incorporated by reference into this prospectus. You should read
this prospectus and any prospectus supplement, as well as the documents
incorporated by reference or deemed to be incorporated by reference into this
prospectus, carefully before you invest.
This
prospectus may not be used to offer or sell our securities unless accompanied by
a prospectus supplement relating to the offered securities.
Our
common stock is traded on the NYSE AMEX LLC under the symbol “NEP.” Each
prospectus supplement will contain information, where applicable, as to any
listing on the NYSE AMEX LLC or any other securities exchange of the securities
covered by the prospectus supplement.
These
securities may be sold directly by us, through dealers or agents designated from
time to time, to or through underwriters or through a combination of these
methods. See “Plan of Distribution” in this prospectus. We may also describe the
plan of distribution for any particular offering of our securities in a
prospectus supplement. If any agents, underwriters or dealers are
involved in the sale of any securities in respect of which this prospectus
is being delivered, we will disclose their names and the nature of our
arrangements with them in a prospectus supplement. The net proceeds we expect to
receive from any such sale will also be included in a prospectus
supplement.
Investing
in our securities involves various risks. See “Risk Factors” on page 2 for more
information on these risks. Additional risks will be described in the related
prospectus supplement related to a potential offer under the heading “Risk
Factors”. You should review that section of the related prospectus supplement
for a discussion of matters that investors in such securities should
consider.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities, or passed upon the adequacy or
accuracy of this prospectus or any accompanying prospectus supplement. Any
representation to the contrary is a criminal offense.
The date
of this Prospectus is __________, 2009
TABLE
OF CONTENTS
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You
should rely only on the information contained in or incorporated by reference
into this prospectus and the related prospectus supplement. We have not
authorized anyone to give you information different from that contained in this
prospectus, the related prospectus supplement or such incorporated documents. We
are not making an offer to sell these securities in any jurisdiction where the
offer is not permitted. The information contained in this prospectus is accurate
only as of the date on the front cover of this prospectus, regardless of when
this prospectus is delivered or when any sale of our securities occurs. Our
business, financial condition, results of operations and prospects may have
changed since that date.
ABOUT THIS
PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf” registration process. Under
this shelf registration process, we may offer from time to time securities
having an aggregate initial offering price of $40,000,000. Each time we offer
securities, we will prepare and file with the SEC a prospectus supplement that
describes the specific amounts, prices and terms of the securities we offer. The
prospectus supplement also may add, update or change information contained in
this prospectus or the documents incorporated herein by reference. You should
read carefully both this prospectus and any prospectus supplement together with
additional information described below under the caption “Where You Can Find
More Information.”
This
prospectus does not contain all the information provided in the registration
statement we filed with the SEC. For further information about us or our
securities offered hereby, you should refer to that registration statement,
which you can obtain from the SEC as described below under “Where You Can Find
More Information.”
You
should rely only on the information contained or incorporated by reference in
this prospectus or a prospectus supplement. We have not authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. This
prospectus is not an offer to sell securities, and it is not soliciting an offer
to buy securities, in any jurisdiction where the offer or sale is not permitted.
You should assume that the information appearing in this prospectus or any
prospectus supplement, as well as information we have previously filed with the
SEC and incorporated by reference, is accurate as of the date of those documents
only. Our business, financial condition, results of operations and prospects may
have changed since those dates.
We may
sell securities through underwriters or dealers, through agents, directly to
purchasers or through a combination of these methods. We and our agents reserve
the sole right to accept or reject in whole or in part any proposed purchase of
securities. The prospectus supplement, which we will prepare and file with the
SEC each time we offer securities, will set forth the names of any underwriters,
agents or others involved in the sale of securities, and any applicable fee,
commission or discount arrangements with them. See “Plan of
Distribution.”
PROSPECTUS
SUMMARY
As used
in this prospectus, “we”, “us”, “our”, “NEP” or “our company” refers to China
North East Petroleum Holdings Limited. and all of its subsidiaries and
affiliated companies. References to the “Commission” refers to the U.S.
Securities and Exchange Commission.
ABOUT OUR
COMPANY
We are
engaged in the exploration and production of crude oil in Northern China. We
have an arrangement with the Jilin Refinery of PetroChina Group to sell our
crude oil production for use in the China marketplace. We currently
operate 247 producing wells located in four oilfields in Northern China and
have plans for additional drilling projects.
In
particular, through two of our subsidiaries, Song Yuan City Yu Qiao Oil and Gas
Development Co. Ltd. (“Yu Qiao”) and Chang Ling Longde Oil and Gas Development
Co. Ltd. (“LongDe”), we have entered into binding sales agreements with the
PetroChina Group, whereby we sell our crude oil production for use in the China
marketplace.
We
currently operate 4 oilfields located in Northern China, which
include:
Details
of Oil and Gas Properties and Activities
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Field
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Acreage
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Producing
wells #
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Proven
Reserves (bbls)
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Qian112
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5,115
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219
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5,292,591
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Da34
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2,298
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7
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13,240
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Gu31
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1,779
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7
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95,729
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He301
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2,471
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14
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52,232
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Total
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11,663
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247
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5,453.792
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As of
June 1, 2009, we had approximately 257 employees.
1
Our
common stock is listed on NYSE AMEX LLC under the symbol “NEP.”
Our
principal executive office is located at 445 Park Avenue, New York, NY 10022,
and our telephone number there is: (212) 307-3568.
RISK
FACTORS
Investing
in our securities involves risk. The prospectus supplement applicable to a
particular offering of securities will contain a discussion of the risks
applicable to an investment in the Company and to the particular types of
securities that we are offering under that prospectus supplement. Before making
an investment decision, you should carefully consider the risks described under
“Risk Factors” in the applicable prospectus supplement and in our most recent
Annual Report on Form 10-K, or any updates in our Quarterly Reports on Form
10-Q, together with all of the other information appearing in or incorporated by
reference into this prospectus and any applicable prospectus supplement, in
light of your particular investment objectives and financial circumstances. Our
business, financial condition or results of operations could be materially
adversely affected by any of these risks. The trading price of our securities
could decline due to any of these risks, and you may lose all or part of your
investment.
FORWARD-LOOKING
STATEMENTS
This
prospectus or any accompanying prospectus supplement, including the documents
that we incorporate by reference, may contain forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). Forward-looking statements include those that
express plans, anticipation, intent, contingency, goals, targets or future
development and/or otherwise are not statements of historical fact. Any
forward-looking statements are based on our current expectations and projections
about future events and are subject to risks and uncertainties known and unknown
that could cause actual results and developments to differ materially from those
expressed or implied in such statements.
In some
cases, you can identify forward-looking statements by terminology, such as
“expects,” “anticipates,” “intends,” “estimates,” “plans,” “believes,” “seeks,”
“may,” “should”, “could” or the negative of such terms or other similar
expressions. Accordingly, these statements involve estimates, assumptions and
uncertainties that could cause actual results to differ materially from those
expressed in them. Any forward-looking statements are qualified in their
entirety by reference to the risk factors described herein and those included in
any accompanying prospectus supplement or in any document incorporated by
reference into this prospectus.
You
should read this prospectus and any accompanying prospectus supplement and the
documents that we reference herein and therein and have filed as exhibits to the
registration statement, of which this prospectus is part, completely and with
the understanding that our actual future results may be materially different
from what we concurrently expect. You should assume that the information
appearing in this prospectus, any accompanying prospectus supplement and any
document incorporated herein by reference is accurate as of its date only.
Because the risk factors referred to above, as well as the risk factors referred
to on page 2 of this prospectus and incorporated herein by reference, could
cause actual results or outcomes to differ materially from those expressed in
any forward-looking statements made by us or on our behalf, you should not place
undue reliance on any forward-looking statements. Further, any
forward-looking statement speaks only as of the date on which it is made, and we
undertake no obligation to update any forward-looking statement to reflect
events or circumstances after the date on which the statement is made or to
reflect the occurrence of unanticipated events. New factors emerge from time to
time, and it is not possible for us to predict which factors will arise. In
addition, we cannot assess the impact of each factor on our business or the
extent to which any factor, or combination of factors, may cause actual results
to differ materially from those contained in any forward-looking statements. We
qualify all of the information presented in this prospectus, any accompanying
prospectus supplement and any document incorporated herein by reference, and
particularly our forward-looking statements, by these cautionary
statements.
USE OF
PROCEEDS
Except as
otherwise provided in the applicable prospectus supplement, we intend to use the
net proceeds from the sale of the securities covered by this prospectus for
general corporate purposes, which may include working capital, capital
expenditures, acquisitions of new technologies or businesses, and investments.
Additional information on the use of net proceeds from an offering of securities
covered by this prospectus may be set forth in the prospectus supplement
relating to the specific offering.
2
THE SECURITIES WE MAY
OFFER
The
descriptions of the securities contained in this prospectus, together with any
applicable prospectus supplement, summarize all the material terms and
provisions of the various types of securities that we may offer. We will
describe in the applicable prospectus supplement relating to a particular
offering the specific terms of the securities offered by that prospectus
supplement. If we indicate in the applicable prospectus supplement, the terms of
the securities may differ from the terms we have summarized below. We will also
include in the prospectus supplement information, where applicable, about
material United States federal income tax considerations relating to the
securities, and the securities exchange, if any, on which the securities will be
listed.
We may
sell from time to time, in one or more offerings:
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shares
of our common stock;
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common
stock purchase rights;
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warrants
to purchase common stock;
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debt
securities, in one or more series;
and/or
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units
consisting of one or more of the
foregoing.
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This
prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
DESCRIPTION OF CAPITAL
STOCK
General
The
following description of our common stock together with the additional
information we include in any applicable prospectus supplement, summarizes the
material terms and provisions of the common stock that we may offer under this
prospectus but is not complete. For the complete terms of our common stock,
please refer to our articles of incorporation, which may be amended from time to
time and our amended and restated bylaws, as amended from time to time. The
Nevada Revised Statutes may also affect the terms of these securities. While the
terms we have summarized below will apply generally to any future common stock
that we may offer, we will describe the specific terms of any series of these
securities in more detail in the applicable prospectus supplement. If we so
indicate in a prospectus supplement, the terms of any common stock we offer
under that prospectus supplement may differ from the terms we describe
below.
Our
authorized capital stock consists of one hundred fifty million (150,000,000)
shares of common stock, $0.001 par value. The authorized and unissued shares of
common stock are available for issuance without further action by our
shareholders, unless such action is required by applicable law or the rules of
any stock exchange on which our securities may be listed. Unless approval of our
shareholders is so required, our board of directors will not seek shareholder
approval for the issuance and sale of our common stock.
Common
Stock
As of
June 9, 2009, 20,904,080 shares of Common Stock are currently issued and
outstanding. The Company has authorized 2,500,000 shares of Common Stock for
issuance under the Company’s 2006 Stock Option/Stock Issuance Plan (the “Plan”).
As of June 9, 2009, 1,190,000 shares of Common Stock are reserved for issuance
upon exercise of options granted under the Plan or to be granted by the Company
pursuant to the Plan.
Voting, Dividend and Other
Rights. Each outstanding share of common stock entitles the holder to one
vote on all matters presented to the shareholders for a vote. Holders of shares
of common stock have no cumulative voting, preemptive, subscription or
conversion rights. All shares of common stock to be issued pursuant to this
registration statement will be duly authorized, fully paid and non-assessable.
Our Board of Directors determines if and when distributions may be paid out of
legally available funds to the holders. To date, we have not declared any
dividends with respect to our common stock. Our declaration of any cash
dividends in the future will depend on our Board of Directors’ determination as
to whether, in light of our earnings, financial position, cash requirements and
other relevant factors existing at the time, it appears advisable to do so. We
do not anticipate paying cash dividends on the common stock in the foreseeable
future.
3
Rights Upon Liquidation. Upon
liquidation, subject to the right of any holders of the preferred stock to
receive preferential distributions, each outstanding share of common stock may
participate pro rata in the assets remaining after payment of, or adequate
provision for, all our known debts and liabilities.
Majority Voting. The holders
of a majority of the outstanding shares of common stock constitute a quorum at
any meeting of the shareholders. A plurality of the votes cast at a meeting of
shareholders elects our directors. The common stock does not have cumulative
voting rights. Therefore, the holders of a majority of the outstanding shares of
common stock can elect all of our directors. In general, a majority of the votes
cast at a meeting of shareholders must authorize shareholder actions other than
the election of directors. Most amendments to our articles of incorporation
require the vote of the holders of a majority of all outstanding voting
shares.
Warrants
As of
June 9, 2009, the following warrants were outstanding:
Warrants
to purchase up to 3,960,000 shares of the Common Stock at a current exercise
price equal to $2.35 per share, on or prior to February 28, 2013. Pursuant to
the terms of such warrants issued on February 28, 2008, the exercise price is
subject to adjustment in the event of stock split, combination or the like of
the Company’s Common Stock and certain other adjustments.
Warrants
to purchase up to 100,000 shares of Common Stock at any time on or prior to
January 1, 2013 at an exercise price of $2.15 per share. Pursuant to the terms
of such warrants approved for issuance by the Company’s Board of Directors on
February 6, 2008, the exercise price is subject to adjustment in the event of
stock split, combination or the like of the Company’s Common Stock.
Warrants
to purchase up to 250,000 shares of the Common Stock at an initial exercise
price equal to $2.00 per share and warrants to purchase up to 250,000 shares of
Common Stock at an initial exercise price of $2.35 per share, on or prior to
March 5, 2013. Pursuant to the terms of such warrants issued on March 5, 2009,
the exercise price is subject to adjustment in the event of stock split,
combination or the like of the Common Stock and certain other
adjustments.
Warrants
to purchase up to 50,000 shares of Common Stock at any time on or prior to April
29, 2013 at an exercise price of $2.65. Pursuant to the terms of such warrants
issued on April 29, 2009, the exercise price is subject to adjustment in the
event of stock split, combination or the like of the Common Stock and certain
other adjustments.
Nevada
Anti-Takeover Law and Certain Charter and Bylaw Provisions
We are
subject to the provisions of the Nevada private corporation law, which are
anti-takeover provisions. In general, the provisions of Sections 78.411-444
prohibit a publicly held Nevada corporation from engaging in a “business
combination” with an “interested stockholder” for a period of three years
following the date the person became an interested stockholder, unless (with
certain exceptions) the "business combination" or the transaction in which the
person became an interested stockholder is approved in a prescribed manner.
Generally, a "business combination" includes a merger, asset or stock sale, or
other transaction resulting in a financial benefit to the interested
stockholder. Generally, an "interested stockholder" is a person who, together
with affiliates and associates, owns or within three years prior to the
determination of interested stockholder status, did own, 10% or more of a
corporation's voting stock. The existence of this provision may have an
anti-takeover effect with respect to transactions not approved in advance by the
board of directors, including discouraging attempts that might result in a
premium over the market price for the shares of common stock held by
stockholders.
These
provisions are intended to enhance the likelihood of continuity and stability in
the composition of the board and in the policies formulated by the board and to
discourage some types of transactions that may involve actual or threatened
change of control of our company. These provisions are designed to reduce our
vulnerability to an unsolicited proposal for a takeover that does not
contemplate the acquisition of all of our outstanding shares or an unsolicited
proposal for the potential restructuring or sale of all or a part of our
company. However, these provisions could discourage potential acquisition
proposals and could delay or prevent a change in control of the Company. They
may also have the effect of preventing changes in our management.
4
Our
certificate of incorporation and our Bylaws contain certain provisions that
could have the effect of delaying, deferring or discouraging another party from
acquiring control of us. These provisions may discourage coercive takeover
practices and inadequate takeover bids. These provisions also may encourage
persons seeking to acquire control of us to first negotiate with our Board of
Directors. We believe that the benefits of increased protection of our potential
ability to negotiate with an unfriendly or unsolicited acquirer outweigh the
disadvantages of discouraging a proposal to acquire us because negotiation of
these proposals could result in an improvement of their terms.
The
provisions of Nevada law and the provisions of our certificate of incorporation
and Bylaws, as amended, could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they may also inhibit
temporary fluctuations in the market price of our common stock that often result
from actual or rumored hostile takeover attempts. These provisions may also have
the effect of preventing changes in our management. It is possible that these
provisions could make it more difficult to accomplish transactions that
stockholders may otherwise deem to be in their best interests.
Liability
and Indemnification of Directors and Officers
Our
amended and restated by laws provide that we shall indemnify any person who was
or is a party or is threatened to be made a party to any proceeding, whether
civil, criminal, administrative or investigative (other than an action by us) by
reason of the fact that such person 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, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgment, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful. No
indemnification shall, however, be provided to any such indemnitee for acts or
omissions of the indemnitee finally adjudged to be intentional misconduct or a
knowing violation of law, for conduct of the indemnitee finally adjudged to be
liable for gross negligence or willful misconduct in the performance of such
person’s duty to the Company unless and only to the extent that the court in
which such action or suit was brought shall determine, upon application, that
despite circumstances of case, such person is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
We have
an insurance policy that insures our directors and officers, within the limits
and subject to the limitations of the policy, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities that might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been our
directors or officers.
DESCRIPTION OF COMMON STOCK
PURCHASE RIGHTS
We may
issue rights to purchase our common stock. The rights may or may not be
transferable by the persons purchasing or receiving the rights. In connection
with any rights offering, we may enter into a standby underwriting or other
arrangement with one or more underwriters or other persons pursuant to
which such underwriters or other persons would purchase any offered securities
remaining unsubscribed for after such rights offering. Each series of rights
will be issued under a separate rights agent agreement to be entered into
between us and one or more banks, trust companies or other financial
institutions, as rights agent, that we will name in the applicable prospectus
supplement. The rights agent will act solely as our agent in connection with the
rights and will not assume any obligation or relationship of agency or trust for
or with any holders of rights certificates or beneficial owners of
rights.
The
prospectus supplement relating to any rights that we offer will include specific
terms relating to the offering, including, among other matters:
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the
date of determining the security holders entitled to the rights
distribution;
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the
aggregate number of rights issued and the aggregate number of shares of
common stock purchasable upon exercise of the
rights;
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the
exercise price;
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the
conditions to completion of the rights
offering;
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the
date on which the right to exercise the rights will commence and the date
on which the rights will expire;
and
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any
applicable federal income tax
considerations.
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5
Each
right would entitle the holder of the rights to purchase for cash the principal
amount of shares of common stock at the exercise price set forth in the
applicable prospectus supplement. Rights may be exercised at any time up to the
close of business on the expiration date for the rights provided in the
applicable prospectus supplement. After the close of business on the expiration
date, all unexercised rights will become void.
If less
than all of the rights issued in any rights offering are exercised, we may offer
any unsubscribed securities directly to persons other than our security holders,
to or through agents, underwriters or dealers or through a combination of such
methods, including pursuant to standby arrangements, as described in the
applicable prospectus supplement.
DESCRIPTION OF
WARRANTS
The
following description, together with the additional information we may include
in any applicable prospectus supplement, summarizes the material terms and
provisions of the warrants that we may offer under this prospectus and any
related warrant agreement and warrant certificate. While the terms summarized
below will apply generally to any warrants that we may offer, we will describe
the specific terms of any series of warrants in more detail in the applicable
prospectus supplement. If we indicate in the prospectus supplement, the terms of
any warrants offered under that prospectus supplement may differ from the terms
described below. Specific warrant agreements will contain additional important
terms and provisions and will be incorporated by reference as an exhibit to the
registration statement which includes this prospectus.
General
We may
issue warrants for the purchase of common stock in one or more series. We may
issue warrants independently or together with common stock and/or debt
securities, and the warrants may be attached to or separate from these
securities.
We will
evidence each series of warrants by warrant certificates that we may issue under
a separate agreement. We may enter into the warrant agreement with a warrant
agent. Each warrant agent may be a bank that we select which has its principal
office in the United States and a combined capital and surplus of at least
$200,000,000. We may also choose to act as our own warrant agent. We will
indicate the name and address of any such warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
We will
describe in the applicable prospectus supplement the terms of the series of
warrants, including:
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the
offering price and aggregate number of warrants
offered;
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if
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such
security;
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if
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
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the
number or amount of shares of common stock purchasable upon the exercise
of one warrant and the price at which these shares may be purchased upon
such exercise;
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the
manner of exercise of the warrants, including any cashless exercise
rights;
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the
warrant agreement under which the warrants will be
issued;
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the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreement and the
warrants;
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anti-dilution
provisions of the warrants, if any;
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the
terms of any rights to redeem or call the
warrants;
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any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
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the
dates on which the right to exercise the warrants will commence and expire
or, if the warrants are not continuously exercisable during that period,
the specific date or dates on which the warrants will be
exercisable;
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the
manner in which the warrant agreement and warrants may be
modified;
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the
identities of the warrant agent and any calculation or other agent for the
warrants;
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federal
income tax consequences of holding or exercising the
warrants;
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any
securities exchange or quotation system on which the warrants or any
securities deliverable upon exercise of the warrants may be listed or
quoted; and
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any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
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6
Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the common stock purchasable upon such exercise, including the
right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase common stock at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise
specify in the applicable prospectus supplement, holders of the warrants may
exercise the warrants at any time up to 5:00 P.M. eastern time on the expiration
date that we set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required exercise price by the methods provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant
certificate, and in the applicable prospectus supplement, the information that
the holder of the warrant will be required to deliver to the warrant
agent.
Upon
receipt of the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we will issue
and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will
issue a new warrant certificate for the remaining amount of
warrants.
Enforceability
of Rights By Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action the holder’s right to
exercise, and receive the securities purchasable upon exercise of, its warrants
in accordance with their terms.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will
be required to qualify as a trustee, under the Trust Indenture Act. Therefore,
holders of warrants issued under a warrant agreement will not have the
protection of the Trust Indenture Act with respect to their
warrants.
Governing
Law
Each
warrant agreement and any warrants issued under the warrant agreements will be
governed by New York law.
DESCRIPTION OF DEBT
SECURITIES
As used
in this prospectus, debt securities means the debentures, notes, bonds and other
evidences of indebtedness that we may issue from time to time. The debt
securities will either be senior debt securities or subordinated debt
securities. Senior debt securities will be issued under a senior indenture
between us and the senior trustee named in the applicable prospectus supplement,
and subordinated debt securities will be issued under a subordinated indenture
between us and the subordinated trustee named in the applicable prospectus
supplement. This prospectus sometimes refers to any senior indenture and any
subordinated indenture collectively as the “Indentures.”
7
The
statements and descriptions in this prospectus or in any prospectus supplement
regarding provisions of the Indentures and debt securities are summaries
thereof, do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the Indentures (and any
amendments or supplements we may enter into from time to time which are
permitted under each Indenture) and the debt securities, including the
definitions therein of certain terms.
General
Unless
otherwise specified in a prospectus supplement, the debt securities will be
direct unsecured obligations of the Company’s Senior debt securities will rank
equally with any of our other senior and unsubordinated debt. Subordinated debt
securities will be subordinate and junior in right of payment to any senior
indebtedness.
The
Indentures do not limit the aggregate principal amount of debt securities that
we may issue and provide that we may issue debt securities from time to time in
one or more series, in each case with the same or various maturities, at par or
at a discount. Unless indicated in a prospectus supplement, we may “reopen,” or
issue additional debt securities of, a particular series without the consent of
the holders of the debt securities of such series outstanding at the time of the
issuance. Any such additional debt securities, together with all other
outstanding debt securities of that series, will constitute a single series of
debt securities under the applicable Indenture.
Each
prospectus supplement will describe the terms relating to the specific series of
debt securities being offered. These terms will include some or all of the
following:
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the
title of debt securities and whether they are subordinated debt securities
or senior debt securities;
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any
limit on the aggregate principal amount of the debt
securities;
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the
ability to issue additional debt securities of the same
series;
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the
price or prices at which we will sell the debt
securities;
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the
maturity date or dates of the debt
securities;
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the
rate or rates of interest, if any, which may be fixed or variable, at
which the debt securities will bear interest, or the method of determining
such rate or rates, if any;
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the
date or dates from which any interest will accrue or the method by which
such date or dates will be
determined;
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the
right, if any, to extend the interest payment periods and the duration of
any such deferral period, including the maximum consecutive period during
which interest payment periods may be
extended;
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the
dates on which we will pay interest on the debt securities and the regular
record date for determining who is entitled to the interest payable on any
interest payment date;
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whether
the amount of payments of principal of (and premium, if any) or interest
on the debt securities may be determined with reference to any index,
formula or other method, such as one or more currencies, commodities,
equity indices or other indices, and the manner of determining the amount
of such payments;
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the
place or places where the principal of (and premium, if any) and interest
on the debt securities will be payable, where any securities may be
surrendered for registration of transfer, exchange or conversion, as
applicable, and notices and demands may be delivered to or upon us
pursuant to the Indenture;
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if
we possess the option to do so, the periods within which and the prices at
which we may redeem the debt securities, in whole or in part, pursuant to
optional redemption provisions, and the other terms and conditions of any
such provisions;
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our
obligation, if any, to redeem, repay or purchase debt securities by making
periodic payments to a sinking fund or through an analogous provision or
at the option of holders of the debt securities, and the period or periods
within which and the price or prices at which we will redeem, repay or
purchase the debt securities, in whole or in part, pursuant to such
obligation, and the other terms and conditions of such
obligation;
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the
denominations in which the debt securities will be issued, if other than
denominations of $1,000 and integral multiples of
$1,000;
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the
portion, or methods of determining the portion, of the principal amount of
the debt securities which we must pay upon the acceleration of the
maturity of the debt securities in connection with an Event of Default (as
described below), if other than the full principal
amount;
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the
currency, currencies or currency unit in which we will pay the principal
of (and premium, if any) or interest, if any, on the debt securities, if
not United States dollars;
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provisions,
if any, granting special rights to holders of the debt securities upon the
occurrence of specified events;
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any
deletions from, modifications of or additions to the Events of Default (as
described below) or our covenants with respect to the applicable series of
debt securities, and whether or not such Events of Default or covenants
are consistent with those contained in the applicable
Indenture;
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any
limitation on our ability to incur debt, redeem stock, sell our assets or
other restrictions;
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the
application, if any, of the terms of the Indenture relating to defeasance
and covenant defeasance (which terms are described below) to the debt
securities;
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whether
the subordination provisions summarized below or different subordination
provisions will apply to the debt
securities;
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the
terms, if any, upon which the holders may convert or exchange the debt
securities into or for our common stock or other securities or
property;
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whether
any of the debt securities will be issued in global form and, if so, the
terms and conditions upon which global debt securities may be exchanged
for certificated debt securities;
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any
change in the right of the trustee or the requisite holders of debt
securities to declare the principal amount thereof due and payable because
of an Event of Default;
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the
depositary for global or certificated debt
securities;
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any
special tax implications of the debt
securities;
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any
trustees, authenticating or paying agents, transfer agents or registrars,
or other agents with respect to the debt
securities;
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any
other terms of the debt securities not inconsistent with the provisions of
the Indentures, as amended or
supplemented;
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to
whom any interest on any debt security shall be payable, if other than the
person in whose name the security is registered, on the record date for
such interest, the extent to which, or the manner in which, any interest
payable on a temporary global debt security will be paid if other than in
the manner provided in the applicable
Indenture;
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if
the principal of or any premium or interest on any debt securities of the
series is to be payable in one or more currencies or currency units other
than as stated, the currency, currencies or currency units in which it
shall be paid and the periods within and terms and conditions upon which
such election is to be made and the amounts payable (or the manner in
which such amount shall be
determined);
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the
portion of the principal amount of any securities of the series which
shall be payable upon declaration of acceleration of the maturity of the
debt securities pursuant to the applicable Indenture if other than the
entire principal amount; and
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if
the principal amount payable at the stated maturity of any debt security
of the series will not be determinable as of any one or more dates prior
to the stated maturity, the amount which shall be deemed to be the
principal amount of such securities as of any such date for any purpose,
including the principal amount thereof which shall be due and payable upon
any maturity other than the stated maturity or which shall be deemed to be
outstanding as of any date prior to the stated maturity (or, in any such
case, the manner in which such amount deemed to be the principal amount
shall be determined).
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Unless
otherwise specified in the applicable prospectus supplement, the debt securities
will not be listed on any securities exchange.
Unless
otherwise specified in the applicable prospectus supplement, debt securities
will be issued in fully-registered form without coupons.
Debt
securities may be sold at a substantial discount below their stated principal
amount, bearing no interest or interest at a rate which at the time of issuance
is below market rates. The applicable prospectus supplement will describe the
federal income tax consequences and special considerations applicable to any
such debt securities. The debt securities may also be issued as indexed
securities or securities denominated in foreign currencies, currency units or
composite currencies, as described in more detail in the prospectus supplement
relating to any of the particular debt securities. The prospectus supplement
relating to specific debt securities will also describe any special
considerations and certain additional tax considerations applicable to such debt
securities.
9
Subordination
The
prospectus supplement relating to any offering of subordinated debt securities
will describe the specific subordination provisions. However, unless otherwise
noted in the prospectus supplement, subordinated debt securities will be
subordinate and junior in right of payment to any existing Senior Indebtedness.
Under the subordinated indenture, “Senior Indebtedness” may mean all amounts due
on obligations in connection with any of the following, whether outstanding at
the date of execution of the subordinated indenture, or thereafter incurred or
created:
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the
principal of (and premium, if any) and interest due on our indebtedness
for borrowed money and indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by
us;
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all
of our capital lease obligations;
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any
of our obligations as lessee under leases required to be capitalized on
the balance sheet of the lessee under generally accepted accounting
principles;
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all
of our obligations for the reimbursement on any letter of credit, banker’s
acceptance, security purchase facility or similar credit
transaction;
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all
of our obligations in respect of interest rate swap, cap or other
agreements, interest rate future or options contracts, currency swap
agreements, currency future or option contracts and other similar
agreements;
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all
obligations of the types referred to above of other persons for the
payment of which we are responsible or liable as obligor, guarantor or
otherwise; and
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all
obligations of the types referred to above of other persons secured by any
lien on any property or asset of ours (whether or not such obligation is
assumed by us).
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However,
Senior Indebtedness will not include:
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any
indebtedness which expressly provides that such indebtedness shall not be
senior in right of payment to the subordinated debt securities, or that
such indebtedness shall be subordinated to any other of our indebtedness,
unless such indebtedness expressly provides that such indebtedness shall
be senior in right of payment to the subordinated debt
securities;
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any
of our indebtedness in respect of the subordinated debt
securities;
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any
of our indebtedness to any
subsidiary.
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Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
Unless
otherwise noted in the prospectus supplement, if we default in the payment of
any principal of (or premium, if any) or interest on any Senior Indebtedness
when it becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise, then, unless and until such default
is cured or waived or ceases to exist, we will make no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) in respect of
the principal of or interest on the subordinated debt securities or in respect
of any redemption, retirement, purchase or other requisition of any of the
subordinated debt securities.
In the
event of the acceleration of the maturity of any subordinated debt securities,
the holders of all senior debt securities outstanding at the time of such
acceleration, subject to any security interest, will first be entitled to
receive payment in full of all amounts due on the senior debt securities before
the holders of the subordinated debt securities will be entitled to receive any
payment of principal (and premium, if any) or interest on the subordinated debt
securities.
If any of
the following events occurs, we will pay in full all Senior Indebtedness before
we make any payment or distribution under the subordinated debt securities,
whether in cash, securities or other property, to any holder of subordinated
debt securities:
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any
dissolution or winding-up or liquidation or reorganization of the Company
whether voluntary or involuntary or in bankruptcy, insolvency or
receivership;
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any
general assignment by us for the benefit of creditors;
or
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any
other marshaling of our assets or
liabilities.
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In such
event, any payment or distribution under the subordinated debt securities,
whether in cash, securities or other property, which would otherwise (but for
the subordination provisions) be payable or deliverable in respect of the
subordinated debt securities, will be paid or delivered directly to the holders
of Senior Indebtedness in accordance with the priorities then existing among
such holders until all Senior Indebtedness has been paid in full. If any payment
or distribution under the subordinated debt securities is received by the
trustee of any subordinated debt securities in contravention of any of the terms
of the subordinated indenture and before all the Senior Indebtedness has
been paid in full, such payment or distribution or security will be received in
trust for the benefit of, and paid over or delivered and transferred to, the
holders of the Senior Indebtedness at the time outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all Senior Indebtedness remaining unpaid to the extent necessary to pay all
such Senior Indebtedness in full.
10
The
subordinated indenture will not limit the issuance of additional Senior
Indebtedness.
Consolidation,
Merger, Sale of Assets and Other Transactions
Unless an
accompanying prospectus supplement states otherwise, we may not merge with or
into or consolidate with another corporation or sell, assign, transfer, lease or
convey all or substantially all of our properties and assets to, any other
corporation other than a direct or indirect wholly-owned subsidiary of ours, and
no corporation may merge with or into or consolidate with us or, except for any
direct or indirect wholly-owned subsidiary of ours, sell, assign, transfer,
lease or convey all or substantially all of its properties and assets to us,
unless:
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either
we are the surviving corporation, or the corporation formed by or
surviving such merger or consolidation or to which such sale, assignment,
transfer, lease or conveyance has been made, if other than us, has
expressly assumed by supplemental indenture all of our obligations under
the debt securities and the
Indentures;
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immediately
after giving effect to such transaction, no default or Event of Default
has occurred and is continuing.
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Events
of Default, Notice and Waiver
Unless an
accompanying prospectus supplement states otherwise, the following shall
constitute “Events of Default” under the Indentures with respect to each series
of debt securities:
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our
failure to pay any interest on any debt security of such series when due
and payable, continued for 30 days;
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our
failure to pay principal (or premium, if any) on any debt security of such
series when due, regardless of whether such payment became due because of
maturity, redemption, acceleration or otherwise, or is required by any
sinking fund established with respect to such
series;
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our
failure to observe or perform any other covenant or agreement with respect
to such debt securities for 90 days after we receive notice of such
failure;
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certain
events of bankruptcy, insolvency or reorganization of the Company;
or
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any
other Event of Default provided with respect to securities of that
series.
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If an
Event of Default with respect to any debt securities of any series outstanding
under either of the Indentures shall occur and be continuing, the trustee under
such Indenture or the holders of at least 25% in aggregate principal amount of
the debt securities of that series outstanding may declare, by notice as
provided in the applicable Indenture, the principal amount (or such lesser
amount as may be provided for in the debt securities of that series) of all the
debt securities of that series outstanding to be due and payable immediately;
provided that, in the case of an Event of Default involving certain events in
bankruptcy, insolvency or reorganization, acceleration is automatic; and,
provided further, that after such acceleration, but before a judgment or decree
based on acceleration, the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events
of Default, other than the nonpayment of accelerated principal, have been
cured or waived. Upon the acceleration of the maturity of original issue
discount securities, an amount less than the principal amount thereof will
become due and payable. Reference is made to the prospectus supplement
relating to any original issue discount securities for the particular provisions
relating to acceleration of maturity thereof.
Any past
default under any Indenture with respect to debt securities of any series, and
any Event of Default arising therefrom, may be waived by the holders of a
majority in principal amount of all debt securities of such series outstanding
under such Indenture, except in the case of (i) default in the payment of the
principal of (or premium, if any) or interest on any debt securities of such
series or (ii) default in respect of a covenant or provision that cannot be
amended or modified without the consent of the holder of each outstanding debt
security of such series affected.
The
trustee is required within 90 days after the occurrence of an Event of Default
(that is known to the trustee and is continuing), with respect to the debt
securities of any series (without regard to any grace period or notice
requirements), to give to the holders of the debt securities of such series
notice of such default.
11
The
trustee, subject to its duties during default to act with the required standard
of care, may require indemnification by the holders of the debt securities of
any series with respect to which a default has occurred before proceeding to
exercise any right or power under the applicable Indenture at the request of the
holders of the debt securities of such series. Subject to such right of
indemnification and to certain other limitations, the holders of a majority in
principal amount of the outstanding debt securities of any series under either
Indenture may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee, or exercising any trust or power conferred
on the trustee with respect to the debt securities of such series, provided
that such direction shall not be in conflict with any rule of law or
with the applicable Indenture and the trustee may take any other action deemed
proper by the trustee which is not inconsistent with such
direction.
No holder
of a debt security of any series may institute any action against us under
either Indenture (except actions for payment of overdue principal of (and
premium, if any) or interest on such debt security or for the conversion or
exchange of such debt security in accordance with its terms), unless (i) the
holder has given to the trustee written notice of an Event of Default and of the
continuance thereof with respect to the debt securities of such series
specifying an Event of Default, as required under the applicable Indenture; (ii)
the holders of at least 25% in aggregate principal amount of the debt securities
of that series then outstanding under such Indenture shall have requested the
trustee to institute such action and offered to the trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request; (iii) the trustee shall not have instituted such
action within 60 days of such request and (iv) no direction inconsistent with
such written request has been given to the trustee during such 60-day period by
the holders of a majority in principal amount of the debt securities of that
series.
We are
required to furnish annually to the trustee statements as to our compliance with
all conditions and covenants under each Indenture.
Discharge,
Defeasance and Covenant Defeasance
We may
discharge or defease our obligations under the Indentures as set forth below,
unless otherwise indicated in the applicable prospectus supplement.
We may
discharge certain obligations to holders of any series of debt securities issued
under either Indenture that have either become due and payable or are by their
terms due and payable within one year (or scheduled for redemption within one
year) by irrevocably depositing with the trustee money in an amount sufficient
to pay and discharge the entire indebtedness on such debt securities, for
principal and any premium and interest to the date of such deposit (in the case
of debt securities which have become due and payable) or to the stated maturity
or redemption date, as the case may be, and we have paid all other sums payable
under the Indenture.
If
indicated in the applicable prospectus supplement, we may elect either to (i)
defease and be discharged from any and all obligations with respect to the debt
securities of or within any series (except as otherwise provided in the relevant
Indenture) (“defeasance”) or (ii) be released from our obligations with respect
to certain covenants applicable to the debt securities of or within any series
(“covenant defeasance”), upon the deposit with the relevant Indenture trustee,
in trust for such purpose, of money and/or government obligations which through
the payment of principal and interest in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any) or interest on such debt securities to maturity or redemption, as the case
may be, and any mandatory sinking fund or analogous payments thereon. As a
condition to defeasance or covenant defeasance, we must deliver to the trustee
an opinion of counsel to the effect that the holders of such debt securities
will not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject to federal
income tax on the same amounts and in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred. Such opinion of counsel, in the case of defeasance under clause
(i) above, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable federal income tax law occurring after the
date of the relevant Indenture. In addition, in the case of either
defeasance or covenant defeasance, we must deliver to the trustee an officers’
certificate to the effect that the relevant debt securities exchange(s) have
informed us that neither such debt securities nor any other debt securities of
the same series, if then listed on any securities exchange, will be delisted as
a result of such deposit.
We may
exercise our defeasance option with respect to such debt securities
notwithstanding our prior exercise of our covenant defeasance
option.
12
Modification
and Waiver
We and
the applicable trustee may supplement any Indenture for certain purposes that
would not materially adversely affect the interests or rights of the holders of
debt securities of a series without the consent of those holders. We and the
applicable trustee may also modify any Indenture or any supplemental indenture
in a manner that affects the interests or rights of the holders of debt
securities with the consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each affected series
issued under the Indenture. However, any Indenture will require the consent of
each holder of debt securities that would be affected by any modification that
would:
|
·
|
change
the fixed maturity of any debt securities of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption
thereof;
|
|
·
|
reduce
the amount of principal of an original issue discount debt security or any
other debt security payable upon acceleration of the maturity
thereof;
|
|
·
|
change
the currency in which any debt security or any premium or interest is
payable;
|
|
·
|
impair
the right to enforce any payment on or with respect to any debt
security;
|
|
·
|
adversely
change the right to convert or exchange, including decreasing the
conversion rate or increasing the conversion price of, any debt security
(if applicable);
|
|
·
|
reduce
the percentage in principal amount of outstanding debt securities of any
series, the consent of whose holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults;
or
|
|
·
|
modify
any of the above provisions.
|
Each
Indenture will permit the holders of at least a majority in aggregate principal
amount of the outstanding debt securities of any series issued under the
Indenture is affected by the modification or amendment to waive our compliance
with certain covenants contained in the Indentures.
Payment
and Paying Agents
Unless
otherwise indicated in the applicable prospectus supplement, payment of interest
on a debt security on any interest payment date will be made to the person in
whose name a debt security is registered at the close of business on the record
date for the interest. Book-entry and other indirect holders should consult
their banks, brokers or other financial institutions for information on how they
will receive payments.
Unless
otherwise indicated in the applicable prospectus supplement, principal, interest
and premium on the debt securities of a particular series will be payable at the
office of such paying agent or paying agents as we may designate for such
purpose from time to time. Notwithstanding the foregoing, at our option, payment
of any interest may be made by check mailed to the address of the person
entitled thereto as such address appears in the security register.
Unless
otherwise indicated in the applicable prospectus supplement, a paying agent
designated by us will act as paying agent for payments with respect to debt
securities of each series. All paying agents initially designated by us for the
debt securities of a particular series will be named in the applicable
prospectus supplement. We may at any time designate additional paying agents or
rescind the designation of any paying agent or approve a change in the office
through which any paying agent acts, except that we will be required to maintain
a paying agent in each place of payment for the debt securities of a particular
series.
All
moneys paid by us to a paying agent for the payment of the principal, interest
or premium on any debt security that remains unclaimed at the end of two years
after such principal, interest or premium has become due and payable will be
repaid to us upon request, and the holder of such debt security thereafter may
look only to us for payment thereof.
Denominations,
Registrations and Transfer
Unless an
accompanying prospectus supplement states otherwise, debt securities will be
represented by one or more global certificates registered in the name of a
nominee for The Depository Trust Company, or DTC. In such case, each holder’s
beneficial interest in the global securities will be shown on the records of DTC
and transfers of beneficial interests will only be effected through DTC’s
records.
13
A holder
of debt securities may only exchange a beneficial interest in a global security
for certificated securities registered in the holder’s name if:
|
·
|
DTC
notifies us that it is unwilling or unable to continue serving as the
depositary for the relevant global securities or DTC ceases to maintain
certain qualifications under the Securities Exchange Act and no successor
depositary has been appointed for 90 days;
or
|
|
·
|
we
determine, in our sole discretion, that the global security shall be
exchangeable.
|
If debt
securities are issued in certificated form, they will only be issued in the
minimum denomination specified in the accompanying prospectus supplement and
integral multiples of such denomination. Transfers and exchanges of such debt
securities will only be permitted in such minimum denomination. Transfers of
debt securities in certificated form may be registered at the trustee’s
corporate office or at the offices of any paying agent appointed by us under the
applicable Indenture. Exchanges of debt securities for an equal aggregate
principal amount of debt securities in different denominations may also be made
at such locations. Holders will not be required to pay a service charge to
transfer or exchange debt securities, but holders may be required to pay for any
tax or other governmental charge associated with the exchange or transfer. The
transfer or exchange will only be made if the security registrar is satisfied
with the holder’s proof of ownership.
Governing
Law
Unless an
accompanying prospectus supplement states otherwise, the Indentures and debt
securities will be governed by New York law.
Trustee
The
trustee or trustees under any Indenture will be named in any applicable
prospectus supplement.
Conversion
or Exchange Rights
The
prospectus supplement will describe the terms, if any, on which a series of debt
securities may be convertible into or exchangeable for our common stock or debt
securities. These terms will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option. These
provisions may allow or require the number of shares of our common stock or
other securities to be received by the holders of such series of debt securities
to be adjusted in certain circumstances.
DESCRIPTION OF
UNITS
We may
issue units comprised of one or more of the other securities described in this
prospectus in any combination. Each unit will be issued so that the holder of
the unit is also the holder, with the rights and obligations of a holder, of
each security included in the unit. The unit agreement under which a unit is
issued may provide that the securities included in the unit may not be held or
transferred separately, at any time or at any time before a specified date
or upon the occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
|
·
|
the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
|
|
·
|
any
unit agreement under which the units will be
issued;
|
|
·
|
any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the units;
and
|
|
·
|
whether
the units will be issued in fully registered or global
form.
|
14
PLAN OF
DISTRIBUTION
We may
sell the securities being offered pursuant to this prospectus to or through
underwriters, through dealers, through agents, or directly to one or more
purchasers or through a combination of these methods. The applicable prospectus
supplement will describe the terms of the offering of the securities,
including:
|
·
|
the
name or names of any underwriters, if, and if required, any dealers or
agents;
|
|
·
|
the
purchase price of the securities and the proceeds we will receive from the
sale;
|
|
·
|
any
underwriting discounts and other items constituting underwriters’
compensation;
|
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
|
·
|
any
securities exchange or market on which the securities may be listed or
traded.
|
We may
distribute the securities from time to time in one or more transactions
at:
|
·
|
a
fixed price or prices, which may be
changed;
|
|
·
|
market
prices prevailing at the time of
sale;
|
|
·
|
prices
related to such prevailing market prices;
or
|
|
·
|
negotiated
prices.
|
Only
underwriters named in the prospectus supplement are underwriters of the
securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement
with such underwriters and will specify the name of each underwriter and the
terms of the transaction (including any underwriting discounts and other terms
constituting compensation of the underwriters and any dealers) in a prospectus
supplement. The securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or directly by one
or more investment banking firms or others, as designated. If an underwriting
syndicate is used, the managing underwriter(s) will be specified on the cover of
the prospectus supplement. If underwriters are used in the sale, the offered
securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time. Unless
otherwise set forth in the prospectus supplement, the obligations of the
underwriters to purchase the offered securities will be subject to conditions
precedent, and the underwriters will be obligated to purchase all of the offered
securities, if any are purchased.
We may
grant to the underwriters options to purchase additional securities to cover
over-allotments, if any, at the public offering price, with additional
underwriting commissions or discounts, as may be set forth in a related
prospectus supplement. The terms of any over-allotment option will be set forth
in the prospectus supplement for those securities.
If we use
a dealer in the sale of the securities being offered pursuant to this prospectus
or any prospectus supplement, we will sell the securities to the dealer, as
principal. The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale. The names of the
dealers and the terms of the transaction will be specified in a prospectus
supplement.
We may
sell the securities directly or through agents we designate from time to time.
We will name any agent involved in the offering and sale of securities and we
will describe any commissions we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states otherwise, any agent will
act on a best-efforts basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by institutional investors to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may
receive compensation from us or from purchasers of the securities for whom they
act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell the securities to or through dealers, and those dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase
securities directly for the purpose of resale or distribution, may
be deemed to be underwriters, and any discounts or commissions received by
them from us and any profit on the resale of the common stock by them may be
deemed to be underwriting discounts and commissions under the Securities
Act.
15
We may
provide agents, underwriters and other purchasers with indemnification against
particular civil liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents, underwriters or other
purchasers may make with respect to such liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary
course of business.
To
facilitate the public offering of a series of securities, persons participating
in the offering may engage in transactions that stabilize, maintain, or
otherwise affect the market price of the securities. This may include
over-allotments or short sales of the securities, which involves the sale by
persons participating in the offering of more securities than have been sold to
them by us. In those circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by
exercising the over-allotment option granted to those persons. In addition,
those persons may stabilize or maintain the price of the securities by bidding
for or purchasing securities in the open market or by imposing penalty bids,
whereby selling concessions allowed to underwriters or dealers participating in
any such offering may be reclaimed if securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the securities at a level above
that which might otherwise prevail in the open market. Such transactions, if
commenced, may be discontinued at any time. We make no representation or
prediction as to the direction or magnitude of any effect that the transactions
described above, if implemented, may have on the price of our
securities.
Unless
otherwise specified in the applicable prospectus supplement, any common stock
sold pursuant to a prospectus supplement will be eligible for listing on the
NYSE AMEX, subject to official notice of issuance. Any underwriters to whom
securities are sold by us for public offering and sale may make a market in the
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice.
In order
to comply with the securities laws of some states, if applicable, the securities
offered pursuant to this prospectus will be sold in those states only through
registered or licensed brokers or dealers. In addition, in some states
securities may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and complied with.
In
compliance with guidelines of the Financial Industry Regulatory Authority, or
FINRA, the maximum consideration or discount to be received by any FINRA member
or independent broker dealer may not exceed 8% of the aggregate amount of the
securities offered pursuant to this prospectus and any applicable prospectus
supplement.
LEGAL
MATTERS
The
legality of the issuance of the shares offered in this prospectus will be passed
upon for us by the Crone Law Group, San Francisco, California. The Crone Law
Group holds an option to purchase 100,000 shares of common stock at an initial
exercise price of $2.15 per share.
EXPERTS
The
consolidated financial statements for the years ended December 31, 2007 and 2008
incorporated in this prospectus by reference from the Company’s Annual Report on
Form 10-K have been audited by Jimmy C.H. Cheung & Co., an independent
certified public accounting firm, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We have
filed a registration statement on Form S-3 with the SEC for the securities we
are offering by this prospectus. This prospectus does not include all of the
information contained in the registration statement. You should refer to the
registration statement and its exhibits for additional
information.
16
We are
required to file annual and quarterly reports, special reports, proxy
statements, and other information with the SEC. You can read our SEC
filings, including the registration statement, on the SEC’s website at
http://www.sec.gov. You also may read and copy any document we file with the SEC
at its public reference facility at:
Public
Reference Room
100 F
Street N.E.
Washington,
DC 20549
Please
call the SEC at 1-800-732-0330 for further information on the operation of the
public reference facilities.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The
following documents filed by us with the Securities and Exchange Commission are
incorporated by reference in this prospectus:
|
·
|
Annual
Report on Form 10-K for the fiscal year ended December 31, 2008, filed
March 30, 2009;
|
|
·
|
Quarterly
Report on Form 10-Q for the quarter ended March 31, 2009, filed May 15,
2009;
|
|
·
|
Current
Report on Form 8-K filed with the SEC on March 6,
2009;
|
|
·
|
Current
Report on Form 8-K filed with the SEC on September 30, 2008;
and
|
|
·
|
The
description of our common stock contained in the Registration Statement on
Form 8-A12B filed with the SEC on June 10, 2009 and as amended on June 29,
2009.
|
All
documents subsequently filed with the Securities and Exchange Commission by us
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the
date of the initial registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered herein have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part of this prospectus
from the respective dates of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof or of
the related prospectus supplement to the extent that a statement contained
herein or in any other subsequently filed document which is also incorporated or
deemed to be incorporated 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 prospectus.
We will
provide to each person, including any beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the information that has been incorporated by
reference in the prospectus but not delivered with the prospectus. You may
request a copy of these filings, excluding the exhibits to such filings which we
have not specifically incorporated by reference in such filings, at no cost, by
writing us at the following address: 445 Park Avenue, New York, NY 10022 and our
telephone number is (212) 307-3568
DISCLOSURE OF COMMISSION
POSITION OF INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The
Company's directors and executive officers are indemnified as provided by the
Nevada Revised Statutes and the Company's Bylaws. These provisions state that
the Company's directors may cause the Company to indemnify a director or former
director against all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, actually and reasonably incurred by him
as a result of him acting as a director. The indemnification of costs can
include an amount paid to settle an action or satisfy a judgment. Such
indemnification is at the discretion of the Company's board of directors and is
subject to the Securities and Exchange Commission's policy regarding
indemnification.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, or otherwise, the Company 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.
17
$40,000,000
CHINA
NORTH EAST PETROLEUM HOLDINGS LIMITED
Common
Stock
Common
Stock Purchase Rights
Warrants
Debt
Securities
Units
PROSPECTUS
,
2009
We
have not authorized any dealer, salesperson or other person to give any
information or represent anything not contained in or incorporated by reference
into this prospectus. You must not rely on any unauthorized information. If
anyone provides you with different or inconsistent information, you should not
rely on it. This prospectus does not offer to sell any shares in any
jurisdiction where it is unlawful. Neither the delivery of this
prospectus, nor any sale made hereunder, shall create any implication that
the information in this prospectus is correct after the date
hereof.
18
PART II INFORMATION NOT
REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the
issuance and distribution of the securities being registered hereby, other than
underwriting discounts and commissions, all of which shall be borne by the
Company. All of such fees and expenses, except for the SEC Registration Fee, are
estimated:
|
SEC
Registration Fee
|
$
|
2,232
|
||
|
Transfer
agent’s fees and expenses
|
3,000
|
*
|
||
|
Printing
and engraving expenses
|
10,000
|
*
|
||
|
Accounting
fees and expenses
|
5,000
|
*
|
||
|
Legal
fees and expenses (including blue sky services and
expenses)
|
50,000
|
*
|
||
|
Miscellaneous
|
10,000
|
*
|
||
|
Total
|
$
|
80,232
|
*
|
|
*
Estimated
Item
15. Indemnification of Officers and Director
The only
statute, charter provision, bylaw, contract, or other arrangement under which
any controlling person, director or officer of the Company is insured or
indemnified in any manner against any liability which he may incur in his
capacity as such, is as follows:
|
1.
|
Article
IX of the Articles of Incorporation of the Company, filed as Exhibit 3.1
to the Registration Statement.
|
|
2.
|
Article
VIII of the Amended and Restated Bylaws of the Company, filed as Exhibit
3.3 to the Registration Statement.
|
|
3.
|
Nevada
Revised Statutes, Chapter 78.
|
The
general effect of the foregoing is to indemnify a controlling person, officer or
director from liability, thereby making the Company responsible for any expenses
or damages incurred by such control person, officer or director in any action
brought against them based on their conduct in such capacity, provided they did
not engage in fraud or criminal activity.
Item
16. Exhibits
|
Exhibit
|
||
|
Number
|
Description
of Document
|
|
|
1.1*
|
Form
of underwriting agreement with respect to debt securities, common stock,
common stock purchase rights and warrants.
|
|
|
3.1
|
Articles
of Incorporation are incorporated herein by reference from Registrant’s
Annual Report on Form 10-KSB filed with the SEC on March 28,
2001.
|
|
|
3.2
|
Certificate
of Amendments to Articles of Incorporation is incorporated herein by
reference from Registrant’s Information Statement on Form 14C filed with
the SEC on May 26, 2004.
|
|
|
3.3
|
Amended
and Restated By-laws is incorporated herein by reference from Registrant’s
current report on Form 8-K filed with the SEC on September 30,
2008.
|
|
|
4.1*
|
Form
of indenture, to be entered into between registrant and a trustee
acceptable to the registrant, if any.
|
|
|
4.2*
|
Form
of debt securities, if any.
|
|
|
4.3*
|
Form
of warrant agreement and warrant certificate, if any.
|
|
|
4.4*
|
Form
of unit agreement and unit certificate, if
any.
|
19
|
4.5*
|
Form
of Common Stock Purchase Right
|
|
|
5.1*
|
Opinion
of the Crone Law Group as to the legality of the securities being
registered.
|
|
|
23.1*
|
Consent
of the Crone Law Group (included in Exhibit 5.1).
|
|
|
23.2
|
Consent
of Jimmy C.H. Cheung & Co.
|
|
|
24.1
|
Power
of Attorney (included on signature pages to the registration
statement).
|
|
|
25.1*
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of a trustee acceptable to the registrant, as trustee under the
Indenture.
|
|
*
|
To
the extent applicable, to be filed by a post-effective amendment or as an
exhibit to a document filed under the Securities Exchange Act, as amended,
and incorporated by reference
herein.
|
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) if, in the aggregate, the changes in volume
and price represent no more than 20 percent 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 the
undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above
do not apply if the registration statement is on Form S-3 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act that are incorporated by reference in the registration statements
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a
part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall 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, as amended, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act that is incorporated by reference in this 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) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
20
(1) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(2) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. 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 effective date, 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 effective
date.
(d) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 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; (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.
(e) The
undersigned registrant hereby undertakes that: (i) for purposes of determining
any liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of the registration statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall of
1933 be deemed to be part of the registration statement as of the time it was
declared effective; and (ii) 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.
(f) If
and when applicable, the undersigned registrant, hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
(g)
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 registrant 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.
21
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets the requirements for filing
this 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
Songyuan, People’s Republic of China, on the 29th day of June,
2009.
|
CHINA
NORTH EAST PETROLEUM HOLDINGS LIMITED
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|||
|
By:
|
/s/
Wang Hongjun
|
||
|
Wang
Hongjun
|
|||
|
President
and Chairman of the
Board
|
|||
KNOW ALL
BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Wang Hongjun and Zhang Yang, or either of them, as his or her true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this registration statement, 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 each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes, 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/
Wang Hongjun
|
President
and Chairman of the Board (Principal Executive Officer)
|
June
29, 2009
|
||
|
Wang
Hongjun
|
||||
|
/s/
Zhang Yang
|
Chief
Financial Officer (Principal Financial Officer and Principal Accounting
Officer)
|
June
29, 2009
|
||
|
Zhang
Yang
|
||||
|
/s/
Yu Liguo
|
Director
|
June
29, 2009
|
||
|
Yu
Liguo
|
||||
|
/s/
Li Jing Fu
|
Director
|
June
29, 2009
|
||
|
Li
Jing Fu
|
||||
|
/s/
Robert Bruce
|
Director
|
June
26, 2009
|
||
|
Robert
Bruce
|
||||
|
/s/
Edward Rule
|
Director
|
June
26, 2009
|
||
|
Edward
Rule
|
||||
22