XTO Xto Energy, Inc.

As filed with the Securities and Exchange Commission on June 30, 2008

Registration No. 333-             

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

XTO ENERGY INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		75-2347769
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

 

 

810 Houston Street, Fort Worth, Texas		76102
(Address of Principal Executive Offices)		(Zip Code)

XTO ENERGY INC. 2004 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED AS OF MAY 20, 2008

(Full title of the plan)

 

 

Mr. Frank G. McDonald

Senior Vice President and General Counsel

810 Houston Street

Fort Worth, Texas 76102

(Name and address of agent for service)

(817) 870-2800

(Telephone number, including area code, of agent for service)

 

Large accelerated filer   x		Accelerated filer   ¨
Non-accelerated filer   ¨		Smaller Reporting Company   ¨
(Do not check if smaller reporting company)

 

 

Calculation of Registration Fee

 

 

Title of each class of securities to be registered		Amount to be registered (1)		Proposed maximum offering price per share (2)		Proposed maximum aggregate offering price (2)			Amount of registration fee (2)
Common Stock, $0.01 par value		24,187,500 shares		$67.295		$	1,627,697,812.50		$	63,969.00

 

(1)	Pursuant to Rule 416(a), the number of shares of Common Stock registered hereunder includes such indeterminate number of additional shares of Common Stock as may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(2)	Computed pursuant to Rules 457(c) and (h) based on the average of the high and low prices on June 26, 2008.

 

 

 

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in the Items of Part I of Form S-8 will be sent or given to participants in the 2004 Stock Incentive Plan, as Amended and Restated as of May 20, 2008 as required by Rule 428(b)(1) under the Securities Act of 1933. As permitted by the instructions to Part I of Form S-8, these documents are not filed with this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents and all documents subsequently filed by XTO Energy Inc. (the “Company”) pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and shall be deemed to be a part hereof from the date of the filing of such documents:

 

(a)

The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007;

 

(b)

The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2008 and Current Reports on Form 8-K filed on January 7, 2008 (report dated December 31, 2007); February 7, 2008 (report dated February 5, 2008); February 13, 2008 (report dated February 12, 2008); February 14, 2008 (report dated February 13, 2008); February 15, 2008 (report dated February 15, 2008); April 16, 2008 (report dated April 16, 2008); May 22, 2008 (report dated May 20, 2008); May 30, 2008 (report dated May 23, 2008); June 12, 2008 (report dated June 9, 2008); and

 

(c)

“Item 1. Description of Registrant’s Securities to be Registered” in the Company’s Registration Statement on Form 8-A (Commission File No. 1-10662) describing the Company’s Common Stock, as filed with the Securities and Exchange Commission on April 9, 1993 pursuant to the Securities Exchange Act of 1934 and “Item 1. Description of Registrant’s Securities to be Registered” in the Company’s Registration Statement on Form 8-A (Commission File No. 1-10662) describing the Company’s Series A Junior Participating Preferred Stock Purchase Rights, as filed with the Securities and Exchange Commission on September 8, 1998 pursuant to the Securities Exchange Act of 1934, and Form 8-A/A, as filed with the Securities and Exchange Commission on September 9, 1998.

 

Item 4.

Description of Securities.

Not Applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not Applicable.

 

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Item 6.

Indemnification of Directors and Officers.

The Company is incorporated in Delaware. Under Section 145 of the Delaware General Corporation Law (the “DGCL”), a Delaware corporation has the power, under specified circumstances, to indemnify its directors, officers, employees and agents in connection with actions, suits or proceedings brought against them by a third party or in the right of the corporation, by reason that they were or are such directors, officers, employees or agents, against expenses and liabilities incurred in any such action, suit or proceeding so long as they acted in good faith and in a manner that they reasonably believed to be in, or not opposed to, the best interests of such corporation, and with respect to any criminal action, that they had no reasonable cause to believe their conduct was unlawful. With respect to suits by or in the right of such corporation, however, indemnification is generally limited to attorneys’ fees and other expenses and is not available if such person is adjudicated to be liable to such corporation unless the court determines that indemnification is appropriate. A Delaware corporation also has the power to purchase and maintain insurance for such persons. Article Nine of the Company’s Restated Certificate of Incorporation grants the Company the power to indemnify directors, officers, employees or agents to the fullest extent permitted by Section 145 of the DGCL. Section 7.9 of the Amended and Restated Bylaws of the Company requires the Company to indemnify directors, officers, employees or agents to the fullest extent permitted by applicable law. Reference is made to the Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company.

The Company has also entered into indemnification agreements with its directors and certain of its officers that provide them with indemnification to the fullest extent permitted by Section 145 of the Delaware General Corporation Law. Additionally, the Company has acquired directors and officers insurance which includes coverage for liability under the federal securities laws.

Section 102(b)(7) of the DGCL provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provisions may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock), or (iv) for any transaction from which the director derived an improper personal benefit. Article Ten of the Company’s Restated Certificate of Incorporation contains such a provision.

The above discussion of the Company’s Restated Certificate of Incorporation, Amended and Restated Bylaws and indemnification agreements and Sections 102(b)(7) and 145 of the DGCL is not intended to be exhaustive and is qualified in its entirety by such Restated Certificate of Incorporation, Amended and Restated Bylaws, indemnification agreements and statutes.

 

Item 7.

Exemption from Registration Claimed.

Not Applicable.

 

Item 8.

Exhibits.

Documents filed by the Company prior to June 1, 2001 were filed with the Securities and Exchange Commission under the Company’s prior name, Cross Timbers Oil Company.

 

Exhibit Number and Description
4.1		Restated Certificate of Incorporation of XTO Energy Inc., as restated June 21, 2006 (incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended June 30, 2006)
4.2		Amended and Restated Bylaws of XTO Energy Inc., dated November 18, 2003 (incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended March 31, 2006)

 

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4.3		Rights Agreement dated as of August 25, 1998 between the Company and ChaseMellon Shareholder Services, as Rights Agent (incorporated by reference to Exhibit 4.1 to Form 8-A filed September 8, 1998 and Form 8-A/A filed September 9, 1998)
5.1		Opinion of Frank G. McDonald, Senior Vice President and General Counsel
15.1		Awareness letter of KPMG LLP
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Miller and Lents, Ltd.
23.3		Consent of Frank G. McDonald (included in his opinion filed as Exhibit 5.1)
24.1		Power of attorney (included on the signature page to this Registration Statement)

 

Item 9.

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; and

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

Provided, however, That:

Paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement;

 

(2)

That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

 

(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.

 

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(b) The undersigned registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions summarized under Item 6, 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.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on June 30, 2008.

 

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bob R. Simpson, Frank G. McDonald and Kathy L. Cox, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, to sign a new registration statement to be filed pursuant to General Instruction E to Form S-8, and to sign any and all amendments (including post-effective amendments) to the new registration statement, and to file the same, with all exhibits hereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or resubstitutes, 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/ BOB R. SIMPSON				Chairman of the Board;		June 30, 2008
Bob R. Simpson				Chief Executive Officer;
				Director (Principal Executive Officer)
/s/ KEITH A. HUTTON				President; Director		June 30, 2008
Keith A. Hutton
/s/ VAUGHN O. VENNERBERG II				Senior Executive Vice President		June 30, 2008
Keith A. Hutton				and Chief of Staff; Director
/s/ WILLIAM H. ADAMS III				Director		June 30, 2008
William H. Adams III
/s/ LANE G. COLLINS				Director		June 30, 2008
Lane G. Collins

 

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/s/ PHILLIP R. KEVIL				Director		June 30, 2008
Phillip R. Kevil
/s/ JACK P. RANDALL				Director		June 30, 2008
Jack P. Randall
/s/ SCOTT G. SHERMAN				Director		June 30, 2008
Scott G. Sherman
/s/ HERBERT D. SIMONS				Director		June 30, 2008
Herbert D. Simons
/s/ LOUIS G. BALDWIN				Executive Vice President; Chief		June 30, 2008
Louis G. Baldwin				Financial Officer (Principal Financial Officer)
/s/ BENNIE G. KNIFFEN				Senior Vice President;		June 30, 2008
Bennie G. Kniffen				Controller (Principal Accounting Officer)

 

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EXHIBIT INDEX

 

Exhibit Number and Description
4.1		Restated Certificate of Incorporation of XTO Energy Inc., as restated June 21, 2006 (incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended June 30, 2006)
4.2		Amended and Restated Bylaws of XTO Energy Inc., dated November 18, 2003 (incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended March 31, 2006)
4.3		Rights Agreement dated as of August 25, 1998 between the Company and ChaseMellon Shareholder Services, as Rights Agent (incorporated by reference to Exhibit 4.1 to Form 8-A filed September 8, 1998 and Form 8-A/A filed September 9, 1998)
5.1		Opinion of Frank G. McDonald, Senior Vice President and General Counsel
15.1		Awareness letter of KPMG LLP
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Miller and Lents, Ltd.
23.3		Consent of Frank G. McDonald (included in Exhibit 5.1)
24.1		Power of attorney (included on the signature page)