sctovt
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER
SECTION 14(d)(1)
OR SECTION 13(e)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934.
PETROHAWK ENERGY
CORPORATION
(Name of Subject Company
(Issuer))
NORTH AMERICA HOLDINGS II
INC.
a wholly owned subsidiary
of
BHP BILLITON PETROLEUM (NORTH
AMERICA) INC.
a wholly owned subsidiary
of
BHP BILLITON LIMITED
(Names of Filing Persons
(Offerors))
Common Stock, par value $0.001
per share
(Title of Class of
Securities)
716495106
(CUSIP Number of Class of
Securities)
Kirsten Gray
Vice President Group Legal
BHP Billiton Limited
180 Lonsdale Street
Melbourne Victoria 3000
Australia
+61 1300 55 47 57
(Name, address and telephone
number of person authorized
to receive notices and communications on behalf of filing
persons)
with copies to:
James C. Morphy
Krishna Veeraraghavan
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
CALCULATION
OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$12,158,162,297
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$
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1,411,563
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*
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The transaction valuation is an
estimate calculated solely for purposes of determining the
amount of the filing fee. The transaction valuation is equal to
the sum of (a) an amount equal to $38.75, the per share
tender offer price, multiplied by the sum of 303,892,075, the
number of shares of common stock issued and outstanding
(including 2,227,908 shares of restricted stock), plus
(b) an amount equal to 9,866,952, the number of shares of
common stock that were reserved for issuance pursuant to stock
option and stock appreciation rights plans, multiplied by
$38.75. No shares of common stock were held by the issuer in its
treasury. The foregoing share figures have been provided by the
issuer to the offerors and are as of July 15, 2011, the
most recent practicable date.
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**
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The amount of the filing fee is
calculated in accordance with
Rule 0-11
of the Securities Exchange Act of 1934, as amended, and Fee
Advisory #5 for fiscal year 2011, issued December 22, 2010,
by multiplying the transaction valuation by 0.0001161.
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o
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Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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Amount Previously Paid:
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Not applicable
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Filing Party:
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Not applicable
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Form or Registration No.:
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Not applicable
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Date Filed:
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Not applicable
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o Check
the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions
to which the statement relates:
þ third-party
tender offer subject to
Rule 14d-1.
o issuer
tender offer subject to
Rule 13e-4.
o going-private
transaction subject to
Rule 13e-3.
o amendment
to Schedule 13D under
Rule 13d-2.
Check the following box if the filing is a final amendment
reporting the results of the tender
offer: o
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
o Rule 13e-4(i)
(Cross-Border Issuer Tender Offer).
o Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer).
This Tender Offer Statement on Schedule TO (this
“Schedule TO”) relates to the offer by North
America Holdings II Inc., a Delaware corporation
(“Purchaser”) and a wholly owned subsidiary of BHP
Billiton Petroleum (North America) Inc., a Delaware corporation
(“Parent”) and a wholly owned subsidiary of BHP
Billiton Limited, a corporation organized under the laws of
Victoria, Australia (“BHP Billiton Limited”), to
purchase all of the shares of common stock, par value $0.001 per
share (“Shares”), of Petrohawk Energy Corporation, a
Delaware corporation (“Petrohawk”), that are issued
and outstanding at a price of $38.75 per Share, net to the
seller in cash, without interest, less any applicable
withholding taxes, upon the terms and subject to the conditions
set forth in the offer to purchase, dated July 25, 2011
(the “Offer to Purchase”), a copy of which is attached
hereto as Exhibit (a)(1)(A), and the related letter of
transmittal, a copy of which is attached hereto as Exhibit
(a)(1)(B), which, together with any amendments or supplements
thereto, collectively constitute the “Offer.”
Pursuant to General Instruction F to Schedule TO, the
information set forth in the Offer to Purchase, including all
annexes thereto, is hereby expressly incorporated by reference
herein in response to Items 1 through 9 and Item 11 of
this Schedule TO, and is supplemented by the information
specifically provided in this Schedule TO.
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Item 1.
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Summary
Term Sheet.
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Regulation M-A
Item 1001
The information set forth in the Offer to Purchase under the
caption SUMMARY TERM SHEET is incorporated herein by reference.
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Item 2.
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Subject
Company Information.
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Regulation M-A
Item 1002
(a) Name and Address. The information set
forth under the caption THE TENDER OFFER —
Section 7 (“Certain Information Concerning
Petrohawk”) of the Offer to Purchase is incorporated herein
by reference. The name, address and telephone number of the
subject company’s principal executive offices are as
follows:
Petrohawk Energy Corporation
1000 Louisiana, Suite 5600
Houston, Texas 770022
(832) 204-2700
(b) Securities. The information set forth
on the cover page and INTRODUCTION to the Offer to Purchase is
incorporated herein by reference.
(c) Trading Market and Price. The
information set forth under the caption THE TENDER
OFFER — Section 6 (“Price Range of Shares;
Dividends”) of the Offer to Purchase is incorporated herein
by reference.
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Item 3.
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Identity
and Background of Filing Person.
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Regulation M-A
Item 1003
(a)-(c) Name and Address; Business and Background of
Entities; and Business and Background of Natural
Persons. The information set forth in the Offer
to Purchase under the following captions is incorporated herein
by reference:
SUMMARY
TERM SHEET
THE TENDER OFFER — Section 8 (“Certain
Information Concerning Purchaser, Parent and BHP
Billiton”), Annex A, Annex B and Annex C of
the Offer to Purchase.
1
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Item 4.
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Terms
of the Transaction.
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Regulation M-A
Item 1004
(a) Material Terms. For the purposes of
subsections (1)(i)-(viii), (x) and (xii), the information
set forth in the Offer to Purchase under the following captions
is incorporated herein by reference:
INTRODUCTION
THE TENDER OFFER — Section 1 (“Terms of the
Offer”)
THE TENDER OFFER — Section 2 (“Acceptance
for Payment and Payment for Shares”)
THE TENDER OFFER — Section 3 (“Procedures
for Accepting the Offer and Tendering Shares”)
THE TENDER OFFER — Section 4 (“Withdrawal
Rights”)
THE TENDER OFFER — Section 5 (“Certain
Material U.S. Federal Income Tax Consequences of the Offer
and the Merger”)
THE TENDER OFFER — Section 11 (“The Merger
Agreement; Other Agreements”)
THE TENDER OFFER — Section 13 (“Certain
Effects of the Offer”)
THE TENDER OFFER — Section 15 (“Conditions
to the Offer”)
THE TENDER OFFER — Section 16 (“Adjustments
to Prevent Dilution”)
Subsections (1)(ix) and (xi) are not applicable.
For the purposes of subsections (2)(i)-(v) and (vii), the
information set forth in the Offer to Purchase under the
following captions is incorporated herein by reference:
INTRODUCTION
THE TENDER OFFER — Section 1 (“Terms of the
Offer”)
THE TENDER OFFER — Section 5 (“Certain
Material U.S. Federal Income Tax Consequences of the Offer
and the Merger”)
THE TENDER OFFER — Section 10 (“Background
of the Offer; Past Contacts or Negotiations with Petrohawk”)
THE TENDER OFFER — Section 11 (“The Merger
Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of
the Offer; Plans for Petrohawk”)
THE TENDER OFFER — Section 13 (“Certain
Effects of the Offer”)
THE TENDER OFFER — Section 15 (“Conditions
to the Offer”)
THE TENDER OFFER — Section 16 (“Adjustments
to Prevent Dilution”)
Subsection (2)(vi) is not applicable.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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Regulation M-A
Item 1005
(a) Transactions. The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
THE TENDER OFFER — Section 8 (“Certain
Information Concerning Purchaser, Parent and BHP Billiton”)
THE TENDER OFFER — Section 10 (“Background
of the Offer; Past Contacts or Negotiations with Petrohawk”)
(b) Significant Corporate Events. The
information set forth in the Offer to Purchase under the
following captions is incorporated herein by reference:
THE TENDER OFFER — Section 8 (“Certain
Information Concerning Purchaser, Parent and BHP Billiton”)
THE TENDER OFFER — Section 10 (“Background
of the Offer; Past Contacts or Negotiations with Petrohawk”)
2
THE TENDER OFFER — Section 11 (“The Merger
Agreement; Other Agreements”)
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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Regulation M-A
Item 1006
(a) Purposes. The information set forth
in the Offer to Purchase under the following captions is
incorporated herein by reference:
THE TENDER OFFER — Section 12 (“Purpose of
the Offer; Plans for Petrohawk”)
(c) (1)-(7) Plans. The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFER — Section 9 (“Source and
Amount of Funds”)
THE TENDER OFFER — Section 10 (“Background
of the Offer; Past Contacts or Negotiations with Petrohawk”)
THE TENDER OFFER — Section 11 (“The Merger
Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of
the Offer; Plans for Petrohawk”)
THE TENDER OFFER — Section 13 (“Certain
Effects of the Offer”)
THE TENDER OFFER — Section 14 (“Dividends
and Distributions”)
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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Regulation M-A
Item 1007
(a) Source of Funds. The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFER — Section 9 (“Source and
Amount of Funds”)
(b) Conditions. The information set forth
in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 9 (“Source and
Amount of Funds”)
(d) Borrowed Funds. The information set
forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFER — Section 9 (“Source and
Amount of Funds”)
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Item 8.
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Interest
in Securities of the Subject Company.
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Regulation M-A
Item 1008
(a) Securities Ownership. The information
set forth under the caption THE TENDER OFFER —
Section 8 (“Certain Information Concerning Purchaser,
Parent and BHP Billiton”) of the Offer to Purchase is
incorporated herein by reference.
(b) Securities Transactions. The
information set forth under the caption THE TENDER
OFFER — Section 8 (“Certain Information
Concerning Purchaser, Parent and BHP Billiton”) of the
Offer to Purchase is incorporated herein by reference.
3
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Item 9.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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Regulation M-A
Item 1009
(a) Solicitations or Recommendations. The
information set forth in the Offer to Purchase under the
following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFER — Section 18 (“Fees and
Expenses”)
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Item 10.
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Financial
Statements.
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Regulation M-A
Item 1010
(a) Financial Information. Not Applicable.
(b) Pro Forma Information. Not Applicable.
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Item 11.
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Additional
Information.
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Regulation M-A
Item 1011
(a) Agreements, Regulatory Requirements and Legal
Proceedings. The information set forth in the
Offer to Purchase under the following captions is incorporated
herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFER — Section 10 (“Background
of the Offer; Past Contacts or Negotiations with Petrohawk”)
THE TENDER OFFER — Section 11 (“The Merger
Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of
the Offer; Plans for Petrohawk”)
THE TENDER OFFER — Section 13 (“Certain
Effects of the Offer”)
THE TENDER OFFER — Section 17 (“Certain
Legal Matters; Regulatory Approvals”)
THE TENDER OFFER — Section 19
(“Miscellaneous”)
(b) Not Applicable.
(c) Other Material Information. The
information set forth in the Offer to Purchase and the Letter of
Transmittal is incorporated herein by reference.
4
Regulation M-A
Item 1016
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Exhibit
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No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated July 25, 2011
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(a)(1)(B)
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Letter of Transmittal
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(a)(1)(C)
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Notice of Guaranteed Delivery
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees
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(a)(1)(E)
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Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees
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(a)(1)(F)
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Summary Advertisement as published in the Wall Street Journal
on July 25, 2011
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(a)(1)(G)
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Joint Press Release issued by BHP Billiton and Petrohawk dated
July 15, 2011 (incorporated by reference to
Exhibit 99.1 to the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(H)
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Presentation (incorporated by reference to Exhibit 99.2 to
the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(I)
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Transcript of Investor Briefing Teleconference (incorporated by
reference to Exhibit 99.3 to the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(J)
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Transcript of Media Briefing Teleconference (incorporated by
reference to Exhibit 99.4 to the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(K)
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Joint Press Release issued by BHP Billiton and Petrohawk dated
July 25, 2011
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(b)
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Not applicable
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(d)(1)
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Agreement and Plan of Merger, dated as of July 14, 2011, by
and among BHP Billiton Limited, Parent, Purchaser and Petrohawk
(incorporated by reference to Exhibit 99.5 to the
Schedule TO-C filed by BHP Billiton Limited, Parent and
Purchaser with the Securities and Exchange Commission on
July 15, 2011)
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(d)(2)
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Executive Retention Agreement, dated as of July 14, 2011,
between Petrohawk and Floyd Wilson (incorporated by reference to
Exhibit 10.1 to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(3)
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Form of Executive Retention Agreement between Petrohawk and the
90 Day Executive (incorporated by reference to Exhibit 10.2
to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(4)
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Form of Executive Retention Agreement between Petrohawk and the
180 Day Executive (incorporated by reference to
Exhibit 10.3 to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(5)
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Form of Executive Retention Agreement between Petrohawk and the
2014 Executives (incorporated by reference to Exhibit 10.4
to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(6)
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Form of Executive Retention Agreement between Petrohawk and the
2012 Executives (incorporated by reference to Exhibit 10.5
to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(g)
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Not applicable
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(h)
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Not applicable
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Item 13.
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Information
Required by
Schedule 13E-3.
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Not applicable.
5
SIGNATURES
After due inquiry and to the best of their knowledge and belief,
each of the undersigned certifies that the information set forth
in this statement is true, complete and correct.
NORTH AMERICA HOLDINGS II INC.
Name: David Powell
BHP BILLITON PETROLEUM (NORTH AMERICA) INC.
Name: David Powell
BHP BILLITON LIMITED
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By:
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/s/ David
A. Williamson
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Name: David A. Williamson
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Title:
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Head of Group Legal and Chief Compliance Officer
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Dated: July 25, 2011
6
EXHIBIT INDEX
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Exhibit
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No.
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Description
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(a)(1)(A)
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Offer to Purchase, dated July 25, 2011
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(a)(1)(B)
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Letter of Transmittal
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(a)(1)(C)
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Notice of Guaranteed Delivery
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees
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(a)(1)(E)
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Letter to Clients for Use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees
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(a)(1)(F)
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Summary Advertisement as published in the Wall Street Journal
on July 25, 2011
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(a)(1)(G)
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Joint Press Release issued by BHP Billiton and Petrohawk dated
July 15, 2011 (incorporated by reference to
Exhibit 99.1 to the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(H)
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Presentation (incorporated by reference to Exhibit 99.2 to
the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(I)
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Transcript of Investor Briefing Teleconference (incorporated by
reference to Exhibit 99.3 to the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(J)
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Transcript of Media Briefing Teleconference (incorporated by
reference to Exhibit 99.4 to the
Schedule TO-C
filed by BHP Billiton Limited, Parent and Purchaser with the
Securities and Exchange Commission on July 15, 2011)
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(a)(1)(K)
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Joint Press Release issued by BHP Billiton and Petrohawk dated
July 25, 2011
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(b)
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Not applicable
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(d)(1)
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Agreement and Plan of Merger, dated as of July 14, 2011, by
and among BHP Billiton Limited, Parent, Purchaser and Petrohawk
(incorporated by reference to Exhibit 99.5 to the
Schedule TO-C filed by BHP Billiton Limited, Parent and
Purchaser with the Securities and Exchange Commission on
July 15, 2011)
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(d)(2)
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Executive Retention Agreement, dated as of July 14, 2011,
between Petrohawk and Floyd Wilson (incorporated by reference to
Exhibit 10.1 to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(3)
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Form of Executive Retention Agreement between Petrohawk and the
90 Day Executive (incorporated by reference to Exhibit 10.2
to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(4)
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Form of Executive Retention Agreement between Petrohawk and the
180 Day Executive (incorporated by reference to
Exhibit 10.3 to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(5)
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Form of Executive Retention Agreement between Petrohawk and the
2014 Executives (incorporated by reference to Exhibit 10.4
to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(d)(6)
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Form of Executive Retention Agreement between Petrohawk and the
2012 Executives (incorporated by reference to Exhibit 10.5
to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission by Petrohawk
on July 20, 2011)
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(g)
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Not applicable
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(h)
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Not applicable
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