0000930661-01-502034.txt : 20011019 0000930661-01-502034.hdr.sgml : 20011019 ACCESSION NUMBER: 0000930661-01-502034 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20011017 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XTO ENERGY INC CENTRAL INDEX KEY: 0000868809 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 752347769 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-71762 FILM NUMBER: 1761073 BUSINESS ADDRESS: STREET 1: 810 HOUSTON ST STREET 2: STE 2000 CITY: FORT WORTH STATE: TX ZIP: 76102 BUSINESS PHONE: 8178702800 MAIL ADDRESS: STREET 1: 810 HOUSTON STREET STREET 2: STE 2000 CITY: FORT WORTH STATE: TX ZIP: 76102 FORMER COMPANY: FORMER CONFORMED NAME: CROSS TIMBERS OIL CO DATE OF NAME CHANGE: 19940801 S-3/A 1 ds3a.txt FORM S-3 AMENDMENT NO. 1 As filed with the Securities and Exchange Commission on October 17, 2001 Registration No. 333-71762 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- Amendment No. 1 to FORM S-3 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 Number)
810 Houston Street Fort Worth, Texas 76102 (817) 870-2800 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ----------------- Frank G. McDonald 810 Houston Street Fort Worth, Texas 76102 (817) 870-2800 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------------- Copies of all communications to: F. Richard Bernasek, Esq. Kelly, Hart & Hallman, P.C. 201 Main Street, Suite 2500 Fort Worth, Texas 76102 (817) 332-2500 ----------------- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. ----------------- If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [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 list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] CALCULATION OF REGISTRATION FEE -------------------------------------------------------------------------------- --------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount to be offering price aggregate offering Amount of Title of each class of securities to be registered registered(1) per unit(1)(2) price(1)(2)(3) registration fee(4) ------------------------------------------------------------------------------------------------------------------------- Primary Offering: Debt Securities(5)......................... Preferred Stock, par value $0.01 per share(6)(7).............................. Common Stock, par value $0.01 per share(6)(8).............................. Warrants(9)................................ Total...................................... $590,000,000 100% $590,000,000 $147,500 Secondary Offering: Common Stock, par value $0.01 per share.................................... $ 10,000,000 100% $ 10,000,000 $ 2,500 Total...................................... $600,000,000 100% $600,000,000 $150,000
-------------------------------------------------------------------------------- -------------------------------------------------------------------------------- (1)Not specified for each class of securities pursuant to General Instruction II.D. of Form S-3. (2)The proposed maximum initial offering price per unit will be determined, from time to time, by XTO Energy Inc. (3)Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). In no event will the aggregate initial offering price of all securities issued from time to time in the offering pursuant to this Registration Statement exceed $600,000,000. (4)Pursuant to Rule 457(p), the registration fee is being offset by the amount of the fee associated with $99,375,000 in unsold securities registered by XTO Energy Inc., named Cross Timbers Oil Company prior to June 1, 2001, in a prior registration statement on Form S-3, No. 333-46909, initially filed on February 25, 1998. The amount of the previously paid fee that is applied against the current registration fee is $29,315. (5)Subject to footnote (3), there are being registered hereunder an indeterminate principal amount of debt securities as may be sold from time to time by XTO Energy Inc. If any debt securities are issued at any original issue discount, then the amount registered will include such greater principal amount measured by the initial offering price thereof. (6)Subject to footnote (3), there are being registered hereunder an indeterminate number of shares of preferred stock and common stock as may be issuable upon the conversion of debt securities or preferred stock or upon the exercise of warrants, plus such additional shares as may be issued pursuant to anti-dilution adjustments resulting from stock splits, stock dividends and similar transactions. (7)Subject to footnote (3), there are being registered hereunder an indeterminate number of shares of preferred stock as may be sold from time to time by XTO Energy Inc. (8)Subject to footnote (3), there are being registered hereunder an indeterminate number of shares of common stock as may be sold from time to time by XTO Energy Inc. (9)Subject to footnote (3), there are being registered hereunder an indeterminate number of warrants as may be sold from time to time by XTO Energy Inc. ----------------- 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 which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Explanatory Note This Amendment No. 1 to Form S-3 (File No. 333-71762) is being filed because Part II information was inadvertantly left out of the original S-3 filing. 1 The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchangee Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED OCTOBER 17, 2001 PROSPECTUS $600,000,000 XTO Energy Inc. Debt Securities Preferred Stock Common Stock Warrants ----------------- This prospectus contains summaries of the general terms of these securities and the general manner in which they will be offered for sale. At the time of each offering we will provide the specific terms, manner of offering and the initial public offering price of the securities in a supplement to this prospectus. You should carefully read this prospectus and the applicable prospectus supplement before you decide to invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement. Additionally, various stockholders of XTO Energy may offer and sell shares of common stock from time to time. The total of all securities offered by us and by selling stockholders will not exceed combined initial offering prices of $600,000,000. XTO Energy Inc.'s common stock is listed on the New York Stock Exchange under the symbol "XTO." ----------------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. ----------------- This prospectus is dated October , 2001. TABLE OF CONTENTS
Page ---- About this Prospectus.............. 3 Where You Can Find More Information 3 Incorporation by Reference......... 4 Forward-Looking Statements......... 4 XTO Energy Inc..................... 5 Use of Proceeds.................... 5 Ratio of Earnings to Fixed Charges. 5 Description of Debt Securities..... 6 Description of Preferred Stock..... 14 Description of Common Stock........ 16 Description of Warrants............ 17 Plan of Distribution............... 18 Validity of Offered Securities..... 19 Experts............................ 19
2 ABOUT THIS PROSPECTUS This prospectus is part of a "shelf" registration statement that we filed with the Securities and Exchange Commission. By using a shelf registration statement, we may sell from time to time in one or more offerings any combination of the securities described in this prospectus. The total dollar amount of the securities we may sell through these offerings will not exceed $600,000,000. For further information about the securities and us you should refer to our registration statement and its exhibits. In this prospectus, we have summarized material provisions of contracts and other documents. For a complete description of the terms of these documents, you should review the full texts, which are included as exhibits to our registration statement. The registration statement can be obtained from the SEC as described below under the heading "Where You Can Find More Information." This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that contains more specific information about the terms of those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information included in our reports, proxy statements and other information filed with the Securities and Exchange Commission. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement. You should rely only on information contained or incorporated by reference in this prospectus and any applicable prospectus supplement. We have not authorized anyone to provide different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information contained in this prospectus and information that we previously filed with the SEC and incorporated by reference in this prospectus is accurate as of the date on the front cover of this prospectus. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. WHERE YOU CAN FIND MORE INFORMATION We file reports, proxy statements and other information with the Securities and Exchange Commission. Our filings are available over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at the SEC's public reference rooms at: 450 Fifth Street, N.W. Room 1024 Washington, D.C. 20549 Woolworth Building 233 Broadway New York, New York 10279 Citicorp Center 500 West Madison Street Suite 1400 Chicago, Illinois 60601 You may call the SEC at 1-800-SEC-0330 for more information on the public reference rooms and their copy charges. You may also inspect the reports and other information we file with the SEC at: New York Stock Exchange 20 Broad Street New York, New York 10005 3 INCORPORATION BY REFERENCE The SEC allows us to "incorporate by reference" information we file with them. This means that we can disclose important information to you by referring you to those documents. Any information we reference in this manner is considered part of this prospectus. Information we file with the SEC after the date of this prospectus will automatically update and, to the extent inconsistent, supersede the information contained in this prospectus. We incorporate by reference the following documents which, prior to June 1, 2001, were filed with the SEC under XTO Energy's previous name, Cross Timbers Oil Company: . Annual Report on Form 10-K for the year ended December 31, 2000; . Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 2001; . Current Reports on Form 8-K filed on January 12, 2001 (Report dated January 3, 2001), May 24, 2001 (Report dated May 15, 2001) and June 20, 2001 (Report dated June 11, 2001); . The description of XTO Energy's common stock contained in Form 8-A dated April 8, 1993, as amended by Amendment No. 1 dated September 18, 1996; and . All other documents filed by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus but before the end of the offering of the securities made by this prospectus. As a recipient of this prospectus, you may request a copy of any document we incorporate by reference, except exhibits to the documents that are not specifically incorporated by reference, at no cost to you, by writing or calling us at: XTO Energy Inc. Attn: Investor Relations 810 Houston Street Fort Worth, Texas 76102 (817) 870-2800 FORWARD-LOOKING STATEMENTS Some statements made by XTO Energy in this prospectus and incorporated by reference from documents filed with the SEC are prospective and constitute forward-looking statements. These statements encompass information that does not directly relate to any historical or current fact and include information that is based on beliefs of and assumptions made by management of XTO Energy. The statements often may be identified with words such as "anticipates," "believes," "expects," "intends," "plans," "projects," "estimates" and other similar expressions. These forward-looking statements involve known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from future results expressed or implied by the forward-looking statements. The most significant of these risks, uncertainties and other factors are discussed in sections of documents we incorporate by reference, including "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Business and Properties." We will include in any prospectus supplement a description of significant factors that could cause actual results to differ materially from those described in the forward-looking statements. 4 XTO ENERGY INC. XTO Energy is a leading United States independent energy company. We acquire, develop and explore oil and natural gas properties and produce, process, market and transport oil and natural gas in the United States. Prior to our name change on June 1, 2001, we were known as Cross Timbers Oil Company. Our growth has come primarily through acquisition of reserves, followed by aggressive development activities and the purchase of additional interests in or near our existing reserves. Our properties are concentrated in: . the East Texas Basin of Texas and Louisiana; . the Arkoma Basin of Arkansas and Oklahoma; . the San Juan Basin of northwestern New Mexico; . the Hugoton Field in Kansas and Oklahoma; . the Permian Basin of West Texas and New Mexico; . the Anadarko Basin of Oklahoma; . the Green River Basin of Wyoming; and . the Middle Ground Shoal Field in Alaska's Cook Inlet. XTO Energy is a Delaware corporation. Our principal executive offices are located at 810 Houston Street, Fort Worth, Texas 76102, and our telephone number is (817) 870-2800. USE OF PROCEEDS Unless we have indicated otherwise in the accompanying prospectus supplement, we expect to use the net proceeds we receive from any offering of these securities for our general corporate purposes, including working capital, repayment or reduction of debt, capital expenditures, acquisitions of additional oil and natural gas properties and repurchases and redemptions of securities. RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth our ratio of earnings to fixed charges for the periods indicated.
Six Months Year Ended December 31, Ended ------------------------ June 30, 1996 1997 1998 1999 2000 2001 ---- ---- ---- ---- ---- -------- Ratio of earnings to fixed charges (a) 2.6x 2.1x (b) 1.9x 2.8x 8.1x
-------- (a)For the purpose of calculating the ratio of earnings to fixed charges, earnings include income (loss) from continuing operations before income taxes and fixed charges. Fixed charges include interest expense, preferred stock dividends and an imputed interest expense on operating lease rentals (assumed as one-third of rentals). (b)Fixed charges exceeded earnings by $108.4 million. Excluding the effects of a $93.7 million pre-tax net loss on investment in equity securities and a $2 million pre-tax, non-cash impairment charge, fixed charges exceeded earnings by $19 million. 5 DESCRIPTION OF DEBT SECURITIES PROVISIONS APPLICABLE TO SENIOR DEBT SECURITIES This section summarizes the general terms of the senior debt securities we may offer from time to time. The prospectus supplement relating to any particular senior debt securities offered will describe the specific terms of the series of senior debt securities, which may be in addition to or different from the general terms summarized in this section. Senior debt securities may be issued from time to time in one or more series under an indenture between XTO Energy and a trustee that is named in a prospectus supplement. The form of the indenture has been filed with the SEC as an exhibit to the registration statement of which this prospectus is a part. The following summary of the provisions of the indenture and the senior debt securities is not meant to be a complete description of all their terms and is qualified in its entirety by reference to the indenture. General The indenture does not limit the amount of senior debt securities which may be issued under the indenture, and we may issue debt securities in one or more series in principal amounts as we authorize from time to time. Unless otherwise specified in the prospectus supplement, the senior debt securities will be unsecured and will rank equally with all our other unsecured and unsubordinated indebtedness. Each prospectus supplement will describe the following terms of any series of senior debt securities we offer: . the title; . any limit on the aggregate principal amount; . whether the senior debt securities will be issued initially in the form of a temporary global security or issued in the form of a permanent global security; the terms and conditions, if any, upon which the global security may be exchanged in whole or in part for other definitive senior debt securities; and the depositary for the global security; . the dates on which the principal and any premium is payable and the method of determination; . the interest rate or the method of its determination and the date from which interest will accrue; . the dates on which interest is payable and the regular record dates for the interest payment dates; . the place(s) where principal and any premium and interest is payable and the senior debt securities may be presented for registration of transfer; . whether the senior debt securities are redeemable at our option and the redemption prices, dates and other redemption terms and conditions; . whether we are obligated to redeem or purchase the senior debt securities according to any sinking fund or similar provision or at the holder's option and the prices, periods and terms and conditions of that redemption or purchase obligation; . if other than denominations of $1,000 and any integral multiple of $1,000, the denominations in which the senior debt securities will be issuable; . if other than United States Dollars, the currency or currencies of payment of principal and any premium and interest; . if payments are based on an index, the manner in which the amount of principal payments and any premium and interest is to be determined; 6 . if other than the full principal amount, the portion of the principal amount payable if the maturity of the senior debt securities is accelerated; . any additional covenants and restrictions of XTO Energy; . whether the senior debt securities will be subject to defeasance as described below under "Defeasance"; . any deletions or modifications to the events of default described below; . if applicable, the terms of any right to convert or exchange the senior debt securities into common stock, preferred stock or other securities; . any authenticating or paying agents, registrars, conversion agents or any other agents for the senior debt securities; and . any other terms. Senior debt securities may be issued and sold at a substantial discount below their stated principal amount. If applicable, the prospectus supplement will describe any special United States federal income tax consequences and other considerations which apply to senior debt securities issued at a discount or to any securities denominated or payable in a foreign currency or currency unit. Restrictive Covenants The indenture contains covenants and restrictions that will be applicable, unless waived or amended, so long as any senior debt securities are outstanding. A prospectus supplement for any series of senior debt securities may describe additional covenants and restrictions applicable to that series. For a complete description of the covenants you should refer to the indenture and any applicable supplemental indenture. Limitation on Liens. We and our subsidiaries, other than a royalty trust or any subsidiary designated by our board of directors as an unrestricted subsidiary, may not at any time create, incur, assume or permit to exist any liens on any of our property, assets, income or profits, other than specified liens permitted by the indenture, unless: . in the case of a lien securing subordinated indebtedness, the senior debt securities are secured by a lien on the same property that is senior in priority to the lien for the subordinated indebtedness; or . in the case of any other lien, the senior debt securities are secured equally and ratably with the obligation secured by the lien. Conversion Rights The senior debt securities of any series may be convertible into shares of our common stock or our preferred stock on the terms and conditions described in an applicable prospectus supplement. Events of Default, Notice and Waiver Unless otherwise provided in the applicable prospectus supplement, the following are events of default under the indenture for the senior debt securities: . failure to pay principal or any premium when due; . failure, continuing for 30 days, to pay interest when due; . failure, continuing for 30 days, to deposit any sinking fund payment when due; . failure to comply with the merger, consolidation or sale of assets provisions of the indenture; 7 . failure to perform any other covenant made by us in the indenture, other than a covenant included in the indenture for the benefit of another series of senior debt securities, that continues for 30 days after written notice as provided in the indenture; . payment default, or other default resulting in acceleration of other indebtedness for money borrowed in an aggregate principal amount greater than $10,000,000, excluding non-recourse debt; . occurrence of an ERISA benefit plan liability or uninsured judgment greater than $10,000,000; . certain events of bankruptcy, insolvency or reorganization; and . any other event of default as may be specified for the senior debt securities of an applicable series. If an event of default on any outstanding series of senior debt securities occurs and is continuing, either the trustee or the holders of at least 25% in principal amount of the outstanding senior debt securities of that series, may declare the principal amount of all the senior debt securities of that series, to be due and payable immediately. At any time after a declaration of acceleration has been made, but before a judgment has been obtained, the holders of a majority in principal amount of the outstanding senior debt securities of that series may, under certain circumstances, rescind that acceleration. Depending on the terms of our other indebtedness outstanding from time to time, an event of default under senior debt securities may give rise to cross defaults on our other indebtedness. Within 60 days after the occurrence of a default under any series of senior debt securities, the trustee is obligated to give the holders of that series notice of all uncured and unwaived defaults known to it. Except in the case of a payment default, the trustee need not provide a notice of default if directors of XTO Energy or the trustee in good faith determine that withholding the notice is in the interest of those holders. In the case of a payment default under other indebtedness for money borrowed exceeding $10,000,000, however, notice will not be given until at least 60 days after the occurrence of that payment default. The trustee is required, in case of an event of default, to exercise its rights and powers under the indenture and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in conducting the person's own affairs. The holders of a majority in principal amount of the outstanding senior debt securities of any series have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust power conferred on the trustee. Subject to the duty of the trustee to act with the requisite standard of care, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of the senior debt securities unless they have offered to the trustee reasonable security or indemnity. No holder of a senior debt security of any series will have any right to institute any proceeding, except a suit to enforce payment of interest and principal then due, for any other remedy or otherwise under the indenture unless: . the holder has previously given the trustee written notice of a continuing event of default; . the holders of at least 25% in principal amount of the applicable series of senior debt securities have made written request to the trustee to institute the proceeding and have offered the trustee reasonable indemnity in its compliance with the request; . the trustee failed to institute the requested proceeding for 60 days after receipt of the written request; and . the trustee did not receive during that 60-day period inconsistent directions from holders of a majority in principal amount of the applicable series. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive any past default except a default in the payment of 8 principal of or premium or interest on any senior debt security or a provision which cannot be modified or amended without the consent of the holder of each outstanding senior debt security affected. The holders of a majority in principal amount of the outstanding senior debt securities of any series may on behalf of the holders of all senior debt securities of that series waive compliance by us with certain restrictive provisions of the indenture applicable to securities of that series. Each quarter we are required to furnish to the trustee a statement as to the performance by us of our obligations under the indenture and as to any default in that performance. Modification We and the trustee may make modifications and amendments to the indenture with the consent of the holders of a majority in principal amount of the outstanding senior debt securities of each series affected by the modification or amendment. However, none of the following modifications or amendments may be made without the consent of the holder of each outstanding senior debt security affected: . change the stated maturity date of the principal of or any installment of interest on any senior debt security; . reduce the principal amount of or any premium or interest on any senior debt security; . change the place or currency of payment on any senior debt security; . impair the right to institute suit for the enforcement of any payment on any senior debt security; or . reduce the percentage in principal amount of outstanding senior debt securities required to consent to a modification or amendment of the indenture or for waiver of compliance with certain provisions of the indenture or for waiver of certain defaults. We and the trustee may, without the consent of any holders of senior debt securities, modify the indenture to, among other things: . add additional covenants; . add additional events of default; . secure the senior debt securities; . provide for uncertificated senior debt securities in addition to or in place of certificated securities; and . cure ambiguities or inconsistencies in the indenture so long as the modification does not adversely affect the interests of the holders of outstanding senior debt securities in any material respect. Consolidation, Merger and Sale of Assets Without the consent of any holders of outstanding senior debt securities, we may consolidate with or merge into another entity, or convey, transfer or lease substantially all of our assets to any entity if: . either we are the surviving person in the merger or the other person who survives the merger or consolidation or who acquires or leases substantially all of our assets is a corporation organized under the laws of any United States jurisdiction and assumes by supplemental indenture our obligations under the senior debt securities and the indenture; . after giving effect to the transaction, no event of default, or event that could become an event of default, has occurred and is continuing; and . certain financial and other conditions are met. When a successor entity complies with these provisions, we will (except in the case of a lease) be relieved of our obligations under the indenture and the senior debt securities. 9 Defeasance Unless otherwise provided in the applicable prospectus supplement, if we deposit with the trustee funds or government obligations sufficient to make payments on any series of senior debt securities on the dates those payments are due and satisfy other specified conditions, then, at our option, either of the following will occur: . we will be discharged from our obligations under the senior debt securities of the series except for certain obligations to register the transfer or exchange of the debt securities, replace stolen, lost or mutilated debt securities, maintain paying agencies and hold moneys for payment in trust; or . we will be released from our obligations to comply with certain covenants relating to the series. We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the applicable series of senior debt securities to recognize income, gain or loss for federal income tax purposes. If we elect the first alternative above, that opinion of counsel must be based upon a ruling from the IRS or a change in law. In the event we deposit money or government obligations to defease any subordinated debt securities, the money or government obligations so deposited will not be subject to the subordination provision of the indenture for those securities. In that instance, the subordinated debt securities will not be subordinated in right of payment to the holders of senior indebtedness to the extent of the money or government obligations deposited for the defeasance. Form, Exchange, Registration and Transfer Senior debt securities will be issuable in definitive, registered form. They may also be issued in temporary or permanent global form. See "-- Global Securities" below. Senior debt securities of any series will be exchangeable for other senior debt securities of the same series and of the same aggregate principal amount in different authorized denominations. Senior debt securities may be presented for exchange as provided above, and may be presented for registration of transfer with the form of transfer duly executed, at the office of the security registrar or at the office of any transfer agent designated by us and referred to in an applicable prospectus supplement. The exchange or transfer will be made without service charge upon payment of any taxes and other governmental charges as described in the indenture, and upon the satisfaction of the security registrar or transfer agent, as the case may be, with the documents of title and identity of the person making the request. The indenture provides that the trustee will be appointed as security registrar. We may at any time rescind the designation of any transfer agent or approve a change in the location through which any transfer agent acts. In the event of any partial redemption of any series of senior debt securities, we will not be required to: . issue, register the transfer of or exchange debt securities of the series during a period beginning at the opening of business 15 days prior to the mailing of a notice of the redemption and ending on the close of business on the day of mailing the notice; or . register the transfer of or exchange any senior debt security called for redemption, except the unredeemed portion of the security being redeemed in part. Global Securities We may issue senior debt securities of a series in whole or in part in the form of one or more fully registered global certificates that we will deposit with a depositary identified in a prospectus supplement. Unless and 10 until it is exchanged in whole or in part for the individual senior debt securities it represents, a global security may not be transferred except as a whole: . by the applicable depositary to a nominee of the depositary; . by any nominee of the depositary to the depositary or another nominee; or . by the depositary or any nominee to a successor depositary or any nominee of the successor. We will describe the specific terms of the depository arrangement for a series of senior debt securities in the applicable prospectus supplement. We anticipate that the following provisions will generally apply to depository arrangements. Upon issuance of a global security representing offered securities of a series, the depositary or its nominee will credit on its book-entry registration and transfer system the respective principal amounts of the individual senior debt securities represented by that global security to the accounts of participants that have accounts with the depositary. Those accounts will be designated by the dealers, underwriters or agents selling the securities or by us if they are sold directly by us. Ownership of beneficial interests in a global security will be limited to participants or persons that hold interests through participants. Ownership by participants of beneficial interests in the global security will be shown on, and the transfer of those ownership interests will be effected only through, records maintained by the depositary or its nominee. Ownership of beneficial interests by persons other than participants will be shown on the records of participants. The laws of some states require that certain purchasers of securities take physical delivery of those securities in definitive form. These limits and laws may impair your ability to transfer beneficial interests in a global security. As long as the depositary or its nominee is the registered owner of a global security, the depositary or its nominee will be considered, for all purposes under the indenture, the sole owner and holder of the related senior debt securities. Except as described below, owners of beneficial interests in a global security: . do not have the securities registered in their names; . do not receive physical delivery of the securities in definitive form; and . are not considered the owners or holders under the indenture relating to those securities. We will make payments relating to senior debt securities represented by a global security to the depositary or its nominee as the registered owner of the global security representing those securities. We expect that the depositary or its nominee, upon receipt of any payments relating to a global security, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests as shown on the records of the depositary or its nominee. We also expect that payments by participants to owners of beneficial interests in a global security held through them will be governed by standing instructions and customary practices, as is the case with securities held for customer accounts in "street name," and will be the responsibility of the participants. We will not have any responsibility or liability for: . any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global security; . maintaining, supervising or reviewing any records relating to any beneficial ownership interests in a global security; . any other aspect of the relationship between the depositary and its participants; or . the relationship between the participants and the owners of beneficial interests in a global security. 11 All securities of a series represented by a global security will be exchanged for certificated securities in definitive form if: . the depositary notifies us that it is unwilling or unable to continue as depositary for the global security and we fail to appoint a successor depositary within 90 days; . we decide at any time not to have the securities of that series represented by a global security and so notify the trustee; or . an event of default has occurred and is continuing for the senior debt securities of that series and the depositary requests that definitive securities be issued. If there is such an exchange, we will issue certificated senior debt securities in authorized denominations and registered in the names directed by the depositary. Payment and Paying Agents Unless otherwise indicated in a prospectus supplement, payment of principal of and premium and interest on senior debt securities of a series will be made in the designated currency or currency unit at the office of the paying agent or paying agents as we may designate from time to time. At our option, payment of any interest may instead be made by check mailed to the address of the registered holder appearing in the security register. Unless otherwise indicated in a prospectus supplement, payment of any installment of interest will be made to the registered holder at the close of business on the applicable regular record date. Unless otherwise indicated in a prospectus supplement, the corporate trust office of the trustee in the Borough of Manhattan, in New York City will be designated as our paying agent for payments relating to senior debt securities. Any other paying agents in the United States initially designated by us for senior debt securities will be named in an 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 designated place of payment for each series of senior debt securities. All moneys we pay to a paying agent for the payment of principal of and any premium or interest on any senior debt security which remain unclaimed two years after becoming due and payable will, subject to applicable escheat laws, be repaid to us, and the holder of that debt security will look only to us for payment. Notices Notices to holders of senior debt securities will be given by mail to the addresses appearing in the security register. The Trustee The applicable prospectus supplement will specify the trustee under the indenture. The indenture contains limitations on the right of the trustee, if it is one of our creditors, to obtain payment of claims or to realize on property received on any of those claims, as security or otherwise. The trustee may engage in other transactions, except that, if it acquires any conflicting interest, it must eliminate that conflict or resign. Governing Law The indenture and the senior debt securities are governed by and construed under New York law except to the extent that the Trust Indenture Act is applicable. 12 PROVISIONS APPLICABLE TO SUBORDINATED DEBT SECURITIES This section summarizes the general terms of the subordinated debt securities we may offer from time to time. The prospectus supplement relating to any particular subordinated debt securities offered will describe the specific terms of the series of subordinated debt securities, which may be in addition to or different from the general terms summarized in this section. Subordinated debt securities may be issued from time to time in one or more series under an indenture between XTO Energy and a trustee that is named in a prospectus supplement. The form of the indenture has been filed with the SEC as an exhibit to the registration statement of which this prospectus is a part. The following summary of the provisions of the indenture and the subordinated debt securities is not meant to be a complete description of all their terms and is qualified in its entirety by reference to the indenture. General The subordinated debt securities will be unsecured and will rank junior and be subordinate in right of payment to all of our senior indebtedness. The indenture does not limit the amount of subordinated debt securities that may be issued under the indenture, and we may issue subordinated debt securities in one or more series in principal amounts as we authorize from time to time. Each prospectus supplement will describe the terms of any series of subordinated debt securities that we offer. The terms and provisions of the subordinated debt securities will be substantially similar to the terms and provisions of the senior debt securities summarized above except as described in this section. See "--Provisions Applicable to Senior Debt Securities" for a summary of those provisions. The subordinated debt securities will not be subject to any sinking fund provision. Subordination The payment of the principal of and premium, if any, and interest on the subordinated debt securities is subordinated in right of payment to the prior payment in full of all senior indebtedness, whether now outstanding or incurred in the future. The indenture does not limit the amount of senior indebtedness that we may incur in the future. Upon any payment or distribution of our assets to creditors upon any liquidation, dissolution, winding up, assignment for the benefit of creditors or marshaling of assets and liabilities or any bankruptcy, insolvency, receivership, liquidation, reorganization or similar proceedings, the holders of all senior indebtedness will first be entitled to receive any payment in full of, or satisfactory provision for, all amounts due before the holders of subordinated debt securities will be entitled to receive any payments. In the event of a default in the payment of principal of, and premium, if any, or interest on, any senior indebtedness, no payment may be made on account of the subordinated debt securities until the default has been cured or the senior indebtedness has been paid in full. During the period of a default, other than a payment default, on any senior indebtedness that permits the acceleration of maturity, upon notice from the trustee or holders of that senior indebtedness, no payment may be made on account of the subordinated debt securities until the earlier of 179 days following that notice, the curing of the default or rescission of the notice. Our failure to make any payment when due on the subordinated debt securities after any applicable grace period, including because of a default on senior indebtedness, will constitute a default on the subordinated debt securities and entitle acceleration of their maturity. The subordination rights of holders of senior indebtedness will not be prejudiced or impaired by any acts or failures to act by us or by any holder of senior indebtedness. In certain circumstances the holders of subordinated debt securities will be subrogated to some of the rights of the holders of senior indebtedness upon payment in full of all senior indebtedness. 13 By reason of subordination, in the event of our insolvency, the holders of senior indebtedness, as well as our other creditors who are holders of indebtedness that is not subordinated to the senior indebtedness, may recover more, ratably, than the holders of the subordinated debt securities. Holders of senior subordinated debt securities may recover more, ratably, than holders of subordinated debt securities. The term "senior indebtedness" means all indebtedness described below, including principal, premium, if any, and interest, including interest accruing after the filing of a petition in bankruptcy, whether incurred before, on or after the date of issuance of any subordinated debt securities, unless that indebtedness by its terms provides that it is subordinate in right of payment to or equal with the subordinated debt securities. Senior indebtedness excludes, however, any tax liability and any of our indebtedness to our subsidiaries or affiliates or their subsidiaries. The term "indebtedness" means all obligations: . of ours for borrowed money or the deferred purchase price of property or services, excluding accounts payable or other obligations arising in the ordinary course of business, but including letters of credit, bankers' acceptances or other similar credit transactions; . of ours evidenced by bonds, notes, debentures or similar instruments; . of ours under capitalized leases; . of other persons of the types referred to above as well as all dividends of other persons, in either case the payment of which is secured by any lien on our assets; . under our guarantees of these types of indebtedness; . of ours under interest rate swap obligations and foreign currency hedges; and . described in the prospectus supplement relating to the series of subordinated debt securities. If this prospectus is being delivered in connection with a series of subordinated debt securities, the accompanying prospectus supplement will state the approximate aggregate principal amount of senior indebtedness outstanding as of a recent date. The terms of our existing outstanding 91/4% Senior Subordinated Notes due 2007 and 83/4% Senior Subordinated Notes due 2009 prohibit us from issuing subordinated debt securities ranking senior in right of payment to the 91/4% and 83/4% Notes. DESCRIPTION OF PREFERRED STOCK This section summarizes the general terms of the preferred stock that we may offer. The prospectus supplement relating to a particular series of preferred stock offered will describe the specific terms of that series, which may be in addition to or different from the general terms summarized in this section. The summary in this section and in any prospectus supplement does not describe every aspect of the preferred stock and is subject to and qualified in its entirety by reference to all the provisions of our restated certificate of incorporation, the certificate of designation relating to the applicable series of preferred stock and the Delaware General Corporation Law. The certificate of designation will be filed as an exhibit to or incorporated by reference in the registration statement. Our restated certificate of incorporation authorizes us to issue 25,000,000 shares of preferred stock, par value of $.01 per share. There were no shares of preferred stock outstanding on October 16, 2001. We may issue preferred stock from time to time in one or more classes or series with such rights and preferences, including voting, dividend and conversion rights and other terms, as our board of directors may establish without any further authorization by the stockholders. 14 The preferred stock that we may offer will be issued in one or more classes or series. The prospectus supplement relating to the particular class or series of preferred stock will describe the specific terms of the class or series, including: . the designation and stated value, if any, per share and the number of shares offered; . the amount of liquidation preference per share and any priority relative to any other class or series of preferred stock or common stock; . the initial public offering price at which shares will be issued; . the dividend rate (or method of calculation), the dates on which dividends will be payable and the dates from which dividends will commence to cumulate, if any; . any redemption or sinking fund provisions; . any conversion or exchange rights; . any voting rights; and . any other rights, preferences, privileges, limitations and restrictions. General The holders of preferred stock will have no preemptive rights. Upon issuance against full payment of the purchase price, the preferred stock will be fully paid and non-assessable. Unless otherwise provided in the prospectus supplement relating to the particular class or series, the preferred stock will have the rights described below. Dividends The preferred stock will be preferred over any class or series of common stock as to payment of dividends. Before we can declare, pay or set apart for payment any dividends or distributions, other than dividends or distributions payable in common stock, on the common stock, we will pay dividends to the holders of shares of each class and series of preferred stock entitled to receive dividends when, as and if declared by our board of directors. We will pay those dividends either in cash, shares of common stock or preferred stock or otherwise, at the rate and on the date or dates stated in the prospectus supplement. For each class or series of preferred stock, the dividends on each share of the class or series will be cumulative from the date of issue of the share unless some other date is stated in the prospectus supplement relating to the series. Accruals of dividends will not bear interest. Liquidation The preferred stock will be preferred over the common stock as to asset distributions so that the holders of each class and series of preferred stock will be entitled to be paid the amount stated in the applicable prospectus supplement upon our voluntary or involuntary liquidation, dissolution or winding up and before any distribution is made to the holders of common stock. If upon any liquidation, dissolution or winding up, our net assets are insufficient to permit the payment in full of the respective amounts to which the holders of all outstanding preferred stock are entitled, unless otherwise described in a prospectus supplement, our entire remaining net assets will be distributed among the holders of each class and series of preferred stock in amounts proportional to the full amounts to which the holders of each class and series are entitled. 15 Redemption or Conversion The shares of any class or series of preferred stock will be redeemable, or will be convertible into shares of common stock or any other class or series of preferred stock, to the extent described in the prospectus supplement relating to the series. DESCRIPTION OF COMMON STOCK We are authorized to issue up to 250,000,000 shares of common stock, par value $.01 per share. As of October 16, 2001, there were 131,770,335 shares of common stock issued (including 8,176,434 shares held in our treasury). Our restated certificate of incorporation permits us to issue common stock divided into classes and series, and to designate for each class or series the rights, preferences and restrictions of that class or series, including voting rights and dividend and liquidation preferences. We do not intend to issue common stock in any class or series other than the currently issued common stock. This section summarizes the general terms of our currently issued common stock. The prospectus supplement relating to the common stock offered will state the number of shares offered, the initial offering price and market price, dividend information and any other relevant information. The summary in this section and in the prospectus supplement does not describe every aspect of the common stock and is subject to and qualified in its entirety by reference to all the provisions of our restated certificate of incorporation and bylaws and the Delaware General Corporation Law. General All shares of common stock have equal rights to participate in dividends and, in the event of liquidation, assets available for distribution to stockholders, subject to any preference of the preferred stock. Each share of common stock entitles the holder to one vote on all matters submitted to a vote of stockholders. Voting rights for the election of directors are non-cumulative. Shares of common stock carry no conversion, preemptive or subscription rights and are not subject to redemption. All outstanding shares of common stock are, and any shares of common stock issued upon conversion of any convertible securities will be, fully paid and non-assessable. We may pay dividends on the common stock when, as and if declared by our board of directors. Dividends may be declared in the discretion of the board of directors from funds legally available, subject to restrictions under agreements related to our indebtedness. The outstanding shares of common stock are listed on the New York Stock Exchange and trade under the symbol "XTO." The transfer agent, registrar and dividend disbursement agent for the common stock is Mellon Investor Services LLC. Preferred Share Purchase Rights Each share of common stock will be issued with one preferred share purchase right until the earliest of the time the rights become exercisable, expire or are redeemed. In general, after the rights become exercisable, each right entitles the holder to purchase at a specified exercise price one one-thousandth of a share of our Series A Junior Participating Preferred Stock. Initially the rights will not be exercisable and will trade with, and will not be separable from, the common stock. The rights will only become exercisable after the earlier to occur of (a) 10 days following a public announcement that a person or group of affiliated persons has acquired beneficial ownership of 15% or more of the outstanding common stock or (b) 10 business days (or a later date as determined by our board of directors) following the commencement of, or announcement of an intention to make, a tender offer or exchange offer which would result in beneficial ownership by a person or group of 15% or more 16 of the outstanding common stock. If XTO Energy were acquired in a merger or other business combination transaction or 50% or more of our consolidated assets or earning power were sold, proper provision would be made so that each right would entitle its holder to purchase, upon the exercise of the right at the then current exercise price, that number of shares of common stock of the acquiring company having a market value of twice the exercise price of the right. If any person or group were to acquire beneficial ownership of 15% or more of the outstanding common stock, each right would entitle its holder, other than the acquiring person whose rights would become void, to purchase, upon the exercise of the right at the then current exercise price, that number of shares of common stock having a market value on the date of that 15% acquisition of twice the exercise price of the right. Our board of directors may at its option, at any time after a 15% acquisition but prior to the acquisition of more than 50% of the outstanding common stock, exchange all or part of the then outstanding and exercisable rights, other than those held by the acquiring person whose rights would become void, for common stock or preferred stock. The exchange rate per right would be one share of common stock or an amount of preferred stock having a market value equal to one share of common stock. The board of directors may, at any time prior to a 15% acquisition, redeem all, but not part, of the rights at a redemption price of $.01 per right, effective at the time, on the basis and with whatever conditions the board of directors may establish. Until the rights are no longer redeemable, we may amend the rights in any manner other than to change the redemption price. After the rights are no longer redeemable, we may amend the rights in any manner that does not adversely affect the holders of the rights. The rights will expire on August 25, 2008. The foregoing summary of the rights is not complete and is subject to the more complete description in our Registration Statement on Form 8-A, filed with the Securities and Exchange Commission on September 8, 1998, and to the Rights Agreement, dated as of August 25, 1998, between Cross Timbers Oil Company (XTO Energy's prior name) and ChaseMellon Shareholders Services, LLC, predecessor to Mellon Investor Services LLC, as rights agent. Other Matters Our bylaws provide for a classified board of directors divided into three classes with each director serving a three-year term. The classified board provision and the preferred share purchase rights described above may have the effect of discouraging take-over attempts and could delay or prevent a change of control of XTO Energy. DESCRIPTION OF WARRANTS The following is a description of the general terms and provisions of the warrants. The particular terms of any series of warrants will be described in a prospectus supplement. If so indicated in a prospectus supplement, the terms of that series may differ from the terms summarized below. General We may issue warrants to purchase debt securities, preferred stock or common stock. Warrants may be issued independently or together with any debt securities, preferred stock or common stock and may be attached to or separate from the debt securities, preferred stock or common stock. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. We currently have outstanding warrants to acquire 2,141,552 shares of common stock at a price of $6.70 per share. These warrants were originally issued on December 1, 1997, as part of the consideration we paid for acquiring producing properties. 17 You should review the applicable prospectus supplement for the specific terms of any warrants that may be offered including the following: . the title of the warrants; . the aggregate number of warrants; . the price or prices at which the warrants will be issued; . the designation, aggregate principal amount, denominations and terms of the debt securities purchasable upon exercise of a warrant to purchase debt securities and the price at which the debt securities may be purchased upon exercise; . the designation, stated value, terms (including liquidation, dividend, conversion and voting rights), number of shares and purchase price per share of the class or series of preferred stock purchasable upon the exercise of warrants to purchase shares of preferred stock; . the number of shares and the purchase price per share of common stock purchasable upon the exercise of warrants to purchase shares of common stock; . if applicable, the date on and after which the warrants and the related securities will be separately transferable; . the date on which the right to exercise the warrants will commence and the date on which the right will expire; . if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; . information regarding book-entry procedures, if any; . if applicable, a discussion of material United States federal income tax considerations; and . any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. PLAN OF DISTRIBUTION We may sell debt securities, common stock, preferred stock and warrants in one or more of the following ways from time to time: . to underwriters for resale to the public or to institutional investors; . directly to institutional investors; or . through agents to the public or to institutional investors. The offered securities may be distributed periodically 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 the prevailing market prices; or . negotiated prices. In connection with the sale of securities, underwriters or agents may receive compensation from us in the form of underwriting discounts or commissions. They may also receive commissions from purchasers of the securities for whom they may act as agent. Underwriters or agents may sell securities to or through dealers. Those dealers may receive compensation in the form of discounts, concessions, or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. 18 The prospectus supplement will describe the terms of the offering of the securities, including: . the purchase price of the securities and the sales proceeds to us; . the name or names of any underwriters or agents; . any underwriting discounts or agency fees and other items constituting underwriters' or agents' compensation; . any discounts or concessions allowed or re-allowed or paid to dealers; and . any securities exchange on which the securities may be listed. If one or more underwriters are used in the offer and sale of securities, we will execute an underwriting agreement with the underwriters at the time of sale of the securities to the underwriters, and we will provide in the prospectus supplement the names of the underwriters and the principal terms of the underwriting agreement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act of 1933. Underwriters and agents may be entitled under agreements entered into with us to indemnification and contribution by us for certain civil liabilities, including liabilities under the Securities Act. Underwriters and agents and/or their affiliates may engage in transactions with or perform services for us and our affiliates in the ordinary course of business. Except for our common stock, which is listed on the New York Stock Exchange, each offering of securities will be a new issue of securities and will have no established trading market. Any common stock sold will be listed on the New York Stock Exchange subject to official notice of issuance. Other securities may or may not be listed on a national securities exchange. Any underwriters to whom securities are sold by us for public offering and sale may make a market in the securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. VALIDITY OF OFFERED SECURITIES The validity of the offered securities will be passed upon for us by Kelly, Hart & Hallman, P.C., Fort Worth, Texas, and for the underwriters or agents, if any, by a firm named in the prospectus supplement relating to the particular security. EXPERTS The audited financial statements incorporated by reference in this prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report relating to those financial statements, and are incorporated by reference in this prospectus in reliance upon their authority as experts in accounting and auditing. Any future audited financial statements and the reports of our independent public accountants with respect to those audited financial statements hereafter incorporated by reference in this prospectus and the registration statement will be incorporated in reliance upon the authority of that firm as experts in giving those reports to the extent it has audited those financial statements and consented to the use of their reports with respect to those audited financial statements. Certain information incorporated by reference in this prospectus regarding estimated quantities of oil and natural gas reserves owned by us, the future net revenues from those reserves and their present value is based on estimates of the reserves and present values prepared by or derived from estimates prepared by Miller and Lents, 19 Ltd., independent petroleum engineers, and all such information has been so incorporated in reliance on the authority of such firm as experts regarding the matters contained in their report. Future estimates of oil and natural gas reserves and related information hereafter incorporated by reference in this prospectus and the registration statement will be incorporated in reliance upon the reports of the firm examining such oil and gas reserves and related information and upon the authority of that firm as experts regarding the matters contained in their reports, to the extent the firm has consented to the use of their reports. 20 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution Set forth below is an estimate of the approximate amount of the fees and expenses expected to be incurred by XTO Energy in connection with offerings described in this Registration Statement. Registration Fee............................. $150,000 Trustee's and its Counsel's Fees and Expenses 50,000 Printing and Engraving....................... 100,000 Accountants' Fees and Expenses............... 50,000 Rating Agency Fees........................... 90,000 Legal Fees and Expenses...................... 100,000 Engineers' Fees and Expenses................. 10,000 Miscellaneous................................ 150,000 -------- $700,000 ========
Item 15. Indemnification of Directors and Officers. XTO Energy 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 adjudged 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 Restated Certificate of Incorporation of XTO Energy permits indemnification of directors and officers to the fullest extent permitted by Section 145 of the DGCL. Reference is made to the Restated Certificate of Incorporation of XTO Energy. Additionally, XTO Energy has acquired directors and officers insurance in the amount of $45,000,000, 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 (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. Article Ten of XTO Energy's Restated Certificate of Incorporation contains such a provision. The above discussion of XTO Energy's Restated Certificate of Incorporation 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 and statutes. II-1 Item 16. Exhibits
Exhibit Number Description of Exhibits 4.1 Restated Certificate of Incorporation of XTO Energy as restated on August 22, 2001 4.2 Bylaws of XTO Energy, incorporated by reference from Exhibit 3.4 to Cross Timbers Oil Company's (XTO Energy's prior name) Registration Statement on Form S-1, File No. 33-59820 4.3* Form of Indenture for Senior Debt Securities 4.4* Form of Indenture for Subordinated Debt Securities 4.5* Form of Certificate of Designations of Preferred Stock 4.6* Form of Debt Warrant Agreement (including form of Debt Warrant Certificate) 4.7* Form of Preferred Stock Warrant Agreement (including form of Preferred Stock Warrant Certificate) 4.8* Form of Common Stock Warrant Agreement (including form of Common Stock Warrant Certificate) 5.1* Opinion of Kelly, Hart & Hallman, P.C. 12.1 Computation of Ratio of Earnings to Fixed Charges, incorporated by reference from Exhibit 12.1 to Cross Timbers Oil Company's (XTO Energy's prior name) Annual Report on Form 10-K for the year ended December 31, 2000 15.1 Awareness Letter of Arthur Andersen LLP 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Miller and Lents, Ltd. 23.3* Consent of Kelly, Hart & Hallman, P.C. (set forth in their opinion filed as Exhibit 5.1) 24.1 Power of Attorney (set forth on the signature page of this Registration Statement) 25.1* Statement of Eligibility of Trustee on Form T-1 with respect to Debt Securities
-------- * To be filed by amendment Item 17. Undertakings The registrant hereby undertakes that, for the 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 Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned registrant hereby undertakes: (a) 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 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 a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and II-2 (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)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, that are incorporated by reference in the registration statement; (b) 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 (c) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. 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. 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 Trust Indenture Act. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Fort Worth, Texas on the 17th day of October, 2001. XTO ENERGY INC. By: /s/ Louis G. Baldwin Louis G. Baldwin Executive Vice President and Chief Financial Officer POWER OF ATTORNEY Pursuant to the Securities Act of 1933, this Amendment to Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes and appoints Bob R. Simpson, Louis G. Baldwin and Bennie G. Kniffen, and each of them, any one of whom may act without the joinder of the other, with full power of substitution, as his attorney-in-fact to sign on his behalf individually and in the capacity stated below, all amendments and post-effective amendments to the Registration Statement, and any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and all amendments and post-effective amendments thereto, as such attorney-in-fact may deem necessary or appropriate. Signature Title Dated --------- ----- ----- /s/ Bob R. Simpson October 17, 2001 ----------------------- Director and Chairman of the Board Bob R. Simpson (Principal Executive Officer) /s/ Steffen E. Palko Director, Vice Chairman of the October 17, 2001 ----------------------- Board and President (Principal Steffen E. Palko Executive Officer) /s/ W. H. Adams III Director October 17, 2001 ----------------------- W. H. Adams III /s/ J. Luther King, Jr. Director October 17, 2001 ----------------------- J. Luther King, Jr. /s/ Jack P. Randall Director October 17, 2001 ----------------------- Jack P. Randall /s/ Scott G. Sherman Director October 17, 2001 ----------------------- Scott G. Sherman /s/ Herbert D. Simons Director October 17, 2001 ----------------------- Herbert D. Simons /s/ Louis G. Baldwin Executive Vice President and Chief October 17, 2001 ----------------------- Financial Officer (Principal Louis G. Baldwin Financial Officer) /s/ Bennie G. Kniffen October 17, 2001 ----------------------- Senior Vice President and Controller Bennie G. Kniffen (Principal Accounting Officer) II-4 EX-4.1 3 dex41.txt RESTATED CERTIFICATE OF INCORPORATION Exhibit 4.1 XTO ENERGY INC. RESTATED CERTIFICATE OF INCORPORATION XTO Energy Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows: 1. The name of the Corporation is XTO Energy Inc. XTO Energy Inc. was originally incorporated under the name Cross Timbers Oil Company, and the original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on October 9, 1990. 2. Pursuant to Section 245 of the General Corporation Law of the State of Delaware, this Restated Certificate of Incorporation only restates and integrates and does not further amend the provisions of the Certificate of Incorporation of this Corporation, as theretofore amended or supplemented, and there is no discrepancy between those provisions and the provisions of this Restated Certificate of Incorporation. This Restated Certificate of Incorporation has been duly adopted in accordance with Section 245 of the General Corporation Law of the State of Delaware. 3. The text of the Certificate of Incorporation as heretofore amended or supplemented is hereby restated and integrated to read in its entirety as follows: ARTICLE ONE The name of the Corporation is XTO Energy Inc. ARTICLE TWO The address of the Corporation's registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808, and the name of its registered agent at such address is Corporation Service Company. ARTICLE THREE The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware ("Act"). ARTICLE FOUR The Corporation shall have authority to issue two classes of stock, and the total number authorized shall be two hundred fifty million (250,000,000) shares of Common Stock of the par value of one cent ($.01) each, and twenty-five million (25,000,000) shares of Preferred Stock of the par value of one cent ($.01) each. A description of the different classes of stock of the Corporation and a statement of the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, in respect of each class of such stock are as follows: 1. Issuance in Class or Series. The Common Stock or Preferred Stock may be issued from time to time in one or more series, or either or both of the Common or Preferred Stock may be divided into additional classes and such classes into one or more series. The terms of a class or series, including all rights and preferences, shall be as specified in the resolution or resolutions adopted by the Board of Directors designating such class or series which resolution or resolutions the Board of Directors is hereby expressly authorized to adopt. Such resolution or resolutions with respect to a class or series shall specify all or such of the rights or preferences of such class or series as the Board of Directors shall determine, including, without limitation, any or all of the following, if applicable: (a) the number of shares to constitute such class or series and the distinctive designation thereof; (b) the dividend or manner for determining the dividend payable with respect to the shares of such class or series and the date or dates from which dividends shall accrue, whether such dividends shall be cumulative, and, if cumulative, the date or dates from which dividends shall accumulate and whether the shares in such class or series shall be entitled to preference or priority over any other class or series of stock of the Corporation with respect to payment of dividends; (c) the terms and conditions, including price or a manner for determining the price, of redemption, if any, of the shares of such class or series; (d) the terms and conditions of a retirement or sinking fund, if any, for the purchase or redemption of the shares of such class or series; (e) the amount which the shares of such class or series shall be entitled to receive, if any, in the event of any liquidation, dissolution or winding up of the Corporation and whether such shares shall be entitled to a preference or priority over shares of another class or series with respect to amounts received in connection with any liquidation, dissolution or winding up of the Corporation; (f) whether the shares of such class or series shall be convertible into, or exchangeable for, shares of stock of any other class or classes, or any other series of the same or any other class or classes of stock, of the Corporation and the terms and conditions of any such conversion or exchange; (g) the voting rights, if any, of shares of stock of such class or series in addition to those granted herein, if any; (h) the status as to reissuance or sale of shares of such class or series redeemed, purchased or otherwise reacquired or surrendered to the Corporation on conversion; (i) the conditions and restrictions, if any, on the payment of dividends or on the making of other distributions on, or the purchase, redemption or other acquisition by the Corporation or any subsidiary, of any other class or series of stock of the Corporation ranking junior to such shares as to dividends or upon liquidation; (j) the conditions, if any, on the creation of indebtedness of the Corporation, or any subsidiary; and (k) such other preferences, rights, restrictions and qualifications as the Board of Directors may determine. All shares of the Common Stock shall rank equally and all shares of the Preferred Stock shall rank equally, and be identical within their classes in all respects regardless of series, except as to terms which may be specified by the Board of Directors pursuant to the above provisions. All shares of any one series of a class of Common or Preferred Stock shall be of equal rank and identical in all respects, except that shares of any one series issued at different times may differ as to the dates which dividends thereon shall accrue and be cumulative. 2 2. Other Provisions. Shares of Common Stock or Preferred Stock of any class or series may be issued with such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, option or special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issuance of such stock adopted by the Board of Directors. Any of the voting powers, designations, preferences, rights and qualifications, limitations or restrictions of any such class or series of stock may be made dependent upon facts ascertainable outside the resolution or resolutions of the Board of Directors providing for the issue of such stock by the Board of Directors, provided the manner in which such facts shall operate upon the voting powers, designations, preferences, rights and qualifications, limitations or restrictions or such class or series is clearly set forth in the resolution or resolutions providing for the issue of such stock adopted by the Board of Directors. 3. Common Stock. Except as otherwise provided in any resolution or resolutions adopted by the Board of Directors providing for the issuance of a class or series of Common Stock or Preferred Stock, the Common Stock shall (a) have the exclusive voting power of the Corporation; (b) entitle the holders thereof to one vote per share at all meetings of the stockholders of the Corporation; (c) entitle the holders to share ratably, without preference over any other shares of the Corporation in all assets of the Corporation in the event of any dissolution, liquidation or winding up of the Corporation; and (d) entitle the record holders thereof on such record dates as are determined, from time to time, by the Board of Directors to receive such dividends, if any, if, as and when declared by the Board of Directors. 4. Series A Junior Participating Preferred Stock. The voting and other powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions thereof, of the Corporation's Series A Junior Participating Preferred Stock are set forth in Appendix A hereto and are incorporated herein by reference. ARTICLE FIVE The Corporation is to have perpetual existence. ARTICLE SIX 1. Number, Election and Term of Directors. The business and affairs of the Corporation shall be managed by a Board of Directors, which, subject to the rights of holders of shares of any class or series of Preferred Stock of the Corporation then outstanding to elect additional directors under specified circumstances, shall consist of not less than three nor more than twenty-one persons. The exact number of directors within the minimum and maximum limitations specified in the preceding sentence shall be fixed from time to time by either (i) the Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors, or (ii) the affirmative vote of the holders of 80% or more of the voting power of all of the shares of the Corporation entitled to vote generally in the election of directors voting together as a single class. No decrease in the number of 3 directors constituting the Board of Directors shall shorten the term of any incumbent director. Each director shall hold office until his successor is elected and qualified. 2. Stockholder Nomination of Director Candidates. Advance notice of stockholder nominations for the election of directors shall be submitted to the Board of Directors at least 120 days in advance of the scheduled date for the next annual meeting of stockholders. 3. Newly-Created Directorships and Vacancies. Subject to the rights of the holders of any series of any Preferred Stock then outstanding, newly-created directorships resulting from any increase in the authorized number of directors and any vacancies in the Board of Directors resulting from the death, resignation, retirement, disqualification, removal from office or other cause may be filled by a majority vote of the directors then in office even though less than a quorum, or by a sole remaining director. 4. Amendment, Repeal, etc. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of 80% or more of the voting power of all of the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or adopt any provision inconsistent with or repeal this Article Six, or to alter, amend, adopt any provision inconsistent with or repeal comparable sections of the Bylaws of the Corporation provided, however, that the maximum number of directors that the Corporation may have may be increased to more than twenty-one by the vote of the holders of a majority or more of the shares of the Corporation entitled to vote thereon. 5. Amendment of Bylaws. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the Bylaws of the Corporation. ARTICLE SEVEN Subject to the rights of the holders of any series of Preferred Shares then outstanding, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders unless all of the stockholders entitled to vote thereon consent thereto in writing. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of 80% or more of the voting power of all the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to call a special meeting of stockholders or to alter, amend, adopt any provision inconsistent with or repeal this Article Seven, or to alter, amend, adopt any provision inconsistent with comparable sections of the Bylaws. ARTICLE EIGHT 4 The Board of Directors is hereby authorized to create and issue, whether or not in connection with the issuance and sale of any of its stock or other securities, rights (the "Rights") entitling the holders thereof to purchase from the Corporation shares of capital stock or other securities. The times at which and the terms upon which the Rights are to be issued will be determined by the Board of Directors and set forth in the contracts or instruments that evidence the Rights. The authority of the Board of Directors with respect to the Rights shall include, but not be limited to, determination of the following: (a) The initial purchase price per share of the capital stock or other securities of the Corporation to be purchased upon exercise of the Rights. (b) Provisions relating to the times at which and the circumstances under which the Rights may be exercised or sold or otherwise transferred, either together with or separately from, any other securities of the Corporation. (c) Provisions that adjust the number or exercise price of the Rights or amount or nature of the securities or other property receivable upon exercise of the Rights in the event of a combination, split or recapitalization of any capital stock of the Corporation, a change in ownership of the Corporation's securities or a reorganization, merger, consolidation, sale of assets or other occurrence relating to the Corporation or any capital stock of the Corporation, and provisions restricting the ability of the Corporation to enter into any such transaction absent an assumption by the other party or parties thereto of the obligations of the Corporation under such Rights. (d) Provisions that deny the holder of a specified percentage of the outstanding securities of the Corporation the right to exercise the Rights and/or cause the Rights held by such holder to become void. (e) Provisions that permit the Corporation to redeem the Rights. (f) The appointment of a Rights Agent with respect to the Rights. ARTICLE NINE The Corporation shall have the power to indemnify its present or former directors, officers, employees and agents or any person who served or is serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise to the full extent permitted by the General Corporation Law of Delaware. Such indemnification shall not be deemed exclusive of any other rights to which such person may be entitled, under any bylaws, agreements, vote of stockholders or disinterested directors, or otherwise. 5 ARTICLE TEN A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages or breach of fiduciary duty as a director, except for liability (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 involved intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Act, or, (iv) for any transaction from which the director derived an improper personal benefit. IN WITNESS WHEREOF, XTO Energy Inc. has caused this Restated Certificate of Incorporation to be executed by its duly authorized officer on this 22nd day of August, 2001. XTO ENERGY INC. By: /s/ FRANK G. McDONALD --------------------- Frank G. McDonald Vice President 6 Appendix A CERTIFICATE OF DESIGNATION of SERIES A JUNIOR PARTICIPATING PREFERRED STOCK of XTO ENERGY INC. Pursuant to Section 151 of the General Corporation Law of the State of Delaware XTO Energy Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY: That pursuant to the authority vested in the Board of Directors in accordance with the provisions of the Second Restated Certificate of Incorporation of the said Corporation, the said Board of Directors on August 25, 1998 adopted the following resolution creating a series of 70,000 shares of Preferred Stock designated as "Series A Junior Participating Preferred Stock": RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of the Second Restated Certificate of Incorporation, a series of Preferred Stock, par value $.01 per share, of the Corporation be and hereby is created, and that the designation and number of shares thereof and the voting and other powers, preferences and relative, participating, optional or other rights of the shares of such series and the qualifications, limitations and restrictions thereof are as follows: Series A Junior Participating Preferred Stock 1. Designation and Amount. There shall be a series of Preferred Stock that shall be designated as "Series A Junior Participating Preferred Stock," and the number of shares constituting such series shall be 70,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, however, that no decrease shall reduce the number of shares of Series A Junior Participating Preferred Stock to less than the number of shares then issued and outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the Corporation. 2. Dividends and Distribution. (A) Subject to the prior and superior rights of the holders of any shares of any class or series of stock of the Corporation ranking prior and superior to the shares of Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior Participating Preferred Stock, in preference to the holders of shares of any class or series of stock of the Corporation ranking junior to the Series A Junior Participating Preferred Stock in respect thereof, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the 15th day of January, April, July and October, in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) the Adjustment Number (as defined below) times the aggregate per share amount of all cash dividends, and the Adjustment Number times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock, par value $.01 per share, of the Corporation (the "Common Stock") since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. The "Adjustment Number" shall initially be 1000. In the event the Corporation shall at any time after September 15, 1998 (i) declare and pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock). (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 60 days prior to the date fixed for the payment thereof. 3. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shall have the following voting rights: (A) Each share of Series A Junior Participating Preferred Stock shall entitle the holder thereof to a number of votes equal to the Adjustment Number on all matters submitted to a vote of the stockholders of the Corporation. (B) Except as required by law and by Section 10 hereof, holders of Series A Junior Participating Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. (C) If, at the time of any annual meeting of stockholders for the election of directors, the equivalent of six quarterly dividends (whether or not consecutive) payable on any share or shares of Series A Junior Participating Preferred Stock are in default, the number of directors constituting the Board of Directors of the Company shall be increased by two. In addition to voting together with the holders of Common Stock for the election of other directors of the Company, the holders of record of the Series A Junior Participating Preferred Stock, voting separately as a class to the exclusion of the holders of Common Stock, shall be entitled at said meeting of stockholders (and at each subsequent annual meeting of stockholders), unless all dividends in arrears on the Series A Junior Participating Preferred Stock have been paid or declared and set apart for payment prior thereto, to vote for the election of two directors of the Company, the holders of any Series A Junior Participating Preferred Stock being entitled to cast a number of votes per share of Series A Junior Participating Preferred Stock as is specified in paragraph (A) of this Section 3. Each such additional director shall not be a member of Class I, Class II, or Class III of the Board of Directors of the Company, but shall serve until the next annual meeting of stockholders for the election of directors, or until his successor shall be elected and shall qualify, or until his right to hold such office terminates pursuant to the provisions of this Section 3(C). Until the default in payments of all dividends which permitted the election of said directors shall cease to exist, any director who shall have been so elected pursuant to the next preceding sentence may be removed at any time, without cause, only by the affirmative vote of the holders of the shares of Series A Junior Participating Preferred Stock at the time entitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders called for that purpose, and any vacancy thereby created may be filled by the vote of such holders. If and when such default shall cease to exist, the holders of the Series A Junior Participating Preferred Stock shall be divested of the 3 foregoing special voting rights, subject to revesting in the event of each and every subsequent like default in payments of dividends. Upon the termination of the foregoing special voting rights, the terms of office of all persons who may have been elected directors pursuant to said special voting rights shall forthwith terminate, and the number of directors constituting the Board of Directors shall be reduced by two. The voting rights granted by this Section 3(C) shall be in addition to any other voting rights granted to the holders of the Series A Junior Participating Preferred Stock in this Section 3. 4. Certain Restrictions. (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock; (ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or (iii) purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of Series A Junior Participating Preferred Stock, or to such holders and holders of any such shares ranking on a parity therewith, upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 4 5. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after the acquisition thereof. All such shares shall upon their retirement become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to any conditions and restrictions on issuance set forth herein. 6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation, dissolution or winding up of the Corporation, voluntary or otherwise, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received an amount per share (the "Series A Liquidation Preference") equal to the greater of (i) $10.00 plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, or (ii) the Adjustment Number times the per share amount of all cash and other property to be distributed in respect of the Common Stock upon such liquidation, dissolution or winding up of the Corporation. (B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other classes and series of stock of the Corporation, if any, that rank on a parity with the Series A Junior Participating Preferred Stock in respect thereof, then the assets available for such distribution shall be distributed ratably to the holders of the Series A Junior Participating Preferred Stock and the holders of such parity shares in proportion to their respective liquidation preferences. (C) Neither the merger or consolidation of the Corporation into or with another corporation nor the merger or consolidation of any other corporation into or with the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6. 7. Consolidation, Merger, Etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the outstanding shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share equal to the Adjustment Number times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. 8. No Redemption. Shares of Series A Junior Participating Preferred Stock shall not be subject to redemption by the Company. 5 9. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other series of the Preferred Stock as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution or winding up, unless the terms of any such series shall provide otherwise, and shall rank senior to the Common Stock as to such matters. 10. Amendment. At any time that any shares of Series A Junior Participating Preferred Stock are outstanding, the Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as a class. 11. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share that shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Junior Participating Preferred Stock. 6 EX-15.1 4 dex151.txt AWARENESS LETTER OF ARTHUR ANDERSEN LLP EXHIBIT 15.1 AWARENESS LETTER--UNAUDITED INTERIM FINANCIAL INFORMATION XTO Energy Inc. Fort Worth, Texas We are aware that our report dated April 23, 2001, which was included in the Cross Timbers Oil Company Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, and our report dated July 25, 2001, which was included in the XTO Energy Inc. (formerly known as Cross Timbers Oil Company) Quarterly Report on Form 10-Q for the quarter ended June 30, 2001, are being incorporated by reference in this Registration Statement on Form S-3. We also are aware that the aforementioned reports, pursuant to Regulation C under the Securities Act of 1933, are not considered a part of the Registration Statement prepared or certified by our firm within the meaning of Sections 7 and 11 of that Act. ARTHUR ANDERSEN LLP Fort Worth, Texas October 17, 2001 EX-23.1 5 dex231.txt CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 INDEPENDENT PUBLIC ACCOUNTANTS' CONSENT XTO Energy Inc. Fort Worth, Texas As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of XTO Energy Inc. (the Company) of our report dated March 22, 2001, included in the Company's Form 10-K for the year ended December 31, 2000, and to all references to our firm included in this Registration Statement. ARTHUR ANDERSEN LLP Fort Worth, Texas October 17, 2001 EX-23.2 6 dex232.txt CONSENT OF MILLER AND LENTS, LTD. (Letterhead of Miller and Lents, Ltd.) EXHIBIT 23.2 October 17, 2001 XTO Energy Inc. 810 Houston Street, Suite 2000 Fort Worth, TX 76102 Re: Securities and Exchange Commission Form S-3 Registration Statement, No. 333-_____ Gentlemen: The firm of Miller and Lents, Ltd., consents to the incorporation of its estimated Proved Reserves, Future Net Revenues, and Present Values of Future Net Revenues in the XTO Energy Inc. Form S-3 Registration Statement, No. 333-______, and to references to our Firm in such registration statement. Miller and Lents, Ltd., has no interests in XTO Energy Inc. or any of its affiliated companies or subsidiaries and is not to receive any such interest as payment for such reports and has no director, officer, or employee, or otherwise, connected with XTO Energy Inc. We are not employed by XTO Energy Inc. on a contingent basis. Yours very truly, MILLER AND LENTS, LTD. By ____________________________ Gregory W. Armes President