Filed Pursuant to Rule 424(b)(7)
Registration No. 333-204432
CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount
to be
registered
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Proposed
maximum
offering price
per share (1)
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Proposed
maximum
aggregate
offering price (1)
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Amount of
registration fee (2)
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Common stock, par value $0.003 per share
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59,116
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$44.705
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$2,642,781
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$307
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(1)
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Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(c) and 457(r) of the Securities Act of 1933, as amended (the “Securities Act”), and based upon the average of the high
and low sales price of a share of the Registrant’s common stock, as reported by the NYSE MKT on March 27, 2017.
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(2)
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Calculated in accordance with Rules 456(b), 457(c) and 457(r) of the Securities Act.
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PROSPECTUS SUPPLEMENT
(To Prospectus dated May 22, 2015)
Cheniere Energy, Inc.
59,116 Shares
Common
Stock
This prospectus supplement relates to the resale from time to time of up to an aggregate of 59,116 shares of our common stock, par value
$0.003 per share, held by the selling stockholder identified in this prospectus supplement. We are not selling any of our common stock pursuant to this prospectus supplement, and we will not receive any proceeds from the sale of our common stock
offered by this prospectus supplement by the selling stockholder.
The selling stockholder or its successors may sell our common stock in
one or more public or private transactions at market prices prevailing at the time of sale, at fixed prices, at negotiated prices, at various prices determined at the time of sale or at prices related to prevailing market prices, as further
described herein. See “Plan of Distribution.”
Our common
stock is listed on the NYSE MKT under the symbol “LNG.” The last reported sale price of our common stock on the NYSE MKT on March 28, 2017 was $45.58 per share.
Investing in our common stock involves risks, including those described under “
Risk Factors
”
beginning on page S-2 of this prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying base prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus supplement is March 29, 2017.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PROSPECTUS
S-i
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement is part of a shelf registration statement that we have filed with the Securities and Exchange Commission (the
“SEC”) using a “shelf” registration process. Under this shelf registration process, the selling stockholder may, from time to time, offer and sell our common stock described in this prospectus supplement and in the accompanying
base prospectus in one or more offerings. Please carefully read both this prospectus supplement and the accompanying base prospectus in addition to the information described in the section of this prospectus supplement entitled “Where You Can
Find More Information.”
Neither Cheniere nor the selling stockholder has authorized anyone to provide you with information other
than the information contained in this prospectus supplement and the accompanying base prospectus, including the information incorporated by reference herein and therein as described under “Where You Can More Information”, or any free
writing prospectus that Cheniere files with the SEC. Neither Cheniere nor the selling stockholder takes responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus
supplement, the accompanying base prospectus and any such free writing prospectus may be used only for the purposes for which they have been published. You should not assume that the information contained in or incorporated by reference into this
prospectus supplement or the accompanying base prospectus is accurate as of any date other than the respective dates of such documents. We are not making an offer of these securities in any jurisdiction where the offer is not permitted.
Unless otherwise indicated or unless the context otherwise requires, all references in this prospectus supplement to “Cheniere,”
“Cheniere Energy,” “our company,” “we,” “our,” “us” or similar references mean Cheniere Energy, Inc. and its consolidated subsidiaries. In this prospectus supplement, we sometimes refer to our common
stock as the “securities.”
DEFINITIONS
In this prospectus supplement, unless the context otherwise requires:
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Liquefaction
means the process by which natural gas is supercooled to a temperature of -260 degrees Fahrenheit, transforming the gas into a liquid 1/600th of the volume of its gaseous state;
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LNG
means liquefied natural gas, a product of natural gas consisting primarily of methane (CH
4
) that is in liquid form at near atmospheric pressure;
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Regasification
means the process by which, in receiving terminals (either onshore or aboard specialized LNG carriers), the LNG is returned to its gaseous state, or regasified; and
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Train
means an industrial facility comprising a series of refrigerant compressor loops used to cool natural gas into LNG.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus and the documents incorporated herein and therein by reference contain certain
statements that are, or may be deemed to be, “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Included among “forward-looking statements” are, among other
things:
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statements that we expect to commence or complete construction of our proposed LNG terminals, liquefaction facilities, pipeline facilities or other projects, or any expansions thereof, by certain dates, or at all;
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S-ii
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statements regarding future levels of domestic and international natural gas production, supply or consumption or future levels of LNG imports into or exports from North America and other countries worldwide or
purchases of natural gas, regardless of the source of such information, or the transportation or other infrastructure or demand for and prices related to natural gas, LNG or other hydrocarbon products;
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statements regarding any financing transactions or arrangements, or ability to enter into such transactions;
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statements relating to the construction of our Trains and pipeline, including statements concerning the engagement of any engineering, procurement and construction (“EPC”) contractor or other contractor and
the anticipated terms and provisions of any agreement with any EPC or other contractor, and anticipated costs related thereto;
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statements regarding any SPA or other agreement to be entered into or performed substantially in the future, including any revenues anticipated to be received and the anticipated timing thereof, and statements regarding
the amounts of total LNG regasification, natural gas liquefaction or storage capacities that are, or may become, subject to contracts;
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statements regarding counterparties to our commercial contracts, construction contracts and other contracts;
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statements regarding our planned development and construction of additional Trains and pipelines, including the financing of such Trains;
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statements that our Trains, when completed, will have certain characteristics, including amounts of liquefaction capacities;
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statements regarding our business strategy, our strengths, our business and operation plans or any other plans, forecasts, projections or objectives, including anticipated revenues, capital expenditures, maintenance and
operating costs and cash flows, any or all of which are subject to change;
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statements regarding legislative, governmental, regulatory, administrative or other public body actions, approvals, requirements, permits, applications, filings, investigations, proceedings or decisions;
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statements regarding our anticipated LNG and natural gas marketing activities; and
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any other statements that relate to non-historical or future information.
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All of these types
of statements, other than statements of historical fact, are forward-looking statements. In some cases, forward-looking statements can be identified by terminology such as “may,” “will,” “could,” “should,”
“expect,” “plan,” “project,” “intend,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “pursue,” “target,”
“continue,” the negative of such terms or other comparable terminology. The forward-looking statements contained in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein are
largely based on our expectations, which reflect estimates and assumptions made by our management. These estimates and assumptions reflect our best judgment based on market conditions and other factors at the time the applicable forward-looking
statement is made. Although we believe that such estimates are reasonable, they are inherently uncertain and involve a number of risks and uncertainties beyond our control. In addition, assumptions may prove to be inaccurate. We caution that the
forward-looking statements contained in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein are not guarantees of future performance and that such statements may not be realized or
the forward-looking statements or events may not occur. Actual results may differ materially from those anticipated or implied in forward-looking statements due to factors described in this prospectus supplement, the accompanying prospectus, the
documents we incorporated by reference herein and therein and other information that we file with the SEC. These forward-looking statements speak only as of the date made, and other than as required by law, we undertake no obligation to publicly
update or revise any forward-looking statement, whether as a result of new information, future events or otherwise.
S-iii
WHERE YOU CAN FIND MORE INFORMATION
We have filed a with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus supplement. The
registration statement, including the exhibits attached thereto, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from this prospectus
supplement and the accompanying base prospectus.
We file annual, quarterly, and other reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934 as amended (the “Exchange Act”). You may read and copy any materials we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. Our SEC filings are also available to the public through the SEC’s website at
http://www.sec.gov
.
General information about us, including our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, as
well as any amendments and exhibits to those reports, are available free of charge through our website at
http://www.cheniere.com
as soon as reasonably practicable after we file them with, or furnish them to, the SEC. Information on our
website is not incorporated into this prospectus supplement or the accompanying base prospectus and is not a part of this prospectus supplement or the accompanying base prospectus.
The SEC allows us to “incorporate by reference” certain information that we file with the SEC, which means that we can disclose
information to you by referring to those documents. The information incorporated by reference is an important part of this prospectus supplement and the accompanying base prospectus, and information that we file later with the SEC will automatically
update and take the place of this information. We are incorporating by reference in this prospectus supplement the following documents filed with the SEC under the Exchange Act (other than any portions of the respective filings that were furnished
and not filed in accordance with SEC rules):
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our Annual Report on Form 10-K for the year ended December 31, 2016; and
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our Current Reports on Form 8-K, as filed with the SEC on January 10, 2017, February 6, 2017, February 21, 2017, February 24, 2017, February 27, 2017, March 6, 2017
and March 8, 2017.
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All documents that we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus supplement and until the offering hereunder is completed will be deemed to be incorporated by reference into this prospectus supplement and will be a part of this prospectus supplement from the date of the filing of
the document. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus supplement will be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a
statement contained in this prospectus supplement or any other subsequently filed documents that also is or is deemed to be incorporated by reference in this prospectus supplement modifies or supersedes that statement. Any statement that is modified
or superseded will not constitute a part of this prospectus supplement, except as modified or superseded.
We will provide each person,
including any beneficial owner, to whom a prospectus is delivered, a copy of any or all documents that have been incorporated by reference in the this prospectus supplement and the accompanying base prospectus, excluding exhibits unless they are
specifically incorporated by reference into those documents, upon written or oral request and at no cost. Requests should be made by writing or telephoning us at the following address or phone number, as applicable:
Cheniere Energy, Inc.
700 Milam
Street, Suite 1900
Houston, Texas 77002
(713) 375-5000
Attn: Investor
Relations
S-iv
SUMMARY
This summary is not complete and does not contain all of the information that you should consider before investing in our common stock. You
should read carefully this entire prospectus supplement and the accompanying base prospectus, including the information incorporated by reference from our Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and the other
incorporated documents, including in particular the section entitled “Risk Factors” of this prospectus supplement and in such incorporated documents, as well as our consolidated financial statements, incorporated by reference in this
prospectus supplement and the accompanying base prospectus, before making any investment decision.
Our Company
Cheniere Energy, Inc., a Delaware corporation, is a Houston-based energy company primarily engaged in LNG-related businesses. Our vision is to
be recognized as the premier global LNG company and provide a reliable, competitive and integrated source of LNG to our customers while creating a safe, productive and rewarding work environment for our employees. We own and operate the Sabine Pass
LNG terminal in Louisiana through our ownership interest in and management agreements with Cheniere Energy Partners, L.P., which is a publicly traded limited partnership that we created in 2007. As of March 28, 2017 we own 100% of the general
partner interest in Cheniere Partners and 82.7% of Cheniere Energy Partners LP Holdings, LLC, which is a publicly traded limited liability company formed in 2013 that owns a 55.9% limited partner interest in Cheniere Partners. We are currently
developing and constructing two natural gas liquefaction and export facilities.
For a description of our business, financial condition,
results of operations and other important information regarding us, we refer you to our filings with the SEC incorporated by reference in this prospectus supplement. For instructions on how to find copies of these documents, see “Where You Can
Find More Information.”
Additional Information
Our principal executive offices are located at 700 Milam Street, Suite 1900, Houston, Texas 77002. Our phone number is (713) 375-5000.
Our website is accessed at
http://www.cheniere.com
. Information on our website is not part of this prospectus supplement or the accompanying base prospectus.
S-1
RISK FACTORS
An investment in our common stock involves risk. You should carefully read and consider each of the following risk factors and the risk
factors set forth in our Annual Report on Form 10-K for the year ended December 31, 2016, together with all of the other information included in, or incorporated by reference into, this prospectus supplement and the accompanying base
prospectus. Additional risks and uncertainties not currently known to us, or that we currently deem to be immaterial, may also impair or adversely affect our business, contracts, financial condition, operating results, cash flow, liquidity and
prospects.
Risks Related to our Common Stock
Our revenues and results of operations may fluctuate as a result of factors beyond our control, which may cause volatility in the price of our shares of
common stock.
Our common stock is listed on NYSE MKT under the symbol “LNG.” Our performance, as well as the risks
discussed herein, government or regulatory action, tax laws, interest rates and general market conditions could have a significant impact on the future market price of our common stock. Some of the factors that could negatively affect our share
price or result in fluctuations in the price of our common stock include:
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actual or anticipated variations in our quarterly or annual financial results or those of other companies in our industry;
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changes to our earnings estimates or publications of research reports about us or the industry;
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issuance of additional equity securities, which causes further dilution to stockholders;
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changes in government regulation or proposals applicable to us;
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actual or potential non-performance by any customer or a counterparty under any agreement to which we or one of our affiliates is a party;
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announcements made by us or our competitors of significant contracts;
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adverse market reaction to any increased indebtedness we incur in the future;
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fluctuations in interest rates or inflationary pressures and other changes in the investment environment that affect returns on invested assets;
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changes in accounting standards, policies, guidance, interpretations or principles;
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the failure of securities analysts to cover our common stock or changes in financial or other estimates by analysts;
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changes to our creditworthiness;
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the market for similar securities;
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additions or departures of key personnel;
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reaction to the sale or purchase of our capital stock by our executive officers;
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speculation in the press or investment community; and
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general market, economic and political conditions.
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Future sales of our common stock in the public
market or the issuance of securities senior to our common stock could adversely affect the market price of our common stock.
We
expect that the market price of our common stock will depend on a variety of factors. Sales by us or our stockholders of a substantial number of shares of our common stock in the public markets after the date of this
S-2
prospectus supplement, or the perception that these sales might occur, could cause the market price of our common stock to decline or could impair our ability to raise capital through a future
sale of, or pay for acquisitions using, our equity or equity-related securities.
As of March 28, 2017, we had an aggregate of
approximately 165.0 million shares of common stock that are authorized and unissued or held as treasury shares and not reserved for issuance under our option and compensation plans or under other convertible or derivative instruments. We may
issue all of these shares without any action or approval by our stockholders. In addition, we have filed registration statements covering approximately 10.8 million shares of common stock that are either issuable upon the exercise of
outstanding options or reserved for future issuance pursuant to our stock plans as of December 31, 2016. We have also registered shares of common stock issuable upon conversion of our 4.25% Convertible Senior Notes due 2045 and our 4.875%
Unsecured PIK Convertible Notes due 2021. In addition, our subsidiary’s 11.0% Convertible Senior Notes due 2025 are convertible, at the option of our subsidiary, into shares of our common stock if our total market capitalization at that time is
not less than $10.0 billion, on or after the later of (1) March 1, 2020, and (2) the substantial completion of Train 2 of the liquefaction facilities under construction near Corpus Christi, Texas.
We may issue shares of our common stock or equity securities senior to our common stock in the future for a number of reasons, including to
finance our operations and business strategy, to adjust our ratio of debt-to-equity, to satisfy our obligations upon the exercise of options or for other reasons. No prediction can be made as to the size of future issuance or the effect, if any,
that future sales or issuance of shares of our common stock or other equity securities, or the availability of shares of our common stock or such other equity securities for future sale or issuance, will have on the market price of our common stock.
S-3
USE OF PROCEEDS
The common stock to be offered and sold pursuant to this prospectus supplement will be offered and sold by the selling stockholder. We will
not receive any proceeds from the sale of common stock by the selling stockholder.
S-4
SELLING STOCKHOLDER
This prospectus supplement relates to the offering for resale of shares of our common stock by the selling stockholder listed in the table
below.
The shares of common stock covered by this prospectus supplement were issued by us in exchange for an aggregate 115,348 common
shares representing limited liability company interests of Cheniere Energy Partners LP Holdings, LLC. In connection with the issuance and sale of our common stock to the selling stockholder, we agreed to file this prospectus supplement covering the
public resale of common stock beneficially owned by selling stockholder. The information contained in the table below in respect of the selling stockholder (including the number of shares beneficially owned and the number of shares offered) has been
obtained from the selling stockholder and has not been independently verified by us. We may amend or supplement this prospectus supplement from time to time in the future to update or change this list of selling stockholders and the number of shares
of our common stock which may be offered and sold by them. The registration for resale of the shares of our common stock does not necessarily mean that the selling stockholder will sell all or any of these shares. In addition, the selling
stockholder may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time and from time to time, common stock in transactions exempt from the registration requirements of the Securities Act after the
date on which they provided the information set forth in the table below.
The information set forth in the following table regarding the
beneficial ownership after resale of the common stock is based upon the assumption that the selling stockholder will sell all of the shares of common stock beneficially owned by it that are covered by this prospectus supplement and the accompanying
base prospectus. The ownership percentage indicated in the following table is based on 237,859,646 outstanding shares of Company common stock as of March 28, 2017. Except as indicated in the footnotes to the table below, to our knowledge, the
selling stockholder has the sole voting and investment power with respect to all securities beneficially owned by it. Unless otherwise described below, to our knowledge, the selling stockholder has not held any position or office or had any material
relationship with Cheniere during the three years prior to the date of this prospectus supplement.
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Shares of Common Stock Beneficially
Owned Prior to This Offering
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Shares of Common Stock Beneficially
Owned After This Offering
(1)
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Selling Stockholder
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Number
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Percent
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Number of
Shares of
Common
Stock Offered
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Number
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Percent
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Pacific Capital Management, LLC
(2)
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59,116
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*
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59,116
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0
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0
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(1)
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The selling stockholder may offer all, some or none of the common stock. Because the selling stockholder may offer all or some portion of the common stock, we cannot estimate the number of shares or percentage of common
stock that will be held by the selling stockholder upon completion of this offering.
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(2)
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Mr. Jonathan Glaser is President of JMG Capital Management, Inc., the Managing Member of Pacific Capital Management, LLC, and has voting and dispositive control over securities owned by Pacific Capital Management, LLC.
The address of each of the persons named in this footnote is 11601 Wilshire Blvd, Suite 1925, Los Angeles, CA 90025.
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S-5
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of certain U.S. federal income tax consequences of the ownership and disposition of our common stock. This summary
is based upon provisions of the Internal Revenue Code of 1986, as amended (the “Code”), applicable Treasury Regulations, administrative rulings and judicial decisions in effect as of the date hereof, any of which may be subsequently
changed, possibly retroactively, so as to result in U.S. federal income tax consequences different from those discussed below. We have not sought, nor will we seek, any rulings from the Internal Revenue Service (the “IRS”), with respect to
the matters discussed below. There can be no assurance that the IRS will not take a different position concerning the U.S. federal income tax consequences of the ownership and disposition of the common stock or that any such position would not be
sustained. This discussion is limited to beneficial owners who hold the common stock as capital assets (generally property held for investment). This summary does not address all aspects of U.S. federal income taxation that may be relevant to
holders in light of their personal circumstances or particular situations, such as:
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tax consequences to holders who may be subject to special tax treatment, including dealers in securities or currencies, financial institutions, regulated investment companies, real estate investment trusts, tax-exempt
entities, insurance companies, or traders in securities that elect to use a mark-to-market method of accounting for their securities;
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tax consequences to persons holding common stock as a part of a hedging, integrated or conversion transaction or a straddle;
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persons deemed to sell common stock under the constructive sale provisions of the Code;
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tax consequences to U.S. holders (as defined below) of shares of common stock whose “functional currency” is not the U.S. dollar;
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tax consequences to investors in pass-through entities;
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alternative minimum tax consequences, if any;
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any “Medicare tax” consequences;
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any state, local or foreign tax consequences; and
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estate or gift tax consequences, if any.
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If a partnership (or other entity treated as a
partnership for U.S. federal income tax purposes) holds shares of common stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partnership holding the shares of
common stock or a partner in such partnership, you should consult your tax advisors.
As used herein, the term “U.S. holder”
means a beneficial owner of shares of common stock that is, for U.S. federal income tax purposes:
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an individual citizen or resident of the United States;
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a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
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a trust, if it (i) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust, or (ii) has a
valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.
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As used herein, the term
“non-U.S. holder” means a beneficial owner (other than a partnership, or any entity treated as a partnership for U.S. federal income tax purposes) of shares of common stock that is an individual, corporation, estate or trust and that is
not a U.S. holder. Special rules may apply to some non-U.S. holders such
S-6
as “controlled foreign corporations,” “passive foreign investment companies,” corporations that accumulate earnings to avoid U.S. federal income tax or, in some circumstances,
individuals who are U.S. expatriates. Consequently, non-U.S. holders should consult their tax advisors to determine the U.S. federal, state, local and other tax consequences that may be relevant to them.
Consequences to U.S. Holders
Distributions on
Common Stock
Cash distributions paid on shares of our common stock will be treated as a dividend to the extent paid out of our
current or accumulated earnings and profits (as determined for U.S. federal income tax principles) and will be includible in income by the U.S. holder and taxable as ordinary income when received. If a distribution exceeds our current and
accumulated earnings and profits, the excess will be first treated as a tax-free return of the U.S. holder’s investment, up to the U.S. holder’s tax basis in the common stock. Any remaining excess will be treated as capital gain. Dividends
received by non-corporate U.S. holders will be eligible to be taxed at reduced rates if the U.S. holders meet certain holding period and other applicable requirements. Dividends received by corporate U.S. holders will be eligible for the
dividends-received deduction if the U.S. holders meet certain holding period and other applicable requirements.
Sale or Other Taxable Dispositions
of Common Stock
Upon the sale or other taxable dispositions of our common stock, a U.S. holder generally will recognize capital
gain or loss equal to the difference between the amount of cash and the fair market value of any property received upon such taxable disposition and the U.S. holder’s tax basis in the common stock. Such gain or loss will generally be capital
gain or loss and will be long-term capital gain or loss if the U.S. holder’s holding period in the common stock is more than one year at the time of the taxable disposition. Under current law, long-term capital gains of certain non-corporate
holders are taxed at lower rates than items of ordinary income. The deductibility of capital losses is subject to limitations.
Information
Reporting and Backup Withholding
Information reporting requirements generally will apply to payments of dividends on shares of
common stock and to the proceeds of a sale, exchange, redemption or other disposition of a share of common stock paid to a U.S. holder unless the U.S. holder is an exempt recipient such as a corporation. Backup withholding will apply to those
payments if the U.S. holder fails to provide its correct taxpayer identification number, or certification of exempt status, or if the U.S. holder is notified by the IRS that it has failed to report in full payments of interest and dividend income.
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability provided the required information is furnished to the IRS in a timely manner.
Consequences to Non-U.S. Holders
Sale or Other
Taxable Dispositions of Shares of Common Stock
Subject to the discussion of backup withholding and FATCA withholding requirements
below, any gain recognized by a non-U.S. holder on the sale or other taxable disposition of shares of common stock, generally will not be subject to U.S. federal income tax unless:
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the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and other conditions are met;
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that gain is effectively connected with a non-U.S. holder’s conduct of a trade or business in the United States (and, if required by an applicable income treaty, is attributable to a U.S. permanent establishment or
fixed base); or
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we are or have been a U.S. real property holding corporation (a “USRPHC”) for U.S. federal income tax purposes at any time within the five-year period preceding the sale or other disposition or the non-U.S.
holder’s holding period, whichever period is shorter.
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If you are a non-U.S. holder described in the first bullet point
above, you will be subject to tax at a flat rate of 30% (or such lower rate as may be specified by an applicable income tax treaty) on the gain recognized on the sale or other taxable disposition of common stock (which gain may be offset by U.S.
source capital losses), even though you are not considered a resident of the United States.
If you are a non-U.S. holder who is an
individual described in the second bullet point above, you will be subject to tax at regular graduated U.S. federal income tax rates on the net gain derived from the sale or other taxable disposition of common stock, generally in the same manner as
if you were a U.S. holder. If you are a foreign corporation that falls under the second bullet point above, you will be subject to tax on your net gain generally in the same manner as if you were a U.S. person as defined under the Code and, in
addition, you may be subject to the branch profits tax equal to 30% of your effectively connected earnings and profits, or at such lower rate as may be specified by an applicable income tax treaty.
A domestic corporation is considered a USRPHC if the fair market value of its United States real property interests (“USRPIs”)
equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for use in a trade or business. We believe that we are currently not a USRPHC. In the event that we become a
USRPHC, so long as our common stock continues to be “regularly traded on an established securities market” within the meaning of applicable Treasury Regulations, only a non-U.S. holder that actually owns, or is treated as owning under
applicable constructive ownership rules, within the time period described in the third bullet point above, more than 5% of our common stock (in each case, a “greater-than-five percent shareholder”), will be subject to U.S. federal income
tax on the disposition thereof.
If you are or may be treated as a greater than-five percent shareholder under the rules described above,
we encourage you to consult your tax advisor regarding the tax consequences to you of a sale or other disposition of shares of common stock.
Dividends and Constructive Distributions
Any dividends paid to a non-U.S. holder with respect to shares of our common stock will be subject to withholding tax at a 30% rate or at a
reduced rate specified by an applicable income tax treaty. However, dividends that are effectively connected with the conduct of a trade or business within the United States and, where an income tax treaty applies, are attributable to a U.S.
permanent establishment or fixed base, are not subject to the withholding tax, but instead are subject to U.S. federal income tax on a net income basis at applicable graduated individual or corporate rates. Certification requirements and disclosure
requirements must be complied with in order for effectively connected income to be exempt from withholding. Any such effectively connected income received by a foreign corporation may, under some circumstances, be subject to an additional branch
profits tax at a 30% rate (or such lower rate as may be specified by an applicable income tax treaty).
A non-U.S. holder of shares of
common stock that wishes to claim the benefit of an applicable treaty rate is required to satisfy applicable certification and other requirements, generally by providing IRS Form W-8BEN or IRS Form W-8BEN-E. If a non-U.S. holder is eligible for a
reduced rate of U.S. withholding tax pursuant to an income tax treaty, it may obtain a refund from the IRS of any excess amounts withheld by timely providing the required information or appropriate claim for refund to the IRS.
Information Reporting and Backup Withholding
Generally, the dividends paid to a non-U.S. holder and the amount of tax, if any, withheld with respect to those payments must be reported to
the IRS on IRS Form 1042 and to the non-U.S. holder. Copies of the information returns reporting such dividends and withholding may also be made available to the tax authorities in
S-8
the country in which a non-U.S. holder resides under the provisions of an applicable income tax treaty. A non-U.S. holder is generally exempt from backup withholding and information reporting
requirements (other than the Form 1042 reporting described above) in respect of payments of dividends made within the United States and the payment of the proceeds from the sale of common stock effected at a United States office of a broker, as long
as either (i) the payor or broker does not have actual knowledge or reason to know that such non-U.S. holder is a United States person and such non-U.S. holder has furnished a valid IRS Form W-8 or other documentation upon which the payor or
broker may rely to treat the payments as made to a non-U.S. person, or (ii) such non-U.S. holder has otherwise established an exemption. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a
non-U.S. holder’s U.S. federal income tax liability provided the required information is furnished timely to the IRS.
Additional Withholding Tax
on Payments Made to Foreign Accounts
Sections 1471 through 1474 of the Code (commonly referred to as “FATCA”) and applicable
Treasury Regulations impose a 30% U.S. federal withholding tax on withholdable payments (as defined below) made to a foreign financial institution, unless such institution enters into an agreement with the Department of Treasury to, among other
things, collect and provide to it substantial information regarding such institution’s United States financial account holders, including certain account holders that are foreign entities with United States owners. FATCA also generally imposes
a 30% U.S. federal withholding tax on withholdable payments to a nonfinancial foreign entity unless such entity provides the paying agent with a certification that it does not have any substantial United States owners or a certification identifying
the direct and indirect substantial United States owners of the entity. “Withholdable payments” include payments of interest and dividend payments from sources within the United States, as well as gross proceeds from the sale of any
property of a type which can produce interest or dividends from sources within the United States, unless the payments of interest, dividends or gross proceeds are effectively connected with the conduct of a United States trade or business and taxed
as such. These withholding and reporting requirements will apply currently with respect to dividends on the common stock, but will not apply to withholding on gross proceeds on the sale or other taxable disposition of common stock unless such a
disposition occurs after December 31, 2018. A foreign financial institution located in a jurisdiction that has an intergovernmental agreement with the United States governing FATCA may be subject to different rules. Prospective investors are
urged to consult their own tax advisors regarding the application of withholding under FATCA to common stock.
S-9
PLAN OF DISTRIBUTION
The selling stockholder, including its permitted transferees, may from time to time offer some or all of the shares of common stock covered by
this prospectus supplement.
The selling stockholder will not pay any of the costs, expenses and fees in connection with the registration
and sale of the shares of common stock covered by this prospectus supplement, but they will pay any and all underwriting discounts, selling commissions and stock transfer taxes, if any, attributable to sales of the shares of common stock. We will
not receive any proceeds from the sale of our common stock covered hereby.
The selling stockholder may sell the shares of common stock
covered by this prospectus supplement from time to time, and may also decide not to sell all or any of the shares of common stock that it is allowed to sell under this prospectus supplement. The selling stockholder will act independently of us in
making decisions regarding the timing, manner and size of each sale. The common stock offered by this prospectus supplement may be sold by the selling stockholder or its permitted transferees, directly or through brokers, dealers, agents or
underwriters, from time to time in:
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negotiated transactions;
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underwritten offerings;
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distributions to equity security holders of the selling stockholder;
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a sale to one or more underwriters for resale to the public or to institutional investors in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined
at the time of sale, or under delayed delivery contracts or other contractual commitments;
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a block trade, in which a broker or dealer attempts to sell securities as agent but may position and resell a portion of the securities as principal to facilitate the transaction;
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purchases by a broker or dealer as principal and the subsequent sale by such broker or dealer for its account pursuant to this prospectus supplement;
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ordinary brokerage transactions (which may include long or short sales) and transactions in which the broker solicits purchasers;
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broker-dealers agreeing with the selling stockholder to sell a specified number of securities at a stipulated price per share;
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through the writing of options, whether such options are listed on an options exchange or otherwise;
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the pledging of securities as collateral to secure loans, credit or other financing arrangements and subsequent to foreclosure, the disposition of the securities by the lender thereunder;
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any other method described in an amendment or supplement to this prospectus supplement; or
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through a combination of these methods of sale.
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The selling stockholder may also resell all
or a portion of its shares of common stock in open market transactions in reliance upon Rule 144 under the Securities Act, provided it meets the criteria and conforms to the requirements of Rule 144 and all applicable laws and regulations. In
addition, common stock offered may be sold by the selling stockholder or its permitted transferees, directly or through brokers, dealers, agents or underwriters, from time to time in
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transactions in the over-the-counter market, the NYSE MKT, or on one or more exchanges on which the common stock may be listed or quoted at the time of sale;
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transactions otherwise than on the NYSE MKT or exchanges; or
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through a combination of these methods of sale, including the methods of sale set forth under the third paragraph of this “Plan of Distribution.”
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S-10
Sales and transfers of the securities may be effected from time to time:
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at fixed prices which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to prevailing market prices;
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without consideration; or
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by any other method permitted by law.
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In connection with sales of the securities or
otherwise, the selling stockholder may enter into hedging transactions with broker-dealers or other parties, which may in turn engage in short sales of the securities in the course of hedging in positions they assume. The selling stockholder may
also sell securities short and deliver securities to close out short positions, or loan or pledge securities to broker-dealers or other parties that in turn may sell those securities. If the selling stockholder effects such transactions by selling
securities to or through underwriters, broker-dealers or agents, those underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholder or commissions from purchasers of
the securities for whom they may act as agent or to whom they may sell as principal. Any such discounts, concessions or commissions as to particular underwriters, brokers-dealers or agents may be in excess of those customary in the types of
transactions involved.
The selling stockholder may enter into derivative transactions with third parties or sell securities not covered
by this prospectus supplement to third parties in privately negotiated transactions. In connection with those derivatives, such third parties (or affiliates of such third parties) may sell securities covered by this prospectus supplement, including
in short sale transactions. If so, such third parties (or affiliates of such third parties) may use securities pledged by the selling stockholder or borrowed from the selling stockholder or others to settle those sales or to close out any related
open borrowings of securities, and may use securities received from the selling stockholder or others in settlement of those derivatives to close out any related open borrowings of securities.
The selling stockholder and any broker-dealers or agents that are involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed
to be underwriting commissions or discounts. If the selling stockholder is deemed to be an underwriter, the selling stockholder may be subject to certain statutory liabilities including, but not limited to Sections 11, 12 and 17 of the Securities
Act. A selling stockholder who is deemed an underwriter within the meaning of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. The SEC staff is of a view that a selling stockholder who is a registered
broker-dealer or affiliate of a registered broker-dealer may be an underwriter under the Securities Act. We will not pay any compensation or give any discounts or commissions to any underwriter in connection with the securities being offered by this
prospectus.
In order to comply with the securities laws of some states, if applicable, the shares of common stock may be sold in these
jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification
requirements is available and is complied with.
S-11
VALIDITY OF SECURITIES
The validity of the securities offered hereby will be passed upon for us by Andrews Kurth Kenyon LLP.
EXPERTS
The consolidated financial statements and schedule of Cheniere Energy, Inc. as of December 31, 2016 and 2015 and, for each of the years
in the three-year period ended December 31, 2016, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2016 have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
S-12
PROSPECTUS
Cheniere Energy, Inc.
COMMON STOCK
PREFERRED
STOCK
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
By this
prospectus, we and selling security holders may from time to time offer and sell in one or more offerings any combination of the following securities:
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shares of common stock;
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shares of preferred stock, which may be convertible into or exchangeable for debt securities or common stock;
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senior debt securities, which may be convertible into or exchangeable for common stock or preferred stock;
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subordinated debt securities, which may be convertible into or exchangeable for common stock or preferred stock;
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warrants to purchase common stock, preferred stock, debt securities, rights or units;
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rights to purchase common stock, preferred stock, debt securities, warrants or units; and
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units consisting of any combination of common stock, preferred stock, debt securities, warrants or rights.
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This prospectus provides a general description of the securities we and selling security holders may offer. Supplements to this prospectus will
provide the specific terms of the securities, including the offering prices and the net proceeds that we expect to receive. You should carefully read this prospectus, any applicable prospectus supplement and any information under the headings
“Where You Can Find More Information” and “Incorporation by Reference” before you invest in any of these securities. This prospectus may not be used to sell securities unless it is accompanied by a prospectus supplement that
describes those securities.
We and selling security holders may sell these securities to or through underwriters, dealers, to other
purchasers and through agents. Supplements to this prospectus will specify the names of any underwriters or agents.
Our common stock is
listed and traded on the NYSE MKT under the symbol “LNG.”
Investing in
our securities involves risks. Please read “
Risk Factors
” on page 2 of this prospectus.
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.
The date of this
prospectus is May 22, 2015.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a
“shelf” registration process. Under this shelf registration process, we and selling security holders may offer and sell any combination of the securities described in this prospectus in connection with one or more offerings from time to
time.
This prospectus provides you with a general description of the securities we and selling security holders may offer. Each time we
or selling security holders offer to sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering and the securities offered by us or such selling security holders in that offering.
The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information provided in
the prospectus supplement. This prospectus does not contain all of the information included in the registration statement. The registration statement filed with the SEC includes exhibits that provide more details about the matters discussed in this
prospectus. You should carefully read this prospectus, the related exhibits filed with the SEC and any prospectus supplement, together with the additional information described below under the headings “Where You Can Find More Information”
and “Incorporation by Reference.”
You should rely only on the information contained or incorporated by reference in this
prospectus and in any accompanying prospectus supplement. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not
making an offer of the securities covered by this prospectus in any jurisdiction where the offer is not permitted. You should assume that the information appearing in this prospectus, any prospectus supplement and any other document incorporated by
reference is accurate only as of the date on the front cover of those documents. Our business, contracts, financial condition, operating results, cash flows, liquidity and prospects may have changed since those dates.
Under no circumstances should the delivery to you of this prospectus create any implication that the information contained in this
prospectus is correct as of any time after the date of this prospectus.
This prospectus may not be used to sell securities unless it
is accompanied by a prospectus supplement that describes those securities.
- i -
Unless otherwise indicated or unless the context otherwise requires, all references in this
prospectus to “Cheniere,” “Cheniere Energy,” “our company,” “we,” “our,” “us” or similar references mean Cheniere Energy, Inc. and its consolidated subsidiaries. In this prospectus, we
sometimes refer to our common stock, preferred stock, debt securities, warrants, rights and units collectively as the “securities.”
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” information into this document. This means that we can disclose important
information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus. We incorporate by reference the documents listed below, other than any
portions of the respective filings that were furnished (pursuant to Item 2.02 or Item 7.01 of current reports on Form 8-K or other applicable SEC rules) rather than filed:
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our Annual Report on Form 10-K for the year ended December 31, 2014, as filed with the SEC on February 20, 2015;
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our Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, as filed with the SEC on April 30, 2015, as amended by Amendment No. 1 thereto filed with the SEC on May 11, 2015;
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our Current Reports on Form 8-K, as filed with the SEC on January 16, 2015, March 2, 2015, March 3, 2015, March 9, 2015, March 13, 2015, March 20,
2015, April 24, 2015, May 7, 2015 and May 13, 2015; and
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the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on March 2, 2001, including any amendments and reports filed for the purpose of updating such description.
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All documents that we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, which we refer to as the Exchange Act, after the date of this prospectus and until our offerings hereunder are completed will be deemed to be incorporated by reference into this prospectus and will be a part of this prospectus from the date
of the filing of the document. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement that is modified or superseded will not
constitute a part of this prospectus, except as modified or superseded.
We will provide to each person, including any beneficial owner to
whom a prospectus is delivered, a copy of the information incorporated by reference in this prospectus, upon written or oral request and at no cost. Requests should be made by writing or telephoning us at the following address:
Cheniere Energy, Inc.
700 Milam
Street, Suite 1900
Houston, Texas 77002
(713) 375-5000
Attn: Investor
Relations
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act of 1933, as amended, which we refer to as the Securities Act,
that registers the issuance and sale of the securities offered by this prospectus. The registration statement, including the attached exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit
some information included in the registration statement from this prospectus.
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We file annual, quarterly, and other reports, proxy statements and other information with the SEC
under the Exchange Act. You may read and copy any materials we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Room. Our SEC filings are also available to the public through the SEC’s website at http://www.sec.gov.
General
information about us, including our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, as well as any amendments and exhibits to those reports, are available free of charge through our website at
http://www.cheniere.com as soon as reasonably practicable after we file them with, or furnish them to, the SEC. Information on our website is not incorporated into this prospectus or our other securities filings and is not a part of this prospectus.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain statements that are, or may be deemed to be, “forward-looking statements” within the meaning of
Section 27A of the Securities Act, and Section 21E of the Exchange Act. All statements, other than statements of historical facts, included herein or incorporated herein by reference are “forward-looking statements.” Included
among “forward-looking statements” are, among other things:
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statements that we expect to commence or complete construction of our proposed liquefied natural gas (“LNG”) terminals, liquefaction facilities, pipeline facilities or other projects, or any expansions
thereof, by certain dates, or at all;
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statements regarding future levels of domestic and international natural gas production, supply or consumption or future levels of LNG imports into or exports from North America and other countries worldwide or
purchases of natural gas, regardless of the source of such information, or the transportation or other infrastructure or demand for and prices related to natural gas, LNG or other hydrocarbon products;
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statements regarding any financing transactions or arrangements, or ability to enter into such transactions;
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statements relating to the construction of our natural gas liquefaction trains (“Trains”), including statements concerning the engagement of any engineering, procurement and construction (“EPC”)
contractor or other contractor and the anticipated terms and provisions of any agreement with any EPC or other contractor, and anticipated costs related thereto;
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statements regarding any agreement to be entered into or performed substantially in the future, including any revenues anticipated to be received and the anticipated timing thereof, and statements regarding the amounts
of total LNG regasification, liquefaction or storage capacities that are, or may become, subject to contracts;
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statements regarding counterparties to our commercial contracts, construction contracts and other contracts;
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statements regarding our planned construction of additional Trains, including the financing of such Trains;
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statements that our Trains, when completed, will have certain characteristics, including amounts of liquefaction capacities;
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statements regarding our business strategy, our strengths, our business and operation plans or any other plans, forecasts, projections or objectives, including anticipated revenues and capital expenditures, any or all
of which are subject to change;
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statements regarding legislative, governmental, regulatory, administrative or other public body actions, approvals, requirements, permits, applications, filings, investigations, proceedings or decisions;
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statements regarding our anticipated LNG and natural gas marketing activities; and
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any other statements that relate to non-historical or future information.
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All of these types
of statements, other than statements of historical fact, are forward-looking statements. In some cases, forward-looking statements can be identified by terminology such as “may,” “will,” “could,” “should,”
“expect,” “plan,” “project,” “intend,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “pursue,” “target,”
“continue,” the negative of such terms or other comparable terminology. The forward-looking statements contained in this prospectus are largely based on our expectations, which reflect estimates and assumptions made by our management.
These estimates and assumptions reflect our best judgment based on currently known market conditions and other factors. Although we believe that such estimates are reasonable, they are inherently uncertain and involve a number of risks and
uncertainties beyond our control. In addition, assumptions may prove to be inaccurate. We caution that the forward-looking statements contained in this prospectus are not guarantees of future performance and that such statements may not be realized
or the forward-looking statements or events may not occur. Actual results may differ materially from those anticipated or implied in forward-looking statements due to factors described in this prospectus and in the other reports and other
information that we file with the SEC. These forward-looking statements speak only as of the date made, and other than as required by law, we undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of
new information, future events or otherwise.
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CHENIERE ENERGY, INC.
Cheniere Energy, Inc., a Delaware corporation, is a Houston-based energy company primarily engaged in LNG-related businesses. We own and
operate the Sabine Pass LNG terminal in Louisiana through our ownership interest in and management agreements with Cheniere Energy Partners, L.P. (“Cheniere Partners”), which is a publicly traded limited partnership that we created in
2007. As of March 31, 2015, we own 100% of the general partner interest in Cheniere Partners and 80.1% of Cheniere Energy Partners LP Holdings, LLC (“Cheniere Holdings”), which is a publicly traded limited liability company formed in
2013 that owns a 55.9% limited partner interest in Cheniere Partners.
Our corporate headquarters are located at 700 Milam Street, Suite
1900 in Houston, Texas. Our phone number is (713) 375-5000, and our website is accessed at www.cheniere.com. Information on our website is not incorporated into this prospectus or our other securities filings and is not a part of this
prospectus.
- 1 -
RISK FACTORS
The securities to be offered by this prospectus may involve a high degree of risk. When considering an investment in any of the securities,
you should consider carefully all of the risk factors described in our annual report on Form 10-K for the year ended December 31, 2014. You should also consider similar information in any annual report on Form 10-K, quarterly report on Form
10-Q or other document incorporated by reference into this prospectus or filed by us with the SEC after the date of this prospectus. If applicable, we will include in any prospectus supplement a description of those significant factors that could
make the offering described in the prospectus supplement speculative or risky.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, the net proceeds received by us from the sale of the securities described
in this prospectus will be added to our general funds and will be used for our general corporate purposes. From time to time, we may engage in additional public or private financings of a character and amount which we may deem appropriate.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges on a consolidated basis for the periods shown. You should read these
ratios of earnings to fixed charges in connection with our consolidated financial statements, including the notes to those statements, incorporated by reference into this prospectus.
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Three Months
Ended March 31,
2015
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Year Ended December 31,
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2014
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2013
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2012
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2011
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2010
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Ratio of earnings to fixed charges
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For the three months ended March 31, 2015 and for the years ended December 31, 2014, 2013, 2012, 2011 and 2010, earnings were not adequate to cover fixed charges by $386.6 million, $943.9 million, $730.8
million, $362.2 million, $193.2 million and $70.5 million, respectively.
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For these ratios, “earnings” represent
the aggregate of (a) pre-tax income from continuing operations before adjustment for minority interests in consolidated subsidiaries or income or loss from equity investees, (b) fixed charges, (c) amortization of capitalized interest,
(d) distributed income of equity investees and (e) our share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges, net of (x) interest capitalized, (y) preference security
dividend requirements of consolidated subsidiaries, and (z) the non-controlling interest in pre-tax income of subsidiaries that have not incurred fixed charges. “Fixed charges” represent the sum of (a) interest expensed and
capitalized, (b) amortized premiums, discounts and capitalized expenses related to indebtedness, (c) an estimate of the interest within rental expense, and (d) preference securities dividend requirements of consolidated subsidiaries.
DESCRIPTION OF CAPITAL STOCK
The following is a summary of the material terms and provisions of our capital stock. You should refer to the applicable provisions of our
restated certificate of incorporation, as amended, or Certificate of Incorporation, our amended and restated bylaws, or Bylaws, and the documents that we have incorporated by reference for a complete statement of the terms and rights of our capital
stock.
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As of May 18, 2015, our authorized capital stock was 485,000,000 shares, which included
480,000,000 shares authorized as common stock, $0.003 par value, and 5,000,000 shares authorized as preferred stock, $0.0001 par value. As of May 18, 2015, we had 236,571,457 shares of common stock outstanding. There were no shares of preferred
stock outstanding as of such date.
Common Stock
Listing
. Our common stock is listed on the NYSE MKT under the symbol “LNG.”
Dividends
. Subject to the rights of holders of preferred stock, common stockholders may receive dividends when declared by the board of
directors. Dividends may be paid in cash, stock or another form.
Fully Paid
. All outstanding shares of common stock are, and the
common stock offered by this prospectus and any prospectus supplement will be, fully paid and non-assessable upon issuance.
Voting
Rights
. Common stockholders are entitled to one vote in the election of directors and other matters for each share of common stock owned. Common stockholders are not entitled to preemptive or cumulative voting rights.
Other Rights
. We will notify common stockholders of any stockholders’ meetings in accordance with applicable law. If we liquidate,
dissolve or wind-up our business, either voluntarily or not, common stockholders will share equally in the assets remaining after we pay our creditors and preferred stockholders. There are no redemption or sinking fund provisions applicable to the
common stock.
Transfer Agent and Registrar
. Our transfer agent and registrar is Computershare Trust Company, N.A. located in
Canton, Massachusetts.
Preferred Stock
Our board of directors can, without approval of our stockholders, issue one or more series or classes of preferred stock from time to time
limited by the number of shares of preferred stock then authorized. The board can also determine the number of shares of each series and the rights, preferences and limitations of each series or class, including the dividend rights, voting rights,
conversion rights, redemption rights and any liquidation preferences of any series or class of preferred stock and the terms and conditions of issue.
If we offer shares of preferred stock, the specific terms will be described in a prospectus supplement, including:
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the specific designation, number of shares, seniority and purchase price;
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any liquidation preference per share;
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any redemption, repayment or sinking fund provisions;
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any dividend rate or rates and the dates on which any such dividends will be payable (or the method by which such rates or dates will be determined);
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if other than the currency of the United States, the currency or currencies, including composite currencies, in which such preferred stock is denominated and in which payments will or may be payable;
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the method by which amounts in respect of such preferred stock may be calculated and any commodities, currencies or indices, or value, rate or price, relevant to such calculation;
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whether such preferred stock is convertible or exchangeable and, if so, the securities or rights into which such preferred stock is convertible or exchangeable, and the terms and conditions upon which such conversions
or exchanges will be effected, including conversion or exchange prices or rates, the conversion or exchange period and any other related provisions;
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the place or places where dividends and other payments on the preferred stock will be payable; and
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any additional voting, dividend, liquidation, redemption and other rights, preferences, privileges, limitations and restrictions.
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All shares of preferred stock offered will, when issued, be fully paid and non-assessable.
The transfer agent, registrar, and dividend disbursement agent for a series of preferred stock will be named in a prospectus supplement. The
registrar for shares of preferred stock will send notices to stockholders of any meetings at which holders of the preferred stock have the right to elect directors or to vote on any other matter.
In some cases, the issuance of preferred stock could delay a change in control of us and make it more difficult to remove present management.
Under certain circumstances, preferred stock could also restrict dividend payments to common stockholders.
Certain Provisions of Our Certificate of
Incorporation, Bylaws and Law
Our Certificate of Incorporation and Bylaws contain provisions that may render more difficult possible
takeover proposals to acquire control of us and make removal of our management more difficult. Below is a description of certain of these provisions in our Certificate of Incorporation and Bylaws.
Our Certificate of Incorporation, authorizes a class of undesignated preferred stock consisting of 5,000,000 shares. Additional shares of
preferred stock may be issued from time to time in one or more series, and our board of directors, without further approval of the stockholders, is authorized to fix the designations, powers, preferences, and rights applicable to each series of
preferred stock. The purpose of authorizing the board of directors to determine such designations, powers, preferences, and rights is to allow such determinations to be made by the board of directors instead of the stockholders and to avoid the
expense of, and eliminate delays associated with, a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other
things, adversely affect the voting power of the holders of common stock and, under some circumstances, make it more difficult for a third party to gain control of us.
Our Certificate of Incorporation provides that any action required or permitted to be taken by our common stockholders must be taken at an
annual or special meeting of stockholders and not by written consent.
Our Bylaws permit holders of record of at least 50.1% of the
outstanding shares of our common stock to call a special meeting of stockholders if such holders comply with the requirements set forth in our Bylaws.
Our Bylaws contain specific procedures for stockholder nomination of directors. These provisions require advance notification that must be
given in accordance with the provisions of our Bylaws. The procedure for stockholder nomination of directors may have the effect of precluding a nomination for the election of directors at a particular meeting if the required procedure is not
followed.
Our Certificate of Incorporation requires the vote of at least 66
2
⁄
3
% of all of the shares of our capital stock which are entitled to vote, voting together as a single class, to take stockholder action to alter, amend, rescind or repeal any of our Bylaws, or to alter, amend,
rescind or repeal provisions of our Certificate of Incorporation or to adopt any provision inconsistent therewith relating to the inability of stockholders to act by written consent, the ability of our board of directors to adopt, alter, amend and
repeal our Bylaws and the supermajority voting
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provision. The “supermajority” voting provisions may discourage or deter a person from attempting to obtain control of us by making it more difficult to amend some provisions of our
Certificate of Incorporation or for our stockholders to amend any provision of our Bylaws, whether to eliminate provisions that have an anti-takeover effect or those that protect the interests of minority stockholders.
Although Section 214 of the General Corporation Law of the State of Delaware, or the DGCL provides that a corporation’s certificate
of incorporation may provide for cumulative voting for directors, our Certificate of Incorporation does not provide for cumulative voting. As a result, in a non-contested election of directors, directors are elected by a vote of the majority of the
votes cast with respect to that director’s election; in a contested election of directors, directors are elected by a vote of the plurality of the votes cast.
As a Delaware corporation, we are subject to Section 203, or the business combination statute, of the DGCL. Under the business
combination statute of the DGCL, a corporation is generally restricted from engaging in a business combination (as defined in Section 203 of the DGCL) with an interested stockholder (defined generally as a person owning 15% or more of the
corporation’s outstanding voting stock) for a three-year period following the time the stockholder became an interested stockholder. This restriction applies unless:
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prior to the time the stockholder became an interested stockholder, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an
interested stockholder;
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the interested stockholder owned at least 85% of the voting stock of the corporation upon completion of the transaction which resulted in the stockholder becoming an interested stockholder (excluding stock held by the
corporation’s directors who are also officers and by the corporation’s employee stock plans, if any, that do not provide employees with the right to determine confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer); or
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at or subsequent to the time the stockholder became an interested stockholder, the business combination was approved by the board of directors of the corporation and authorized by the affirmative vote, at an annual or
special meeting, and not by written consent, of at least 66
2
⁄
3
% of the outstanding voting shares of the corporation, excluding shares held by that
interested stockholder.
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The provisions of the business combination statute of the DGCL do not apply to a corporation if,
subject to certain requirements specified in Section 203(b) of the DGCL, the certificate of incorporation or bylaws of the corporation contain a provision expressly electing not to be governed by the provisions of the statute or the corporation
does not have voting stock listed on a national securities exchange or held of record by more than 2,000 stockholders. We have not adopted any provision in our Certificate of Incorporation or Bylaws electing not to be governed by the business
combination statute of the DGCL. As a result, the statute is applicable to business combinations involving us.
Liability and Indemnification of
Officers and Directors
Our Certificate of Incorporation provides that directors and officers shall be indemnified against liabilities
arising from their service as directors or officers to the fullest extent permitted by law, which generally requires that the individual act in good faith and in a manner he or she reasonably believes to be in or not opposed to our best interests.
Our Bylaws also provide for mandatory indemnification and advancement of expenses for directors and officers, to the fullest extent permitted by applicable law.
We have also entered into indemnification agreements with certain of our directors and officers. The indemnification agreements provide that
we will indemnify these officers and directors to the fullest extent permitted by our Certificate of Incorporation, Bylaws and applicable law. The indemnification agreements also provide that these officers and directors shall be entitled to the
advancement of fees as permitted by applicable law and sets out the procedures required under the agreements for determining entitlement to and obtaining indemnification and expense advancement.
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We also have director and officer liability insurance for the benefit of each of our directors
and officers. These policies include coverage for losses for wrongful acts and omissions. Each of the indemnitees are named as an insured under such policies and provided with the same rights and benefits as are accorded to the most favorably
insured of our directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers or persons controlling the registrant pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
DESCRIPTION OF DEBT SECURITIES
Any debt securities that we offer under a prospectus supplement will be direct, unsecured general obligations. The debt securities will be
either senior debt securities or subordinated debt securities. The debt securities will be issued under one or more separate indentures between us and The Bank of New York Mellon, as trustee. Senior debt securities will be issued under a senior
indenture and subordinated debt securities will be issued under a subordinated indenture. Together, the senior indenture and the subordinated indenture are called “indentures.” The indentures will be supplemented by supplemental
indentures, the material provisions of which will be described in a prospectus supplement.
As used in this description, the words
“we,” “us” and “our” refer to Cheniere Energy, Inc., and not to any of our subsidiaries or affiliates.
We
have summarized some of the material provisions of the indentures below. This summary does not restate those agreements in their entirety. The senior indenture and a form of subordinated indenture have been filed as exhibits to the registration
statement of which this prospectus is a part. We urge you to read each of the indentures because each one, and not this description, defines the rights of holders of debt securities.
Capitalized terms defined in the indentures have the same meanings when used in this prospectus.
General
The debt securities issued under
the indentures will be our direct, unsecured general obligations. The senior debt securities will rank equally with all of our other senior and unsubordinated debt. The subordinated debt securities will have a junior position to all of our senior
debt.
The following description sets forth the general terms and provisions that could apply to debt securities that we may offer to
sell. A prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following, among others:
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the title and type of the debt securities;
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the total principal amount of the debt securities;
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the percentage of the principal amount at which the debt securities will be issued and any payments due if the maturity of the debt securities is accelerated;
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the dates on which the principal of the debt securities will be payable;
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the interest rate which the debt securities will bear and the interest payment dates for the debt securities;
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any conversion or exchange features;
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any optional redemption periods;
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any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem some or all of the debt securities;
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any provisions granting special rights to holders when a specified event occurs;
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any changes to or additional events of default or covenants;
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any special tax implications of the debt securities, including provisions for original issue discount securities, if offered; and
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any other terms of the debt securities.
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The senior indenture does not, and the subordinated
indenture will not, limit the amount of debt securities that may be issued. The senior indenture allows, and the subordinated indenture will allow, debt securities to be issued up to the principal amount that may be authorized by us and may be in
any currency or currency unit designated by us.
Debt securities of a series may be issued in registered or global form.
Covenants
Under the indentures, we:
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will pay the principal of, and interest and any premium on, the debt securities when due;
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will maintain a place of payment;
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will deliver a certificate to the trustee each fiscal year reviewing our compliance with our obligations under the indentures;
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will preserve our corporate existence; and
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will segregate or deposit with any paying agent sufficient funds for the payment of any principal, interest or premium on or before the due date of such payment.
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Mergers and Sale of Assets
The senior
indenture provides, and the subordinated indenture will provide, that we may not consolidate with or merge into any other Person (as defined below) or sell, convey, transfer or lease all or substantially all of our properties and assets (on a
consolidated basis) to another Person, unless:
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either: (a) we are the surviving Person; or (b) the Person formed by or surviving any such consolidation, amalgamation or merger or resulting from such conversion (if other than us) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States, any State thereof or the District of Columbia;
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the Person formed by or surviving any such conversion, consolidation, amalgamation or merger (if other than us) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made
assumes all of our obligations under such indenture and the debt securities governed thereby pursuant to agreements reasonably satisfactory to the trustee, which may include a supplemental indenture;
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we or the successor will not immediately be in default under such indenture; and
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we deliver an officer’s certificate and opinion of counsel to the trustee stating that such consolidation, amalgamation, merger, conveyance, sale, transfer or lease and any supplemental indenture comply with
Article Eight of the indenture and that all conditions precedent set forth in such indenture relating to such transaction have been complied with.
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Upon the assumption of our obligations under each indenture by a successor, we will be discharged
from all obligations under such indenture, except in the case of a lease.
As used in the indenture and in this description, the word
“Person” means any individual, corporation, company, limited liability company, partnership, limited partnership, joint venture, association, joint-stock company, trust, other entity, unincorporated organization or government or any agency
or political subdivision thereof.
Events of Default
“Event of default,” when used in the indentures with respect to debt securities of any series, will mean any of the following:
(1) default in the payment of any interest upon any debt security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if any,
on) any debt security of that series at its maturity;
(3) default in the performance, or breach, of any covenant set forth
in Article Ten of the applicable indenture (other than a covenant, a default in the performance of which or the breach of which is elsewhere specifically dealt with as an event of default or which has expressly been included in such indenture solely
for the benefit of one or more series of debt securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to us by the trustee or to us and the
trustee by the holders of at least 25% in principal amount of the then-outstanding debt securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” thereunder;
(4) default in the performance, or breach, of any covenant in the applicable indenture (other
than a covenant set forth in Article Ten of such indenture or any other covenant, a default in the performance of which or the breach of which is elsewhere specifically dealt with as an event of default or which has expressly been included in such
indenture solely for the benefit of one or more series of debt securities other than that series), and continuance of such default or breach for a period of 180 days after there has been given, by registered or certified mail, to us by the trustee
or to us and the trustee by the holders of at least 25% in principal amount of the then-outstanding debt securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” thereunder;
(5) we, pursuant to or within the meaning of any bankruptcy law,
(i) commence a voluntary case, (ii) consent to the entry of any order for relief against us in an involuntary case, (iii) consent to the appointment of a custodian of us or for all or substantially all of our property, or
(iv) make a general assignment for the benefit of our creditors;
(6) a court of competent jurisdiction enters an
order or decree under any bankruptcy law that (i) is for relief against us in an involuntary case, (ii) appoints a custodian of us or for all or substantially all of our property, or (iii) orders the liquidation of us, and the order
or decree remains unstayed and in effect for 60 consecutive days;
(7) default in the deposit of any sinking fund payment
when due; or
(8) any other event of default provided with respect to debt securities of that series in accordance with
provisions of the indenture related to the issuance of such debt securities.
An event of default for a particular series of debt
securities does not necessarily constitute an event of default for any other series of debt securities issued under an indenture. The trustee may withhold notice to the holders of debt securities of any default (except in the payment of principal,
interest or any premium) if it considers the withholding of notice to be in the interests of the holders.
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If an event of default for any series of debt securities occurs and continues, the trustee or the
holders of 25% in aggregate principal amount of the debt securities of the series may declare the entire principal of all of the debt securities of that series to be due and payable immediately. If this happens, subject to certain conditions, the
holders of a majority of the aggregate principal amount of the debt securities of that series can void the declaration.
Other than its
duties in case of a default, a trustee is not obligated to exercise any of its rights or powers under any indenture at the request, order or direction of any holders, unless the holders offer the trustee indemnity reasonably satisfactory to the
trustee. If they provide this indemnification, and subject to the conditions set forth in the indenture, the holders of a majority in principal amount outstanding of any series of debt securities may direct the time, method and place of conducting
any proceeding or any remedy available to the trustee, or exercising any power conferred upon the trustee, for any series of debt securities.
Amendments and Waivers
Subject to
certain exceptions, the indentures, the debt securities issued thereunder or the subsidiary guarantees, if any, may be amended or supplemented with the consent of the holders of a majority in aggregate principal amount of the then-outstanding debt
securities of each series affected by such amendment or supplemental indenture, with each such series voting as a separate class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, debt securities) and, subject to certain exceptions, any past default or compliance with any provisions may be waived with respect to each series of debt securities with the consent of the holders of a majority in principal amount of the
then-outstanding debt securities of such series voting as a separate class (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, debt securities).
Without the consent of each holder of the outstanding debt securities affected, an amendment, supplement or waiver may not, among other
things:
(1) change the stated maturity of the principal of, or any installment of principal of or interest on, any debt
security, reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, reduce the amount of the principal of an original issue discount security that would be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to the applicable indenture, change the coin or currency in which any debt security or any premium or the interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity thereof (or, in the case of redemption, on or after the redemption date therefor);
(2) reduce the percentage in principal amount of the then-outstanding debt securities of any series, the consent of the holders
of which is required for any such amendment or supplemental indenture, or the consent of the holders of which is required for any waiver of compliance with certain provisions of the applicable indenture or certain defaults thereunder and their
consequences provided for in the applicable indenture;
(3) modify any of the provisions set forth in (i) the
provisions of the applicable indenture related to the holder’s unconditional right to receive principal, premium, if any, and interest on the debt securities or (ii) the provisions of the applicable indenture related to the waiver of past
defaults under such indenture;
(4) waive a redemption payment with respect to any debt security; provided, however, that
any purchase or repurchase of debt securities shall not be deemed a redemption of the debt securities;
(5) release any
guarantor from any of its obligations under its guarantee or the applicable indenture, except in accordance with the terms of such indenture (as amended or supplemented); or
(6) make any change in the foregoing amendment and waiver provisions, except to increase any percentage provided for therein or
to provide that certain other provisions of the applicable indenture cannot be modified or waived without the consent of the holder of each then-outstanding debt security affected thereby.
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Notwithstanding the foregoing, without the consent of any holder of debt securities, we, the
guarantors, if any, and the trustee may amend each of the indentures or the debt securities issued thereunder to:
(1) cure
any ambiguity or defect or to correct or supplement any provision therein that may be inconsistent with any other provision therein;
(2) evidence the succession of another Person to us and the assumption by any such successor of our covenants therein and, to
the extent applicable, of the debt securities;
(3) provide for uncertificated debt securities in addition to or in place
of certificated debt securities; provided that the uncertificated debt securities are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code of 1986, as amended (the “Code”), or in the manner such that
the uncertificated debt securities are described in Section 163(f)(2)(B) of the Code;
(4) add a guarantee and cause
any Person to become a guarantor, and/or to evidence the succession of another Person to a guarantor and the assumption by any such successor of the guarantee of such guarantor therein and, to the extent applicable, endorsed upon any debt securities
of any series;
(5) secure the debt securities of any series;
(6) add to our covenants such further covenants, restrictions, conditions or provisions as we shall consider to be appropriate
for the benefit of the holders of all or any series of debt securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of debt securities, stating that such covenants are expressly
being included solely for the benefit of such series), to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default permitting the enforcement of
all or any of the several remedies provided in the applicable indenture as set forth therein, or to surrender any right or power therein conferred upon us; provided, that in respect of any such additional covenant, restriction, condition or
provision, such amendment or supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon
such an event of default or may limit the remedies available to the trustee upon such an event of default or may limit the right of the holders of a majority in aggregate principal amount of the debt securities of such series to waive such an event
of default;
(7) make any change to any provision of the applicable indenture that does not adversely affect the rights or
interests of any holder of debt securities issued thereunder;
(8) provide for the issuance of additional debt securities
in accordance with the provisions set forth in the applicable indenture on the date of such indenture;
(9) add any
additional defaults or events of default in respect of all or any series of debt securities;
(10) add to, change or
eliminate any of the provisions of the applicable indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in bearer form, registrable or not registrable as to principal, and with or without interest
coupons;
(11) change or eliminate any of the provisions of the applicable indenture; provided that any such change or
elimination shall become effective only when there is no debt security outstanding of any series created prior to the execution of such amendment or supplemental indenture that is entitled to the benefit of such provision;
(12) establish the form or terms of debt securities of any series as permitted thereunder, including to reopen any series of
any debt securities as permitted thereunder;
(13) evidence and provide for the acceptance of appointment thereunder by a
successor trustee with respect to the debt securities of one or more series and to add to or change any of the provisions of the applicable indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by
more than one trustee, pursuant to the requirements of such indenture;
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(14) conform the text of the applicable indenture (and/or any supplemental
indenture) or any debt securities issued thereunder to any provision of a description of such debt securities appearing in a prospectus or prospectus supplement or an offering memorandum or offering circular to the extent that such provision appears
on its face to have been intended to be a verbatim recitation of a provision of such indenture (and/or any supplemental indenture) or any debt securities issued thereunder; or
(15) modify, eliminate or add to the provisions of the applicable indenture to such extent as shall be necessary to effect the
qualification of such indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or under any similar federal statute subsequently enacted, and to add to such indenture such other provisions as may be
expressly required under the Trust Indenture Act.
The consent of the holders is not necessary under either indenture to approve the
particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment. After an amendment under an indenture becomes effective, we are required to mail to the holders of debt securities
thereunder a notice briefly describing such amendment. However, the failure to give such notice to all such holders, or any defect therein, will not impair or affect the validity of the amendment.
Legal Defeasance and Covenant Defeasance
The senior indenture provides, and the subordinated indenture will provide, that we may, at our option and at any time, elect to have all of
our obligations discharged with respect to the debt securities outstanding thereunder and all obligations of any guarantors of such debt securities discharged with respect to their guarantees (“Legal Defeasance”), except for:
(1) the rights of holders of outstanding debt securities to receive payments in respect of the principal of, or interest or
premium, if any, on, such debt securities when such payments are due from the trust referred to below;
(2) our obligations
with respect to the debt securities concerning temporary debt securities, registration of debt securities, mutilated, destroyed, lost or stolen debt securities, the maintenance of an office or agency for payment and money for security payments held
in trust;
(3) the rights, powers, trusts, duties and immunities of the trustee and our and each guarantor’s
obligations in connection therewith; and
(4) the Legal Defeasance and Covenant Defeasance (as defined below) provisions of
the applicable indenture.
In addition, we may, at our option and at any time, elect to have our obligations released with respect to
certain provisions of each indenture, including certain provisions described in any prospectus supplement (such release and termination being referred to as “Covenant Defeasance”), and thereafter any failure to comply with such obligations
or provisions will not constitute a default or event of default. In addition, in the event Covenant Defeasance occurs in accordance with the applicable indenture, any defeasible event of default will no longer constitute an event of default.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) we must irrevocably deposit with the trustee, in trust, for the benefit of the holders of the debt securities, cash in U.S.
dollars, non-callable government securities, or a combination of cash in U.S. dollars and non-callable U.S. government securities, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of
independent public accountants, to pay the principal of, and interest and premium, if any, on, the outstanding debt securities on the stated date for payment thereof or on the applicable redemption date, as the case may be, and we must specify
whether the debt securities are being defeased to such stated date for payment or to a particular redemption date;
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(2) in the case of Legal Defeasance, we must deliver to the trustee an opinion of
counsel confirming that (a) we have received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the issue date of the debt securities, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such opinion of counsel will confirm that, the holders of the outstanding debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same time as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, we must deliver to the trustee an opinion of counsel confirming that the holders of the
outstanding debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(4) no default or event of default shall have
occurred and be continuing on the date of such deposit (other than a default or event of default resulting from the borrowing of funds to be applied to such deposit);
(5) the deposit must not result in a breach or violation of, or constitute a default under, any other instrument to which we or
any guarantor is a party or by which we or any guarantor is bound;
(6) such Legal Defeasance or Covenant Defeasance must
not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the applicable indenture) to which we are, or any of our subsidiaries is, a party or by which we are, or any of our subsidiaries
is, bound;
(7) we must deliver to the trustee an officer’s certificate stating that the deposit was not made by us
with the intent of preferring the holders of debt securities over our other creditors with the intent of defeating, hindering, delaying or defrauding our creditors or the creditors of others;
(8) we must deliver to the trustee an officer’s certificate stating that all conditions precedent set forth in clauses
(1) through (6) of this paragraph have been complied with; and
(9) we must deliver to the trustee an opinion of
counsel (which opinion of counsel may be subject to customary assumptions, qualifications, and exclusions) stating that all conditions precedent set forth in clauses (2), (3) and (6) of this paragraph have been complied with.
Satisfaction and Discharge
Each of the
indentures will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of debt securities and certain rights of the trustee, as expressly provided for in such indenture) as to all
outstanding debt securities and guarantees issued thereunder when:
(1) either (a) all of the debt securities
theretofore authenticated and delivered under such indenture (except lost, stolen or destroyed debt securities that have been replaced or paid and debt securities for the payment of which money has theretofore been deposited in trust or segregated
and held in trust by us and thereafter repaid to us or discharged from such trust) have been delivered to the trustee for cancellation or (b) all debt securities not theretofore delivered to the trustee for cancellation have become due and
payable, will become due and payable at their stated maturity within one year, or are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in the name, and
at the expense, of us, and we or the guarantors, if any, have irrevocably deposited or caused to be deposited with the trustee funds, in an amount sufficient to pay and discharge the entire indebtedness on the debt securities not theretofore
delivered to the trustee for cancellation, for principal of and premium, if any, and interest on the debt securities to the date of deposit (in the case of debt securities that have become due and payable) or to the stated maturity or redemption
date, as the case may be, together with instructions from us irrevocably directing the trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;
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(2) we have paid all other sums then due and payable under such indenture by us;
and
(3) we have delivered to the trustee an officer’s certificate and an opinion of counsel, which state that all
conditions precedent under such indenture relating to the satisfaction and discharge of such indenture have been complied with.
No Personal Liability
of Directors, Managers, Officers, Employees, Partners, Members and Stockholders
No director, manager, officer, employee, incorporator,
partner, member or stockholder of the company or any guarantor, as such, shall have any liability for any of our or the guarantors’ obligations under the debt securities, the indentures, the guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each holder of debt securities, upon our issuance of the debt securities and execution of the indentures, waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the debt securities. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
Denominations
Unless stated otherwise in
the prospectus supplement for each issuance of debt securities, the debt securities will be issued in denominations of $1,000 each or integral multiples of $1,000.
Paying Agent and Registrar
The trustee
will initially act as paying agent and registrar for the debt securities. We may change the paying agent or registrar without prior notice to the holders of the debt securities, and we may act as paying agent or registrar.
Transfer and Exchange
A holder may
transfer or exchange debt securities in accordance with the applicable indenture. The registrar and the trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and we may require a holder to pay
any taxes and fees required by law or permitted by the applicable indenture. We are not required to transfer or exchange any debt security selected for redemption. In addition, we are not required to transfer or exchange any debt security for a
period of 15 days before a selection of debt securities to be redeemed.
Subordination
The payment of the principal of and premium, if any, and interest on subordinated debt securities and any of our other payment obligations in
respect of subordinated debt securities (including any obligation to repurchase subordinated debt securities) is subordinated in certain circumstances in right of payment, as set forth in the subordinated indenture, to the prior payment in full in
cash of all senior debt.
We also may not make any payment, whether by redemption, purchase, retirement, defeasance or otherwise, upon or
in respect of subordinated debt securities, except from a trust described under “— Legal Defeasance and Covenant Defeasance,” if
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a default in the payment of all or any portion of the obligations on any designated senior debt (“payment default”) occurs that has not been cured or waived, or
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any other default occurs and is continuing with respect to designated senior debt pursuant to which the maturity thereof may be accelerated (“nonpayment default”) and, solely with respect to this clause, the
trustee for the subordinated debt securities receives a notice of the default (a “payment blockage notice”) from the trustee or other representative for the holders of such designated senior debt.
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Cash payments on subordinated debt securities will be resumed (a) in the case of a payment
default, upon the date on which such default is cured or waived, and (b) in case of a nonpayment default, the earliest of the date on which such nonpayment default is cured or waived, the termination of the payment blockage period by written
notice to the trustee for the subordinated debt securities from the trustee or other representative for the holders of such designated senior debt, the payment in full of such designated senior debt or 179 days after the date on which the applicable
payment blockage notice is received. No new payment blockage period may be commenced unless and until 360 days have elapsed since the date of commencement of the payment blockage period resulting from the immediately prior payment blockage notice.
No nonpayment default in respect of designated senior debt that existed or was continuing on the date of delivery of any payment blockage notice to the trustee for the subordinated debt securities will be, or be made, the basis for a subsequent
payment blockage notice unless such default shall have been cured or waived for a period of no less than 90 consecutive days.
Upon any
payment or distribution of our assets or securities (other than with the money, securities or proceeds held under any defeasance trust established in accordance with the subordinated indenture) in connection with any dissolution or winding up or
total or partial liquidation or reorganization of us, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings or other marshalling of assets for the benefit of creditors, all amounts due or to become due
upon all senior debt shall first be paid in full, in cash or cash equivalents, before the holders of the subordinated debt securities or the trustee on their behalf shall be entitled to receive any payment by or on behalf of us on account of the
subordinated debt securities, or any payment to acquire any of the subordinated debt securities for cash, property or securities, or any distribution with respect to the subordinated debt securities of any cash, property or securities. Before any
payment may be made by, or on behalf of, us on any subordinated debt security (other than with the money, securities or proceeds held under any defeasance trust established in accordance with the subordinated indenture) in connection with any such
dissolution, winding up, liquidation or reorganization, any payment or distribution of our assets or securities, to which the holders of subordinated debt securities or the trustee on their behalf would be entitled, shall be made by us or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person making such payment or distribution, or by the holders or the trustee if received by them or it, directly to the holders of senior debt or their representatives or
to any trustee or trustees under any indenture pursuant to which any such senior debt may have been issued, as their respective interests appear, to the extent necessary to pay all such senior debt in full, in cash or cash equivalents, after giving
effect to any concurrent payment, distribution or provision therefor to or for the holders of such senior debt.
As a result of these
subordination provisions, in the event of our liquidation, bankruptcy, reorganization, insolvency, receivership or similar proceeding or an assignment for the benefit of our creditors or a marshalling of our assets or liabilities, holders of
subordinated debt securities may receive ratably less than other creditors.
Payment and Transfer
Principal, interest and any premium on fully registered debt securities will be paid at designated places. Payment will be made by check mailed
to the persons in whose names the debt securities are registered on days specified in the indentures or any prospectus supplement. Debt securities payments in other forms will be paid at a place designated by us and specified in a prospectus
supplement.
Fully registered debt securities may be transferred or exchanged at the office of the trustee or at any other office or
agency maintained by us for such purposes, without the payment of any service charge except for any tax or governmental charge.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global certificates that we will deposit
with a depositary identified in the applicable prospectus supplement. Unless and until it is exchanged in whole or in part for the individual debt securities that it represents, a global security may not be transferred except as a whole:
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by the applicable depositary to a nominee of the depositary;
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by any nominee to the depositary itself or another nominee; or
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by the depositary or any nominee to a successor depositary or any nominee of the successor.
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We will describe the specific terms of the depositary arrangement with respect to a series of debt securities in the applicable prospectus
supplement. We anticipate that the following provisions will generally apply to depositary arrangements.
When we issue a global security
in registered form, the depositary for the global security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual debt securities represented by that global security to the
accounts of persons that have accounts with the depositary (“participants”). Those accounts will be designated by the dealers, underwriters or agents with respect to the underlying debt securities or by us if those debt securities are
offered and sold directly by us. Ownership of beneficial interests in a global security will be limited to participants or persons that may hold interests through participants. For interests of participants, ownership of beneficial interests in the
global security will be shown on records maintained by the applicable depositary or its nominee. For interests of persons other than participants, that ownership information will be shown on the records of participants. Transfer of that ownership
will be effected only through those records. The laws of some states require that certain purchasers of securities take physical delivery of securities in definitive form. These limits and laws may impair our ability to transfer beneficial interests
in a global security.
As long as the depositary for a global security, or its nominee, is the registered owner of that global security,
the depositary or nominee will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture. Except as provided below, owners of beneficial interests in a global
security:
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will not be entitled to have any of the underlying debt securities registered in their names;
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will not receive or be entitled to receive physical delivery of any of the underlying debt securities in definitive form; and
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will not be considered the owners or holders under the indenture relating to those debt securities.
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Payments of the principal of, any premium on and any interest on individual debt securities represented by a global security registered in the
name of a depositary or its nominee will be made to the depositary or its nominee as the registered owner of the global security representing such debt securities. Neither we, the trustee for the debt securities, any paying agent nor the registrar
for the debt securities will be responsible for any aspect of the records relating to or payments made by the depositary or any participants on account of beneficial interests in the global security.
We expect that the depositary or its nominee, upon receipt of any payment of principal, any premium or interest relating to a global security
representing any series of debt securities, immediately will credit participants’ accounts with the payments. Those payments will be credited in amounts proportional to the respective beneficial interests of the participants in the principal
amount of the global security as shown on the records of the depositary or its nominee. We also expect that payments by participants to owners of beneficial interests in the global security held through those participants will be governed by
standing instructions and customary practices. This is now the case with securities held for the accounts of customers registered in “street name.” Those payments will be the sole responsibility of those participants.
If the depositary for a series of debt securities is at any time unwilling, unable or ineligible to continue as depositary and we do not
appoint a successor depositary within 90 days, we will issue individual debt securities of that series in exchange for the global security or securities representing that series. In addition, we may at any time in our sole discretion determine not
to have any debt securities of a series represented by one or more global securities. In that event, we will issue individual debt securities of that series in exchange for the global security or securities. The foregoing is subject to any
limitations described in the applicable prospectus supplement.
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In any such instance, the owner of the beneficial interest will be entitled to physical delivery of individual debt securities equal in principal amount to the beneficial interest and to have the
debt securities registered in its name. Those individual debt securities will be issued in any authorized denominations.
Governing Law
Each indenture and the debt securities will be governed by and construed in accordance with the laws of the State of New York.
Information Concerning the Trustee
The
Bank of New York Mellon will be the trustee under the indentures. A successor trustee may be appointed in accordance with the terms of the indentures.
The indentures and the provisions of the Trust Indenture Act incorporated by reference therein will contain certain limitations on the rights
of the trustee, should it become a creditor of us, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest (within the meaning of the Trust Indenture Act), it must eliminate such conflicting interest or resign.
A single banking or financial institution may act as trustee with respect to both the subordinated indenture and the senior indenture. If this
occurs, and should a default occur with respect to either the subordinated debt securities or the senior debt securities, such banking or financial institution would be required to resign as trustee under one of the indentures within 90 days of such
default, pursuant to the Trust Indenture Act, unless such default were cured, duly waived or otherwise eliminated.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase common stock, preferred stock, debt securities, rights or units. We may
issue warrants independently or together with other securities that may be attached to or separate from the warrants. If we issue warrants, we may do so under one or more warrant agreements between us and a warrant agent that we will name in the
prospectus supplement.
The prospectus supplement relating to any warrants being offered will include specific terms relating to the
offering. These terms will include some or all of the following:
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the title of the warrants;
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the securities purchasable upon the exercise of such warrants;
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the aggregate number of warrants to be issued;
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the principal amount of securities purchasable upon exercise of each warrant;
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the price or prices at which each warrant will be issued;
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the procedures for exercising the warrants;
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the date upon which the exercise of warrants will commence;
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the expiration date and any other material terms of the warrants; and
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any other terms of such warrants, including the terms, procedures and limitations relating to the exchange and exercise of such warrants.
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The warrants do not confer upon the holders thereof any voting or other rights of stockholders.
DESCRIPTION OF RIGHTS
We may issue rights to purchase our common stock, preferred stock, debt securities, warrants or units. The rights may be issued independently
or together with any other security offered hereby and may or may not be transferable by the persons purchasing or receiving the rights in such offering. In connection with any offering of such rights, we may enter into a standby underwriting or
other arrangement with one or more underwriters or other purchasers pursuant to which such underwriters or other purchasers may be required to purchase any offered securities remaining unsubscribed for after such rights offering.
Each series of rights will be issued under a separate rights agreement that we will enter into with one or more banks, trust companies or
other financial institutions, as rights agent, all of which will be set forth in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the certificates relating to the rights and will not assume any
obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The
applicable prospectus supplement relating to any rights that we offer will include specific terms of any offering of rights for which this prospectus is being delivered, including the following:
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the price, if any, per right;
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the exercise price payable for each share of debt securities, common stock, preferred stock, warrants or units upon the exercise of the rights;
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the number of rights issued or to be issued to each stockholder;
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the number and terms of the shares of debt securities, common stock, preferred stock, warrants or units that may be purchased per each right;
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the extent to which the rights are transferable;
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any other terms of the rights, including the terms, procedures and limitations relating to the exchange and exercise of the rights;
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the respective dates on which the holder’s ability to exercise the rights shall commence and shall expire;
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the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such rights.
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The description in the applicable prospectus supplement of any rights that we may offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable rights certificate, which will be filed with the SEC.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more shares of common stock, shares of preferred
stock, debt securities, warrants, rights or any combination of such securities.
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The applicable prospectus supplement will specify the following terms of any units in respect of
which this prospectus is being delivered:
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the terms of the units and of any of the common stock, preferred stock, debt securities, warrants and rights comprising the units, including whether and under what circumstances the securities comprising the units may
be traded separately;
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a description of the terms of any unit agreement governing the units; and
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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PLAN OF DISTRIBUTION
We and selling security holders may sell the securities covered by this prospectus through agents, underwriters or dealers, or directly to one
or more purchasers without using underwriters or agents.
We and selling security holders may designate agents to solicit offers to
purchase our securities. We will name any agent involved in offering or selling securities, and any commissions that will be paid to the agent, in the applicable prospectus supplement. Unless we indicate otherwise in a prospectus supplement, agents
will act on a best efforts basis for the period of their appointment.
Agents could make sales in privately negotiated transactions and/or
any other method permitted by law, including sales deemed to be an “at the market” offering as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the NYSE MKT, the existing trading
market for our common stock, or sales made to or through a market maker other than on an exchange.
If underwriters are used in the sale,
the securities will be acquired by the underwriters for their own account. The underwriters may resell the securities in one or more transactions (including block transactions), at negotiated prices, at a fixed public offering price or at varying
prices determined at the time of sale. We will include the names of the managing underwriter(s), as well as any other underwriters, and the terms of the transaction, including the compensation the underwriters and dealers will receive, in a
prospectus supplement. If we use an underwriter, we will execute an underwriting agreement with the underwriter(s) at the time that an agreement is reached for the sale of securities. The obligations of the underwriters to purchase the securities
will be subject to certain conditions contained in the underwriting agreement. The underwriters will be obligated to purchase all of the securities of the series offered if any of the securities are purchased. Any public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. The underwriters will use a prospectus supplement to sell securities.
If we use a dealer, we will act as principal and will sell securities to the dealer. The dealer will then sell securities to the public at
varying prices that the dealer will determine at the time it sells securities. We will include the name of the dealer and the terms of the transactions with the dealer in the applicable prospectus supplement.
We may directly solicit offers to purchase securities, and we may directly sell securities to institutional or other investors. In this case,
no underwriters or agents would be involved. We will describe the terms of our direct sales in the applicable prospectus supplement.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act
and any discounts or commissions received by them from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. In connection with the sale of the securities offered by
this prospectus, underwriters may receive compensation from us or from the purchasers of the securities, for whom they may act as agents, in the form of discounts, concessions or commissions. Any underwriters, dealers or agents will be identified
and their compensation
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described in the applicable prospectus supplement. We may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities
under the Securities Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make. Underwriters, dealers and agents may engage in transactions with, or perform services for, us or our subsidiaries
in the ordinary course of their business.
Unless otherwise specified in the applicable prospectus supplement, all securities offered by
us under this prospectus will be a new issue of securities with no established trading market, other than the common stock, which is currently listed and traded on the NYSE MKT. We may elect to list any other class or series of securities on a
national securities exchange or a foreign securities exchange but are not obligated to do so. Any common stock sold by this prospectus will be listed for trading on the NYSE MKT, or such other exchanges as our common stock may be listed for trading
at the time of issuance, subject to official notice of issuance. We cannot give you any assurance as to the liquidity of the trading markets for any of the securities.
Any underwriter to whom securities are sold by us for public offering and sale may engage in over-allotment transactions, stabilizing
transactions, syndicate covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment transactions involve sales by the underwriters of the securities in excess of the offering size, which creates a
syndicate short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate covering transactions involve purchases of the securities in the open
market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member
are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. These activities may cause the price of the securities to be higher than it would otherwise be. The underwriters will not be obligated to engage in
any of the aforementioned transactions and may discontinue such transactions at any time without notice.
In compliance with guidelines of
the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this
prospectus and any applicable prospectus supplement.
LEGAL MATTERS
The validity of the securities offered in this prospectus will be passed upon for us by Andrews Kurth LLP, Houston, Texas. Any underwriter
will be advised about other issues relating to any offering by its own legal counsel. If such counsel to underwriters passes on legal matters in connection with an offering of securities made by this prospectus, and a related prospectus supplement,
that counsel will be named in the applicable prospectus supplement related to that offering.
EXPERTS
The consolidated financial statements and schedule of Cheniere Energy, Inc. as of and for the year ended December 31, 2014, and
management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2014 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Cheniere Energy, Inc. at December 31, 2013, and for each of the two years in the period ended
December 31, 2013 (including the schedule for each of the two years in the period
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ended December 31, 2013 appearing therein), appearing in Cheniere Energy, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2014 have been audited by
Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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59,116 Shares
of Common
Stock
PROSPECTUS SUPPLEMENT
March 29, 2017
Cheniere Energy (AMEX:LNG)
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