Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SNYDER OIL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2306158
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Peter E. Lorenzen
Snyder Oil Corporation
777 Main Street 777 Main Street
Fort Worth, Texas 76102 Fort Worth, Texas 76102
(817) 338-4043 (817) 882-5905
(Address, including zip code, and (Name, address, including zip
telephone number, including area code and telephone number,
code, of registrant's principal including area code, of agent
executive offices) for service)
Copies to
Thomas W. Briggs
Kelly, Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, Texas 76102
(817) 332-2500
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
Proposed
Title of Each Maximum
Class Amount Aggregate Proposed Amount of
of Securities to To Be Offering Maximum Registration
Be Registered Registered Price Aggregate Fee
Per Offering
Unit (1) Price (2)
Debt Securities
(3)
Preferred Stock,
par value $.01
per share (4)(5)
Depository Shares (6) (6) (6) (6)
(5)
Common Stock, par
value $.01 per
share (7)
Warrants (8)
Total
$300,000,000 $300,000,000
(9)(10) 100% (9) $88,500 (11)
Footnotes to Table on next Page
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein also relates to a total of $75,000,000 of Debt Securities,
Debt Warrants, Preferred Stock, Depository Shares, Preferred Stock Warrants,
Common Stock and Common Stock Warrants of the Registrant previously registered
pursuant to Rule 415 under Registration Statement on Form S-3 No. 33-54809 and
not issued. This Registration Statement constitutes Post-Effective Amendment
No. 2 to the Registration Statement on Form S-3 No. 33-54809.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
(1) The proposed maximum offering price per unit will be determined from
time to time by the Registrant in connection with the issuance by
the Registrant of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated
solely for the purpose of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(3) Subject to note (9) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities. If any Debt
Securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed
$300,000,000 less the dollar amount of any securities previously
issued hereunder.
(4) Subject to note (9) below, there is being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold,
from time to time, by the Registrant.
(5) Subject to note (9) below, there is being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the
event the Registrant elects to offer to the public fractional
interests in shares of Preferred Stock Registered hereunder,
Depositary Receipts will be distributed to those persons purchasing
the fractional interests and the shares of Preferred Stock will be
issued to the depositary under the Deposit Agreement.
(6) Not applicable pursuant to General Instruction II.D. of Form S-3.
(7) Subject to note (9) below, there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from
time to time, by the Registrant. There are also being registered
hereunder such indeterminate number of shares of Common Stock as
shall be issuable upon conversion or redemption of Preferred Stock
or Debt Securities registered hereunder.
(8) Subject to note (9) below, there is being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Debt Securities, Preferred Stock, or Common Stock
registered hereunder.
(9) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration
Statement exceed $300,000,000 or the equivalent thereof in one or
more foreign currencies, foreign currency units, or composite
currencies. The aggregate amount of Common Stock registered
hereunder is further limited to that which is permissible under Rule
415(a)(4) under the Securities Act of 1933. The securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(10) Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus constituting a part of this Registration Statement also
relates to $75,000,000 of the registrant's securities registered
under Registration Statement No. 33-54809.
(11) A registration fee was previously paid in connection with the
registration of a total of $250,000,000 of Debt Securities, Debt
Warrants, Preferred Stock, Depository Shares, Preferred Stock
Warrants, Common Stock and Common Stock Warrants of the Registrant
pursuant to Rule 415 on Registration Statement No. 33-54809, and
$66,375 of the registration fee is being paid herewith in connection
with the registration of an additional $225,000,000 of securities
registered hereunder.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION, DATED MAY 7, 1998
PROSPECTUS
Snyder Oil Corporation
DEBT SECURITIES
PREFERRED STOCK
DEPOSITORY SHARES
COMMON STOCK
WARRANTS
Snyder Oil Corporation (the "Company"), a Delaware corporation, may offer
from time to time (a) debt securities ("Debt Securities"), which may be
subordinated to other indebtedness of the Company, (b) warrants to purchase
Debt Securities ("Debt Warrants"), (c) shares of preferred stock, par value
$.01 per share ("Preferred Stock"), (d) warrants to purchase shares of
Preferred Stock ("Preferred Stock Warrants"), (e) depositary shares
representing entitlement to all rights and preferences of a fraction of a
share of Preferred Stock of a specified series ("Depositary Shares"), (f)
shares of common stock, par value $.01 per share ("Common Stock"), or (g)
warrants to purchase shares of Common Stock ("Common Stock Warrants"), all
having an aggregate initial public offering price not to exceed $300,000,000
or the equivalent thereof in one or more foreign currencies, foreign currency
units or composite currencies, including European Currency Units. The Debt
Warrants, Preferred Stock Warrants and Common Stock Warrants are referred to
herein collectively as "Warrants," and the Debt Securities, Preferred Stock,
Depositary Shares, Common Stock and Warrants are referred to herein
collectively as the "Offered Securities." The Offered Securities may be
offered, separately or as units with other Offered Securities, in separate
series in amounts, at prices and on terms to be determined at or prior to the
time of sale.
The specific terms of the Offered Securities with respect to which this
Prospectus is being delivered will be set forth in an accompanying supplement
to this Prospectus (a "Prospectus Supplement"), together with the terms of the
offering of the Offered Securities and the initial price and the net proceeds
to the Company from the sale thereof. The Prospectus Supplement will include,
with regard to the particular Offered Securities, the following information:
(a) in the case of Debt Securities, the specific designation, aggregate
principal amount, ranking, authorized denomination, maturity, rate or method
of calculation of interest and dates for payment thereof, any exchangeability,
conversion, redemption, prepayment, or sinking fund provisions, the currency
or currency unit in which principal, premium, or interest is payable, the
designation of the trustee acting under the applicable indenture, and the
initial offering price; (b) in the case of Preferred Stock, the designation,
number of shares, liquidation preference per share, initial public offering
price, dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall accrue, any
redemption or sinking fund provisions, any conversion or exchange rights, and
whether the Company has elected to offer the Preferred Stock in the form of
Depositary Shares; (c) in the case of Common Stock, the number of shares and
the terms of the offering and sale thereof; (d) in the case of Warrants, the
number and terms thereof, the designation and the number of securities
issuable upon exercise, the exercise price, the terms of the offering and sale
thereof, and where applicable, the duration and detachability thereof; and (e)
in the case of all Offered Securities, whether the Offered Securities will be
offered separately or as a unit with other Offered Securities. The Prospectus
Supplement will also contain information, where applicable, about material
United States federal income tax considerations relating to, and any listing
on a securities exchange of, the Offered Securities covered by the Prospectus
Supplement.
The Company may sell the Offered Securities directly, through agents
designated from time to time, or through underwriters or dealers. If any
agents, underwriters or dealers are involved in the sale of the Offered
Securities, the names of the agents, underwriters or dealers and any
applicable commissions or discounts and the net proceeds to the Company from
the sale will be set forth in the applicable Prospectus Supplement.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998.
CERTAIN PERSONS PARTICIPATING IN AN OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE OFFERED
SECURITIES, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN SUCH OFFERED SECURITIES, AND THE IMPOSITION OF A PENALTY BID,
DURING AND AFTER AN OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"). It files reports, proxy statements,
and other information with the Securities and Exchange Commission (the "SEC").
Those reports, proxy statements, and other information can be inspected and
copied at the public reference facilities maintained by the SEC at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of
the SEC at 7 World Trade Center, Suite 1300, New York, New York 10048, and 500
West Madison Street, Suite 1400, Chicago, Illinois 60611.
Copies of these materials can be obtained at prescribed rates from the
Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549. These reports, proxy statements and other information may also be
obtained without charge from the web site that the SEC maintains at
http://www.sec.gov.
These reports, proxy statements, and other information also may be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The Company has filed with the SEC a Registration Statement on Form S-3
(the "Registration Statement") under the Securities Act of 1933
(the"Securities Act") with respect to the Offered Securities. This Prospectus
and any accompanying Prospectus Supplement do not contain all the information
set forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC. For further information
with respect to the Company and the Offered Securities, reference is made to
the Registration Statement and to the exhibits thereto. Statements contained
herein concerning the provisions of certain documents are not necessarily
complete, and in each instance, reference is made to the copy of the document
filed as an exhibit to the Registration Statement or otherwise filed with the
SEC. Each such statement is qualified in its entirety by that reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following document has been filed by the Company with the SEC, is
incorporated by reference into this Prospectus, and is deemed to be a part of
this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1997.
All documents filed by the Company pursuant to Section 13(a), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of the
filing of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any subsequently filed document that
also is or is deemed to be incorporated by reference herein or in any
Prospectus Supplement modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part of this
Prospectus, except as so modified or superseded.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of any
person, a copy of any or all of the documents referred to above that have been
or may be incorporated by reference into this Prospectus, other than exhibits
to the documents (unless the exhibits are specifically incorporated by
reference into the documents). Written or telephone request for the copies
should be directed to Investor Relations, Snyder Oil Corporation, 777 Main
Street, Fort Worth, Texas 76102 (Telephone: (817) 882-5903).
THE COMPANY
The Company is an independent energy company engaged in the production,
development, acquisition and exploration of domestic oil and gas properties,
primarily in the Gulf of Mexico, the Rocky Mountains and northern Louisiana.
The Company's principal executive office is located at 777 Main Street,
Fort Worth, Texas 76102, and its telephone number is (817) 338-4043.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of Offered Securities will be used for general
corporate purposes, which may include repayment of indebtedness, redemption or
repurchase of securities of the Company or any subsidiary, additions to
working capital, and capital expenditures, including exploration, development
and acquisitions.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges and the ratio of earnings to
combined fixed charges and preferred stock dividends for the Company and its
subsidiaries for the periods indicated below was:
Year ended December 31,
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1993 1994 1995 1996 1997
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Ratio of earnings to fixed charges 5.24x 2.31x N/A(1)3.91x 3.08x
Ratio of earnings to combined fixed 1.93x 1.13x N/A(2)3.10x 2.42x
charges and preferred stock dividends
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(1) Earnings were inadequate to cover charges by $40.6 million.
(2) Earnings were inadequate to cover combined fixed charges and preferred
dividends by $46.8 million.
For purposes of calculating the above ratios, earnings are net income (loss)
before income taxes, minority interest, extraordinary item and interest
expense. Fixed charges consist of interest expense and preferred stock
dividends of consolidated subsidiaries. Preferred stock dividends represent
an amount equal to income, before income tax, which would be required to meet
the dividends of the Company's preferred stock.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which the
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to the Debt Securities.
Accordingly, for a description of the terms of a particular issue of Debt
Securities, reference must be made to both the Prospectus Supplement relating
thereto and to the following description.
The Debt Securities will be general obligations of the Company and may be
subordinated to Senior Indebtedness (as defined below) of the Company to the
extent set forth in the Prospectus Supplement relating thereto. See
"Description of Debt Securities -- Subordination." Debt Securities will be
issued under an indenture (the "Indenture"), between the Company and one or
more commercial banks to be selected as trustees (the trustee or trustees
selected are referred to collectively as the "Trustee"). A copy of the
Indenture is filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
The Indenture will also be available for inspection at the corporate trust
office of the Trustee. The following discussion of certain provisions of the
Indenture is a summary only and does not purport to be a complete description
of the terms and provisions of the Indenture. Accordingly, the following
discussion is qualified in its entirety by reference to the provisions of the
Indenture, including the definition therein of terms used below with their
initial letters capitalized.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued
in one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities of the series with respect to which the
Prospectus Supplement is being delivered:
(a) The title of the Debt Securities of the series;
(b) Any limit on the aggregate principal amount of the Debt
Securities of the series that may be authenticated and
delivered under the Indenture;
(c) The date or dates on which the principal and premium with
respect to the Debt Securities of the series are payable;
(d) The rate or rates (which may be fixed or variable) at which
the Debt Securities of the series shall bear interest (if
any) or the method of determining the rate or rates, the
date or dates from which the interest shall accrue, the
interest payment dates on which the interest shall be
payable or the method by which the dates will be determined,
the record dates for the determination of holders thereof to
whom the interest is payable (in the case of Registered
Securities), and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve
30-day months;
(e) The place or places, if any, in addition to or instead of
the corporate trust office of the Trustee (in the case of
Registered Securities) or the principal London office of the
Trustee (in the case of Bearer Securities), where the
principal, premium, and interest with respect to Debt
Securities of the series shall be payable;
(f) The price or prices at which, the period or periods within
which, and the terms and conditions upon which, Debt
Securities of the series may be redeemed, in whole or in
part, at the option of the Company or otherwise;
(g) Whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both and, if
Bearer Securities are to be issued, whether coupons will be
attached thereto, whether Bearer Securities of the series
may be exchanged for Registered Securities of the series,
and the circumstances under which and the places at which
any such exchanges, if permitted, may be made;
(h) If any Debt Securities of the series are to be issued as
Bearer Securities or as one or more Global Securities (as
defined below) representing individual Bearer Securities of
the series, whether certain provisions for the payment of
additional interest or tax redemptions shall apply; whether
interest with respect to any portion of a temporary Bearer
Security of the series payable with respect to any interest
payment date prior to the exchange of the temporary Bearer
Security for definitive Bearer Securities of the series
shall be paid to any clearing organization with respect to
the portion of the temporary Bearer Security held for its
account and, in such event, the terms and conditions
(including any certification requirements) upon which any
such interest payment received by a clearing organization
will be credited to the persons entitled to interest payable
on the interest payment date; and the terms upon which a
temporary Bearer Security may be exchanged for one or more
definitive Bearer Securities of the series;
(i) The obligation, if any, of the Company to redeem, purchase
or repay Debt Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
holder thereof and the price or prices at which, the period
or periods within which, and the terms and conditions upon
which, Debt Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligations;
(j) The terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common
Stock, Preferred Stock (which may be represented by
Depositary Shares), other Debt Securities, or warrants for
Common Stock, Preferred Stock, or indebtedness or other
securities of any kind of the Company or any other issuer or
obligor and the terms and conditions upon which the
conversion or exchange shall be effected, including the
initial conversion or exchange price or rate, the conversion
or exchange period, and any other additional provisions;
(k) If other than denominations of $1,000 or any integral
multiple thereof, the denominations in which Debt Securities
of the series shall be issuable;
(l) If the amount of principal, premium or interest with respect
to the Debt Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner
in which the amounts will be determined;
(m) If the principal amount payable at the stated maturity of
Debt Securities of the series will not be determinable as of
any one or more dates prior to the stated maturity, the
amount that will be deemed to be the principal amount as of
any date for any purpose, including the principal amount
thereof which will be due and payable upon any maturity
other than the stated maturity or which will be deemed to be
outstanding as of any date (or, in any such case, the manner
in which the deemed principal amount is to be determined),
and if necessary, the manner of determining the equivalent
thereof in United States currency;
(n) Any changes or additions to the provisions of the Indenture
dealing with defeasance, including the addition of
additional covenants that may be subject to the Company's
covenant defeasance option;
(o) If other than the coin or currency of the United States as
at the time of payment is legal tender for payment of public
and private debts, the coin or currency or currencies or
units of two or more currencies in which payment of the
principal, premium, and interest with respect to Debt
Securities of the series shall be payable;
(p) If other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series that
shall be payable upon declaration of acceleration of the
maturity thereof or provable in bankruptcy;
(q) The terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series
of any properties, assets, moneys, proceeds, securities, or
other collateral, including whether certain provisions of
the Trust Indenture Act are applicable and any corresponding
changes to provisions of the Indenture as then in effect;
(r) Any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change
in the right of the Trustee or the holders to declare the
principal, premium and interest with respect to the Debt
Securities due and payable;
(s) If the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security, the terms
and conditions, if any, upon which the Global Security may
be exchanged in whole or in part for other individual Debt
Securities in definitive registered form, the Depositary for
the Global Security, and the form of any legend or legends
to be borne by the Global Security in addition to or in lieu
of the legend referred to in the Indenture;
(t) Any Trustee, authenticating or paying agents, transfer
agents or registrars;
(u) The applicability of, and any addition to or change in, the
covenants and definitions then set forth in the Indenture or
in the terms then set forth in the Indenture relating to
permitted consolidations, mergers or sales of assets,
including conditioning any merger, conveyance, transfer or
lease permitted by the Indenture upon the satisfaction of an
indebtedness coverage standard by the Company and any
successor to the Company;
(v) The terms, if any, of any guarantee of the payment of
principal, premium and interest with respect to Debt
Securities of the series and any corresponding changes to
the provisions of the Indenture as then in effect;
(w) The subordination, if any, of the Debt Securities of the
series pursuant to the Indenture and any changes or
additions to the provisions of the Indenture relating to
subordination;
(x) With regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the
Trustee; and
(y) Any other terms of the Debt Securities of the series (which
terms shall not be prohibited by the provisions of the
Indenture).
The Prospectus Supplement will also describe any material United
States federal income tax consequences or other special considerations
applicable to the series of Debt Securities to which the Prospectus Supplement
relates, including those applicable to (a) Bearer Securities, (b) Debt
Securities with respect to which payments of principal, premium or interest
are determined with reference to an index or formula (including changes in
prices of particular securities, currencies or commodities), (c) Debt
Securities with respect to which principal, premium or interest is payable in
a foreign or composite currency, (d) Debt Securities that are issued at a
discount below their stated principal amount, bearing no interest or interest
at a rate that at the time of issuance is below market rates ("Original Issue
Discount Debt Securities"), and (e) variable rate Debt Securities that are
exchangeable for fixed rate Debt Securities.
Payments of interest on Registered Securities may be made at the option
of the Company by check mailed to the registered holders thereof or, if so
provided in the applicable Prospectus Supplement, at the option of a holder by
wire transfer to an account designated by the holder. Except as otherwise
provided in the applicable Prospectus Supplement, no payment on a Bearer
Security will be made by mail to an address in the United States or by wire
transfer to an account in the United States.
Unless otherwise provided in the applicable Prospectus Supplement,
Registered Securities may be transferred or exchanged at the office of the
Trustee at which its corporate trust business is principally administered in
the United States or at the office of the Trustee or the Trustee's agent in
the Borough of Manhattan, the City and State of New York, at which its
corporate agency business is conducted, subject to the limitations provided in
the Indenture, without the payment of any service charge, other than any tax
or governmental charge payable in connection therewith. Bearer Securities will
be transferable only by delivery. Provisions with respect to the exchange of
Bearer Securities will be described in the Prospectus Supplement relating to
the Bearer Securities.
All funds paid by the Company to a paying agent for the payment of
principal, premium, or interest with respect to any Debt Securities that
remain unclaimed at the end of two years after the principal, premium, or
interest shall have become due and payable will be repaid to the Company, and
the holders of the Debt Securities or any coupons appertaining thereto will
thereafter look only to the Company for payment thereof.
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities. A Global Security is a Debt Security
that represents, and is denominated in an amount equal to, the aggregate
principal amount of all outstanding Debt Securities of a series, or any
portion thereof, in either case having the same terms, including the same
original issue date, date or dates on which principal and interest are due,
and interest rate or method of determining interest. A Global Security will be
deposited with, or on behalf of, a Depositary, which will be identified in the
Prospectus Supplement relating to the Debt Securities. Global Securities may
be issued in either registered or bearer form and in either temporary or
definitive form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or another
nominee of the Depositary, or by the Depositary or any nominee of the
Depositary to a successor Depositary or any nominee of the successor.
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
the Debt Securities. The Company anticipates that the following provisions
will generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for the Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Debt Securities represented by
the Global Security to the accounts of persons that have accounts with the
Depositary ("participants"). The accounts shall be designated by the dealers
or underwriters with respect to the Debt Securities or, if the Debt Securities
are offered and sold directly by the Company or through one or more agents, by
the Company or the agents. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that hold beneficial
interests through participants. Ownership of beneficial interests in the
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depositary (with respect to
interests of participants) or records maintained by participants (with respect
to interests of persons other than participants). The laws of some states
require that certain purchasers of securities take physical delivery of the
securities in definitive form. Such limitations and laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner or holder of the Global Security, the Depositary or nominee,
as the case may be, will be considered the sole owner or holder of the
individual Debt Securities represented by the Global Security for all purposes
under the Indenture. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have any of the individual Debt
Securities represented by the Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any of the Debt
Securities in definitive form, and will not be considered the owners or
holders thereof under the Indenture.
Subject to the restrictions described under "Description of Debt
Securities--Limitations on Issuance of Bearer Securities," payments of
principal, premium and interest with respect to individual Debt Securities
represented by a Global Security will be made to the Depositary or its
nominee, as the case may be, as the registered owner or holder of the Global
Security. Neither the Company, the Trustee, any paying agent or registrar for
the Debt Securities, or any agent of the Company or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made by the Depositary, its nominee, or any participants on account
of beneficial interests in the Global Security or for maintaining, supervising
or reviewing any records relating to the beneficial interests, (b) the payment
to the owners of beneficial interests in the Global Security of amounts paid
to the Depositary or its nominee, or (c) any other matter relating to the
actions and practices of the Depositary, its nominee or its participants.
Neither the Company, the Trustee, any paying agent or registrar for the Debt
Securities, nor any agent of the Company or the Trustee will be liable for any
delay by the Depositary, its nominee or any of its participants in identifying
the owners of beneficial interests in the Global Security, and the Company and
the Trustee may conclusively rely on, and will be protected in relying on,
instructions from the Depositary or its nominee for all purposes.
The Company expects that the Depositary for a series of Debt Securities
or its nominee, upon receipt of any payment of principal, premium or interest
with respect to a definitive Global Security representing any of the Debt
Securities, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of the Global Security, as shown on the records of the
Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in the Global Security held
through the participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers and registered in street name. The payments will be the
responsibility of the participants. Receipt by owners of beneficial interests
in a temporary Global Security of payments of principal, premium or interest
with respect thereto will be subject to the restrictions described under
"Description of Debt Securities--Limitations on Issuance of Bearer
Securities."
If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary, the Company shall
appoint a successor depositary. If a successor depositary is not appointed by
the Company within 90 days, the Company will issue individual Debt Securities
of the series in exchange for the Global Security representing the series of
Debt Securities. In addition, the Company may at any time and in its sole
discretion, subject to any limitations described in the Prospectus Supplement
relating to the Debt Securities, determine no longer to have Debt Securities
of a series represented by a Global Security and, in that event, will issue
individual Debt Securities of the series in exchange for the Global Security
representing the series of Debt Securities. Furthermore, if the Company so
specifies with respect to the Debt Securities of a series, an owner of a
beneficial interest in a Global Security representing Debt Securities of the
series may, on terms acceptable to the Company, the Trustee, and the
Depositary for the Global Security, receive individual Debt Securities of the
series in exchange for the beneficial interests, subject to any limitations
described in the Prospectus Supplement relating to the Debt Securities. In any
such instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery of individual Debt Securities of the series
represented by the Global Security equal in principal amount to the beneficial
interest and to have the Debt Securities registered in its name (if the Debt
Securities are issuable as Registered Securities). Individual Debt Securities
of the series so issued will be issued (a) as Registered Securities in
denominations, unless otherwise specified by the Company, of $1,000 and
integral multiples thereof if the Debt Securities are issuable as Registered
Securities, (b) as Bearer Securities in the denomination or denominations
specified by the Company if the Debt Securities are issuable as Bearer
Securities, or (c) as either Registered Securities or Bearer Securities as
described above if the Debt Securities are issuable in either form. See,
however, "Description of Debt Securities--Limitations on Issuance of Bearer
Securities" for a description of certain restrictions on the issuance of
individual Bearer Securities in exchange for beneficial interests in a bearer
Global Security.
Limitations on Issuance of Bearer Securities
The Debt Securities of a series may be issued as Registered Securities
(which will be registered as to principal and interest in the register
maintained by the registrar for the Debt Securities) or Bearer Securities
(which will be transferable only by delivery). If the Debt Securities are
issuable as Bearer Securities, certain special limitations and considerations
will apply.
In compliance with United States federal income tax laws and regulations,
the Company and any underwriter, agent or dealer participating in an offering
of Bearer Securities will agree that, in connection with the original issuance
of the Bearer Securities and during the period ending 40 days after the issue
date, they will not offer, sell or deliver any such Bearer Security, directly
or indirectly, to a United States Person (as defined below) or to any person
within the United States, except to the extent permitted under United States
Treasury regulations.
Bearer Securities will bear a legend to the following effect: "Any United
States person who holds this obligation will be subject to limitations under
the United States federal income tax laws, including the limitations provided
in Sections 165(j) and 1287(a) of the Internal Revenue Code." The sections
referred to in the legend provide that, with certain exceptions, a United
States taxpayer who holds Bearer Securities will not be allowed to deduct any
loss with respect to, and will not be eligible for capital gain treatment with
respect to any gain realized on the sale, exchange, redemption or other
disposition of, the Bearer Securities.
For this purpose, "United States" includes the United States of America
and its possessions, and "United States person" means a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States, or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
Pending the availability of a definitive Global Security or individual
Bearer Securities, as the case may be, Debt Securities that are issuable as
Bearer Securities may initially be represented by a single temporary Global
Security, without interest coupons, to be deposited with a common depositary
in London for Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System ("Euroclear"), or Centrale de Livraison de
Valeurs Mobilieres S.A. ("CEDEL") for credit to the accounts designated by or
on behalf of the purchasers thereof. Following the availability of a
definitive Global Security in bearer form, without coupons attached, or
individual Bearer Securities and subject to any further limitations described
in the applicable Prospectus Supplement, the temporary Global Security will be
exchangeable for interests in the definitive Global Security or for the
individual Bearer Securities, respectively, only upon receipt of a
"Certificate of Non-U.S. Beneficial Ownership," which is a certificate to the
effect that a beneficial interest in a temporary Global Security is owned by
a person that is not a United States Person or is owned by or through a
financial institution in compliance with applicable United States Treasury
regulations. No Bearer Security will be delivered in or to the United States.
If so specified in the applicable Prospectus Supplement, interest on a
temporary Global Security will be paid to each of Euroclear and CEDEL with
respect to that portion of the temporary Global Security held for its account,
but only upon receipt as of the relevant interest payment date of a
Certificate of Non-U.S. Beneficial Ownership.
Subordination
Debt Securities of a series may be subordinated ("Subordinated Debt
Securities") to Senior Indebtedness (as defined below) to the extent set forth
in the Prospectus Supplement relating thereto. The holders of Debt Securities
(whether or not Subordinated Debt Securities) will be structurally
subordinated to the creditors of the Company's subsidiaries.
Subordinated Debt Securities of a series and any coupons appertaining
thereto will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture and the Prospectus Supplement relating to
the Subordinated Debt Securities, to the prior payment of all indebtedness of
the Company that is designated as "Senior Indebtedness" with respect to the
series.
"Senior Indebtedness," with respect to any series of Subordinated Debt
Securities, will consist of (a) any and all amounts payable under or with
respect to the Company's "Bank Indebtedness" and (b) any other indebtedness of
the Company, whether currently outstanding or hereafter issued. "Bank
Indebtedness" is defined as the Company's existing bank credit facility (the
"Credit Facility") and any renewals, amendments, extensions, supplements,
modifications, refinancing or replacements thereof (whether or not the
principal amount outstanding thereunder shall be increased); provided,
however, that Senior Indebtedness shall not include (i) any obligation owed to
a subsidiary or affiliate of the Company, (ii) any obligation that by the
terms of the instrument creating or evidencing the same is not superior in
right of payment to the Subordinated Debt Securities, and (iii) any obligation
constituting a trade account payable.
Upon any payment or distribution of assets of the Company to creditors or
upon a total or partial liquidation or dissolution of the Company or in a
bankruptcy, receivership or similar proceeding relating to the Company or its
property, holders of Senior Indebtedness shall be entitled to receive payment
in full in cash of the Senior Indebtedness before holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal, premium or
interest with respect to the Subordinated Debt Securities, and until the
Senior Indebtedness is paid in full, any distribution to which holders of
Subordinated Debt Securities would otherwise be entitled shall be made to the
holders of Senior Indebtedness (except that the holders may receive shares of
stock and any debt securities that are subordinated to Senior Indebtedness to
at least the same extent as the Subordinated Debt Securities).
No payment (other than any payment in the form of equity securities or
subordinated debt securities of the Company ("Permitted Junior Securities"))
on account of principal of and premium, if any, or interest on the
Subordinated Debt Securities may be made if a default in the payment of
principal of or premium, if any, or interest on, or fees with respect to
Specified Senior Indebtedness (as defined below) shall have occurred and be
continuing (a "Payment Event of Default"). In addition, no payment (other
than any payment in the form of Permitted Junior Securities) on account of
principal of or premium, if any, or interest on the Subordinated Debt
Securities may be made if a Non-Payment Event of Default (as defined below)
shall have occurred and be continuing, for the period (a "Payment Blockage
Period") commencing on receipt of notice of such event of default by the
Trustee or the Company from one or more holders of Specified Senior
Indebtedness (or their representative) and ending on the earliest of (i) 179
days thereafter, (ii) the date, as set forth in a written notice from the
holders of the Specified Senior Indebtedness (or their representative) to the
Company or the Trustee, on which such Non-Payment Event of Default is cured,
waived in writing or ceases to exist or such Specified Senior Indebtedness is
discharged or (iii) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from one or
more of the holders (or their representative) initiating such Payment Blockage
Period. Any number of such notices may be given; provided, however, that not
more than one Payment Blockage Period may be commenced during any period of
360 consecutive days. No default existing or continuing when a Payment
Blockage Period begins may be the basis for any subsequent Payment Blockage
Period. In the event that, notwithstanding the restrictions described in the
preceding sentences, the Company makes any payment to the Trustee or a Holder
of Subordinated Debt Securities prohibited by any such restriction, then such
payment will be required to be paid over and delivered forthwith to the
Company.
"Non-Payment Event of Default" means any event, circumstance, condition
or state of facts (other than a Payment Event of Default) the occurrence or
existence of which permits one or more holders of Specified Senior
Indebtedness (or a trustee or other representative of the holders thereof) to
declare such Specified Senior Indebtedness immediately due and payable prior
to the date on which such indebtedness would otherwise become due and payable.
"Specified Senior Indebtedness" means (i) all Bank Indebtedness and (ii)
any other Senior Indebtedness and any refinancings thereof having a principal
amount of at least $10,000,000 as of the date of determination and provided
that the agreements, indentures or other instruments pursuant to which such
Senior Indebtedness was issued specifically designates such Senior
Indebtedness as "Specified Senior Indebtedness" for purposes of the Indenture.
By reason of the subordination, in the event of insolvency, creditors of
the Company who are holders of Senior Indebtedness, as well as certain general
creditors of the Company, may recover more, ratably, than the holders of the
Subordinated Debt Securities.
Events of Default and Remedies
The following events are defined in the Indenture as "Events of Default"
with respect to a series of Debt Securities:
(a) Default in the payment of any installment of interest on any
Debt Securities of that series or any payment with respect
to the related coupons, if any, as and when the same shall
become due and payable (whether or not, in the case of
Subordinated Debt Securities, the payment shall be
prohibited by reason of the subordination provisions
described above) and continuance of the default for a period
of 30 days;
(b) Default in the payment of principal or premium with respect
to any Debt Securities of that series as and when the same
shall become due and payable, whether at maturity, upon
redemption, by declaration, upon required repurchase or
otherwise (whether or not, in the case of Subordinated Debt
Securities, the payment shall be prohibited by reason of the
subordination provisions described above);
(c) Default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when
the same shall become due and payable (whether or not, in
the case of Subordinated Debt Securities, the payment shall
be prohibited by reason of the subordination provisions
described above), and continuance of such default for a
period of 60 days;
(d) Failure on the part of the Company duly to observe or
perform any of the covenants or agreements on the part of
the Company in the Debt Securities of that series, in any
resolution of the Board of Directors of the Company
authorizing the issuance of that series of Debt Securities,
in the Indenture with respect to the series, or in any
supplemental indenture with respect to the series (other
than a covenant a default in the performance of which is
otherwise specifically dealt with) continuing for a period
of 90 days after the date on which written notice specifying
the failure and requiring the Company to remedy the same
shall have been given to the Company by the Trustee or to
the Company and the Trustee by the holders of at least 25%
in aggregate principal amount of the Debt Securities of that
series at the time outstanding;
(e) Indebtedness of the Company is not paid within any
applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the
total amount of the Indebtedness unpaid or accelerated
exceeds $10 million, and the default remains uncured or the
acceleration is not rescinded for 10 days after the date on
which written notice specifying the failure and requiring
the Company to remedy the same shall have been given to the
Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time outstanding;
(f) The Company shall (1) voluntarily commence any proceeding or
file any petition seeking relief under the United States
Bankruptcy Code or other federal or state bankruptcy,
insolvency or similar law, (2) consent to the institution
of, or fail to controvert within the time and in the manner
prescribed by law, any such proceeding or the filing of any
such petition, (3) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar
official for the Company or for a substantial part of its
property, (4) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (5) make a general assignment for the benefit of
creditors, (6) admit in writing its inability or fail
generally to pay its debts as they become due, (7) take
corporate action for the purpose of effecting any of the
foregoing, or (8) take any comparable action under any
foreign laws relating to insolvency;
(g) The entry of an order or decree by a court having competent
jurisdiction for (1) relief with respect to the Company or
a substantial part of any of its property under the United
States Bankruptcy Code or any other federal or state
bankruptcy, insolvency or similar law, (2) the appointment
of a receiver, trustee, custodian, sequestrator or similar
official for the Company or for a substantial part of any of
its property, or (3) the winding-up or liquidation of the
Company, and the order or decree shall continue unstayed and
in effect for 60 consecutive days, or any similar relief is
granted under any foreign laws and the order or decree stays
in effect for 60 consecutive days;
(h) Any judgment or decree for the payment of money in excess of
$10 million is entered against the Company by a court of
competent jurisdiction, which judgment is not covered by
insurance, and is not discharged and either (1) an
enforcement proceeding has been commenced by any creditor
upon the judgment or decree, or (2) there is a period of 60
days following the entry of the judgment or decree during
which the judgment or decree is not discharged or waived or
the execution thereof stayed and, in either case, the
default continues for 10 days after the date on which
written notice specifying the failure and requiring the
Company to remedy the same shall have been given to the
Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time outstanding;
or
(i) Any other Event of Default provided with respect to Debt
Securities of that series.
An Event of Default with respect to one series of Debt Securities is not
necessarily an Event of Default for another series.
If an Event of Default described in clause (a), (b), (c), (d), (e), (h),
or (i) above occurs and is continuing with respect to any series of Debt
Securities, unless the principal and interest with respect to all the Debt
Securities of the series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Debt Securities of the series then outstanding may declare the principal
amount (or, if Original Issue Discount Debt Securities, the portion of the
principal amount as may be specified in the series) of and interest on all the
Debt Securities of the series due and payable immediately. If an Event of
Default described in clause (f) or (g) above occurs, unless the principal and
interest with respect to all the Debt Securities of all series shall have
become due and payable, the principal amount (or, if Original Issue Discount
Debt Securities, the portion of the principal amount as may be specified in
the series) of and interest on all Debt Securities of all series then
outstanding shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holder of Debt
Securities.
If an Event of Default occurs and is continuing, the Trustee shall be
entitled and empowered to institute any action or proceeding for the
collection of the sums so due and unpaid or to enforce the performance of any
provision of the Debt Securities of the affected series or the Indenture, to
prosecute any such action or proceeding to judgment or final decree, and to
enforce any judgment or final decree against the Company or any other obligor
on the Debt Securities of the series. In addition, if there shall be pending
proceedings for the bankruptcy or reorganization of the Company or any other
obligor on the Debt Securities, or if a receiver, trustee, or similar official
shall have been appointed for its property, the Trustee shall be entitled and
empowered to file and prove a claim for the whole amount of principal, premium
and interest (or, in the case of Original Issue Discount Debt Securities, the
portion of the principal amount as may be specified in the terms of the
series) owing and unpaid with respect to the Debt Securities. No holder of
any Debt Security or coupon of any series shall have any right to institute
any action or proceeding upon or under or with respect to the Indenture, for
the appointment of a receiver or trustee, or for any other remedy, unless (a)
the holder previously shall have given to the Trustee written notice of an
Event of Default with respect to Debt Securities of that series and of the
continuance thereof, (b) the holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities of that series shall have
made written request to the Trustee to institute the action or proceeding with
respect to the Event of Default and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and (c) the Trustee, for 60
days after its receipt of such notice, request, and offer of indemnity shall
have failed to institute the action or proceeding and no direction
inconsistent with the written request shall have been given to the Trustee
pursuant to the provisions of the Indenture. The Indenture requires the
Company to certify to the Trustee annually as to whether any default exists.
Prior to the acceleration of the maturity of the Debt Securities of any
series, the holders of a majority in aggregate principal amount of the Debt
Securities of that series at the time outstanding may, on behalf of the
holders of all Debt Securities and any related coupons of that series, waive
any past default or Event of Default and its consequences for that series,
except (a) a default in the payment of the principal, premium or interest with
respect to the Debt Securities, or (b) a default with respect to a provision
of the Indenture that cannot be amended without the consent of each holder
affected thereby. In case of any waiver, the default shall cease to exist, any
Event of Default arising therefrom shall be deemed to have been cured for all
purposes, and the Company, the Trustee and the holders of the Debt Securities
of that series shall be restored to their former positions and rights under
the Indenture.
The Trustee shall, within 90 days after the occurrence of a default known
to it with respect to a series of Debt Securities, give to the holders of the
Debt Securities of the series notice of all uncured defaults with respect to
the series known to it, unless the defaults shall have been cured or waived
before the giving of the notice; provided, however, that except in the case of
default in the payment of principal, premium, or interest with respect to the
Debt Securities of the series or in the making of any sinking fund payment
with respect to the Debt Securities of the series, the Trustee shall be
protected in withholding notice if it in good faith determines that the
withholding of such notice is in the interest of the holders of the Debt
Securities.
Modification of the Indenture
The Company and the Trustee may enter into supplemental indentures without
the consent of the holders of Debt Securities for one or more of the following
purposes:
(a) To evidence the succession of another person to the Company
pursuant to the provisions of the Indenture pursuant to
consolidations, mergers and sales of assets and the
assumption by the successor of the covenants, agreements,
and obligations of the Company in the Indenture and in the
Debt Securities;
(b) To surrender any right or power conferred upon the Company
by the Indenture, to add to the covenants of the Company
such further covenants, restrictions, conditions, or
provisions for the protection of the holders of all or any
series of Debt Securities as the Board of Directors of the
Company shall consider to be for the protection of the
holders of the Debt Securities, and to make the occurrence,
or the occurrence and continuance, of a default in any of
the additional covenants, restrictions, conditions or
provisions a default or an Event of Default under the
Indenture (provided, however, that with respect to any such
additional covenant, restriction, condition or provision,
the supplemental indenture may provide for a period of grace
after default, which may be shorter or longer than that
allowed in the case of other defaults, may provide for an
immediate enforcement upon the default, may limit the
remedies available to the Trustee upon the default, or may
limit the right of holders of a majority in aggregate
principal amount of any or all series of Debt Securities to
waive the default);
(c) To cure any ambiguity or to correct or supplement any
provision contained in the Indenture, in any supplemental
indenture, or in any Debt Securities that may be defective
or inconsistent with any other provision contained therein,
to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other
provisions in regard to matters or questions arising under
the Indenture as shall not adversely affect the interests of
any holders of Debt Securities of any series;
(d) To modify or amend the Indenture in such a manner as to
permit the qualification of the Indenture or any
supplemental indenture under the Trust Indenture Act as then
in effect;
(e) To add to or change any of the provisions of the Indenture
to provide that Bearer Securities may be registerable as to
principal, to change or eliminate any restrictions on the
payment of principal or premium with respect to Registered
Securities or of principal, premium or interest with respect
to Bearer Securities, or to permit Registered Securities to
be exchanged for Bearer Securities, so long as any such
action does not adversely affect the interests of the
holders of Debt Securities or any coupons of any series in
any material respect or permit or facilitate the issuance of
Debt Securities of any series in uncertificated form;
(f) To comply with the provisions of the Indenture relating to
consolidations, mergers, and sales of assets;
(g) In the case of Subordinated Debt Securities, to make any
change in the provisions of the Indenture to subordination
that would limit or terminate the benefits available to any
holder of Senior Indebtedness under such provisions (but
only if the holder of Senior Indebtedness consents to the
change);
(h) To add guarantees with respect to the Debt Securities or to
secure the Debt Securities;
(i) To make any change that does not adversely affect the rights
of any holder;
(j) To add to, change or eliminate any of the provisions of the
Indenture with respect to one or more series of Debt
Securities, so long as any such addition, change or
elimination not otherwise permitted under the Indenture
shall (1) neither apply to any Debt Security of any series
created prior to the execution of the supplemental indenture
and entitled to the benefit of the provision nor modify the
rights of the holders of any Debt Security with respect to
the provision, or (2) become effective only when there is no
Debt Security outstanding;
(k) To evidence and provide for the acceptance of appointment by
a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any
of the provisions of the Indenture as shall be necessary to
provide for or facilitate the administration of the
Indenture by more than one Trustee; and
(l) To establish the form or terms of Debt Securities and
coupons of any series, as described under "Description of
Debt Securities--General."
With the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected thereby, the
Company and the Trustee may from time to time and at any time enter into a
supplemental indenture for the purpose of adding any provisions to, changing
in any manner, or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Debt Securities of the series; provided, however, that without the consent
of the holders of each Debt Security so affected, no such supplemental
indenture shall (a) reduce the percentage in principal amount of Debt
Securities of any series whose holders must consent to an amendment, (b)
reduce the rate of or extend the time for payment of interest on any Debt
Security or coupon or reduce the amount of any payment to be made with respect
to any coupon, (c) reduce the principal of or extend the stated maturity of
any Debt Security, (d) reduce the premium payable upon the redemption of any
Debt Security or change the time at which any Debt Security may or shall be
redeemed, (e) make any Debt Security payable in a currency other than that
stated in the Debt Security, (f) in the case of any Subordinated Debt Security
or coupons appertaining thereto, make any change in the provisions of the
Indenture respecting subordination that adversely affects the rights of any
holder under such provisions, (g) release any security that may have been
granted with respect to the Debt Securities, (h) make any change in the
provisions of the Indenture with respect to waivers of defaults or amendments
that require unanimous consent, (i) change any obligation of the Company
provided for in the Indenture to pay additional interest with respect to
Bearer Securities, or (j) limit the obligation of the Company to maintain a
paying agency outside the United States for payment on Bearer Securities or
limit the obligation of the Company to redeem certain Bearer Securities.
Consolidation, Merger, and Sale of Assets
The Company may not consolidate with or merge with or into any person, or
convey, transfer or lease all or substantially all its assets, unless the
following conditions have been satisfied:
(a) Either (1) the Company shall be the continuing person in the
case of a merger, or (2) the resulting, surviving or
transferee person, if other than the Company (the "Successor
Company"), shall be a corporation organized and existing
under the laws of the United States, any State, or the
District of Columbia and shall expressly assume all the
obligations of the Company under the Debt Securities and
coupons and the Indenture;
(b) Immediately after giving effect to the transaction (and
treating any indebtedness that becomes an obligation of the
Successor Company or any subsidiary of the Company as a
result of the transaction as having been incurred by the
Successor Company or the subsidiary at the time of the
transaction), no Default or Event of Default would occur or
be continuing;
(c) The Successor Company waives any right to redeem any Bearer
Security under circumstances in which the Successor Company
would be entitled to redeem the Bearer Security but the
Company would not have been so entitled to redeem if the
consolidation, merger, conveyance, transfer or lease had not
occurred; and
(d) The Company shall have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that the
consolidation, merger or transfer complies with the
Indenture.
Satisfaction and Discharge of the Indenture; Defeasance
The Indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if (a) the Company has delivered to the
Trustee for cancellation all Debt Securities of the series (with certain
limited exceptions), or (b) all Debt Securities and coupons of the series not
theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year, and the Company shall have
deposited with the Trustee as trust funds the entire amount sufficient to pay
at maturity or upon redemption all the Debt Securities and coupons (and if, in
either case, the Company shall also pay or cause to be paid all other sums
payable under the Indenture by the Company).
In addition, the Company shall have a "legal defeasance option" (pursuant
to which it may terminate, with respect to the Debt Securities of a particular
series, all its obligations under the Debt Securities and the Indenture with
respect to the Debt Securities) and a "covenant defeasance option" (pursuant
to which it may terminate, with respect to the Debt Securities of a particular
series, its obligations with respect to the Debt Securities under certain
specified covenants contained in the Indenture). If the Company exercises its
legal defeasance option with respect to a series of Debt Securities, payment
of the Debt Securities may not be accelerated because of an Event of Default.
If the Company exercises its covenant defeasance option with respect to a
series of Debt Securities, payment of the Debt Securities may not be
accelerated because of an Event of Default related to the specified covenants.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to the Debt Securities of a series only if (a)
the Company irrevocably deposits in trust with the Trustee cash or U.S
Government Obligations (as defined in the Indenture) for the payment of
principal, premium, and interest with respect to the Debt Securities to
maturity or redemption, as the case may be, (b) the Company delivers to the
Trustee a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash at
such times and in such amounts as will be sufficient to pay the principal,
premium and interest when due with respect to all the Debt Securities of the
series to maturity or redemption, as the case may be, (c) 123 days pass after
the deposit is made and during the 123-day period no default described in
clause (g) or (h) under "Description of Debt Securities--Events of Default and
Remedies" with respect to the Company occurs that is continuing at the end of
the period, (d) no Default has occurred and is continuing on the date of the
deposit and after giving effect thereto, (e) the deposit does not constitute
a default under any other agreement binding on the Company and, in the case of
Subordinated Debt Securities, is not prohibited by the provisions of the
Indenture to subordination, (f) the Company delivers to the Trustee an opinion
of counsel to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940, (g) the Company shall have delivered to the
Trustee an opinion of counsel addressing certain federal income tax matters to
the defeasance, and (h) the Company delivers to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debt Securities of the series
as contemplated by the Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government Obligations
deposited with it as described above and shall apply the deposited cash and
the proceeds from deposited U.S. Government Obligations to the payment of
principal, premium, and interest with respect to the Debt Securities and
coupons of the defeased series. In the case of Subordinated Debt Securities
and coupons related thereto, the money and U.S. Government Obligations so held
in trust will not be subject to the subordination provisions of the Indenture.
The Trustee
The Company may appoint a separate Trustee for any series of Debt
Securities. As used herein in the description of a series of Debt Securities,
the term "Trustee" refers to the Trustee appointed with respect to the series
of Debt Securities.
The Company may maintain banking and other commercial relationships with
the Trustee and its affiliates in the ordinary course of business, and the
Trustee may own Debt Securities.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 75,000,000
shares of Common Stock and 10,000,000 shares of Preferred Stock. On April
3, 1998, 33,425,903 shares of Common Stock and no shares of Preferred Stock
were outstanding.
Common Stock
All shares of Common Stock have equal rights to participate in dividends
and, in the event of liquidation, assets available for distribution to
stockholders, subject to any preference established with respect to preferred
stock. Each holder of Common Stock is entitled to one vote for each share
held on all matters submitted to a vote of stockholders, and voting rights for
the election of directors are noncumulative. Shares of Common Stock carry no
conversion, preemptive or subscription rights, and are not subject to
redemption. All outstanding shares of Common Stock are, and any shares of
Common Stock issued upon conversion of convertible securities will be, fully
paid and nonassessable. The Company pays dividends on Common Stock when, as
and if declared by the Board of Directors of the Company (the "Board of
Directors"). Dividends may be declared in the discretion of the Board of
Directors from funds legally available therefor, subject to restrictions under
agreements related to Company indebtedness.
The transfer agent for the Common Stock is ChaseMellon Shareholder
Services, L.L.C., Dallas, Texas.
Description of Preferred Stock
The Preferred Stock offered hereby will be issued in one or more series.
The holders of Preferred Stock will have no preemptive rights. Preferred
Stock, upon issuance against full payment of the purchase price therefor, will
be fully paid and nonassessable. Neither the par value not the liquidation
preference is indicative of the price at which the Preferred Stock will
actually trade on or after the date of issuance. The applicable Prospectus
Supplement will contain a description of certain United States federal income
tax consequences relating to the purchase and ownership of the series of
Preferred Stock offered by such Prospectus Supplement.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights as provided in a Prospectus Supplement relating to a particular
series of the Preferred Stock. The applicable Prospectus Supplement will
describe the following terms of the series of Preferred Stock in respect of
which this Prospectus is being delivered: (1) the designation and stated
value per share of such Preferred Stock and the number of shares offered; (2)
the amount of liquidation preference per share; (3) the initial public
offering price at which such Preferred Stock will be issued; (4) the dividend
rate (or method of calculation), the dates on which dividends shall be payable
and the dates from which dividends shall commence to cumulate, if any: (5)
any redemption or sinking fund provisions; (6) any conversion or exchange
rights; (7) whether the Company has elected to offer Depository Shares as
described below under "Description of Depository Shares"; and (8) any
additional voting, dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
Factors Affecting Acquisitions of Control
Charter
The Certificate of Incorporation, as amended, provides that the Board of
Directors, in its discretion, may establish one or more classes or series of
preferred stock having such number of shares, designations, relative voting
rights, dividend rates, liquidation and other rights, preferences and
limitations as may be fixed by the Board of Directors without any further
stockholder approval. Such rights, preferences, privileges and limitations as
may be established could have the effect of impending or discouraging the
acquisition of control of the Company.
Stockholder Rights Plan
On May 21, 1997, the Board authorized the issuance of one preferred share
purchase right (a "Right") for each outstanding share of Common Stock held of
record on June 3, 1997. Each Right entitles the registered holder to purchase
from the Company one one-thousandth of a share of Junior Participating
Preferred Stock, par value $.01 per share (the "Junior Preferred Shares"), of
the Company, at a price of $70.00 per one one-thousandth of a Junior Preferred
Share (the "Purchase Price"), subject to adjustment. The description and
terms of the rights are set forth in a Rights Agreement (the "Rights
Agreement") dated as of May 27, 1997 between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, a copy of which was filed as an
exhibit to the Company's Current Report on Form 8-K dated June 2, 1997.
Initially, the Rights will attach to all Common Stock certificates
representing outstanding shares and no separate Right Certificate will be
distributed. The Rights will separate from the Common Stock and a
distribution date (the "Distribution Date") will occur upon the earlier of (i)
10 business days following a public announcement that a person or group of
affiliated or associated persons (the "Acquiring Person") has acquired
beneficial ownership of 20% or more of the outstanding Voting Shares (as
defined in the Rights Agreement) of the Company, or (ii) 10 business days
following the commencement or announcement of an intention to commence a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of such outstanding
Voting Shares.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on May 21, 2007 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or the Rights are earlier redeemed or exchanged by
the Company as described below.
If a person or group of persons were to acquire 20% or more of the Voting
Shares of the Company, each Right then outstanding (other than Rights
beneficially owned by the Acquiring Person which would become null and void)
would become a right to buy that number of shares of Common Stock (or under
certain circumstances, the equivalent number of one one-thousandths of a
Junior Preferred Share) that at the time of such acquisition would have a
market value of two times the Purchase Price of the Right.
If the Company were acquired in a merger or other business combination
transaction or assets constituting more than 50% of its consolidated assets or
producing more than 50% of its earning power or cash flow were sold, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current Purchase Price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction would have a market value of two times
the Purchase Price of the Right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
Voting Shares of the Company and before the acquisition by a person or group
of 50% or more of the outstanding Voting Shares of the Company, the Board may,
at its option, issue Common Stock in mandatory redemption of, and in exchange
for, all or part of the then outstanding and exercisable Rights (other than
Rights owned by such person or group which would become null and void) at an
exchange ratio of one share of Common Stock (or one one-thousandth of a Junior
Preferred Share) for each two shares of Common Stock for which each Right is
then exercisable, subject to adjustment.
At any time prior to the first public announcement that a person or group
of persons has become the beneficial owner of 20% or more of the outstanding
Voting Shares, the Board may redeem all but not less than all the then
outstanding Rights at a price of $0.01 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board in its sole discretion may establish.
Immediately upon action of the Board ordering redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the holders
of the Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
Director's Liability
The Certificate of Incorporation, as amended, also provides for the
elimination of directors' liability for monetary damages for a breach of
certain fiduciary duties and for the indemnification of directors, officers,
employees or agents as permitted by the DGCL. These provisions cannot be
amended without the affirmative vote of the holders of a least a majority in
interest of the outstanding shares entitled to vote.
The Company has entered into indemnification agreements with all directors
and executive officers and may, in the future, enter into such agreements with
employees and agents. Such indemnification agreements provide generally that
such persons will be indemnified, to the extent permitted by applicable law,
for expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such persons in
connection with any proceeding (including, to the extent permitted by law, any
derivative action) to which such persons are, or are threatened to be made, a
party by reason of their status in such positions. Such indemnification
agreements do not change the basic legal standards for indemnity under
applicable law or as set forth in the Certificate of Incorporation.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below), Depositary
Shares (as defined below) and Depositary Receipts (as defined below) does not
purport to be complete and is subject to and qualified in its entirety by
reference to the forms of Deposit Agreement and Depositary Receipts to each
series of Preferred Stock that will be filed with the SEC in connection with
the offering of the series of Preferred Stock.
General
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. In the event
such option is exercised, the Company will provide for the issuance by a
depositary to the public of receipts for depositary shares ("Depositary
Shares"), each of which will represent fractional interests of a particular
series of Preferred Stock (which will be set forth in the Prospectus
Supplement to a particular series of Preferred Stock).
The shares of any series of Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50 million. The Prospectus Supplement to a
series of Depositary Shares will set forth the name and address of the
depositary with respect to the Depositary Shares. Subject to the terms of the
Deposit Agreement, each owner of Depositary Shares will be entitled, in
proportion to the applicable fractional interests in shares of Preferred Stock
underlying the Depositary Shares, to all the rights and preferences of the
Preferred Stock underlying the Depositary Shares (including dividend, voting,
redemption, conversion, and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional
interests in shares of the related series of Preferred Stock in accordance
with the terms of the offering described in the related Prospectus Supplement.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received with respect to Preferred Stock to the record holders
of Depositary Shares to the Preferred Stock in proportion to the numbers of
the Depositary Shares owned by the holders on the relevant record date. The
depositary shall distribute only the amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and the balance not so distributed shall be added to and treated as part of
the next sum received by the depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the depositary determines that it is not feasible to
make the distribution, in which case the depositary may, with the approval of
the Company, sell the property and distribute the net proceeds from the sale
to the holders.
The Deposit Agreement will also contain provisions as to the manner in
which any subscription or similar rights offered by the Company to holders of
the Preferred Stock shall be made available to the holders of Depositary
Shares.
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the depositary resulting from the redemption, in whole or
in part, of the series of the Preferred Stock held by the depositary. The
depositary shall mail notice of redemption not less than 30 and not more than
60 days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be so redeemed at their respective addresses appearing in
the depositary's books. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per share payable
with respect to the series of the Preferred Stock. Whenever the Company
redeems shares of Preferred Stock held by the depositary, the depositary will
redeem as of the same redemption date the number of Depositary Shares to
shares of Preferred Stock so redeemed. If less than all the Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed will be selected by
lot or pro rata as may be determined by the depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be outstanding and all rights of the holders of the
Depositary Shares will cease, except the right to receive the money,
securities, or other property payable upon the redemption and any money,
securities, or other property to which the holders of the Depositary Shares
were entitled upon the redemption upon surrender to the depositary of the
Depositary Receipts evidencing the Depositary Shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the Depositary
Shares to the Preferred Stock. Each record holder of the Depositary Shares on
the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying the holder's Depositary Shares. The depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
underlying the Depositary Shares in accordance with the instructions, and the
Company will agree to take all action that may be deemed necessary by the
depositary in order to enable the depositary to do so.
Amendment and Termination of Depositary Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the depositary. However, any amendment that materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless the amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. A
Deposit Agreement may be terminated by the Company or the depositary only if
(a) all outstanding Depositary Shares thereto have been redeemed or, (b) there
has been a final distribution with respect to the Preferred Stock of the
relevant series in connection with any liquidation, dissolution, or winding up
of the Company and the distribution has been distributed to the holders of the
related Depositary Shares.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the depositary in connection with the initial deposit of
the Preferred Stock and any redemption of the Preferred Stock. Holders of
Depositary Shares will pay transfer and other taxes and governmental charges
and the other charges as are expressly provided in the Deposit Agreement to be
for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the
depositary, any such resignation or removal to take effect upon the
appointment of a successor depositary and its acceptance of the appointment.
The successor depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50 million.
Miscellaneous
The depositary will forward to the holders of Depositary Shares all
reports and communications from the Company that are delivered to the
depositary and that the Company is required to furnish to the holders of the
Preferred Stock.
Neither the depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding with respect to any Depositary Shares
or Preferred Stock unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares,
or other persons believed to be competent and on documents believed to be
genuine.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock or Common Stock. Warrants may be issued independently or
together with Debt Securities, Preferred Stock or Common Stock offered by any
Prospectus Supplement and may be attached to or separate from any such Offered
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between the Company and
a bank or trust company, as warrant agent (the "Warrant Agent"). The Warrant
Agent will act solely as an agent of the Company in connection with the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Warrants. The following
summary of certain provisions of the Warrants does not purport to be complete
and is subject to, and qualified in its entirety by reference to, the
provisions of the Warrant Agreement that will be filed with the SEC in
connection with the offering of the Warrants.
Debt Warrants
The Prospectus Supplement relating to a particular issue of Debt Warrants
will describe the terms of the Debt Warrants, including the following: (a) the
title of the Debt Warrants; (b) the offering price for the Debt Warrants, if
any; (c) the aggregate number of the Debt Warrants; (d) the designation and
terms of the Debt Securities purchasable upon exercise of the Debt Warrants;
(e) if applicable, the designation and terms of the Debt Securities with which
the Debt Warrants are issued and the number of the Debt Warrants issued with
each Debt Security; (f) if applicable, the date from and after which the Debt
Warrants and any Debt Securities issued therewith will be separately
transferable; (g) the principal amount of Debt Securities purchasable upon
exercise of a Debt Warrant and the price at which the principal amount of Debt
Securities may be purchased upon exercise (which price may be payable in cash,
securities, or other property); (h) the date on which the right to exercise
the Debt Warrants shall commence and the date on which the right shall expire;
(i) if applicable, the minimum or maximum amount of the Debt Warrants that may
be exercised at any one time; (j) whether the Debt Warrants represented by the
Debt Warrant certificates or Debt Securities that may be issued upon exercise
of the Debt Warrants will be issued in registered or bearer form; (k)
information with respect to book- entry procedures, if any; (l) the currency
or currency units in which the offering price, if any, and the exercise price
are payable; (m) if applicable, a discussion of material United States federal
income tax considerations; (n) the antidilution provisions of the Debt
Warrants, if any; (o) the redemption or call provisions, if any, applicable to
the Debt Warrants; and (p) any additional terms of the Debt Warrants,
including terms, procedures, and limitations to the exchange and exercise of
the Debt Warrants.
Stock Warrants
The Prospectus Supplement relating to any particular issue of Preferred
Stock Warrants or Common Stock Warrants will describe the terms of the
Warrants, including the following: (a) the title of the Warrants; (b) the
offering price for the Warrants, if any; (c) the aggregate number of the
Warrants; (d) the designation and terms of the Common Stock or Preferred Stock
purchasable upon exercise of the Warrants; (e) if applicable, the designation
and terms of the Offered Securities with which the Warrants are issued and the
number of the Warrants issued with each Offered Security; (f) if applicable,
the date from and after which the Warrants and any Offered Securities issued
therewith will be separately transferable; (g) the number of shares of Common
Stock or Preferred Stock purchasable upon exercise of a Warrant and the price
at which the shares may be purchased upon exercise (which price may be payable
in cash, securities, or other property); (h) the date on which the right to
exercise the Warrants shall commence and the date on which the right shall
expire; (i) if applicable, the minimum or maximum amount of the Warrants that
may be exercised at any one time; (j) the currency or currency units in which
the offering price, if any, and the exercise price are payable; (k) if
applicable, a discussion of material United States federal income tax
considerations; (l) the antidilution provisions of the Warrants, if any; (m)
the redemption or call provisions, if any, applicable to the Warrants; and (n)
any additional terms of the Warrants, including terms, procedures and
limitations to the exchange and exercise of the Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities within or outside the United
States through underwriters, brokers or dealers, directly to one or more
purchasers, or through agents. The Prospectus Supplement with respect to the
Offered Securities will set forth the terms of the offering of the Offered
Securities, including the name or names of any underwriters, dealers or
agents, the purchase price of the Offered Securities and the proceeds to the
Company from the sale, any delayed delivery arrangements, any underwriting
discounts and other items constituting underwriters' compensation, the initial
public offering price, any discounts or concessions allowed or reallowed or
paid to dealers, and any securities exchanges on which the Offered Securities
may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Offered Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered
Securities will be named in the Prospectus Supplement to the offering, and if
an underwriting syndicate is used, the managing underwriter or underwriters
will be set forth on the cover of the Prospectus Supplement. Unless otherwise
set forth in the Prospectus Supplement thereto, the obligations of the
underwriters or agents to purchase the Offered Securities will be subject to
conditions precedent and the underwriters will be obligated to purchase all
the Offered Securities if any are purchased. The initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may
be changed from time to time.
The Company may also sell the Offered Securities pursuant to one or more
standby agreements with one or more underwriters in connection with the call
for redemption of a specified class or series of any securities of the Company
or any subsidiary of the Company. In such a standby agreement, the underwriter
or underwriters would agree either (a) to purchase from the Company up to the
number of shares of Common Stock that would be issuable upon conversion of all
the shares of the class or series of securities of the Company or its
subsidiary at an agreed price per share of Common Stock, or (b) to purchase
from the Company up to a specified dollar amount of Offered Securities at an
agreed price per Offered Security which price may be fixed or may be
established by formula or other method and which may or may not relate to
market prices of the Common Stock or any other security of the Company then
outstanding. The underwriter or underwriters would also agree, if applicable,
to convert into Common Stock or other security of the Company any securities
of the class or series held or purchased by the underwriter or underwriters.
The underwriter or underwriters may assist in the solicitation of conversions
by holders of the class or series of securities.
If dealers are used in the sale of Offered Securities with respect to
which this Prospectus is delivered, the Company will sell the Offered
Securities to the dealers as principals. The dealers may then resell the
Offered Securities to the public at varying prices to be determined by the
dealers at the time of resale. The names of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement thereto.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Offered Securities with respect to which
this Prospectus is delivered will be named, and any commissions payable by the
Company to the agent will be set forth, in the Prospectus Supplement thereto.
Unless otherwise indicated in the Prospectus Supplement, any agent will
be acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts,
concessions, or commissions. Underwriters, agents, and dealers participating
in the distribution of the Offered Securities may be deemed to be
underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of the Offered Securities by them may be
deemed to be underwriting discounts or commissions under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. The contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of the contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the agents, dealers or underwriters
may be required to make with respect thereto. Agents, dealers and underwriters
may be customers of, engage in transactions with, or perform services for the
Company in the ordinary course of business.
The Offered Securities may or may not be listed on a national securities
exchange. No assurances can be given that there will be a market for the
Offered Securities.
LEGAL OPINIONS
Certain legal matters in connection with the Offered Securities will be
passed upon for the Company by Peter E. Lorenzen, Vice President and General
Counsel of the Company, and for any underwriters or agents by a firm named in
the Prospectus Supplement to a particular issue of Offered Securities. Mr.
Lorenzen owns 47,400 shares, and holds options to purchase 70,300 shares, of
Common Stock.
EXPERTS
The consolidated financial statements and financial statement schedules
incorporated in this Prospectus by reference have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports
with respect thereto, and are incorporated herein in reliance upon the
authority of such firm as experts in accounting and auditing in giving said
reports.
The information incorporated herein by reference regarding proved reserves
and related future net revenues and the present value thereof is derived, as
and to the extent described herein and therein, from a reserve report prepared
by Netherland, Sewell & Associates, Inc., an independent oil and gas
consultant, and, to such extent, is included and incorporated by reference in
reliance upon the authority of such firm as an expert with respect to the
matters contained in such report.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR IN A
PROSPECTUS SUPPLEMENT, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY OTHER PERSON. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS
SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY
ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES, NOR DOES IT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE
SECURITIES IN ANY JURISDICTION IN WHICH THE OFFER OR SOLICITATION IS NOT
AUTHORIZED, OR IN WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE THE
OFFEROR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT ANY INFORMATION CONTAINED
HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
--------------------------
TABLE OF CONTENTS
PAGE
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Available Information
Incorporation of Certain Documents by Reference
The Company
Use of Proceeds
Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Stock Dividends
Description of Debt Securities
Description of Capital Stock
Description of Depositary Shares
Description of Warrants
Plan of Distribution
Legal Opinions
Experts
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- ---------------------------------------------------------------------------
LOGO
SNYDER OIL CORPORATION
DEBT SECURITIES
PREFERRED STOCK
DEPOSITORY SHARES
COMMON STOCK
WARRANTS
PROSPECTUS
, 1998
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this Registration
Statement shall have the meanings assigned to them in the Prospectus which
forms a part of this Registration Statement.
ITEM 14 -- OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following itemized table sets forth estimates of those expenses
payable by the Company in connection with the offer and sale or exchange of
the securities offered hereby:
SEC Registration Fee. . . . . . . . . . . . . . . . . . $ 66,375
Blue Sky Fees and Expenses (including legal fees) . . . 5,000
Printing end Engraving Expenses . . . . . . . . . . . . 100,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . 75,000
Accountants' Fees and Expenses. . . . . . . . . . . . . 75,000
Trustees' Fees and Expenses . . . . . . . . . . . . . . 15,000
Miscellaneous Fees and Expenses . . . . . . . . . . . . 11,500
Total . . . . . . . . . . . . . . . . . . . . . . . 347,875
ITEM 15 -- INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware (the "DGCL"), a Delaware
corporation has the power, under specified circumstances, to indemnify its
directors, officers, employees and agents in connection with actions, suits or
proceedings brought against them by a third party or in the right of the
corporation, by reason of the fact that they were or are such directors,
officers, employees or agents, against expenses and liabilities incurred in
any such action, suit or proceeding so long as they acted in good faith and in
a manner that they reasonably believed to be in, or not opposed to, the best
interests of such corporation, and with respect to any criminal action, that
they had no reasonable cause to believe their conduct was unlawful. With
respect to suits by or in the right of such corporation, however,
indemnification is generally limited to attorneys' fees and other expenses and
is not available if such person is adjudged to be liable to such corporation
unless the court determines that indemnification is appropriate. A Delaware
corporation also has the power to purchase and maintain insurance for such
persons. Article Nine of the Certificate of Incorporation of the Registrant
provides for mandatory indemnification of directors and officers to the
fullest extent permitted by Section 145 of the DGCL. Reference is made to the
Certificate of Incorporation of the Registrant, filed as an Exhibit hereto.
The Registrant has entered into indemnification agreements with all
directors and executive officers and may, in the future, enter into such
agreements with employees and agents. Such indemnification agreements provide
generally that such persons will be indemnified, to the extent permitted by
applicable law, for expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by such persons in connection with any proceeding (including, to the
extent permitted by law, any derivative action) to which such persons are, or
are threatened to be made, a party by reason of their status in such
positions. Such indemnification agreements do not change the basic legal
standards for indemnity under applicable law or as set forth in the
Certificate of Incorporation.
The form of the Underwriting Agreement, which will be filed as an Exhibit
hereto, will provide that the Underwriters will indemnify the Registrant, its
directors and officers and certain other persons against liabilities,
including liabilities under the Securities Act of 1933, as amended (the
"Securities Act") with respect to information furnished in writing to the
Registrant for use in this Registration Statement.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 (relating to liability for
unauthorized acquisitions or redemptions of, or dividends on, capital stock)
of the DGCL or (iv) for any transaction from which the director derived an
improper personal benefit. The Registrant's Certificate of Incorporation
contains such a provision.
The above discussion of the Registrant's Certificate of Incorporation and
Sections 102(b)(7) and 145 of the DGCL is not intended to be exhaustive and
its qualified in its entirety by such Certificate of Incorporation and
statutes.
ITEM 16 -- EXHIBITS
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture, including form of Debenture, with respect to Debt
Securities**
5.1 Opinion of Peter E. Lorenzen, Vice President - General Counsel of
the Registrant, as to legality of the Securities registered hereby.
**
12.1 Computation of Ratio of Earnings to Fixed Charges. **
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.**
23.1 Consent of Peter E. Lorenzen to use of his opinion filed as Exhibit
5.1 (set forth in his opinion filed as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Netherland, Sewell & Associates, Inc.**
24.1 Powers of attorney (set forth on the signature page hereof).
25.1 Form T-1 Statements of Eligibility and Qualifications of Trustee
under Trust Indenture Act of 1939 relating to the Indenture.*
99.1 Reserve letter from Netherland, Sewell & Associates, Inc. dated
February 3, 1998 to the Snyder Oil Corporation interest as of
December 31, 1997 (incorporated by reference from Exhibit 99.1 to
the Annual Report on Form 10-K of Snyder Oil Corporation for the
year ended December 31, 1997 (File No. 1-10509)).
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* To be filed as an exhibit to Form 8-K in reference to the specific
offering of Securities, if any, to which it relates.
** Filed herewith.
ITEM 17 -- UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to the
information in this Registration Statement;
provided, however, that clauses (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference into this Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act, each such post- effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered that
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act
("Act") in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the provisions
described in Item 15 above or otherwise, the Registrant has been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful
defense of any action, suit, or proceeding) is asserted by the
director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of the issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth, State of Texas, on May 6, 1998.
SNYDER OIL CORPORATION
By:/s/ Peter E. Lorenzen
Peter E. Lorenzen, Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes and appoints John C. Snyder, William G. Hargett,
Rodney L. Waller and Peter E. Lorenzen and each of them, any one of which may
act without the joinder of the other, as his attorney-in-fact to sign on his
behalf individually and in the capacity stated below all amendments and
post-effective amendments to this Registration Statement (including any
additional registration statement filed pursuant to Rule 462 of the Securities
Act of 1933 with respect to this Registration Statement) as such
attorney-in-fact may deem necessary or appropriate.
Signature Title Date
/s/ JOHN C. SNYDER Director and Chairman of the Board May 6, 1998
John C. Snyder (Principal Executive Officer)
/s/ WILLIAM G. HARGETT Director, President and Chief May 6, 1998
William G. Hargett Operating Officer
/s/ ROGER W. BRITTAIN Director May 6, 1998
Roger W. Brittain
/s/ JOHN A. HILL Director May 6, 1998
John A. Hill
/s/ WILLIAM J. JOHNSON Director May 6, 1998
William J. Johnson
/s/ B. J. KELLENBERGER Director May 6, 1998
B. J. Kellenberger
/s/HAROLD R. LOGAN, JR. Director May 6, 1998
Harold R. Logan, Jr.
/s/ JAMES E. McCORMICK Director May 6, 1998
James E. McCormick
/s/ EDWARD T. STORY Director May 6, 1998
Edward T. Story
/s/ MARK A. JACKSON Senior Vice President and Chief May 6, 1998
Mark A. Jackson Financial Officer
(Principal Financial and
Accounting Officer)
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture, including form of Debenture,
with respect to Debt Securities**
5.1 Opinion of Peter E. Lorenzen, Vice President - General Counsel of
the Registrant, as to legality of the Securities registered hereby.
**
12.1 Computation of Ratio of Earnings to Fixed Charges. **
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.**
23.1 Consent of Peter E. Lorenzen to use of his opinion filed as Exhibit
5.1 (set forth in his opinion filed as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Netherland, Sewell & Associates, Inc.**
24.1 Powers of attorney (set forth on the signature page hereof).
25.1 Form T-1 Statements of Eligibility and Qualifications of Trustee
under Trust Indenture Act of 1939 relating to the Indenture.*
99.1 Reserve letter from Netherland, Sewell & Associates, Inc. dated
February 3, 1998 to the Snyder Oil Corporation interest as of
December 31, 1997 (incorporated by reference from Exhibit 99.1 to
the Annual Report on Form 10-K of Snyder Oil Corporation for the
year ended December 31, 1997 (File No. 1-10509)).
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* To be filed as an exhibit to Form 8-K in reference to the specific
offering of Securities, if any, to which it relates.
** Filed herewith.