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As filed with the Securities and Exchange Commission on July 29, 1994
Registration No. 33-_________
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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
corporation or organization) Identification Number)
777 MAIN STREET, SUITE 2500
FORT WORTH, TEXAS 76102
817/338-4043
(Address, including zip code, and telephone number,
including area code, of
Registrant's principal executive offices)
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PETER E. LORENZEN
SNYDER OIL CORPORATION
777 MAIN STREET, SUITE 2500
FORT WORTH, TEXAS 76102
817/882-5905
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
THOMAS J. EDELMAN
SNYDER OIL CORPORATION
595 MADISON AVENUE, 27TH FLOOR
NEW YORK, NEW YORK 10022
212/371-1117
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement, as
determined by the Registrant.
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 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)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities to be registered Registered (1) per unit offering Registration
price (1) fee
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Debt Securities (2) (3) $250,000,000 $86,207
Debt Warrants
Preferred Stock (par value $.01 per
share)
Depositary Shares (4)
Preferred Stock Warrants
Common Stock (par value $.01 per share)
Common Stock Warrants
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(Footnotes on next page)
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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(1) In no event will the aggregate maximum offering price of all securities
issued under this Registration Statement, as may be offered from time to
time, exceed $250,000,000.
(2) Subject to footnote (1), there are being registered hereunder an
indeterminate number of shares of Common Stock, Preferred Stock and
Depositary Shares, an indeterminate principal amount of Debt Securities
and an indeterminate number of Common Stock Warrants, Preferred Stock
Warrants and Debt Warrants representing rights to purchase Common Stock,
Preferred Stock and Debt Securities, as may be sold from time to time by
the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock, Preferred Stock and
Depositary Shares and an indeterminate principal amount of Debt
Securities as shall be issuable upon conversion or exchange of the
Preferred Stock or Debt Securities issued hereunder.
(3) 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 issued hereunder.
(4) If the Registrant elects to offer to the public fractional interests in
shares of Preferred Stock registered hereunder, Depositary Receipts to
be issued under a Depositary Agreement will be distributed to those
persons purchasing such fractional interests, and the shares of
Preferred Stock will be issued to the Depositary under the Depositary
Agreement.
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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 JULY 29, 1994
SNYDER OIL CORPORATION
DEBT SECURITIES
PREFERRED STOCK, DEPOSITARY SHARES
COMMON STOCK
WARRANTS
Snyder Oil Corporation (the "Company") may offer from time to time (i)
Debt Securities ("Debt Securities"), which may be either senior debt securities
("Senior Securities") or subordinated debt securities ("Subordinated
Securities"), consisting of debentures, notes or other unsecured evidences of
indebtedness in one or more series; (ii) shares of Preferred Stock, par value
$.01 per share ("Preferred Stock"), in one or more series, and depositary
shares ("Depositary Shares") representing a fractional interest in a share of
Preferred Stock; (iii) shares of Common Stock, par value $.01 per share
("Common Stock"); or (iv) Warrants ("Warrants") to purchase Debt Securities,
Preferred Stock, Depositary Shares or Common Stock (Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Warrants are hereafter collectively
called "Securities") at an aggregate initial offering price not to exceed
US$250,000,000 at prices and on terms to be determined at the time of sale.
All specified terms of the offering and sale of the Securities will be
set forth in one or more supplements to this Prospectus ("Prospectus
Supplement"), including (i) in the case of Debt Securities, the title,
aggregate principal amount, whether such Debt Securities are senior or
subordinate, denominations, maturity, rate, if any, of interest (which may be
fixed or variable) or method of calculation thereof, and time of payment of any
interest, any terms for redemption at the option of the Company or the holder,
any terms for sinking fund payments, any conversion or exchange rights, any
listing on a securities exchange and the initial public offering price and any
other terms in connection with the offering and sale of such Debt Securities;
(ii) in the case of Preferred Stock and Depositary Shares, the designation,
number of shares, stated value and liquidation preference per share, initial
public offering price, dividend rate (or method of calculation), dates on which
dividends will be payable and dates from which interest will accrue, voting
rights, any redemption or sinking fund provisions, any conversion or exchange
rights, whether the Company has elected to offer the Preferred Stock in the
form of Depositary Shares, any listing of the Preferred Stock on a securities
exchange, and any other terms in connection with the offering and sale of such
Preferred Stock; (iii) in the case of Common Stock, the number of shares of
Common Stock and the terms of the offering thereof; and (iv) in the case of
Warrants, the number and terms thereof, the designation and the number of
Securities issuable upon their exercise, the exercise price, any listing of the
Warrants or the underlying Securities on a securities exchange and any other
terms in connection with the offering, sale and exercise of the Warrants. The
Senior Securities will rank equally with all other unsecured Senior
Indebtedness (as defined) of the Company. The Subordinated Securities will be
subordinated to all existing and future Senior Indebtedness (as defined) of the
Company.
The Company's Common Stock is listed on the New York Stock Exchange
(Symbol "SNY"). Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange. The Company also has listed on the New York Stock
Exchange $4.00 Convertible Exchangeable Preferred Stock (Symbol "SNY Pr"),
Depositary Shares representing a one-quarter interest in the Company's $6.00
Convertible Exchangeable Preferred Stock (Symbol "SNY Pr A") and 7% Convertible
Subordinated Notes due 2001 (Symbol "SNY RA").
The Company may sell Securities to or through underwriters, and also
may sell Securities directly to other purchasers or through agents. The
Prospectus Supplement will set forth the names of any underwriters or agents
involved in the sale of the Securities in respect of which this Prospectus is
being delivered, the amounts, if any, to be purchased by underwriters and the
compensation, if any, of such underwriters or agents. See "Plan of
Distribution" herein.
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.
The date of this Prospectus is ______________,1994
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No person is authorized to give any information or to make any
representations not contained or incorporated by reference in this Prospectus
or in the 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 underwriter, agent or dealer. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than the Securities in respect of which this Prospectus is delivered or
an offer of any securities in any jurisdiction to any person where such an
offer would be unlawful.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at its principal offices
located at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at its regional offices located at Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and 7 World
Trade Center, New York, New York 10048. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, such
reports and proxy statements can be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities. This
Prospectus, which constitutes a part of the Registration Statement, does 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
Commission. For further information with respect to the Company and the
Securities offered hereby, reference is made to the Registration Statement and
related exhibits. Statements contained in this Prospectus concerning the
contents of any contract, agreement or other document filed as an exhibit to
the Registration Statement are not necessarily complete. In each instance,
reference is made to the copy of the contract, agreement or other document
filed as an exhibit to the Registration Statement for a more complete
description of the matter involved, and each such statement is qualified in all
respects by such reference. Copies of the Registration Statement may be
obtained upon payment of the prescribed fees at the offices of the Commission
set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1993, as amended
and (b) Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1994. All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained herein or in a document all or a portion of
which is 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein or
in the Prospectus Supplement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents).
Requests should be directed to Snyder Oil Corporation, Attention: Investor
Relations, 1625 Broadway, Suite 2200, Denver, Colorado, 303/592-8638.
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THE COMPANY
Snyder Oil Corporation is engaged in the development and acquisition
of oil and gas properties. In addition, the Company gathers, transports,
processes and markets natural gas. The Company also participates in
international exploration projects and development through wholly-owned and
partially-owned subsidiaries and affiliates.
The Company's principal executive office is located at 777 Main
Street, Suite 2500, Fort Worth, Texas 76102, and its telephone number is
817/338-4043. The Company maintains administrative offices in Denver and New
York and has eight field offices in Colorado, Wyoming, Texas and New Mexico.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus
Supplement, the net proceeds from any sale of Securities will be used for
general corporate purposes, which may include refinancing of indebtedness,
acquisitions, working capital, capital expenditures and repurchases and
redemptions of securities.
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, Three Months
----------------------------------- Ended March 31,
1989 1990 1991 1992 1993 1994
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Ratio of earnings
to fixed charges 10.6x 2.6x 2.4x 4.5x 7.6x 7.4x
Ratio of earnings
to combined fixed charges
and preferred stock dividends 10.6x 2.6x 2.2x 2.3x 2.8x 2.4x
For the purposes of calculating the above ratios, earnings consist
primarily of income before income taxes and fixed charges. Fixed charges
represent interest expense and a portion of rental expense deemed
representative of the interest factor. Preferred stock dividends represent an
amount equal to income, before income tax, which would be required to meet the
dividends on the preferred stock.
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DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any Prospectus
Supplement may relate ("Offered Debt Securities"). The particular terms of the
Offered Debt Securities and the extent to which such general provisions may
apply will be described in a Prospectus Supplement relating to such Offered
Debt Securities.
The Debt Securities will be general unsecured obligations of the
Company and will constitute either senior debt securities or subordinated debt
securities. Debt Securities that will be senior debt securities ("Senior Debt
Securities") will be issued under an Indenture (the "Senior Indenture") between
the Company and a trustee, the form of which is filed as an exhibit to the
Registration Statement. Debt Securities that will be subordinated debt
securities ("Subordinated Debt Securities") will be issued under an Indenture
(the "Subordinated Indenture" and, collectively with the Senior Indenture, the
"Indentures") between the Company and a trustee (collectively with the trustee
under the Senior Indenture, the "Trustee"), the form of which is filed as an
exhibit to the Registration Statement. The statements under this caption
relating to the Debt Securities and the Indentures are summaries only and do
not purport to be complete. Such summaries make use of terms defined in the
Indentures. Wherever such terms are used herein or particular provisions of
the Indentures are referred to, such terms or provisions, as the case may be,
are incorporated by reference as part of the statements made herein, and such
statements are qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The italicized references
below apply to the section numbers in each of the Indentures, unless otherwise
indicated.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities which can be issued thereunder and provide that Debt Securities may
be issued from time to time thereunder in one or more series, each in an
aggregate principal amount authorized by the Company prior to issuance. The
Indentures do not limit the amount of other unsecured indebtedness or
securities which may be issued by the Company.
Unless otherwise indicated in a Prospectus Supplement, the Debt
Securities will not benefit from any covenant or other provision that would
afford Holders of such Debt Securities special protection in the event of a
highly leveraged transaction involving the Company.
Reference is made to the Prospectus Supplement for the following terms
of the Offered Debt Securities: (a) the title and aggregate principal amount
of the Offered Debt Securities; (b) the date or dates on which the Offered Debt
Securities will mature; (c) the rate or rates (which may be fixed or variable)
per annum, if any, at which the Offered Debt Securities will bear interest or
the method of determining such rate or rates; (d) the date or dates from which
such interest, if any, will accrue and the date or dates at which such
interest, if any, will be payable; (e) the terms for redemption or early
payment, if any, including any mandatory or optional sinking fund or analogous
provision; (f) the terms for conversion or exchange, if any, of the Offered
Debt Securities; (g) the classification as Senior Debt Securities or
Subordinated Debt Securities; (h) whether such Offered Debt Securities will be
issued in fully registered form or in bearer form or any combination thereof;
(i) whether such Offered Debt Securities will be issued in the form of one or
more global securities and whether such global securities are to be issuable in
temporary global form or permanent global form; (j) if other than U.S. dollars,
the currency, currencies or currency unit or units in which such Offered Debt
Securities will be denominated and in which the principal of and premium and
interest, if any, on such Offered Debt Securities will be payable; (k) whether,
and the terms and conditions on which, the Company or a Holder may elect that,
or the other circumstances under which, payment of principal of or premium or
interest, if any, on such Offered Debt Securities is to be made in a currency
or currencies or currency unit or units other than that in which such Offered
Debt Securities are denominated; (l) information with respect to book-entry
procedures, if any; and (m) any other specific terms of the Offered Debt
Securities. Reference is also made to the Prospectus Supplement for
information with respect to any additional covenants that may be included in
the terms of the Offered Debt Securities. (Section 301)
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No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount bearing no interest or
interest at a rate which at the time of issuance is below market rates. Any
material United States federal income tax consequences and other special
considerations applicable thereto will be described in the Prospectus
Supplement relating to any such Offered Debt Securities.
If any of the Offered Debt Securities are sold for any foreign
currency or currency unit or if the principal of or premium or interest, if
any, on any of the Offered Debt Securities is payable in any foreign currency
or currency unit, the restrictions, elections, tax consequences, specific terms
and other information with respect to such Offered Debt Securities and such
foreign currency or currency unit will be set forth in the Prospectus
Supplement relating thereto.
EVENTS OF DEFAULT
Unless otherwise provided with respect to any series of Debt
Securities, the following are Events of Default under each Indenture with
respect to the Debt Securities of such series issued under such Indenture: (a)
failure to pay principal of or premium, if any, on any Debt Securities of such
series when due; (b) failure to pay interest, if any, on any Debt Security of
such series when due, continued for 30 days; (c) failure to deposit any
mandatory sinking fund payment, when due, in respect of the Debt Securities of
such series, continued for 60 days; (d) failure to perform any other covenant
of the Company in the applicable Indenture (other than a covenant included in
the applicable Indenture for the benefit of a series of Debt Securities other
than such series), continued for 90 days after written notice as provided in
the applicable Indenture; (e) certain events of bankruptcy, insolvency or
reorganization; and (f) any other Event of Default as may be specified with
respect to Debt Securities of such series. (Section 501) If an Event of
Default with respect to any outstanding series of Debt Securities occurs and is
continuing, either the Trustee or the Holders of at least 25% in principal
amount of the outstanding Debt Securities of such series (in the case of an
Event of Default described in clause (a), (b), (c) or (f) above) or at least
25% in principal amount of all outstanding Debt Securities under the applicable
Indenture (in the case of other Events of Default) may declare the principal
amount of all the Debt Securities of the applicable series (or of all
outstanding Debt Securities under the applicable Indenture, as the case may be)
to be due and payable immediately. At any time after a declaration of
acceleration has been made, but before a judgment has been obtained, the
Holders of a majority in principal amount of the outstanding Debt Securities of
such series (or of all outstanding Debt Securities under the applicable
Indenture, as the case may be) may, under certain circumstances, rescind and
annul such acceleration. (Section 502) Depending on the terms of other
indebtedness of the Company outstanding from time to time, an Event of Default
under an Indenture may give rise to cross defaults on such other indebtedness
of the Company.
Each Indenture provides that the Trustee will, within 90 days after
the occurrence of a default in respect of any series of Debt Securities, give
to the Holders of the Debt Securities of such series notice of all uncured and
unwaived defaults known to it; provided, however, that except in the case of a
default in the payment of the principal of or premium or interest, if any, on,
or any sinking fund installment with respect to, any Debt Securities of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Debt Securities of such series; and provided further, however,
that such notice shall not be given until at least 60 days after the occurrence
of a default in the performance, or breach, of any covenant or warranty of the
Company under such Indenture other than for the payment of the principal of or
premium or interest, if any, on, or any sinking fund installment with respect
to, any Debt Securities of such series. For the purpose of this provision,
"default" with respect to Debt Securities of any series means any event which
is, or after notice or lapse of time, or both, would become, an Event of
Default with respect to the Debt Securities of such series. (Section 602)
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The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) have the right, subject to certain limitations,
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities of such series (or of all
outstanding Debt Securities under the applicable Indenture). (Section 512)
Each Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
applicable Indenture and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. (Section 601) Subject to such provisions, the
Trustee will be under no obligation to exercise any of its rights or powers
under either Indenture at the request of any of the Holders of the Debt
Securities unless they shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request. (Section 603)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) may on behalf of the Holders of all Debt
Securities of such series (or of all outstanding Debt Securities under the
applicable Indenture) waive any past default under the applicable Indenture,
except a default in the payment of the principal of or premium or interest, if
any, on any Debt Security or in respect of a provision which under the
applicable Indenture cannot be modified or amended without the consent of the
Holder of each outstanding Debt Security affected. (Section 513) The Holders
of a majority in principal amount of the outstanding Debt Securities affected
thereby may on behalf of the Holders of all such Debt Securities waive
compliance by the Company with certain restrictive provisions of the
Indentures. (Section 1009)
The Company is required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance. (Section 1008)
MODIFICATION
Modifications and amendments of each Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the outstanding Debt Securities under the applicable
Indenture affected thereby; provided, however, that no such modification or
amendment may, without the consent of the Holder of each outstanding Debt
Security affected thereby, (a) change the stated maturity date of the principal
of or any installment of interest, if any, on any Debt Security, (b) reduce the
principal amount of or the premium or interest, if any, on any Debt Security,
(c) change the place or currency, currencies, or currency unit or units or
payment of principal of or premium or interest, if any, on any Debt Security,
(d) impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Security or (e) reduce the percentage in principal
amount of outstanding Debt Securities the consent of whose Holders is required
for modification or amendment of the Indentures or for waiver of compliance
with certain provisions of the Indentures or for waiver of certain defaults.
(Section 902)
Each Indenture provides that the Company and the Trustee may, without
the consent of any Holders of Debt Securities, enter into supplemental
indentures for the purposes, among other things, of adding to the Company's
covenants, adding additional Events of Default, establishing the form or terms
of Debt Securities or curing ambiguities or inconsistencies in the applicable
Indenture, provided such action to cure ambiguities or inconsistencies shall
not adversely affect the interests of the Holders of the Debt Securities in any
material respect.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of outstanding Debt
Securities, may consolidate with or merge into, or convey, transfer or lease
its assets substantially as an entirety to any Person, provided that the Person
formed by such consolidation or into which the Company is merged or which
acquires or leases the assets of the Company substantially as an entirety is a
corporation, partnership or trust organized under the laws of any United States
jurisdiction and assumes by supplemental indenture the Company's obligations on
the Debt Securities and under the Indentures, that after giving effect to the
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing, and that certain other conditions are met. Upon
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compliance with these provisions by a successor Person, the Company will
(except in the case of a lease) be relieved of its obligations under the
Indentures and the Debt Securities. (Article Eight)
DISCHARGE AND DEFEASANCE
The Company may terminate its obligations under each Indenture, other
than its obligations to pay the principal of and premium and interest, if any,
on the Debt Securities of any series and certain other obligations, if it (a)
irrevocably deposits or causes to be irrevocably deposited with the Trustee as
trust funds money or U.S. Government Obligations maturing as to principal and
interest sufficient to pay the principal of, any interest on, and any mandatory
sinking funds in respect of, all outstanding Debt Securities of such series on
the stated maturity of such payments or on any redemption date and (b) complies
with any additional conditions specified to be applicable with respect to the
covenant defeasance of Debt Securities of such series. (Section 401)
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if the Company (a)
irrevocably deposits or causes to be irrevocably deposited money or U.S.
Government Obligations as described above, (b) makes a request to the Trustee
to be discharged from its obligations on the Debt Securities of such series and
(c) complies with any additional conditions specified to be applicable with
respect to legal defeasance of Securities of such series, then the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of such series and the obligations of the Company
under the applicable Indenture and the Debt Securities of such series to pay
the principal of and premium and interest, if any, on the Debt Securities of
such series shall cease, terminate and be completely discharged, and the
Holders thereof shall thereafter be entitled only to payment out of the money
or U.S. Government Obligations deposited with the Trustee as aforesaid, unless
the Company's obligations are revived and reinstated because the Trustee is
unable to apply such trust fund by reason of any legal proceeding, order or
judgment. (Sections 403 and 404)
The term "U.S. Government Obligations" is defined in each Indenture as
direct noncallable obligations of, or noncallable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise indicated in
an applicable Prospectus Supplement, Bearer Debt Securities will have interest
coupons attached. Debt Securities are also issuable in temporary or permanent
global form. (Section 301) See "Global Securities."
Registered Debt Securities of any series will be exchangeable for
other Registered Debt Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations. In addition,
with respect to any series of Bearer Debt Securities, at the option of the
Holder, subject to the terms of the applicable Indenture, Bearer Debt
Securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable into Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. Bearer Debt Securities surrendered in
exchange for Registered Debt Securities between a Regular Record Date or a
Special Record Date and the relevant date for payment of interest shall be
surrendered without the coupon relating to such date for payment of interest,
and interest accrued as of such date will not be payable in respect of the
Registered Debt Security issued in exchange for such Bearer Debt Security, but
will be payable only to the Holder of such coupon when due in accordance with
the terms of the applicable Indenture. (Section 305)
In connection with its sale during the restricted period (as defined
below), no Bearer Debt Security (including a Debt Security in permanent global
form that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the
United States (as defined under "--Limitations on Issuance of
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Bearer Debt Securities") and a Bearer Debt Security may be delivered outside
the United States in definitive form in connection with its original issuance
only if prior to delivery the Person entitled to receive such Bearer Debt
Security furnishes written certification, in the form required by the
applicable Indenture, to the effect that such Bearer Debt Security is owned by:
(a) a Person (purchasing for its own account) who is not a United States Person
(as defined under "--Limitations on Issuance of Bearer Debt Securities"); (b) a
United States Person who (i) is a foreign branch of a United States financial
institution purchasing for its own account or for resale or (ii) acquired such
Bearer Debt Security through the foreign branch of a United States financial
institution and who for purposes of the certification holds such Bearer Debt
Security through such financial institution on the date of certification and,
in either case, such United States financial institution certifies to the
Company or the distributor selling the Bearer Debt Security within a reasonable
time stating that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder, or (c) a United States or
foreign financial institution for purposes of resale within the "restricted
period" as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7). A financial institution described in clause (c) of the
preceding sentence (whether or not also described in clauses (a) and (b)) must
certify that it has not acquired the Bearer Debt Security for purpose of
resale, directly or indirectly, to a United States Person or to a Person within
the United States or its possessions. In the case of a Bearer Debt Security in
permanent global form, such certification must be given in connection with
notation of a beneficial owner's interest therein in connection with the
original issuance of such Debt Security or upon exchange of a portion of a
temporary global Security. (Section 303) See "--Limitations on Issuance of
Bearer Debt Securities" and "Global Securities."
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration of transfer (with
the form of transfer endorsed thereon duly executed), at the office of the
Security Registrar or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Debt Securities and
referred to in an applicable Prospectus Supplement, without service charge and
upon payment of any taxes and other governmental charges as described in the
applicable Indenture. Such transfer or exchange will be effected upon the
Security Registrar or such transfer agent, as the case may be, being satisfied
with the documents of title and identity of the Person making the request. The
Company has appointed the Trustee as Security Registrar. (Section 305) If a
Prospectus Supplement refers to any transfer agents (in addition to the
Security Registrar) initially designated by the Company with respect to any
series of Debt Securities, the Company may at any time rescind the designation
of any such transfer agent or approve a change in the location through which
any such transfer agent acts, except that, if Debt Securities of a series are
issuable solely as Registered Debt Securities, the Company will be required to
maintain a transfer agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Debt Securities, the Company will
be required to maintain (in addition to the Security Registrar) a transfer
agent in a Place of Payment for such series located outside the United States.
The Company may at any time designate additional transfer agents with respect
to any series of Debt Securities. (Section 1002)
In the event of any redemption in part, the Company shall not be
required to (a) issue, register the transfer of or exchange Debt Securities of
any series during a period beginning at the opening of business 15 days prior
to the selection of Debt Securities of that series for redemption and ending on
the close of business on (i) if Debt Securities of the series are issuable only
as Registered Debt Securities, the day of mailing of the relevant notice of
redemption and (ii) if Debt Securities of the series are issuable as Bearer
Debt Securities, the day of the first publication of the relevant notice of
redemption or, if Debt Securities of the series are also issuable as Registered
Debt Securities and there is no publication, the day of mailing of the relevant
notice of redemption; (b) register the transfer of or exchange any Registered
Debt Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Debt Security being redeemed in part; or (c) exchange
any Bearer Debt Security called for redemption, except to exchange such Bearer
Debt Security for a Registered Debt Security of that series and like tenor
which is simultaneously surrendered for redemption. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of and premium and interest, if any, on Bearer Debt
Securities will be payable, subject to any applicable laws and regulations, in
the designated
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currency or currency unit, at the offices of such Paying Agents outside the
United States as the Company may designate from time to time, at the option of
the Holder, by check or by transfer to an account maintained by the payee with
a bank located outside the United States; provided, however, that the written
certification described above under "-- Form, Exchange, Registration and
Transfer" has been delivered prior to the first actual payment of interest.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
interest on Bearer Debt Securities on any Interest Payment Date will be made
only against surrender to the Paying Agent of the coupon relating to such
Interest Payment Date. (Section 1001) No payment with respect to any Bearer
Debt Security will be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
any account maintained with a bank located in the United States, nor shall any
payments be made in respect of Bearer Debt Securities upon presentation to the
Company or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payments of principal of and premium and
interest, if any, on Bearer Debt Securities denominated and payable in U.S.
dollars will be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment of the full amount
thereof in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of and premium and interest, if any, on Registered Debt
Securities will be made in the designated currency or currency unit at the
office of such Paying Agent or Paying Agents as the Company may designate from
time to time, except that at the option of the Company payment of any interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register. Unless otherwise indicated
in an applicable Prospectus Supplement, payment of any installment of interest
on Registered Debt Securities will be made to the Person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York will be designated as a Paying Agent for the Company for payments with
respect to Debt Securities which are issuable solely as Registered Debt
Securities, and the Company will maintain a Paying Agent outside the United
States for payments with respect to Debt Securities (subject to limitations
described above in the case of Bearer Debt Securities) which are issuable
solely as Bearer Debt Securities, or as both Registered Debt Securities and
Bearer Debt Securities. Any Paying Agents outside the United States and any
other Paying Agents in the United States initially designated by the Company
for the Debt Securities will be named in an applicable Prospectus Supplement.
The Company may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through which
any Paying Agent acts, except that, if Debt Securities of a series are issuable
solely as Registered Debt Securities, the Company will be required to maintain
a Paying Agent in each Place of Payment for such series and, if Debt Securities
of a series are issuable as Bearer Debt Securities, the Company will be
required to maintain (a) a Paying Agent in the Borough of Manhattan, The City
of New York for principal payments with respect to any Registered Debt
Securities of the series (and for payments with respect to Bearer Debt
Securities of the series in the circumstances described above, but not
otherwise), and (b) a Paying Agent in a Place of Payment located outside the
United States where Debt Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment; provided, however, that
if the Debt Securities of such series are listed on the International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company and the Holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof. (Section 1003)
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LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States federal tax laws and regulations,
Bearer Debt Securities (including securities in permanent global form that are
either Bearer Debt Securities or exchangeable for Bearer Debt Securities) will
not be offered or sold during the restricted period (as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the
first 40 days after the closing date, and, with respect to unsold allotments,
until sold) within the United States or to United States Persons (each as
defined below) other than to an office located outside the United States of a
United States financial institution (as defined in Section 1.165-12(c)(1)(v) of
the United States Treasury Regulations), purchasing for its own account or for
resale or for the account of certain customers, that provides a certificate
stating that it agrees to comply with the requirements of Section
165(j)(3)(A),(B) or (C) of the Code and the United States Treasury Regulations
thereunder, or to certain other Persons described in Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States Treasury Regulations.
Moreover, such Bearer Debt Securities will not be delivered in connection with
their sale during the restricted period within the United States. Any
underwriters, agents and dealers participating in the offering of Bearer Debt
Securities must covenant that they will not offer or sell during the restricted
period any Bearer Debt Securities within the United States or to United States
Persons (other than the persons described above) or deliver in connection with
the sale of Bearer Debt Securities during the restricted period any Bearer Debt
Securities within the United States and that they have in effect procedures
reasonably designed to ensure that their employees and agents who are directly
engaged in selling the Bearer Debt Securities are aware of the restrictions
described above. No Bearer Debt Security (other than a temporary global Bearer
Debt Security) will be delivered in connection with its original issuance nor
will interest be paid on any Bearer Debt Security until receipt by the Company
of the written certification described above under "--Form, Exchange,
Registration and Transfer." Each Bearer Debt Security, other than a temporary
global Bearer Debt Security, 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 income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
United States Holders of Bearer Debt Securities generally will not be
entitled to deduct any loss sustained on Bearer Debt Securities (other than
Bearer Debt Securities having a maturity of one year or less from the date of
issue).
As used herein, "United States Person" means any citizen or resident
of the Untied States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source, and "United States" means the United States of America
(including the states and the District of Columbia) and its possessions.
MEETINGS
The Indentures contain provisions for convening meetings of the
Holders of Debt Securities of a series. (Section 1301) A meeting may be called
at any time by the Trustee, and also, upon request, by the Company or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities
of such series, in any such case upon notice given as described under
"--Notices" below. (Section 1302) Except for any consent that must be given by
the Holder of each Outstanding Debt Security affected thereby, as described
under "--Modification" above, any resolution presented at a meeting or
adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that, except for
any consent that must be given by the Holder of each Outstanding Debt Security
affected thereby, as described under "-- Modification" above, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority in principal amount of the
Outstanding Debt Securities of a series, may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Debt Securities of that series. Subject to the
proviso set forth above, any resolution passed or decision taken at any meeting
of the Holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all Holders of Debt Securities of that series
and any related coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be Persons holding or
representing a majority in principal amount of the Outstanding Debt Securities
of a series. (Section 1304)
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NOTICES
Except as otherwise provided in the Indentures, notices to Holders of
Bearer Debt Securities will be given by publication at least twice in a daily
newspaper in The City of New York and London or other capital city in Western
Europe and in such other city or cities as may be specified in such Securities.
Notices to Holders of Registered Debt Securities will be given by mail to the
addresses of such Holders as they appear in the Security Register. (Section
107)
THE TRUSTEE
Each Indenture contains certain limitations on the right of the
Trustee, as a creditor of the Company, to obtain payment of claims in certain
cases and to realize on certain property received with respect to any such
claims, as security or otherwise. (Section 613) The Trustee is permitted to
engage in other transactions, except that, if it acquires any conflicting
interest (as defined), it must eliminate such conflict or resign. (Section
608)
The Trustee has made loans to the Company and its subsidiaries and
affiliates from time to time in the ordinary course of business and at
prevailing interest rates under agreements with commercial bank groups. In
addition, the Trustee serves as a depositary of funds of, and performs other
services for, the Company and its trustee under two other indentures pursuant
to which several outstanding series of the Company's debentures have been
issued.
SUBORDINATION
The payment of the principal of and premium, if any, and interest on
the Subordinated Debt Securities is, to the extent set forth in the
Subordinated Indenture, subordinated in right of payment to the prior payment
in full of all Senior Indebtedness, whether now outstanding or incurred in the
future (Section 1301 of the Subordinated Indenture). Upon any payment or
distribution of assets of the Company to creditors upon any liquidation,
dissolution, winding up, assignment for the benefit of creditors or marshalling
of assets and liabilities or any bankruptcy, insolvency, receivership,
liquidation, reorganization or similar proceedings of the Company, the holders
of all Senior Indebtedness will first be entitled to receive any payment in
full of all amounts due or to become due thereon before the Holders of the
Subordinated Debt Securities will be entitled to receive any payment (other
than any payment in the form of Permitted Junior Securities) on account of the
principal of or premium, if any, or interest on the Subordinated Debt
Securities (Section 1302 of the Subordinated Indenture).
No payment (other than any payment in the form of Permitted Junior
Securities) on account of principal of and premium, if any, or interest on the
Subordinated Debt Securities may be made if a Payment Event of Default shall
have occurred and be continuing. 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 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 from holders of at least a majority in
principal amount of any Designated Senior Indebtedness (or any other trustee or
other representative therefor) and ending on the earlier of (i) the date such
Non-payment Event of Default has been cured or waived or has ceased to exist or
any acceleration of such Designated Senior Indebtedness has been rescinded or
annulled or such Designated Senior Indebtedness shall have been discharged and
(ii) the date 176 days after such receipt of notice. Any number of such
notices may be given; provided, however, that, during any 360-day period, the
aggregate Payment Blockage Periods shall not exceed 176 days and there shall be
a period of at least 184 consecutive days when no Payment Blockage Period is in
effect. No default existing or continuing when a Payment Blockage Period
begins may be the basis for any subsequent Payment Blockage Period unless such
default has been cured for a period of at least 90 consecutive days. 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, with such
Trustee or Holder, as the case may be, knowing of such contravention before
receipt thereof, then such payment will be required to be paid over and
delivered forthwith to the Company to the extent necessary to pay in full all
such Senior Indebtedness (Section 1302 of the Subordinated Indenture).
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The subordination rights of holders of Senior Indebtedness will not be
prejudiced or impaired by any acts or failures to act by the Company or by any
such holder (Section 1308 of the Subordinated Indenture). The subordination of
the Subordinated Debt Securities set forth above will not prevent the
occurrence of any Event of Default under the Subordinated Indenture.
Furthermore, the subordination of the Subordinated Debt Securities as set forth
above will not impair, as between the Company, the Holders of the Subordinated
Debt Securities and creditors of the Company other than holders of Senior
Indebtedness, the obligations of the Company to make payments on the
Subordinated Debt Securities in accordance with their terms. In certain
circumstances, as set forth in the Indenture, the Holders of Subordinated Debt
Securities will be subrogated to certain rights of the holders of Senior
Indebtedness upon payment in full of all Senior Indebtedness (Section 1302 of
the Subordinated Indenture).
By reason of such subordination, in the event of insolvency of the
Company, the holders of Senior Indebtedness (as well as other creditors of the
Company who are holders of indebtedness that is not subordinated to the Senior
Indebtedness) may recover more, ratably, than the Holders of the Subordinated
Debt Securities.
The Subordinated Debt Securities will also be effectively subordinated
to all liabilities, including trade payables and capitalized lease obligations,
if any, of the Company's subsidiaries. Any right of the Company to receive the
assets of any of its subsidiaries upon their liquidation or reorganization (and
the consequent right of the Holders of the Subordinated Debt Securities to
participate in those assets) will be subject to the prior payment of claims of
that subsidiary's creditors (including trade creditors), except to the extent
that the Company is itself a creditor of such subsidiary, in which case the
claims of the Company would still be subject to the prior payment of claims
secured by security interests in the assets of such subsidiary and any other
indebtedness of such subsidiary senior to that held by the Company.
If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness outstanding as
of a recent date will be set forth in the Prospectus Supplement. The
Subordinated Indenture does not restrict the amount of Senior Indebtedness that
the Company may incur.
CERTAIN DEFINITIONS
The term "Bank Credit Facility" is defined in the Indenture as the
Company's existing bank credit facility and any renewals, amendments,
extensions, supplements, modifications, refinancing or replacements thereof
(whether or not the principal amount outstanding thereunder shall be
increased)(Section 101 of the Subordinated Indenture).
The term "Designated Senior Indebtedness" is defined in the
Subordinated Indenture as (i) all Senior Indebtedness under the Bank Credit
Facility if the sum of the amounts outstanding under the Bank Credit Facility
and the amounts available for borrowing thereunder is equal to or greater than
$25,000,000 and (ii) all other Senior Indebtedness having an outstanding
principal amount equal to or greater than $25,000,000 (provided, however, that
the agreements, indentures or other instruments evidencing any Senior
Indebtedness referred to in this clause (ii) specifically state that such
Senior Indebtedness shall be classified as "Designated Senior Indebtedness" for
purposes of the Subordinated Indenture) (Section 101 of the Subordinated
Indenture).
The term "Indebtedness," as applied to any Person, is defined in the
Subordinated Indenture as all indebtedness, whether or not represented by
bonds, debentures, notes or other securities, created or assumed by such Person
for the repayment of money borrowed, and obligations, computed in accordance
with generally accepted accounting principles, as lessee under leases that
should be, in accordance with generally accepted accounting principles, treated
as capital leases. All Indebtedness secured by a lien upon property owned by
the Company or any Subsidiary and upon which Indebtedness such Person
customarily pays interest, although such Person has not assumed or become
liable for the payment of such Indebtedness, shall be deemed to be Indebtedness
of such Person. All Indebtedness of others guaranteed as to payment of
principal by such Person or in effect guaranteed by such Person through a
contingent agreement to purchase such Indebtedness shall also be deemed to be
Indebtedness of such Person (Section 101 of the Subordinated Indenture).
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The term "Non-payment Event of Default" is defined in the Subordinated
Indenture as any event (other than a Payment Event of Default) the occurrence
of which entitles any one or more persons to accelerate the maturity of any
Designated Senior Indebtedness (Section 101 of the Subordinated Indenture).
The term "Payment Event of Default" is defined in the Subordinated
Indenture as any default in the payment of principal of or premium, if any, or
interest on any Designated Senior Indebtedness when due (whether at maturity,
upon acceleration or otherwise) (Section 101 of the Subordinated Indenture).
The term "Permitted Junior Securities" is defined in the Subordinated
Indenture as subordinated debt securities of the Company (or any successor
obligor with respect to the Senior Indebtedness) provided for by a plan of
reorganization or readjustment that are subordinated in right of payment to all
Senior Indebtedness that may be outstanding to substantially the same extent
as, or to a greater extent than, the Subordinated Debt Securities are
subordinated as provided in the Subordinated Indenture (Section 101 of the
Subordinated Indenture).
The term "Senior Indebtedness" is defined in the Subordinated
Indenture as all obligations of the Company under the Bank Credit Facility and
(b) all other Indebtedness of the Company, whether currently outstanding or
hereafter issued; provided that "Senior Indebtedness" shall not include (i) the
Company's 7% Convertible Subordinated Notes due 2001, (ii) the Company's 8%
Convertible Subordinated Debentures and 6% Convertible Subordinated Debentures,
if and when issued, for which the Company's existing preferred stock is
exchangeable, (iii) any obligation owed to a Subsidiary or an Affiliate of the
Company, (iv) 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 (v) any obligation constituting a trade account payable
(Section 101 of the Subordinated Indenture).
The term "Subsidiary" is defined in the Indenture as a corporation
more than 50% of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency (Section
101).
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions
of the Preferred Stock to which any Prospectus Supplement may relate. The
particular terms of any series of Preferred Stock to be issued hereby will be
described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
The summary of terms of the Company's preferred stock (including the
Preferred Stock) contained in this Prospectus does not purport to be complete
and is subject to, and qualified in its entirety by, the provisions of the
Company's Certificate of Incorporation and the certificate of designations
relating to each series of preferred stock, including the Preferred Stock
("Certificate of Designations"), which will be filed as an exhibit to or
incorporated by reference in the Registration Statement of which this
Prospectus is a part at or prior to the time of issuance of such series of the
Preferred Stock.
The Company's Certificate of Incorporation authorizes the issuance of
10,000,000 shares of preferred stock, par value of $.01 per share. On June 30,
1994, 2,185,005 shares of preferred stock were outstanding. Preferred stock
may be issued from time to time in one or more classes or series with such
rights and preferences, including voting, dividend and conversion rights and
other terms, as the Board of Directors may establish without any further
authorization by the stockholders.
The Preferred Stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. The
applicable Prospectus
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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 Depositary Shares as
described below under "Description of Depositary Shares"; and (8) any
additional voting, dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
GENERAL
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 nor 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.
As described under "Description of Depositary Shares," the Company
may, at its option, elect to offer Depositary Shares evidenced by depositary
receipts ("Depositary Receipts"), each representing a fractional interest (to
be specified in the Prospectus Supplement relating to the particular series of
the Preferred Stock) in a share of the particular series of the Preferred Stock
issued and deposited with a Depositary (as defined below).
RANK
The Preferred Stock shall, with respect to dividend rights and rights
on liquidation, winding up and dissolution of the Company, rank prior to the
Company's Common Stock and to all other classes and series of equity securities
of the Company now or hereinafter authorized, issued or outstanding (the Common
Stock and such other classes and series of equity securities collectively may
be referred to herein as the "Junior Stock"), other than any classes or series
of equity securities of the Company ranking on a parity with (the "Parity
Stock") or senior to (the "Senior Stock") the Preferred Stock as to dividend
rights and rights upon liquidation, winding up or dissolution of the Company.
The Preferred Stock will be junior to all outstanding debt of the Company. The
Preferred Stock will be subject to creation of Senior Stock, Parity Stock and
Junior Stock to the extent not expressly prohibited by the Company's
Certification of Incorporation.
DIVIDENDS
Holders of shares of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors out of funds of the Company
legally available for payment, cash dividends, payable at such dates and at
such rates per share per annum as set forth in the applicable Prospectus
Supplement. Such rate may be fixed or variable or both. Each declared
dividend will be payable to holders of record as they appear at the close of
business on the stock books of the Company (or, if applicable, on the records
of the Depositary) on such record dates, not more than 60 calendar days
preceding the payment dates therefor, as are determined by the Board of
Directors (each of such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
Preferred Stock will have no right to receive a dividend in respect of such
dividend period, and the Company will have no obligation to pay the dividends
for such period, whether or not dividends are declared payable on any future
Dividend Payment Dates. Dividends on the shares of each series of Preferred
Stock for which dividends are cumulative will accrue from the date on which the
Company initially issues shares of such series.
No full dividends shall be declared or paid or set apart for payment
on preferred stock of the Company of any series
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ranking, as to dividends, on a parity with or junior to the series of Preferred
Stock offered by the applicable Prospectus Supplement for any period unless
full dividends for the immediately preceding dividend period on such Preferred
Stock (including any accumulation in respect of unpaid dividends for prior
dividend periods, if dividends on such Preferred Stock are cumulative) have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment. When
dividends are not so paid in full (or a sum sufficient for such full payment is
not so set apart) upon such Preferred Stock and any other preferred stock of
the Company ranking on a parity as to dividends with the Preferred Stock,
dividends upon shares of such Preferred Stock and dividends on such other
preferred stock shall be declared pro rata so that the amount of dividends
declared per share on such Preferred Stock and such other preferred stock shall
in all cases bear to each other the same ratio that accrued dividends for the
then-current dividend period per share on the shares of such Preferred Stock
(including any accumulation in respect of unpaid dividends for prior dividend
periods, if dividends on such Preferred Stock are cumulative) and accrued
dividends, including required or permitted accumulations, if any, on shares of
such other preferred stock, bear to each other. Unless full dividends on the
series of Preferred Stock offered by the applicable Prospectus Supplement have
been declared and paid or set apart for payment for the immediately preceding
dividend period (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such Preferred Stock are cumulative)
(a) no cash dividend or distribution (other than in shares of Junior Stock) may
be declared, set aside or paid on the Junior Stock; (b) the Company may not
repurchase, redeem or otherwise acquire any shares of its Junior Stock (except
by conversion into or exchange for Junior Stock); and (c) the Company may not,
directly or indirectly, repurchase, redeem or otherwise acquire any shares of
Preferred Stock or Parity Stock otherwise than pursuant to certain pro rata
offers to purchase or a concurrent redemption of all, or a pro rata portion, of
the outstanding shares of such Preferred Stock and Parity Stock (except by
conversion into or exchange for Junior Stock).
CONVERTIBILITY
The terms, if any, on which shares of Preferred Stock of any series
may be exchanged for or converted (mandatorily or otherwise) into shares of
Common Stock of the Company, another series of Preferred Stock, Debt Securities
or other securities of the Company will be set forth in the Prospectus
Supplement relating thereto.
REDEMPTION
The terms, if any, on which shares of Preferred Stock of any series
may be redeemed will be set forth in the related Prospectus Supplement.
LIQUIDATION
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of a voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, the holders of a series of Preferred Stock will
be entitled, subject to the rights of creditors, but before any distribution or
payment to the holders of Common Stock or any other security ranking junior to
the Preferred Stock on liquidation, dissolution or winding up of the Company,
to receive an amount per share as set forth in the related Prospectus
Supplement plus accrued and unpaid dividends for the then-current dividend
period (including any accumulation in respect of unpaid dividends for prior
dividend periods, if dividends on such series of Preferred stock are
cumulative). If the amounts available for distribution with respect to the
Preferred Stock and all other outstanding stock of the Company ranking on a
parity with the Preferred Stock upon liquidation are not sufficient to satisfy
the full liquidation rights of all the outstanding Preferred Stock and stock
ranking on a parity therewith, then the holders of each series of such stock
will share ratably in any such distribution of assets in proportion to the full
respective preferential amount (which in the case of preferred stock may
include accumulated dividends) to which they are entitled. After payment of
the full amount of the liquidation preferences, the holders of shares of
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company.
VOTING
The Preferred Stock of a series will not be entitled to vote, except
as provided below or in the applicable Prospectus
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Supplement and as required by applicable law. Unless otherwise specified in
the related Prospectus Supplement, at any time dividends in an amount equal to
six quarterly dividend payments on the Preferred Stock shall have accrued and
be unpaid, holders of the Preferred Stock will have the right to a separate
class vote (together with the holders of shares of any Parity Stock upon which
like voting rights have been conferred and are exercisable, "Voting Parity
Stock") to elect two members of the Board of Directors at any meeting of
stockholders held during the period such dividends remain in arrears. Such
voting rights will terminate (and the term of office of all directors so
elected will terminate) when all dividends on the Preferred Stock have been
paid in full or set apart for payment. Additionally, without the affirmative
vote of the holders of two-thirds of the shares of Preferred Stock then
outstanding (voting separately as a class together with any Voting Parity
Stock), the Company may not, either directly or indirectly or through merger or
consolidation with any other corporation, (i) approve the authorization,
creation or issuance, or an increase in the authorized or issued amount, of any
class or series of stock ranking prior to the shares of Preferred Stock in
rights and preferences, (ii) amend, alter or repeal its Certificate of
Incorporation or the Certificate of Designations so as to materially and
adversely change the specific terms of the Preferred Stock, or (iii) effect any
reclassification of the Preferred Stock. An amendment which increases the
number of authorized shares of or authorizes the creation or issuance of other
classes of preferred stock ranking junior to or on a parity with the Preferred
Stock with respect to the payment of dividends or distribution of assets upon
liquidation, dissolution or winding up, or substitute the surviving entity in a
merger, consolidation, reorganization or other business combination for the
Company, shall not be considered to be such an adverse change.
As more fully described under "Description of Depositary Shares"
below, if the Company elects to issue Depositary Shares, each representing a
fraction of a share of a series of the Preferred Stock, each such Depositary
Share will, in effect, be entitled to vote such fraction of a vote per
Depositary Share.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any
preferences, voting powers or relative, participating, optional or other
special rights except as set forth above or in the related Prospectus
Supplement, the Certificate of Incorporation and in the Certificate of
Designations or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be
described in the related Prospectus Supplement.
EXISTING PREFERRED STOCK
In November 1991, the Company issued 1,200,000 shares of $4.00
Exchangeable Convertible Preferred Stock, 1,150,005 of which were outstanding
on June 30, 1994. Holders of such stock are entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available therefor,
cash dividends at an annual rate of $4.00 per share, payable quarterly in
arrears. Upon liquidation, such holders are entitled to receive a preference
of $50.00 per share, plus accrued and unpaid dividends to the payment date.
Each share of such preferred stock is convertible into 5.51 shares of Common
Stock at any time prior to redemption (subject to adjustment), equivalent to a
conversion price of $9.07 for each share of Common Stock. The Company has the
right to exchange the shares of such preferred stock for the Company's 8%
convertible subordinated debentures due 2006 on any dividend payment date and,
subject to certain conditions, has the right to redeem the preferred stock
beginning December 31, 1994.
In April 1993, the Company issued 1,035,000 shares (represented by
4,140,000 depositary shares) of $6.00 Convertible Exchangeable Preferred Stock,
all of which were outstanding on June 30, 1994. Holders of such stock are
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available therefor, cash dividends at an annual rate of $6.00 per
share ($1.50 per depositary share), payable quarterly in arrears. Upon
liquidation, such holders are entitled to receive a preference of $100.00 per
share, plus accrued and unpaid dividends to the payment date. Each share of
such preferred stock is convertible into 4.762 shares of Common Stock at any
time prior to redemption (subject to adjustment), equivalent to a conversion
price of $21.00 for each share of Common Stock. The Company has the right to
exchange the shares of such preferred stock for the Company's 6% convertible
subordinated debentures due 2008 on
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any dividend date payment date and has the right to redeem the 6% preferred
stock beginning March 31, 1996.
The two existing classes of preferred stock rank prior to the Common
Stock, and on a parity with each other, as to dividends and upon liquidation,
dissolution or winding up.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts 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 relating to each series of the
Preferred Stock which have been or will be filed with the Commission at or
prior to the time of the offering of such series of the 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, each of which will
represent a fractional interest as set forth in the applicable Prospectus
Supplement.
The shares of any series of the 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 $50,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of Preferred Stock underlying
such Depositary Shares, to all the rights and preferences of the Preferred
Stock underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary Receipts,
the Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the Depositary
and upon payment of the charges provided in the Deposit Agreement and subject
to the terms thereof, a holder of Depositary Shares is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any 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.
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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 such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement will also contain provisions relating to how any
subscription or similar rights offered by the Company to holders of the
Preferred Stock will be made available to 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 such series of the Preferred Stock held by the Depositary. The Depositary
will 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
such 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 relating to shares of
Preferred Stock so redeemed. If less than all of 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 Company.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
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 such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Stock. Each record holder of any of such
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 such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of shares of
Preferred Stock underlying such Depositary Shares in accordance with such
instructions, and the Company will agree to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of Preferred Stock to the extent it
does not receive specific instructions from the holders of Depositary Shares
relating to such Preferred Stock.
AMENDMENT AND TERMINATION OF THE 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 which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such 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 (i) all outstanding Depositary Shares relating thereto have
been redeemed, exchanged or converted or (ii) there has been a final
distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidations, dissolution or winding up of the Company and
such distribution has been distributed to the holders of the related Depositary
Shares.
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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 other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all
reports and communications from the Company which are delivered to the
Depositary and which 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 circumstances 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 in respect of 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.
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 such appointment. Such
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 $50,000,000.
DESCRIPTION OF COMMON STOCK
COMMON STOCK
The Company is authorized to issue 75,000,000 shares of Common Stock.
On June 30, 1994, 23,568,630 shares were outstanding and 18,749,020 were
reserved for future issuance. 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. Dividends may be declared
in the discretion of the Board of Directors from funds legally available
therefore, subject to restrictions under agreements related to Company
indebtedness.
FACTORS AFFECTING ACQUISITIONS OF CONTROL
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 impeding or discouraging the
acquisition of control of the Company.
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The Company is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law (the "DGCL"). In general, Section 203
prevents an "interested stockholder" (defined generally as a person owning 15%
or more of a corporation's outstanding voting stock) from engaging in a
"business combination" (as defined) with a Delaware corporation for three years
following the date such person became an interested stockholder unless (i)
before such person became an interested stockholder, the board of directors of
the corporation approved the transaction in which the interested stockholder
became an interested stockholder or approved the business combination; (ii)
upon consummation of the transaction that resulted in the interested
stockholder's becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced (excluding stock held by directors who are also
officers of the corporation and by employee stock plans that do not provide
employees with the rights to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer); or (iii)
following the transaction in which such person became an interested
stockholder, the business combination is approved by the board of directors of
the corporation and authorized at a meeting of stockholders by the affirmative
vote of the holders of two-thirds of the outstanding voting stock of the
corporation not owned by the interested stockholder. Under Section 203, the
restrictions described above also do not apply to certain business combinations
proposed by an interested stockholder following the announcement or
notification of one of certain extraordinary transactions involving the
corporation and a person who had not been an interested stockholder during the
previous three years or who became an interested stockholder with the approval
of a majority of the corporation's directors, if such extraordinary transaction
is approved or not opposed by a majority of the directors who were directors
prior to any person becoming an interested stockholder during the previous
three years or who were recommended for election or elected to succeed such
directors by a majority of such directors.
DIRECTORS' 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 at 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.
The transfer agent for the Common Stock is Society National Bank, P.
O. Box 2320, Dallas, Texas 75221-2320.
DESCRIPTION OF WARRANTS
The company may issue Warrants for the purchase of Debt Securities,
Preferred Stock, Depositary Shares or Common Stock. Warrants may be issued
independently or together with Debt Securities, Preferred Stock, Depositary
Shares or Common Stock offered by any Prospectus Supplement and may be attached
to or separate from such Debt Securities, Preferred Stock, Depositary Shares or
Common Stock. 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, all as set forth in the Prospectus
Supplement relating to the particular issue of offered Warrants. The Warrant
agent will act solely as an agent of the Company in connection with the Warrant
certificates relating to the Warrants and will not assume any obligation or
relationship of agency or trust for or with any holders of Warrant certificates
or beneficial owners of Warrants. Warrant Agreements, including the forms of
Warrant certificates representing the Warrants, will be filed as an exhibit to
or incorporated by reference in the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions of the
forms of Warrant Agreements and
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Warrant certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the Warrant
Agreements and the Warrant certificates.
GENERAL
If Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Warrants, including, in the case of Warrants for the
purchase of Debt Securities, the following where applicable: (i) the title and
aggregate number of such Warrants and the offering price; (ii) the designation,
denominations and terms of the series of Debt Securities purchasable upon
exercise of such Warrants; (iii) the designation and terms of any series of
Debt Securities, Preferred Stock, Depositary Shares or Common Stock with which
such Warrants are being offered and the number of such Warrants being offered
with each such Debt Security, Preferred Stock, Depositary Share or Common
Stock; (iv) the date on and after which such Warrants and the related series of
Debt Securities, Preferred Stock, Depositary Shares or Common Stock will be
transferable separately; (v) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Warrant and the price at
which such principal amount of Debt Securities of such series may be purchased
upon such exercise; (vi) the date on which the right to exercise such Warrants
shall commence and the date (the "Expiration Date") on which such right shall
expire; (vii) any special United States Federal income tax consequences; (viii)
the terms, if any, on which the Company may accelerate the date by which the
Warrants must be exercised; and (ix) any other terms of such Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Warrants.
In the case of Warrants for the purchase of Preferred Stock,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Warrants, including the following where applicable:
(i) the title and aggregate number of such Warrants and the offering price;
(ii) the aggregate number of shares purchasable upon exercise of such Warrants,
the exercise price, and in the case of Warrants for Preferred Stock or
Depositary Shares, the designation, aggregate number and terms of the series of
Preferred Stock purchasable upon exercise of such Warrants or underlying the
Depositary Shares purchasable upon exercise of such Warrants; (iii) the
designation and terms of the series of Debt Securities, Preferred Stock,
Depositary Shares or Common Stock with which such Warrants are being offered
and the number of such Warrants being offered with each such Debt Security,
Preferred Stock, Depositary Share or Common Stock; (iv) the date on and after
which such Warrants and the related series of Debt Securities, Preferred Stock,
Depositary Shares or Common Stock will be transferable separately; (v) the date
on which the right to exercise such Warrants shall commence and the Expiration
Date; (vi) any special United States Federal income tax consequences; and (vii)
any other terms of such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of shares of Preferred Stock,
Depositary Shares or Common Stock, as the case may be, at such exercise price
as shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Warrants. After the close of business on
the Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Warrants will become void.
Warrants may be exercised by delivering to the Warrant agent payment
as provided in the applicable Prospectus Supplement of the amount required to
purchase the Debt Securities, Preferred Stock, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise together with certain
information set forth on the reverse side of the Warrant certificate. Warrants
will be deemed to have been exercised upon receipt of payment of the exercise
price, subject to the receipt within five business days, of the Warrant
certificate evidencing such Warrants. Upon receipt of such payment and the
Warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Stock, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise. If fewer than all
of the Warrants represented by such Warrant certificate are exercised, a new
Warrant certificate will be issued for the remaining amount of Warrants.
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AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENTS
The Warrant Agreements may be amended or supplemented without the
consent of the holders of the Warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the Warrants and that do not
adversely affect the interest of the holders of the Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
the exercise price of, and the number of shares of Common Stock covered by, a
Warrant entitling the holder to purchase Common Stock (a "Common Stock
Warrant") are subject to adjustment in certain events, including (i) payment of
a dividend on the Common Stock payable in capital stock and stock splits,
combinations or reclassifications of the Common Stock, (ii) issuance to all
holders of Common Stock of rights or warrants to subscribe for or purchase
shares of Common Stock at less than their current market price (as defined in
the Warrant Agreement for such series of Common Stock Warrants), and (iii)
certain distributions of evidences of indebtedness or assets (including
securities but excluding cash dividends or distributions paid out of retained
earnings or dividends payable in Common Stock) or of subscription rights and
warrants (excluding those referred to above). If after the distribution date
fixed for purposes of distributing to holders of Common Stock any Stockholder
Rights, exercising holders of any Common Stock Warrant are not entitled to
receive Stockholder Rights that would otherwise be attributable (but for the
date of exercise) to the shares of Common Stock received upon such exercise,
then adjustment of the exercise price will be made under clause (iii) of this
paragraph as if the Stockholder Rights were being distributed to holder of the
Company's Common Stock. If such an adjustment is made and the Stockholder
Rights are later redeemed, invalidated or terminated, then a corresponding
reversing adjustment will be made to the number of shares of Common Stock
issuable upon the exercise of such Common Stock Warrant, on an equitable basis,
to take account of such event. However, the Company may elect to make
provision with respect to Stockholder Rights so that each share of Common Stock
issuable upon exercise of such Common Stock Warrant whether or not issued after
the distribution date for such Stockholder Rights, will be accompanied by the
Stockholder Rights that would otherwise be attributable (but for the date of
exercise) to such shares of Common Stock, in which event the preceding two
sentences will not apply.
No adjustment in the exercise price of, and the number of shares of
Common Stock covered by, a Common Stock Warrant will be made for regular
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price than in effect. Except as stated above, the
exercise price of, and the number of share of Common Stock covered by, a Common
Stock Warrant will not be adjusted for the issuance of Common Stock or any
securities convertible into or exchangeable for Common Stock, or carrying the
right or option to purchase or otherwise acquire the foregoing, in exchange for
cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or
into any entity (other than a consolidation or a merger that does not result in
any reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock), (ii) sale, transfer, lease or conveyance of all or
substantially all of the assets of the Company or (iii) reclassification,
capital reorganization or change of the Common Stock (other than solely a
change in par value of from par value to no par value), then any holder of a
Common Stock Warrant will be entitled, on or after the occurrence of any such
event, to receive on exercise of such Common Stock Warrant the kind and amount
of shares of stock or other securities, cash or other property (or any
combination thereof) that the holder would have received had such holder
exercised such holder's Common Stock Warrant immediately prior to the
occurrence of such event. If the consideration to be received upon exercise of
the Common Stock Warrant following any such event consists of common stock of
the surviving entity, then from and after the occurrence of such event, the
exercise price of such Common Stock Warrant will be subject to the same
antidilution and other adjustments described in the second preceding paragraph,
applied as if such common stock were Common Stock.
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GLOBAL SECURITIES
REGISTERED GLOBAL SECURITIES
The registered Securities (including Registered Debt Securities but
excluding Common Stock) of a series may be issued in whole or in part in the
form of one or more fully registered global Securities ("Registered Global
Securities") that will be deposited with, or on behalf of, a depository (the
"Depository") identified in the Prospectus Supplement relating to such series.
Registered Global Securities may be issued in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the individual
registered Securities represented thereby, a Registered Global Security may not
be transferred except as a whole by the Depository for such Registered Global
Security to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any nominee of such Depository to a successor Depository or any nominee of such
successor.
The specific terms of the depository arrangement with respect to a
series of Securities will be described in the Prospectus Supplement relating to
such series. Unless otherwise specified in the Prospectus Supplement, the
Company anticipates that the following provisions will apply to depository
arrangements.
Upon the issuance of a Registered Global Security, the Depository for
such Registered Global Security or its nominee will credit on its book-entry
registration and transfer system the respective principal amounts of the
individual Securities represented by such Registered Global Security to the
accounts of persons that have accounts with such Depository ("Participants").
Such accounts shall be designated by the underwriters, dealers or agents with
respect to such Securities or by the Company if such Securities are offered and
sold directly by the Company. Ownership of beneficial interests in a
Registered Global Security will be limited to Participants or persons that may
hold interests through Participants. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the applicable Depository
or its nominee (with respect to interests to Participants) and records of
Participants (with respects to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to own, pledge or transfer
beneficial interests in a Registered Global Security.
So long as the Depository for a Registered Global Security or its
nominee is the registered owner of such Registered Global Security, such
Depository or such nominee, as the case may be, will be considered the sole
owner or holder of the Securities represented by such Registered Global
Security for all purposes under the Indenture or applicable Warrant Agreement.
Except as provided below, owners of beneficial interests in a Registered Global
Security will not be entitled to have any of the individual Securities of the
series represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of any such
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture or applicable Warrant Agreement.
Accordingly, each person owning a beneficial interest in a Registered Global
Security must rely on the procedures of the Depository for such Registered
Global Security and, if such a person is not a Participant, on the procedures
of the Participant through which such person owns its interest, to exercise any
rights of a holder under the Indenture or applicable Warrant Agreement. The
Company understands that under existing industry practices, if the Company
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder is
entitled to give or take under the Indenture or applicable Warrant Agreement,
the Depository for such Registered Global Security would authorize the
Participants holding the relevant beneficial interests to give or take such
action, and such Participants would authorize beneficial owners owning through
such Participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments of principal of and any premium or interest on individual
Securities represented by a Registered Global Security registered in the name
of a Depository or its nominee will be made to the Depository or its nominee,
as the case may be, as the registered owner of the Registered Global Security
representing such Securities. None of the Company, the Trustee, the Warrant
Agent, any paying agent or the registrar for such Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Registered
Global Security for such Securities or for maintaining, supervising or
reviewing any records relating to such
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beneficial ownership interests.
The Company expects that the Depository for a series of Securities or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Registered Global Security representing any of such
Securities, immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Registered Global Security for such Securities as shown on the
records of such Depository or its nominee. The Company also expects that
payments by Participants to owners of beneficial interests in such Registered
Global Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such Participants.
If a Depository for a series of Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is
not appointed by the Company within 90 days, the Company will issue individual
Securities of such series in exchange for the Registered Global Security
representing such series of 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 such series of Securities, determine not to
have any Securities of such series represented by one or more Registered Global
Securities and, in such event, will issue individual Securities of such series
in exchange for the Registered Global Security or Securities representing such
series of Securities. Individual Securities of such series so issued will be
issued in denominations, unless otherwise specified by the Company, of $1,000
and integral multiples thereof. Any Securities issued in definitive form in
exchange for a Registered Global Security will be registered in such name as
the Depository shall instruct the Trustee or relevant Warrant Agent. It is
expected that such instructions will be based upon directions received by the
Depository from Participants with respect to ownership of beneficial interests
in such Registered Global Security.
BEARER GLOBAL SECURITIES
If so specified in an applicable Prospectus Supplement, all or any
portion of the Securities of a series which are issuable as Bearer Debt
Securities will initially be represented by one or more temporary global Bearer
Debt Securities ("Bearer Global Securities"), without interest coupons, to be
deposited with a common depositary in London for the Euro-clear System
("Euro-clear") and CEDEL S.A. ("CEDEL") for credit to the designated accounts.
On and after the date determined as provided in any such temporary Bearer
Global Security and described in an applicable Prospectus Supplement, each such
temporary Bearer Global Security will be exchangeable for definitive Bearer
Debt Securities, definitive Registered Debt Securities or all or a portion of a
permanent Bearer Global Security, or any combination thereof, as specified in
an applicable Prospectus Supplement, but, unless otherwise specified in an
applicable Prospectus Supplement, only upon written certification in the form
and to the effect described under "Description of Debt Securities -- Provisions
Applicable to Both Senior and Subordinated Debt Securities -- Form, Exchange,
Registration and Transfer." No Bearer Debt Security delivered in exchange for
a portion of a temporary Bearer Global Security will be mailed or otherwise
delivered to any location in the United States in connection with such
exchange. The specific terms and procedures, including the specific terms of
the depositary arrangement with respect to any portion of a series of Bearer
Debt Securities to be represented by a Bearer Global Security will be described
in the applicable Prospectus Supplement.
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters, through
agents or directly to other purchasers.
The distribution of Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such market
prices or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers in the form of
discounts, concessions or commissions. Underwriters, agents and dealers
participating
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27
in the distribution of the Securities may be deemed to be underwriters within
the meaning of the Securities Act.
Pursuant to agreements which may be entered into between the Company
and any underwriters or agents named in the Prospectus Supplement, such
underwriters or agents may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as agents for the Company to
solicit offers by certain institutional investors to purchase Debt Securities
or Preferred Stock from the Company pursuant to contracts providing for payment
and delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
shall in all cases be subject to the approval of the Company. The obligations
of the purchaser under any such contract will not be subject to any conditions
except (i) the investment in the Debt Securities or Preferred Stock by the
institution shall not at the time of delivery be prohibited by the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if a portion of the Debt Securities or Preferred Stock is being sold to
underwriters, the Company shall have sold to such underwriters the Debt
Securities or Preferred Stock not sold for delayed delivery. Underwriters and
such other persons will not have any responsibility in respect of the validity
or performance of such contracts.
All Debt Securities, Preferred Stock and Warrants offered will be a
new issue of securities with no established trading market. Any underwriters
to whom such Debt Securities, Preferred Stock and Warrants are sold by the
Company for public offering and sale may make a market in such Debt Securities,
Preferred Stock and Warrants, but such underwriters will not be obligated to do
so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for any
Debt Securities, Preferred Stock or Warrants.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for the Company
in the ordinary course of business.
The specific terms and manner of sale of the Securities in respect of
which this Prospectus is being delivered are set forth or summarized in the
Prospectus Supplement.
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28
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for the
Company by Peter E. Lorenzen, Vice President and General Counsel of the
Company, and for the underwriters or agents, if any, by a firm named in the
Prospectus Supplement relating to a particular issue of Securities. Mr.
Lorenzen owns 7,000 shares, and holds options to purchase 67,800 shares, of
Common Stock.
EXPERTS
The audited financial statements and financial statement schedules
incorporated in this Prospectus by reference have been audited by Arthur
Andersen & Co., independent public accountants, as indicated in their reports
with respect thereto, and are incorporated herein in reliance upon the
authority of said 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 reserve
reports and reserve report audits prepared by Netherland, Sewell & Associates,
Inc., independent oil and gas consultants, and, to such extent, are included
and incorporated by reference in reliance upon the authority of such firm as
experts with respect to the matters contained in such reports and audits.
26
29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this Registration
Statement shall have been the meanings assigned to them in the Prospectus which
forms a part of this Registration Statement.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Except for the SEC Registration Fee, 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 $ 86,207
Blue Sky Fees and Expenses (including legal fees) 25,000
Printing and Engraving Expenses 100,000
Legal Fees and Expenses 75,000
Accountants' Fees and Expenses 75,000
Rating Agency Fees 150,000
Trustees' Fees and Expenses 30,000
Miscellaneous Fees and Expenses 15,000
--------
Total $556,207
========
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 forms of the Underwriting Agreements, which will be filed as
Exhibits 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.
The Registrant has entered into indemnification agreements with each
of its officers and directors and may in the future enter into such
indemnification agreements with its directors, officers, employees and agents.
Such indemnification agreements are intended to provide a contractual right to
indemnification, to the extent permitted by law, for costs, expenses (including
attorneys' fees and disbursements), judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by the person to be
indemnified in connection with any proceeding (including, to the extent
permitted by law, any derivative action) to which they are, or are threatened
to be made, a party by reason of their status or decisions or actions in such
positions. Such indemnification agreements do not change the basic legal
standards for indemnification set forth in DGCL or the certificate of
incorporation of the Registrant. Such provisions are intended to be in
furtherance, and not in limitation of, the general right to indemnification
provided in the certificate of incorporation and Bylaws of the Registrant.
II-1
30
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. Article Ten of 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
is qualified in its entirety by such Certificate of Incorporation and statutes.
ITEM 16. EXHIBITS.
1.1 -- Form of Underwriting Agreement (for equity securities).*
1.2 -- Form of Underwriting Agreement (for debt securities).*
4.1.1 -- Certificate of Incorporation of Registrant -- incorporated by
reference from Exhibit 3.1 to the Registrant's Registration
Statement on Form S-4 (Registration No. 33-33455).
4.1.2 -- Certificate of Amendment to Certificate of Incorporation of
Registrant filed February 9, 1990 -- incorporated by
reference from Exhibit 3.1.1 to the Registrant's Registration
Statement on Form S-4 (Registration No. 33-33455).
4.1.3 -- Certificate of Amendment to Certificate of Incorporation of
Registrant filed May 22, 1991 -- incorporated by reference
from Exhibit 3.1.2 to the Registrant's Registration Statement
on Form S-1 (Registration No 33-43106).
4.1.4 -- Certificate of Amendment to Certificate of Incorporation of
Registrant filed May 24, 1993 -- incorporated by reference
from Exhibit 3.1.5 to the Registrant's Form 10-Q for the
quarter ended June 30, 1993 (File No. 1-10509).
4.1.5 -- Certificate of Designations, Powers, Preferences and Rights of
the Registrant's $4.00 Convertible Exchangeable Preferred
Stock -- incorporated by reference from Exhibit 3.1.3 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1991 (File No. 1-10509).
4.1.6 -- Certificate of Designations of the Registrant's $6.00
Convertible Exchangeable Preferred Stock -- incorporated by
reference from Exhibit 3.1.4 to the Registrant's Form 10-Q for
the quarter ended June 30, 1993 (File No. 1-10509).
4.1.7 -- Indenture (including form of Note) for 7% Convertible
Subordinated Notes -- incorporated by reference from Exhibit
4.3 to the Registrant's Registration Statement on Form S-3
(Registration No. 33-52807).
4.1.8 -- Fifth Restated Credit Agreement dated as of June 30, 1994
among Registrant, the Banks listed therein and NationsBank of
Texas, N.A. as Agent.**
4.2 -- By-Laws of Registrant -- incorporated by reference from
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-4 (Registration No. 33-33455).
4.3 -- Form of Indenture, including form of Debenture, with respect
to Senior Indebtedness.**
4.4 -- Form of Indenture, including form of Debenture, with respect
to Subordinated Indebtedness.**
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4.5 -- Form of Certificate for Common Stock -- incorporated by
reference from Exhibit 4.1 to the Registrant's Registration
Statement on Form S-4 (Registration No. 33-33455).
4.6 -- Form of Warrant Agreement, including form of Warrant
Certificate.*
4.7 -- Form of Certificate of Designations for Preferred Shares.*
4.8 -- Form of Certificate for Preferred Stock.*
4.9 -- Form of Deposit Agreement.*
4.10 -- Form of Depositary Receipt.*
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.**
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).
23.2 -- Consent of Arthur Andersen & Co.**
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 Qualification of
Trustees under Trust Indenture Act of 1939 relating to Senior
Indenture and Subordinated Indenture.*
99.1 -- Report of Netherland, Sewell & Associates, Inc. dated February
10, 1994 relating to certain of the Registrant's property
interests -- incorporated by reference from Exhibit 99.1 to
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-10509).
99.2 -- Report of Netherland, Sewell & Associates, Inc. dated February
11, 1994 relating to their audit of reserve estimates --
incorporated by reference from Exhibit 99.2 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-10509).
_______________________
* 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 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 the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set for
II-3
32
the in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the 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 such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes if securities are
to be offered pursuant to competitive bidding (1) to use its best
efforts to distribute prior to the opening of bids, to prospective
bidders, underwriters and dealers, a reasonable number of copies of a
prospectus which at that time meets the requirements of section 10(a)
of the Securities Act, and relating to the securities offered at
competitive bidding, as contained in this Registration Statement,
together with any supplements thereto, and (2) to file an amendment to
this Registration Statement reflecting the results of bidding, terms
of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the
issuer after the opening of bids, of a prospectus relating to the
securities offered at competitive bidding, unless no further public
offering of such securities by the issuer and no reoffering of such
securities by the purchasers is proposed to be made.
(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 foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event
that claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling persons of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(e) The undersigned Registrant hereby undertakes to file
applications for the purpose of determining the eligibility of the
Senior Trustee and the Subordinated Trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 July 29, 1994.
SNYDER OIL CORPORATION
By: /s/ John C. Snyder
John C. Snyder, Chairman
Pursuant to the requirements of the Securities Act of 1933, the
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, Thomas J. Edelman, Rodney
L. Waller and Peter E. Lorenzen, and each of them, any one of whom 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 as such attorney-in-fact
may deem necessary or appropriate.
/s/ John C. Snyder Director and Chairman of the Board
- ------------------------------- (Principal Executive Officer of Registrant) July 29, 1994
John C. Snyder
/s/ Thomas J. Edelman Director and President
- ----------------------------- (Principal Executive Officer of Registrant) July 29, 1994
Thomas J. Edelman
/s/ John A. Fanning Director and Executive Vice President July 29, 1994
- -------------------------------
John A. Fanning
/s/ Roger W. Brittain Director July 29, 1994
- -------------------------------
Roger W. Brittain
/s/ John A. Hill Director July 29, 1994
- --------------------------------
John A. Hill
/s/ B. J. Kellenberger Director July 29, 1994
- -------------------------------
B. J. Kellenberger
/s/ John H. Lichtblau Director July 29, 1994
- -------------------------------
John H. Lichtblau
/s/ James E. McCormick Director July 29, 1994
- ----------------------------
James E. McCormick
/s/ Alfred M. Micallef Director July 29, 1994
- -------------------------------
Alfred M. Micallef
/s/ James H. Shonsey Vice President and Controller July 29, 1994
- ------------------------------ (Principal Accounting Officer)
James H. Shonsey
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================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________
Exhibits
to
FORM S-3
REGISTRATION STATEMENT
Under the
SECURITIES ACT OF 1933
________________________________
SNYDER OIL CORPORATION
Volume I
================================================================================
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- ------------------------------------------------------------
1.1 -- Form of Underwriting Agreement (for equity securities).*
1.2 -- Form of Underwriting Agreement (for debt securities).*
4.1.1 -- Certificate of Incorporation of Registrant -- incorporated by
reference from Exhibit 3.1 to the Registrant's Registration
Statement on Form S-4 (Registration No. 33-33455).
4.1.2 -- Certificate of Amendment to Certificate of Incorporation of
Registrant filed February 9, 1990 -- incorporated by
reference from Exhibit 3.1.1 to the Registrant's Registration
Statement on Form S-4 (Registration No. 33-33455).
4.1.3 -- Certificate of Amendment to Certificate of Incorporation of
Registrant filed May 22, 1991 -- incorporated by reference
from Exhibit 3.1.2 to the Registrant's Registration Statement
on Form S-1 (Registration No 33-43106).
4.1.4 -- Certificate of Amendment to Certificate of Incorporation of
Registrant filed May 24, 1993 -- incorporated by reference
from Exhibit 3.1.5 to the Registrant's Form 10-Q for the
quarter ended June 30, 1993 (File No. 1-10509).
4.1.5 -- Certificate of Designations, Powers, Preferences and Rights of
the Registrant's $4.00 Convertible Exchangeable Preferred
Stock -- incorporated by reference from Exhibit 3.1.3 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1991 (File No. 1-10509).
4.1.6 -- Certificate of Designations of the Registrant's $6.00
Convertible Exchangeable Preferred Stock -- incorporated by
reference from Exhibit 3.1.4 to the Registrant's Form 10-Q for
the quarter ended June 30, 1993 (File No. 1-10509).
4.1.7 -- Indenture (including form of Note) for 7% Convertible
Subordinated Notes -- incorporated by reference from Exhibit
4.3 to the Registrant's Registration Statement on Form S-3
(Registration No. 33-52807).
4.1.8 -- Fifth Restated Credit Agreement dated as of June 30, 1994
among Registrant, the Banks listed therein and NationsBank of
Texas, N.A. as Agent.**
4.2 -- By-Laws of Registrant -- incorporated by reference from
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-4 (Registration No. 33-33455).
4.3 -- Form of Indenture, including form of Debenture, with respect
to Senior Indebtedness.**
4.4 -- Form of Indenture, including form of Debenture, with respect
to Subordinated Indebtedness.**
36
EXHIBIT INDEX
(Continued)
EXHIBIT
NUMBER DESCRIPTION
------- -----------------------------------------------------------
4.5 -- Form of Certificate for Common Stock -- incorporated by
reference from Exhibit 4.1 to the Registrant's Registration
Statement on Form S-4 (Registration No. 33-33455).
4.6 -- Form of Warrant Agreement, including form of Warrant
Certificate.*
4.7 -- Form of Certificate of Designations for Preferred Shares.*
4.8 -- Form of Certificate for Preferred Stock.*
4.9 -- Form of Deposit Agreement.*
4.10 -- Form of Depositary Receipt.*
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.**
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).
23.2 -- Consent of Arthur Andersen & Co.**
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 Qualification of
Trustees under Trust Indenture Act of 1939 relating to Senior
Indenture and Subordinated Indenture.*
99.1 -- Report of Netherland, Sewell & Associates, Inc. dated February
10, 1994 relating to certain of the Registrant's property
interests -- incorporated by reference from Exhibit 99.1 to
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-10509).
99.2 -- Report of Netherland, Sewell & Associates, Inc. dated February
11, 1994 relating to their audit of reserve estimates --
incorporated by reference from Exhibit 99.2 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-10509).
_______________________
* 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.