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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1997
REGISTRATION NO. 333-21221
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HS RESOURCES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3036864
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE MARITIME PLAZA JAMES M. PICCONE, ESQ.
15TH FLOOR GENERAL COUNSEL
SAN FRANCISCO, CALIFORNIA 94111 HS RESOURCES, INC.
(415) 433-5795 1999 BROADWAY, SUITE 3600
(Address, including zip code, and telephone number, DENVER, COLORADO 80202
including area code, of registrant's principal (303) 296-3600
executive office) (Name, address, including zip code, and telephone
number,
including area code, of agent for service)
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It is requested that copies of communications be sent to:
RONALD R. LEVINE, II, ESQ.
DAVIS, GRAHAM & STUBBS LLP
370 SEVENTEENTH STREET, SUITE 4700
DENVER, COLORADO 80202
(303) 892-9400
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Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(1)(2) OFFERING PRICE(1)(3) REGISTRATION FEE(3)
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Debt Securities(4)(5)........................
Common Stock, par value $.001 per
share(5)(6)(7)............................. $300,000,000 100% $300,000,000 $90,910
Preferred Stock, par value $.001 per
share(5)(7)(8).............................
Warrants(5)(9)...............................
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(1) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o), which fee was previously paid by the Registrant. In
no event will the aggregate initial offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$300,000,000.
(4) Subject to Footnote (3), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $300,000,000.
(5) Subject to Footnote (3), there are being registered hereunder an
indeterminate amount and number of Debt Securities and shares of Preferred
Stock and Common Stock as may be issuable upon the conversion of Debt
Securities or Preferred Stock registered hereby or upon exercise of the
Warrants registered hereby.
(6) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by the Registrant.
(7) This Registration Statement also applies to Rights under the Company's
Stockholders' Rights Plan, which are attached to and tradeable only with the
Shares of Common Stock registered hereby. No registration fees are required
for such rights and the shares underlying such rights as they will be issued
for no additional consideration.
(8) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold from time
to time by the Registrant.
(9) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of Warrants as may be sold from time to time by the
Registrant.
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PROSPECTUS
$300,000,000
HS RESOURCES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
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HS Resources, Inc. (the "Company" or "HSR") may offer from time to time
(collectively, the "Securities") (i) Debt Securities ("Debt Securities"), which
may be either senior debt securities ("Senior Securities"), senior subordinated
debt securities ("Senior Subordinated Securities") or subordinated debt
securities ("Subordinated Securities"), consisting of debentures, notes, bonds
and/or other unsecured evidences of indebtedness in one or more series, (ii)
shares of Preferred Stock ("Preferred Stock") in one or more series, (iii)
shares of Common Stock, $.001 par value ("Common Stock"), or (iv) Warrants
("Warrants") to purchase Debt Securities, Preferred Stock or Common Stock. The
Securities will be offered at an aggregate initial offering price not to exceed
U.S. $300,000,000, at prices and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the
particular Securities in respect of which this Prospectus is being delivered (i)
in the case of Debt Securities, the title, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency,
currencies or currency unit, including the European Currency Unit), maturity,
interest rate, if any (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, 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, the
designation and stated value and liquidation preference per share, initial
public offering price per share and the number of shares to be offered, dividend
rate (or method of calculation), dates on which dividends shall be payable and
dates from which dividends shall accrue, any redemption or sinking fund
provisions, any conversion or exchange rights, 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 issued and/or amount of cash consideration payable 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 Prospectus Supplement
will also contain information, as applicable, about certain United States
Federal income tax considerations relating to the Securities in respect of which
this Prospectus is being delivered.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Senior Subordinated Securities will
be subordinated to all existing and future Senior Indebtedness (as defined) of
the Company, and senior to all existing and future Subordinated Indebtedness (as
defined) of the Company. The Subordinated Securities will be subordinated to all
existing and future Senior Indebtedness (as defined) of the Company. All or a
portion of any Debt Securities may be issued in permanent global form.
The Company's Common Stock is listed on The New York Stock Exchange
(Symbol: "HSE"). Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange.
The Company may sell Securities to or through one or more underwriters, and
also may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets 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.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is June 16, 1997
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN 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
AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH THEY RELATE OR AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO
ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE THE IMPLICATION THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
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"). The Company is currently
subject to the periodic reporting and other informational requirements of the
Exchange Act. Such reports and other information may be inspected and copied at
the public reference facilities of the Commission, Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, as well as at the following
Regional Offices: 7 World Trade Center, Suite 1300, New York, New York 10048,
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can be obtained from the Commission by mail at
prescribed rates. Requests should be directed to the Commission's Public
Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549. The Commission also maintains a website at
http://www.sec.gov that contains reports, proxy statements, and other
information. HSR's common stock is listed on The New York Stock Exchange (the
"NYSE"). Reports, proxy and information statements and other information
relating to HSR can be inspected at the offices of the NYSE at 20 Broad Street,
New York, New York 10005. Any such request and requests for the agreements
summarized herein should be directed to James M. Piccone, Secretary, HS
Resources, Inc., 1999 Broadway, Suite 3600, Denver, Colorado 80202, telephone
(303) 296-3600.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933 (the
"Securities Act") with respect to the Securities offered hereby. This
Prospectus, which constitutes a part of the Registration Statement, does not
contain all the information set forth in the Registration Statement in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and the exhibits thereto for further
information with respect to the Company and the Securities.
The Registration Statement and the exhibits thereto can be obtained from or
inspected and copied at the public reference facilities maintained by the
Commission as described above.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K as amended by the Company's Form
10-K/A-1 for the year ended December 31, 1996, Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997, and Current Report on Form 8-K filed February
26, 1997, are incorporated by reference in this Prospectus. All documents filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the securities registered hereunder shall be
deemed to be incorporated by reference in this Prospectus and to be part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement modified or superseded shall not be deemed, except
as so modified or superseded, to constitute part of this Prospectus.
Upon request, the Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered a copy of any documents
incorporated by reference herein (other than exhibits unless the exhibits are
specifically incorporated by reference into this Prospectus). Requests should be
directed to James M. Piccone, Esq., HS Resources, Inc., 1999 Broadway, Suite
3600, Denver, Colorado 80202.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference statements that are
not purely historical and are "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act, including
statements regarding the Company's expectations, hopes, beliefs, intentions or
strategies regarding the future. All statements other than statements of
historical facts included or incorporated by reference in this Prospectus,
including without limitation, statements in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 under "Business," "Properties,"
"Legal Proceedings and Environmental Issues" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations," regarding reserves
and their values, planned capital expenditures, increases in oil and natural gas
production, trends or expectations concerning oil and gas prices, the number and
prospective nature of anticipated wells to be drilled in 1997 and thereafter,
development potential, infill potential, drillsite potential, exploitation and
exploration prospects and leads, drilling prospects, consolidation opportunities
and the Company's financial position, business strategy and other plans and
objectives for future operations, potential liabilities or the expected absence
thereof, the potential outcome of environmental matters, litigation and other
proceedings are forward-looking statements. All forward-looking statements
included or incorporated by reference in this Prospectus are based on
information available to the Company on the date hereof, or, with respect to
documents incorporated by reference, on the date thereof, and the Company
assumes no obligation to update such forward-looking statements. Although the
Company believes that the assumptions and expectations reflected in such
forward-looking statements are reasonable, it can give no assurance that such
expectations will prove to have been correct or that the Company will take any
actions that may presently be planned. There are numerous uncertainties inherent
in estimating quantities of proved oil and natural gas reserves and projecting
future rates of production and timing of development expenditures, including
many factors beyond the control of the Company.
Many factors may affect the Company's expectations and plans. Capital
expenditure and financing plans may change in connection with the success of
drilling activities, the general availability of capital, interest rates, and
cash flow available from operations. Cash flow available from operations may
change depending on costs of materials and services, regulatory burdens and
commodity prices. Oil and natural gas prices are volatile, and there are several
potentially significant adverse effects to the Company which can result if
product prices decline materially. First, lower product prices will adversely
impact the Company's cash flow and could cause the Company to (i) curtail its
capital program, (ii) borrow additional amounts under its revolving credit
agreement, or (iii) issue additional debt or equity securities. Second, lower
product prices could cause the borrowing base under the Company's bank credit
agreement to be reduced and certain covenant tests to be
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adversely affected. Third, under rules promulgated by the Commission, companies
that follow the full cost accounting method are required to make quarterly
"ceiling test" calculations. Lower product prices adversely impact the ceiling
calculation. Should the Company realize sustained lower product prices, it could
be required to write down its oil and gas properties, resulting in a non-cash
charge against earnings.
Certain additional important factors that could cause actual results to
differ materially from the Company's forward-looking statements are disclosed
under "Business," "Properties," "Legal Proceedings and Environmental Issues,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and elsewhere in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 and in the Company's Current Report on Form
8-K filed February 26, 1997, each of which is incorporated by reference herein.
All subsequent written or oral forward-looking statements attributable to the
Company or persons acting on its behalf are expressly qualified in their
entirety by such factors.
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THE COMPANY
HS Resources, Inc. is a leading United States independent energy company
engaged in the development, acquisition, exploitation, exploration, production
and marketing of oil and natural gas. Through its experienced management and
technical staff, the Company has consistently increased reserves and production
and has established itself as one of the most efficient operators in the
industry. HSR has created a diversified asset base in three core geographic
areas: the Denver-Julesburg Basin (the "D-J Basin") of the Rocky Mountains, the
Anadarko and Arkoma Basins of the Mid-Continent and the on-shore Gulf Coast
area. It has done so by executing a large scale development drilling program
focused in the Wattenberg Field area of the D-J Basin and through the
acquisition of all the D-J Basin properties owned by Basin Exploration, Inc.,
(the "Acquisitions"), the merger with Tide West Oil Company, (the "Merger") and
the formation of Gulf Coast joint ventures. The Company believes that each core
geographic area presents operational and financial opportunities, positioning
the Company to maximize the benefits of its more predictable, long-lived
production in the D-J Basin, while providing meaningful exposure to potential
exploitation on exploration projects in the Mid-Continent and Gulf Coast which
exhibit higher return potential. HSR has an inventory of growth opportunities
that includes in excess of 2,000 infill, development and exploratory drilling
locations and over 1.1 million gross undeveloped acres.
The Company has achieved substantial growth in reserves, production,
revenues and operating cash flow over the past five years. HSR has increased
reserves from 20.8 MMBoe as of December 31, 1990, to 142.0 MMBoe as of December
31, 1996. HSR also increased production from 0.9 MMBoe for the year ended
December 31, 1991, to 7.6 MMBoe for the year ended December 31, 1996. Oil and
natural gas revenues and operating cash flow (defined as net income before
depreciation, depletion and amortization and deferred income taxes) also have
grown significantly over this period, increasing from $12.8 million and $5.4
million, respectively, for the year ended December 31, 1991, to $107.3 million
and $56.5 million, respectively, for the year ended December 31, 1996.
At December 31, 1996, the Company's reserves had an estimated pre-tax
present value (discounted at 10%) of $1,131 million. Natural gas constituted
approximately 76% of the Company's reserves and approximately 76% of the
Company's reserves were classified as proved developed. At December 31, 1996,
the Company operated approximately 74% of its 3,562 wells. Management believes
that its ability to control the operation of its wells and to minimize overhead
expenses has contributed to the Company achieving one of the lowest cost
structures in the industry.
The Company's principal executive office is located at One Maritime Plaza,
15th Floor, San Francisco, California 94111 and its telephone number at such
address is (415) 433-5795.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement or
any Pricing Supplement, the net proceeds from the sale of Securities will be
used for general corporate purposes, which may include refinancings or
repayments of indebtedness, capital expenditures, working capital, acquisitions
and repurchases and redemptions of securities.
RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED DECEMBER 31,
--------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
Consolidated ratio of earnings to fixed
charges(1) 2.1x 5.0x 1.9x -- 1.4x
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(1) Earnings were insufficient to cover fixed charges by approximately
$1,551,000 at December 31, 1995.
For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of net earnings before income taxes and fixed charges
(exclusive of capitalized interest). Fixed charges consist of interest expense
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(which includes amounts capitalized and the amortization of debt discount) and
that portion of rental cost that is equivalent to interest (estimated to be
thirty percent of rental cost).
DESCRIPTION OF DEBT SECURITIES
The following is a description of certain general terms and provisions of
the Debt Securities. The particular terms of any series of Debt Securities 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 Debt Securities will constitute either indebtedness designated as
Senior Indebtedness, indebtedness designated as Senior Subordinated Indebtedness
or indebtedness designated as Subordinated Indebtedness. The particular terms of
each series of Securities offered by a particular Prospectus Supplement will be
described therein. Senior Securities, Senior Subordinated Securities and
Subordinated Securities will each be issued under a separate indenture
(individually an "Indenture" and collectively the "Indentures") to be entered
into prior to the issuance of such Debt Securities. The Indentures will be
substantially identical, except for provisions relating to subordination. See
"Subordination of Senior Subordinated Securities and Subordinated Securities".
In addition, at the time a series of Debt Securities is issued, a Supplemental
Indenture will be entered into containing the provisions applicable to that
series of Debt Securities. There will be a separate Trustee (individually a
"Trustee" and collectively the "Trustees') under each Indenture. Information
regarding the Trustee under an Indenture will be included in any Prospectus
Supplement relating to the Debt Securities issued thereunder. The following
discussion includes a summary description of all material terms of the
Indentures, other than terms that are specific to a particular series of Debt
Securities and that will be described in the Prospectus Supplement relating to
such series. The following summaries do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of certain terms
capitalized in this Prospectus. Wherever particular Sections or Articles or
defined terms of the Indentures are referred to herein or in a Prospectus
Supplement, such Sections or defined terms are incorporated herein or therein by
reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indentures do not limit the aggregate amount of Debt Securities that
may be issued thereunder, and Debt Securities may be issued thereunder from time
to time in separate series up to the aggregate amount from time to time
authorized by the Company for each series. Debt Securities of a series may be
issuable in registered form without coupons ("Registered Debt Securities"), in
bearer form with or without coupons attached ("Bearer Debt Securities") or in
the form of one or more Global Securities in registered or bearer form (each a
"Global Security"). Bearer Debt Securities, if any, will be offered only to
non-United States persons and to offices located outside the United States of
certain United States financial institutions. The Senior Securities will be
unsecured and unsubordinated obligations of the Company and will rank equally
and ratably with other unsecured and unsubordinated indebtedness of the Company.
The Senior Subordinated Securities and the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness of the Company, as described below under "Subordination of
Subordinated Securities" and in a Prospectus Supplement applicable to an
offering of Senior Subordinated Securities or Subordinated Securities.
The applicable Prospectus Supplement or Prospectus Supplements will also
describe the following terms of the series of Debt Securities in respect of
which this Prospectus is being delivered: (1) the title of such Debt Securities;
(2) any limit on the aggregate principal amount of such Debt Securities; (3)
whether such Debt Securities will be issued as Registered Debt Securities,
Bearer Debt Securities or any combination thereof, and any limitation on
issuance of such Bearer Debt Securities and any provisions regarding the
transfer or exchange of such Bearer Debt Securities, including exchange for
Registered Debt Securities of the
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same series; (4) whether any of such Debt Securities are to be issuable as a
Global Security, and, if so, the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or in
part, for the individual Debt Securities represented thereby; (5) the person to
whom any interest on any Debt Security of the series shall be payable if other
than the person in whose name the Debt Security is registered on the Regular
Record Date; (6) the date or dates on which such Debt Securities will mature;
(7) the rate or rates of interest (which may be fixed or variable) or the method
of calculation thereof, that such Debt Securities will bear; (8) the date or
dates from which any such interest will accrue, the Interest Payment Dates on
which any such interest on such Debt Securities will be payable and the Regular
Record Date for any interest payable on any Interest Payment Date; (9) the place
or places where the principal of, premium (if any) and interest on such Debt
Securities will be payable; (10) the period or periods within which, the terms
and conditions upon which, and the price or prices at which, such Debt
Securities may, pursuant to any optional or mandatory provisions, be redeemed or
purchased, in whole or in part, by the Company and any terms and conditions
relevant thereto; (11) the obligation of the Company, if any, to redeem or
repurchase such Debt Securities at the option of the Holders or pursuant to any
sinking fund obligation; (12) the denominations in which any such Debt
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (13) the currency, currencies or currency unit for
payment of principal of and any premium and interest on such Debt Securities if
other than U.S. dollars and the manner of determining the U.S. dollar equivalent
of foreign currency; (14) any index or formula used to determine the amount of
payments of principal of and any premium and interest on such Debt Securities;
(15) if the principal of or any premium or interest on such Debt Securities is
to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which such Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on Debt
Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made; (16) if other than the principal amount thereof, the
portion of the principal amount of such Debt Securities of the series that will
be payable upon declaration of the acceleration of the Maturity thereof; (17)
any covenants of the Company applicable to such series of Debt Securities,
including whether the Company is required to offer to repurchase all Debt
Securities of a class upon the occurrence of a Change of Control; (18) the
applicability of any provisions described under "Defeasance"; (19) the terms and
conditions, if any, pursuant to which such Debt Securities are convertible or
exchangeable into Common Stock or other securities; (20) provisions relating to
Bearer Securities, (21) if the principal amount payable at the Stated Maturity
of the Debt Securities is not determinable upon original issuance or at any time
prior to maturity, the amount that is deemed to be the principal amount
outstanding at any time; (22) the terms of any guarantee of the payment of
principal and interest on the Debt Securities; (23) the subordination, if any,
of the Debt Securities and any guarantee thereof; (24) any addition to or
changes in the Events of Default with respect to Debt Securities; and (25) any
other terms of such Debt Securities not inconsistent with the provisions of the
respective Indentures.
Debt Securities may be issued at a discount from their principal amount.
United States Federal income tax considerations and other special considerations
applicable to any such Original Issue Discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement.
SENIOR SECURITIES
The Senior Securities will rank pari passu with all other unsecured and
unsubordinated debt of the Company and senior to the Senior Subordinated
Securities and Subordinated Securities.
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SUBORDINATION OF SENIOR SUBORDINATED SECURITIES AND SUBORDINATED SECURITIES
The indebtedness evidenced by the Senior Subordinated Securities and the
Subordinated Securities will be subordinated and junior in right of payment to
the extent set forth in the respective Indenture to the prior payment in full in
cash of amounts then due on all Senior Indebtedness. Upon any Senior
Indebtedness becoming due and payable, whether at the Stated Maturity thereof or
by acceleration or otherwise, such Senior Indebtedness shall be paid in full in
cash, or the immediate payment thereof duly provided for in cash, before the
Company or any Person acting on behalf of the Company shall directly or
indirectly pay, prepay, redeem, retire, repurchase or otherwise acquire for
value, or make any deposits in respect of the discharge or defeasance of, or
make other payment or distribution (whether in cash, property, securities or a
combination thereof) on account of principal of (or premium, if any) or interest
on, any Senior Subordinated Securities or Subordinated Securities (collectively,
a "Securities Payment"). The Company may not make a Securities Payment if at the
time of such payment there exists a default in payment of all or any portion of
any Senior Indebtedness, and such default shall not have been cured or waived in
writing or the benefits of this provision waived in writing by or on behalf of
the holders of such Senior Indebtedness. In addition, during the continuance of
any event of default (other than a default in payment of all or any portion of
any Senior Indebtedness) with respect to any Specified Senior Indebtedness, as
such event of default is defined therein or in the instrument under which it is
outstanding, permitting the holders of such Specified Senior Indebtedness to
accelerate the maturity thereof, and upon written notice thereof given by the
Principal Agent to the Trustee, with a copy to the Company (the delivery of
which shall not affect the validity of the notice thereof to the Trustee), then,
unless and until such event of default shall have been cured or waived or shall
have ceased to exist, no Securities Payment shall be made; provided that if the
holders of the Specified Senior Indebtedness to which the default relates have
not declared such Specified Senior Indebtedness to be immediately due and
payable within 179 days after the occurrence of such default (or have declared
such Specified Senior Indebtedness to be immediately due and payable and within
such period have rescinded such declaration of acceleration), then the Company
shall resume making any and all unpaid scheduled Securities Payments on such
Senior Subordinated Securities or Subordinated Securities. In no event shall
such a payment blockage period described in the preceding sentence extend beyond
179 days from the date on which such payment blockage period commenced. Not more
than one payment blockage period may be commenced within any consecutive 365-day
period with respect to the Senior Subordinated Securities or Subordinated
Securities. No event of default that existed or was continuing on the date of
the commencement of any payment blockage period with respect to the Specified
Senior Indebtedness initiating such payment blockage period shall be, or be
made, the basis for the commencement of a second payment blockage period by the
holder or holders of such Specified Senior Indebtedness at any time after the
365-day period referred to in the preceding sentence unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days. A failure to make any payment with respect to the Senior
Subordinated Securities or Subordinated Securities as a result of the rights of
the holders of Senior Indebtedness described in this paragraph will not have any
effect on the right of the holders of such Senior Subordinated Securities or
Subordinated Securities to accelerate the maturity thereof as a result of such
payment default.
Upon any payment or distribution to creditors (whether in cash, property,
debt, equity or other securities, a combination thereof or otherwise) of the
Company in a voluntary or involuntary liquidation or dissolution of the Company,
whether total or partial, or in a bankruptcy, reorganization, insolvency,
receivership, assignment for the benefit of creditors, marshalling of assets or
similar proceeding relating to the Company or its property:
(i) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of all amounts due or to become due on or in
respect of all Senior Indebtedness before holders of the Senior
Subordinated Securities or Subordinated Securities shall be entitled to
receive any Securities Payment; and
(ii) until all Senior Indebtedness is paid in full in cash, any
Securities Payment to which holders of the Senior Subordinated Securities
or Subordinated Securities would be entitled but for the subordination
provisions of the Indenture shall be made to holders of Senior
Indebtedness, as their interests may appear.
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As a result of the subordination provisions described above, in the event
of insolvency of the Company, funds that would otherwise be payable to Holders
of Senior Subordinated Securities or Subordinated Securities will be paid or
turned over to the holders of Senior Indebtedness, to the extent necessary to
pay such Senior Indebtedness in full.
"Senior Indebtedness" means the Obligations of the Company with respect to
(i) Indebtedness of the Company under the Bank Credit Facility and any renewal,
refunding, refinancing, replacement or extension thereof and (ii) any other
Indebtedness of the Company (other than the Debt Securities), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, and any renewal, refunding, refinancing, replacement or extension
thereof, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Debt Securities or that such indebtedness is pari passu with or
junior to the Debt Securities; provided, however, that any series of Securities
designated as Senior Subordinated Indebtedness shall constitute Senior
Indebtedness to any series of Securities designated as Subordinated
Indebtedness. Notwithstanding the foregoing, Senior Indebtedness shall not
include (i) Indebtedness of the Company to a Subsidiary of the Company, (ii)
amounts owed for goods, materials or services purchased in the ordinary course
of business, (iii) Indebtedness incurred in violation of the Indentures, (iv)
amounts payable or any other Indebtedness to employees of the Company or any
Subsidiary of the Company, (v) any liability for Federal, state, local or other
taxes owed or owing by the Company, (vi) any Indebtedness of the Company that,
when incurred and without regard to any election under Section 1111(b) of the
United States Bankruptcy Code, was without recourse to the Company, and, with
respect to Senior Subordinated Indebtedness, (vii) Indebtedness evidenced by the
Company's $75,000,000 9 7/8% Senior Subordinated Notes due 2003 (the "9 7/8%
Notes") and $150,000,000 9 1/4% Senior Subordinated Notes due 2006 (the "9 1/4%
Notes"); and (viii) Indebtedness evidenced by the Senior Subordinated Securities
and the Subordinated Securities.
If this Prospectus is being delivered in connection with a series of Senior
Subordinated Securities or Subordinated Securities, the accompanying Prospectus
Supplement or the information incorporated herein by reference will set forth
the approximate amount of Senior Indebtedness outstanding as of the most recent
practicable date.
FORM, EXCHANGE, REGISTRATION, CONVERSION 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.
Registered Debt Securities of any series (other than a Global Security)
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 Indenture,
such Bearer Debt Securities (with all unmatured coupons, except as provided
below, and all matured coupons in default) will be exchangeable into Registered
Debt Securities of the same series or for Bearer Debt Securities 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 Indenture.
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 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
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person entitled to receive such Bearer Debt Security furnishes written
certification 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 Issuer 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 Debt Security.
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 or agency of
the Company maintained for such purposes and at any other office or agency
maintained for such purpose with respect to any series of Debt Securities and
referred to in the applicable Prospectus Supplement, without a service charge
and upon payment of any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the Company or its
agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request.
The Company shall not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period of 15 days prior to the
mailing of a notice of redemption of Debt Securities of that series; or (ii)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except that any Bearer Debt Security exchangeable for a
Registered Debt Security of that series may be so exchanged during the period
preceding the redemption date therefor which is simultaneously surrendered for
redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of (and any premium) and interest on Bearer Debt Securities will be
payable, subject to any applicable laws and regulations, in the designated
currency or currency unit, at the offices of the Trustee 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. Unless otherwise indicated in the
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. 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 agent within the
United States. Notwithstanding the foregoing, payments of principal of (and
premium, if any) and interest on Bearer Debt Securities denominated and payable
in U.S. dollars will be made at the office of the Company's agent in the United
States, 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.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and interest on Registered Debt Securities
will be made in the designated currency or currency unit at the Corporate Trust
Office of the Trustee, 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
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appear in the Security Register or, if provided in the Indenture, at the option
of the Holder, by wire transfer to an account designated by the Holder. 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.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee will be designated as the paying agent for
the Trustee for payments with respect to Debt Securities that 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)
that are issued 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 issued 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 issued as Registered Debt Securities and Bearer Debt
Securities, the Company will be required to maintain (i) a Paying Agent in the
United States 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 (ii) a Paying Agent in a Place of Payment located outside the
United States where Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment.
All monies paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security that remain
unclaimed at the end of two 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.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Debt Securities
will initially be represented by one or more temporary global Debt Securities,
without interest coupons, to be deposited with a common depository in London for
the Euroclear System ("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the
designated accounts. On and after the date determined as provided in any such
temporary global Debt Security and described in the applicable Prospectus
Supplement, each such temporary global Debt Security will be exchangeable for
definitive Bearer Debt Securities, definitive Registered Debt Securities or all
or a portion of a permanent global security, or any combination thereof, as
specified in the applicable Prospectus Supplement. No Bearer Debt Security
delivered in exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in connection
with such exchange.
Unless otherwise specified in the applicable Prospectus Supplement,
interest in respect of any portion of a temporary global Debt Security payable
in respect of an Interest Payment Date occurring prior to the issuance of
definitive Debt Securities or a permanent global Debt Security will be paid to
each of Euroclear and CEDEL with respect to the portion of the temporary global
Debt Security held for its account. Each of Euroclear and CEDEL will undertake
in such circumstances to credit such interest received by it in respect of a
temporary global Debt Security to the respective accounts for which it holds
such temporary global Debt Security as of the relevant Interest Payment Date
regarding the portion of such temporary global Debt Security on which interest
is to be so credited.
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PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent global Debt
Securities may exchange such interests for Debt Securities of such series and of
like tenor and principal amount in any authorized form and denomination. No
Bearer Debt Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location in the
United States in connection with such exchange.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of Outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any nominee to a successor Depositary or a
nominee of such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
persons that have accounts with such Depositary or its nominee ("participants").
The accounts to be credited will be designated by the underwriters or agents of
such Debt Securities or by the Company, if such Debt Securities are offered and
sold directly by the Company. Ownership of beneficial interest in such Global
Security will be limited to participants or Persons that may hold interests
through participants. Ownership of beneficial interests by participants in such
Global Security will be shown on, and the transfer of that ownership interest
will be effected only through, records maintained by the Depositary or its
nominee for such Global Security. Ownership of beneficial interests in such
Global Security by Persons that hold through participants will be shown on, and
the transfer of that ownership interest within such participant will be effected
only through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such Global
Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the applicable
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the Holders thereof for any purposes under the applicable Indenture.
Accordingly, each Person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such 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 applicable Indenture.
The Company understands that under existing industry practices, if the Company
requests any action of
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Holders or an owner of a beneficial interest in such Global Security desires to
give any notice or take any action a Holder is entitled to give or take under an
Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
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 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, Conversion 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 Federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
As used herein, "United States person" means any citizen or resident of the
United 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.
CERTAIN COVENANTS OF THE COMPANY
The applicable Prospectus Supplement with respect to a particular series of
Debt Securities will set forth certain covenants of the Company with respect to
such Debt Securities.
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (a) failure to pay principal of or premium, if
any, on any Debt Security of that series whether upon maturity, acceleration,
sinking fund payment date, call for redemption or otherwise, when due; (b)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days from the date due; (c) failure to perform any other
covenant of the Company in the applicable Indenture (other than a covenant
included in
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such Indenture solely for the benefit of a series of Debt Securities other than
that series), continued for 60 days after written notice as provided in the
respective Indentures; (d) one or more final judgments or orders by a court of
competent jurisdiction are entered against the Company or any Subsidiary in an
uninsured or unindemnified aggregate amount in excess of a specified amount and
such judgments or orders are not discharged, waived, stayed, satisfied or bonded
for a period of 60 consecutive days; (e) certain events of bankruptcy,
insolvency or reorganization of the Company or a Significant Subsidiary; and (f)
any other Event of Default provided with respect to Debt Securities of that
series.
If an Event of Default with respect to Debt Securities of any series (other
than an Event of Default described in clause (e) above) shall occur and be
continuing, either the Trustee or the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of that series by notice as provided
in the respective Indenture may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series to be due and payable immediately. If an Event of
Default described in clause (e) above with respect to the Debt Securities of any
series shall occur, the principal amount of all the Debt Securities will
automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. At any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the Holders of
a majority in principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the nonpayment of accelerated principal (or other
specified amount), have been cured or waived as provided in the Indenture. For
information as to waiver or defaults, see "Modification and Waiver" below.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Trustee, with respect to the Debt Securities of that series.
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the applicable
Trustee written notice of a continuing Event of Default (as defined) and unless
also the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of the series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of the series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a Holder of a Debt Security for enforcement of payment of the
principal of and interest on such Debt Security on or after the respective due
dates expressed in such Debt Security.
The Company will be required to furnish to the Trustees annually a
statement as to the performance by the Company of its obligations under the
respective Indentures and as to any default in such performance.
SUPPLEMENTAL INDENTURE; WAIVER
The Indenture provides that Supplemental Indentures may be entered into by
the Company and the Trustee without the consent of any Holders of Debt
Securities in certain limited circumstances, including (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to provide for the assumption
of the obligations of the Company under the Indenture upon the merger,
consolidation or sale or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole and certain other
events specified in the "Merger, Consolidation and Sale of Substantially All
Assets" covenant, (iii) to provide for uncertificated Debt Securities in
addition to or in place of certificated Debt Securities, (iv) to comply with any
requirement of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended, (v) to make
any change in the Debt Securities of any or all series that does not adversely
affect the rights of any Holder of Debt Securities of the affected series in any
material respect, (vi) to add Subsidiary guarantors pursuant to the procedures
set forth in the Indenture, and (vii) certain other modifications and amendments
as set forth in the Indenture.
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The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Debt Securities, of any series then outstanding, or
execute supplemental indentures or amendments adding any provisions to or
changing or eliminating any of the provisions of the Indenture or modifying the
rights of the Holders of the Debt Securities of such series, except that no such
supplemental indenture, amendment or waiver may, without the consent of all the
Holders of Debt Securities of such series then outstanding, among other things,
(i) reduce the principal amount of Debt Securities of such series whose Holders
must consent to an amendment or waiver, (ii) reduce the rate of or change the
time for payment of interest on any Debt Securities, (iii) change the currency
in which any amount due in respect of the Debt Securities is payable, (iv)
reduce the principal of or any premium on or change the Stated Maturity of any
Debt Securities or alter the redemption or repurchase provisions with respect
thereto, (v) reduce the relative ranking of any Debt Securities, (vi) release
any security that may have been granted in respect of the Debt Securities, (vii)
impair the right of any Holder to institute suit for enforcement of any payment
on or with respect to such Holder's Debt Securities and (viii) make certain
other significant amendments or modifications as specified in the Indenture.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain covenants of the applicable Indenture.
The Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may, on behalf of the Holders of all Debt
Securities of that series, waive any past default under the applicable Indenture
with respect to that series, except a default in the payment of the principal
of, or premium, if any, or interest on, any Debt Security of that series 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
of that series affected.
MERGER, CONSOLIDATION AND SALE OF SUBSTANTIALLY ALL ASSETS
The Indenture provides that (i) the Company will not merge or consolidate
with or into any other Person (whether or not the Company is the surviving
entity), and (ii) the Company will not and will not permit its Subsidiaries to,
directly or indirectly, sell, transfer, assign, lease, convey or otherwise
dispose of all or substantially all of the Property of the Company and its
Subsidiaries taken as a whole in any one transaction or a series of transactions
(including, without limitation, dispositions pursuant to mergers and
consolidations) in each case unless: (A) the Surviving Entity shall be a
corporation organized and existing under the laws of the United States of
America or a State thereof or the District of Columbia; (B) if the Company is
not the Surviving Entity, the Surviving Entity (as defined) expressly assumes,
by supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by the Surviving Entity, the due and punctual payment of the
principal of, premium, if any, and interest on all the Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of the Indenture to be performed by the
Company (and in the case of clause (ii) above, the Company and the Surviving
Entity shall both be considered as the issuer of the Debt Securities); (C) in
the case of the sale, transfer, assignment, lease, conveyance or other
disposition of all or substantially all of the Property of the Company and its
Subsidiaries taken as a whole, such Property shall have been transferred as an
entirety or virtually as an entirety to one Person; (D) immediately before and
after giving effect to such transaction or series of transactions on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing; (E)
the Company and, if the Company is not the Surviving Entity, the Surviving
Entity, each shall have delivered to the Trustee Officers' Certificates and an
Opinion of Counsel, each stating that such merger, consolidation or disposition
and any such supplemental indentures comply with the above provisions and that
all conditions precedent relating to such transaction or transactions have been
complied with and (F) the Surviving Entity waives any right to redeem any Bearer
Debt Security under circumstances in which the Surviving Entity would be
entitled to redeem such Bearer Debt Security but the Company would not have been
so entitled to redeem if the consolidation merger, conveyance, transfer or lease
had not occurred. The term "Surviving Entity" shall mean the Person referred to
in clauses (i) and (ii) above (1) formed by or surviving any such merger or
consolidation involving the Company or (2) to which any such sale, transfer,
assignment, lease, conveyance or other disposition is made.
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DEFEASANCE AND COVENANT DEFEASANCE
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Company, at its option, will be discharged from
all its obligations with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of such Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying agencies
and to hold moneys for payment in trust) upon the deposit in trust for the
benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or a combination thereof, which, through the payment of principal,
premium, if any, and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and any
premium and interest on such Debt Securities at Stated Maturity or on earlier
redemption in accordance with the terms of the applicable Indenture and the Debt
Securities. Such defeasance or discharge may occur only if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling or (ii) since the date of the
Indenture there has been a change in the applicable Federal income tax law, in
either case to the effect that Holders of such Debt Securities will not
recognize gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred; and that the resulting trust will not be an "Investment
Company" within the meaning of the Investment Company Act of 1940, as amended
unless such trust is qualified thereunder or exempt from regulation thereunder.
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Company, at its option, may omit to comply with
certain covenants, as set forth in the applicable Prospectus Supplement with
respect to the Debt Securities of such series, and that the occurrence of
certain Events of Default, as set forth in the applicable Prospectus Supplement
with respect to the Debt Securities of such series, will be deemed not to be or
result in an Event of Default. The Company, in order to exercise such option,
will be required to deposit, in trust for the benefit of the Holders of such
Debt Securities, money or U.S. Government Obligations, or a combination thereof,
which, through the payment of principal, premium, if any, and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities at Stated Maturity or on earlier redemption in accordance with the
terms of the Indenture and such Debt Securities. The Company will also be
required, among other things, to deliver to the Trustee an Opinion of Counsel to
the effect that Holders of such Debt Securities will not recognize gain or loss
for Federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur; and that the resulting trust will
not be an "Investment Company" within the meaning of the Investment Company Act
of 1940, as amended unless such trust is qualified thereunder or exempt from
regulation thereunder. In the event the Company were to exercise this option and
such Debt Securities were declared due and payable because of the occurrence of
any Event of Default, the amount of money and U.S. Government Obligations so
deposited in trust would be sufficient to pay amounts due on such Debt
Securities at the time of their Stated Maturity but may not be sufficient to pay
amounts due on such Debt Securities upon any acceleration resulting from such
Event of Default. In such case, the Company would remain liable for such
payments.
Notwithstanding the description set forth under "Subordination of Senior
Subordinated Securities and Subordinated Securities" above, in the event that
the Company deposits money or U.S. Government Obligations in compliance with
such Indenture in order to defease all or certain of its obligations with
respect to any Senior Subordinated Securities or Subordinated Securities, the
monies or U.S. Government Obligations so deposited will not be subject to the
subordination provisions of such Indenture and the indebtedness evidenced by
such Securities will not be subordinated in right of payment to the holders of
Senior Indebtedness to the extent of the monies or U.S. Government Obligations
so deposited.
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NOTICES
Except as otherwise provided in the Indenture, notices to holders of Bearer
Debt Securities will be given by publication on two separate business days in an
Authorized Newspaper in such 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.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Debt Securities, it must
eliminate such conflict or resign.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock 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. Certain provisions applicable to the Company's Preferred Stock
are set forth below in "Description of Common Stock."
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 the Preferred Stock (the "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
15,000,000 shares of preferred stock, par value of $.001 per share. At the date
of this Prospectus, no shares of preferred stock were issued and outstanding,
and 300,000 shares of Series A Junior Preferred Stock were reserved for issuance
in connection with the Company's shareholders' rights plan. See "Description of
Common Stock -- Preferred Stock Purchase Rights." The Company's preferred stock
may be issued from time to time in one or more series, without stockholder
approval. Subject to limitations prescribed by law, the Board of Directors of
the Company is authorized to determine and alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of preferred stock, and to increase or decrease (but not below the number
of shares of such series then outstanding) the number of shares of such series
of preferred stock. As such, the Company's Board of Directors, without
stockholder approval, could authorize the issuance of preferred stock with
voting, conversion and other rights that could adversely affect the voting power
and other rights of holders of Common Stock or other series of preferred stock
or that could have the effect of delaying, deferring or preventing a change in
control of the Company. See "Description of Common Stock" herein.
The Preferred Stock issued by the Company 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 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
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shall commence to cumulate, if any; (5) if applicable, any index or formula used
to determine the amount of dividends payable; (6) any redemption or sinking fund
provisions; (7) any conversion or exchange rights; 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.
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 hereafter 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 shall be junior to all outstanding debt of the Company. The Preferred
Stock shall be subject to creation of Senior Stock, Parity Stock and Junior
Stock to the extent not expressly prohibited by the Company's Certificate of
Incorporation.
DIVIDENDS
Holders of shares of Preferred Stock shall 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 shall be payable
to holders of record as they appear at the close of business on the stock books
of the Company on such record dates, not more than 60 calendar days preceding
the payment dates therefor, as 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 dividend 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.
Unless otherwise specified in the applicable Prospectus Supplement, no full
dividends shall be declared or paid or set apart for payment on preferred stock
of the Company of any series ranking, as to dividends, on a parity with or
junior to the series of Preferred Stock offered by the Prospectus Supplement
attached hereto 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
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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 Prospectus Supplement attached
hereto 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 or another series of Preferred Stock or other securities of
the Company will be set forth in the Prospectus Supplement relating thereto. See
"Description of Common Stock."
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 Junior 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. Unless otherwise specified in
the applicable Prospectus Supplement, after payment of the full amount of the
liquidation preference, 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 voting rights of any series of Preferred Stock will be as provided in
the applicable Prospectus Supplement and as required by applicable law.
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
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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 designated in
the related Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The following is a description of certain general terms and provisions of
the Common Stock. The summary of terms of the Company's Common 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, Bylaws and Rights Agreement, dated as of February 28, 1996,
between the Company and Harris Trust Company of California (the "Rights
Agreement"), each of which has been incorporated by reference herein.
The Company's Certificate of Incorporation authorizes the issuance of
30,000,000 shares of Common Stock. No class of capital stock of HSR entitles the
holder thereof to any preemptive rights to purchase or subscribe for shares of
any class or any other securities.
All issued and outstanding shares of Common Stock are validly issued, fully
paid and nonassessable. The holders of Common Stock are entitled to one vote for
each share held on all matters submitted to a vote of common stockholders. The
Common Stock does not have cumulative voting rights. Each share of Common Stock
is entitled to participate equally in dividends, as and when declared by the
Company's Board of Directors, and in the distribution of assets in the event of
liquidation, subject in all cases to any prior rights of outstanding shares of
the Company's preferred stock. The shares of Common Stock have no preemptive or
conversion rights, redemption rights or sinking fund provisions.
The outstanding shares of Common Stock are listed on The New York Stock
Exchange and trade under the symbol "HSE." Harris Savings and Trust is the
transfer agent, registrar and dividend disbursing agent for the Common Stock.
PREFERRED STOCK PURCHASE RIGHTS
On February 28, 1996, the Company's Board of Directors declared a dividend
distribution of one Preferred Stock Purchase Right (a "Right") for each
outstanding share of Common Stock. The description and terms of the Rights are
set forth in the Rights Agreement. The distribution was made as of March 14,
1996, to stockholders of record on that date. Each Right entitles the registered
holder of Common Stock to purchase from the Company one one-hundredth ( 1/100)
of a share of preferred stock, designated as Series A Junior Preferred Stock, at
a price of $60.00 per one one-hundredth ( 1/100) of a share. The Rights will
expire at the close of business on March 14, 2006, unless earlier redeemed by
the Company as described in the Rights Agreement.
Initially, the Rights will not be exercisable or represented by a separate
certificate but will trade together with the Common Stock. The Rights, unless
redeemed prior thereto, become exercisable only upon the close of business on
the day which is the earlier of (a) the tenth day after a public announcement
that a person or group of affiliated or associated persons, with certain
exceptions as noted in the Rights Agreement, has acquired beneficial ownership
of 15% or more of the Company's voting stock (an "Acquiring Person") or (b) the
tenth business day (or such later date as may be determined by the Company's
Board of Directors prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) after the commencement or announcement of
an intention to commence a tender or exchange offer, the consummation of which
would result in the ownership of 30% or more of the Company's voting stock (even
if no stock is actually purchased pursuant to such offer). An Acquiring Person
does not include, among others, Natural Gas Partners, L.P. unless it is the
beneficial owner of 22.193% or more of the voting stock of the Company. All
issuances of Common Stock after the date of the Rights Agreement will include
Rights.
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For as long as the Rights are redeemable pursuant to the terms of the
Rights Agreement, the Company may, except with respect to the redemption price
or date of expiration of the Rights, amend the Rights in any manner, including
an amendment to extend the time period in which the Rights may be redeemed. At
any time when the Rights are not then redeemable, the Company may amend the
Rights in any manner that does not materially adversely affect the interests of
holders of the Rights as such. Amendments to the Rights Agreement from and after
the time that any Person (as defined in the Rights Agreement) becomes an
Acquiring Person requires the approval of a majority of the Continuing Directors
(as defined in the Rights Agreement).
DESCRIPTION OF WARRANTS
The following is a description of certain general terms and provisions of
the Warrants. The particular terms of any series of Warrants 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.
GENERAL
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as Warrants to purchase other types of
securities, including equity securities. Warrants may be issued independently or
together with any securities and may be attached to or separate from such
securities. Each series of Warrants will be issued under a separate warrant
agreement (each a "Warrant Agreement") to be entered into between the Company
and a warrant agent ("Warrant Agent"). The Warrant Agent will act solely as an
agent of the Company in connection with the Warrants of such series and will not
assume any obligation or relationship of agency or trust for or with any holders
or beneficial owners of Warrants. The following sets forth certain general terms
and provisions of the Warrants offered hereby.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the following terms of
the Debt Warrants in respect of which this Prospectus is being delivered: (1)
the title of such Debt Warrants; (2) the aggregate number of such Debt Warrants;
(3) the price or prices at which such Debt Warrants will be issued; (4) the
currency or currencies, including composite currencies, in which the price of
such Debt Warrants may be payable; (5) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such Debt
Warrants; (6) if applicable, the designation and terms of the Debt Securities
with which such Debt Warrants are issued and the number of such Debt Warrants
issued with each such Debt Security; (7) the currency or currencies, including
composite currencies, in which the principal of or any premium or interest on
the Debt Securities purchasable upon exercise of such Debt Warrants will be
payable; (8) if applicable, the date on and after which such Debt Warrants and
the related Debt Securities will be separately transferable; (9) the price at
which and currency or currencies, including composite currencies, in which the
Debt Securities purchasable upon exercise of such Debt Warrants may be
purchased; (10) the date on which the right to exercise such Debt Warrants shall
commence and the date on which such right shall expire; (11) if applicable, the
minimum or maximum amount of such Debt Warrants which may be exercised at any
one time; (12) if applicable, any index or formula used to determine the amount
of payments of principal of and any premium and interest on Debt Securities
purchasable upon exercise of such Debt Warrants; (13) information with respect
to book-entry procedures, if any; (14) if applicable, a discussion of certain
United States Federal income tax considerations; and (15) any other terms of
such Debt Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Debt Warrants.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of which
this Prospectus is being delivered: (1) the title of such Warrants; (2) the
designation and number of Securities (which may include Preferred Stock or
Common Stock) and/or amount of cash consideration for which such Warrants are
exercisable; (3) the price
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or prices at which such Warrants will be issued; (4) the currency or currencies,
including composite currencies, in which the price of such Warrants may be
payable; (5) if applicable, the designation and terms of the Preferred Stock
with which such Warrants are issued and the number of such Warrants issued with
each share of Preferred Stock or Common Stock; (6) if applicable, the date on
and after which such Warrants and the related Preferred Stock or Common Stock
will be separately transferable; (7) if applicable, any index or formula used to
determine the price or prices at which such other securities and/or cash
consideration will be issued; (8) if applicable, a discussion of certain United
States Federal income tax considerations; and (9) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters, through agents
or dealers 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 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 may issue
Securities to or through underwriters, agents or dealers in connection with the
conversion or redemption of its outstanding securities.
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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VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for the Company
by Davis, Graham & Stubbs LLP Denver, Colorado.
EXPERTS
The Consolidated Financial Statements of the Company included in its Annual
Report on Form 10-K for the year ended December 31, 1996 and incorporated by
reference in this Prospectus, to the extent and for the periods indicated in
their report, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report dated February 24, 1997, with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said report.
Estimates of historical oil and natural gas reserves of the Company as of
December 31, 1994 and 1995, incorporated by reference herein are based upon
engineering studies prepared by the Company and reviewed by the independent
petroleum engineering firms of Williamson Petroleum Consultants, Inc. and
Netherland, Sewell & Associates, Inc. Estimates of historical oil and natural
gas reserves of the Company as of December 31, 1996 incorporated by reference
herein are based upon engineering studies prepared by the Company. In the
aggregate, 78.4% of the Company's total reserves as of December 31, 1996 were
reviewed by the two engineering firms. Such estimates are incorporated by
reference herein in reliance upon the authority of such firms as experts in such
matters.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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3.1 -- Amended and Restated Certificate of Incorporation of the
Company. (Incorporated herein by reference to Exhibit 3.1
to the Company's Registration Statement on Form S-1, No.
33-52774, filed October 2, 1992.)
3.2 -- Third Amended and Restated Bylaws of the Company adopted
December 16, 1996. (Incorporated herein by reference to
Exhibit 3.2 to the Company's Registration Statement on
Form S-4, No. 333-19433, filed January 8, 1997.)
4.1 -- Form of Indenture dated December 1, 1993, entered into
between the Company and the Trustee. (Incorporated by
reference to Exhibit 4.7 to Amendment No. 3 to the
Company's Registration Statement on Form S-3, No.
33-70354, filed November 23, 1993.)
4.2 -- Indenture dated November 27, 1996, among the Company,
Orion Acquisition, Inc., HSRTW, Inc., and Harris Trust
and Savings Bank as Trustee. (Incorporated herein by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-4, No. 333-19433, filed January 8,
1997.)
4.3 -- First Supplemental Indenture dated November 25, 1996
among the Company, Orion Acquisition, Inc., HSRTW, Inc.,
and Harris Trust and Savings Bank as Trustee.
(Incorporated herein by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-4, No.
333-19433, filed January 8, 1997.)
4.4* -- Form of Indenture
4.5+ -- Certificate of Designations of Preferred Stock
4.6+ -- Specimen Stock Certificate with respect to Preferred
Stock
4.7* -- Form of Preferred Stock Warrant Agreement (including form
of Preferred Stock Warrant Certificate)
4.8* -- Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate)
4.9* -- Form of Debt Warrant Agreement (including form of Debt
Warrant Certificate)
5.1* -- Opinion of Davis, Graham & Stubbs LLP
10.1 -- Amended Note and Warrant Purchase Agreement dated January
15, 1991, among NGP, Resolute Resources, Inc., and the
Company. (Incorporated by reference to Exhibit 4.4.1 to
the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1990, filed February 14,
1991.)
10.1.1 -- Amendment No. 1 to Note and Warrant Purchase Agreement
dated June 28, 1991, between the Company and NGP.
(Incorporated by reference to Exhibit 4.4.2 to the
Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1991, filed September 30, 1991.)
10.1.2 -- Second Amendment to Note and Warrant Purchase Agreement
dated August 17, 1992, between the Company and NGP.
(Incorporated by reference to Exhibit 4.2.2 to Amendment
No. 2 to the Company's Registration Statement on Form
S-1, No. 33-52774, filed November 19, 1992.)
II-1
26
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
10.1.3 -- Third Amendment to Note and Warrant Purchase Agreement
dated October 21, 1993, between the Company and NGP.
(Incorporated by reference to Exhibit 4.1.3 to Amendment
No. 2 to the Company's Registration Statement on Form
S-3, No. 33-70354, filed November 23, 1993.)
10.2 -- Amended and Restated Warrant Agreement dated January 15,
1991, between NGP and the Company. (Incorporated by
reference to Exhibit 4.5.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31,
1990, filed February 14, 1991.)
10.3 -- Amended Warrant No. W-1, dated January 15, 1991, and
issued by the Company to NGP. (Incorporated by reference
to Exhibit 4.6.1 to the Form 8, Second Amendment to Form
10, filed April 8, 1991.)
10.3.1 -- Amendment No. 1 to Amended Warrant No. W-1, dated
December 30, 1991, and issued by the Company to NGP.
(Incorporated by reference to Exhibit 4.6.2 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1991, filed on February 14, 1991.)
10.4 -- Form of Warrant No. W-10, dated January 28, 1992, and
issued by the Company to NGP. (Incorporated by reference
to Exhibit 4.16 to Amendment No. 1 to the Company's
Registration Statement on Form S-1, No. 33-52774, filed
November 9, 1992.)
10.5 -- 1987 Stock Incentive Plan, as amended December 2, 1996.
(Incorporated by reference to Exhibit 10.5 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed March 19, 1997 (as amended
by form 10-K/A filed on March 20, 1997.))
10.6 -- Common Stock Purchase Warrant dated July 12, 1990 by the
Company to James E. Duffy. (Incorporated by reference to
Exhibit 10.5 to the Form 8, Second Amendment to Form 10,
filed April 8, 1991.)
10.7 -- HS Resources, Inc. Rule 701 Compensatory Benefit Plan.
(Incorporated by reference to Exhibit 10.5.2 to the Form
8, Second Amendment to Form 10 filed April 8, 1991.)
10.8 -- 1992 Directors' Stock Option Plan. (Incorporated by
reference to Exhibit 10.10 to Amendment No. 1 to the
Company's Registration Statement on Form S-1, No. 33-
52774, filed November 9, 1992.)
10.8.1 -- 1993 Directors' Stock Option Plan. (Incorporated by
reference to Exhibit 10.8.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1993, filed March 31, 1994 (as amended by Form
10-K/A-1 on April 8, 1994.))
10.9 -- Form of Indemnification Agreement for Directors of the
Company. (Incorporated by reference to Exhibit 10.16 to
the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, filed March 25, 1996.)
10.10 -- Lease Agreement dated October 6, 1993, between the
Company and JMB Group Trust IV and Endowment and
Foundation Realty, Ltd. -- JMB III for the premises at
One Maritime Plaza, San Francisco, California.
(Incorporated by reference to Exhibit 10.13 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, filed March 31, 1994 (as amended
by Form 10-K/A-1 on April 8, 1994.))
II-2
27
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
10.11 -- Lease Agreement dated March 28, 1994, between the Company
and 1999 Broadway Partnership for the premises at 1999
Broadway, Denver, Colorado. (Incorporated by reference to
Exhibit 10.15 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1994, filed August
12, 1994.)
10.12 -- Interest exchange agreement between The Chase Manhattan
Bank, N.A. and the Company dated May 9, 1995.
(Incorporated by reference to Exhibit 10.19 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, filed August 14, 1995.)
10.13 -- Amended and Restated Agreement and Plan of Merger, dated
as of April 29, 1996, among the Company, HSR Acquisition,
Inc. and Tide West Oil Co. (Incorporated by reference as
Annex A to Amendment No. 2 to the Company's Registration
Statement on Form S-4, No. 333-01991, filed on May 2,
1996.)
10.14 -- Agreement for Purchase and Sale of Assets [Monetization],
dated as of February 24, 1996, among the Company, Basin
Exploration, Inc. ("Basin") and Orion Acquisition, Inc.
(Incorporated by reference to Exhibit 2.3 to the
Company's Form 8-K, filed March 12, 1996.)
10.15 -- Agreement for Purchase and Sale of Assets [Wattenberg],
dated as of February 24, 1996, among the Company, Orion
Acquisition, Inc. and Basin. (Incorporated by reference
to Exhibit A to the Company's Schedule 13D relating to
Basin Exploration, Inc. filed on March 6, 1996.)
10.16 -- Purchase and Sale Agreement, dated December 1, 1995,
between the Company and Wattenberg Gas Investments, LLC.
(Incorporated by reference to Exhibit 10.26 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed March 25, 1996.)
10.17 -- Rights Agreement, dated as of February 28, 1996, between
the Company and Harris Trust Company of California as
Rights Agent. (Incorporated by reference to Exhibit 1 to
the Company's Form 8-A, filed March 11, 1996.)
10.18 -- Purchase and Sale Agreement dated March 25, 1996 between
Orion Acquisition, Inc., the Company and Wattenberg
Resources Land, L.L.C. (Incorporated by reference to
Exhibit 10.28 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1996, filed May 15,
1996.)
10.19 -- Credit Agreement, dated as of June 7, 1996, among the
Company and The Chase Manhattan Bank, N.A. ("Chase"), as
agent of the Banks signatory thereto. (Incorporated by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, filed August 14,
1996.)
10.20 -- Amended and Restated Credit Agreement dated as of June
14, 1996, among the Company, Chase as agent, and the
Banks signatory thereto. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.21 -- First Amendment to Amended and Restated Credit Agreement
dated as of June 17, 1996, by and among the Company and
Chase in its individual capacity and as agent for the
Lenders. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.22 -- Second Amendment to Amended and Restated Credit Agreement
dated as of November 27, 1996 among the Company and Chase
in its individual capacity and as agent for the Lenders.
(Incorporated herein by reference to Exhibit 10.22 to the
Company's Registration Statement on Form S-4, No.
333-19433, filed January 8, 1997.)
II-3
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
10.23 -- Assignment of Liens and Amendment of Amended, Restated
and Consolidated Mortgage, Assignment of Production,
Security Agreement and Financing Statement, dated June
14, 1996, among Chase (Assignor), Chase (Assignee) and
the Company. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.24 -- Guaranty Agreement by HSR Acquisition, Inc. in favor of
Chase, as Agent, dated June 14, 1996. (Incorporated by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, filed August 14,
1996.)
10.25 -- Guaranty Agreement by Orion Acquisition, Inc. in favor of
Chase, as Agent, dated June 14, 1996. (Incorporated by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, filed August 14,
1996.)
10.26 -- First Amendment to Guaranty Agreement dated as of June
17, 1996, by and among Orion Acquisition, Inc. and Chase,
in its individual capacity and as agent for the Lenders.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996,
filed August 14, 1996.)
10.27 -- First Amendment to Guaranty Agreement dated as of June
17, 1996, by and among HSRTW, Inc. (formerly HSR
Acquisition, Inc.) and Chase, in its individual capacity
and as agent for the Lenders. (Incorporated by reference
to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.28 -- Third Amendment and Supplement to Amended, Restated and
Consolidated Mortgage, Assignment of Production, Security
Agreement and Financing Statement, dated as of July 15,
1996, by and between the Company and Chase. (Incorporated
by reference to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1996, filed August
14, 1996.)
10.29 -- Hedging Agreement between Chase and the Company dated May
1, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.30 -- Hedging Agreement between Chase and the Company dated May
1, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.31 -- Hedging Agreement between Chase and the Company dated
June 1, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.32 -- Purchase and Sale Agreement between the Company and
Wattenberg Gas Investments, LLC dated April 25, 1996.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996,
filed August 14, 1996.)
10.33 -- Purchase and Sale Agreement between Wattenberg Resources
Land L.L.C. and Wattenberg Gas Investments, LLC dated May
21, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.34 -- Purchase and Sale Agreement between Orion Acquisition,
Inc. and Wattenberg Gas Investments, LLC dated June 14,
1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
II-4
29
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
10.35 -- Purchase and Sale Agreement between Wattenberg Resources
Land L.L.C. and Wattenberg Gas Investments, LLC dated
June 14, 1996. (Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996, filed August 14, 1996.)
10.36 -- Purchase and Sale Agreement between Orion Acquisition,
Inc. and Wattenberg Gas Investments, LLC dated June 14,
1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.37 -- Purchase and Sale Agreement between the Company and
Wattenberg Gas Investments, LLC dated June 28, 1996.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996,
filed August 14, 1996.)
10.38 -- Purchase and Sale Agreement between HSRTW, Inc. and
Westtide Investments, LLC dated August 9, 1996.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1996, filed November 7, 1996.)
10.39 -- Acquisition Agreement between the Company and TCW
Portfolio No. 1555 DR V Sub-Custody Partnership, L.P.
dated August 30, 1996. (Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996, filed November 7, 1996.)
10.40 -- Purchase Agreement dated November 27, 1996 among the
Company, Orion Acquisition, Inc., HSRTW, Inc., Salomon
Brothers Inc., Chase Securities Inc., Lehman Brothers
Inc., and Prudential Securities Incorporated.
(Incorporated by reference to Exhibit 10.40 to the
Company's Registration Statement on Form S-4, No.
333-19433, filed January 8, 1997.)
10.41 -- Registration Agreement dated November 27, 1996 among the
Company, Orion Acquisition, Inc., HSRTW, Inc., and
Salomon Brothers Inc. in its individual capacity and as
agent for Chase Securities Inc., Lehman Brothers Inc.,
and Prudential Securities Incorporated. (Incorporated by
reference to Exhibit 10.41 to the Company's Registration
Statement on Form S-4, No. 333-19433, filed January 8,
1997.)
10.42 -- Employment Agreement between James Piccone and the
Company, dated April 21, 1995. (Incorporated by reference
to Exhibit 10.42 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996, filed
March 19, 1997.)
10.43 -- Registration Rights Agreement between the Company and
Natural Gas Partners, L.P., dated June 17, 1996.
(Incorporated by reference to Exhibit 4.4 to the
Company's Registration Statement on Form S-3, No.
333-28825, filed June 9, 1997.)
10.44 -- 1997 Performance and Equity Incentive Plan. (Incorporated
by reference to Exhibit A to the Company's Definitive
Proxy Statement for its Annual Meeting of Stockholders
held on May 22, 1997, filed April 24, 1997.)
23.1* -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Williamson Petroleum Consultants, Inc.
(Incorporated by reference to Exhibit 23.2 to the
Company's First Amendment to its Annual Report on Form
10-K/A, for the fiscal year ended December 31, 1997,
filed March 20, 1997.)
23.3 -- Consent of Netherland, Sewell & Associates, Inc.
(Incorporated by reference to Exhibit 23.3 to the
Company's First Amendment to its Annual Report on Form
10-K/A, for the fiscal year ended December 31, 1997,
filed March 20, 1997.)
II-5
30
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
23.4* -- Consent of Davis, Graham & Stubbs LLP (contained in
Exhibit 5.1).
25.1+ -- Statement of Eligibility of Trustee on Form T-1 with
respect to the Debt Securities.
- ---------------
* Filed herewith
+ To be filed by amendment or subsequently incorporated herein
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement,
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, that are incorporated by reference in the
Registration Statement;
(b) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
II-6
31
the Registrant of expenses is incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the Trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-7
32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Denver, Colorado on the 16th day of June, 1997.
HS Resources, Inc.
a Delaware corporation
By: /s/ NICHOLAS J. SUTTON*
----------------------------------
Nicholas J. Sutton
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
and on the date indicated.
NAME DESCRIPTION DATE
---- ----------- ----
/s/ NICHOLAS J. SUTTON* Chairman of the Board and Chief June 16, 1997
- ----------------------------------------------------- Executive Officer (Principal
Nicholas J. Sutton Executive Officer)
/s/ P. MICHAEL HIGHUM President and Director June 16, 1997
- ----------------------------------------------------- (Principal Executive Officer)
P. Michael Highum
/s/ JAMES E. DUFFY* Vice President -- Finance and June 16, 1997
- ----------------------------------------------------- Chief Financial Officer and
James E. Duffy Director (Principal Financial
Officer)
/s/ ANNETTE M. MONTOYA* Vice President -- June 16, 1997
- ----------------------------------------------------- Accounting/HR/OM (Principal
Annette M. Montoya Accounting Officer)
/s/ KENNETH A. HERSH* Director June 16, 1997
- -----------------------------------------------------
Kenneth A. Hersh
Director
- -----------------------------------------------------
Michael J. Savage
/s/ PHILIP B. SMITH* Director June 16, 1997
- -----------------------------------------------------
Philip B. Smith
*By: /s/ P. MICHAEL HIGHUM
------------------------------------------------
Attorney-in-fact
II-8
33
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.4 Form of Indenture
4.7 Form of Preferred Stock Warrant Agreement (including form
of Preferred Stock Warrant Certificate)
4.8 Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate)
4.9 Form of Debt Warrant Agreement (including form of Debt
Warrant Certificate)
5.1 Opinion of Davis, Graham & Stubbs LLP
23.1 Consent of Arthur Andersen LLP
23.4 Consent of Davis, Graham & Stubbs LLP (contained in Exhibit 5.1)