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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 11, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SANTA FE SNYDER CORPORATION
SFS CAPITAL TRUST I
SFS CAPITAL TRUST II
(Exact name of registrant as specified in its charter)
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DELAWARE 36-2722169
DELAWARE APPLIED FOR
DELAWARE APPLIED FOR
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
1616 SOUTH VOSS ROAD DAVID L. HICKS
HOUSTON, TEXAS 77057 VICE PRESIDENT-LAW AND GENERAL COUNSEL
(713) 507-5000 1616 SOUTH VOSS ROAD
HOUSTON, TEXAS 77057
(713) 507-5000
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone
including area number,
code, of registrant's principal executive offices) including area code, of agent for service)
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Copies to:
G. MICHAEL O'LEARY
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement, as determined in
light of market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED PRICE(1)(2) REGISTRATION FEE
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Debt Securities of Santa Fe Snyder Corporation(3)...........
Subordinated Debt Securities of Santa Fe Snyder(3)..........
Preferred Stock of Santa Fe Snyder(4).......................
Common Stock of Santa Fe Snyder(5)(6).......................
Trust Preferred Securities of SFS Capital Trust I and SFS
Capital Trust II(7)........................................
Guarantees by Santa Fe Snyder of Trust Preferred
Securities(8)..............................................
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Total(9)............................................. $500,000,000 $139,000
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(1) The proposed maximum offering price per unit will be determined from time to
time by the registrants in connection with the issuance by the registrants
of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act.
(3) Subject to note 9 below, an indeterminate principal amount of Debt
Securities or Subordinated Debt Securities of Santa Fe Snyder as may be sold
from time to time are being registered hereunder. If any Debt Securities or
Subordinated Debt Securities of Santa Fe Snyder are issued at an original
issue discount, then the offering price shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed
$500,000,000, less the dollar amount of any securities previously issued
hereunder.
(4) Subject to note 9 below, an indeterminate number of shares of Preferred
Stock of Santa Fe Snyder as may be sold from time to time are being
registered hereunder.
(5) Each share of Common Stock of Santa Fe Snyder is accompanied by a preferred
share purchase right pursuant to the Rights Agreement, dated March 31, 1997,
between Santa Fe Snyder and First Chicago Trust Company of New York, as
rights agent, as amended.
(6) Subject to note 9 below, an indeterminate number of shares of Common Stock
of Santa Fe Snyder as may be sold from time to time are being registered
hereunder. Also being registered hereunder are an indeterminate number of
shares of Common Stock of Santa Fe Snyder as shall be issuable upon
conversion or redemption of the Preferred Stock, the Debt Securities, the
Subordinated Debt Securities or the Trust Preferred Securities registered
hereby.
(7) Subject to note 9 below, an indeterminate amount and number of Trust
Preferred Securities as may be sold from time to time are being registered
hereunder.
(8) No separate consideration will be received for the Guarantee of the Trust
Preferred Securities. The Guarantee includes the rights of holders of Trust
Preferred Securities under the guarantee and certain back-up undertakings,
as described in this Registration Statement.
(9) In no event will the aggregate offering price of all securities issued from
time to time pursuant to this Registration Statement exceed $500,000,000.
The securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 11, 1999
PROSPECTUS
$500,000,000
SANTA FE SNYDER CORPORATION
DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
SFS CAPITAL TRUST I
SFS CAPITAL TRUST II
TRUST PREFERRED SECURITIES
GUARANTEED BY SANTA FE SNYDER CORPORATION
Santa Fe Snyder Corporation may offer and sell in one or more offerings:
- unsecured debt securities consisting of senior notes and debentures and
subordinated notes and debentures and/or other unsecured evidences of
indebtedness in one or more series;
- shares of preferred stock, in one or more series, which may be
convertible or exchangeable for common stock or debt securities; and
- shares of common stock.
SFS Capital Trust I and SFS Capital Trust II, each a wholly owned
subsidiary of Santa Fe Snyder Corporation, may offer and sell in one or more
offerings:
- trust preferred securities representing undivided beneficial interests in
the assets of each trust. As described in this document, Santa Fe Snyder
will provide a limited guarantee of the payment by each trust of
distributions on the trust preferred securities and the payment upon
liquidation and redemption.
The aggregate initial offering price of the securities that we offer will
not exceed $500,000,000. We will offer the securities in amounts, at prices and
on terms to be determined by market conditions at the time of our offerings.
We will provide the specific terms of the securities in supplements to this
prospectus. You should read this prospectus and the prospectus supplements
carefully before you invest in any of our securities. This prospectus may not be
used to consummate sales of our securities unless it is accompanied by a
prospectus supplement.
Santa Fe Snyder's common stock is listed for trading on the New York Stock
Exchange under the symbol "SFS".
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 1999
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You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information incorporated by reference or provided in
this prospectus or any prospectus supplement is accurate as of any date other
than the date on the front of each of those documents.
TABLE OF CONTENTS
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About This Prospectus....................................... 1
Where You Can Find More Information......................... 1
Forward-Looking Statements.................................. 2
Santa Fe Snyder Corporation................................. 2
The Trusts.................................................. 2
Use of Proceeds............................................. 3
Ratio of Earnings to Fixed Charges.......................... 4
Plan of Distribution........................................ 4
Description of Debt Securities.............................. 5
Description of Equity Securities............................ 11
Description of Trust Preferred Securities................... 15
Description of Trust Preferred Securities Guarantees........ 16
Relationship Among the Trust Preferred Securities, the
Subordinated Debt Securities and the Guarantees........... 19
Legal Opinions.............................................. 20
Experts..................................................... 21
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may, over the next two years, sell different types
of securities described in this prospectus in one or more offerings up to a
total offering amount of $500 million. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering and the securities offered by us in
that offering. The prospectus supplement may also add, update or change
information in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information."
In this prospectus references to "Santa Fe Snyder," "we," "us" and "our"
mean Santa Fe Snyder Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with
the SEC. Our SEC filings are available to the public over the Internet or at the
SEC's web site at http://www.sec.gov. You may also read and copy any document we
file at the SEC's public reference rooms in Washington, D.C., New York, New York
and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities:
- Snyder Oil Corporation's Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1998;
- Santa Fe Energy Resources, Inc.'s Annual Report on Form 10-K/A for the
fiscal year ended December 31, 1998;
- Santa Fe Energy Resources, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999;
- Santa Fe Energy Resources, Inc.'s Current Report on Form 8-K filed on May
6, 1999 announcing the consummation of the merger of Snyder Oil
Corporation with and into Santa FeEnergy Resources, Inc.; and
- the descriptions of our common stock and preferred stock contained in our
registration statement on Form 8-A/A filed on May 11, 1999.
You may request a copy of these filings, at no cost, by writing or calling
us at the following address:
Kathy E. Hager
Investor Relations
Santa Fe Snyder Corporation
1616 S. Voss Road
Houston, Texas 77057
(713) 507-5315
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FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus, any prospectus
supplement and the documents we have incorporated by reference contain
forward-looking statements. Such statements use forward-looking words such as
"anticipate," "believe," "expect," "may," "project," "will" or other similar
words and discuss "forward-looking" information including the following:
- estimated production levels;
- anticipated capital expenditures;
- future cash flows and borrowings;
- pursuit of potential future acquisition opportunities; and
- sources of funding for exploration.
These forward-looking statements are based on assumptions that we believe
are reasonable, but they are open to a wide range of uncertainties and business
risks. Factors that could cause actual results to differ materially from those
anticipated are discussed in our periodic filings with the SEC, including Santa
Fe Energy Resources, Inc.'s Annual Report on Form 10-K/A for the year ended
December 31, 1998, Snyder Oil Corporation's Annual Report on Form 10-K/A for the
year ended December 31, 1998, and Santa Fe Energy Resources, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999.
When considering these forward-looking statements, you should keep in mind
the risk factors and other cautionary statements in this document, any
prospectus supplement and the documents we have incorporated by reference. We
will not update these forward-looking statements unless the securities laws
require us to do so.
SANTA FE SNYDER CORPORATION
Santa Fe Snyder Corporation was created on May 5, 1999 through the
combination by merger of Snyder Oil Corporation with and into Santa Fe Energy
Resources, Inc. Santa Fe Snyder is a large independent oil and natural gas
exploration and production company with operations in the United States,
Southeast Asia, South America and West Africa. On a pro forma combined basis, as
of January 1, 1999, we had estimated proved reserves of 315 million barrels of
oil equivalent, with 65% domestic reserves and 35% international reserves. 60%
of our estimated proved reserves are oil and 40% are natural gas. Our combined
production for 1999 is estimated to be 105,000 barrels of oil equivalent per
day, with 55% of the combined production natural gas and 70% domestic.
Our principal executive offices are located at 1616 South Voss Road,
Houston, Texas 77057, and our telephone number is (713) 507-5000.
THE TRUSTS
Each of SFS Capital Trust I and SFS Capital Trust II is a statutory
business trust created under Delaware law through the filing of a certificate of
trust with the Delaware Secretary of State. Each trust's business is defined in
a declaration of trust which will be executed by Santa Fe Snyder, as sponsor for
each of the trusts, and the trustees, as defined below, for each of the trusts.
Each declaration will be amended and restated before any sale by that trust of
trust preferred securities. Each declaration will also be qualified as an
indenture under the Trust Indenture Act of 1939, as amended. Each trust exists
for the exclusive purposes of:
- issuing and selling the trust preferred securities and the trust common
securities;
- investing the gross proceeds from the sale of the trust preferred
securities in subordinated debt securities issued by Santa Fe Snyder; and
- engaging in only those other activities necessary or incidental to these
purposes.
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Santa Fe Snyder will, directly or indirectly, acquire trust common
securities in an aggregate liquidation amount equal to 3% of the total capital
of each of the trusts.
Each trust's business and affairs will be conducted by its trustees. A
majority of the trustees of each trust will be administrative trustees and will
be persons who are employees or officers of or affiliated with Santa Fe Snyder.
One trustee of each trust will be a financial institution that will be
unaffiliated with Santa Fe Snyder and that will act as property trustee and as
indenture trustee for purposes of the Trust Indenture Act, as described in the
applicable prospectus supplement. In addition, unless the property trustees
maintain a principal place of business in the State of Delaware, and otherwise
meet the requirements of applicable law, one trustee of each trust, the Delaware
trustee, will have its principal place of business or reside in the State of
Delaware. The administrative trustees and the property trustees, together with
the Delaware trustee, are referred to in this document as the trustees. Each
trust's business and affairs will be conducted by the trustees appointed by
Santa Fe Snyder, as the direct or indirect holder of all the trust common
securities. Except in limited circumstances, Santa Fe Snyder as the holder of
the trust common securities will be entitled to appoint, remove or replace any
of, or increase or reduce the number of, the trustees of a trust. The
declaration of each trust will govern the duties and obligations of the
trustees. Santa Fe Snyder will pay all fees and expenses related to the trusts
and the offering of trust securities, the payment of which will be guaranteed by
Santa Fe Snyder.
The office of the Delaware trustee for each trust in the State of Delaware
is White Clay Center, Route 273, Newark, Delaware 19711. The principal place of
business of each trust is c/o Santa Fe Snyder Corporation, 1616 South Voss Road,
Suite 1000, Houston, Texas 77057, and its telephone number is (713) 507-5000.
USE OF PROCEEDS
We intend to use the net proceeds we receive from the sale of the
securities offered by this prospectus and the accompanying prospectus supplement
for the repayment of debt and for general corporate purposes, unless we specify
otherwise in the applicable prospectus supplement. General corporate purposes
may include the repayment of existing indebtedness, additions to working
capital, capital expenditures or the financing of possible acquisitions,
including acquisitions of onshore and offshore oil and natural gas properties.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends of Santa Fe
Energy Resources, Inc., the predecessor of Santa Fe Snyder Corporation, for the
periods indicated. Santa Fe Snyder was created by merger of Snyder Oil
Corporation with and into Santa Fe Energy Resources on May 5, 1999. The
applicable ratios for the combined entity will be set forth in the applicable
prospectus supplement.
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SANTA FE ENERGY RESOURCES
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THREE
MONTHS
ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
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1999 1998 1998 1997 1996 1995 1994
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Earnings to Fixed Charges........................ (a) (a) (a) 4.7 2.3 2.1 1.8
Earnings to Combined Fixed Charges and Preferred
Stock Dividends................................ (b) (b) (b) 2.6 (b) 1.3 1.2
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(a) Earnings during the three months ended March 31, 1999 and 1998 and the year
1998 were insufficient to cover fixed charges (excluding dividends on
preferred stock) by $18 million, $6.3 million and $167.3 million,
respectively.
(b) Earnings during the three months ended March 31, 1999 and 1998 and the
years 1998 and 1996 were insufficient to cover combined fixed charges and
preferred stock dividends by $18 million, $6.3 million, $167.3 million and
$12.7 million, respectively. In the second quarter of 1997, Santa Fe
converted the remaining 1.2 million outstanding shares of Convertible
Preferred Stock, Series 7%, into 2.3 million shares of common stock. Also
in the second quarter of 1997, Santa Fe converted all 10.7 million of its
$.732 Series A Convertible Preferred Stock into 9.1 million shares of
common stock.
For the purpose of computing the ratio of earnings to fixed charges,
earnings means:
- income from continuing operations before income taxes;
- plus fixed charges;
- plus amortization of capitalized interest; and
- less capitalized interest.
Fixed charges means the sum of the following:
- interest, including capitalized interest, on all indebtedness; and
- amortization of debt discount.
PLAN OF DISTRIBUTION
We may sell our securities through agents, underwriters or dealers,
directly to purchasers.
We may designate agents to solicit offers to purchase our securities.
- We will name any agent involved in offering or selling our securities,
and any commissions that we will pay to the agent, in our prospectus
supplement.
- Unless we indicate otherwise in our prospectus supplement, our agents
will act on a best efforts basis for the period of their appointment.
- Our agents may be deemed to be underwriters under the Securities Act of
1933 of any of our securities that they offer or sell.
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We may use an underwriter or underwriters in the offer or sale of our
securities.
- If we use an underwriter or underwriters, we will execute an underwriting
agreement with the underwriter or underwriters at the time that we reach
an agreement for the sale of our securities.
- We will include the names of the specific managing underwriter or
underwriters, as well as any other underwriters, and the terms of the
transactions, including the compensation the underwriters and dealers
will receive, in our prospectus supplement.
- The underwriters will use our prospectus supplement to sell our
securities.
We may use a dealer to sell our securities.
- If we use a dealer, we, as principal, will sell our securities to the
dealer.
- The dealer will then sell our securities to the public at varying prices
that the dealer will determine at the time it sells our securities.
- We will include the name of the dealer and the terms of our transactions
with the dealer in our prospectus supplement.
We may directly solicit offers to purchase our securities, and we may
directly sell our securities to institutional or other investors. We will
describe the terms of our direct sales in our prospectus supplement.
We may indemnify agents, underwriters, and dealers against certain
liabilities, including liabilities under the Securities Act of 1933. Our agents,
underwriters, and dealers, or their affiliates, may be customers of, engage in
transactions with or perform services for us, in the ordinary course of
business.
We may authorize our agents and underwriters to solicit offers by certain
institutions to purchase our securities at the public offering price under
delayed delivery contracts.
- If we use delayed delivery contracts, we will disclose that we are using
them in the prospectus supplement and will tell you when we will demand
payment and delivery of the securities under the delayed delivery
contracts.
- These delayed delivery contracts will be subject only to the conditions
that we set forth in the prospectus supplement.
- We will indicate in our prospectus supplement the commission that
underwriters and agents soliciting purchases of our securities under
delayed delivery contracts will be entitled to receive.
DESCRIPTION OF DEBT SECURITIES
Any debt securities we offer will be our direct, unsecured general
obligations. The debt securities will be either senior debt securities or
subordinated debt securities. The debt securities will be issued under one or
more separate indentures between us and The Bank of New York, as trustee. Senior
debt securities will be issued under a "senior indenture" and subordinated debt
securities will be issued under a "subordinated indenture." Together the senior
indenture and the subordinated indenture are called "indentures."
We have summarized selected provisions of the indentures below. The
following description is a summary of the material provisions of the indentures.
It does not restate those agreements in their entirety. We urge you to read each
of the indentures because each one, and not this description, defines your
rights as holders of the debt securities. The forms of each of the indentures
have been filed as exhibits to the registration statement.
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GENERAL
The debt securities will be our direct, unsecured obligations. The senior
debt securities will rank equally with all of our other senior and
unsubordinated debt. The subordinated debt securities will have a junior
position to all of our senior debt securities.
If SFS Capital Trust I or SFS Capital Trust II issue trust preferred
securities, Santa Fe Snyder will also issue subordinated debt securities to SFS
Capital Trust I or SFS Capital Trust II or a trustee of either trust. If the
trusts are subsequently dissolved upon the occurrence of the events described in
the prospectus supplement relating to the trust preferred securities, the trusts
or trustees may distribute these subordinated debt securities ratably to the
holders of trust preferred securities.
A prospectus supplement and a supplemental indenture relating to any series
of debt securities being offered will include specific terms relating to the
offering. These terms will include some or all of the following:
- the title and type of the debt securities;
- the total principal amount of the debt securities;
- the percentage of the principal amount at which the debt securities will
be issued and any payments due if the maturity of the debt securities is
accelerated;
- the dates on which the principal of the debt securities will be payable;
- the interest rate which the debt securities will bear and the interest
payment dates for the debt securities;
- the form of the subordinated debt securities Santa Fe Snyder will issue
to the trusts or a trustee if the trusts issue trust preferred
securities;
- in the case of subordinated debt securities issued to the trusts or
trustees, the right to extend payment periods and the duration of that
extension;
- any optional redemption periods;
- any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem some or all of the debt securities;
- any changes to or additional events of defaults or covenants;
- any special tax implications of the debt securities, including provisions
for original issue discount securities, if offered;
- restrictions on the declaration of dividends or requiring the maintenance
of any asset ratio or the creation or maintenance of reserves; and
- any other terms of the debt securities.
None of the indentures limits the amount of debt securities that may be
issued. Each indenture allows debt securities to be issued up to the principal
amount that may be authorized by us and may be in any currency or currency unit
designated by us.
Debt securities of a series may be issued in registered, bearer, coupon or
global form.
DENOMINATIONS
The prospectus supplement for each issuance of debt securities will state
whether the securities will be issued in registered form of $1,000 each or
multiples thereof or bearer form of $5,000 each.
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SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will generally be subordinated
and junior in right of payment to the prior payment in full of all senior debt
securities. The subordinated indenture provides that no payment of principal,
interest and any premium on the subordinated debt securities may be made in the
event:
- of any insolvency, bankruptcy or similar proceeding involving us or our
property, or
- we fail to pay the principal, interest, any premium or any other amounts
on any senior debt when due.
The subordinated indenture will not limit the amount of senior debt that we
may incur.
Senior debt includes all notes or other unsecured evidences of
indebtedness, including guarantees given by us, for money borrowed by us, not
expressly subordinate or junior in right of payment to any of our other
indebtedness.
CONSOLIDATION, MERGER OR SALE
Each indenture generally permits a consolidation or merger between us and
another corporation. They also permit the sale by us of all or substantially all
of our property and assets. If this occurs, the remaining or acquiring
corporation will assume all of our responsibilities and liabilities under the
indentures, including the payment of all amounts due on the debt securities and
performance of the covenants in the indentures. However, we will consolidate or
merge with or into any other corporation or sell all or substantially all of our
assets only according to the terms and conditions of the indentures. The
remaining or acquiring corporation will be substituted for us in the indentures
with the same effect as if it had been an original party to the indentures.
Thereafter, the successor corporation may exercise our rights and powers under
any indenture, in our name or in its own name. Any act or proceeding required or
permitted to be done by our board or any of our officers may be done by the
board or officers of the successor corporation. If we sell all or substantially
all of our assets, we will be released from all our liabilities and obligations
under any indenture and under the debt securities.
MODIFICATION OF INDENTURES
Under each indenture our rights and obligations and the rights of the
holders may be modified with the consent of the holders of a majority in
aggregate principal amount of the outstanding debt securities of each series
affected by the modification. No modification of the principal or interest
payment terms, and no modification reducing the percentage required for
modifications, is effective against any holder without its consent.
EVENTS OF DEFAULT
"Event of default" when used in an indenture, will mean any of the
following:
- failure to pay the principal of or any premium on any debt security when
due;
- failure to deposit any sinking fund payment when due;
- failure to pay interest on any debt security for 60 days;
- failure to perform any other covenant in the indenture that continues for
90 days after being given written notice;
- certain events in bankruptcy, insolvency or reorganization of Santa Fe
Snyder; or
- any other event of default included in any indenture or supplemental
indenture.
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An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. The trustee may withhold notice to the
holders of debt securities of any default, except in the payment of principal or
interest, if it considers such withholding of notice to be in the best interests
of the holders.
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration.
Other than its duties in case of a default, a trustee is not obligated to
exercise any of its rights or powers under any indenture at the request, order
or direction of any holders, unless the holders offer the trustee reasonable
indemnity. If they provide this reasonable indemnification, the holders of a
majority in principal amount of any series of debt securities may direct the
time, method and place of conducting any proceeding or any remedy available to
the trustee, or exercising any power conferred upon the trustee, for any series
of debt securities.
COVENANTS
Under the indentures, we will:
- pay the principal of, and interest and any premium on, the debt
securities when due;
- maintain a place of payment;
- deliver a report to the trustee at the end of each fiscal year reviewing
our obligations under the indentures; and
- deposit sufficient funds with any paying agent on or before the due date
for any principal, interest or premium.
If the trusts issue trust preferred securities and Santa Fe Snyder issues
subordinated debt securities to the trust or a trust in connection with the
issuance of the trust preferred securities and (1) an event of default as
defined herein has occurred, (2) Santa Fe Snyder is in default with respect to
its payment of any obligations under the related trust guarantee or the
guarantee of the trust common securities or (3) Santa Fe Snyder has given notice
of its election to defer payments of interest on these subordinated debt
securities by extending the interest payment period as provided in the indenture
governing these subordinated debt securities, and this interest payment period,
or any extension of this interest payment period, is continuing, Santa Fe Snyder
will be subject to restrictions regarding
- the declaration of payment of dividends on, and the making of guarantee
payments with respect to, any of its capital stock; and
- the making of any payment of interest, principal or premium, if any, on
or the repayment, repurchase or redemption of debt securities including
guarantees issued by Santa Fe Snyder which rank equally with or junior to
these subordinated debt securities.
These restrictions will be described in more detail in the prospectus
supplement relating to these subordinated debt securities.
If the trusts issue trust preferred securities and Santa Fe Snyder issues
subordinated debt securities to the trust or a trustee in connection with the
issuance of the trust preferred securities, for so long as the
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trust preferred securities remain outstanding, Santa Fe Snyder will covenant in
the declaration of the trusts, the related guarantees or the indenture governing
these subordinated debt securities:
- To directly or indirectly maintain 100% ownership of the common
securities of each trust; provided, however, that any permitted successor
under the indenture governing the subordinated debt securities may
succeed to Santa Fe Snyder's ownership of the trust common securities;
and
- Not to voluntarily terminate, wind-up or liquidate either SFS Capital
Trust I or SFS Capital Trust II, except in connection with
-- the distribution of subordinated debt securities to the holders of
trust preferred securities in liquidation of either trust;
-- the redemption of all trust preferred securities of either trust; or
-- mergers, consolidations or amalgamations permitted by the declaration
of either trust.
Santa Fe Snyder will also covenant to use its commercially reasonable
efforts, consistent with the terms and provisions of the declaration of either
trust, to cause each trust to remain classified as a grantor trust and not
taxable as a corporation for U.S. federal income tax purposes.
PAYMENT AND TRANSFER
Santa Fe Snyder will pay principal, interest and any premium on fully
registered securities at designated places. We will make payment by check mailed
to the persons in whose names the debt securities are registered on days
specified in the indentures or any prospectus supplement. If we make debt
securities payments in other forms will be paid at a place designated by us and
specified in a prospectus supplement.
We will maintain a corporate trust office of the trustee or another office
or agency for the purpose of transferring or exchanging fully registered
securities, without the payment of any service charge except for any tax or
governmental charge imposed in connection with that transfer or exchange.
GLOBAL SECURITIES
We may issue one or more series of the debt securities as permanent global
debt securities deposited with a depositary. Unless otherwise indicated in the
prospectus supplement, the following is a summary of the depository arrangements
applicable to debt securities issued in permanent global form and for which The
Depositary Trust Company acts as depositary.
Each global debt security will be deposited with, or on behalf of, DTC, as
depositary, or its nominee and registered in the name of a nominee of DTC.
Except under the limited circumstances described below, global debt securities
are not exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited to
participants that have accounts with DTC or its nominee, or persons that may
hold interests through those participants. In addition, ownership of beneficial
interests by participants in a global debt security will be evidenced only by,
and the transfer of that ownership interest will be effected only through,
records maintained by DTC or its nominee for a global debt security. Ownership
of beneficial interests in a global debt security by persons that hold through
participants will be evidenced only by, and the transfer of that ownership
interest within that participant will be effected only through, records
maintained by that participant. DTC has no knowledge of the actual beneficial
owners of the debt securities. Beneficial owners will not receive written
confirmation from DTC of their purchase, but beneficial owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the participants through which the
beneficial owners entered the transaction. The laws of some jurisdictions
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to transfer
beneficial interests in a global debt security.
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We will make payment of principal of, and interest on, debt securities
represented by a global debt security registered in the name of or held by DTC
or its nominee will be made to DTC or its nominee, as the case may be, as the
registered owner and holder of the global debt security representing those debt
securities. DTC has advised us that upon receipt of any payment of principal of,
or interest on, a global debt security, DTC will immediately credit accounts of
participants on its book-entry registration and transfer system with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of that global debt security as shown in the records of DTC. Payments by
participants to owners of beneficial interests in a global debt security held
through those participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the sole
responsibility of those participants, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Neither we, any trustee nor any of our respective agents, will be
responsible for any aspect of the records of DTC, any nominee or any participant
relating to, or payments made on account of, beneficial interests in a permanent
global debt security or for maintaining, supervising or reviewing any of the
records of DTC, any nominee or any participant relating to such beneficial
interests.
A global debt security is exchangeable for definitive debt securities
registered in the name of, and a transfer of a global debt security may be
registered to, any person other than DTC or its nominee, only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for that global debt security or at any time DTC ceases to be registered
under the Exchange Act;
- we determine in our discretion that the global debt security shall be
exchangeable for definitive debt securities in registered form; or
- there shall have occurred and be continuing an event of default or an
event which, with notice or the lapse of time or both, would constitute
an event of default under the debt securities.
Any global debt security that is exchangeable pursuant to the preceding
sentence will be exchangeable in whole for definitive debt securities in
registered form, of like tenor and of an equal aggregate principal amount as the
global debt security, in denominations specified in the applicable prospectus
supplement, if other than $1,000 and integral multiples of $1,000. The
definitive debt securities will be registered by the registrar in the name or
names instructed by DTC. We expect that these instructions may be based upon
directions received by DTC from its participants with respect to ownership of
beneficial interests in the global debt security.
Except as provided above, owners of the beneficial interests in a global
debt security will not be entitled to receive physical delivery of debt
securities in definitive form and will not be considered the holders of debt
securities for any purpose under the indentures. No global debt security shall
be exchangeable except for another global debt security of like denomination and
tenor to be registered in the name of DTC or its nominee. Accordingly, each
person owning a beneficial interest in a global debt security must rely on the
procedures of DTC and, if that person is not a participant, on the procedures of
the participant through which that person owns its interest, to exercise any
rights of a holder under the global debt security or the indentures.
We understand that, under existing industry practices, in the event that we
request any action of holders, or an owner of a beneficial interest in a global
debt security desires to give or take any action that a holder is entitled to
give or take under the debt securities or the indentures, DTC would authorize
the participants holding the relevant beneficial interests to give or take that
action, and those participants would authorize beneficial owners owning through
those participants to give or take that action or would otherwise act upon the
instructions of beneficial owners owning through them.
DTC has advised us that DTC is a limited purpose trust company organized
under the laws of the State of New York, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered under the Exchange Act. DTC was created
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to hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in those securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC is owned by a number
of its participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to DTC's book-entry system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC.
DEFEASANCE
We will be discharged from our obligations on the debt securities of any
series at any time if we deposit with the trustee sufficient cash or government
securities to pay the principal, interest, any premium and any other sums due to
the stated maturity date or a redemption date of the debt securities of the
series. If this happens, the holders of the debt securities of the series will
not be entitled to the benefits of the indenture except for registration of
transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities.
Under Federal income tax law as of the date of this prospectus, a discharge
may be treated as an exchange of the related debt securities. Each holder might
be required to recognize gain or loss equal to the difference between the
holder's cost or other tax basis for the debt securities and the value of the
holder's interest in the trust. Holders might be required to include as income a
different amount than would be includable without the discharge. Prospective
investors should seek tax advice to determine their particular consequences of a
discharge, including the applicability and effect of tax laws other than the
Federal income tax law.
MEETINGS
Each indenture contains provisions describing how meetings of the holders
of debt securities of a series may be convened. A meeting may be called at any
time by the trustee, and also, upon request, by us or the holders of at least
10% in principal amount of the outstanding debt securities of a series. A notice
of the meeting must always be given in the manner described under "-- Notices"
below. Generally speaking, except for any consent that must be given by all
holders of a series as described under "-- Modification of Indentures" above,
any resolution presented at a meeting of the holders of a series of debt
securities may be adopted by the affirmative vote of the holders of a majority
in principal amount of the outstanding debt securities of that series, unless
the indenture allows the action to be voted upon to be taken with the approval
of the holders of a different specific percentage of principal amount of
outstanding debt securities of a series. In that case, the holders of
outstanding debt securities of at least the specified percentage must vote in
favor of the action. Any resolution passed or decision taken at any meeting of
holders of debt securities of any series in accordance with the applicable
indenture will be binding on all holders of debt securities of that series and
any related coupons, unless, as discussed in "-- Modification of Indentures"
above, the action is only effective against holders that have approved it. The
quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be holders holding or representing a majority in principal amount
of the outstanding debt securities of a series.
GOVERNING LAW
Each indenture and the debt securities will be governed by and construed in
accordance with the laws of the State of New York.
NOTICES
Notices to holders of debt securities will be given by mail to the
addresses of such holders as they appear in the security register.
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DESCRIPTION OF EQUITY SECURITIES
GENERAL
As of the date of this prospectus, Santa Fe Snyder is authorized to issue
up to 350,000,000 shares of capital stock, including up to 300,000,000 shares of
common stock, par value $.01 per share, and up to 50,000,000 shares of preferred
stock, par value $.01 per share. As of May 10, 1999, we had 170,958,620 shares
of common stock and no shares of preferred stock outstanding. The number of
shares of common stock outstanding does not give effect to adjustments for
fractional shares resulting from the conversion of shares of common stock of
Snyder Oil Corporation into Santa Fe Snyder shares in the merger of Snyder into
Santa Fe Energy Resources. As of that date, we also had approximately 14,310,633
shares of common stock reserved for issuance upon exercise of options or in
connection with other awards outstanding under various employee or director
incentive, compensation and option plans. In addition, as of that date we had
3,000,000 shares of preferred stock authorized for issuance as Series A Junior
Participating Preferred Stock under the rights agreement of Santa Fe Snyder. For
a description of the rights agreement, see "-- Stockholder Rights Agreement" on
page 14 of this prospectus.
The following is a summary of the key terms and provisions of Santa
FeSnyder's equity securities. You should refer to the applicable provisions of
our Restated Certificate of Incorporation, Bylaws, the Delaware General
Corporation Law and the documents we have incorporated by reference for a
complete statement of the terms and rights of our capital stock.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
Santa Fe Snyder is a Delaware corporation subject to Section 203 of the
Delaware General Corporation Law (the DGCL). Generally, Section 203 prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless (1)
prior to such date, either the business combination or such transaction which
resulted in the stockholder becoming an interested stockholder is approved by
the board of directors of the corporation, (2) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock, or (3) on or after such date, the business combination is approved
by the board of directors of the corporation and by the affirmative vote at
least 66 2/3% of the outstanding voting stock that is not owned by the
interested stockholder. A "business combination" includes mergers, asset sales
and other transactions resulting in a financial benefit to the interested
stockholder. An "interested stockholder" is a person who, together with
affiliates and associates, owns, or, within three years, did own, 15% or more of
the corporation's outstanding voting stock.
LIMITATION ON CHANGES IN CONTROL
Certain of the above provisions of Santa Fe Snyder's Restated Certificate
of Incorporation and By-Laws and the provisions of Section 203 of the DGCL could
have the effect of delaying, deferring or preventing a change in control of
Santa Fe Snyder or the removal of existing management or deterring potential
acquirors from making an offer to stockholders of Santa Fe Snyder. This could be
the case notwithstanding that a majority of the stockholders might benefit from
such a change in control or offer. In addition, the issuance of shares of
preferred stock, or the issuance of rights to purchase such shares, could be
used to discourage an unsolicited acquisition proposal. For instance, the
issuance of a series of preferred stock might impede a business combination by
including voting rights that would provide a required percentage vote of the
stockholders. In addition, under certain circumstances, the issuance of
preferred stock could adversely affect the voting power of the holders of common
stock.
PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION AND BYLAWS
Santa Fe Snyder's Restated Certificate of Incorporation provides that
stockholders may not act by written consent in lieu of a meeting. The Restated
Certificate of Incorporation further provides that the
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number of directors will not be fewer than three nor more than 15. It also
provides for a classified board of directors, consisting of three classes as
nearly equal in size as practicable. Each class holds office until the third
annual stockholders' meeting for the election of directors after the annual
meeting at which that class was elected. An amendment to the Restated
Certificate of Incorporation relating to the composition and classification of
the board of directors, an amendment of the Santa Fe Snyder bylaws, the issuance
of rights to purchase Santa Fe Snyder capital stock and limitations on the
liability of directors, requires the vote of at least 80% of the stockholders
entitled to vote in an election of directors, voting together as a single class.
COMMON STOCK
The holders of common stock of Santa Fe Snyder are entitled to one vote for
each share held of record on all matters submitted to a vote of stockholders.
Cumulative voting rights are denied. Subject to preferences that may be
applicable to any outstanding preferred stock, holders of common stock are
entitled to receive ratably dividends as they may be declared by the board of
directors of Santa Fe Snyder out of funds legally available for dividends. In
the event of a liquidation or dissolution, holders of common stock are entitled
to share ratably in all assets remaining after payment of liabilities and the
liquidation preference of any outstanding preferred stock.
Holders of common stock have no preemptive rights and have no rights to
convert their common stock into any other securities. The common stock is not
redeemable or entitled to the benefits of any sinking fund. All of the
outstanding shares of common stock are, the shares of common stock issued
pursuant to the merger will be, and any additional common stock issued will be,
duly authorized, validly issued, fully paid and nonassessable. First Chicago
Trust Company of New York is the transfer agent and registrar for the common
stock.
Santa Fe Snyder's outstanding shares of common stock are listed on the New
York Stock Exchange under the symbol "SFS". Any additional common stock issued
will also be listed on the NYSE.
PREFERRED STOCK
Santa Fe Snyder may issue shares of preferred stock in one or more series.
Santa Fe Snyder will determine the dividend, voting, conversion and other rights
of the series being offered and the terms and conditions relating to its
offering and sale at the time of the offer and sale.
Santa Fe Snyder's board is authorized to designate any series of preferred
stock and the powers, preferences and rights of the shares of such series and
the qualifications, limitations or restrictions thereof without further action
by the holders of the common stock. There are 3,000,000 shares designated as
Series A Junior Participating Preferred Stock. As of May 10, 1999, there were no
shares of Series A Junior Participating Preferred Stock outstanding.
The particular terms of any series of preferred stock being offered by us
under this shelf registration will be described in the applicable prospectus
supplement relating to that series of preferred stock. Those terms may include:
- the number of shares of the series of preferred stock being offered;
- the title and liquidation preference per share of that series of the
preferred stock;
- the purchase price of the preferred stock;
- the dividend rate or method for determining the dividend rate;
- the dates on which dividends will be paid;
- whether dividends on that series of preferred stock will be cumulative or
non-cumulative and, if cumulative, the dates from which dividends shall
commence to accumulate;
- any redemption or sinking fund provisions applicable to that series of
preferred stock;
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- any conversion provisions applicable to that series of preferred stock;
or
- any additional dividend, liquidation, redemption, sinking fund and other
rights and restrictions applicable to that series of preferred stock.
You should also refer to the certificate of designations relating to the
series of the preferred stock for the complete terms of that preferred stock.
The certificate of designations for a particular series of preferred stock will
be filed with the SEC promptly after the offering of that series of preferred
stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable prospectus supplement, in the event
we liquidate, dissolve or wind up our business, each series of preferred stock
will have the same rank as to dividends and distributions as each other series
of the preferred stock we may issue in the future. The preferred stock will have
no preemptive rights.
First Chicago Trust Company of New York will be the transfer agent,
registrar and dividend disbursement agent for the preferred stock.
STOCKHOLDER RIGHTS AGREEMENT
Santa Fe Snyder has entered into a stockholder rights agreement, as
amended, with First Chicago Trust Company of New York as rights agent. Pursuant
to the rights agreement, rights attach to each share of common stock outstanding
and entitle the registered holder to purchase from Santa Fe Snyder one one-
hundredth of a share of Series A Junior Participating Preferred Stock at a
purchase price of $42, which is subject to adjustment as described in the rights
agreement. Each share of common stock outstanding has one right attached to it.
The rights will separate from the common stock upon the earlier of:
- 10 business days following a public announcement that, subject to certain
exceptions, a person or group of affiliated or associated persons, also
referred to as an acquiring person, has acquired or obtained the right to
acquire beneficial ownership of 15% or more of the outstanding shares of
common stock, with the date of this event referred to as the stock
acquisition date; or
- 10 business days or a later date as may be fixed by the board of
directors following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of the outstanding shares of
common stock.
The date of this event is referred to as the distribution date.
Until the distribution date:
- the rights will be evidenced by common stock certificates with a copy of
a summary of the terms of the rights attached and will be transferred
with and only with common stock certificates;
- new common stock certificates will contain a notation incorporating the
rights agreement by reference; and
- the transfer of any certificates representing outstanding common stock
will also constitute the transfer of the rights associated with common
stock represented by the certificate.
The rights will not be exercisable until the distribution date and will
cease to be exercisable at the close of business on July 25, 1999, unless this
date is extended or unless the rights are earlier redeemed or exchanged by Santa
Fe Snyder, as described below.
If Santa Fe Snyder is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earnings power are sold
after a person or group has become a acquiring person, each holder of a right,
other than rights beneficially owned by a acquiring person which will be void,
will have the right to receive, upon the exercise of the right at the current
exercise price of the right, that
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number of shares of common stock of the acquiring person which at the time of
such transaction will have a market value of two times the exercise price of the
right. In the event that any person or group of affiliated or associated persons
becomes a acquiring person, each holder of a right, other than rights
beneficially owned by the acquiring person which will then be void, will have
the right to receive upon exercise that number of shares of common stock having
a market value of two times the exercise price of the right.
In general, Santa Fe Snyder may redeem the rights in whole, but not in
part, at any time until 10 days following the stock acquisition date, which
period may be extended at any time while the rights are still redeemable, at a
price of $.01 per right, payable in cash, common stock or other consideration
deemed appropriate by the board. Immediately upon the action of the board
ordering redemption of the rights, the rights will terminate and the only right
of the holders of rights will be to receive the $.01 per right redemption price.
Until a right is exercised, the holder of a right will have no rights as a
stockholder of Santa Fe Snyder, including the right to vote or to receive
dividends, due to his status as a holder of a right.
Other than reducing the purchase price of the rights, any of the provisions
of the rights agreement may be amended by the board prior to the distribution
date, without the consent of the holders of the rights, to shorten or lengthen
any time period or otherwise. After the distribution date, the provisions of the
rights agreement may be amended by the board, without the consent of the holders
of the rights, except that:
- no amendment can be made to reduce the purchase price;
- no amendment may adversely affect the interests of the holders of the
rights; and
- the redemption right cannot be reinstated.
DESCRIPTION OF TRUST PREFERRED SECURITIES
Each trust may issue in one or more offerings only one series of trust
preferred securities having terms described in its respective prospectus
supplement. The declaration of each trust authorizes the administrative trustees
to issue on behalf of that trust one series of trust preferred securities. The
declaration, as amended in connection with the sale of trust preferred
securities, will be qualified as an indenture under the Trust Indenture Act.
The trust preferred securities will have such terms, including
distributions, redemption, voting, conversion, exchange, liquidation rights and
such other preferred, deferred or other special rights or such restrictions as
are set forth in the declaration or made part of the declaration by the Trust
Indenture Act. You may refer to the prospectus supplement relating to the trust
preferred securities of the trust for specific terms, including:
- the distinctive designation of the trust preferred securities;
- the number of trust preferred securities issued by each trust;
- the annual distribution rate (or method of determining such rate) for
trust preferred securities issued by the trust and the date or dates upon
which the distributions are payable;
- the date or dates or method of determining the date or dates from which
distributions on trust preferred securities will be cumulative;
- the amount or amounts that will be paid out of the assets of the trust to
the holders of trust preferred securities upon voluntary or involuntary
dissolution, winding-up or termination of the trust;
- the obligation, if any, of the trust to purchase or redeem the trust
preferred securities and the price or prices at which, the period or
periods within which, and the terms and conditions upon which,
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trust preferred securities will be purchased or redeemed, in whole or in
part, pursuant to that obligation;
- the voting rights, if any, of trust preferred securities in addition to
those required by law, including the number of votes per trust preferred
security and any requirement for the approval by the holders of trust
preferred securities, as a condition to specified action or amendments to
the declaration of the trust;
- the terms and conditions, if any, upon which the assets of the trust may
be distributed to holders of trust preferred securities;
- provisions regarding convertibility or exchangeability of the trust
preferred securities for capital stock or debt securities of Santa Fe
Snyder;
- if applicable, any securities exchange upon which the trust preferred
securities will be listed; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of trust preferred securities not inconsistent with the
declaration of the trust or with applicable law.
Santa Fe Snyder will guarantee all trust preferred securities offered to
the limited extent set forth below under "Description of the Trust Preferred
Securities Guarantees."
Any U.S. federal income tax considerations applicable to any offering of
trust preferred securities will be described in the applicable prospectus
supplement.
In connection with the issuance of trust preferred securities, each trust
will issue one series of trust common securities. The declaration of each trust
authorizes the administrative trustees of the trust to issue on behalf of the
trust one series of trust common securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
will be set forth therein. The terms of the trust common securities issued by
each trust will be substantially identical to the terms of the trust preferred
securities issued by the trust. The trust common securities will rank equally,
and payments will be made on the trust common securities pro rata, with the
trust preferred securities. However, upon an event of default under the
declaration, the rights of the holders of the trust common securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the trust
preferred securities. Except in certain limited circumstances, the trust common
securities will also carry the right to vote to appoint, remove or replace any
of the trustees of a trust. All of the trust common securities of each trust
will be directly or indirectly owned by Santa Fe Snyder.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEES
A summary of information concerning the trust guarantees which will be
executed and delivered by Santa Fe Snyder from time to time for the benefit of
the holders of the trust preferred securities is set forth below. Each trust
guarantee will be qualified as an indenture under the Trust Indenture Act. The
Bank of New York will act as the trust guarantee trustee, or indenture trustee,
under each trust guarantee. The terms of each trust guarantee will be those set
forth in that trust guarantee and those made part of that trust guarantee by the
Trust Indenture Act. The following is a summary of the material terms and
provisions of the trust preferred securities guarantees. You should refer to the
provisions of the form of trust guarantee and the Trust Indenture Act. Santa Fe
Snyder has filed the form of trust guarantee as an exhibit to the registration
statement of which this prospectus is a part. Each trust guarantee will be held
by the trust guarantee trustee for the benefit of the holders of the trust
preferred securities of the applicable trust.
GENERAL
Under each trust guarantee, Santa Fe Snyder will irrevocably and
unconditionally agree, to the extent set forth in each applicable trust
guarantee, to pay the trust guarantee payments (as defined below) in full
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to the holders of the trust preferred securities issued by a trust, to the
extent not paid by or on behalf of the applicable trust, as and when due,
regardless of any defense, right of set-off or counterclaim which the trust may
have or assert.
The following payments with respect to trust preferred securities of any
trust to the extent not paid by the trust (the trust guarantee payments), will
be subject to the related trust guarantee on:
- any accrued and unpaid distributions required to be paid on the trust
preferred securities, to the extent that trust will have funds legally
and immediately available for payment;
- the redemption price, including all accrued and unpaid distributions to
the date of redemption, to the extent that trust has funds available
therefor, with respect to any trust preferred securities called for
redemption by that trust; and
- upon dissolution, winding-up or termination of that trust (other than in
connection with the distribution of the assets of that trust to the
holders of trust preferred securities or the redemption of all of the
trust preferred securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the trust
preferred securities to the date of payment, to the extent that trust has
funds available therefor and (b) the amount of assets of that trust
remaining available for distribution to holders of that trust preferred
securities in liquidation of the trust.
Santa Fe Snyder's obligation to make a trust guarantee payment may be
satisfied by Santa Fe Snyder's direct payment of the required amounts to the
holders of the applicable trust preferred securities or by causing the
applicable trust to pay such amounts to such holders.
Each trust guarantee will be a full and unconditional guarantee with
respect to the applicable trust preferred securities, but will not apply to any
payment of distributions when the applicable trust does not have funds legally
and immediately available for such payment. If Santa Fe Snyder does not make
interest payments on the subordinated debt securities purchased by a trust, the
applicable trust will not pay distributions on the trust preferred securities
issued by that trust and will not have funds available for such payment. See
"Description of Debt Securities -- Covenants" included in this prospectus.
Santa Fe Snyder has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the trusts with respect to the
trust common securities (the trust common securities guarantees) to the same
extent as the trust guarantees, except that upon an event of default under the
subordinated indenture relating to the subordinated debt securities purchased by
that trust, holders of trust preferred securities will have priority over
holders of trust common securities with respect to distributions and payments on
liquidation, redemption or otherwise.
COVENANTS
In each trust guarantee, Santa Fe Snyder will covenant that, so long as any
trust preferred securities remain outstanding, if any event that would
constitute an event of default under the trust guarantee or the declaration of
the applicable trust occurs, then Santa Fe Snyder will not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or make
any liquidation payment with respect to, any of its capital stock with certain
exceptions. The exceptions include (1) purchases or acquisitions of shares of
Santa Fe Snyder common stock in connection with or of its obligations under any
employee benefit plans or of its obligations pursuant to any contract or
security requiring Santa Fe Snyder to purchase shares of Santa Fe Snyder common
stock or, (2) the purchase of fractional interests in shares of Santa FeSnyder
capital stock as a result of a reclassification of Santa Fe Snyder capital stock
or the exchange or conversion of one class or series of Santa FeSnyder capital
stock for another class or series of Santa Fe Snyder capital stock or make any
guarantee payments with respect to the foregoing. Additionally, Santa Fe Snyder
will not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities, including guarantees, issued by
Santa Fe Snyder which rank equally with or junior to the subordinated debt
securities.
17
<PAGE> 21
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of trust preferred securities, in which case no vote will be
required, each trust guarantee may be amended only with the prior approval of
the holders of not less than a majority in liquidation amount of the outstanding
trust preferred securities of the applicable trust. The manner of obtaining any
such approval of holders of the trust preferred securities will be described in
an accompanying prospectus supplement. All guarantees and agreements contained
in a trust guarantee will bind the successors, assigns, receivers, trustees and
representatives of Santa Fe Snyder and will inure to the benefit of the holders
of the trust preferred securities of the applicable trust then outstanding.
TERMINATION
Each trust guarantee will terminate as to the trust preferred securities of
the applicable trust upon the first to occur of:
- full payment of the redemption price of all trust preferred securities of
the applicable trust;
- distribution of the assets of the trust to the holders of the trust
preferred securities of the applicable trust; and
- full payment of the amounts payable upon liquidation of the trust in
accordance with the declaration of the trust.
Each trust guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of trust preferred securities
issued by the applicable trust must restore payment of any sums paid under the
trust preferred securities or the trust guarantee.
EVENTS OF DEFAULT
An event of default under a trust guarantee will occur upon the failure of
Santa Fe Snyder to perform any of its payment or other obligations under that
trust guarantee.
The holders of a majority in liquidation amount of the trust preferred
securities to which the trust guarantee relates have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trust guarantee trustee in respect of the trust guarantee or to direct the
exercise of any trust or power conferred upon the trust guarantee trustee under
the trust preferred securities guarantee. If the trust guarantee trustee fails
to enforce the trust guarantee, any holder of trust preferred securities
relating to the trust guarantee may institute a legal proceeding directly
against Santa Fe Snyder to enforce the trust guarantee trustee's rights under
the trust guarantee, without first instituting a legal proceeding against the
relevant trust, the trust guarantee trustee or any other person or entity.
However, if Santa Fe Snyder has failed to make a guarantee payment, a holder of
trust preferred securities may directly institute a proceeding against Santa
FeSnyder for enforcement of the trust guarantee for such payment. Santa Fe
Snyder waives any right or remedy to require that any action be brought first
against the trust or any other person or entity before proceeding directly
against Santa Fe Snyder.
STATUS OF THE TRUST GUARANTEES
The trust guarantees will constitute unsecured obligations of Santa
FeSnyder and will rank
- subordinate and junior in right of payment to all other liabilities of
Santa Fe Snyder, except those obligations or liabilities made equal in
priority or subordinate by their terms;
- equally with the most senior preferred or preference stock that may be
issued by Santa Fe Snyder and with any guarantee that may be entered into
by Santa Fe Snyder in respect of any preferred or preference stock of any
affiliate of Santa Fe Snyder; and
- senior to the Santa Fe Snyder common stock.
18
<PAGE> 22
The terms of the trust preferred securities provide that each holder of
trust preferred securities of the applicable trust, by acceptance thereof,
agrees to the subordination provisions and other terms of the trust guarantee
relating to the applicable trust preferred securities.
The trust guarantees will constitute a guarantee of payment and not of
collection. Accordingly, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under the trust guarantee
without instituting a legal proceeding against any other person or entity.
INFORMATION CONCERNING THE TRUST GUARANTEE TRUSTEE
Prior to the occurrence of a default with respect to a trust guarantee and
after the curing or waiving of all events of default with respect to that trust
guarantee, the trust guarantee trustee undertakes to perform only those duties
as are specifically set forth in that trust guarantee. In case an event of
default has occurred and has not been cured or waived, the guarantee trustee
will exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to these provisions, the trust
guarantee trustee is under no obligation to exercise any of the powers vested in
it by a trust guarantee at the request of any holder of trust preferred
securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby.
Santa Fe Snyder and certain of its affiliates may, from time to time,
maintain a banking relationship with the trust guarantee trustee.
GOVERNING LAW
The trust guarantees will be governed by, and construed in accordance with,
the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
As long as Santa Fe Snyder makes payments of interest and other payments
when due on the subordinated debt securities, those payments will be sufficient
to cover distributions and other payments due on the trust preferred securities,
primarily because:
- the aggregate principal amount of the subordinated debt securities will
be equal to the sum of the aggregate stated liquidation preference of the
trust securities;
- the interest rate and interest and other payment dates of the
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the trust preferred securities;
- Santa Fe Snyder will pay for all and any costs, expenses and liabilities
of the trusts except the trusts' obligations to holders of the trust
preferred securities under the trust preferred securities of the trusts;
and
- the declaration of each trust further provides that the trust will not
engage in any activity that is not consistent with the limited purposes
of the trust.
Payments of distributions and other amounts due on the trust preferred
securities of a trust, to the extent the trust has funds available for the
payment of such distributions, are irrevocably guaranteed by Santa Fe Snyder as
and to the extent set forth under "Description of the Trust Preferred Securities
Guarantees." Taken together, Santa Fe Snyder's obligations under the
subordinated debt securities, the subordinated indenture, the declarations of
the trusts and the trust guarantees provide a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts due on
the trust preferred securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of each of
the trust's obligations under the trust preferred securities. If and to the
extent that Santa Fe Snyder does not make payments on the
19
<PAGE> 23
subordinated debt securities, the trusts will not pay distributions or other
amounts due on the trust preferred securities. The trust guarantees do not cover
payment of distributions when the applicable trust does not have sufficient
funds to pay such distributions. In such event, the remedies of a holder of the
trust preferred securities of the trust are described herein under "Description
of the Trust Preferred Securities Guarantees -- Events of Default." The
obligations of Santa Fe Snyder under the trust guarantees are unsecured and are
subordinate and junior in right of payment to all other liabilities of Santa Fe
Snyder.
Notwithstanding anything to the contrary in the subordinated indenture and
to the extent set forth in the subordinated indenture, Santa Fe Snyder has the
right to set-off any payment it is otherwise required to make under the
subordinated indenture with and to the extent Santa Fe Snyder has theretofore
made, or is concurrently on the date of such payment making, a payment under a
trust guarantee.
A holder of trust preferred securities of a trust may institute a legal
proceeding directly against Santa Fe Snyder to enforce its rights under the
trust guarantee with respect to the trust without first instituting a legal
proceeding against the trust guarantee trustee, the trust or any other person or
entity.
The trust preferred securities of a trust evidence a beneficial interest in
the trust. The trusts exist for the sole purpose of issuing the trust securities
and investing the proceeds of such issuance in subordinated debt securities. A
principal difference between the rights of a holder of trust preferred
securities and a holder of subordinated debt securities is that a holder of
subordinated debt securities is entitled to receive from Santa Fe Snyder the
principal amount of and interest accrued on subordinated debt securities held,
while a holder of trust preferred securities is entitled to receive
distributions from a trust, or from Santa Fe Snyder under the trust guarantee,
if and to the extent the trust has funds available for the payment of such
distributions.
Upon any voluntary or involuntary termination, winding-up or liquidation of
a trust involving the liquidation of the subordinated debt securities, the
holders of the trust preferred securities of the trust will be entitled to
receive, out of assets held by the trust and after satisfaction of liabilities
to creditors of the trust as provided by applicable law, the liquidation
distribution in cash. See "Description of Trust Preferred Securities." Upon any
voluntary or involuntary liquidation or bankruptcy of Santa Fe Snyder, the
property trustees of a trust, as holder of the subordinated debt securities of
the trust, would be a subordinated creditor of Santa Fe Snyder, subordinated in
right of payment to all senior debt of Santa Fe Snyder, but entitled to receive
payment in full of principal and interest, before any stockholders of Santa Fe
Snyder receive payments or distributions. Since Santa Fe Snyder is the guarantor
under the trust guarantees and has agreed to pay for all costs, expenses and
liabilities of the trusts other than the trusts' obligations to the holders of
the trust preferred securities, the positions of a holder of trust preferred
securities and a holder of subordinated debt securities relative to other
creditors and to shareholders of Santa Fe Snyder in the event of liquidation or
bankruptcy of Santa Fe Snyder would be substantially the same.
A default or event of default under any senior debt of Santa Fe Snyder will
not constitute a default or event of default under the subordinated indenture.
However, in the event of payment defaults under, or acceleration of, senior debt
of Santa Fe Snyder, the subordination provisions of the subordinated indenture
provide that no payments may be made in respect of the subordinated debt
securities until senior debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on the
subordinated debt securities would constitute an event of default under the
subordinated indenture with respect thereto.
LEGAL OPINIONS
The legality of the securities will be passed upon for us by Andrews &
Kurth L.L.P., Houston, Texas. If the securities are being distributed in an
underwritten offering, certain legal matters will be passed upon for the
underwriters by counsel identified in the related prospectus supplement.
20
<PAGE> 24
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K/A of Santa Fe Energy Resources, Inc. for the year
ended December 31, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The financial statements incorporated in this prospectus by reference to
Snyder Oil Corporation's Annual Report on Form 10-K/A, for the year ended
December 31, 1998, have been so incorporated in reliance on the report of Arthur
Andersen LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
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<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions, are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $139,000
*Legal Fees and Expenses.................................... 50,000
*Accountants' Fees and Expenses............................. 100,000
*Trustee's Fees and Expenses................................ 10,000
*Printing and Engraving Expenses............................ 200,000
*Rating Agency Fees......................................... 10,000
*State Qualification Expenses (including legal fees)........ 4,000
*Miscellaneous.............................................. 7,000
--------
Total............................................. $520,000
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS OF SANTA FE SNYDER
CORPORATION.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware empowers a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
or in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; that indemnification provided by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
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<PAGE> 26
ceased to be a director, officer, employee or agent and shall inure to the
benefit of such person's heirs, executors and administrators; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (1) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (2) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (3) under Section
174 of the Delaware General Corporation Law or (4) for any transaction from
which the director derived an improper personal benefit.
Article NINTH of Santa Fe Snyder's Restated Certificate of Incorporation
states that:
"No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty by such director as a director; provided, however, that this
Article NINTH shall not eliminate or limit the liability of a director to
the extent provided by applicable law (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware or (iv) for any transaction from
which the director derived an improper personal benefit. No amendment to or
repeal of this Article NINTH shall apply to, or have any effect on, the
liability or alleged liability of any director of the Corporation for or
with respect to any facts or omissions of such director occurring prior to
such amendment or repeal. If the General Corporation Law of the State of
Delaware is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware,
as so amended."
Article VI of Santa Fe Snyder's Bylaws further provides that Santa FeSnyder
shall indemnify its officers, directors, employees and agents to the fullest
extent permitted by law. Pursuant to such provision, Santa Fe Snyder has entered
into agreements with various of its officers, directors and employees which
provide for indemnification of such persons.
In addition, Santa Fe Snyder and certain other persons may be entitled
under agreements entered into with agents or underwriters to indemnification by
such agents or underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, or to contribution with respect to payments
which Santa Fe Snyder or such persons may be required to make in respect
thereof.
INDEMNIFICATION OF TRUSTEES OF SFS CAPITAL TRUST I AND SFS CAPITAL TRUST II
The declaration of each trust, as amended and restated in connection with
any offer and sale of preferred stock of the trust, will provide that no
administrative trustee, or affiliate of any administrative trustee, or officer,
director, shareholder, member, partner, employee, representative or agent of any
administrative trustee or of any such affiliate, or employee or agent of the
trust or its affiliates (each an indemnified person) shall be liable,
responsible or accountable in damages or otherwise to the trust or any employee
or agent of the trust or its affiliates for any loss, damage or claim incurred
by reason of any act or omission performed or omitted by such indemnified person
in good faith on behalf of the trust and in a manner such indemnified person
reasonably believed to be within the scope of the authority conferred on such
indemnified person by such declaration, as amended, or by law, except that an
indemnified person shall be liable for any such loss, damage or claim incurred
by reason of such indemnified person's gross negligence or willful misconduct
with respect to such act or omission.
II-2
<PAGE> 27
The declaration will also provide that to the fullest extent permitted by
applicable law, Santa Fe Snyder shall indemnify and hold harmless each
indemnified person from and against any loss, damage or claim incurred by such
indemnified person by reason of any act or omission performed or omitted by such
indemnified person in good faith on behalf of the trust and in a manner such
indemnified person reasonably believed to be within the scope of authority
conferred on such indemnified person by the declaration, except that no
indemnified person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such indemnified person by reason of gross
negligence or willful misconduct with respect to such act or omission.
The declaration will further provide that, to the fullest extent permitted
by applicable law, expenses (including legal fees) incurred by an indemnified
person in defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by Santa Fe Snyder prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt of an undertaking by
or on behalf of the indemnified person to repay such amount if it shall be
determined that the indemnified person is not entitled to be indemnified for the
underlying cause of action as authorized by such declaration.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<C> <S>
*1.1 -- Form of Debt Securities Underwriting Agreement.
*1.2 -- Form of Equity Securities Underwriting Agreement.
*1.3 -- Form of Trust Preferred Securities Underwriting
Agreement.
*4.1 -- Form of Senior Indenture (including form of Senior Debt
Security).
*4.2 -- Form of Subordinated Indenture (including form of Senior
Subordinated Debt Security).
**4.3 -- Certificate of Trust of SFS Capital Trust I.
**4.4 -- Declaration of Trust of SFS Capital Trust I dated as of
May 11, 1999.
**4.5 -- Certificate of Trust of SFS Capital Trust II.
**4.6 -- Declaration of Trust of SFS Capital Trust II dated as of
May 11, 1999.
*4.7 -- Form of Trust Preferred Securities Guarantee Agreement to
be issued by Santa Fe Snyder (Agreements for SFS Capital
Trust I and SFS Capital Trust II are substantially
identical except for names and dates).
4.8 -- Restated Certificate of Incorporation of Santa Fe Snyder,
as amended on May 5, 1999 (filed as Exhibit 3.1 to Santa
Fe Snyder's Registration Statement on Form 8-A/A filed on
May 11, 1999 and incorporated by reference herein).
4.9 -- Bylaws of Santa Fe Snyder, as amended September 1, 1998
and May 5, 1999 (filed as Exhibit 3.2 to Santa Fe
Snyder's Registration Statement on Form 8-A/ A filed on
May 11, 1999 and incorporated by reference herein).
4.10 -- Rights Agreement dated as of March 3, 1997, between Santa
Fe and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 1 to Santa
Fe's Registration Statement on Form 8-A filed February
28, 1997).
4.11 -- First Amendment to Rights Agreement dated May 5, 1999
between Santa Fe and First Chicago Trust of New York, as
Rights Agent (filed as Exhibit 3.3 to Santa Fe Snyder's
Registration Statement on Form 8-A/A filed on May 11,
1999 and incorporated by reference herein).
4.12 -- Form of Indenture dated as of May 25, 1994 and Form of
Debenture relating to Santa Fe's 11% Senior Subordinated
Debentures due 2004 (incorporated by reference to Exhibit
4.1 of the Form S-3 registration statement of Santa Fe
(File No. 33-52849)).
</TABLE>
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<PAGE> 28
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<C> <S>
4.13 -- First Supplemental Indenture, dated as of October 21
1996, between Santa Fe and State Street Bank and Trust
Company, as Trustee, relating to Santa Fe's 11% Senior
Subordinated Debentures due 2004 (incorporated by
reference to Exhibit 10.1 to Santa Fe's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1996).
4.14 -- Indenture dated as of June 10, 1997 between Snyder Oil
Corporation and Texas Commerce Bank National Association
relating to Snyder Oil Corporation's 8 3/4% Senior
Subordinated Notes due 2007 (incorporated by reference
from Exhibit 4.1 to Snyder Oil Corporation's Current
Report on Form 8-K dated June 10, 1997 (File No.
1-10509)).
4.15 -- First Supplemental Indenture dated as of June 10, 1997 to
Indenture dated as of June 10, 1997 (incorporated by
reference from Exhibit 4.2 to Snyder Oil Corporation's
Current Report on Form 8-K dated June 10, 1997 (File No.
1-10509)).
4.16 -- Second Supplemental Indenture dated as of June 10, 1997
to Indenture dated as of June 10, 1997 (incorporated by
reference from Exhibit 4.3 to Snyder Oil Corporation's
Current Report on Form 8-K dated June 10, 1997 (File No.
1-10509)).
*5.1 -- Opinion of Andrews & Kurth L.L.P. with respect to
legality of the securities
*5.2 -- Opinion of Potter Andersen & Corroon LLP as to the
legality of the Trust Preferred Securities.
*8.1 -- Opinion of Andrews & Kurth L.L.P. as to federal income
tax matters.
**12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements.
23.1 -- Consent of Andrews & Kurth L.L.P. (included as part of
Exhibits 5.1 and 8.1).
23.2 -- Consent of Potter Andersen & Corroon LLP (included as
part of Exhibit 5.2).
**23.3 -- Consent of Arthur Andersen L.L.P.
**23.4 -- Consent of PricewaterhouseCoopers LLP.
24.1 -- Power of Attorney of Directors and Officers of the
Registrant (included on Registration Statement Signature
Page).
*25.1 -- Form T-1 Statement of Eligibility of Trustee for the
Senior Debt Securities.
*25.2 -- Form T-1 Statement of Eligibility of Trustee for the
Subordinated Debt Securities.
</TABLE>
- ---------------
* To be filed as an exhibit to Santa Fe Snyder's Current Report on Form 8-K in
connection with a specific offering.
** Filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
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 value of
securities offered would not
II-4
<PAGE> 29
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
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by Santa Fe Snyder pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) 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.
(3) 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of Santa Fe Snyder's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the 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.
(5) 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 of 1939 in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
of the Registrants pursuant to the provisions of Item 15. of this Registration
Statement, or otherwise, each 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 Santa Fe Snyder of expenses incurred or
paid by a director, officer or controlling person of each of the Registrants 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, each 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.
II-5
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on May 11, 1999.
SANTA FE SNYDER CORPORATION
By: /s/ JAMES L. PAYNE
----------------------------------
James L. Payne
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
James L. Payne, Mark A. Jackson and David L. Hicks, and each of them, his true
and lawful attorney-in-fact and agent, with full powers of substitution, for him
and in his name, place and stead, in any and all capacities, to sign and to file
any and all amendments, including post-effective amendments, to this
registration statement with the Securities and Exchange Commission granting to
said attorney-in-fact power and authority to perform any other act on behalf of
the undersigned required to be done in connection therewith.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOHN C. SNYDER Chairman of the Board and Director May 11, 1999
- -----------------------------------------------------
John C. Snyder
/s/ JAMES L. PAYNE Chief Executive Officer and Director May 11, 1999
- ----------------------------------------------------- (Principal Executive Officer)
James L. Payne
/s/ MARK A. JACKSON Executive Vice President and Chief May 11, 1999
- ----------------------------------------------------- Financial Officer (Principal
Mark A. Jackson Financial Officer)
/s/ MICHAEL S. WILKES Vice President and Controller May 11, 1999
- ----------------------------------------------------- (Principal Accounting Officer)
Michael S. Wilkes
/s/ WILLIAM E. GREEHEY Director May 11, 1999
- -----------------------------------------------------
William E. Greehey
/s/ JOHN A. HILL Director May 11, 1999
- -----------------------------------------------------
John A. Hill
/s/ MELVYN N. KLEIN Director May 11, 1999
- -----------------------------------------------------
Melvyn N. Klein
</TABLE>
II-6
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ HAROLD R. LOGAN, JR. Director May 11, 1999
- -----------------------------------------------------
Harold R. Logan, Jr.
/s/ ALLAN V. MARTINI Director May 11, 1999
- -----------------------------------------------------
Allan V. Martini
/s/ JAMES E. MCCORMICK Director May 11, 1999
- -----------------------------------------------------
James E. McCormick
/s/ REUBEN F. RICHARDS Director May 11, 1999
- -----------------------------------------------------
Reuben F. Richards
/s/ EDWARD T. STORY Director May 11, 1999
- -----------------------------------------------------
Edward T. Story
/s/ KATHRYN D. WRISTON Director May 11, 1999
- -----------------------------------------------------
Kathryn D. Wriston
</TABLE>
II-7
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, SFS
Capital Trust I certifies that it has reasonable grounds to believe that it
meets the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on May 11, 1999.
SFS Capital Trust I
By: Santa Fe Snyder Corporation, as
Sponsor
By: /s/ MARK A. JACKSON
----------------------------------
Mark A. Jackson
Executive Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, SFS
Capital Trust II certifies that it has reasonable grounds to believe that it
meets the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on May 11, 1999.
SFS Capital Trust II
By: Santa Fe Snyder Corporation, as
Sponsor
By: /s/ MARK A. JACKSON
----------------------------------
Mark A. Jackson
Executive Vice President and Chief
Financial Officer
II-8
<PAGE> 33
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<C> <S>
*1.1 -- Form of Debt Securities Underwriting Agreement.
*1.2 -- Form of Equity Securities Underwriting Agreement.
*1.3 -- Form of Trust Preferred Securities Underwriting
Agreement.
*4.1 -- Form of Senior Indenture (including form of Senior Debt
Security).
*4.2 -- Form of Subordinated Indenture (including form of Senior
Subordinated Debt Security).
**4.3 -- Certificate of Trust of SFS Capital Trust I.
**4.4 -- Declaration of Trust of SFS Capital Trust I dated as of
May 11, 1999.
**4.5 -- Certificate of Trust of SFS Capital Trust II.
**4.6 -- Declaration of Trust of SFS Capital Trust II dated as of
May 11, 1999.
*4.7 -- Form of Trust Preferred Securities Guarantee Agreement to
be issued by Santa Fe Snyder (Agreements for SFS Capital
Trust I and SFS Capital Trust II are substantially
identical except for names and dates).
4.8 -- Restated Certificate of Incorporation of Santa Fe Snyder,
as amended on May 5, 1999 (filed as Exhibit 3.1 to Santa
Fe Snyder's Registration Statement on Form 8-A/A filed on
May 11, 1999 and incorporated by reference herein).
4.9 -- Bylaws of Santa Fe Snyder, as amended September 1, 1998
and May 5, 1999 (filed as Exhibit 3.2 to Santa Fe
Snyder's Registration Statement on Form 8-A/A filed on
May 11, 1999 and incorporated by reference herein).
4.10 -- Rights Agreement dated as of March 3, 1997, between Santa
Fe and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 1 to Santa
Fe's Registration Statement on Form 8-A filed February
28, 1997).
4.11 -- Amendment No. 1 to Rights Agreement dated May 5, 1999
between Santa Fe and First Chicago Trust of New York, as
Rights Agent (filed as Exhibit 3.3 to Santa Fe Snyder's
Registration Statement on Form 8-A/A filed on May 11,
1999 and incorporated by reference herein).
4.12 -- Form of Indenture dated as of May 25, 1994 and Form of
Debenture relating to Santa Fe's 11% Senior Subordinated
Debentures due 2004 (incorporated by reference to Exhibit
4.1 of the Form S-3 registration statement of Santa Fe
(File No. 33-52849)).
4.13 -- First Supplemental Indenture, dated as of October 21
1996, between Santa Fe and State Street Bank and Trust
Company, as Trustee, relating to Santa Fe's 11% Senior
Subordinated Debentures due 2004 (incorporated by
reference to Exhibit 10.1 to Santa Fe's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1996).
4.14 -- Indenture dated as of June 10, 1997 between Snyder Oil
Corporation and Texas Commerce Bank National Association
relating to Snyder Oil Corporation's 8 3/4% Senior
Subordinated Notes due 2007 (incorporated by reference
from Exhibit 4.1 to Snyder Oil Corporation's Current
Report on Form 8-K dated June 10, 1997 (File No.
1-10509)).
4.15 -- First Supplemental Indenture dated as of June 10, 1997 to
Indenture dated as of June 10, 1997 (incorporated by
reference from Exhibit 4.2 to Snyder Oil Corporation's
Current Report on Form 8-K dated June 10, 1997 (File No.
1-10509)).
</TABLE>
<PAGE> 34
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<C> <S>
4.16 -- Second Supplemental Indenture dated as of June 10, 1997
to Indenture dated as of June 10, 1997 (incorporated by
reference from Exhibit 4.3 to Snyder Oil Corporation's
Current Report on Form 8-K dated June 10, 1997 (File No.
1-10509)).
*5.1 -- Opinion of Andrews & Kurth L.L.P. with respect to
legality of the securities.
*5.2 -- Opinion of Potter Andersen & Corroon LLP as to the
legality of the Trust Preferred Securities.
*8.1 -- Opinion of Andrews & Kurth L.L.P. as to federal income
tax matters.
**12.1 -- Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividend Requirements.
23.1 -- Consent of Andrews & Kurth L.L.P. (included as part of
Exhibits 5.1 and 8.1).
23.2 -- Consent of Potter Andersen & Corroon LLP (included as
part of Exhibit 5.2).
**23.3 -- Consent of Arthur Andersen L.L.P.
**23.4 -- Consent of PricewaterhouseCoopers LLP.
24.1 -- Power of Attorney of Directors and Officers of the
Registrant (included on Registration Statement Signature
Page).
*25.1 -- Form T-1 Statement of Eligibility of Trustee for the
Senior Debt Securities.
*25.2 -- Form T-1 Statement of Eligibility of Trustee for the
Subordinated Debt Securities.
</TABLE>
- ---------------
* To be filed as an exhibit to Santa Fe Snyder's Current Report on Form 8-K in
connection with a specific offering.
** Filed herewith.
<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF TRUST
OF
SFS CAPITAL TRUST I
This Certificate of Trust is being duly executed and filed on
behalf of the business trust formed hereby by the undersigned, being the
trustees of the Trust, to form a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et seq.).
ARTICLE I
The name of the business trust formed hereby is SFS Capital
Trust I (the "Trust").
ARTICLE II
The name and business address of the trustee of the Trust
which has its principal place of business in the State of Delaware are as
follows:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
ARTICLE III
This Certificate of Trust shall become effective upon filing
in the Office of the Secretary of State of Delaware.
ARTICLE IV
This Certificate of Trust may contain more than one
counterpart of the signature page and this Certificate of Trust may be executed
by the affixing of the signature of each of the trustees to one of such
counterpart signature pages. All such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Trust as of this 11th day of May, 1999.
THE BANK OF NEW YORK (DELAWARE)
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Fred Clark
---------------------------------------
Name: Fred Clark
Title: Authorized Signatory
/s/ Mark A. Jackson
------------------------------------------
Name: Mark A. Jackson
not in his individual capacity but
solely as Trustee
/s/ David L. Hicks
------------------------------------------
Name: David L. Hicks
not in his individual capacity but
solely as Trustee
-2-
<PAGE> 1
EXHIBIT 4.4
TRUST AGREEMENT
OF
SFS CAPITAL TRUST I
TRUST AGREEMENT ("Declaration") dated and effective as of May
11, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish SFS
Capital Trust I (the "Trust") pursuant to the Delaware Business Trust Act for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Subordinated Debt Securities of the Subordinated
Debt Issuer;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Trust Agreement as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice
versa.
<PAGE> 2
"Administrative Trustee" means any Trustee other than the
Delaware Trustee.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which
banking institutions in New York, New York are authorized or required by law to
close.
"Certificate of Trust" shall mean the certificate of trust to
be filed pursuant to Section 3810 of the Business Trust Act.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"Common Security Holder" means the Parent, as the owner of
the Common Securities.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Administrative Trustee; or (d) any employee or agent of the Trust
or its Affiliates.
"Covered Person" means (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates and (b) any holder of Securities.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Sections 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
-2-
<PAGE> 3
"Indenture" means the indenture to be entered into between
the Parent and the Subordinated Debt Trustee and any indenture supplemental
thereto pursuant to which the Subordinated Debt Securities are to be issued or
governed.
"Offering Circular" has the meaning set forth in Section
2.6(b)(i).
"Parent" means Santa Fe Snyder Corporation, a Delaware
corporation or any successor entity in a merger, consolidation or similar
reorganization.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PORTAL" has the meaning set forth in Section 2.6(b)(iii).
"Preferred Security" means a security representing an
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in this Declaration or in any amendment or restatement hereof.
"Preferred Security Holders" means the persons acquiring
Preferred Securities and holding the same, from time to time.
"Purchase Agreement" means the Purchase Agreement by and
among the Parent, the Trust, and Salomon Smith Barney Inc. as representative of
the several Purchasers (as defined therein).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Subordinated Debt Issuer" means the Parent in its capacity
as the issuer of the Subordinated Debt Securities under the Indenture.
"Subordinated Debt Securities" means the Subordinated Debt
Securities to be issued by the Subordinated Debt Issuer and acquired by the
Trust.
"Subordinated Debt Trustee" means The Bank of New York, as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
-3-
<PAGE> 4
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
Section 2.1 Name.
The Trust created by this Declaration is named "SFS Capital
Trust I." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrative Trustees.
Section 2.2 Office.
The address of the principal office of the Trust is
1616 South Voss Road, Houston, Texas 77057. At any time, the Administrative
Trustees may designate another principal office of the Trust.
Section 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Subordinated Debt Securities, (b) to distribute the Trust's income as provided
in this Declaration or any amendment or restatement hereof and (c) except as
otherwise limited herein, to engage in only those other activities necessary,
or incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
Section 2.4 Declaration and Authority.
(a) The Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration. The
Sponsor hereby contributes the sum of $10 to be held by the Trustees hereunder
and to which all other assets of the Trust, from time to time, shall be added.
(b) Subject to the limitations provided in this Declaration,
the Administrative Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the Administrative
Trustees in accordance with their powers shall constitute the act
-4-
<PAGE> 5
of and serve to bind the Trust. In dealing with the Administrative Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Administrative Trustees as set forth in this Declaration.
Section 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
Section 2.6 Powers of the Trustees.
The Administrative Trustees shall have the exclusive power
and authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided, further, that there shall
be no interests in the Trust other the Securities and the issuance of the
Securities shall be limited to the simultaneous issuance of both Preferred and
Common Securities on the date the Preferred Securities are initially sold and
any other date Preferred Securities and Common Securities are sold pursuant to
any over-allotment option granted by the Trust under the Purchase Agreement;
(b) in connection with the issuance and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) permit the use of an offering circular (the "Offering
Circular") in preliminary and final form prepared by the Sponsor, in
relation to the offering and sale of Preferred Securities to qualified
institutional buyers in reliance on Rule 144A under the Securities Act
and outside the United States to non-U.S. persons in offshore
transactions in reliance on Regulation S under the Securities Act and
to execute and file with the Commission, at such time as determined by
the Sponsor, a registration statement filed on Form S-3 prepared by
the Sponsor, including any amendments thereto in relation to the
Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the Private Offerings, Resale and Trading through
Automated Linkages ("PORTAL") market and, at such time as determined
by the Sponsor to the New York Stock Exchange or any other
-5-
<PAGE> 6
national stock exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(iv) execute and enter into the Purchase Agreement and
pricing agreement providing for the sale of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
Section 2.7 Filing of Certificate of Trust.
On the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
Section 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for forty-five (45) years from the date
hereof.
Section 2.9 Responsibilities of the Sponsor.
In connection with the issuance and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Administrative Trustee on
behalf of Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale of all or part of the Preferred
Securities or the Common Securities and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust of actions it
must take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
-6-
<PAGE> 7
(c) to prepare for filing by the Trust an application to
PORTAL for listing upon notice of issuance of any Preferred Securities;
(d) negotiate the terms of the Purchase Agreement providing
for the sale of the Preferred Securities.
Section 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a
Security or any interest therein in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
ARTICLE III
TRUSTEES
Section 3.1 Trustees.
The number of Trustees initially shall be three (3), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
however, that the number of Trustees shall in no event be less than two (2);
provided, however, that one Trustee, in the case of a natural person, shall be
a person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of
Delaware (the "Delaware Trustee"); provided further that there shall be at
least one trustee who is an employee or officer of, or is affiliated with the
Parent (an "Administrative Trustee").
Section 3.2 Administrative Trustees.
The initial Administrative Trustees shall be:
Mark A. Jackson
David L. Hicks
(a) Except as expressly set forth in this Declaration, any
power of the Administrative Trustees may be exercised by, or with the consent
of, any one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative
Trustees, and except as otherwise required by the Delaware Business Trust Act,
any Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6 provided, that, the
registration
-7-
<PAGE> 8
statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by either one of the Administrative
Trustees; and
(c) an Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Administrative Trustees have power and authority to cause the Trust to execute
pursuant to Section 2.6.
Section 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of section 3807 of the Delaware Business Trust Act. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable for
the acts or omissions to act of the Trust or of the Administrative Trustees
except such acts as the Delaware Trustee is expressly obligated or authorized
to undertake under this Declaration or the Delaware Business Trust Act and
except for the gross negligence or willful misconduct of the Delaware Trustee.
Section 3.4 Not Responsible for Recitals or Sufficiency of
Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration.
Section 3.5 Compensation of Trustees.
The Sponsor agrees:
(a) to pay the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
-8-
<PAGE> 9
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) To the fullest extent possible the parties intend that
Section 3561 of Title 12 of the Delaware Code shall not apply to the Trust and
that compensation paid pursuant to Section 3.5(a) not be subject to review by
any court under Section 3560 of Title 12 of the Delaware Code.
ARTICLE IV
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
Section 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Securities might properly be
paid.
Section 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an
-9-
<PAGE> 10
Indemnified Person otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities
of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 4.3 Indemnification.
The Sponsor agrees, to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person
-10-
<PAGE> 11
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
Section 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures or
the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION,
MISCELLANEOUS
Section 5.1 Amendments.
At any time before the issuance of any Securities, this
Declaration may be amended or restated by, and only by, a written instrument
executed by all of the Administrative Trustees and the Sponsor, provided,
however, that no such amendment shall modify the duties of the Delaware Trustee
without the execution of such Delaware Trustee of such amendment or
restatement, as the case may be.
Section 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a Certificate of Dissolution or its
equivalent with respect to the Sponsor or the failure of the Sponsor
to revive its Charter within ten (10) days following the revocation of
the Sponsor's charter or of the Trust's Certificate of Trust;
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<PAGE> 12
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor, or the Trust;
(iv) before the issuance of any Securities, with the consent
of all of the Administrative Trustees and the Sponsor; and
(b) as soon an is practicable after the occurrence of an
event referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
Section 5.3 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State
of Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws. The provisions of Section 3540 of
Title 12 of the Delaware Code shall not apply to the Trust.
Section 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference and do not affect the interpretation of this
Declaration or any provision hereof.
Section 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
Section 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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<PAGE> 13
IN WITNESS WHEREOF, the undersigned has caused these present
to be executed as of the day and year above written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely as
Delaware Trustee
By: /s/ FRED CLARK
--------------------------------------------
Name: Fred Clark
Title: Authorized Signatory
/s/ MARK A. JACKSON
----------------------------------------------,
Mark A. Jackson, not in his individual
capacity, but solely as Administrative Trustee
/s/ DAVID L. HICKS
----------------------------------------------,
David L. Hicks, not in his individual capacity,
but solely as Administrative Trustee
SANTA FE SNYDER CORPORATION,
as Sponsor
By: /s/ DAVID L. HICKS
--------------------------------------------
Name: David L. Hicks
Title: Vice President-Law and
General Counsel
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<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF TRUST
OF
SFS CAPITAL TRUST II
This Certificate of Trust is being duly executed and filed on
behalf of the business trust formed hereby by the undersigned, being the
trustees of the Trust, to form a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et seq.).
ARTICLE I
The name of the business trust formed hereby is SFS Capital
Trust II (the "Trust").
ARTICLE II
The name and business address of the trustee of the Trust
which has its principal place of business in the State of Delaware are as
follows:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
ARTICLE III
This Certificate of Trust shall become effective upon filing
in the Office of the Secretary of State of Delaware.
ARTICLE IV
This Certificate of Trust may contain more than one
counterpart of the signature page and this Certificate of Trust may be executed
by the affixing of the signature of each of the trustees to one of such
counterpart signature pages. All such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Trust as of this 11th day of May, 1999.
THE BANK OF NEW YORK (DELAWARE)
not in its individual capacity but solely as
Delaware Trustee
By: /s/ FRED CLARK
-----------------------------------------
Name: Fred Clark
Title: Authorized Signatory
/s/ MARK A. JACKSON
--------------------------------------------
Name: Mark A. Jackson
not in his individual capacity but
solely as Trustee
/s/ DAVID L. HICKS
--------------------------------------------
Name: David L. Hicks
not in his individual capacity but
solely as Trustee
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<PAGE> 1
EXHIBIT 4.6
TRUST AGREEMENT
OF
SFS CAPITAL TRUST II
TRUST AGREEMENT ("Declaration") dated and effective as of May
11, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish SFS
Capital Trust II (the "Trust") pursuant to the Delaware Business Trust Act for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Subordinated Debt Securities of the Subordinated
Debt Issuer;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Trust Agreement as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections
are to Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice
versa.
<PAGE> 2
"Administrative Trustee" means any Trustee other than the
Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Certificate of Trust" shall mean the certificate of trust to be
filed pursuant to Section 3810 of the Business Trust Act.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust having such rights and with
terms as may be set out in this Declaration or in any amendment or restatement
hereof.
"Common Security Holder" means the Parent, as the owner of the
Common Securities.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or
agents of any Administrative Trustee; or (d) any employee or agent of the Trust
or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Sections 3801 et seq., as it may be amended
from time to time, or any successor legislation.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
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<PAGE> 3
"Indenture" means the indenture to be entered into between the
Parent and the Subordinated Debt Trustee and any indenture supplemental thereto
pursuant to which the Subordinated Debt Securities are to be issued or
governed.
"Offering Circular" has the meaning set forth in Section
2.6(b)(i).
"Parent" means Santa Fe Snyder Corporation, a Delaware
corporation or any successor entity in a merger, consolidation or similar
reorganization.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PORTAL" has the meaning set forth in Section 2.6(b)(iii).
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in this Declaration or in any amendment or restatement hereof.
"Preferred Security Holders" means the persons acquiring
Preferred Securities and holding the same, from time to time.
"Purchase Agreement" means the Purchase Agreement by and among
the Parent, the Trust, and Salomon Smith Barney Inc. as representative of the
several Purchasers (as defined therein).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Subordinated Debt Issuer" means the Parent in its capacity as
the issuer of the Subordinated Debt Securities under the Indenture.
"Subordinated Debt Securities" means the Subordinated Debt
Securities to be issued by the Subordinated Debt Issuer and acquired by the
Trust.
"Subordinated Debt Trustee" means The Bank of New York, as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
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<PAGE> 4
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
Section 2.1 Name.
The Trust created by this Declaration is named "SFS Capital
Trust II." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrative Trustees.
Section 2.2 Office.
The address of the principal office of the Trust is 1616 South
Voss Road, Houston, Texas 77057. At any time, the Administrative Trustees may
designate another principal office of the Trust.
Section 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Subordinated Debt Securities, (b) to distribute the Trust's income as provided
in this Declaration or any amendment or restatement hereof and (c) except as
otherwise limited herein, to engage in only those other activities necessary,
or incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
Section 2.4 Declaration and Authority.
(a) The Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration. The
Sponsor hereby contributes the sum of $10 to be held by the Trustees hereunder
and to which all other assets of the Trust, from time to time, shall be added.
(b) Subject to the limitations provided in this Declaration, the
Administrative Trustees shall have exclusive and complete authority to carry
out the purposes of the Trust. An action taken by the Administrative Trustees
in accordance with their powers shall constitute the act
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<PAGE> 5
of and serve to bind the Trust. In dealing with the Administrative Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Administrative Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Administrative Trustees as set forth in this Declaration.
Section 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
Section 2.6 Powers of the Trustees.
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided, further, that there shall
be no interests in the Trust other the Securities and the issuance of the
Securities shall be limited to the simultaneous issuance of both Preferred and
Common Securities on the date the Preferred Securities are initially sold and
any other date Preferred Securities and Common Securities are sold pursuant to
any over-allotment option granted by the Trust under the Purchase Agreement;
(b) in connection with the issuance and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) permit the use of an offering circular (the "Offering
Circular") in preliminary and final form prepared by the Sponsor, in
relation to the offering and sale of Preferred Securities to
qualified institutional buyers in reliance on Rule 144A under the
Securities Act and outside the United States to non-U.S. persons in
offshore transactions in reliance on Regulation S under the
Securities Act and to execute and file with the Commission, at such
time as determined by the Sponsor, a registration statement filed on
Form S-3 prepared by the Sponsor, including any amendments thereto in
relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the Private Offerings, Resale and Trading through Automated
Linkages ("PORTAL") market and, at such time as determined by the
Sponsor to the New York Stock Exchange or any other
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<PAGE> 6
national stock exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(iv) execute and enter into the Purchase Agreement and pricing
agreement providing for the sale of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors, advisors, and
consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
Section 2.7 Filing of Certificate of Trust.
On the date of execution of this Declaration, the Trustees shall
cause the filing of the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A with the Secretary of State of the State of Delaware.
Section 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for forty-five (45) years from the
date hereof.
Section 2.9 Responsibilities of the Sponsor.
In connection with the issuance and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Administrative Trustee on
behalf of Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action
to qualify or register for sale of all or part of the Preferred Securities or
the Common Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
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<PAGE> 7
(c) to prepare for filing by the Trust an application to
PORTAL for listing upon notice of issuance of any Preferred Securities;
(d) negotiate the terms of the Purchase Agreement providing for
the sale of the Preferred Securities.
Section 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
Section 3.1 Trustees.
The number of Trustees initially shall be three (3), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
however, that the number of Trustees shall in no event be less than two (2);
provided, however, that one Trustee, in the case of a natural person, shall be
a person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of
Delaware (the "Delaware Trustee"); provided further that there shall be at
least one trustee who is an employee or officer of, or is affiliated with the
Parent (an "Administrative Trustee").
Section 3.2 Administrative Trustees.
The initial Administrative Trustees shall be:
Mark A. Jackson
David L. Hicks
(a) Except as expressly set forth in this Declaration, any power
of the Administrative Trustees may be exercised by, or with the consent of, any
one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Delaware Business Trust Act, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 2.6 provided, that, the
registration
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<PAGE> 8
statement referred to in Section 2.6(b)(i), including any amendments thereto,
shall be signed by either one of the Administrative Trustees; and
(c) an Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Administrative Trustees have power and authority to cause the Trust to execute
pursuant to Section 2.6.
Section 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable for
the acts or omissions to act of the Trust or of the Administrative Trustees
except such acts as the Delaware Trustee is expressly obligated or authorized to
undertake under this Declaration or the Delaware Business Trust Act and except
for the gross negligence or willful misconduct of the Delaware Trustee.
Section 3.4 Not Responsible for Recitals or Sufficiency of
Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
Section 3.5 Compensation of Trustees.
The Sponsor agrees:
(a) to pay the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
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<PAGE> 9
(b) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) To the fullest extent possible the parties intend that
Section 3561 of Title 12 of the Delaware Code shall not apply to the Trust and
that compensation paid pursuant to Section 3.5(a) not be subject to review by
any court under Section 3560 of Title 12 of the Delaware Code.
ARTICLE IV
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
Section 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of Securities might properly be paid.
Section 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an
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<PAGE> 10
Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest
of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or another express standard, the
Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 4.3 Indemnification.
The Sponsor agrees, to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person
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<PAGE> 11
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
Section 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures or
the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION,
MISCELLANEOUS
Section 5.1 Amendments.
At any time before the issuance of any Securities, this
Declaration may be amended or restated by, and only by, a written instrument
executed by all of the Administrative Trustees and the Sponsor, provided,
however, that no such amendment shall modify the duties of the Delaware Trustee
without the execution of such Delaware Trustee of such amendment or
restatement, as the case may be.
Section 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a Certificate of Dissolution or its
equivalent with respect to the Sponsor or the failure of the Sponsor
to revive its Charter within ten (10) days following the revocation
of the Sponsor's charter or of the Trust's Certificate of Trust;
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<PAGE> 12
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust;
(iv) before the issuance of any Securities, with the consent of
all of the Administrative Trustees and the Sponsor; and
(b) as soon an is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
Section 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws. The provisions of Section 3540 of
Title 12 of the Delaware Code shall not apply to the Trust.
Section 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference and do not affect the interpretation of this
Declaration or any provision hereof.
Section 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
-12-
<PAGE> 13
IN WITNESS WHEREOF, the undersigned has caused these present to
be executed as of the day and year above written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity, but solely as
Delaware Trustee
By: /s/ Fred Clark
--------------------------------------------
Name: Fred Clark
Title: Authorized Signatory
/s/ Mark A. Jackson ,
----------------------------------------------
Mark A. Jackson, not in his individual
capacity, but solely as Administrative Trustee
/s/ David L. Hicks ,
----------------------------------------------
David L. Hicks, not in his individual capacity,
but solely as Administrative Trustee
SANTA FE SNYDER CORPORATION,
as Sponsor
By: /s/ David L. Hicks
--------------------------------------------
Name: David L. Hicks
Title: Vice President - Law and
General Counsel
-13-
<PAGE> 1
EXHIBIT 12.1
SANTA FE ENERGY RESOURCES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------------- ------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------- ------ -------- ------- -------- ------- -------
(IN MILLIONS, EXCEPT AS NOTED)
<S> <C> <C> <C> <C> <C> <C> <C>
Income (Loss) from Continuing Operations Before Income Taxes
and Minority Interest $ (17.3) $ (5.2) $ (162.9) $ 95.6 $ 48.8 $ 36.3 $ 23.1
Minority interest in majority owned subsidiary -- -- -- (4.7) (1.3) -- --
Interest Expense 5.5 2.1 14.8 17.1 32.4 26.7 23.9
Amortization of Capitalized Interest 0.6 0.6 2.8 2.8 6.3 6.0 2.7
------- ------ -------- ------- -------- -------- -------
Earnings (Loss) Available for Fixed Charges $ (11.2) $ (2.5) $ (145.3) $ 110.8 $ 86.2 $ 69.0 $ 49.7
------- ------ -------- ------- -------- -------- -------
Fixed Charges
Interest Costs (a) $ 6.8 $ 3.8 $ 22.0 $ 23.8 $ 37.6 $ 32.5 $ 27.5
Preferred Stock Dividend Requirement -- -- -- 19.3 61.3 20.3 15.8
------- ------ -------- ------- -------- -------- -------
Combined Fixed Charges and Preferred Stock Dividends $ 6.8 $ 3.8 $ 22.0 $ 43.1 $ 98.9 $ 52.8 $ 43.3
======= ====== ======== ======= ======== ======= =======
Ratio of Earnings (Loss) Available for Fixed Charges
to Fixed Charges N/A N/A N/A 4.7 2.3 2.1 1.8
Amount by Which Fixed Charges Exceed
Earnings (Loss) Available for Fixed Charges $ 18.0 $ 6.3 $ 167.3 N/A N/A N/A N/A
Ratio of Earnings (Loss) Available for Fixed Charges
to Combined Fixed Charges and Preferred Stock Dividends N/A N/A N/A 2.6 N/A 1.3 1.2
Amount by Which Combined Fixed Charges and
Preferred Stock Dividends Exceed Earnings
(Loss) Available for Fixed Charges $ 18.0 $ 6.3 $ 167.3 N/A $ 12.7 N/A N/A
</TABLE>
(a) Includes interest expense, amounts capitalized and amortization of debt
costs
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in Santa Fe Snyder Corporation's Registration Statement on Form S-3
of our report dated February 10, 1999, included in Snyder Oil Corporation's
Annual Report on Form 10-K/A for the year ended December 31, 1998, and to all
references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Fort Worth, Texas
May 10, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 1, 1999 relating to the
financial statements and financial statement schedule, which appears in Santa
Fe Energy Resources, Inc.'s Annual Report on Form 10-K/A for the year ended
December 31, 1998. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
May 11, 1999
