<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 1997
REGISTRATION NO. 333-21221
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HS RESOURCES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-3036864
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE MARITIME PLAZA JAMES M. PICCONE, ESQ.
15TH FLOOR GENERAL COUNSEL
SAN FRANCISCO, CALIFORNIA 94111 HS RESOURCES, INC.
(415) 433-5795 1999 BROADWAY, SUITE 3600
(Address, including zip code, and telephone number, DENVER, COLORADO 80202
including area code, of registrant's principal (303) 296-3600
executive office) (Name, address, including zip code, and telephone
number,
including area code, of agent for service)
</TABLE>
---------------------
It is requested that copies of communications be sent to:
RONALD R. LEVINE, II, ESQ.
DAVIS, GRAHAM & STUBBS LLP
370 SEVENTEENTH STREET, SUITE 4700
DENVER, COLORADO 80202
(303) 892-9400
---------------------
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(1)(2) OFFERING PRICE(1)(3) REGISTRATION FEE(3)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4)(5)........................
Common Stock, par value $.001 per
share(5)(6)(7)............................. $300,000,000 100% $300,000,000 $90,910
Preferred Stock, par value $.001 per
share(5)(7)(8).............................
Warrants(5)(9)...............................
==============================================================================================================================
</TABLE>
(1) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o), which fee was previously paid by the Registrant. In
no event will the aggregate initial offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$300,000,000.
(4) Subject to Footnote (3), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $300,000,000.
(5) Subject to Footnote (3), there are being registered hereunder an
indeterminate amount and number of Debt Securities and shares of Preferred
Stock and Common Stock as may be issuable upon the conversion of Debt
Securities or Preferred Stock registered hereby or upon exercise of the
Warrants registered hereby.
(6) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by the Registrant.
(7) This Registration Statement also applies to Rights under the Company's
Stockholders' Rights Plan, which are attached to and tradeable only with the
Shares of Common Stock registered hereby. No registration fees are required
for such rights and the shares underlying such rights as they will be issued
for no additional consideration.
(8) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold from time
to time by the Registrant.
(9) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of Warrants as may be sold from time to time by the
Registrant.
================================================================================
<PAGE> 2
PROSPECTUS
$300,000,000
HS RESOURCES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
---------------------
HS Resources, Inc. (the "Company" or "HSR") may offer from time to time
(collectively, the "Securities") (i) Debt Securities ("Debt Securities"), which
may be either senior debt securities ("Senior Securities"), senior subordinated
debt securities ("Senior Subordinated Securities") or subordinated debt
securities ("Subordinated Securities"), consisting of debentures, notes, bonds
and/or other unsecured evidences of indebtedness in one or more series, (ii)
shares of Preferred Stock ("Preferred Stock") in one or more series, (iii)
shares of Common Stock, $.001 par value ("Common Stock"), or (iv) Warrants
("Warrants") to purchase Debt Securities, Preferred Stock or Common Stock. The
Securities will be offered at an aggregate initial offering price not to exceed
U.S. $300,000,000, at prices and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the
particular Securities in respect of which this Prospectus is being delivered (i)
in the case of Debt Securities, the title, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency,
currencies or currency unit, including the European Currency Unit), maturity,
interest rate, if any (which may be fixed or variable), or method of calculation
thereof, and time of payment of any interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, any
conversion or exchange rights, any listing on a securities exchange, the initial
public offering price and any other terms in connection with the offering and
sale of such Debt Securities, (ii) in the case of Preferred Stock, the
designation and stated value and liquidation preference per share, initial
public offering price per share and the number of shares to be offered, dividend
rate (or method of calculation), dates on which dividends shall be payable and
dates from which dividends shall accrue, any redemption or sinking fund
provisions, any conversion or exchange rights, any listing of the Preferred
Stock on a securities exchange, and any other terms in connection with the
offering and sale of such Preferred Stock; (iii) in the case of Common Stock,
the number of shares of Common Stock and the terms of the offering thereof; and
(iv) in the case of Warrants, the number and terms thereof, the designation and
the number of Securities issued and/or amount of cash consideration payable upon
their exercise, the exercise price, any listing of the Warrants or the
underlying Securities on a securities exchange and any other terms in connection
with the offering, sale and exercise of the Warrants. The Prospectus Supplement
will also contain information, as applicable, about certain United States
Federal income tax considerations relating to the Securities in respect of which
this Prospectus is being delivered.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Senior Subordinated Securities will
be subordinated to all existing and future Senior Indebtedness (as defined) of
the Company, and senior to all existing and future Subordinated Indebtedness (as
defined) of the Company. The Subordinated Securities will be subordinated to all
existing and future Senior Indebtedness (as defined) of the Company. All or a
portion of any Debt Securities may be issued in permanent global form.
The Company's Common Stock is listed on The New York Stock Exchange
(Symbol: "HSE"). Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange.
The Company may sell Securities to or through one or more underwriters, and
also may sell Securities directly to other purchasers or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents. See
"Plan of Distribution" herein.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is June 16, 1997
<PAGE> 3
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR IN THE PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, AGENT OR DEALER. THIS PROSPECTUS
AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH THEY RELATE OR AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO
ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE THE IMPLICATION THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The Company is currently
subject to the periodic reporting and other informational requirements of the
Exchange Act. Such reports and other information may be inspected and copied at
the public reference facilities of the Commission, Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, as well as at the following
Regional Offices: 7 World Trade Center, Suite 1300, New York, New York 10048,
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can be obtained from the Commission by mail at
prescribed rates. Requests should be directed to the Commission's Public
Reference Section, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549. The Commission also maintains a website at
http://www.sec.gov that contains reports, proxy statements, and other
information. HSR's common stock is listed on The New York Stock Exchange (the
"NYSE"). Reports, proxy and information statements and other information
relating to HSR can be inspected at the offices of the NYSE at 20 Broad Street,
New York, New York 10005. Any such request and requests for the agreements
summarized herein should be directed to James M. Piccone, Secretary, HS
Resources, Inc., 1999 Broadway, Suite 3600, Denver, Colorado 80202, telephone
(303) 296-3600.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933 (the
"Securities Act") with respect to the Securities offered hereby. This
Prospectus, which constitutes a part of the Registration Statement, does not
contain all the information set forth in the Registration Statement in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and the exhibits thereto for further
information with respect to the Company and the Securities.
The Registration Statement and the exhibits thereto can be obtained from or
inspected and copied at the public reference facilities maintained by the
Commission as described above.
2
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K as amended by the Company's Form
10-K/A-1 for the year ended December 31, 1996, Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997, and Current Report on Form 8-K filed February
26, 1997, are incorporated by reference in this Prospectus. All documents filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the securities registered hereunder shall be
deemed to be incorporated by reference in this Prospectus and to be part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement modified or superseded shall not be deemed, except
as so modified or superseded, to constitute part of this Prospectus.
Upon request, the Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered a copy of any documents
incorporated by reference herein (other than exhibits unless the exhibits are
specifically incorporated by reference into this Prospectus). Requests should be
directed to James M. Piccone, Esq., HS Resources, Inc., 1999 Broadway, Suite
3600, Denver, Colorado 80202.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference statements that are
not purely historical and are "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act, including
statements regarding the Company's expectations, hopes, beliefs, intentions or
strategies regarding the future. All statements other than statements of
historical facts included or incorporated by reference in this Prospectus,
including without limitation, statements in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 under "Business," "Properties,"
"Legal Proceedings and Environmental Issues" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations," regarding reserves
and their values, planned capital expenditures, increases in oil and natural gas
production, trends or expectations concerning oil and gas prices, the number and
prospective nature of anticipated wells to be drilled in 1997 and thereafter,
development potential, infill potential, drillsite potential, exploitation and
exploration prospects and leads, drilling prospects, consolidation opportunities
and the Company's financial position, business strategy and other plans and
objectives for future operations, potential liabilities or the expected absence
thereof, the potential outcome of environmental matters, litigation and other
proceedings are forward-looking statements. All forward-looking statements
included or incorporated by reference in this Prospectus are based on
information available to the Company on the date hereof, or, with respect to
documents incorporated by reference, on the date thereof, and the Company
assumes no obligation to update such forward-looking statements. Although the
Company believes that the assumptions and expectations reflected in such
forward-looking statements are reasonable, it can give no assurance that such
expectations will prove to have been correct or that the Company will take any
actions that may presently be planned. There are numerous uncertainties inherent
in estimating quantities of proved oil and natural gas reserves and projecting
future rates of production and timing of development expenditures, including
many factors beyond the control of the Company.
Many factors may affect the Company's expectations and plans. Capital
expenditure and financing plans may change in connection with the success of
drilling activities, the general availability of capital, interest rates, and
cash flow available from operations. Cash flow available from operations may
change depending on costs of materials and services, regulatory burdens and
commodity prices. Oil and natural gas prices are volatile, and there are several
potentially significant adverse effects to the Company which can result if
product prices decline materially. First, lower product prices will adversely
impact the Company's cash flow and could cause the Company to (i) curtail its
capital program, (ii) borrow additional amounts under its revolving credit
agreement, or (iii) issue additional debt or equity securities. Second, lower
product prices could cause the borrowing base under the Company's bank credit
agreement to be reduced and certain covenant tests to be
3
<PAGE> 5
adversely affected. Third, under rules promulgated by the Commission, companies
that follow the full cost accounting method are required to make quarterly
"ceiling test" calculations. Lower product prices adversely impact the ceiling
calculation. Should the Company realize sustained lower product prices, it could
be required to write down its oil and gas properties, resulting in a non-cash
charge against earnings.
Certain additional important factors that could cause actual results to
differ materially from the Company's forward-looking statements are disclosed
under "Business," "Properties," "Legal Proceedings and Environmental Issues,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and elsewhere in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 and in the Company's Current Report on Form
8-K filed February 26, 1997, each of which is incorporated by reference herein.
All subsequent written or oral forward-looking statements attributable to the
Company or persons acting on its behalf are expressly qualified in their
entirety by such factors.
4
<PAGE> 6
THE COMPANY
HS Resources, Inc. is a leading United States independent energy company
engaged in the development, acquisition, exploitation, exploration, production
and marketing of oil and natural gas. Through its experienced management and
technical staff, the Company has consistently increased reserves and production
and has established itself as one of the most efficient operators in the
industry. HSR has created a diversified asset base in three core geographic
areas: the Denver-Julesburg Basin (the "D-J Basin") of the Rocky Mountains, the
Anadarko and Arkoma Basins of the Mid-Continent and the on-shore Gulf Coast
area. It has done so by executing a large scale development drilling program
focused in the Wattenberg Field area of the D-J Basin and through the
acquisition of all the D-J Basin properties owned by Basin Exploration, Inc.,
(the "Acquisitions"), the merger with Tide West Oil Company, (the "Merger") and
the formation of Gulf Coast joint ventures. The Company believes that each core
geographic area presents operational and financial opportunities, positioning
the Company to maximize the benefits of its more predictable, long-lived
production in the D-J Basin, while providing meaningful exposure to potential
exploitation on exploration projects in the Mid-Continent and Gulf Coast which
exhibit higher return potential. HSR has an inventory of growth opportunities
that includes in excess of 2,000 infill, development and exploratory drilling
locations and over 1.1 million gross undeveloped acres.
The Company has achieved substantial growth in reserves, production,
revenues and operating cash flow over the past five years. HSR has increased
reserves from 20.8 MMBoe as of December 31, 1990, to 142.0 MMBoe as of December
31, 1996. HSR also increased production from 0.9 MMBoe for the year ended
December 31, 1991, to 7.6 MMBoe for the year ended December 31, 1996. Oil and
natural gas revenues and operating cash flow (defined as net income before
depreciation, depletion and amortization and deferred income taxes) also have
grown significantly over this period, increasing from $12.8 million and $5.4
million, respectively, for the year ended December 31, 1991, to $107.3 million
and $56.5 million, respectively, for the year ended December 31, 1996.
At December 31, 1996, the Company's reserves had an estimated pre-tax
present value (discounted at 10%) of $1,131 million. Natural gas constituted
approximately 76% of the Company's reserves and approximately 76% of the
Company's reserves were classified as proved developed. At December 31, 1996,
the Company operated approximately 74% of its 3,562 wells. Management believes
that its ability to control the operation of its wells and to minimize overhead
expenses has contributed to the Company achieving one of the lowest cost
structures in the industry.
The Company's principal executive office is located at One Maritime Plaza,
15th Floor, San Francisco, California 94111 and its telephone number at such
address is (415) 433-5795.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement or
any Pricing Supplement, the net proceeds from the sale of Securities will be
used for general corporate purposes, which may include refinancings or
repayments of indebtedness, capital expenditures, working capital, acquisitions
and repurchases and redemptions of securities.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed
charges(1) 2.1x 5.0x 1.9x -- 1.4x
</TABLE>
- ---------------
(1) Earnings were insufficient to cover fixed charges by approximately
$1,551,000 at December 31, 1995.
For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of net earnings before income taxes and fixed charges
(exclusive of capitalized interest). Fixed charges consist of interest expense
5
<PAGE> 7
(which includes amounts capitalized and the amortization of debt discount) and
that portion of rental cost that is equivalent to interest (estimated to be
thirty percent of rental cost).
DESCRIPTION OF DEBT SECURITIES
The following is a description of certain general terms and provisions of
the Debt Securities. The particular terms of any series of Debt Securities will
be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
The Debt Securities will constitute either indebtedness designated as
Senior Indebtedness, indebtedness designated as Senior Subordinated Indebtedness
or indebtedness designated as Subordinated Indebtedness. The particular terms of
each series of Securities offered by a particular Prospectus Supplement will be
described therein. Senior Securities, Senior Subordinated Securities and
Subordinated Securities will each be issued under a separate indenture
(individually an "Indenture" and collectively the "Indentures") to be entered
into prior to the issuance of such Debt Securities. The Indentures will be
substantially identical, except for provisions relating to subordination. See
"Subordination of Senior Subordinated Securities and Subordinated Securities".
In addition, at the time a series of Debt Securities is issued, a Supplemental
Indenture will be entered into containing the provisions applicable to that
series of Debt Securities. There will be a separate Trustee (individually a
"Trustee" and collectively the "Trustees') under each Indenture. Information
regarding the Trustee under an Indenture will be included in any Prospectus
Supplement relating to the Debt Securities issued thereunder. The following
discussion includes a summary description of all material terms of the
Indentures, other than terms that are specific to a particular series of Debt
Securities and that will be described in the Prospectus Supplement relating to
such series. The following summaries do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of certain terms
capitalized in this Prospectus. Wherever particular Sections or Articles or
defined terms of the Indentures are referred to herein or in a Prospectus
Supplement, such Sections or defined terms are incorporated herein or therein by
reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indentures do not limit the aggregate amount of Debt Securities that
may be issued thereunder, and Debt Securities may be issued thereunder from time
to time in separate series up to the aggregate amount from time to time
authorized by the Company for each series. Debt Securities of a series may be
issuable in registered form without coupons ("Registered Debt Securities"), in
bearer form with or without coupons attached ("Bearer Debt Securities") or in
the form of one or more Global Securities in registered or bearer form (each a
"Global Security"). Bearer Debt Securities, if any, will be offered only to
non-United States persons and to offices located outside the United States of
certain United States financial institutions. The Senior Securities will be
unsecured and unsubordinated obligations of the Company and will rank equally
and ratably with other unsecured and unsubordinated indebtedness of the Company.
The Senior Subordinated Securities and the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness of the Company, as described below under "Subordination of
Subordinated Securities" and in a Prospectus Supplement applicable to an
offering of Senior Subordinated Securities or Subordinated Securities.
The applicable Prospectus Supplement or Prospectus Supplements will also
describe the following terms of the series of Debt Securities in respect of
which this Prospectus is being delivered: (1) the title of such Debt Securities;
(2) any limit on the aggregate principal amount of such Debt Securities; (3)
whether such Debt Securities will be issued as Registered Debt Securities,
Bearer Debt Securities or any combination thereof, and any limitation on
issuance of such Bearer Debt Securities and any provisions regarding the
transfer or exchange of such Bearer Debt Securities, including exchange for
Registered Debt Securities of the
6
<PAGE> 8
same series; (4) whether any of such Debt Securities are to be issuable as a
Global Security, and, if so, the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or in
part, for the individual Debt Securities represented thereby; (5) the person to
whom any interest on any Debt Security of the series shall be payable if other
than the person in whose name the Debt Security is registered on the Regular
Record Date; (6) the date or dates on which such Debt Securities will mature;
(7) the rate or rates of interest (which may be fixed or variable) or the method
of calculation thereof, that such Debt Securities will bear; (8) the date or
dates from which any such interest will accrue, the Interest Payment Dates on
which any such interest on such Debt Securities will be payable and the Regular
Record Date for any interest payable on any Interest Payment Date; (9) the place
or places where the principal of, premium (if any) and interest on such Debt
Securities will be payable; (10) the period or periods within which, the terms
and conditions upon which, and the price or prices at which, such Debt
Securities may, pursuant to any optional or mandatory provisions, be redeemed or
purchased, in whole or in part, by the Company and any terms and conditions
relevant thereto; (11) the obligation of the Company, if any, to redeem or
repurchase such Debt Securities at the option of the Holders or pursuant to any
sinking fund obligation; (12) the denominations in which any such Debt
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (13) the currency, currencies or currency unit for
payment of principal of and any premium and interest on such Debt Securities if
other than U.S. dollars and the manner of determining the U.S. dollar equivalent
of foreign currency; (14) any index or formula used to determine the amount of
payments of principal of and any premium and interest on such Debt Securities;
(15) if the principal of or any premium or interest on such Debt Securities is
to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which such Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on Debt
Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made; (16) if other than the principal amount thereof, the
portion of the principal amount of such Debt Securities of the series that will
be payable upon declaration of the acceleration of the Maturity thereof; (17)
any covenants of the Company applicable to such series of Debt Securities,
including whether the Company is required to offer to repurchase all Debt
Securities of a class upon the occurrence of a Change of Control; (18) the
applicability of any provisions described under "Defeasance"; (19) the terms and
conditions, if any, pursuant to which such Debt Securities are convertible or
exchangeable into Common Stock or other securities; (20) provisions relating to
Bearer Securities, (21) if the principal amount payable at the Stated Maturity
of the Debt Securities is not determinable upon original issuance or at any time
prior to maturity, the amount that is deemed to be the principal amount
outstanding at any time; (22) the terms of any guarantee of the payment of
principal and interest on the Debt Securities; (23) the subordination, if any,
of the Debt Securities and any guarantee thereof; (24) any addition to or
changes in the Events of Default with respect to Debt Securities; and (25) any
other terms of such Debt Securities not inconsistent with the provisions of the
respective Indentures.
Debt Securities may be issued at a discount from their principal amount.
United States Federal income tax considerations and other special considerations
applicable to any such Original Issue Discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement.
SENIOR SECURITIES
The Senior Securities will rank pari passu with all other unsecured and
unsubordinated debt of the Company and senior to the Senior Subordinated
Securities and Subordinated Securities.
7
<PAGE> 9
SUBORDINATION OF SENIOR SUBORDINATED SECURITIES AND SUBORDINATED SECURITIES
The indebtedness evidenced by the Senior Subordinated Securities and the
Subordinated Securities will be subordinated and junior in right of payment to
the extent set forth in the respective Indenture to the prior payment in full in
cash of amounts then due on all Senior Indebtedness. Upon any Senior
Indebtedness becoming due and payable, whether at the Stated Maturity thereof or
by acceleration or otherwise, such Senior Indebtedness shall be paid in full in
cash, or the immediate payment thereof duly provided for in cash, before the
Company or any Person acting on behalf of the Company shall directly or
indirectly pay, prepay, redeem, retire, repurchase or otherwise acquire for
value, or make any deposits in respect of the discharge or defeasance of, or
make other payment or distribution (whether in cash, property, securities or a
combination thereof) on account of principal of (or premium, if any) or interest
on, any Senior Subordinated Securities or Subordinated Securities (collectively,
a "Securities Payment"). The Company may not make a Securities Payment if at the
time of such payment there exists a default in payment of all or any portion of
any Senior Indebtedness, and such default shall not have been cured or waived in
writing or the benefits of this provision waived in writing by or on behalf of
the holders of such Senior Indebtedness. In addition, during the continuance of
any event of default (other than a default in payment of all or any portion of
any Senior Indebtedness) with respect to any Specified Senior Indebtedness, as
such event of default is defined therein or in the instrument under which it is
outstanding, permitting the holders of such Specified Senior Indebtedness to
accelerate the maturity thereof, and upon written notice thereof given by the
Principal Agent to the Trustee, with a copy to the Company (the delivery of
which shall not affect the validity of the notice thereof to the Trustee), then,
unless and until such event of default shall have been cured or waived or shall
have ceased to exist, no Securities Payment shall be made; provided that if the
holders of the Specified Senior Indebtedness to which the default relates have
not declared such Specified Senior Indebtedness to be immediately due and
payable within 179 days after the occurrence of such default (or have declared
such Specified Senior Indebtedness to be immediately due and payable and within
such period have rescinded such declaration of acceleration), then the Company
shall resume making any and all unpaid scheduled Securities Payments on such
Senior Subordinated Securities or Subordinated Securities. In no event shall
such a payment blockage period described in the preceding sentence extend beyond
179 days from the date on which such payment blockage period commenced. Not more
than one payment blockage period may be commenced within any consecutive 365-day
period with respect to the Senior Subordinated Securities or Subordinated
Securities. No event of default that existed or was continuing on the date of
the commencement of any payment blockage period with respect to the Specified
Senior Indebtedness initiating such payment blockage period shall be, or be
made, the basis for the commencement of a second payment blockage period by the
holder or holders of such Specified Senior Indebtedness at any time after the
365-day period referred to in the preceding sentence unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days. A failure to make any payment with respect to the Senior
Subordinated Securities or Subordinated Securities as a result of the rights of
the holders of Senior Indebtedness described in this paragraph will not have any
effect on the right of the holders of such Senior Subordinated Securities or
Subordinated Securities to accelerate the maturity thereof as a result of such
payment default.
Upon any payment or distribution to creditors (whether in cash, property,
debt, equity or other securities, a combination thereof or otherwise) of the
Company in a voluntary or involuntary liquidation or dissolution of the Company,
whether total or partial, or in a bankruptcy, reorganization, insolvency,
receivership, assignment for the benefit of creditors, marshalling of assets or
similar proceeding relating to the Company or its property:
(i) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of all amounts due or to become due on or in
respect of all Senior Indebtedness before holders of the Senior
Subordinated Securities or Subordinated Securities shall be entitled to
receive any Securities Payment; and
(ii) until all Senior Indebtedness is paid in full in cash, any
Securities Payment to which holders of the Senior Subordinated Securities
or Subordinated Securities would be entitled but for the subordination
provisions of the Indenture shall be made to holders of Senior
Indebtedness, as their interests may appear.
8
<PAGE> 10
As a result of the subordination provisions described above, in the event
of insolvency of the Company, funds that would otherwise be payable to Holders
of Senior Subordinated Securities or Subordinated Securities will be paid or
turned over to the holders of Senior Indebtedness, to the extent necessary to
pay such Senior Indebtedness in full.
"Senior Indebtedness" means the Obligations of the Company with respect to
(i) Indebtedness of the Company under the Bank Credit Facility and any renewal,
refunding, refinancing, replacement or extension thereof and (ii) any other
Indebtedness of the Company (other than the Debt Securities), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, and any renewal, refunding, refinancing, replacement or extension
thereof, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Debt Securities or that such indebtedness is pari passu with or
junior to the Debt Securities; provided, however, that any series of Securities
designated as Senior Subordinated Indebtedness shall constitute Senior
Indebtedness to any series of Securities designated as Subordinated
Indebtedness. Notwithstanding the foregoing, Senior Indebtedness shall not
include (i) Indebtedness of the Company to a Subsidiary of the Company, (ii)
amounts owed for goods, materials or services purchased in the ordinary course
of business, (iii) Indebtedness incurred in violation of the Indentures, (iv)
amounts payable or any other Indebtedness to employees of the Company or any
Subsidiary of the Company, (v) any liability for Federal, state, local or other
taxes owed or owing by the Company, (vi) any Indebtedness of the Company that,
when incurred and without regard to any election under Section 1111(b) of the
United States Bankruptcy Code, was without recourse to the Company, and, with
respect to Senior Subordinated Indebtedness, (vii) Indebtedness evidenced by the
Company's $75,000,000 9 7/8% Senior Subordinated Notes due 2003 (the "9 7/8%
Notes") and $150,000,000 9 1/4% Senior Subordinated Notes due 2006 (the "9 1/4%
Notes"); and (viii) Indebtedness evidenced by the Senior Subordinated Securities
and the Subordinated Securities.
If this Prospectus is being delivered in connection with a series of Senior
Subordinated Securities or Subordinated Securities, the accompanying Prospectus
Supplement or the information incorporated herein by reference will set forth
the approximate amount of Senior Indebtedness outstanding as of the most recent
practicable date.
FORM, EXCHANGE, REGISTRATION, CONVERSION AND TRANSFER
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise indicated in an
applicable Prospectus Supplement, Bearer Debt Securities will have interest
coupons attached. Debt Securities are also issuable in temporary or permanent
global form.
Registered Debt Securities of any series (other than a Global Security)
will be exchangeable for other Registered Debt Securities of the same series and
of a like aggregate principal amount and tenor of different authorized
denominations. In addition, with respect to any series of Bearer Debt
Securities, at the option of the holder, subject to the terms of the Indenture,
such Bearer Debt Securities (with all unmatured coupons, except as provided
below, and all matured coupons in default) will be exchangeable into Registered
Debt Securities of the same series or for Bearer Debt Securities of any
authorized denominations and of a like aggregate principal amount and tenor.
Bearer Debt Securities surrendered in exchange for Registered Debt Securities
between a Regular Record Date or a Special Record Date and the relevant date for
payment of interest shall be surrendered without the coupon relating to such
date for payment of interest, and interest accrued as of such date will not be
payable in respect of the Registered Debt Security issued in exchange for such
Bearer Debt Security, but will be payable only to the holder of such coupon when
due in accordance with the terms of the Indenture.
In connection with its sale during the restricted period (as defined
below), no Bearer Debt Security (including a Debt Security in permanent global
form that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the United
States (as defined under "-- Limitations on Issuance of Bearer Debt Securities")
and a Bearer Debt Security may be delivered outside the United States in
definitive form in connection with its original issuance only if prior to
delivery the
9
<PAGE> 11
person entitled to receive such Bearer Debt Security furnishes written
certification to the effect that such Bearer Debt Security is owned by: (a) a
person (purchasing for its own account) who is not a United States person (as
defined under "-- Limitations on Issuance of Bearer Debt Securities"); (b) a
United States person who (i) is a foreign branch of a United States financial
institution purchasing for its own account or for resale or (ii) acquired such
Bearer Debt Security through the foreign branch of a United States financial
institution and who for purposes of the certification holds such Bearer Debt
Security through such financial institution on the date of certification and, in
either case, such United States financial institution certifies to the Issuer or
the distributor selling the Bearer Debt Security within a reasonable time
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations thereunder, or (c) a United States or foreign
financial institution for purposes of resale within the "restricted period" as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A
financial institution described in clause (c) of the preceding sentence (whether
or not also described in clauses (a) and (b)) must certify that it has not
acquired the Bearer Debt Security for purpose of resale, directly or indirectly,
to a United States person or to a person within the United States or its
possessions. In the case of a Bearer Debt Security in permanent global form,
such certification must be given in connection with notation of a beneficial
owner's interest therein in connection with the original issuance of such Debt
Security or upon exchange of a portion of a temporary global Debt Security.
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration of transfer (with
the form of transfer endorsed thereon duly executed), at the office or agency of
the Company maintained for such purposes and at any other office or agency
maintained for such purpose with respect to any series of Debt Securities and
referred to in the applicable Prospectus Supplement, without a service charge
and upon payment of any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the Company or its
agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request.
The Company shall not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period of 15 days prior to the
mailing of a notice of redemption of Debt Securities of that series; or (ii)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except that any Bearer Debt Security exchangeable for a
Registered Debt Security of that series may be so exchanged during the period
preceding the redemption date therefor which is simultaneously surrendered for
redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of (and any premium) and interest on Bearer Debt Securities will be
payable, subject to any applicable laws and regulations, in the designated
currency or currency unit, at the offices of the Trustee outside the United
States as the Company may designate from time to time, at the option of the
holder, by check or by transfer to an account maintained by the payee with a
bank located outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on Bearer Debt Securities
on any Interest Payment Date will be made only against surrender to the Paying
Agent of the coupon relating to such Interest Payment Date. No payment with
respect to any Bearer Debt Security will be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to any account maintained with a bank located in the
United States, nor shall any payments be made in respect of Bearer Debt
Securities upon presentation to the Company or its designated agent within the
United States. Notwithstanding the foregoing, payments of principal of (and
premium, if any) and interest on Bearer Debt Securities denominated and payable
in U.S. dollars will be made at the office of the Company's agent in the United
States, if (but only if) payment of the full amount thereof in U.S. dollars at
all offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and interest on Registered Debt Securities
will be made in the designated currency or currency unit at the Corporate Trust
Office of the Trustee, except that at the option of the Company payment of any
interest may be made by check mailed to the address of the person entitled
thereto as such address shall
10
<PAGE> 12
appear in the Security Register or, if provided in the Indenture, at the option
of the Holder, by wire transfer to an account designated by the Holder. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of any
installment of interest on Registered Debt Securities will be made to the person
in whose name such Registered Debt Security is registered at the close of
business on the Regular Record Date for such interest.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee will be designated as the paying agent for
the Trustee for payments with respect to Debt Securities that are issuable
solely as Registered Debt Securities, and the Company will maintain a paying
agent outside the United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer Debt Securities)
that are issued solely as Bearer Debt Securities, or as both Registered Debt
Securities and Bearer Debt Securities. Any Paying Agents outside the United
States and any other Paying Agents in the United States initially designated by
the Company for the Debt Securities will be named in an applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities of a series
are issued solely as Registered Debt Securities, the Company will be required to
maintain a Paying Agent in each Place of Payment for such series and, if Debt
Securities of a series are issued as Registered Debt Securities and Bearer Debt
Securities, the Company will be required to maintain (i) a Paying Agent in the
United States for principal payments with respect to any Registered Debt
Securities of the series (and for payments with respect to Bearer Debt
Securities of the series in the circumstances described above, but not
otherwise), and (ii) a Paying Agent in a Place of Payment located outside the
United States where Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment.
All monies paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security that remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Debt Securities
will initially be represented by one or more temporary global Debt Securities,
without interest coupons, to be deposited with a common depository in London for
the Euroclear System ("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the
designated accounts. On and after the date determined as provided in any such
temporary global Debt Security and described in the applicable Prospectus
Supplement, each such temporary global Debt Security will be exchangeable for
definitive Bearer Debt Securities, definitive Registered Debt Securities or all
or a portion of a permanent global security, or any combination thereof, as
specified in the applicable Prospectus Supplement. No Bearer Debt Security
delivered in exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in connection
with such exchange.
Unless otherwise specified in the applicable Prospectus Supplement,
interest in respect of any portion of a temporary global Debt Security payable
in respect of an Interest Payment Date occurring prior to the issuance of
definitive Debt Securities or a permanent global Debt Security will be paid to
each of Euroclear and CEDEL with respect to the portion of the temporary global
Debt Security held for its account. Each of Euroclear and CEDEL will undertake
in such circumstances to credit such interest received by it in respect of a
temporary global Debt Security to the respective accounts for which it holds
such temporary global Debt Security as of the relevant Interest Payment Date
regarding the portion of such temporary global Debt Security on which interest
is to be so credited.
11
<PAGE> 13
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent global Debt
Securities may exchange such interests for Debt Securities of such series and of
like tenor and principal amount in any authorized form and denomination. No
Bearer Debt Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location in the
United States in connection with such exchange.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of Outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any nominee to a successor Depositary or a
nominee of such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
persons that have accounts with such Depositary or its nominee ("participants").
The accounts to be credited will be designated by the underwriters or agents of
such Debt Securities or by the Company, if such Debt Securities are offered and
sold directly by the Company. Ownership of beneficial interest in such Global
Security will be limited to participants or Persons that may hold interests
through participants. Ownership of beneficial interests by participants in such
Global Security will be shown on, and the transfer of that ownership interest
will be effected only through, records maintained by the Depositary or its
nominee for such Global Security. Ownership of beneficial interests in such
Global Security by Persons that hold through participants will be shown on, and
the transfer of that ownership interest within such participant will be effected
only through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such Global
Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the applicable
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the Holders thereof for any purposes under the applicable Indenture.
Accordingly, each Person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such Person is not a
participant, on the procedures of the participant through which such Person owns
its interest, to exercise any rights of a Holder under the applicable Indenture.
The Company understands that under existing industry practices, if the Company
requests any action of
12
<PAGE> 14
Holders or an owner of a beneficial interest in such Global Security desires to
give any notice or take any action a Holder is entitled to give or take under an
Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States Federal tax laws and regulations, Bearer
Debt Securities (including securities in permanent global form that are either
Bearer Debt Securities or exchangeable for Bearer Debt Securities) will not be
offered or sold during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40
days after the closing date, and, with respect to unsold allotments, until sold)
within the United States or to United States persons (each as defined below)
other than to an office located outside the United States of a United States
financial institution (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury Regulations), purchasing for its own account or for resale or
for the account of certain customers, that provides a certificate stating that
it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Code and the United States Treasury Regulations thereunder, or to certain
other persons described in Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United
States Treasury Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period within the
United States. Any underwriters and dealers participating in the offering of
Bearer Debt Securities must covenant that they will not offer or sell during the
restricted period any Bearer Debt Securities within the United States or to
United States persons (other than the persons described above) or deliver in
connection with the sale of Bearer Debt Securities during the restricted period
any Bearer Debt Securities within the United States and that they have in effect
procedures reasonably designed to ensure that their employees and agents who are
directly engaged in selling the Bearer Debt Securities are aware of the
restrictions described above. No Bearer Debt Security (other than a temporary
global Bearer Debt Security) will be delivered in connection with its original
issuance nor will interest be paid on any Bearer Debt Security until receipt by
the Company of the written certification described above under "-- Form,
Exchange, Registration, Conversion and Transfer." Each Bearer Debt Security,
other than a temporary global Bearer Debt Security, will bear a legend to the
following effect: "Any United States person who holds this obligation will be
subject to limitations under the United States Federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
states and the District of Columbia) and its possessions.
CERTAIN COVENANTS OF THE COMPANY
The applicable Prospectus Supplement with respect to a particular series of
Debt Securities will set forth certain covenants of the Company with respect to
such Debt Securities.
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (a) failure to pay principal of or premium, if
any, on any Debt Security of that series whether upon maturity, acceleration,
sinking fund payment date, call for redemption or otherwise, when due; (b)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days from the date due; (c) failure to perform any other
covenant of the Company in the applicable Indenture (other than a covenant
included in
13
<PAGE> 15
such Indenture solely for the benefit of a series of Debt Securities other than
that series), continued for 60 days after written notice as provided in the
respective Indentures; (d) one or more final judgments or orders by a court of
competent jurisdiction are entered against the Company or any Subsidiary in an
uninsured or unindemnified aggregate amount in excess of a specified amount and
such judgments or orders are not discharged, waived, stayed, satisfied or bonded
for a period of 60 consecutive days; (e) certain events of bankruptcy,
insolvency or reorganization of the Company or a Significant Subsidiary; and (f)
any other Event of Default provided with respect to Debt Securities of that
series.
If an Event of Default with respect to Debt Securities of any series (other
than an Event of Default described in clause (e) above) shall occur and be
continuing, either the Trustee or the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of that series by notice as provided
in the respective Indenture may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series to be due and payable immediately. If an Event of
Default described in clause (e) above with respect to the Debt Securities of any
series shall occur, the principal amount of all the Debt Securities will
automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. At any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the Holders of
a majority in principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the nonpayment of accelerated principal (or other
specified amount), have been cured or waived as provided in the Indenture. For
information as to waiver or defaults, see "Modification and Waiver" below.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Trustee, with respect to the Debt Securities of that series.
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the applicable
Trustee written notice of a continuing Event of Default (as defined) and unless
also the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of the series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of the series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a Holder of a Debt Security for enforcement of payment of the
principal of and interest on such Debt Security on or after the respective due
dates expressed in such Debt Security.
The Company will be required to furnish to the Trustees annually a
statement as to the performance by the Company of its obligations under the
respective Indentures and as to any default in such performance.
SUPPLEMENTAL INDENTURE; WAIVER
The Indenture provides that Supplemental Indentures may be entered into by
the Company and the Trustee without the consent of any Holders of Debt
Securities in certain limited circumstances, including (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to provide for the assumption
of the obligations of the Company under the Indenture upon the merger,
consolidation or sale or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole and certain other
events specified in the "Merger, Consolidation and Sale of Substantially All
Assets" covenant, (iii) to provide for uncertificated Debt Securities in
addition to or in place of certificated Debt Securities, (iv) to comply with any
requirement of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended, (v) to make
any change in the Debt Securities of any or all series that does not adversely
affect the rights of any Holder of Debt Securities of the affected series in any
material respect, (vi) to add Subsidiary guarantors pursuant to the procedures
set forth in the Indenture, and (vii) certain other modifications and amendments
as set forth in the Indenture.
14
<PAGE> 16
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Debt Securities, of any series then outstanding, or
execute supplemental indentures or amendments adding any provisions to or
changing or eliminating any of the provisions of the Indenture or modifying the
rights of the Holders of the Debt Securities of such series, except that no such
supplemental indenture, amendment or waiver may, without the consent of all the
Holders of Debt Securities of such series then outstanding, among other things,
(i) reduce the principal amount of Debt Securities of such series whose Holders
must consent to an amendment or waiver, (ii) reduce the rate of or change the
time for payment of interest on any Debt Securities, (iii) change the currency
in which any amount due in respect of the Debt Securities is payable, (iv)
reduce the principal of or any premium on or change the Stated Maturity of any
Debt Securities or alter the redemption or repurchase provisions with respect
thereto, (v) reduce the relative ranking of any Debt Securities, (vi) release
any security that may have been granted in respect of the Debt Securities, (vii)
impair the right of any Holder to institute suit for enforcement of any payment
on or with respect to such Holder's Debt Securities and (viii) make certain
other significant amendments or modifications as specified in the Indenture.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain covenants of the applicable Indenture.
The Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may, on behalf of the Holders of all Debt
Securities of that series, waive any past default under the applicable Indenture
with respect to that series, except a default in the payment of the principal
of, or premium, if any, or interest on, any Debt Security of that series or in
respect of a provision which under the applicable Indenture cannot be modified
or amended without the consent of the Holder of each Outstanding Debt Security
of that series affected.
MERGER, CONSOLIDATION AND SALE OF SUBSTANTIALLY ALL ASSETS
The Indenture provides that (i) the Company will not merge or consolidate
with or into any other Person (whether or not the Company is the surviving
entity), and (ii) the Company will not and will not permit its Subsidiaries to,
directly or indirectly, sell, transfer, assign, lease, convey or otherwise
dispose of all or substantially all of the Property of the Company and its
Subsidiaries taken as a whole in any one transaction or a series of transactions
(including, without limitation, dispositions pursuant to mergers and
consolidations) in each case unless: (A) the Surviving Entity shall be a
corporation organized and existing under the laws of the United States of
America or a State thereof or the District of Columbia; (B) if the Company is
not the Surviving Entity, the Surviving Entity (as defined) expressly assumes,
by supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by the Surviving Entity, the due and punctual payment of the
principal of, premium, if any, and interest on all the Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of the Indenture to be performed by the
Company (and in the case of clause (ii) above, the Company and the Surviving
Entity shall both be considered as the issuer of the Debt Securities); (C) in
the case of the sale, transfer, assignment, lease, conveyance or other
disposition of all or substantially all of the Property of the Company and its
Subsidiaries taken as a whole, such Property shall have been transferred as an
entirety or virtually as an entirety to one Person; (D) immediately before and
after giving effect to such transaction or series of transactions on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing; (E)
the Company and, if the Company is not the Surviving Entity, the Surviving
Entity, each shall have delivered to the Trustee Officers' Certificates and an
Opinion of Counsel, each stating that such merger, consolidation or disposition
and any such supplemental indentures comply with the above provisions and that
all conditions precedent relating to such transaction or transactions have been
complied with and (F) the Surviving Entity waives any right to redeem any Bearer
Debt Security under circumstances in which the Surviving Entity would be
entitled to redeem such Bearer Debt Security but the Company would not have been
so entitled to redeem if the consolidation merger, conveyance, transfer or lease
had not occurred. The term "Surviving Entity" shall mean the Person referred to
in clauses (i) and (ii) above (1) formed by or surviving any such merger or
consolidation involving the Company or (2) to which any such sale, transfer,
assignment, lease, conveyance or other disposition is made.
15
<PAGE> 17
DEFEASANCE AND COVENANT DEFEASANCE
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Company, at its option, will be discharged from
all its obligations with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of such Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying agencies
and to hold moneys for payment in trust) upon the deposit in trust for the
benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or a combination thereof, which, through the payment of principal,
premium, if any, and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and any
premium and interest on such Debt Securities at Stated Maturity or on earlier
redemption in accordance with the terms of the applicable Indenture and the Debt
Securities. Such defeasance or discharge may occur only if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling or (ii) since the date of the
Indenture there has been a change in the applicable Federal income tax law, in
either case to the effect that Holders of such Debt Securities will not
recognize gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred; and that the resulting trust will not be an "Investment
Company" within the meaning of the Investment Company Act of 1940, as amended
unless such trust is qualified thereunder or exempt from regulation thereunder.
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Company, at its option, may omit to comply with
certain covenants, as set forth in the applicable Prospectus Supplement with
respect to the Debt Securities of such series, and that the occurrence of
certain Events of Default, as set forth in the applicable Prospectus Supplement
with respect to the Debt Securities of such series, will be deemed not to be or
result in an Event of Default. The Company, in order to exercise such option,
will be required to deposit, in trust for the benefit of the Holders of such
Debt Securities, money or U.S. Government Obligations, or a combination thereof,
which, through the payment of principal, premium, if any, and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities at Stated Maturity or on earlier redemption in accordance with the
terms of the Indenture and such Debt Securities. The Company will also be
required, among other things, to deliver to the Trustee an Opinion of Counsel to
the effect that Holders of such Debt Securities will not recognize gain or loss
for Federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur; and that the resulting trust will
not be an "Investment Company" within the meaning of the Investment Company Act
of 1940, as amended unless such trust is qualified thereunder or exempt from
regulation thereunder. In the event the Company were to exercise this option and
such Debt Securities were declared due and payable because of the occurrence of
any Event of Default, the amount of money and U.S. Government Obligations so
deposited in trust would be sufficient to pay amounts due on such Debt
Securities at the time of their Stated Maturity but may not be sufficient to pay
amounts due on such Debt Securities upon any acceleration resulting from such
Event of Default. In such case, the Company would remain liable for such
payments.
Notwithstanding the description set forth under "Subordination of Senior
Subordinated Securities and Subordinated Securities" above, in the event that
the Company deposits money or U.S. Government Obligations in compliance with
such Indenture in order to defease all or certain of its obligations with
respect to any Senior Subordinated Securities or Subordinated Securities, the
monies or U.S. Government Obligations so deposited will not be subject to the
subordination provisions of such Indenture and the indebtedness evidenced by
such Securities will not be subordinated in right of payment to the holders of
Senior Indebtedness to the extent of the monies or U.S. Government Obligations
so deposited.
16
<PAGE> 18
NOTICES
Except as otherwise provided in the Indenture, notices to holders of Bearer
Debt Securities will be given by publication on two separate business days in an
Authorized Newspaper in such city or cities as may be specified in such
Securities. Notices to holders of Registered Debt Securities will be given by
mail to the addresses of such holders as they appear in the Security Register.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Debt Securities, it must
eliminate such conflict or resign.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock will
be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below. Certain provisions applicable to the Company's Preferred Stock
are set forth below in "Description of Common Stock."
The summary of terms of the Company's preferred stock (including the
Preferred Stock) contained in this Prospectus does not purport to be complete
and is subject to, and qualified in its entirety by, the provisions of the
Company's Certificate of Incorporation and the certificate of designations
relating to each series of the Preferred Stock (the "Certificate of
Designations"), which will be filed as an exhibit to or incorporated by
reference in the Registration Statement of which this Prospectus is a part at or
prior to the time of issuance of such series of the Preferred Stock.
The Company's Certificate of Incorporation authorizes the issuance of
15,000,000 shares of preferred stock, par value of $.001 per share. At the date
of this Prospectus, no shares of preferred stock were issued and outstanding,
and 300,000 shares of Series A Junior Preferred Stock were reserved for issuance
in connection with the Company's shareholders' rights plan. See "Description of
Common Stock -- Preferred Stock Purchase Rights." The Company's preferred stock
may be issued from time to time in one or more series, without stockholder
approval. Subject to limitations prescribed by law, the Board of Directors of
the Company is authorized to determine and alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of preferred stock, and to increase or decrease (but not below the number
of shares of such series then outstanding) the number of shares of such series
of preferred stock. As such, the Company's Board of Directors, without
stockholder approval, could authorize the issuance of preferred stock with
voting, conversion and other rights that could adversely affect the voting power
and other rights of holders of Common Stock or other series of preferred stock
or that could have the effect of delaying, deferring or preventing a change in
control of the Company. See "Description of Common Stock" herein.
The Preferred Stock issued by the Company shall have the dividend,
liquidation, redemption and voting rights set forth below unless otherwise
provided in a Prospectus Supplement relating to a particular series of the
Preferred Stock. The applicable Prospectus Supplement will describe the
following terms of the series of Preferred Stock in respect of which this
Prospectus is being delivered: (1) the designation and stated value per share of
such Preferred Stock and the number of shares offered; (2) the amount of
liquidation preference per share; (3) the initial public offering price at which
such Preferred Stock will be issued; (4) the dividend rate (or method of
calculation), the dates on which dividends shall be payable and the dates from
which dividends
17
<PAGE> 19
shall commence to cumulate, if any; (5) if applicable, any index or formula used
to determine the amount of dividends payable; (6) any redemption or sinking fund
provisions; (7) any conversion or exchange rights; and (8) any additional
voting, dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions.
GENERAL
The Preferred Stock offered hereby will be issued in one or more series.
The holders of Preferred Stock will have no preemptive rights. Preferred Stock,
upon issuance against full payment of the purchase price therefor, will be fully
paid and nonassessable. Neither the par value nor the liquidation preference is
indicative of the price at which the Preferred Stock will actually trade on or
after the date of issuance. The applicable Prospectus Supplement will contain a
description of certain United States Federal income tax consequences relating to
the purchase and ownership of the series of Preferred Stock offered by such
Prospectus Supplement.
RANK
The Preferred Stock shall, with respect to dividend rights and rights on
liquidation, winding up and dissolution of the Company, rank prior to the
Company's Common Stock and to all other classes and series of equity securities
of the Company now or hereafter authorized, issued or outstanding (the Common
Stock and such other classes and series of equity securities collectively may be
referred to herein as the "Junior Stock"), other than any classes or series of
equity securities of the Company ranking on a parity with (the "Parity Stock")
or senior to (the "Senior Stock") the Preferred Stock as to dividend rights and
rights upon liquidation, winding up or dissolution of the Company. The Preferred
Stock shall be junior to all outstanding debt of the Company. The Preferred
Stock shall be subject to creation of Senior Stock, Parity Stock and Junior
Stock to the extent not expressly prohibited by the Company's Certificate of
Incorporation.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds of the Company legally
available for payment, cash dividends, payable at such dates and at such rates
per share per annum as set forth in the applicable Prospectus Supplement. Such
rate may be fixed or variable or both. Each declared dividend shall be payable
to holders of record as they appear at the close of business on the stock books
of the Company on such record dates, not more than 60 calendar days preceding
the payment dates therefor, as determined by the Board of Directors (each of
such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
Preferred Stock will have no right to receive a dividend in respect of such
dividend period, and the Company will have no obligation to pay the dividend for
such period, whether or not dividends are declared payable on any future
Dividend Payment Dates. Dividends on the shares of each series of Preferred
Stock for which dividends are cumulative will accrue from the date on which the
Company initially issues shares of such series.
Unless otherwise specified in the applicable Prospectus Supplement, no full
dividends shall be declared or paid or set apart for payment on preferred stock
of the Company of any series ranking, as to dividends, on a parity with or
junior to the series of Preferred Stock offered by the Prospectus Supplement
attached hereto for any period unless full dividends for the immediately
preceding dividend period on such Preferred Stock (including any accumulation in
respect of unpaid dividends for prior dividend periods, if dividends on such
Preferred Stock are cumulative) have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof is set apart for
such payment. When dividends are not so paid in full (or a sum sufficient for
such full payment is not so set apart) upon such Preferred Stock and any other
preferred stock of the Company ranking on a parity as to dividends with the
Preferred Stock, dividends upon shares of such Preferred Stock and dividends on
such other preferred stock shall be declared pro rata so that the amount
18
<PAGE> 20
of dividends declared per share on such Preferred Stock and such other preferred
stock shall in all cases bear to each other the same ratio that accrued
dividends for the then-current dividend period per share on the shares of such
Preferred Stock (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such Preferred Stock are cumulative) and
accrued dividends, including required or permitted accumulations, if any, on
shares of such other preferred stock, bear to each other. Unless full dividends
on the series of Preferred Stock offered by the Prospectus Supplement attached
hereto have been declared and paid or set apart for payment for the immediately
preceding dividend period (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such Preferred Stock are
cumulative) (a) no cash dividend or distribution (other than in shares of Junior
Stock) may be declared, set aside or paid on the Junior Stock, (b) the Company
may not repurchase, redeem or otherwise acquire any shares of its Junior Stock
(except by conversion into or exchange for Junior Stock) and (c) the Company may
not, directly or indirectly, repurchase, redeem or otherwise acquire any shares
of Preferred Stock or Parity Stock otherwise than pursuant to certain pro rata
offers to purchase or a concurrent redemption of all, or a pro rata portion, of
the outstanding shares of such Preferred Stock and Parity Stock (except by
conversion into or exchange for Junior Stock).
CONVERTIBILITY
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock of the Company or another series of Preferred Stock or other securities of
the Company will be set forth in the Prospectus Supplement relating thereto. See
"Description of Common Stock."
REDEMPTION
The terms, if any, on which shares of Preferred Stock of any series may be
redeemed will be set forth in the related Prospectus Supplement.
LIQUIDATION
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, the holders of a series of Preferred Stock will be
entitled, subject to the rights of creditors, but before any distribution or
payment to the holders of Junior Stock on liquidation, dissolution or winding up
of the Company, to receive an amount per share as set forth in the related
Prospectus Supplement plus accrued and unpaid dividends for the then-current
dividend period (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such series of Preferred Stock are
cumulative). If the amounts available for distribution with respect to the
Preferred Stock and all other outstanding stock of the Company ranking on a
parity with the Preferred Stock upon liquidation are not sufficient to satisfy
the full liquidation rights of all the outstanding Preferred Stock and stock
ranking on a parity therewith, then the holders of each series of such stock
will share ratably in any such distribution of assets in proportion to the full
respective preferential amount (which in the case of preferred stock may include
accumulated dividends) to which they are entitled. Unless otherwise specified in
the applicable Prospectus Supplement, after payment of the full amount of the
liquidation preference, the holders of shares of Preferred Stock will not be
entitled to any further participation in any distribution of assets by the
Company.
VOTING
The voting rights of any series of Preferred Stock will be as provided in
the applicable Prospectus Supplement and as required by applicable law.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the related Prospectus
19
<PAGE> 21
Supplement, the Certificate of Incorporation and in the certificate of
designations or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be designated in
the related Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The following is a description of certain general terms and provisions of
the Common Stock. The summary of terms of the Company's Common Stock contained
in this Prospectus does not purport to be complete and is subject to, and
qualified in its entirety by, the provisions of the Company's Certificate of
Incorporation, Bylaws and Rights Agreement, dated as of February 28, 1996,
between the Company and Harris Trust Company of California (the "Rights
Agreement"), each of which has been incorporated by reference herein.
The Company's Certificate of Incorporation authorizes the issuance of
30,000,000 shares of Common Stock. No class of capital stock of HSR entitles the
holder thereof to any preemptive rights to purchase or subscribe for shares of
any class or any other securities.
All issued and outstanding shares of Common Stock are validly issued, fully
paid and nonassessable. The holders of Common Stock are entitled to one vote for
each share held on all matters submitted to a vote of common stockholders. The
Common Stock does not have cumulative voting rights. Each share of Common Stock
is entitled to participate equally in dividends, as and when declared by the
Company's Board of Directors, and in the distribution of assets in the event of
liquidation, subject in all cases to any prior rights of outstanding shares of
the Company's preferred stock. The shares of Common Stock have no preemptive or
conversion rights, redemption rights or sinking fund provisions.
The outstanding shares of Common Stock are listed on The New York Stock
Exchange and trade under the symbol "HSE." Harris Savings and Trust is the
transfer agent, registrar and dividend disbursing agent for the Common Stock.
PREFERRED STOCK PURCHASE RIGHTS
On February 28, 1996, the Company's Board of Directors declared a dividend
distribution of one Preferred Stock Purchase Right (a "Right") for each
outstanding share of Common Stock. The description and terms of the Rights are
set forth in the Rights Agreement. The distribution was made as of March 14,
1996, to stockholders of record on that date. Each Right entitles the registered
holder of Common Stock to purchase from the Company one one-hundredth ( 1/100)
of a share of preferred stock, designated as Series A Junior Preferred Stock, at
a price of $60.00 per one one-hundredth ( 1/100) of a share. The Rights will
expire at the close of business on March 14, 2006, unless earlier redeemed by
the Company as described in the Rights Agreement.
Initially, the Rights will not be exercisable or represented by a separate
certificate but will trade together with the Common Stock. The Rights, unless
redeemed prior thereto, become exercisable only upon the close of business on
the day which is the earlier of (a) the tenth day after a public announcement
that a person or group of affiliated or associated persons, with certain
exceptions as noted in the Rights Agreement, has acquired beneficial ownership
of 15% or more of the Company's voting stock (an "Acquiring Person") or (b) the
tenth business day (or such later date as may be determined by the Company's
Board of Directors prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) after the commencement or announcement of
an intention to commence a tender or exchange offer, the consummation of which
would result in the ownership of 30% or more of the Company's voting stock (even
if no stock is actually purchased pursuant to such offer). An Acquiring Person
does not include, among others, Natural Gas Partners, L.P. unless it is the
beneficial owner of 22.193% or more of the voting stock of the Company. All
issuances of Common Stock after the date of the Rights Agreement will include
Rights.
20
<PAGE> 22
For as long as the Rights are redeemable pursuant to the terms of the
Rights Agreement, the Company may, except with respect to the redemption price
or date of expiration of the Rights, amend the Rights in any manner, including
an amendment to extend the time period in which the Rights may be redeemed. At
any time when the Rights are not then redeemable, the Company may amend the
Rights in any manner that does not materially adversely affect the interests of
holders of the Rights as such. Amendments to the Rights Agreement from and after
the time that any Person (as defined in the Rights Agreement) becomes an
Acquiring Person requires the approval of a majority of the Continuing Directors
(as defined in the Rights Agreement).
DESCRIPTION OF WARRANTS
The following is a description of certain general terms and provisions of
the Warrants. The particular terms of any series of Warrants will be described
in the applicable Prospectus Supplement. If so indicated in a Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below.
GENERAL
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as Warrants to purchase other types of
securities, including equity securities. Warrants may be issued independently or
together with any securities and may be attached to or separate from such
securities. Each series of Warrants will be issued under a separate warrant
agreement (each a "Warrant Agreement") to be entered into between the Company
and a warrant agent ("Warrant Agent"). The Warrant Agent will act solely as an
agent of the Company in connection with the Warrants of such series and will not
assume any obligation or relationship of agency or trust for or with any holders
or beneficial owners of Warrants. The following sets forth certain general terms
and provisions of the Warrants offered hereby.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the following terms of
the Debt Warrants in respect of which this Prospectus is being delivered: (1)
the title of such Debt Warrants; (2) the aggregate number of such Debt Warrants;
(3) the price or prices at which such Debt Warrants will be issued; (4) the
currency or currencies, including composite currencies, in which the price of
such Debt Warrants may be payable; (5) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such Debt
Warrants; (6) if applicable, the designation and terms of the Debt Securities
with which such Debt Warrants are issued and the number of such Debt Warrants
issued with each such Debt Security; (7) the currency or currencies, including
composite currencies, in which the principal of or any premium or interest on
the Debt Securities purchasable upon exercise of such Debt Warrants will be
payable; (8) if applicable, the date on and after which such Debt Warrants and
the related Debt Securities will be separately transferable; (9) the price at
which and currency or currencies, including composite currencies, in which the
Debt Securities purchasable upon exercise of such Debt Warrants may be
purchased; (10) the date on which the right to exercise such Debt Warrants shall
commence and the date on which such right shall expire; (11) if applicable, the
minimum or maximum amount of such Debt Warrants which may be exercised at any
one time; (12) if applicable, any index or formula used to determine the amount
of payments of principal of and any premium and interest on Debt Securities
purchasable upon exercise of such Debt Warrants; (13) information with respect
to book-entry procedures, if any; (14) if applicable, a discussion of certain
United States Federal income tax considerations; and (15) any other terms of
such Debt Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Debt Warrants.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of which
this Prospectus is being delivered: (1) the title of such Warrants; (2) the
designation and number of Securities (which may include Preferred Stock or
Common Stock) and/or amount of cash consideration for which such Warrants are
exercisable; (3) the price
21
<PAGE> 23
or prices at which such Warrants will be issued; (4) the currency or currencies,
including composite currencies, in which the price of such Warrants may be
payable; (5) if applicable, the designation and terms of the Preferred Stock
with which such Warrants are issued and the number of such Warrants issued with
each share of Preferred Stock or Common Stock; (6) if applicable, the date on
and after which such Warrants and the related Preferred Stock or Common Stock
will be separately transferable; (7) if applicable, any index or formula used to
determine the price or prices at which such other securities and/or cash
consideration will be issued; (8) if applicable, a discussion of certain United
States Federal income tax considerations; and (9) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters, through agents
or dealers or directly to other purchasers.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such market prices
or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers in the form of
discounts, concessions or commissions. Underwriters, agents and dealers
participating in the distribution of the Securities may be deemed to be
underwriters within the meaning of the Securities Act.
Pursuant to agreements which may be entered into between the Company and
any underwriters or agents named in the Prospectus Supplement, such underwriters
or agents may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company may issue
Securities to or through underwriters, agents or dealers in connection with the
conversion or redemption of its outstanding securities.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as agents for the Company to solicit offers
by certain institutional investors to purchase Debt Securities or Preferred
Stock from the Company pursuant to contracts providing for payment and delivery
on a future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but shall in all
cases be subject to the approval of the Company. The obligations of the
purchaser under any such contract will not be subject to any conditions except
(i) the investment in the Debt Securities or Preferred Stock by the institution
shall not at the time of delivery be prohibited by the laws of any jurisdiction
in the United States to which such institution is subject, and (ii) if a portion
of the Debt Securities or Preferred Stock is being sold to underwriters, the
Company shall have sold to such underwriters the Debt Securities or Preferred
Stock not sold for delayed delivery. Underwriters and such other persons will
not have any responsibility in respect of the validity or performance of such
contracts.
All Debt Securities, Preferred Stock and Warrants offered will be a new
issue of securities with no established trading market. Any underwriters to whom
such Debt Securities, Preferred Stock and Warrants are sold by the Company for
public offering and sale may make a market in such Debt Securities, Preferred
Stock and Warrants, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any Debt Securities,
Preferred Stock or Warrants.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for the Company in the
ordinary course of business.
The specific terms and manner of sale of the Securities in respect of which
this Prospectus is being delivered are set forth or summarized in the Prospectus
Supplement.
22
<PAGE> 24
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for the Company
by Davis, Graham & Stubbs LLP Denver, Colorado.
EXPERTS
The Consolidated Financial Statements of the Company included in its Annual
Report on Form 10-K for the year ended December 31, 1996 and incorporated by
reference in this Prospectus, to the extent and for the periods indicated in
their report, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report dated February 24, 1997, with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in giving said report.
Estimates of historical oil and natural gas reserves of the Company as of
December 31, 1994 and 1995, incorporated by reference herein are based upon
engineering studies prepared by the Company and reviewed by the independent
petroleum engineering firms of Williamson Petroleum Consultants, Inc. and
Netherland, Sewell & Associates, Inc. Estimates of historical oil and natural
gas reserves of the Company as of December 31, 1996 incorporated by reference
herein are based upon engineering studies prepared by the Company. In the
aggregate, 78.4% of the Company's total reserves as of December 31, 1996 were
reviewed by the two engineering firms. Such estimates are incorporated by
reference herein in reliance upon the authority of such firms as experts in such
matters.
23
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
3.1 -- Amended and Restated Certificate of Incorporation of the
Company. (Incorporated herein by reference to Exhibit 3.1
to the Company's Registration Statement on Form S-1, No.
33-52774, filed October 2, 1992.)
3.2 -- Third Amended and Restated Bylaws of the Company adopted
December 16, 1996. (Incorporated herein by reference to
Exhibit 3.2 to the Company's Registration Statement on
Form S-4, No. 333-19433, filed January 8, 1997.)
4.1 -- Form of Indenture dated December 1, 1993, entered into
between the Company and the Trustee. (Incorporated by
reference to Exhibit 4.7 to Amendment No. 3 to the
Company's Registration Statement on Form S-3, No.
33-70354, filed November 23, 1993.)
4.2 -- Indenture dated November 27, 1996, among the Company,
Orion Acquisition, Inc., HSRTW, Inc., and Harris Trust
and Savings Bank as Trustee. (Incorporated herein by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-4, No. 333-19433, filed January 8,
1997.)
4.3 -- First Supplemental Indenture dated November 25, 1996
among the Company, Orion Acquisition, Inc., HSRTW, Inc.,
and Harris Trust and Savings Bank as Trustee.
(Incorporated herein by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-4, No.
333-19433, filed January 8, 1997.)
4.4* -- Form of Indenture
4.5+ -- Certificate of Designations of Preferred Stock
4.6+ -- Specimen Stock Certificate with respect to Preferred
Stock
4.7* -- Form of Preferred Stock Warrant Agreement (including form
of Preferred Stock Warrant Certificate)
4.8* -- Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate)
4.9* -- Form of Debt Warrant Agreement (including form of Debt
Warrant Certificate)
5.1* -- Opinion of Davis, Graham & Stubbs LLP
10.1 -- Amended Note and Warrant Purchase Agreement dated January
15, 1991, among NGP, Resolute Resources, Inc., and the
Company. (Incorporated by reference to Exhibit 4.4.1 to
the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1990, filed February 14,
1991.)
10.1.1 -- Amendment No. 1 to Note and Warrant Purchase Agreement
dated June 28, 1991, between the Company and NGP.
(Incorporated by reference to Exhibit 4.4.2 to the
Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1991, filed September 30, 1991.)
10.1.2 -- Second Amendment to Note and Warrant Purchase Agreement
dated August 17, 1992, between the Company and NGP.
(Incorporated by reference to Exhibit 4.2.2 to Amendment
No. 2 to the Company's Registration Statement on Form
S-1, No. 33-52774, filed November 19, 1992.)
</TABLE>
II-1
<PAGE> 26
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
10.1.3 -- Third Amendment to Note and Warrant Purchase Agreement
dated October 21, 1993, between the Company and NGP.
(Incorporated by reference to Exhibit 4.1.3 to Amendment
No. 2 to the Company's Registration Statement on Form
S-3, No. 33-70354, filed November 23, 1993.)
10.2 -- Amended and Restated Warrant Agreement dated January 15,
1991, between NGP and the Company. (Incorporated by
reference to Exhibit 4.5.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31,
1990, filed February 14, 1991.)
10.3 -- Amended Warrant No. W-1, dated January 15, 1991, and
issued by the Company to NGP. (Incorporated by reference
to Exhibit 4.6.1 to the Form 8, Second Amendment to Form
10, filed April 8, 1991.)
10.3.1 -- Amendment No. 1 to Amended Warrant No. W-1, dated
December 30, 1991, and issued by the Company to NGP.
(Incorporated by reference to Exhibit 4.6.2 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1991, filed on February 14, 1991.)
10.4 -- Form of Warrant No. W-10, dated January 28, 1992, and
issued by the Company to NGP. (Incorporated by reference
to Exhibit 4.16 to Amendment No. 1 to the Company's
Registration Statement on Form S-1, No. 33-52774, filed
November 9, 1992.)
10.5 -- 1987 Stock Incentive Plan, as amended December 2, 1996.
(Incorporated by reference to Exhibit 10.5 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed March 19, 1997 (as amended
by form 10-K/A filed on March 20, 1997.))
10.6 -- Common Stock Purchase Warrant dated July 12, 1990 by the
Company to James E. Duffy. (Incorporated by reference to
Exhibit 10.5 to the Form 8, Second Amendment to Form 10,
filed April 8, 1991.)
10.7 -- HS Resources, Inc. Rule 701 Compensatory Benefit Plan.
(Incorporated by reference to Exhibit 10.5.2 to the Form
8, Second Amendment to Form 10 filed April 8, 1991.)
10.8 -- 1992 Directors' Stock Option Plan. (Incorporated by
reference to Exhibit 10.10 to Amendment No. 1 to the
Company's Registration Statement on Form S-1, No. 33-
52774, filed November 9, 1992.)
10.8.1 -- 1993 Directors' Stock Option Plan. (Incorporated by
reference to Exhibit 10.8.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1993, filed March 31, 1994 (as amended by Form
10-K/A-1 on April 8, 1994.))
10.9 -- Form of Indemnification Agreement for Directors of the
Company. (Incorporated by reference to Exhibit 10.16 to
the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, filed March 25, 1996.)
10.10 -- Lease Agreement dated October 6, 1993, between the
Company and JMB Group Trust IV and Endowment and
Foundation Realty, Ltd. -- JMB III for the premises at
One Maritime Plaza, San Francisco, California.
(Incorporated by reference to Exhibit 10.13 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, filed March 31, 1994 (as amended
by Form 10-K/A-1 on April 8, 1994.))
</TABLE>
II-2
<PAGE> 27
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
10.11 -- Lease Agreement dated March 28, 1994, between the Company
and 1999 Broadway Partnership for the premises at 1999
Broadway, Denver, Colorado. (Incorporated by reference to
Exhibit 10.15 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1994, filed August
12, 1994.)
10.12 -- Interest exchange agreement between The Chase Manhattan
Bank, N.A. and the Company dated May 9, 1995.
(Incorporated by reference to Exhibit 10.19 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, filed August 14, 1995.)
10.13 -- Amended and Restated Agreement and Plan of Merger, dated
as of April 29, 1996, among the Company, HSR Acquisition,
Inc. and Tide West Oil Co. (Incorporated by reference as
Annex A to Amendment No. 2 to the Company's Registration
Statement on Form S-4, No. 333-01991, filed on May 2,
1996.)
10.14 -- Agreement for Purchase and Sale of Assets [Monetization],
dated as of February 24, 1996, among the Company, Basin
Exploration, Inc. ("Basin") and Orion Acquisition, Inc.
(Incorporated by reference to Exhibit 2.3 to the
Company's Form 8-K, filed March 12, 1996.)
10.15 -- Agreement for Purchase and Sale of Assets [Wattenberg],
dated as of February 24, 1996, among the Company, Orion
Acquisition, Inc. and Basin. (Incorporated by reference
to Exhibit A to the Company's Schedule 13D relating to
Basin Exploration, Inc. filed on March 6, 1996.)
10.16 -- Purchase and Sale Agreement, dated December 1, 1995,
between the Company and Wattenberg Gas Investments, LLC.
(Incorporated by reference to Exhibit 10.26 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed March 25, 1996.)
10.17 -- Rights Agreement, dated as of February 28, 1996, between
the Company and Harris Trust Company of California as
Rights Agent. (Incorporated by reference to Exhibit 1 to
the Company's Form 8-A, filed March 11, 1996.)
10.18 -- Purchase and Sale Agreement dated March 25, 1996 between
Orion Acquisition, Inc., the Company and Wattenberg
Resources Land, L.L.C. (Incorporated by reference to
Exhibit 10.28 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1996, filed May 15,
1996.)
10.19 -- Credit Agreement, dated as of June 7, 1996, among the
Company and The Chase Manhattan Bank, N.A. ("Chase"), as
agent of the Banks signatory thereto. (Incorporated by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, filed August 14,
1996.)
10.20 -- Amended and Restated Credit Agreement dated as of June
14, 1996, among the Company, Chase as agent, and the
Banks signatory thereto. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.21 -- First Amendment to Amended and Restated Credit Agreement
dated as of June 17, 1996, by and among the Company and
Chase in its individual capacity and as agent for the
Lenders. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.22 -- Second Amendment to Amended and Restated Credit Agreement
dated as of November 27, 1996 among the Company and Chase
in its individual capacity and as agent for the Lenders.
(Incorporated herein by reference to Exhibit 10.22 to the
Company's Registration Statement on Form S-4, No.
333-19433, filed January 8, 1997.)
</TABLE>
II-3
<PAGE> 28
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
10.23 -- Assignment of Liens and Amendment of Amended, Restated
and Consolidated Mortgage, Assignment of Production,
Security Agreement and Financing Statement, dated June
14, 1996, among Chase (Assignor), Chase (Assignee) and
the Company. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.24 -- Guaranty Agreement by HSR Acquisition, Inc. in favor of
Chase, as Agent, dated June 14, 1996. (Incorporated by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, filed August 14,
1996.)
10.25 -- Guaranty Agreement by Orion Acquisition, Inc. in favor of
Chase, as Agent, dated June 14, 1996. (Incorporated by
reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996, filed August 14,
1996.)
10.26 -- First Amendment to Guaranty Agreement dated as of June
17, 1996, by and among Orion Acquisition, Inc. and Chase,
in its individual capacity and as agent for the Lenders.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996,
filed August 14, 1996.)
10.27 -- First Amendment to Guaranty Agreement dated as of June
17, 1996, by and among HSRTW, Inc. (formerly HSR
Acquisition, Inc.) and Chase, in its individual capacity
and as agent for the Lenders. (Incorporated by reference
to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.28 -- Third Amendment and Supplement to Amended, Restated and
Consolidated Mortgage, Assignment of Production, Security
Agreement and Financing Statement, dated as of July 15,
1996, by and between the Company and Chase. (Incorporated
by reference to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1996, filed August
14, 1996.)
10.29 -- Hedging Agreement between Chase and the Company dated May
1, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.30 -- Hedging Agreement between Chase and the Company dated May
1, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.31 -- Hedging Agreement between Chase and the Company dated
June 1, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.32 -- Purchase and Sale Agreement between the Company and
Wattenberg Gas Investments, LLC dated April 25, 1996.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996,
filed August 14, 1996.)
10.33 -- Purchase and Sale Agreement between Wattenberg Resources
Land L.L.C. and Wattenberg Gas Investments, LLC dated May
21, 1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.34 -- Purchase and Sale Agreement between Orion Acquisition,
Inc. and Wattenberg Gas Investments, LLC dated June 14,
1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
</TABLE>
II-4
<PAGE> 29
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
10.35 -- Purchase and Sale Agreement between Wattenberg Resources
Land L.L.C. and Wattenberg Gas Investments, LLC dated
June 14, 1996. (Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996, filed August 14, 1996.)
10.36 -- Purchase and Sale Agreement between Orion Acquisition,
Inc. and Wattenberg Gas Investments, LLC dated June 14,
1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June
30, 1996, filed August 14, 1996.)
10.37 -- Purchase and Sale Agreement between the Company and
Wattenberg Gas Investments, LLC dated June 28, 1996.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996,
filed August 14, 1996.)
10.38 -- Purchase and Sale Agreement between HSRTW, Inc. and
Westtide Investments, LLC dated August 9, 1996.
(Incorporated by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1996, filed November 7, 1996.)
10.39 -- Acquisition Agreement between the Company and TCW
Portfolio No. 1555 DR V Sub-Custody Partnership, L.P.
dated August 30, 1996. (Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996, filed November 7, 1996.)
10.40 -- Purchase Agreement dated November 27, 1996 among the
Company, Orion Acquisition, Inc., HSRTW, Inc., Salomon
Brothers Inc., Chase Securities Inc., Lehman Brothers
Inc., and Prudential Securities Incorporated.
(Incorporated by reference to Exhibit 10.40 to the
Company's Registration Statement on Form S-4, No.
333-19433, filed January 8, 1997.)
10.41 -- Registration Agreement dated November 27, 1996 among the
Company, Orion Acquisition, Inc., HSRTW, Inc., and
Salomon Brothers Inc. in its individual capacity and as
agent for Chase Securities Inc., Lehman Brothers Inc.,
and Prudential Securities Incorporated. (Incorporated by
reference to Exhibit 10.41 to the Company's Registration
Statement on Form S-4, No. 333-19433, filed January 8,
1997.)
10.42 -- Employment Agreement between James Piccone and the
Company, dated April 21, 1995. (Incorporated by reference
to Exhibit 10.42 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996, filed
March 19, 1997.)
10.43 -- Registration Rights Agreement between the Company and
Natural Gas Partners, L.P., dated June 17, 1996.
(Incorporated by reference to Exhibit 4.4 to the
Company's Registration Statement on Form S-3, No.
333-28825, filed June 9, 1997.)
10.44 -- 1997 Performance and Equity Incentive Plan. (Incorporated
by reference to Exhibit A to the Company's Definitive
Proxy Statement for its Annual Meeting of Stockholders
held on May 22, 1997, filed April 24, 1997.)
23.1* -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Williamson Petroleum Consultants, Inc.
(Incorporated by reference to Exhibit 23.2 to the
Company's First Amendment to its Annual Report on Form
10-K/A, for the fiscal year ended December 31, 1997,
filed March 20, 1997.)
23.3 -- Consent of Netherland, Sewell & Associates, Inc.
(Incorporated by reference to Exhibit 23.3 to the
Company's First Amendment to its Annual Report on Form
10-K/A, for the fiscal year ended December 31, 1997,
filed March 20, 1997.)
</TABLE>
II-5
<PAGE> 30
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
23.4* -- Consent of Davis, Graham & Stubbs LLP (contained in
Exhibit 5.1).
25.1+ -- Statement of Eligibility of Trustee on Form T-1 with
respect to the Debt Securities.
</TABLE>
- ---------------
* Filed herewith
+ To be filed by amendment or subsequently incorporated herein
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement,
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, that are incorporated by reference in the
Registration Statement;
(b) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
II-6
<PAGE> 31
the Registrant of expenses is incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the Trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-7
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Denver, Colorado on the 16th day of June, 1997.
HS Resources, Inc.
a Delaware corporation
By: /s/ NICHOLAS J. SUTTON*
----------------------------------
Nicholas J. Sutton
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
and on the date indicated.
<TABLE>
<CAPTION>
NAME DESCRIPTION DATE
---- ----------- ----
<C> <S> <C>
/s/ NICHOLAS J. SUTTON* Chairman of the Board and Chief June 16, 1997
- ----------------------------------------------------- Executive Officer (Principal
Nicholas J. Sutton Executive Officer)
/s/ P. MICHAEL HIGHUM President and Director June 16, 1997
- ----------------------------------------------------- (Principal Executive Officer)
P. Michael Highum
/s/ JAMES E. DUFFY* Vice President -- Finance and June 16, 1997
- ----------------------------------------------------- Chief Financial Officer and
James E. Duffy Director (Principal Financial
Officer)
/s/ ANNETTE M. MONTOYA* Vice President -- June 16, 1997
- ----------------------------------------------------- Accounting/HR/OM (Principal
Annette M. Montoya Accounting Officer)
/s/ KENNETH A. HERSH* Director June 16, 1997
- -----------------------------------------------------
Kenneth A. Hersh
Director
- -----------------------------------------------------
Michael J. Savage
/s/ PHILIP B. SMITH* Director June 16, 1997
- -----------------------------------------------------
Philip B. Smith
*By: /s/ P. MICHAEL HIGHUM
------------------------------------------------
Attorney-in-fact
</TABLE>
II-8
<PAGE> 33
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.4 Form of Indenture
4.7 Form of Preferred Stock Warrant Agreement (including form
of Preferred Stock Warrant Certificate)
4.8 Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate)
4.9 Form of Debt Warrant Agreement (including form of Debt
Warrant Certificate)
5.1 Opinion of Davis, Graham & Stubbs LLP
23.1 Consent of Arthur Andersen LLP
23.4 Consent of Davis, Graham & Stubbs LLP (contained in Exhibit 5.1)
</TABLE>
<PAGE> 1
EXHIBIT 4.4
================================================================================
HS RESOURCES, INC.
--------------
Debt Securities
------------------------------
INDENTURE
Dated as of ____________ __, 199_
------------------------------
------------------------------
Trustee
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
Contents, p. i
TABLE OF CONTENTS
Page
----
<S> <C> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . 13
SECTION 1.03. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 2 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.02. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.03. Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.04. Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.05. Denomination of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.07. Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.08. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities . . . . . . . . . . . . . . . . . . . 25
SECTION 2.10. Cancellation of Surrendered Securities . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.11. Provisions of the Indenture and Securities for the Sole
Benefit of the Parties and the Holders . . . . . . . . . . . . . . . . . . . 26
SECTION 2.12. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.13. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.14. Securities Denominated in Foreign Currencies . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.15. Wire Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.16. Securities Issuable in the Form of a Global Security . . . . . . . . . . . . . . . . . 29
SECTION 2.17. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.18. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.19. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.20. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . 34
ARTICLE 3 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.02. Tax Redemption; Special Tax Redemption . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.03. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.04. Selection of Securities To Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.05. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.06. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Contents, p. ii
<S> <C> <C>
SECTION 3.07. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.08. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.09. Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.10. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.01. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.02. Payment of Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.03. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.04. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.05. Money for the Security Payments to be Held in Trust . . . . . . . . . . . . . . . . . 45
SECTION 4.06. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.07. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.08. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.09. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.10. Prohibition on Company Becoming Investment Company . . . . . . . . . . . . . . . . . . 47
ARTICLE 5 SUCCESSOR COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.01. Merger, Consolidation and Sale of Substantially All Assets . . . . . . . . . . . . . . 47
ARTICLE 6 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 7 TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Contents, p. iii
<S> <C> <C>
SECTION 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.08. Separate Trustee; Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.09. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . 60
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.02. Discharge of Liability on Securities . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.03. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.04. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.05. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.06. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.07. Indemnity for Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.08. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 9 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.04. Revocation and Effect of Consents and Waivers . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.05. Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 9.06. Trustee To Sign Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 10 SUBORDINATION OF THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.01. Applicability of Article; Agreement to Subordinate . . . . . . . . . . . . . . . . . 68
SECTION 10.02. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.03. Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.04. Security Payments Permitted if No Default . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.05. When Security Payment Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.06. Notices by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.07. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.08. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.09. Subordination May Not Be Impaired by the Company . . . . . . . . . . . . . . . . . . 73
SECTION 10.10. Distribution of Notice to Representative . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.11. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.12. Consent of Holders of Specified Senior Indebtedness . . . . . . . . . . . . . . . . . 74
SECTION 10.13. Contractual Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
Contents, p. iv
<S> <C> <C>
ARTICLE 11 CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.01. Applicability; Conversion Privilege and Conversion Price . . . . . . . . . . . . . . 74
SECTION 11.02. Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.03. Fractions of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 11.04. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 11.05. Notice of Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11.06. Notice of Certain Corporation Action . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 11.07. Company to Reserve Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.08. Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.09. Covenant as to Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.10. Company to Receive Converted Securities . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.11. Provisions in Case of Consolidation, Merger or
Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.12. Responsibility of Trustee and Conversion Agent . . . . . . . . . . . . . . . . . . . 81
ARTICLE 12 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.01. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.02. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 12.03. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 12.04. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 12.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 12.06. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . 86
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar . . . . . . . . . . . . . . . . . . . . 86
SECTION 12.08. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 12.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 12.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 12.11. Submission to Jurisdiction; Appointment of Agent
for Service of Process; Waiver of Immunities . . . . . . . . . . . . . . . . 87
SECTION 12.12. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 12.13. Multiple Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 12.14. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
Cross-Reference, p. v
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10; 13.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 13.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.06
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.01
N.A. Means Not Applicable.
</TABLE>
- --------------------------------------------------------------------------------
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
<PAGE> 7
INDENTURE dated as of ____________ __, 199_, among HS RESOURCES, INC.,
a Delaware corporation (the "Company"), and ________________________, a
__________ corporation, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued by the Company, unlimited as to principal amount, to
bear such rates of interest, to mature at such time or times, to be issued in
one or more series and to have such other provisions as shall be fixed as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Affiliate" of any specified Person means any other Person (i) which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person or (ii)
which beneficially owns or holds directly or indirectly 10% or more of any
class of the Voting Stock of such specified Person or of any Subsidiary of such
specified Person. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person directly or indirectly, whether through the
ownership of Voting Stock, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.02
with respect to the Securities of any series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in
<PAGE> 8
different newspapers in the same city meeting the foregoing requirements and in
each case on any business day in such city.
"Bank Credit Facility" means collectively, one or more senior credit
facilities or commercial paper facilities with banks or other institutional
lenders (including, without limitation, the credit facility pursuant to the
Amended and Restated Credit Agreement, dated June 14, 1996, as amended, among
the Company, The Chase Manhattan Bank, as Agent, and certain banks), together
with any security and related documents, as all such credit facilities and
documents may be amended, supplemented, extended, increased, refinanced or
replaced from time to time.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.
"Bearer Holder" means, with respect to any Bearer Security or Coupon,
the bearer thereof.
"Bearer Security" means any Security (with or without Coupons), title
to which passes by delivery only, but does not include any Coupons.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions are authorized or
obligated by law or executive order to close in New York, New York and, with
respect to any payment of cash or delivery of securities, the place of such
payment or delivery.
"Capitalized Lease Obligation" of any Person means the obligation of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes
in accordance with GAAP, and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Capital Stock" in any Person means any and all shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person and any rights (other than Securities convertible into an equity
interest), warrants or options to subscribe for or to acquire an equity
interest in such Person; provided, however, that "Capital Stock" shall not
include Redeemable Stock.
-2-
<PAGE> 9
"Change of Control" shall be deemed to occur if (i) any "person" or
"group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange
Act or any successor provision to either of the foregoing, including any group
acting for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any one or
more of the Permitted Holders, becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of 40% or more of the total voting power of
all classes of the Voting Stock of the Company and/or warrants or options to
acquire such Voting Stock, calculated on a fully diluted basis, (ii) the sale,
lease, conveyance or transfer of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole (other than to any Wholly Owned
Subsidiary) shall have occurred, (iii) the stockholders of the Company shall
have approved any plan of liquidation or dissolution of the Company, (iv) the
Company consolidates with or merges into another Person or any Person
consolidates with or merges into the Company in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is
reclassified into or exchanged for cash, securities or other property, other
than any such transaction where (A) the outstanding Voting Stock of the Company
is reclassified into or exchanged for Voting Stock of the surviving corporation
that is Capital Stock and (B) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than a majority of the Voting Stock of the surviving corporation immediately
after such transaction or (v) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Company's Board
of Directors (together with any new directors whose election or appointment by
such board or whose nomination for election by the stockholders of the Company
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Company's Board of Directors then in office.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this instrument, such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at ________________, ______________.
"Coupon" means any interest coupon appertaining to any Bearer
Security.
-3-
<PAGE> 10
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event, act or condition the occurrence of which
is, or after notice or the passage of time or both would be, an Event of
Default.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 2.02 or 2.16 with respect to Registered Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Dollar" or "$" means such currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by [Bankers Trust Company] (unless
another comparable financial institution is designated by the Company) in New
York, New York at approximately 11:00 a.m. (New York time) on the date two
business days prior to such determination.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Exchange Rate Contract" means, with respect to any Person, any
currency swap agreements, forward exchange rate agreements, foreign currency
futures or options, exchange rate collar agreements, exchange rate insurance
and other agreements or arrangements, or any combination thereof, designed and
entered into in order to provide protection against fluctuations in currency
exchange rates, and entered into in the ordinary course of business of such
Person.
"European Currency Units" has the meaning assigned to it from time to
time by the Council of the European Communities.
-4-
<PAGE> 11
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
"GAAP" means United States generally accepted accounting principles as
in effect on the date of this Indenture, unless stated otherwise.
"Global Security" means with respect to any series of Securities
issued hereunder, a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and any Indentures
supplemental hereto, or resolution of the Board of Directors and set forth in
an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all the Outstanding
Securities of such series or any portion thereof, in either case having the
same terms, including, without limitation, the same original issue date, date
or dates on which principal is due and interest rate or method of determining
interest.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including, without limitation,
any Lien on the assets of such Person securing obligations of the primary
obligor and any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase or payment of) any security for
the payment of such Indebtedness, (ii) to purchase Property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (and
"Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that a Guarantee by any Person shall not
include endorsements by such Person for collection or deposit in the ordinary
course of business.
"Holder" means the Person in whose name a Security is registered on
the Registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Indebtedness or other obligation on the balance sheet of such
Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing); provided, however, that a change in
GAAP that results in an obligation of such Person that exists at such time, and
is not theretofore classified as Indebtedness, becoming Indebtedness
-5-
<PAGE> 12
shall not be deemed an Incurrence of such Indebtedness. For purposes of this
definition, any non-interest bearing or other discount Indebtedness shall be
deemed to have been Incurred only on the date of the original issuance thereof.
"Indebtedness" means at any time (without duplication), with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (i) any Obligation of such Person for
borrowed money, (ii) any Obligation of such Person evidenced by bonds,
debentures, notes, Guarantees or other similar instruments, including, without
limitation, any such Obligations incurred in connection with the acquisition of
Property, assets or businesses, (iii) any reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) any Obligation of such
Person issued or assumed as the deferred purchase price of Property or
services, (v) any Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Stock of such Person at the
time of determination, (vii) any payment obligation of such Person under
Permitted Hedging Agreements at the time of determination, (viii) any
obligation to pay rent or other payment amounts of such Person with respect to
any Sale and Leaseback Transaction to which such Person is a party and (ix) any
obligation of the type referred to in clauses (i) through (viii) of this
paragraph of another Person and all dividends of another Person the payment of
which, in either case, such Person has Guaranteed or is responsible or liable,
directly or indirectly, as obligor, Guarantor or otherwise; provided that
Indebtedness shall not include Production Payments and Reserve Sales. For
purposes of this definition, the maximum fixed repurchase price of any
Redeemable Stock that does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Stock as if such
Redeemable Stock were repurchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture; provided, however, that
if such Redeemable Stock is not then permitted to be repurchased, the
repurchase price shall be the book value of such Redeemable Stock. The amount
of Indebtedness of any Person at any date shall be the outstanding balance at
such date of all unconditional Obligations as described above and the maximum
liability at such date in respect of any contingent Obligations described
above.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Protection Agreement" means, with respect to any
Person, any interest rate swap agreement, forward rate agreement, interest rate
cap or other rate hedge arrangement to or under which such Person is a party or
a beneficiary.
"Issue Date" means the date upon which Securities of any series first
are issued and authenticated under this Indenture.
-6-
<PAGE> 13
"Lien" means, with respect to any Property, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien (statutory or other), charge, easement, encumbrance, preference,
priority or other security or similar agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such Property (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"9-1/4% Notes" means the 9-1/4% Senior Subordinated Notes due 2006 of
the Company in the original aggregate principal amount of $150,000,000.
"9-7/8% Notes" means the 9-7/8% Senior Subordinated Notes due 2003 of
the Company in the original aggregate principal amount of $75,000,000.
"Obligation" means any principal, interest, premium, penalty, fee and
any other liability payable under the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers
meeting the requirements set forth in Section 12.01 and delivered to the
Trustee.
"Oil and Gas Business" means the business of exploiting, exploring
for, developing, acquiring, producing, processing, gathering, marketing,
storing, transporting, selling, hedging or swapping hydrocarbons or trading
positions with respect thereto and/or with respect to transportation rates or
basis differentials and other related energy businesses.
"Oil and Gas Purchase, Sale and/or Swap Contract" means, with respect
to any Person, any oil and gas purchase, sale and/or swap agreements and other
agreements or arrangements, or any combination thereof, financially tied to oil
and gas prices, transportation or basis fluctuations or differentials that are
customary in the Oil and Gas Business.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Order" or "Company Order" means a written order signed in the name of
the Company by an Officer and delivered to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
-7-
<PAGE> 14
"Outstanding", when used with respect to any series of Securities,
means, as of the date of determination, all Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities of that series theretofore
canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities of that series for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any paying agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent) for the Holders of
such Securities; provided, that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities of that series which have been
paid or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or an Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.02. In determining
whether the Holders of the requisite principal amount of the Outstanding
Securities of any series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Security denominated in one or more foreign currencies or currency units that
shall be deemed to be Outstanding for such purposes shall be the Dollar
Equivalent, determined in the manner provided
-8-
<PAGE> 15
as contemplated by Section 2.02 on the date of original issuance of such
Security, of the principal amount (or, in the case of any Original Issue
Discount Security, the Dollar Equivalent on the date of original issuance of
such Security of the amount determined as provided in the preceding sentence
above) of such Security.
"Paying Agent" has the meaning specified in Section 2.06.
"Permitted Designee" means (i) a spouse or a child of a Permitted
Holder, (ii) trusts whose sole beneficiaries are Permitted Holders or spouses
or children of Permitted Holders, (iii) in the event of the death or
incompetence of a Permitted Holder, his estate, heirs, executor, administrator,
committee or other personal representative or (iv) any Person so long as a
Permitted Holder owns at least 51% of the voting power of all classes of the
Voting Stock of such Person.
"Permitted Hedging Agreements" means Interest Rate Protection
Agreements, Exchange Rate Contracts and Oil and Gas Purchase, Sale and/or Swap
Contracts.
"Permitted Holders" means Nicholas J. Sutton, P. Michael Highum and
their Permitted Designees.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof or other entity.
"Place of Payment" means, when used with respect to the Securities of
any series, the place or places where the principal of, and premium, if any,
and interest on, the Securities of that series are payable as specified
pursuant to Section 2.02.
"Principal Agent" means the administrative agent(s) (or the
institution(s) performing similar functions) under the Bank Credit Facility.
"Production Payments and Reserve Sales" means the grant or transfer to
any Person of a royalty, overriding royalty, net profits interest, production
payment (whether volumetric or dollar denominated), partnership interest or
other interest in oil and gas properties, reserves or the right to receive all
or a portion of the production or the proceeds from the sale of production
attributable to such properties where the holder of such interest has recourse
solely to such production or proceeds of production, subject to the obligation
of the grantor or transferor to operate and maintain, or cause the subject
interests to be operated and maintained, in a reasonably prudent manner or
other customary standard or subject to the obligation of the grantor or
transferor to indemnify for environmental, title or other matters customary in
the Oil and Gas Business.
-9-
<PAGE> 16
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed or
tangible or intangible, including, without limitation, Capital Stock and other
securities issued by any other Person (but excluding Capital Stock or other
securities issued by such first mentioned Person).
"Redeemable Stock" of any Person means any equity security of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or otherwise (including on the
happening of an event), is or could become required to be redeemed for cash or
other Property or is or could become redeemable for cash or other Property at
the option of the holder thereof, in whole or in part, on or prior to the first
anniversary of the Stated Maturity of the Securities of a particular series; or
is or could become exchangeable at the option of the holder thereof for
Indebtedness at any time in whole or in part, on or prior to the first
anniversary of the Stated Maturity of the Securities of a particular series;
provided, however, that "Redeemable Stock" shall not include any security by
virtue of the fact that it may be exchanged or converted at the option of the
holder for Capital Stock of the Company having no preferences as to dividends
or liquidation over any other Capital Stock of the Company.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Security registered as to principal
and interest in the Security Register (as defined in Section 2.07(a)).
"Registrar" has the meaning specified in Section 2.06.
"Regular Record Date" for the interest payable on any Interest Payment
Date series, means the date specified for that purpose as contemplated by
Section 2.02.
"Representative" means any trustee, agent or representative (if any)
for the holders of any Indebtedness that constitutes Senior Indebtedness.
"Responsible Officer" means, when used with respect to the Trustee,
any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant secretary or any other officer
of the Trustee to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with the particular subject.
"Sale and Leaseback Transaction" means, with respect to any Person,
any direct or indirect arrangement (excluding, however, any such arrangement
between such Person and a Wholly Owned Subsidiary of such Person or between one
or more Wholly Owned Subsidiaries of such Person) pursuant to which Property is
sold or transferred by such Person or a Subsidiary of such Person and
-10-
<PAGE> 17
is thereafter leased back from the purchaser or transferee thereof by such
Person or one of its Subsidiaries.
"Security" has the meaning stated in the first paragraph of this
Indenture and more particularly means any Security of any series authenticated
and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the Obligations of the Company with
respect to (i) Indebtedness of the Company under the Bank Credit Facility and
any renewal, refunding, refinancing, replacement or extension thereof and (ii)
any other Indebtedness of the Company (other than the Securities), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, and any renewal, refunding, refinancing, replacement or extension
thereof, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Securities or that such indebtedness is pari passu with or
junior to the Securities; [If Subordinated Indebtedness, insert -- provided,
however, that any series of Securities designated as Senior Subordinated
Indebtedness shall constitute Senior Indebtedness to any series of Securities
designated as Subordinated Indebtedness]. Notwithstanding the foregoing, Senior
Indebtedness shall not include (i) Indebtedness of the Company to a Subsidiary
of the Company, (ii) amounts owed for goods, materials or services purchased in
the ordinary course of business, (iii) Indebtedness incurred in violation of
this Indenture, (iv) amounts payable or any other Indebtedness to employees of
the Company or any Subsidiary of the Company, (v) any liability for Federal,
state, local or other taxes owed or owing by the Company, (vi) any Indebtedness
of the Company that, when incurred and without regard to any election under
Section 1111(b) of the United States Bankruptcy Code, was without recourse to
the Company,[If Senior Subordinated Indebtedness, insert -- (vii) Indebtedness
evidenced by the 9-7/8% Notes, (viii) Indebtedness evidenced by the 9-1/4%
Notes and (ix) Indebtedness evidenced by the Securities.]
[If applicable, insert -- "Senior Subordinated Indebtedness" means the
Securities and any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank pari passu with other Senior Subordinated
Indebtedness of the Company and is not subordinated by its terms to any
Indebtedness of the Company which is not Senior Indebtedness.]
"Significant Subsidiary" means, at any date of determination, any
Subsidiary of a Person that, together with its Subsidiaries, (A) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of such Person and its Subsidiaries or (B) as of the end
of such fiscal year, was the owner of more than 10% of the consolidated assets
of such Person and its Subsidiaries.
-11-
<PAGE> 18
"Specified Senior Indebtedness" means Indebtedness of the Company
under the Bank Credit Facility.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such security as the fixed date on which the principal of such security or
such installment of principal or interest is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the holder
thereof upon the happening of any contingency unless such contingency has
occurred).
"Subordinated Indebtedness" means Indebtedness of the Company that
specifically provides that such Indebtedness is to rank pari passu with other
Subordinated Indebtedness of the Company and is not subordinated by its terms
to any Indebtedness of the Company which is not Senior Indebtedness or Senior
Subordinated Indebtedness.
"Subsidiary" of a Person means (i) another Person which is a
corporation a majority of whose Voting Stock is at the time, directly or
indirectly, owned or controlled by (A) the first Person, (B) the first Person
and one or more of its Subsidiaries or (C) one or more of the first Person's
Subsidiaries or (ii) another Person which is not a corporation (A) at least 50%
of the ownership interest of which and (B) the power to elect or direct the
election of a majority of the directors or other governing body of which are
controlled by Persons referred to in clause (i)(A), (i)(B) or (i)(C) above.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provision of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee. If at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual,
a nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal
-12-
<PAGE> 19
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian, with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" means, at any time, a Subsidiary all of the
Voting Stock of which (except directors' qualifying shares) is at the time
owned, directly or indirectly, by the Company and its other Wholly Owned
Subsidiaries.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities of any series.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
-13-
<PAGE> 20
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meanings assigned to them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
(7) provisions apply to successive events and
transactions; and
(8) references to agreements and other instruments
include subsequent amendments and waivers but only to the extent not
prohibited by this Indenture.
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. The Securities and Coupons, if any, of
each series shall be in substantially the form as shall be established, without
the approval of any Holder, by or pursuant to Board Resolutions of the Board of
Directors of the Company or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or the
rules of any securities exchange or to conform to general usage or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series
-14-
<PAGE> 21
is established by action taken pursuant to such Board Resolutions, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Order contemplated by Section 2.02 for the authentication
and delivery of such Securities.
The definitive Securities of each series and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, as evidenced by their execution of such Securities and
Coupons.
Each Bearer Security and each Coupon shall bear a legend substantially
to the following effect: "Any United States Person who holds this obligation
will be subject to limitations under the United States Federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
SECTION 2.02. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
All Securities of each series under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time of
the authentication and delivery or Stated Maturity of the Securities of such
series. There shall be established in or pursuant to Board Resolutions of the
Company and set forth, or determined in the manner provided, in an Officers'
Certificate of the Company, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to the provisions of this Indenture);
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
is registered at the close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of the
Securities of the series is payable;
-15-
<PAGE> 22
(e) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the method
by which such rate or rates are determined, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such interest
shall be payable on any Securities and the Regular Record Date for any interest
payable on any Interest Payment Date, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months;
(f) the place or places, if any, in addition to or
instead of the Corporate Trust Officer of the Trustee (in the case of
Registered Securities on the principal __________ office of the Trustee (in the
case of Bearer Securities) where the principal of and any premium and interest
on the Securities of the series shall be payable;
(g) whether Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer Securities
are to be issued, whether Coupons will be attached thereto, whether Bearer
Securities of the series may be exchanged for Registered Securities of the
series and the circumstances under which and the places at which any such
exchanges, if permitted, may be made;
(h) if any Securities of the series are to be issued as
Bearer Securities or as one or more Global Securities representing individual
Bearer Securities of the series, (i) whether the provisions of Sections 3.02
and 4.02 or other provisions for payment of additional interest or tax
redemptions shall apply and, if other provisions shall apply, such other
provisions; (ii) whether interest in respect of any portion of a temporary
Bearer Security of the series (delivered pursuant to Section 2.08) payable in
respect of any interest payment date prior to the exchange of such temporary
Bearer Security for definitive Bearer Securities of the series shall be paid to
any clearing organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date; and (iii) the terms upon which
a temporary Bearer Security may be exchanged for one or more definitive Bearer
Securities of the series;
(i) the period or periods within which, the price or
prices at which, and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company and,
if other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(j) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund, purchase fund
or analogous obligation or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
-16-
<PAGE> 23
(k) if other than denominations of U.S. $1,000 and any
integral multiple thereof, the denominations in which Securities of the series
shall be issuable;
(l) the currency, currencies or currency unit or units in
which the Securities of such series shall be denominated and in which payment
of the principal of and any premium and interest on any Securities of such
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of Dollar
Equivalent.
(m) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined by
reference to an index, formula or other method, including, without limitation,
such method based on (i) currency, currencies or currency units other than that
in which the Securities of such series are payable, (ii) changes in the price
of one or more other securities or groups or indices of securities, or (iii)
changes in the prices of one or more commodities or groups or indexes of
commodities or any combination of the foregoing, the manner in which such
amounts shall be determined and any commodities, currencies, currency units or
indices, value, rate or price relevant to such determination;
(n) if the principal of or any premium or interest on any
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made shall be payable, and the period or periods within which, and the terms
and conditions upon which, such election is to be made and the amount so
payable or the manner in which such amount shall be determined;
(o) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02 or provable in bankruptcy pursuant to Section 6.09;
(p) if the principal amount payable at the Stated
Maturity of any Securities of the series is not determinable upon original
issuance thereof or as of any date prior to Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of any such
date for any other purpose hereunder, including the principal amount thereof
which shall be due and payable upon any maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date (or, in any such
case, the manner in which such principal amount shall be determined);
(q) if applicable, that the Securities of the series
shall be subject to either or both of legal defeasance or covenant defeasance
as provided in Article 8 and the addition of additional covenants that may be
subject to covenant defeasance thereunder; provided that no series of
-17-
<PAGE> 24
Securities that is convertible into or exchangeable for any other securities
pursuant to Section 2.02(s) shall be subject to legal defeasance pursuant to
Section 8.03;
(r) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such Global
Securities, the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in Section 2.16 and
any circumstances other than those set forth in Section 2.07 in which any such
Global Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the Depositary for
such Global Security or a nominee thereof and in which any such transfer may be
registered;
(s) the terms and conditions, if any, pursuant to which
the Securities are convertible into or exchangeable at the option of the
Holders thereof or the Company, for or into new Securities of a different
series, other Securities of the same series of the same aggregate principal
amount of a different kind or different authorized denomination or
denominations, or other securities or other property, including shares of
Common Stock of the Company or any Subsidiaries of the Company or securities
directly or indirectly convertible into or exchangeable for such shares
including the extent to which the provisions of Article 11 are incorporated as
part of the Securities of such series, and any additions or deletions
therefrom;
(t) if applicable, any covenants in addition to those set
forth in Article 4 to which the Company may be subject with respect to
Securities of such series; or any other additions, deletions or changes to the
provisions of Article 4 or any definitions relating to such Article that shall
be applicable to the Securities of the series (including a provision making any
Section of such Article inapplicable to the Securities of such series or
conditioning any merger, conveyance, transfer or lease permitted by Article 5
upon the satisfaction of an Indebtedness coverage standard by the Company and
the Surviving Entity (as defined in Article 5));
(u) any trustees, authenticating or paying agents,
transfer agents or registrars;
(v) the terms, if any, of the transfer, mortgage, pledge
or assignment as security for the Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the TIA are applicable and any corresponding changes to
provisions of this Indenture as currently in effect;
(w) the terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Securities of the series
and any corresponding additions to the provisions of this Indenture to provide
for such Guarantee;
(x) the subordination, if any, of the Securities of the
series and/or any Guarantee thereof pursuant to Article 10 or otherwise and
any changes or additions to Article 10;
-18-
<PAGE> 25
(y) with regard to Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
(z) any Event of Default with respect to the Securities
of such series, if not set forth herein, and any additions, deletions or other
changes to the Events of Default set forth herein that shall be applicable to
the Securities of such series (including a provision making any Event of
Default set forth herein inapplicable to the Securities of that series) and any
change in the right of the Trustee or the Holders to declare the principal of,
and premium and interest on, such Securities due and payable;
(aa) provisions, if any, regarding the appointment by the
Trustee of an authenticating agent in one or more places other than the
location of the office of the Trustee with power to act on behalf of the
Trustee and subject to its direction in the authentication and delivery of the
Securities of any one or more series in connection with such transactions as
shall be specified in the provisions of this Indenture or in or pursuant to the
Board Resolution or other supplemental indenture creating such series;
(bb) the provisions for the payment of any additional
amounts, to the extent not set forth herein;
(cc) whether the provisions of Section 4.03 shall apply in
respect of such series; and
(dd) any other terms of the series, which shall not be
inconsistent with the provisions of this Indenture.
All Securities of any one series and the Coupons, if any, appertaining
thereto, shall be substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to the Board Resolutions of the
Company referred to above and set forth, or determined in the manner provided,
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto. All Securities of any one series and the Coupons, if any,
appertaining thereto need not be issued at the same time and, unless otherwise
provided, a series may be reopened for issuances of additional Securities of
such series.
If any of the terms of the series are established by action taken
pursuant to Board Resolutions of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificates setting forth the terms of the series.
SECTION 2.03. Execution of Securities. The Securities and the
Coupons, if any, shall be signed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer or a Vice
-19-
<PAGE> 26
President and by its Secretary, an Assistant Secretary, a Treasurer or an
Assistant Treasurer. Such signatures upon the Securities and Coupons may be the
manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Securities and
Coupons. The seal of the Company, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities and Coupons.
Only such Securities and Coupons as shall bear thereon a certificate
of authentication substantially in the form hereinbefore recited, signed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security or Coupon executed by the Company shall be conclusive evidence
that the Security or Coupon so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Securities or Coupons shall cease to be such officer before the Securities or
Coupons so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities or Coupons nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Securities or Coupons had not ceased to be such officer of the Company; and any
Security or Coupon may be signed on behalf of the Company by such Persons as,
at the actual date of the execution of such Security or Coupon, shall be the
proper officers of the Company, although at the date of such Security or Coupon
or of the execution of this Indenture any such Person was not such officer.
SECTION 2.04. Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities, with appropriate Coupons, if any, of any series
executed by the Company to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Securities and Coupons to or upon
an Order by the Company. In authenticating such Securities and Coupons, and
accepting the additional responsibilities under this Indenture in relation to
such Securities and Coupons, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board
of Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance of any series of Securities
and Coupons;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel prepared in accordance with
Section 12.01 which shall also state that the form of such Securities
and Coupons has been established by or pursuant
-20-
<PAGE> 27
to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.02 in conformity with the
provisions of this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities and Coupons, if any, of any series.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, paying
agent or agent for service of notices and demands.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
SECTION 2.5. Denomination of Securities. Unless otherwise provided
in the form of Security for any series, the Securities of each series shall be
issuable only as Registered Securities in such denominations as shall be
specified or contemplated by Section 2.02. In the absence of any such
specification with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 2.6. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). Unless and until
otherwise determined by the Company by resolution of the Board of Directors,
the register of the Company for the purpose of registration, exchange or
registration of transfer of the Registered Securities shall be kept at the
Corporate Trust Office of the Trustee and, for this purpose, the Trustee shall
be designated "Registrar". The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents; provided, however, that
so long as ____________________ shall be the Trustee, without the consent of
the Trustee, there shall be no more than one Registrar or Paying Agent. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the names and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to
-21-
<PAGE> 28
appropriate compensation therefor pursuant to Section 7.07. The Company or any
of its domestically incorporated Wholly Owned Subsidiaries may act as Paying
Agent, Registrar, co-registrar or transfer agent.
SECTION 2.7. Registration of Transfer and Exchange.
(a) The Company shall keep or cause to be kept a register
for each series of Registered Securities issued hereunder (hereinafter
collectively referred to as the "Security Register"), in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the transfer of Registered Securities
as in this Article II provided. At all reasonable times the Security Register
shall be open for inspection by the Trustee. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee, in writing at least five Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders. Subject to
Section 2.16, upon due presentment for registration of transfer of any
Registered Security at any office or agency to be maintained by the Company in
accordance with the provisions of Section 4.04, the Company shall execute and
the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of authorized
denominations for a like aggregate principal amount. In no event may Registered
Securities, including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities.
Registered Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same series of other authorized
denominations. Subject to Section 2.16, Registered Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Company as
provided in Section 4.04, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
At the option of the Holder of Bearer Securities of any series, except
as otherwise specified as contemplated by Section 2.02(h) or 2.02(r) with
respect to a Global Security representing Bearer Securities, Bearer Securities
of such series may be exchanged for Registered Securities (if the Securities of
such series are issuable as Registered Securities) or Bearer Securities of the
same series, of any authorized denomination or denominations, of like tenor and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at the office or agency of the Company maintained for such purpose,
with all unmatured Coupons and all matured Coupons in Default thereto
appertaining; provided, however, that delivery of a Bearer Security shall occur
only outside the United States. If such Holder is unable to produce any such
unmatured Coupon or
-22-
<PAGE> 29
Coupons or matured Coupon or Coupons in Default, such exchange may be effected
if such Holder's Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any paying agent harmless. If thereafter such Holder shall surrender to any
paying agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 2.13,
interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside the United
States.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Securities in effect at the time of such
exchange.
(b) All Registered Securities presented or surrendered
for registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Securities issued in exchange for or upon transfer of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Securities
surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Securities (except as provided by Section 2.09), but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto, other than those expressly
provided in this Indenture to be made at the Company's own expense or without
expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Securities for a period of 15 days next preceding any
mailing of notice of redemption of Securities of such series or (b) to register
the transfer of or exchange any Securities selected, called or being called for
redemption; provided, however, that, if specified pursuant to Section 2.02, any
Bearer Securities of any series that are exchangeable for Registered Securities
and that are called for redemption pursuant to Section 3.02 may, to the extent
permitted by applicable law, be exchanged for one or more Registered Securities
of such series during the period preceding the redemption date therefor.
-23-
<PAGE> 30
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of,
and premium, if any, and interest on, such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, any Paying Agent or Registrar shall be affected by notice to the
contrary.
None of the Company, the Trustee, any agent of the Trustee, any Paying
Agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 2.08. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed,
photocopied, typewritten or otherwise produced) of any authorized denomination,
and substantially in the form of the definitive Securities in lieu of which
they are issued, in registered form or, if authorized, in bearer form with one
or more Coupons or without Coupons, and with such omissions, insertions and
variations as may be appropriate for temporary Securities and Coupons, all as
may be determined by the Company with the concurrence of the Trustee. Temporary
Securities and Coupons may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. Except as otherwise specified as contemplated by Section 2.02(h)(iii)
with respect to a series of Securities issuable as Bearer Securities or as one
or more Global Securities representing individual Bearer Securities of the
series, (a) after the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company at a Place of Payment for such
series, without charge to the Holder thereof, except as provided in Section
2.07 in connection with a transfer and except that a Person receiving
definitive Bearer Securities shall bear the cost of insurance, postage,
transportation and the like unless otherwise specified pursuant to Section
2.02, and (b) upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations and of like tenor; provided,
however, that
-24-
<PAGE> 31
no definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that delivery of a Global Security
representing individual Bearer Securities or a Bearer Security shall occur only
outside the United States. Until so exchanged, temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series, except as otherwise
specified as contemplated by Section 2.02(h)(ii) with respect to the payment of
interest on Global Securities in temporary form.
Unless otherwise specified pursuant to Section 2.02, the Company will
execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in __________ or such other place outside the United States specified
pursuant to Section 2.02.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Securities represented thereby
pursuant to Section 2.07 or this Section 2.08, the temporary Global Security
shall be endorsed by the Trustee to reflect the reduction of the principal
amount evidenced thereby, whereupon the principal amount of such temporary
Global Security shall be reduced for all purposes by the amount so exchanged
and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities. If (i)
any mutilated Security or any mutilated Coupon with the Coupon Security to
which it appertains (and all unmatured Coupons attached thereto) is surrendered
to the Trustee at its Corporate Trust Office (in the case of Registered
Securities) or at its principal _________ office (in the case of Bearer
Securities) or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security or any Coupon,
and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any Paying Agent
harmless, and neither the Company nor the Trustee receives notice that such
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and, upon a Company Order, the Trustee shall authenticate and
deliver, if the requirements of Section 8-405 of the Uniform Commercial Code
are met and the Holder satisfies any other reasonable requirements of the
Trustee, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertained, a new Security of the same series
of like tenor, form, terms and principal amount, bearing a number not
contemporaneously Outstanding, and, in the case of a Coupon Security, with such
Coupons attached thereto that neither gain nor loss in interest shall result
from such exchange or substitution. If required by the Trustee or the Company,
such Holder shall furnish an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee, the Paying Agent,
the Registrar and any co-registrar from any loss which any of them may suffer
if a Security is replaced. Upon the issuance of any substituted Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Security or Coupon which has matured
or is about to mature or which has been called for redemption shall
-25-
<PAGE> 32
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Security or Coupon, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security or
Coupon) if the applicant for such payment shall furnish the Company and the
Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof; provided, however, that payment of principal of, and premium, if any,
and interest on, Bearer Securities or Coupons shall, except as otherwise
provided in Section 2.13, be payable only at an office or agency located
outside the United States.
Every substituted Security of any series, with its Coupons, if any,
issued pursuant to the provisions of this Section 2.09 by virtue of the fact
that any Security or Coupon is destroyed, lost or stolen shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security or Coupon shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and Coupons,
if any, duly issued hereunder. All Securities and Coupons, if any, shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons, and shall preclude any and all other
rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation of Surrendered Securities. The Company at
any time may deliver Securities to the Trustee for cancellation. All Securities
surrendered for payment, redemption, registration of transfer or exchange and
all Coupons surrendered for payment or exchange shall, if surrendered to the
Company or any Paying Agent or a Registrar, be delivered to the Trustee for
cancellation by it, or if surrendered to the Trustee, shall be canceled by it,
and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee and
no one else shall cancel and destroy (subject to the record retention
requirements of the Exchange Act) all Securities surrendered for registration
of transfer, exchange, payment or cancellation and certification of their
destruction shall be delivered to the Company, unless otherwise directed. On
request of the Company, the Trustee shall deliver to the Company canceled
Securities and Coupons held by the Trustee. If the Company shall acquire any of
the Securities or Coupons, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented thereby unless and
until the same are delivered or surrendered to the Trustee for cancellation.
The Company may not issue new Securities or Coupons to replace Securities or
Coupons it has redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.11. Provisions of the Indenture and Securities for the
Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in
the Securities or Coupons, expressed or implied, shall give or be construed to
give to any Person, other than the parties hereto, the Holders or any
-26-
<PAGE> 33
Registrar or Paying Agent, any legal or equitable right, remedy or claim under
or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto, the Holders and any Registrar and Paying
Agents.
SECTION 2.12. Paying Agent to Hold Money in Trust. Prior to each due
date of the principal and interest on any Security, the Company shall deposit
with the Paying Agent a sum sufficient to pay such principal and interest when
so becoming due. The Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed by the Paying Agent. Upon complying with this Section, the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.13. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security that is payable
and is punctually paid or duly provided for on any Interest Payment Date shall
be paid to the Person in whose name such Registered Security is registered at
the close of business on the Regular Record Date for such interest
notwithstanding the cancellation of such Registered Security upon any transfer
or exchange subsequent to the Regular Record Date. In case a Coupon Security of
any series is surrendered in exchange for a Registered Security of such series
after the close of business (at an office or agency in a Place of Payment for
such series) on any Regular Record Date and before the opening of business (at
such office or agency) on the next succeeding Interest Payment Date, such
Coupon Security shall be surrendered without the Coupon relating to such
Interest Payment Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Coupon
Security, but will be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture. Payment of interest on
Registered Securities shall be made at the Corporate Trust Office of the
Trustee (except as otherwise specified pursuant to Section 2.02), or at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or, if provided
pursuant to Section 2.02 and in accordance with arrangements satisfactory to
the Trustee, at the option of the Registered Holder by wire transfer to an
account designated by the Registered Holder.
(b) No interest shall be payable with respect to a Bearer
Security or Coupon unless such certification requirements as are specified
pursuant to Section 2.02(h)(iii) are satisfied with respect to such Bearer
Security or Coupon. Interest on any Coupon Security that is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Coupon that has matured on such Interest Payment Date upon
surrender of such Coupon on such
-27-
<PAGE> 34
Interest Payment Date at the principal __________ office of the Trustee or at
such other place of payment outside the United States specified pursuant to
Section 2.02.
Interest on any Bearer Security (other than a Coupon Security) that is
payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Bearer Security upon presentation of
such Bearer Security and notation thereon on such Interest Payment Date at the
principal __________ office of the Trustee or at such other Place of Payment
outside the United States specified pursuant to Section 2.02.
Unless otherwise specified pursuant to Section 2.02, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, and subject
to applicable laws and regulations, payments in respect of such Bearer Security
or Coupon will be made by check drawn on a bank in New York, New York or, in
accordance with arrangements satisfactory to the Trustee, by wire transfer to a
Dollar account maintained by such Holder with a bank outside the United States.
If such payment at the offices of all Paying Agents outside the United States
becomes illegal or is effectively precluded because of the imposition of
exchange controls or similar restrictions on the full payment or receipt of
such amounts in Dollars, then, to the extent permitted by United States tax
law, the Company will appoint an office or agent in the United States at which
such payment may be made. Unless otherwise specified pursuant to Section 2.02,
at the direction of the Holder of any Bearer Security or Coupon payable in a
Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or, in accordance with
arrangements satisfactory to the Trustee, by wire transfer to an appropriate
account maintained by such Holder outside the United States. Except as provided
in this paragraph, no payment on any Bearer Security or Coupon will be made by
mail to an address in the United States or by transfer to an account in the
United States.
(c) Subject to the foregoing provisions of this Section
2.13 and Section 2.17, each Security of a particular series delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14. Securities Denominated in Foreign Currencies.
(a) Except as otherwise specified pursuant to Section
2.02 for Bearer Securities of any series, payment of the principal of, and
premium, if any, and interest on, Bearer Securities of such series denominated
in any Currency will be made in such Currency.
(b) Except as otherwise specified pursuant to Section
2.02 for Registered Securities of any series, payment of the principal of, and
premium, if any, and interest on, Registered Securities of such series will be
made in Dollars.
-28-
<PAGE> 35
(c) For the purposes of calculating the principal amount
of Securities of any series denominated in a Foreign Currency or Foreign
Currencies (including European Currency Units) for any purpose under this
Indenture, the principal amount of such Securities at any time Outstanding
shall be deemed to be the Dollar Equivalent of such principal amount as of the
date of any such calculation.
In the event any Foreign Currency or Currencies in which any payment
with respect to any series of Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter
on which payment of principal of, or premium, if any, or interest on, the
Securities of a series is due, the Company shall select the Currency of payment
for use on such date, all as provided in the Securities of such series. In such
event, the Company shall, as provided in the Securities of such series, notify
the Trustee of the Currency which it has selected to constitute the funds
necessary to meet the Company's obligations on such payment date and of the
amount of such Currency to be paid. Such amount shall be determined as provided
in the Securities of such series. The payment to the Trustee with respect to
such payment date shall be made by the Company solely in the Currency so
selected.
SECTION 2.15. Wire Transfers. Notwithstanding any other provision to
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Securities (whether pursuant to optional
or mandatory redemption payments, interest payments or otherwise) by wire
transfer in immediately available funds to an account designated by the Trustee
on or before the date such moneys are to be paid to the Holders of the
Securities in accordance with the terms hereof.
SECTION 2.16. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section
2.02 that the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance with Section 2.04,
authenticate and deliver, such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Company shall specify in an Officer's Certificate, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary
or pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary", or such
other legend as may then be required by the Depositary for such Global Security
or Securities.
-29-
<PAGE> 36
(b) Notwithstanding any other provision of this Section
2.16 or of Section 2.07 to the contrary, and subject to the provisions of
paragraph (c) below, unless the terms of a Global Security expressly permit
such Global Security to be exchanged in whole or in part for definitive
Securities in registered form, a Global Security may be transferred, in whole
but not in part and in the manner provided in Section 2.07, only by the
Depositary to a nominee of the Depositary for such Global Security, or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary, or by the Depositary or a nominee of the Depositary to a successor
Depositary for such Global Security selected or approved by the Company, or to
a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global
Security or Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or Securities or if at any time
the Depositary for the Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company shall execute, and the Trustee or its agent, upon receipt of a Company
Order for the authentication and delivery of such individual Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole
discretion determine that the Securities of any series or portion thereof
issued or issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series in exchange
in whole or in part for such Global Security, will authenticate and deliver
individual Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such series
or portion thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to
Sections 2.02 with respect to Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Securities of
such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized denomination as requested
by such Person in aggregate principal
-30-
<PAGE> 37
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in this subsection
(c), the Company will execute and the Trustee or its agent will authenticate
and deliver individual Securities. In case a Coupon Security of any series is
surrendered in exchange for a Registered Security of such series after the
close of business (at an office or agency in a place of payment for such
series) on any special record date and before the opening of business (at such
office or agency) on the related proposed date of payment of Defaulted
Interest, such Coupon Security shall be surrendered without the Coupon relating
to such proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture. Upon
the exchange of the entire principal amount of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee or its agent.
Except as provided in subsection (c)(iii), Registered Securities issued in
exchange for a Global Security pursuant to this Section 2.16 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Registered Securities to the
Persons in whose names such Registered Securities are so registered.
(v) Payments in respect of the principal of and
interest on any Securities registered in the name of the Depositary or its
nominee will be payable to the Depositary or such nominee in its capacity as
the registered owner of such Global Security. The Company and the Trustee may
treat the Person in whose name the Securities, including the Global Security,
are registered as the owner thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. None of the Company, the
Trustee, any Registrar, the Paying Agent or any agent of the Company or the
Trustee will have any responsibility or liability for (a) any aspect of the
records relating to or payments made on account of the beneficial ownership
interests of the Global Security by the Depositary or its nominee or any of the
Depositary's direct or indirect participants, or for maintaining, supervising
or reviewing any records of the Depositary, its nominee or any of its direct or
indirect participants relating to the beneficial ownership interests of the
Global Security, (b) the payments to the beneficial owners of the Global
Security of amounts paid to the Depositary or its nominee, or (c) any other
matter relating to the actions and practices of the Depositary, its nominee or
any of its direct or indirect participants. None of the Company, the Trustee or
any such agent will be liable for any delay by the Depositary, its nominee, or
any of its direct or indirect participants in identifying the beneficial owners
of the Securities, and the Company and the Trustee may conclusively rely on,
and will be protected in relying on, instructions from the
-31-
<PAGE> 38
Depositary or its nominee for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the
Securities to be issued).
The Trustee shall deliver individual Bearer Securities issued in
exchange for a Global Security pursuant to this Section 2.16 to the Persons and
in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that individual Bearer
Securities shall be delivered in exchange for a Global Security only in
accordance with the procedures as may be specified pursuant to Section 2.02.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Securities in effect at the time of such
exchange.
SECTION 2.17. Defaulted Interest.
(a) Any interest on any Security of a particular series
which is payable, but is not punctually paid or duly provided for, on the dates
and in the manner provided in the Securities of such series and in this
Indenture (herein called "Defaulted Interest") shall, if such Security is a
Registered Security, forthwith cease to be payable to the Registered Holder
thereof on the relevant record date by virtue of having been such Registered
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series are registered at the close of business on a
special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each such Registered Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class postage
pre-paid, to each Holder thereof at its address as it appears in the
Security Register, not less than 10 days prior to such special record
date.
-32-
<PAGE> 39
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series are registered at the close of business on
such special record date. In case a Coupon Security of any such series
is surrendered in exchange for a Registered Security of such series
after the close of business (at an office or agency in a Place of
Payment for such series) on any special record date and before the
opening of business (at such office or agency) on the related proposed
date of payment of Defaulted Interest, such Coupon Security shall be
surrendered without the Coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only to the
Holder of such Coupon when due in accordance with the provisions of
this Indenture.
(ii) The Company may make payment of any Defaulted
Interest on the Registered Securities of such series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Registered Securities of such series may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) Any Defaulted Interest payable in respect of Bearer
Securities of any series shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination
between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the manner provided
in Section 14.05 not more than 25 days and not less than 20 days prior to the
date of the proposed payment.
SECTION 2.18. Judgments. The Company may provide pursuant to Section
2.02 for Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.02 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Deb Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may,
in accordance with normal banking procedures, purchase with the sum paid in
such other Currency (after any premium and cost of exchange) on the business
day in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following
the day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so
-33-
<PAGE> 40
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
SECTION 2.19. CUSIP Numbers. The Company in issuing the Securities
of any series may use "CUSIP" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.20. Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Securities authenticated by the
Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By.................................
Authorized Signature
ARTICLE 3
Redemption
SECTION 3.01. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.02 for Securities of such series.
SECTION 3.02. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 2.02,
Bearer Securities of any series may be redeemed at the option of the Company in
whole, but not in part, at any time, on
-34-
<PAGE> 41
giving not less than 30 or more than 60 days' notice in accordance with Section
3.05 (which notice shall be irrevocable), at the redemption price thereof
(calculated without premium), if the Company has or will become obligated to
pay additional interest on such Bearer Securities pursuant to Section 4.03 as a
result of any change in, or amendment to, the laws (or any regulations or
rulings promulgated thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or any change in the
application or official interpretation of such laws, regulations or rulings,
which change or amendment becomes effective on or after the date on which any
Person (including any Person acting as underwriter, broker or dealer) agrees to
purchase any of such Bearer Securities pursuant to their original issuance, and
such obligation cannot be avoided by the Company taking reasonable measures
available to it; provided, that no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Company would be
obligated to pay such additional interest were a payment in respect of the
Bearer Securities of that series then due. Prior to the publication of any
notice of redemption pursuant to this Section 3.02(a), the Company shall
deliver to the Trustee (i) an Officers' Certificate stating that the Company is
entitled to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to the right of the Company so to redeem
have occurred and (ii) an Opinion of Counsel to the effect that the Company has
or will become obligated to pay such additional interest as a result of such
change or amendment.
(b) Unless otherwise specified pursuant to Section 2.02,
if the Company shall determine that any payment made outside the United States
by the Company or any of its paying agents in respect of any Bearer Security or
Coupon would, under any present or future laws or regulations of the United
States, be subject to any certification, documentation, information or other
reporting requirement of any kind, the effect of which requirement is the
disclosure to the Company, any paying agent or any governmental authority of
the nationality, residence or identity of a beneficial owner of such Bearer
Security or Coupon that is a United States Alien (other than such a requirement
(i) that would not be applicable to a payment made by the Company or any one of
its paying agents (A) directly to the beneficial owner or (B) to a custodian,
nominee or other agent of the beneficial owner, or (ii) that can be satisfied
by such custodian, nominee or other agent certifying to the effect that the
beneficial owner is a United States Alien; provided, that, in any case referred
to in clause (i)(B) or (ii), payment by the custodian, nominee or agent to the
beneficial owner is not otherwise subject to any such requirement), then the
Company shall elect either (x) to redeem such Bearer Security or Coupon in
whole, but not in part, at the redemption price thereof (calculated without
premium) or (y) if the conditions of the next succeeding paragraph are
satisfied, to pay the additional interest specified in such paragraph. The
Company shall make such determination as soon as practicable and publish prompt
notice thereof (the "Determination Notice"), stating the effective date of such
certification, documentation, information or other reporting requirement,
whether the Company elects to redeem the Bearer Security or Coupon or to pay
the additional interest specified in the next succeeding paragraph and (if
applicable) the last date by which the redemption of the Bearer Security or
Coupon must take place, as provided in the next succeeding sentence. If any
Bearer Security or Coupon is to be redeemed pursuant to this paragraph, the
-35-
<PAGE> 42
redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Company shall specify by notice
given to the Trustee at least 60 days before the redemption date. Notice of
such redemption shall be given by the Company to the Holders of the Bearer
Security or Coupon not more than 60 days or less than 30 days prior to the
redemption date. Notwithstanding the foregoing, the Company shall not so redeem
the Bearer Security or Coupon if the Company shall subsequently determine, not
less than 30 days prior to the redemption date, that subsequent payments on the
Bearer Security or Coupon would not be subject to any such certification,
documentation, information or other reporting requirement, in which case the
Company shall publish prompt notice of such subsequent determination, and any
earlier redemption notice given pursuant to this paragraph shall be revoked and
of no further effect. Prior to the publication of any Determination Notice
pursuant to this paragraph, the Company shall deliver to the Trustee (i) an
Officers' Certificate stating that the Company is entitled to make such
determination and setting forth a statement of facts showing that the
conditions precedent to the obligation of the Company to redeem the Bearer
Security or Coupon or to pay the additional interest specified in the next
succeeding paragraph have occurred and (ii) an Opinion of Counsel to the effect
that such conditions have occurred.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts as may be
necessary so that every net payment made outside the United States following
the effective date of such requirement by the Company or any of its paying
agents in respect of any Bearer Security or Coupon of which the beneficial
owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the
Company, any paying agent or any governmental authority), after deduction or
withholding for or on account of such backup withholding tax or similar charge
that (i) would not be applicable in the circumstances referred to in the
parenthetical clause of the first sentence of the preceding paragraph or (ii)
is imposed as a result of presentation of any such Bearer Security or Coupon
for payment more than 15 days after the date on which such payment became due
and payable or on which payment thereof was duly provided for, whichever
occurred later), will not be less than the amount provided in any such Bearer
Security or Coupon to be then due and payable. If the Company elects to pay
additional interest pursuant to this paragraph, the Company shall have the
right to redeem the Bearer Security or Coupon at any time in whole, but not in
part, at the redemption price thereof (calculated without premium), subject to
the provisions of the last three sentences of the immediately preceding
paragraph. If the Company elects to pay additional interest pursuant to this
paragraph and the condition specified in the first sentence of this paragraph
should no longer be satisfied, then the Company shall redeem the Bearer
Security or Coupon in whole, but not in part, at the redemption price thereof
(calculated without premium), subject to the provisions of the last three
sentences of the immediately preceding paragraph. Any redemption payments made
by the Company pursuant to the two immediately preceding sentences shall be
subject to the continuing obligation of the Company to pay additional interest
pursuant to this paragraph. If the Company elects to, or is
-36-
<PAGE> 43
required to, redeem the Bearer Security or Coupon pursuant to this paragraph,
it shall publish prompt notice thereof. If the Bearer Security or Coupon is to
be redeemed pursuant to this paragraph, the redemption shall take place on such
date, not later than one year after publication of the notice of redemption, as
the Company shall specify by notice to the Trustee at least 60 days prior to
the redemption date.
SECTION 3.03. Notices to Trustee. If the Company elects to redeem all
or any part of the Securities of any series in accordance with their terms, it
shall notify the Trustee in writing of the redemption date, the principal
amount of Securities to be redeemed and the series and terms of the Securities
pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.04. Selection of Securities To Be Redeemed. If fewer than
all the Securities of a series are to be redeemed, the Trustee shall select the
Securities of such series to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements, if any,
and that the Trustee considers fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding Securities
of such series not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities of such series that have
denominations larger than $1,000. Securities and portions of them that the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The Trustee shall
notify the Company promptly of the Securities or portions of Securities to be
redeemed.
SECTION 3.05. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities of any series, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Securities of such series to be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent where
payment will be made upon presentation and surrender of Securities;
-37-
<PAGE> 44
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) that, unless otherwise specified in such notice,
Coupon Securities of any series, if any, surrendered for redemption
must be accompanied by all Coupons maturing subsequent to the date
fixed for redemption, failing which the amount of any such missing
Coupon or Coupons will be deducted from the redemption price;
(6) if the Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on the applicable
redemption date pursuant to Section 2.16(c) or otherwise, the last
date on which such exchanges may be made;
(7) the terms of the Securities of that series pursuant
to which the Securities of that series are being redeemed;
(8) if fewer than all the outstanding Securities are to
be redeemed, the identification and principal amounts of the
particular Securities to be redeemed;
(9) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on
Securities (or portion thereof) called for redemption ceases to accrue
on and after the redemption date, and, in the case of Original Issue
Discount Securities, original issue discount accrued after the date
fixed for redemption will cease to accrue, and Coupons for interest
appertaining to Coupon Securities to be redeemed shall be void; and
(10) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section at least 45 days before the redemption date.
The notice if given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
-38-
<PAGE> 45
SECTION 3.06. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities of a series called for redemption become due
and payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Securities shall be paid at
the redemption price stated in the notice, plus accrued interest to the
redemption date. If any Security called for redemption shall not be so paid
upon surrender thereof on such redemption date, the principal, premium, if any,
and interest shall bear interest until paid from the redemption date at the
rate borne by the Securities of that series. If any Coupon Security surrendered
for redemption shall not be accompanied by all Coupons appertaining thereto
maturing on or after the applicable redemption date, the redemption price for
such Coupon Security may be reduced by an amount equal to the face amount of
all such missing Coupons. If thereafter the Holder of such Coupon shall
surrender to any paying agent outside the United States any such missing Coupon
in respect of which a deduction shall have been made from the redemption price,
such Holder shall be entitled to receive the amount so deducted. The surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee,
if there be furnished to them such security or indemnity as they may require to
save each of them and any paying agent harmless.
SECTION 3.07. Deposit of Redemption Price. Prior to the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money in the
Currency in which such Securities are denominated sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on
that date other than Securities or portions of Securities or Coupons called for
redemption which have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.08. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered
and, in the case of a Bearer Security, with appropriate Coupons attached.
SECTION 3.09. Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series (together with
the unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company or (b) receive credit for the principal
amount of Securities of that series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant
-39-
<PAGE> 46
to the terms of such Securities, resolution or supplemental Indenture;
provided, that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities, resolution or supplemental
Indenture for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 3.10. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, any resolution or supplemental Indenture,
the portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Securities of such series are denominated (except as
provided pursuant to Section 2.02) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that series pursuant to
this Section 3.10 (which Securities, if not previously redeemed, will accompany
such certificate) and whether the Company intends to exercise its right to make
any permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company
to deliver such certificate (or to deliver the Securities and Coupons, if any,
specified in this paragraph) shall not constitute a Default, but such failure
shall require that the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in this Section 3.10 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.04 and the
Company shall cause notice of the redemption thereof to be given in the manner
provided in Section 3.05 except that the notice of redemption shall also state
that the Securities are being redeemed by operation of the sinking fund. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in this Article 3.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall promptly pay
the principal of and interest on the Securities of each series on the dates and
in the manner provided in the Securities and in this Indenture and pay any
Coupons at the place at the respective times and in the manner provided herein,
in the Securities and in the Coupons. Any interest due on Coupon Securities on
-40-
<PAGE> 47
or before the Stated Maturity of the related Security, other than additional
interest, if any, payable as provided in Section 4.02 in respect of principal
of, or premium, if any, on such a Security, shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. Principal and
interest shall be considered paid on the date due if on such date the Trustee
or a Paying Agent holds in accordance with this Indenture money sufficient to
pay in the Currency in which the Securities of such series are denominated, all
principal and interest then due and, in the case of Securities subordinated
pursuant to the terms of Article 10, the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Holders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Payment of Additional Interest. Unless otherwise
provided pursuant to Section 2.02, the provisions of this Section 4.02 shall be
applicable to Bearer Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the Holder of any Bearer Security or
Coupon that is a United States Alien such amounts as may be necessary so that
every net payment on such Bearer Security or Coupon, after deduction or
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by the United
States (or any political subdivision or taxing authority thereof or therein),
will not be less than the amount provided
-41-
<PAGE> 48
in such Bearer Security or Coupon to be then due and payable. However, the
Company will not be required to make any such payment of additional interest
for or on account of:
(a) any tax, assessment or other governmental charge that
would not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor or beneficiary
of, or a Person holding a power over, such Holder, if such Holder is an estate
or a trust, or a member or shareholder of such Holder, if such Holder is a
partnership or corporation) and the United States, including such Holder (or
such fiduciary, settlor, beneficiary, Person holding a power, member or
shareholder) being or having been a citizen or resident thereof or being or
having been engaged in trade or business or present therein or having or having
had a permanent establishment therein or (ii) such Holder's past or present
status for United States Federal income tax purposes as a personal holding
company, foreign personal holding company or private foundation or other
tax-exempt organization with respect to the United States or as a corporation
that accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or other governmental
charge;
(c) any tax, assessment or other governmental charge that
would not have been imposed but for the presentation by the Holder of a Bearer
Security or Coupon for payment more than 15 days after the date on which such
payment became due and payable or on which payment thereof was duly provided
for, whichever occurs later;
(d) any tax, assessment or other governmental charge that
is payable otherwise than by deduction or withholding from a payment on a
Bearer Security or Coupon;
(e) any tax, assessment or other governmental charge that
would not have been imposed but for a failure to comply with applicable
certification, documentation, information or other reporting requirement
concerning the nationality, residence, identity or connection with the United
States of the Holder or beneficial owner of a Bearer Security or Coupon if,
without regard to any tax treaty, such compliance is required by statute or
regulation of the United States as a precondition to relief or exemption from
such tax, assessment or other governmental charge; or
(f) any tax, assessment or other governmental charge
imposed on a Holder that actually or constructively owns ten percent or more of
the combined voting power of all classes of stock of the Company or that is a
controlled foreign corporation related to the Company through stock ownership;
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or
-42-
<PAGE> 49
a beneficial owner would not have been entitled to the additional interest had
such beneficiary, settlor, member or beneficial owner been the Holder of such
Bearer Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, or premium, if any, or interest on, any Security
or payment with respect to any Coupon of any series, such mention shall be
deemed to include mention of the payment of additional interest (if applicable)
provided for in the terms of such Securities and this Section 4.02 to the
extent that, in such context, additional interest is, was or would be payable
in respect thereof pursuant to the provisions of this Section 4.02 and express
mention of the payment of additional interest (if applicable) in any provisions
hereof shall not be construed as excluding additional interest in those
provisions hereof where such express mention is not made.
If the payment of additional interest becomes required in respect of
the Securities or Coupons of a series, at least ten days prior to the first
Interest Payment Date with respect to which such additional interest will be
payable (or if the Securities of that series will not bear interest prior to
Stated Maturity, the first day on which a payment of principal, and premium, if
any, is made and on which such additional interest will be payable), and at
least ten days prior to each date of payment of principal, and premium, if any,
or interest if there has been any change with respect to the matters set forth
in the below-mentioned Officers' Certificate, the Company will furnish to the
Trustee and each Paying Agent an Officer's Certificate that shall specify by
country the amount, if any, required to be withheld on such payments to Holders
of Securities or Coupons that are United States Aliens, and the Company will
pay to the Trustee or such Paying Agent the additional interest, if any,
required by the terms of such Securities and this Section 4.02. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section 4.02.
SECTION 4.03. Change of Control.
(a) If, pursuant to the provisions of Section 2.02(cc),
this Section 4.03 is to be applicable to Securities of a series, upon the
occurrence of a Change of Control, each Holder of Securities of a series as to
which, pursuant to the designation made in accordance with Section 2.02, this
Section 4.03 is applicable, shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Securities pursuant to the offer described below (the "Change of
Control Offer") at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon to the
purchase date (the "Change of Control Payment").
(b) Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder stating, among other things: (i)
that a Change of Control has occurred and a
-43-
<PAGE> 50
Change of Control Offer is being made pursuant to this Indenture and that all
Securities (or portions thereof) properly tendered will be accepted for
payment; (ii) the purchase price and the purchase date, which shall be, subject
to any contrary requirements of applicable law, no fewer than 30 days nor more
than 60 days from the date the Company notifies the Holders of the occurrence
of the Change of Control (the "Change of Control Payment Date"); (iii) that any
Securities (or portions thereof) accepted for payment (and duly paid on the
Change of Control Payment Date) pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date; (iv) that
any Securities (or portions thereof) not properly tendered will continue to
accrue interest; (v) a description of the transaction or transactions
constituting the Change of Control; (vi) the procedures that Holders of
Securities must follow in order to tender their Securities (or portions
thereof) for payment and the procedures that Holders of Securities must follow
in order to withdraw an election to tender Securities (or portions thereof) for
payment; and (vii) all other instructions and materials necessary to enable
Holders to tender Securities pursuant to the Change of Control Offer.
(c) On the Change of Control Payment Date, the Company
will (i) accept for payment Securities or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent in
immediately available funds an amount equal to the Change of Control Payment in
respect of Securities or portions thereof so tendered and (iii) deliver, or
cause to be delivered, to the Trustee the Securities so accepted together with
an Officers' Certificate listing the Securities or portions thereof tendered to
the Company and accepted for payment. The Paying Agent shall promptly mail to
each Holder of Securities so accepted payment in an amount equal to the Change
of Control Payment for such Securities and the Trustee shall promptly
authenticate and mail to each holder a new Security in a principal amount equal
to any unpurchased portion of the Securities surrendered, if any; provided,
that each such new Security shall be in a principal amount of $1,000 or any
integral multiple thereof. The Company will announce publicly the results of a
Change in Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(d) The Company will comply, to the extent applicable,
with the requirements of Rules 13e-4 and 14e-1 under the Exchange Act, and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the purchase of Securities in
connection with a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions relating to the
Change of Control Offer, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
described above by virtue thereof.
SECTION 4.04. Maintenance of Office or Agency. The Company shall
maintain in each Place of Payment for any series of Securities and Coupons, if
any, an office or agency where Securities and Coupons of such series (but,
except as otherwise provided in Section 2.13, unless such Place of Payment is
located outside the United States, not Bearer Securities or Coupons) may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the
-44-
<PAGE> 51
Securities and Coupons of such series and this Indenture may be served. So long
as any Bearer Securities of any series remain Outstanding, the Company will
maintain for such purposes one or more offices or agencies outside the United
States in such city or cities specified pursuant to Section 2.02 and, if any
Bearer Securities are listed on a securities exchange that requires an office
or agency for the payment of principal of, and premium, if any, or interest on,
such Bearer Securities in a location other than the location of an office or
agency specified pursuant to Section 2.02, the Company will maintain for such
purposes an office or agency in such location so long as any Bearer Securities
are listed on such securities exchange and such exchange so requires. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee (in he case of Registered Securities) and at the
principal __________ office of the Trustee (in the case of Bearer Securities),
and the Company hereby appoints the Trustee its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more different
or additional offices or agencies (in or outside of The City of New York) where
Securities may be presented or surrendered for any or all of such purposes, and
may from time to time rescind such designations; provided that no such
designation or rescission shall in any manner relieve the Company of its
obligations described in the preceding paragraph. The Company shall give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 4.05. Money for the Security Payments to be Held in Trust. If
the Company, any Subsidiary of the Company or any of their respective
Affiliates shall at any time act as Paying Agent with respect to the Securities
of any series, such Paying Agent shall, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto
money sufficient to pay the principal (and premium, if any) or interest so
becoming due until such money shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to the Securities, it shall, prior to or on each due date of the principal of
(and premium, if any) or interest on any of the Securities, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Paying Agent shall promptly notify the Trustee
of the Company's action or failure so to act.
Any funds deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Securities and
-45-
<PAGE> 52
remaining unclaimed for two years after the date upon which such payment shall
have become due, shall be paid to the Company on Order or, if then held by the
Company, shall be discharged from such trust; provided, however, that the
Company shall cause to be published at least once in a newspaper of general
circulation in The City of New York or mailed to each Holder entitled to such
unclaimed funds, notice that such funds remain unclaimed and that, after a date
specified therein, which shall be a date not less than 30 days from the date of
such publication or mailing, any unclaimed balance of such money remaining as
of such date shall be repaid to the Company. After repayment to the Company,
Holders entitled to such funds shall look only to the Company for payment
without interest thereon, as an unsecured general creditor, and the Trustee and
the Paying Agent shall have no further liability with respect to such trust
money, and the Company shall not be a trustee in respect of such funds.
SECTION 4.06. Payment of Taxes and Other Claims. The Company shall
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any of its Subsidiaries or upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon the property of the Company or any of its
Subsidiaries; provided that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with
GAAP or other appropriate provision has been made.
SECTION 4.07. Corporate Existence. The Company will preserve and keep
in full force and effect its corporate existence in accordance with applicable
law, except as permitted in Section 5.01.
SECTION 4.08. Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe
the Default, its status and what action the Company is taking or proposes to
take with respect thereto. The Company also shall comply with TIA Section
314(a)(4).
SECTION 4.9. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
-46-
<PAGE> 53
SECTION 4.10. Prohibition on Company Becoming Investment Company.
The Company shall not become an "investment company" as defined in the
Investment Company Act of 1940, as amended.
ARTICLE 5
Successor Company
SECTION 5.01. Merger, Consolidation and Sale of Substantially All
Assets.
(a) The Company (i) will not merge or consolidate with or
into any other Person (whether or not the Company is the surviving entity), and
(ii) will not and will not permit its Subsidiaries to, directly or indirectly,
sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all of the Property of the Company and its Subsidiaries taken as
a whole in any one transaction or a series of transactions (including, without
limitation, dispositions pursuant to mergers and consolidations), in each case
unless:
(A) the Surviving Entity shall be a corporation
organized and existing under the laws of the United States of
America or a State thereof or the District of Columbia;
(B) if the Company is not the Surviving Entity,
the Surviving Entity expressly assumes, by supplemental
indenture satisfactory to the Trustee, executed and delivered
to the Trustee by the Surviving Entity, the due and punctual
payment of the principal of, premium, if any, and interest on
all the Securities and Coupons, if any, according to their
tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be
performed by the Company (and in the case of clause (ii)
above, the Company and the Surviving Entity shall both be
considered as the issuer of the Securities);
(C) in the case of the sale, transfer,
assignment, lease, conveyance or other disposition of all or
substantially all of the Property of the Company and its
Subsidiaries taken as a whole, such Property shall have been
transferred as an entirety or virtually as an entirety to one
Person;
(D) immediately before and after giving effect to
such transaction or series of transactions on a pro forma
basis, no Default or Event of Default shall have occurred and
be continuing;
-47-
<PAGE> 54
(E) the Company and, if the Company is not the
Surviving Entity, the Surviving Entity, each shall have
delivered to the Trustee Officers' Certificates and an Opinion
of Counsel, each stating that such merger, consolidation or
disposition and any such supplemental indentures comply with
the above provisions and that all conditions precedent
relating to such transaction or transactions have been
complied with; and
(F) the Surviving Entity waives any right to
redeem any Bearer Security under circumstances in which the
Surviving Entity would be entitled to redeem such Bearer
Security but the Company would not have been so entitled to
redeem if the consolidate, merger, conveyance, transfer or
lease had not occurred.
The term "Surviving Entity" shall mean the Person referred to in
clauses (i) and (ii) above (1) formed by or surviving any such merger or
consolidation involving the Company or (2) to which any such sale, transfer,
assignment, lease, conveyance or other disposition is made.
(b) With respect to each transaction or series of
transactions described in subsection (a) above, giving effect to such
transaction or series of transactions on a pro forma basis shall include,
without limitation, (i) treating any Indebtedness not previously the obligation
of the Company or any of its Subsidiaries which becomes an obligation of the
Company or any of its Subsidiaries in connection with or as a result of such
transaction or series of transactions as having been Incurred at the time of
such transaction or series of transactions, and (ii) giving effect to any
Indebtedness Incurred or anticipated to be Incurred in connection with such
transaction or series of transactions.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. Whenever used herein, an "Event of
Default" means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) the Company shall fail to make any payment of
interest on the Securities of any series or any payment with respect to the
related Coupons, if any, within 30 days after any such amount becomes due in
accordance with the terms thereof;
(b) the Company shall fail to make any payment of
principal of (or premium, if any, on) the Securities of any series when due in
accordance with the terms thereof, whether upon maturity, acceleration, sinking
fund payment date, call for redemption, call for purchase or otherwise;
-48-
<PAGE> 55
(c) the Company shall fail to observe or perform any
other covenant or agreement contained in the Securities of any series or this
Indenture and such failure continues for a period of 60 days after written
notice of such failure has been sent to the Company by the Trustee specifying
such default and requiring it to be remedied and stating that such notice is a
"Notice of Default";
(d) one or more final judgments or orders by a court of
competent jurisdiction are entered against the Company or any Subsidiary in an
uninsured or unindemnified aggregate amount in excess of $___,000,000 and such
judgments or orders are not discharged, waived, stayed, satisfied or bonded for
a period of 60 consecutive days;
(e) the Company or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or files a request
or petition for a writ of execution to initiate bankruptcy proceedings
or have itself adjudicated as bankrupt;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property;
(iv) makes a general assignment for the benefit
of its creditors; or
(v) proposes or agrees to an accord or
composition in bankruptcy between itself and its creditors; or
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of the property of
the Company or any Significant Subsidiary;
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
-49-
<PAGE> 56
(iv) adjudicates the Company or a Significant
Subsidiary as bankrupt or insolvent; or
(v) ratifies an accord or composition in
bankruptcy between the Company or a Significant Subsidiary and the
respective creditors thereof;
and the order or decree remains unstayed and in effect for 60 days.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default described in clause (e) or (f) above) with respect to
Securities of a series at the time Outstanding shall occur and be continuing,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series by written notice may declare the
principal amount of the Securities of that series (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) and interest
on all the Securities of that series to be due and payable immediately. If an
Event of Default described in clause (e) or (f) above with respect to the
Securities of a series at the time Outstanding shall occur, the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) and interest on all the Securities of that series will
automatically, and without any action by the Trustee or any Holder, become
immediately due and payable.
After any such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series may rescind and annul such acceleration
if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all money paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursement and
advances of the Trustee, its agents and counsel,
(ii) all overdue installments of interest on all
Securities of such series;
(iii) the principal of (and premium, if any, on )
any Securities of such series that have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in the Securities of such series, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate prescribed
therefor in the Securities of such series;
-50-
<PAGE> 57
(b) all Events of Default, other than the nonpayment of
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.04;
(c) the annulment of such acceleration would not conflict
with any judgment or decree of a court of competent jurisdiction; and
(d) the Company has delivered an Officers' Certificate to
the Trustee to the effect of clauses (b) and (c) of this sentence.
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities of a series or to enforce the
performance of any provision of the Securities of such series or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities of a series by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security of such series or (ii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities of a series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
of exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
or, subject to Section 7.01, that the Trustee determines is unduly prejudicial
to the rights of other Holders, it being understood that the Trustee shall have
no duty to ascertain whether or not such actions or forbearances are unduly
prejudiced to such Holders, or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee
-51-
<PAGE> 58
shall be entitled to indemnification satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. No Holder of any Securities or
Coupons of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default with respect
to a series of Securities;
(ii) the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of such Series have
made written request, and such Holder or Holders have offered
reasonable indemnity, to the Trustee to institute such proceeding as
trustee; and
(iii) the Trustee has failed to institute such
proceeding, and has not received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such
series a direction inconsistent with such request, within 60 days
after such notice, request and offer.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities of any series held by
such Holder, on or after the respective due dates expressed in the Securities,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of
-52-
<PAGE> 59
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order, at the date or dates fixed by the Trustee for the
distribution of such moneys or other property, upon presentation of the several
Securities or Coupons of such series in respect of which moneys or other
property have been collected, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.07;
[If applicable: SECOND: to holders of Senior Indebtedness of
the Company to the extent required by Article 10;]
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall not have become
due, to the payment of interest on the Securities or Coupons of such
series in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the rate or yield to maturity (in the case of Original Issue Discount
Securities) borne by the Securities or Coupons of such series, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
FOURTH: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become
due, by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon the Securities or Coupons of such series
for principal and premium, if any, and interest, with interest on the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments
of interest at the rate or yield to maturity (in the case of Original
Issue Discount Securities) borne by the Securities or Coupons of such
series; and, in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities and Coupons of
such series, then to the payment of such principal and premium, if
any, and interest, without preference or priority of principal and
premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Security or Coupon of such series
over any Security or Coupon of such series, ratably to the aggregate
of such principal and premium, if any, and interest; and
FIFTH: to the Company.
-53-
<PAGE> 60
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such
record date, the Company shall mail to each Holder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee or a suit by a Holder pursuant to Section 6.07.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this subsection does not limit the effect of
subsection (b) of this Section;
-54-
<PAGE> 61
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to subsections (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the provisions of the
Trust Indenture Act.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
-55-
<PAGE> 62
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's conduct does
not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) Prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, Officer's Certificate, or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Securities then outstanding; provided,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such examination
shall be paid by the Company or, if advanced by the Trustee, shall be repaid by
the Company upon demand.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(h) The Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants, conditions, or
agreements on the part of the Company, except as otherwise set forth herein,
but the Trustee may require of the Company full information and advice as to
the performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books, records and
premises of the Company.
(i) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
(j) Except for (i) a default under Section 6.01(a) or (b)
hereof, or (ii) any other event of which the Trustee has "actual knowledge" and
which event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any Default or Event of Default unless specifically
notified in writing of such event by the Company or the Holders of not less
than 25% in aggregate principal amount of the relevant series of Securities
then Outstanding; as used herein, the term "actual
-56-
<PAGE> 63
knowledge" means the actual fact or statement of knowing, without any duty to
make any investigation with regard thereto.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities of any series or in the Securities
of any series other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within 90 days after it occurs. Except in the case
of a Default in payment of principal of or interest on any Security (including
payments pursuant to the mandatory redemption provisions of such Security, if
any), the Trustee may withhold the notice if and so long as the Trustee in good
faith determines that withholding the notice is in the interests of Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each ______ beginning with the ______ following the date of
this Indenture, and in any event prior to _______ in each year, the Trustee
shall mail to each Holder a brief report dated as of such date that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b)
and 313(c).
A copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange (if any) on which
the Securities of any series are listed. The Company agrees to notify the
Trustee promptly whenever the Securities of any series become listed on any
stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee promptly upon request from time to time the compensation for its
services as agreed to by the Trustee and the Company. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel,
-57-
<PAGE> 64
accountants and experts. The Company shall indemnify the Trustee against any
and all loss, liability or reasonable expense (including reasonable attorneys'
fees) incurred by it in connection with the acceptance and administration of
this trust and the performance of its duties hereunder. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee's own willful misconduct, negligence or bad faith. The
Company need not pay for any settlement made by the Trustee without the
Company's consent, such consent not to be unreasonably withheld.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(e) or (f) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company
may, but need not, appoint a separate Trustee for any one or more series of
Securities. The Trustee may resign with respect to one or more or all series of
Securities at any time by notifying the Company. The Holders of a majority in
principal amount of the Securities of a particular series may remove the
Trustee for such series by notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities of a particular
series and such Holders do not reasonably promptly appoint a successor Trustee,
or if a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.
-58-
<PAGE> 65
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of each applicable series. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities of any applicable series
may petition any court of competent jurisdiction for the appointment of a
successor Trustee for the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder
of Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
-59-
<PAGE> 66
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
Satisfaction and Discharge of Indenture; Defeasance
SECTION 8.01. Applicability of Article. If, pursuant to Section 2.02,
provision is made for the defeasance of Securities of a series and if the
Securities of such series are Registered Securities and denominated and payable
only in Dollars (except as provided pursuant to Section 2.02), then the
provisions of this Article 8 relating to defeasance of Securities shall be
applicable except as otherwise specified pursuant to Section 2.02 for
Securities of such series. Defeasance provisions, if any, for Securities
denominated in a Foreign Currency or for Bearer Securities may be specified
pursuant to Section 2.02.
SECTION 8.02. Discharge of Liability on Securities.
(a) When (i) the Company delivers to the Trustee all
outstanding Securities of any series for cancellation (other than Securities or
Coupons replaced pursuant to Article 2, Coupons appertaining to Bearer
Securities of such series called for redemption and maturing after the relevant
redemption date, surrender of which has been waived, and Securities and Coupons
for whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company as provided in Section 8.05), or (ii) all outstanding
Securities and the Coupons, if any, of such series have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee cash in the Currency in which such Securities are denominated, U.S.
Government Obligations or a combination thereof sufficient to pay at maturity
or upon redemption all outstanding Securities of such series, including premium
and interest thereon to maturity or such redemption date (other than Securities
replaced pursuant to Article 2), and premium, if any, and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.02(b), cease to be of further effect.
The Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company.
(b) Notwithstanding subsection (a) above, the Company's
obligations in Sections 2.06, 2.07, 2.09, 2.12, 4.02, 7.07, 7.08, 8.06, 8.07
and 8.08 shall survive until the Securities of such series have been paid in
full. Thereafter, the Company's obligations in Sections 7.07, 8.06 and 8.07
shall survive.
-60-
<PAGE> 67
SECTION 8.03. Defeasance.
(a) Subject to Sections 8.03(d), 8.04 and 8.07, the
Company at any time may terminate, with respect to Securities of a particular
series, (i) all its obligations under the Securities of such series and this
Indenture with respect to the Securities of such series ("legal defeasance
option") or (ii) its obligations with respect to the Securities of such series
under Sections 4.03 and 4.06, and the operation of Sections 5.01(a)(G),
6.01(c), 6.01(d), 6.01(e), and 6.01(f) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
(b) If the Company exercises its legal defeasance option,
payment of the Securities of the defeased series may not be accelerated because
of an Event of Default. If the Company exercises its covenant defeasance
option, payment of the Securities may not be accelerated because of an Event of
Default specified in Sections 6.01(c), 6.01(d), 6.01(e) and 6.01(f).
(c) Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
(d) Notwithstanding subsection (a) above, the Company's
obligations in Sections 2.06, 2.07, 2.09, 2.12, 7.07, 7.08, 8.06, 8.07 and 8.08
shall survive until the Securities of the defeased series have been paid in
full. Thereafter, the Company's obligations in Section 7.07, 8.06 and 8.07
shall survive.
SECTION 8.04. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to
Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the
Trustee cash in U.S. dollars, U.S. Government Obligations or a
combination thereof for the payment of principal of, interest on and
premium, if any, on the Securities of such series to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and interest
when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay
principal, premium and interest when due on all the Securities of such
series to maturity or redemption, as the case may be;
-61-
<PAGE> 68
(3) 123 days pass after the deposit is made and during
the 123-day period no Default specified in Sections 6.01(e) or (f)
with respect to the Company occurs which is continuing at the end of
the period;
(4) the deposit does not constitute a default under any
other agreement binding on the Company and is not prohibited by
Article 10;
(5) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance
had not occurred;
(7) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(8) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
of such series as contemplated by this Article 8 have been complied
with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities of such series at
a future date in accordance with Article 3.
SECTION 8.05. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal, premium and interest on the Securities
and Coupons, if any, of the
-62-
<PAGE> 69
defeased series. In the event the Securities and Coupons, if any, of the
defeased series are subordinated pursuant to Article 10, money and securities
so held in trust are not subject to Article 10.
SECTION 8.06. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon Order any money held by them
for the payment of principal of, premium, if any, or interest on any Securities
that remains unclaimed for two years after the date upon which such payment
shall have become due; provided, however, that the Company shall cause to be
published at least once in a newspaper of general circulation in The City of
New York or mailed to each Holder entitled to such unclaimed funds, notice that
such funds remain unclaimed and that, after a date specified therein, which
shall be a date not less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money remaining as of such date shall be
repaid to the Company. After repayment to the Company, Holders entitled to such
funds shall look only to the Company for payment without interest thereon, as
an unsecured general creditor, and the Trustee and the Paying Agent shall have
no further liability with respect to such money.
SECTION 8.07. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.08. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with this Article 8; provided,
however, that, if the Company has made any payment of interest on or principal
of Securities of the defeased series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
-63-
<PAGE> 70
ARTICLE 9
Supplemental Indentures
SECTION 9.01. Without Consent of Holders.
(a) The Company and the Trustee may enter into an
Indenture or Indentures supplemental hereto or amend the Securities without
notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency herein, in any supplemental Indenture or in any Security
of any series;
(ii) to provide for the assumption of the
obligations of the Company under this Indenture upon the merger,
consolidation or sale or other disposition of all or substantially all
of the assets of the Company and its Subsidiaries taken as a whole and
certain other events specified in Section 5.01;
(iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(iv) to comply with any requirement of the
Commission in order to effect or maintain the qualification of this
Indenture under the TIA;
(v) to make any change, which change may affect
only a particular series of Securities, that does not adversely affect
the rights of any Holder of Securities of any series in any material
respect;
(vi) to add guarantees by Subsidiary guarantors
with respect to Securities of any series, or to secure the Securities
pursuant to the procedures set forth in this Indenture;
(vii) to add to the covenants of the Company for
the benefit of the Holders of all or any series of Securities and
Coupons, if any, appertaining thereto or to surrender any right or
power herein conferred upon the Company;
(viii) to provide that Bearer Securities may be
registerable as to principal, to change or eliminate any restrictions
on the payment of principal of, or premium, if any, on, Registered
Securities or of principal of, or premium, if any, or interest on,
Bearer Securities or to permit Registered Securities to be exchanged
for Bearer Securities; provided, that any such action shall not
adversely affect the interests of the Holders of Securities or any
-64-
<PAGE> 71
Coupons or any series in any material respect or permit or facilitate
the issuance of Securities of any series in uncertificated form;
(ix) in the case of any Securities and Coupons, if
any, appertaining thereto subordinated pursuant to Article 10, to make
any change in Article 10 that would limit or terminate the benefits
available to any holder of Senior Indebtedness (or Representatives
therefor) under Article 10;
(x) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities; provided, however, that any such addition, change or
elimination not otherwise permitted under this Section 9.01 shall (i)
neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective
only when there is no such Security Outstanding;
(xi) to evidence and provide for the acceptance of
appointment hereunder by a successor or separate Trustee with respect
to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee; and
(xii) to establish the form or terms of Securities
and Coupons, if any, of any series as permitted by Section 2.02.
(b) [Insert for Subordinated or Senior Subordinated
Indebtedness -- An amendment under this Section may not make any change that
adversely affects the rights under Article 10 of any holder of Senior
Indebtedness of the Company then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change in writing.]
(c) After an amendment under this Section becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
-65-
<PAGE> 72
SECTION 9.02. With Consent of Holders.
(a) The Company and the Trustee, with the written consent
of the Holders of at least a majority of the principal amount of the
Outstanding Securities of each series affected by such supplemental Indenture,
may execute supplemental Indentures adding any provisions to or changing or
eliminating any of the provisions of this Indenture or of any supplemental
Indenture or modifying the rights of the Holders of the Securities of such
series, except that no supplemental Indenture or wavier, without the consent of
each Holder affected thereby, may:
(i) reduce the principal amount of Securities of
any series whose Holders must consent to an amendment or waiver;
(ii) reduce the rate of or extend the time for
payment of interest on any Securities or Coupon or reduce the amount
of any payment to be made with respect to any Coupon;
(iii) change the Currency in which any amount due
in respect of the Securities or Coupon is payable from that stated in
the Security or Coupon;
(iv) reduce the principal of or any premium on or
change the Stated Maturity of any Securities or alter the redemption
or repurchase provisions with respect thereto;
(v) reduce the relative ranking of any Securities;
(vi) release any security that may have been
granted in respect of the Securities;
(vii) impair the right of any Holder to institute
suit for enforcement of any payment on or with respect to such
Holder's Securities;
(viii) change any obligation of the Company to pay
additional interest pursuant to Section 4.02;
(ix) limit the obligation of the Company to
maintain a paying agency outside the United States for payment on
Bearer Securities as provided in Section 4.04 or
-66-
<PAGE> 73
limit the obligation of the Company to redeem a Bearer Security as
provided in Section 3.02(b); or
(xi) make any change in Sections 6.04, 6.07 or
9.02.
(b) It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any proposed
supplemental Indenture, but it shall be sufficient if such consent approves the
substance thereof.
(c) A supplemental Indenture under this Section may not
make any change that adversely affects the rights under Article 10 of any
holder of Senior Indebtedness of the Company then outstanding unless the
holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change in writing.
(d) After a supplemental Indenture under this Section
becomes effective, the Company shall mail to Holders a notice briefly
describing such supplemental Indenture. The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of a
supplemental Indenture under this Section.
(e) A supplemental Indenture which changes or eliminates
any covenant or other provision of this Indenture which has been expressly
included solely for the benefit of one or more particular series of Securities
and Coupons, if any, or which modifies the rights of the Holders of Securities
and Coupons of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities and Coupons, if any, of any other series.
SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental
Indenture or amendment to the Securities shall comply with the Trust Indenture
Act as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
(a) A consent to a supplemental Indenture or a waiver by
a Holder of a Security shall bind the Holder and every subsequent Holder of
that Security or portion of the Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke
the consent or waiver as to such Holder's Security or portion of the Security
if the Trustee receives the notice of revocation before the date the
supplemental Indenture or waiver becomes effective. After a supplemental
Indenture or waiver becomes effective, it shall bind every Holder. A
supplemental Indentures or waiver becomes effective upon the execution of such
supplemental Indenture or waiver by the Trustee.
-67-
<PAGE> 74
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding subsection, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If a
supplemental Indenture changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06. Trustee To Sign Supplemental Indenture. The Trustee
shall sign any supplemental Indenture authorized pursuant to this Article 9 if
the supplemental Indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such supplemental Indenture, the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such supplemental
Indenture is authorized or permitted by this Indenture.
ARTICLE 10
Subordination of the Securities
SECTION 10.01. Applicability of Article; Agreement to Subordinate.
The provisions of this Article 10 shall be applicable to the Securities of any
series (Securities of such series referred to in this Article 10 as
"Subordinated Debt Securities") designated pursuant to Section 2.02 as
subordinated to Senior Indebtedness. Notwithstanding any other provision to the
contrary in this Indenture, the Company covenants and agrees, and each Holder
by accepting a Subordinated Debt Security covenants and agrees, that the
principal of (and premium, if any) and interest on the Indebtedness now or
hereafter evidenced by the Subordinated Debt Security and this Indenture are
subordinated in right of payment, to the extent and in the manner provided in
this Article, to the prior payment in full in cash of all existing and future
Senior Indebtedness, and that the subordination provisions set forth in this
Article are for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
-68-
<PAGE> 75
Each Holder of a Subordinated Debt Securities authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate, in the sole discretion of the Trustee, to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness as provided in this Article and appoints the Trustee as such
Holder's attorney-in-fact for any and all such purposes, including, in the
event of any voluntary or involuntary liquidation or dissolution of the
Company, whether total or partial, or in a bankruptcy, reorganization,
insolvency, receivership, dissolution, assignment for the benefit of creditors,
marshaling of assets or similar proceeding relating to the Company or its
property, the timely filing of a claim for the unpaid balance of such Holder's
Securities in the form required in said proceeding and cause said claim to be
approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 20 days before the expiration of the
time to file such claim or claims, then the Principal Agent is hereby
authorized to have the right to file and is hereby authorized to file an
appropriate claim for and on behalf of the Holders; provided, however, that any
such claim filed by the Principal Agent shall be superseded by the claim, if
any, subsequently filed by the Trustee.
Each Holder of a Subordinated Debt Security by accepting a Security
acknowledges and agrees that the subordination provision set forth in this
Article are, and are intended to be, an inducement and consideration to each
holder of any Senior Indebtedness, whether such Senior Indebtedness was created
before or after the issuance of the Securities, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness, and such holder of
Senior Indebtedness shall be deemed conclusively to have relied upon such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness, and such holder is made an obligee hereunder
and may enforce directly such subordination provisions.
SECTION 10.02. Liquidation; Dissolution; Bankruptcy. Upon any payment
or distribution (whether in cash, property, debt, equity or other securities, a
combination thereof or otherwise) to creditors or equity holders of the Company
in a voluntary or involuntary liquidation or dissolution of the Company,
whether total or partial, or in bankruptcy, reorganization, insolvency,
receivership, assignment for the benefit of creditors, marshaling of assets or
similar proceeding relating to the Company or its property:
(a) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of all amounts due or to become due on or in
respect of all Senior Indebtedness before Holders of Subordinated Debt
Securities shall be entitled to receive any Security Payment (as defined in
Section 10.03(a)); and
(b) until all Senior Indebtedness is paid in full in
cash, any Security Payment (as defined in Section 10.03(a)) to which Holders of
a Subordinated Debt Securities would be entitled but for this Article shall be
made to holders of Senior Indebtedness, as their interests may appear.
-69-
<PAGE> 76
Upon any prepayment, payment or distribution referred to in this
Article, the Trustee and the Holders shall be entitled to rely upon any order
or decree of a court of competent jurisdiction in which such proceedings are
pending for the purpose of ascertaining the identity of Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness, the amount thereof or payable thereon and all other facts
pertinent thereto or to this Article, and the Trustee and the Holders shall be
entitled to rely upon a certificate of the liquidating trustee or agent or
other Person (including any Representative of holders of Senior Indebtedness)
making any payment or distribution to the Trustee or to the Holders for the
purpose of ascertaining the identity of Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person, as a holder of Senior Indebtedness, to participate in any
payment or distribution pursuant to this Section, the Trustee may requires such
Person (at the expense of the Holders) to furnish evidence to the reasonable
satisfaction of the Trustee, acting in good faith, as to the amount of such
Senior Indebtedness held by such Person, as to the extent to which such Person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Section, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive
payment.
For purposes of this Article, a distribution may consist of cash,
securities or other property, by set-off or otherwise; provided that, for
purposes of this Article only, the words "cash, securities or other property"
shall not be deemed to include securities of the Company or any other
corporation ("Reorganization Securities") provided for by a plan of
reorganization or readjustment of the Company the payment of which is
subordinated, at least to the extent provided in this Article with respect to
the Subordinated Debt Securities, to the payment of all Senior Indebtedness
that may at the time be outstanding.
The consolidation or merger of the Company with or into any Person, or
the sale, assignment, transfer, lease, conveyance or other disposition of all
or substantially all of the Company's assets to any Person, upon the terms and
conditions set forth in Article 5, shall not be deemed to be liquidation,
dissolution or reorganization or similar proceeding relating to the Company for
purposes of this Section if the Person formed by or surviving such
consolidation or merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made, shall, as a part of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, comply with the conditions set forth in Article 5.
SECTION 10.03. Default on Senior Indebtedness.
(a) Upon any Senior Indebtedness becoming due and
payable, whether at the stated maturity thereof or by acceleration or
otherwise, such Senior Indebtedness shall first be
-70-
<PAGE> 77
irrevocably and indefeasibly paid in full in cash, or the immediate payment
thereof duly provided for in cash, before the Company or any Person acting on
behalf of the Company shall directly or indirectly pay, prepay, redeem, retire,
repurchase or otherwise acquire for value, or make any deposit pursuant to
Article 8 in respect of, or make any other prepayment, payment or distribution
(whether in cash, property, securities or a combination thereof or otherwise)
on account of the principal of (or premium, if any) or interest on, any
Subordinated Debt Securities (each, a "Security Payment").
(b) No Security Payment shall be made if, at the time of
such Security Payment there exists a default in payment of all or any portion
of any principal of (and premium, if any) and interest and fees, expenses,
costs and other obligations on Senior Indebtedness, and such default shall not
have been cured or waived in writing or the benefits of this sentence waived in
writing by or on behalf of the holders of such Senior Indebtedness.
(c) In addition, during the continuance of any event of
default (other than a default referred to in subsection (b) of this Section
10.03) with respect to any Specified Senior Indebtedness, as such event of
default is defined therein or in the instrument under which such Specified
Senior Indebtedness is outstanding, permitting the holders of such Specified
Senior Indebtedness to accelerate the maturity thereof under the terms of such
Specified Senior Indebtedness, and upon written notice of such event of default
given by the Principal Agent to the Trustee, with a copy to the Company (the
delivery of such shall not affect the validity of the notice to the Trustee),
then, unless and until such event of default shall have been cured or waived or
shall have ceased to exist, no Security Payment shall be made; provided, that
if the holders of the Specified Senior Indebtedness to which the default
relates have not declared such Specified Senior Indebtedness to be immediately
due and payable within 179 days after the occurrence of such default (or have
declared such Specified Senior Indebtedness to be immediately due and payable
and within such period have rescinded such declaration of acceleration), then,
subject to the provisions of Section 10.02 and 10.03(a), the Company shall
resume making any and all unpaid scheduled Security Payments. Any period during
which any Security Payment is prohibited pursuant to the immediately preceding
sentence is referred to in this Article as a "payment blockage period."
Notwithstanding any other provisions of this Article or any other provision of
this Indenture, in no event shall a payment blockage period under this Article
extend beyond 179 days from the date on which such payment blockage period
commenced. Not more than one payment blockage period may be commenced within
any consecutive 365-day period with respect to the Subordinated Debt
Securities. For all purposes of this Article, no event of default that existed
or was continuing on the date of the commencement of any payment blockage
period with respect to the Specified Senior Indebtedness initiating such
payment blockage period shall be, or be made, the basis for the commencement of
a second payment blockage period by the holder or holders of such Specified
Senior Indebtedness at any time after the 365-day period referred to in the
previous sentence unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days.
-71-
<PAGE> 78
(d) The Company covenants that it will, upon request of
the Trustee, deliver an Officers' Certificate (with copies thereof to the
Representative of each class of Senior Indebtedness) showing in reasonable
detail the Senior Indebtedness outstanding as of the date of such Officers'
Certificate and the Representative of each class of Senior Indebtedness. The
Trustee may conclusively rely thereon except to the extent that it shall have
received, from the Representative of any class of Senior Indebtedness, notice
in writing controverting any of the statements made therein. Not less than 10
days prior to making any distribution in respect of Senior Indebtedness
pursuant to this Section, the Trustee shall deliver to each Representative of
any class of Senior Indebtedness copies of the most recent Officers'
Certificate filed with it by the Company pursuant to this subsection (d).
SECTION 10.04. Security Payments Permitted if No Default. Nothing
contained in this Article or elsewhere in this Indenture, or in any of the
Subordinated Debt Securities, shall prevent the Company or any Person acting on
behalf of the Company, at any time except as otherwise provided in Section
10.02 from making any Security Payment.
SECTION 10.05. When Security Payment Must Be Paid Over. In the event
that any Security Payment is made to the Trustee or the Holders of Subordinated
Debt Securities that, because of this Article, should not have been so made or
may not be paid over to the Holders, such Security Payment shall be held by the
Trustee or the Holders who receive such Security Payment, as the case may be,
for the benefit of, and shall forthwith be paid over or delivered to, the
holders of the Senior Indebtedness remaining unpaid or their Representatives,
as their interests may appear, to the extent necessary to irrevocably and
indefeasibly pay such Senior Indebtedness in full in cash in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness.
SECTION 10.06. Notices by the Company. The Company shall promptly
notify the Trustee, each Paying Agent and the Principal Agent of any facts
known to the Company that would cause a Security Payment to violate this
Article, but failure to give such notice shall not affect the subordination
provided in this Article of the Subordinated Debt Securities to Senior
Indebtedness. Without limiting the foregoing, if payment of the Subordinated
Debt Securities is accelerated because of an Event of Default, the Company
shall promptly notify the Principal Agent of the acceleration.
SECTION 10.07. Subrogation. After all Senior Indebtedness is
irrevocably and indefeasibly paid in full in cash and until the Subordinated
Debt Securities are paid in full, Holders shall be subrogated to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to Holders have
been applied to the payment of Senior Indebtedness. A distribution made under
this Article to holders of Senior Indebtedness which otherwise would have been
made to Holders is not, as between the Company and the Holders, payment by the
Company on Senior Indebtedness.
-72-
<PAGE> 79
SECTION 10.08. Relative Rights. This Article defines the relative
rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(a) impair, as between the Company and the Holders of
Subordinated Debt Securities, the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on the Subordinated Debt Securities in accordance with their terms;
(b) affect the relative rights of Holders of Subordinated
Debt Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or any Holder of Subordinated
Debt Securities from exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders of Senior Indebtedness to receive
prepayment, payments and distributions otherwise payable to Holders of
Subordinated Debt Securities.
If the Company fails because of this Article to pay the principal of
(or premium, if any) or interest on a Subordinated Debt Security on the due
date or upon the acceleration thereof, the failure is still a Default or Event
of Default.
SECTION 10.09. Subordination May Not Be Impaired by the Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Subordinated Debt Securities
shall be impaired by (a) any act or failure to act by the Company or by its
failure to comply with this Indenture, (b) any release of any collateral or any
Guarantor of the Company's obligations under the Senior Indebtedness, (c) any
amendment, supplement, extension, renewal, restatement or other modification of
the Senior Indebtedness, (d) any settlement or compromise of any Senior
Indebtedness, (e) the unenforceability of any of the Senior Indebtedness or (f)
the failure of any holder of Senior Indebtedness to pursue claims against the
Company.
SECTION 10.10. Distribution of Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 10.11. Rights of Trustee and Paying Agent. The Trustee or
any Payment Agent may continue to make payments in respect of the Subordinated
Debt Securities and shall not be charged with knowledge of the existence of
facts that would prohibit the making of any such payment unless, not less than
three Business Days prior to the date of any such payment, a Responsible
Officer of the Trustee receives written notice reasonably satisfactory to it
that payments in respect of the Subordinated Debt Securities may not be made
under this Article. Only the
-73-
<PAGE> 80
Company, a Representative (satisfactorily identified to the Trustee) or a
holder of a class of Senior Indebtedness that has no Representative
(satisfactorily identified to the Trustee) may give the notice. Prior to the
receipt of such notice, the Trustee and any Paying Agent shall be entitled in
all respects to assume that no such facts exist. In any case, the Trustee shall
have no responsibility to the holders of Senior Indebtedness for payments made
to Holders by the Company or any Paying Agent unless cash payments are made at
the direction of the Trustee after receipt of such notice referred to above.
Neither the Trustee nor any Payment Agent shall be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have it were not Trustee.
This Section is solely for the benefit of the Trustee and any Payment
Agents and shall not limit the obligations of the Holders under Section 10.05.
SECTION 10.12. Consent of Holders of Specified Senior Indebtedness.
The provisions of this Article (including the definitions contained in this
Article and references to this Article contained in this Indenture) shall not
be amended, waived or modified in a manner that would adversely affect the
rights of the holders of any Specified Senior Indebtedness, and no such
amendment, waiver or modification shall become effective, unless the holders of
such Specified Senior Indebtedness shall have consented in writing (in
accordance with the provisions of the agreement governing such Specified Senior
Indebtedness) to such amendment, waiver or modification.
SECTION 10.13. Contractual Subordination. This Article 10 represents
a bona fide agreement of contractual subordination pursuant to Section 510(b)
of the United States Bankruptcy Code.
ARTICLE 11
Conversion of Securities
SECTION 11.01. Applicability; Conversion Privilege and Conversion
Price. If pursuant to a Board Resolution with respect to Registered Securities
of any series denominated and payable in Dollars, Securities of such series may
be convertible into Common Stock of the Company, such conversion shall be in
accordance with the terms of such Board Resolution and (except as otherwise
specified as contemplated by Section 2.02 for Securities of any series) in
accordance with this Article. Conversion provisions, if any, for Securities
denominated in a Foreign Currency or for
-74-
<PAGE> 81
Bearer Securities or for conversion into a security other than Company Common
Stock shall be specified pursuant to Section 2.02.
Subject to and upon compliance with the provisions of this Article at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is U.S. $1,000 or an integral multiple of U.S. $1,000
(unless otherwise specified in a Board Resolution or supplemental indenture
with respect to the Securities of the relevant series), may be converted at the
principal amount thereof, or of such portion thereof, into fully paid and non-
assessable shares of Common Stock (calculated as to each conversion to the
nearest 1/100 of a share) of the Company, at the Conversion Price, determined
as hereinafter provided, in effect at the time of conversion. Such conversion
right shall expire at the close of business on the date specified for
Securities of such series. In case a Security or portion thereof is called for
redemption, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the redemption date, unless the
Company defaults in making the payment due upon redemption.
The price at which Common Stock shall be delivered upon conversion
(the "Conversion Price") shall initially be the price per share of Common Stock
at which the Securities of the relevant series are convertible as set forth in
any Board Resolution with respect to such series (or any supplemental indenture
with respect thereto). The Conversion Price shall be adjusted in certain
instances as provided in Section 11.04.
SECTION 11.02. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security, duly endorsed or assigned to the Company or in blank,
at any office or agency of the Company maintained for that purpose pursuant to
Section 4.04, accompanied by written notice to the Company (which shall be
substantially in the form set forth in the form of Security) at such office or
agency or, if applicable, by notice in accordance with specified procedures
that the Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Securities surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Securities or portions thereof which have been called
for redemption on a redemption date within such period) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities being surrendered for conversion;
provided, however, that a Security surrendered for conversion on an Interest
Payment Date need not be accompanied by a payment, and interest on the
principal amount of the Securities being converted will be paid on such
Interest Payment Date, to the Holder of such Security on the immediately
preceding Record Date. Except as provided in the Securities, no payment or
adjustment shall be made upon any conversion on account of any interest accrued
on the Securities surrendered for conversion or on account of any dividends on
the Common Stock issued upon conversion.
-75-
<PAGE> 82
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to received the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the date of conversion, the
Company shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 11.03.
All Securities converted in accordance with the provisions of this
Article 11 are, and shall be deemed to have been, transferred to or for the
account of the Company.
In the case of any Security which is converted in part only, upon such
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 11.03. Fractions of Shares. No fractional shares of Common
Stock or other such securities shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered.
Instead of any fractional share of Common Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction
in an amount equal to the same fraction of the closing price per share of
Common Stock at the close of business on the day prior to the day of conversion
on the New York Stock Exchange or, if the Common Stock is not listed or
admitted to trading on such exchange, on the principal (as determined by the
Company's Board of Directors) U.S. securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or admitted to trading
on any U.S. securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if the Common Stock is
not listed or admitted to trading on any U.S. securities exchange or quoted on
such National Market System, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock Exchange member
firm selected from time to time by the Company for that purpose.
-76-
<PAGE> 83
SECTION 11.04. Adjustment of Conversion Price. The Conversion Price
with respect to any Security which is convertible into Common Stock shall be
subject to adjustment from time to time as follows:
(a) If the Company shall pay or make a dividend or other
distribution on any class of equity capital of the Company which is payable in
Common Stock, the Conversion Price in effect at the opening of business on the
day following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction of which (i) the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination and (ii) the denominator shall be the sum of
such number of shares referred to in the preceding clause and the total number
of shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination.
(b) If the Company shall issue rights or warrants to all
holders of its Common Stock entitling them to subscribe for or purchase Common
Stock at a price per share less than the current market price per share of
Common Stock (determined as provided in paragraph 11.04(d)) on the date fixed
for the determination of stockholders entitled to receive such rights or
warrants, the Conversion Price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by multiplying
such Conversion Price by a fraction of which (i) the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and (ii) the denominator shall be the number of shares of
Common stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination.
(c) If outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the day upon
which the subdivision becomes effective shall be proportionately reduced, and,
conversely, in case outstanding shares of Common Stock shall be consolidated
into a smaller number of shares of Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or consolidation becomes effective.
-77-
<PAGE> 84
(d) For the purpose of any computation under Section
11.03 and 11.04(b), the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices for the five
consecutive trading days selected by the Company commencing not more than 20
trading days before, and ending not later than, the earlier of the day in
question and the day before the "ex" date with respect to the issuance
requiring such computation. The closing price for each day shall be the last
reported sales price regular way or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked prices regular
way, in either case on the New York Stock Exchange or, if the Common Stock is
not listed or admitted to trading on such exchange, on the principal (as
determined by the Company's Board of Directors) U.S. securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on any U.S. securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System
or, if the Common Stock is not listed or admitted to trading on any U.S.
securities exchange or quoted on such National Market System, the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose. For purposes of this paragraph, the term "'ex' date,"
when used with respect to any issuance means the first date on which the Common
Stock trades regular way on such exchange or in such market without the right
to receive such issuance or distribution.
(e) The Company may make such reductions in the
Conversion Price, in addition to those required by Sections 11.04(a) through
11.04(c), as it considers to be advisable in order that any event treated for
the United States federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients. The Company shall have the power
to resolve any ambiguity or correct any error in this paragraph 11.04(e) and
its actions in so doing shall be final and conclusive.
(f) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least one percent in such price; provided, however, that any adjustments which
by reason of this paragraph 11.04(f) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(g) For purposes of this Section, each Holder of
Securities shall be deemed to have failed to exercise any right to elect the
kind or amount of securities receivable upon the payment of any such dividend,
subdivision, consolidation or reclassification (provided that if the kind or
amount of securities receivable upon such dividend, subdivision, consolidation
or reclassification for each non-electing share shall be deemed to be the kind
and amount so receivable per share by a plurality of the non-electing shares).
-78-
<PAGE> 85
SECTION 11.05. Notice of Adjustment of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion
Price in accordance with Section 11.04 and shall prepare a certificate signed
by an Officer of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with the Trustee and at each office
or agency maintained for the purpose of conversion of Securities pursuant to
Section 4.04; and
(b) a notice stating the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses as they shall
appear in the Security Register.
SECTION 11.06. Notice of Certain Corporation Action. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or purchase
any shares of equity capital of any class or of any other rights; or
(c) the Company or any Subsidiary shall commence a tender
offer or other offer to purchase any of its Common Stock; or
(d) of any reclassification of the Common Stock of the
Company (other than a subdivision or consolidation of its outstanding Common
Stock), or of any consolidation or merger to which the Company is a party and
for which approval of stockholders of the Company is required, or of the sale
or transfer of all or substantially all of the assets of the Company; or
(e) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company,
then the Company shall cause to be filed at the Corporate Trust Office of the
Trustee and at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 4.04, and shall cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register,
at least 20 days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record, effective or expiration date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Stock of record
to be
-79-
<PAGE> 86
entitled to such dividend, distribution, rights or warrants are to be
determined, (ii) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities, cash or other property deliverable upon such reclassification
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
or (iii) the date on which such tender offer or other offer to purchase
commenced, the date on which such tender offer or other offer to purchase is
scheduled to expire unless extended, the consideration offered and the other
material terms thereof (or the material terms of any amendment thereto).
Neither the failure to give any such notice nor any defect therein shall affect
the legality or validity of any action described in clauses (a) through (e) of
this Section 11.06.
SECTION 11.07. Company to Reserve Common Shares. The Company shall at
all times reserve and keep available, free from pre-emptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the number of its duly authorized shares of Common
Stock then issuable upon the conversion of all Outstanding Securities.
SECTION 11.08. Taxes on Conversion. The Company will pay any and all
taxes that may be payable in respect of the issue or delivery of Common Stock
on conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
SECTION 11.09. Covenant as to Common Stock. The Company covenants
that all Common Stock which may be issued upon conversion of Securities will
upon issue be fully paid and non-assessable and, except as provided in Section
11.08, the Company will pay all taxes, liens and charges with respect to the
issue thereof.
SECTION 11.10. Company to Receive Converted Securities. All
Securities surrendered for conversion pursuant to Section 11.02 shall be
delivered to the Company.
SECTION 11.11. Provisions in Case of Consolidation, Merger or Sale
of Assets. In case of any consolidation of the Company with, or merger of the
Company into, any other corporation, any merger of another corporation into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding Common Stock of the
Company) or any sale or transfer of all or substantially all of the assets of
the Company (treating the Company and its Subsidiaries as a single consolidated
entity and treating any sale by a Subsidiary as a sale by the Company for such
purpose), the corporation formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then
-80-
<PAGE> 87
outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 11.01, to convert such Security
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Company (i) is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
others than a constituent Person or an Affiliate thereof and in respect of
which such rights of election shall not have been exercised ("non-electing
share"), then, for the purpose of this Section, the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The Trustee shall not be under any responsibility to determine the
correctness of any provision contained in such supplemental indenture relating
to either the kind or amount of shares, other securities, cash or property
receivable by Holders upon the conversion of their Securities after any such
consolidation, merger, sale or transfer. The above provisions of this Section
shall similarly apply to successive consolidations, mergers, sales or
transfers.
SECTION 11.12. Responsibility of Trustee and Conversion Agent.
Neither the Trustee nor any agent appointed to effect conversions shall at any
time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any such conversion agent shall be accountable with respect to
the validity or value (or the kind or amount) of any Common Stock or of any
securities or property which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any such conversion
agent shall be responsible for any failure of the Company to issue, transfer or
deliver any Common Stock or stock certificates or other securities or property
or to make any cash payment upon the delivery of any Security for the purpose
of conversion or to comply with any of the covenants contained in this Article.
-81-
<PAGE> 88
ARTICLE 12
Miscellaneous
SECTION 12.01. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee, to
the extent required by the TIA or this Indenture, (i) an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenant, compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the
opinion of each such individual, such condition or covenant has been
complied with.
SECTION 12.02. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer
-82-
<PAGE> 89
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, and may state that it is so based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate of opinion or
representations with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 12.03. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by a specified percentage of Holders of Securities of a particular
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Holders of
Securities of a particular series in person or by agents duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are received by the
Trustee and, where it is hereby expressly required, by the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 7.01 and 7.02) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient,
including the execution of such instrument or writing without more.
(c) The ownership, principal amount and serial numbers of
Registered Securities of any series held by any Person, and the date of holding
the same, shall be proved by the Security Register. The Company, the Trustee
and any Paying Agent may deem and treat the Holder of any Bearer Security or
Coupon as the absolute owner of such Bearer Security or Coupon (whether or not
-83-
<PAGE> 90
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and premium, if any, and (subject to Section 2.02) interest on
such Bearer Security or Coupon and for all other purposes, and neither the
Company nor the Trustee nor any Paying Agent shall be affected by any notice to
the contrary; and all such payments so made to any such Holder for the time
being, or upon his order, shall be valid and, to the extent of the sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Bearer Security or Coupon.
(d) If the Company shall solicit from the Holders of
Securities of any series any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation is completed. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record of Registered Securities at the close of business on such
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities of any
series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities of any series shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of a Security of any series
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action with regard to any particular Security may
do so with regard to all or any part of the principal amount of such Security
or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any different part of such principal
amount.
SECTION 12.04. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the Trust Indenture Act, the
required provision shall control. If any provision of this Indenture modifies
or excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
-84-
<PAGE> 91
SECTION 12.05. Notices. Any notice or communication shall be in
writing and delivered in person, or sent by registered or certified mail, by
air courier guaranteeing overnight delivery or by fax (promptly confirmed by
telephone) and addressed as follows:
if to the Company:
HS Resources, Inc.
One Maritime Plaza
Fifteenth Floor
San Francisco, CA 94111
Attn: Chief Financial Officer
Phone: (415) 433-5795
Fax: (415) 433-5811
with a copy to:
HS Resources, Inc.
1999 Broadway, Suite 3600
Denver, CO 80202
Attn: General Counsel
Phone: (303) 296-3600
Fax: (303) 296-3601
if to the Trustee:
---------------------------
---------------------------
---------------------------
Attention:
-----------------
Phone:
---------------------
Fax:
-----------------------
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication sent to a Registered Holder shall
be sent to the Registered Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so sent
within the time prescribed.
-85-
<PAGE> 92
Any notice required or permitted to a Bearer Holder by the Company or
the Trustee pursuant to this Indenture shall be deemed to be properly given if
published on two separate business days in an Authorized Newspaper or
Newspapers in such Place or Places of Payment specified pursuant to Section
2.02, the first such publication to be not earlier than the earliest date and
not later than two business days prior to the latest date prescribed for the
giving of such notice. Notwithstanding the foregoing, any notice to Holders of
floating rate Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 2.02, shall be
sufficiently given if given in the manner specified pursuant to Section 2.02.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspaper
or by reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to send a notice or communication to a Holder or any
defect in it shall not effect its sufficiency with respect to other Holders. If
a notice or communication is given in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 12.06. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in
the State of New York. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION 12.09. Governing Law. This Indenture and the Securities shall
be governed by, and construed in accordance with, the laws of the State of New
York but without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
-86-
<PAGE> 93
SECTION 12.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 12.11. Submission to Jurisdiction; Appointment of Agent for
Service of Process; Waiver of Immunities.
(a) The Company hereby irrevocably, to the fullest extent
it may do so under applicable law, submits to the jurisdiction of any New York
State or federal court sitting in the Borough of Manhattan, The City of New
York and to the courts of its own corporate domicile with respect to all
actions brought against it as a defendant in respect of any suit, action or
proceeding or arbitral award arising out or relating to this Indenture, the
Securities or any transaction contemplated hereby or thereby (a "Proceeding"),
and irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts, to the fullest
extent it may do so under applicable law. The Company irrevocably waives, to
the fullest extent it may do so under applicable law, trial by jury and any
objection which it may now or hereafter have to the laying of the venue of any
such Proceeding brought in any such court and any claim that any such
Proceeding brought in any such court has been brought in an inconvenient forum.
The Company acknowledges that it has, by separate written instrument,
irrevocably appointed _______ (the "Process Agent"), with an office at
_______________________________________, as its authorized agent to receive on
behalf of the Company and its property service of copies of the summons and
compliant and any other process which may be served in any proceeding, and that
the Process Agent has accepted such appointment. If for any reason such Process
Agent shall cease to be such agent for service of process, the Company shall
forthwith appoint a new agent of recognized standing for service of process in
the State of New York, United States and deliver to the Trustee a copy of the
new agent's acceptance of that appointment within 30 days. Nothing herein shall
affect the right of the Trustee, any Paying Agent or any Holder to serve
process in any other manner permitted by law or to commence legal proceedings
or otherwise proceed against the Company in any other court of competent
jurisdiction.
(b) Service may be made by delivering by hand a copy of
such process to the Company, in care of the Process Agent at the address
specified above. The Company hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. Failure of the Process
Agent to give notice to the Company or failure of the Company to receive notice
of such service of process shall not affect in any way the validity of such
service on the Process Agent or the Company. As an alternative method of
service, the Company also irrevocably consents to the service of any and all
process in any such proceeding by the delivery by hand of copies of such
process to the Company, at the applicable address specified in Section 12.05
hereof or at the address most recently furnished in writing by the Company to
the Trustee. The Company covenants and
-87-
<PAGE> 94
agrees that it shall take any and all reasonable action, including the
execution and filing of any and all documents, that may be necessary to
continue the designation of the Process Agent specified above in full force and
effect during the term of the Securities, and to cause the Process Agent to
continue to act as such.
(c) The Company irrevocably agrees that, in any
Proceedings anywhere (whether for an injunction, specific performance or
otherwise), no immunity (to the extent that it may at any time exist, whether
on the grounds of sovereignty or otherwise) from such Proceedings, from
attachment (whether in aid of execution, before judgment or otherwise) of its
assets or from execution of judgment shall be claimed by it or on its behalf or
with respect to its assets, except to the extent required by applicable law,
any such immunity being irrevocably waived, to the fullest extent permitted by
applicable law. The Company irrevocably agrees that, where permitted by
applicable law, it and its assets are, and shall be, subject to such
Proceedings, attachment or execution in respect of its obligations under this
Indenture or the Securities.
SECTION 12.12. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 12.13. Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture. This Indenture may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 12.14. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
-88-
<PAGE> 95
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first above written.
THE COMPANY:
HS RESOURCES, INC.
By:
--------------------------------
Name:
Title:
TRUSTEE:
-----------------------------------
By:
--------------------------------
Name:
Title:
S-1
<PAGE> 1
EXHIBIT 4.7
HS RESOURCES, INC.
PREFERRED STOCK WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of _____________, is between
HS Resources, Inc., a Delaware corporation (hereinafter called the "Company"),
and __________________, as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with other securities -- [title of such other securities being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right to
purchase [title of Preferred Stock purchasable through exercise of Warrants]
(the "Warrant Securities"), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
- ----------
* Complete or modify the provisions of this Warrant Agreement as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered Securities.
<PAGE> 2
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after ____________ (the "Detachable Date")] [and shall not
be separately transferable], and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
Security. [If Offered Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Offered Securities, and each Warrant
Certificate included in such a unit shall evidence ______ Warrants for each
[$__________ in principal amount] [_______ shares] of Offered Securities
included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated
_______________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, the Chief
Executive officer, its President or one of its Vice Presidents and by its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be
2
<PAGE> 3
exercisable, until such Warrant Certificate has been countersigned by the
manual signature of the Warrant Agent. Such signature by the Warrant Agent
upon any Warrant Certificate executed by the Company shall be conclusive
evidence that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company,
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up to date].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding
_________ Warrant Securities (except as provided in Sections 2.03(c), 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon
the execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to _________ Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or
3
<PAGE> 4
more previously countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided.
Section 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed, or otherwise produced substantially of the tenor of
the definitive Warrant Certificate in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine as appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or ________________], without charge to the
holder. Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
_____________, through and including _______________, the exercise price of
each Warrant will be _____________. Such purchase price of Warrant Securities
is referred to in this Agreement as the "Warrant Price." No adjustment shall
be made for any dividends on any Warrant securities issuable upon exercise of
any Warrant.
SECTION 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [______________] and at or before 5 P.M., [New York City] time, on
4
<PAGE> 5
____________ or such later date as the Company may designate, by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to their addresses
as set forth in the record books of the Warrant Agent (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M., [New York City] time, on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants.
(a) During the period specified in Section 2.02, any whole
number of Warrants may be exercised by providing certain information as set
forth on the reverse side of the Warrant Certificate and by paying in full, in
[lawful money of the United States of America] [in cash or by certified check
or official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in [immediately available] [next-day] funds the Warrant Price for
each Warrant exercised, to the Warrant Agent at its corporate trust office [or
at ___________], provided that such exercise is subject to receipt within five
(5) business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities
set forth on the reverse side of the Warrant Certificate properly completed and
duly executed. The date on which payment in full of the Warrant Price is
received by the Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a [payment]
[wire transfer] for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as reasonably practicable, advise the Company of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company shall reasonably
require.
5
<PAGE> 6
(c) As soon as reasonably practicable after the exercise of
any Warrant, the Company shall issue to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant, the Warrant Securities to which
such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver a new Warrant Certificate evidencing the number of such Warrants
remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there shall have
been reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient to
provide for the exercise of the Warrant Certificates.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of
6
<PAGE> 7
notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the issuance of any new Warrant Certificate under
this Section, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Warrant Agent)
in connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and proportionately with any
and all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such holder's right to
exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificate and in this Agreement.
SECTION 3.04. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease. In case any of the following shall occur while any
Warrants are outstanding: (a) any reclassification or change of the outstanding
shares of Warrant Securities, or (b) any consolidation or merger to which the
Company is party (other than a consolidation or a merger in which the Company
is the continuing corporation and which does not result in any reclassification
of, or change in, the outstanding shares of Warrant Securities issuable upon
exercise of the Warrants), or (c) any sale, conveyance or lease to another
corporation of the property of the Company as an entirety or substantially as
an entirety, the Company, or such successor or purchasing corporation, as the
case may be, shall make appropriate
7
<PAGE> 8
provision by amendment of this Agreement or otherwise so that the holders of
the Warrants then outstanding shall have the right at any time thereafter, upon
exercise of such Warrants, to purchase the kind and amount of shares of stock
and other securities and property receivable upon such a reclassification,
change, consolidation, merger, sale, conveyance or lease as would be received
by a holder of the number of shares of Warrant Securities issuable upon
exercise of such Warrant immediately prior to such reclassification, change,
consolidation, merger, sale, conveyance or lease, and, in the case of a
consolidation, merger, sale, conveyance or lease the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name, in fulfillment of its obligations
to deliver Warrant Securities upon exercise of the Warrants. All the Warrants
so issued shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such reclassification,
change, consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change,
consolidation, merger, conveyance, transfer or lease complies with the
provisions of this Section 3.04.
ARTICLE IV
EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants that are immediately detachable -- Upon]
[If Offered Securities with Warrants that are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which
8
<PAGE> 9
the Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered Security
[on the register of the Offered Securities] shall operate also to transfer the
related Warrant Certificates. After the Detachable Date upon] surrender at the
corporate trust office of the Warrant Agent [or __________], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office [and
at ________], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office [or ________] for exchange
or registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service
charge shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are so surrendered for exchange or registration of
transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration or transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligation
of the Company, evidencing the same obligations, and entitled to the same
benefits under this Agreement, as the Warrant Certificate surrendered for such
exchange or registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the
9
<PAGE> 10
Warrant Certificates initially attached thereto for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced by
such Warrant Certificates, any notice to the contrary notwithstanding. After
the Detachable Date and prior to due presentment of a Warrant Certificate for
registration of transfer,] [t][T]he Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
__________________ as the Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and ____________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
10
<PAGE> 11
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees) reasonably
incurred without negligence or bad faith by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising our of or in connection with its acting as
Warrant Agent hereunder, as well as the costs and expenses of defending against
any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with nationally
recognized counsel satisfactory to it, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any
action reasonably taken, suffered or omitted by it hereunder in good faith and
in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the,proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be
11
<PAGE> 12
deemed to prevent the Warrant Agent from acting as Trustee under any of the
Indentures.
(f) No Liability for Interest. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of a
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
12
<PAGE> 13
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall be not less than three (3) months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the intended date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to
the extent set forth therein, notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of
any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the
Warrant Agent or of its property or affairs, or any public officer shall take
charge or control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor
13
<PAGE> 14
Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided;
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a
14
<PAGE> 15
Warrant Certificate pursuant to the provisions of the Warrant Certificates, the
Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_____________________, Attention: ____________________ and any communication
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to HS Resources, Inc., One Maritime Plaza, Fifteenth Floor, San
Francisco, CA 94111, Attention: Chief Financial Officer, with a copy to: HS
Resources, Inc., 1999 Broadway, Suite 3600, Denver, CO 80202, Attention:
General Counsel, (or such other address as shall be specified in writing by the
Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of [New York].
SECTION 6.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver a Prospectus to the holder of the
Warrant Certificate evidencing such Warrant prior or concurrently with the
delivery of the Warrant Securities issued upon such exercise. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
15
<PAGE> 16
SECTION 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF HS Resources, Inc. and
___________________ have caused this Agreement to be signed by their respective
duly authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one of
their respective Assistant Secretaries, all as of the day and year first above
written.
HS RESOURCES, INC.
By: ____________________________
Title:
16
<PAGE> 17
Attest:
_________________________
Title:
[Warrant Agent]
By: ____________________________
Title:
Attest:
_________________________
Title:
17
<PAGE> 18
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
<TABLE>
<S> <C>
[Form of Legend if Offered Securities with Prior to ___________ this Warrant Certificate
Warrants that are not immediately detachable. cannot be transferred or exchanged unless
attached to a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to ___________, Warrants evidenced by this
exercisable. Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HS RESOURCES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON _____________.
No. __________ __________ Warrants
This certifies that _________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [If Offered Securities with Warrants that are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., [New York City] time, on _________, ________ shares of
[Title of Warrant Securities] (the "Warrant Securities"), HS Resources, Inc.
(the "Company") on the following basis: [during the period from _____________,
through and including ___________, the exercise price of each Warrant will be
________; during the period from ____________, through and including ________,]
the exercise price of each Warrant will be ________ (the "Warrant Price").
No adjustment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant. The holder may exercise the
Warrants evidenced hereby by providing certain information set forth on
the back hereof and by paying in full [in
A-1
<PAGE> 19
lawful money of the United States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in [immediately available] [next-day] funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [name of Warrant Agent],
[or ________], which is, on the date hereof, at the address specified on the
reverse hereof, and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable --, prior to
___________ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] the person in whose name at the time
of this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of __________ (the "Warrant Agreement") by
and between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ____________].
[If Offered Securities with registered Warrants that are not
immediately detachable -- Prior to ___________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
(the "Offered Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such date, this] [if
Offered Securities with registered Warrants that are immediately
A-2
<PAGE> 20
detachable -- Transfer of this] Warrant Certificate may be registered when this
Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent [or ___________] by the registered owner or such owner's assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Warrant Agreement.]
[If offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants that are immediately detachable or Warrant
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
_______________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if
any, on the Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of __________________
HS RESOURCES, INC.
By: ____________________________
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By: ______________________
Authorized Signature
A-3
<PAGE> 21
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereof, the holder must pay
in United States dollars [in cash or by certified check or official bank check
or by bank wire transfer] [by bank wire transfer] in [immediately available]
[next-day] funds the Warrant Price in full for Warrants exercised to [insert
name of Warrant Agent] [Corporate Trust Department] [insert address of Warrant
Agent], Attn. _______ [or __________], which [payment] [wire transfer] must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address
set forth below. This Warrant Certificate, completed and duly executed, must
be received by the Warrant Agent within five business days of the [payment]
[wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
_________ shares of the [Title of Warrant Securities] (the "Warrant
Securities") of HS Resources, Inc. and represents that the
undersigned has tendered payment for such Warrant Securities in Dollars [in
cash or by certified check or official bank check or by bank wire transfer, in
each case] [by bank wire transfer] in [immediately available] [next-day] funds
to the order of HS Resources, Inc., c/o [insert name and address
of Warrant Agent], in the amount of __________ in accordance with the terms
hereof. The undersigned requests that said amount of Warrant Securities be in
fully registered form in the authorized denominations, registered in such names
and delivered all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrant evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instruction
below.
A-4
<PAGE> 22
<TABLE>
<S> <C>
Dated: ____________________________ Name _________________________________________
___________________________________ Address ______________________________________
(Insert Social Security or
Other Identifying Number of Holder) ______________________________________
Signature Guaranteed (Signature must conform in all respects
____________________ to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York or Pacific Stock Exchange)
</TABLE>
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
By mail at
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-5
<PAGE> 23
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
<TABLE>
<S> <C>
__________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
__________________________
(Address)
__________________________
(City, including zip code)
</TABLE>
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
<TABLE>
<S> <C>
______________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member
broker of the New York or Pacific Stock Exchange)
Signature Guaranteed:
_________________________
</TABLE>
A-6
<PAGE> 1
EXHIBIT 4.8
HS RESOURCES, INC.
COMMON STOCK WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of _____________, is between
HS Resources, Inc., a Delaware corporation (hereinafter called
the "Company"), and _____________________ , as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with other securities -- [title of such other securities being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right to
purchase the Common Stock of the Company (the "Warrant Securities"), such
warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
- ------------
* Complete or modify the provisions of this Warrant Agreement as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered Securities.
<PAGE> 2
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially) issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _____________ (the "Detachable Date")] [and shall not
be separately transferable], and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
Security. [If Offered Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Offered Securities, and each Warrant
Certificate included in such a unit shall evidence ______ Warrants for each
[$_____________ in principal amount] [______ shares] of Offered Securities
included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated
____________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board, the Chief
Executive Officer its President or one of its Vice Presidents and by its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the
Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be
2
<PAGE> 3
exercisable, until such Warrant Certificate has been countersigned by the
manual signature of the Warrant Agent. Such signature by the Warrant Agent
upon any Warrant Certificate executed by the Company shall be conclusive
evidence that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company,
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent
such information as to holders of the Offered Securities with Warrants as may
be necessary to keep the Warrant Agent's records up to date].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding
_________ Warrant Securities (except as provided in Sections 2.04(c), 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon
the execution of this Warrant Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to ________ Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or
3
<PAGE> 4
more previously countersigned Warrant Certificates or in connection with their
transfer, as hereinafter provided.
SECTION 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificate in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine as appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or _______________], without charge to the holder.
Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
_______________ , through and including _____________ , the exercise price of
each Warrant will be ____________ subject to adjustment as provided in Section
2.02. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." Other than as provided in Section 2.02
herein, no adjustment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant.
4
<PAGE> 5
SECTION 2.02. Adjustments in Warrant Price.
(1) The Warrant Price, the number of shares purchasable upon
exercise of the Warrants and the number of Warrants outstanding shall be
subject to adjustment as follows:
(A) In case the Company shall at any time (i) declare a
dividend on the Common Stock in shares of its capital stock, (ii) subdivide its
outstanding Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the surviving
company), the number of shares purchasable upon exercise of each Warrant
immediately prior to the date of such event shall be proportionately adjusted
so that the holder of each Warrant shall be entitled to receive upon payment of
the Warrant Price the aggregate number of shares of the Company that, if such
Warrant had been exercised immediately prior to the occurrence of such event,
such holder would have owned or have been entitled to receive immediately after
the occurrence of such event. Such adjustment shall be made successively
whenever any event listed above shall occur.
5
<PAGE> 6
(B) In case the Company shall distribute to all holders of
Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving company)
evidences of its indebtedness or assets (including securities but excluding
cash dividends or distributions paid out of retained earnings and dividends
payable in Common Stock) or subscription rights or warrants, the number of
shares purchasable upon exercise of each Warrant shall be adjusted (subject to
the limitations contained in subparagraph (F) of this Section) by multiplying
the number of shares purchasable upon exercise of each Warrant in effect
immediately prior to the record date for determination of stockholders entitled
to receive such distribution by a fraction, the numerator of which shall be the
current market price per share of Common Stock (as defined in subparagraph (D)
of this Section) on such record date and the denominator of which shall be such
current market price per share of Common Stock, less the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive)
of the portion of the evidences of indebtedness or assets or subscription
rights or warrants so to be distributed that are applicable to one share of
Common Stock. Such adjustment shall become effective at the close of business
on such record date.
If after the distribution date (the "Distribution Date") for
purposes of distributing to holders of the Common Stock any stockholder
protection, "poison pill" or other similar rights to subscribe for securities
of the Company or any other entity ("Shareholder Rights"), exercising holders
of the Warrant are not entitled to receive the Shareholder Rights that would
otherwise be attributable (but for the date of exercise) to the shares of
Common Stock received upon such exercise, then adjustment of the number of
shares purchasable upon exercise of each Warrant shall be made under this
subparagraph (B) as if the Shareholder Rights were then being distributed to
holders of the Company's Common Stock. If such an adjustment is made and the
Shareholder Rights are later [redeemed,] invalidated or terminated, then a
corresponding reversing adjustment shall
6
<PAGE> 7
be made to the number of shares purchasable upon exercise of each Warrant, on
an equitable basis, to take account of such event. However, the Company may
elect to make provision with respect to the Shareholder Rights so that each
share of Common Stock issuable upon exercise of each Warrant, whether or not
issued after the Distribution Date for such Shareholder Rights, will be
accompanied by the Shareholder Rights that would otherwise be attributable (but
for the date of exercise) to such shares of Common Stock, in which event the
preceding two sentences will not apply. The foregoing provisions shall be
applicable to all such rights plan(s) of the Company.
(C) After each adjustment of the number of shares purchasable
upon exercise of each Warrant pursuant to this Section, the Warrant Price shall
be adjusted by multiplying such Warrant Price immediately prior to such
adjustment by a fraction of which the numerator shall be the number of shares
purchasable upon exercise of each Warrant immediately prior to such adjustment,
and the denominator of which shall be the number of shares so purchasable
immediately thereafter.
(D) For the purpose of any computation under subparagraph
(C) of this Section, the current market price per share of Common Stock on
any record date shall be deemed to be the average of the daily closing prices
for the five consecutive business days selected by the Board of Directors
commencing not more than 20 trading days before, and ending not later than the
earlier of the day in question and the day before the "ex" date with respect to
the issuance or distribution requiring such computation. For this purpose, the
term "ex" date, when used with respect to any issuance or distribution, shall
mean the first date on which the Common Stock trades regular way on the
applicable exchange or in the applicable market without the right to receive
such issuance or distribution. The closing price for each date shall be the
reported last sale price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on The New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such exchange, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national securities
exchange, on the National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in
the over-the-
7
<PAGE> 8
counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
(E) In the case of any (i) consolidation or merger of the
Company with or in to any entity (other than a consolidation or merger that
does not result in any reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock of the Company), (ii) sale, transfer,
lease or conveyance of all or substantially all of the assets of the Company or
(iii) reclassification, capital reorganization or change of the Common Stock
(other than solely a change in par value, or from par value to no par value),
each holder of any Warrant then outstanding shall have the right thereafter
upon exercise of such Warrant to receive only the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale, transfer, capital reorganization or reclassification by a holder of the
number of shares of Common Stock of the Company for which such Warrant would
have been exercised immediately prior to such consolidation, merger, sale,
transfer, capital reorganization or reclassification, assuming such holder of
Common Stock of the Company is not an entity with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be ("constituent
entity"), or an affiliate of a constituent entity, and failed to exercise his
or her rights of election, if any, as to the kind or amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the same
for each share of Common Stock of the Company held immediately prior to such
consolidation, merger, sale or transfer by other than a constituent entity or
an affiliate thereof and in respect of which such rights of election shall not
have been exercised ("non-electing share"), then for the purpose of this
subsection (E) the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). If necessary, appropriate
adjustment shall be made in the application of the provisions set forth herein
with respect to the rights and interests thereafter of the holders of the
Warrant, to the end that the provisions set forth herein shall thereafter
correspondingly be made applicable, as nearly as may reasonably be, in relation
to any shares of stock or other securities or property thereafter deliverable
on the
8
<PAGE> 9
exercise of the Warrant. The above provisions shall similarly apply to
successive consolidations, mergers, sales, transfers, capital reorganizations
and reclassifications. The Company shall not effect any such consolidation,
merger, sale or transfer, unless prior to or simultaneously with the
consummation thereof the successor company or entity (if other than the
Company) resulting from such consolidation, merger, sale or transfer shall
assume, by written instrument, the obligation to deliver to the holder of each
Warrant such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to receive under this Section
2.02.
(F) No adjustment in the number of shares purchasable upon
exercise of each Warrant will be made for the issuance of shares of capital
stock to employees pursuant to the Company's or any of its subsidiaries' stock
option, stock ownership or other benefit plans. No adjustment will be required
to be made in the number of shares purchasable upon exercise of each Warrant
until cumulative adjustments require an adjustment of at least 1% of such
number of shares.
(G) In any case in which this Section 2.02(1) shall require
that an adjustment be made retroactively immediately following a record date,
the Company may elect to defer for a reasonable period not to exceed - days
issuing to the holder of any warrant exercised after such record date the
shares of the Company issuable upon such exercise over and above the shares
issuable upon such exercise only on the basis of the warrant exercise price
prior to adjustment.
(H) Except as herein otherwise expressly provided, no
adjustment in the Warrant Price shall be made by reason of the issuance of
shares, or securities convertible into or exchangeable for shares, or
securities carrying the right to purchase any of the foregoing or for any other
reason whatsoever.
(I) Irrespective of any of the adjustments in the Warrant
Price or the number of shares, Warrant Certificates theretofore issued may
continue to express the same prices and number of shares as are stated in a
similar Warrant Certificate issuable initially, or at some subsequent time,
pursuant to this Agreement, and such number of shares specified therein shall
be deemed to have been so adjusted.
[(2) No fractional shares of Common Stock shall be issued upon
the exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder,
9
<PAGE> 10
the number of full shares that shall be issuable upon such exercise shall be
computed on the basis of the aggregate number of shares purchased pursuant to
the Warrants so exercised. Instead of any fractional share of Common Stock
that would otherwise be issuable upon exercise of any Warrant, the Company
shall pay a cash adjustment in respect of such fraction in an amount equal to
the same fraction of the last sales price (or bid price if there were no sales)
per share of Common Stock in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange on the business day that
next precedes the day of exercise or, if the Common Stock is not then listed or
admitted to trading on the New York Stock Exchange, an amount equal to the same
fraction of the market price per share of Common Stock (as determined in a
manner described by the Board of Directors of the Company) at the close of
business on the business day that next precedes the day of exercise.]
(3) Before taking any action that would cause an adjustment
decreasing the Warrant Price so that the Warrant Price is below the then par
value of the shares of Common Stock, the Company will take any corporate action
that may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable shares of Common
Stock at the Warrant Price as so adjusted.
(4) Whenever the Warrant Price then in effect is adjusted as
herein provided, the Company shall mail to each holder of the Warrants at such
holder's address as it shall appear on the books of the Company a statement
setting forth the adjusted Warrant Price, then and thereafter effective under
the provisions hereof together with the facts, in reasonable detail, upon which
such adjustment is based.
[(5) In case (i) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in cash out of
its current or retained earnings, or (ii) the Company shall authorize the
granting to the holders of its Common Stock of rights to subscribe for or
purchase any shares of capital stock of any class or of any other rights, or
(iii) there is to be any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of Common
Stock), or any consolidation or merger to which the Company is a party as
described in Section 3.04 herein and for which approval of any stockholders of
the Company is required, or (iv) any distribution is to be made on or in
respect of the Common Stock in connection with the
10
<PAGE> 11
dissolution, liquidation or winding up of the Company as described in Section
3.04 herein, then the Company shall mail to each holder of Warrants at such
holder's address as it shall appear on the book: of the Company, at least
[twenty (20) days (or ten (10) days in any case specified in clause (i) or (ii)
above)] prior to the applicable record date hereinafter specified, a notice
stating (x) the record date for such dividend, distribution or granting of
rights, or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution or
granting of rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, dissolution, liquidation or winding
up. No failure to mail such notice nor any defect therein or in the mailing
thereof shall affect any such transaction or any adjustment in the Warrant
Price required by this Section 2.02.]
SECTION 2.03. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [______________] and at or before 5 P.M., [New York City] time, on
________or such later date as the Company may designate, by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to their addresses
as set forth in the record books of the Warrant Agent (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M., [New York City] time, on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.04. Exercise of Warrants.
(a) During the period specified in Section 2.03, any whole
number of Warrants may be exercised by providing certain information as set
forth on the reverse side of the Warrant Certificate and by paying in full, in
[lawful money of the United States of America] [in cash or by certified check
or official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in [immediately available] [next-day] funds the Warrant Price for
each Warrant exercised, to the Warrant Agent at its corporate trust office [or
at __________], provided that such exercise is subject to receipt within five
(5) business days of such [payment] [wire transfer] by the Warrant Agent of the
11
<PAGE> 12
Warrant Certificate with the form of election to purchase Warrant Securities
set forth on the reverse side of the Warrant Certificate properly completed and
duly executed. The date on which payment in full of the Warrant Price is
received by the Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a [payment)
[wire transfer] for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as reasonably practicable, advise the Company of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company shall reasonably
require.
(c) As soon as reasonably practicable after the exercise of
any Warrant, the Company shall issue to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant, the Warrant Securities to which
such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver a new Warrant Certificate evidencing the number of such Warrants
remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or delivery any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there shall have
been reserved, and the Company shall at all times
12
<PAGE> 13
keep reserved, out of its authorized but unissued Warrant Securities, a number
of shares sufficient to provide for the exercise of the Warrant Certificates.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
13
<PAGE> 14
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such holder's right to
exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificate and in this Agreement.
SECTION 3.04. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease. In case any of the following shall occur while any
Warrants are outstanding: (a) any reclassification or change of the outstanding
shares of Warrant Securities (other than solely a change in par value or from
par value to no par value), or (b) any consolidation or merger to which the
Company is party (other than a consolidation or a merger in which the Company
is the continuing corporation and which does not result in any reclassification
of, or change in, the outstanding shares of Warrant Securities issuable upon
exercise of the Warrants), or (c) any sale, transfer, conveyance or lease to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision by amendment
of this Agreement or otherwise so that the holders of the Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such a reclassification, change,
consolidation, merger, sale, transfer, conveyance or lease as would be received
by a holder of the number of shares of Warrant Securities issuable upon
exercise of such Warrant immediately prior to such reclassification, change,
consolidation, merger, sale, transfer, conveyance or lease, and, in the case of
a consolidation, merger, sale, conveyance or lease the Company shall thereupon
be relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name, in fulfillment of its obligations
to delivery Warrant Securities upon exercise of the Warrants. All the
14
<PAGE> 15
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change,
consolidation, merger, conveyance, transfer or lease complies with the
provisions of this Section 3.04.
ARTICLE IV
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants that are immediately detachable -- Upon]
[(If Offered Securities with Warrants that are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to
any Detachable Date, each transfer of the Offered Security [on the register of
the Offered Securities]) shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ____________], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. The
Warrant Agent shall keep, at its corporate trust office [and at ________],
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [or ________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No
15
<PAGE> 16
service charge shall be made for any exchange or registration of transfer of
Warrant Certificates, but the Company may require payment of a sum sufficient
to cover any stamp or other tax or other governmental charge that may be
imposed in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange or registration or transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligation of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificate surrendered for
such exchange or registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to due presentment of a Warrant Certificate for
registration of transfer,] [t][T]he Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner thereof for
any purpose and as the person entitled to exercise the rights represented by
the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise
16
<PAGE> 17
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
_______________________ as the Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and ___________________ hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and hereby and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
reasonably incurred without negligence or bad faith by the Warrant Agent in
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Warrant Agent, arising out of or in connection with
its acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent
is acting solely as agent of the Company and does not assume any obligations
or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
17
<PAGE> 18
(c) Counsel. The Warrant Agent may consult with nationally
recognized counsel satisfactory to it, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any
action reasonably taken, suffered or omitted by it hereunder in good faith and
in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by
it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee
or body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Represents. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and
18
<PAGE> 19
no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of a receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 7.02 hereof, to make any demand
upon the Company.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall be not less than three (3) months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the intended date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to
the extent set forth therein, notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of
19
<PAGE> 20
acting, or shall be adjudged a bankrupt or insolvent, or shall commence a
voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or under any other applicable Federal or state bankruptcy,
insolvency or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due,
or shall take corporate action in furtherance of any such action, or a decree
or order for relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or similar law; or a decree
or order by a court having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
20
<PAGE> 21
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
21
<PAGE> 22
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the
22
<PAGE> 23
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
___________________, Attention: ____________________ and any communication
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to HS Resources, Inc., One Maritime Plaza, Fifteenth Floor, San
Francisco, CA 94111, Attention: Chief Financial Officer, with a copy to: HS
Resources, Inc., 1999 Broadway, Suite 3600, Denver, CO 80202, Attention:
General Counsel (or such other address as shall be specified in writing by the
Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of [New York].
SECTION 6.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver a Prospectus to the holder of the
Warrant Certificate evidencing such Warrant prior or concurrently with the
delivery of the Warrant Securities issued upon such exercise. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
23
<PAGE> 24
SECTION 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF HS Resources, Inc. and ___________ have
caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
HS RESOURCES, INC.
By: ____________________________
Title:
24
<PAGE> 25
Attest:
_________________________
Title:
[Warrant Agent]
By: ____________________________
Title:
Attest:
_________________________
Title:
25
<PAGE> 26
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
<TABLE>
<S> <C>
[Form of Legend if Offered Securities with Prior to ___________ this Warrant Certificate
Warrants that are not immediately detachable. cannot be transferred or exchanged unless
attached to a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to ___________, Warrants evidenced by this
exercisable. Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HS RESOURCES, INC.
WARRANTS TO PURCHASE
Common Stock
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON _____________.
No. __________ __________ Warrants
This certifies that ____________________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants that are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., [New York City] time, on ____________________,
__________ shares of Common Stock (the "Warrant Securities"), of HS Resources,
Inc. (the "Company") on the following basis: [during the period from
__________, through and including ____________,] the exercise price of each
Warrant will be ___________ during the period from _________, through and
including ____________,] the exercise price of each Warrant will be ___________
(the "Warrant Price"), subject to such adjustments as provided in Section 2.02
of the Warrant Agreement (as defined below). Other than as provided in Section
2.02 of the Warrant
A-1
<PAGE> 27
Agreement, no adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant. The holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full [in lawful money of the United States of
America] [in cash or by certified check or official bank check or [by bank wire
transfer, in each case,] (by bank wire transfer] in [immediately available]
[next-day] funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], [or __________], which is, on the date
hereof, at the address specified on the reverse hereof, and upon compliance
with and subject to the conditions set forth herein and in the Warrant
Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities with
Warrants that are not immediately detachable --, prior to __________ (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time of this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________ (the "Warrant Agreement") by and
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ____________].
[If Offered Securities with registered Warrants that are not
immediately detachable -- Prior to __________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
(the
A-2
<PAGE> 28
"Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, this] [if Offered
Securities with registered Warrants that are immediately detachable -- Transfer
of this] Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or __________]
by the registered owner or such owner's assigns, in person or by an attorney
duly authorized in writing, in the manner and subject to the limitations
provided in the Warrant Agreement.]
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrant alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or __________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if
any, on the Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________________
HS RESOURCES, INC.
By: ____________________________
A-3
<PAGE> 29
Attest:
_______________________________________
Countersigned:
_______________________________________
As Warrant Agent
By: ___________________________________
Authorized Signature
A-4
<PAGE> 30
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereof, the holder must
pay in United States dollars [in cash or by certified check or official bank
check or by bank wire transfer] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [Corporate Trust Department] [insert address of
Warrant Agent], Attention: __________ [or __________], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the
information required below and present this Warrant Certificate in person or by
mail (certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business
days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
__________ shares of the Common Stock (the "Warrant Securities") of HS
Resources, Inc. and represents that the undersigned has tendered payment for
such Warrant Securities in Dollars [in cash or by certified check or official
bank check or by bank wire transfer, in each case] [by bank wire transfer] in
[immediately available] [next-day] funds to the order of HS Resources, Inc.,
c/o [insert name and address of Warrant Agent], in the amount of _________ in
accordance with the terms hereof. The undersigned requests that said amount of
Warrant Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of
the Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrant evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instruction
below.
A-5
<PAGE> 31
<TABLE>
<S> <C>
Dated: _____________________ Name ______________________________
____________________________ Address ___________________________
(Insert Social Security or
Other Identifying Number of ___________________________
Holder) (Signature must conform
Signature Guaranteed in all respects to name of
____________________________ holder as specified on the
face of this Warrant
Certificate and must bear a
signature guarantee by a
bank, trust company or
member broker of the New
York or Pacific Stock
Exchange)
</TABLE>
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at _____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
By mail at _____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-6
<PAGE> 32
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED ______________________________ hereby sells, assigns
and transfers unto
__________________________ _________________________
(Please print name) (Please insert social
security or other
identifying number)
__________________________
(Address)
__________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in
all respects to name of
holder as specified on the
face of this Warrant
Certificate and must bear a
signature guarantee by a
bank, trust company or member
broker of the New York
or Pacific Stock Exchange)
Signature Guaranteed:
_________________________
A-7
<PAGE> 1
EXHIBIT 4.9
HS RESOURCES, INC.
DEBT WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of __________, is by and
between HS Resources, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), and ________________, as Warrant Agent (herein called
the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture") dated as of
______________ between the Company and __________________, providing for the
issuance from time to time of its unsecured [Senior] [Senior Subordinated]
[Subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Senior Subordinated] [Subordinated] Debt Securities"), to be issued
in one or more series as provided in the [Senior] [Senior Subordinated]
[Subordinated] Indenture; [if Warrant Securities are not under same Indenture
as Debt Securities to which they are attached -- and an Indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture," the Senior, Senior
Subordinated and Subordinated Indentures being referred to collectively as the
"Indentures") dated as of _________________ between the Company and
__________________ , as trustee (the "[Senior] [Senior Subordinated]
[Subordinated] Trustee," (the Senior, Senior Subordinated and Subordinated
Trustees being referred to collectively, as the "Trustees"), providing for the
issuance from time to time of its [Senior] [Senior Subordinated]
[Subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Senior Subordinated] [Subordinated] Debt Securities," the [Senior]
[Senior Subordinated] and [Subordinated] Debt Securities being referred to
collectively as the "Debt Securities"), to be issued in one or more series as
provided in the [_______________] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities -- [title of Debt Securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through
- ----------
* Complete or modify the provisions of this Warrant Agreement as appropriate
to reflect the terms of the Warrants, Warrant Securities and Offered
Securities. Monetary amounts may be in U.S. dollars or in foreign currency
or European Currency Units ("ECU").
<PAGE> 2
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein
called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after ____________ (the "Detachable Date")] [and shall not
be separately transferable], and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of _____________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities, and each Warrant Certificate included in such a unit shall
evidence Warrants for each $[_____________] in principal amount of Offered
Securities included in such unit.)
SECTION 1.02. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered) [bearer]
form substantially in the form set forth in Exhibit A hereto, shall be dated
______________ and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of
2
<PAGE> 3
this Agreement, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, and by its Secretary
or one of its Assistant Secretaries under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificate so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Securities to, make available at all times to the Warrant Agent such
information as to
3
<PAGE> 4
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
SECTION 1.03. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding _____________ aggregate principal amount of Warrant Securities
(except as provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right to
purchase up to __________ principal amount of Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.03(c).
SECTION 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificate in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine as appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or _______________], without charge to the holder.
Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be
4
<PAGE> 5
entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from
___________, through and including _____________, the exercise price of each
Warrant will be ___________ [plus [accrued amortization of the original issue
discount] [accrued interest] from _________________.] (In each case, the
original issue discount will be amortized at a _____% annual rate, computed on
an annual basis using the "interest" method and using a 360-day year consisting
of twelve 30-day months]. Such purchase price of Warrant Securities is
referred to in this Agreement as the "Warrant Price." [The original issue
discount for each ________ principal amount of Warrant Securities is
__________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [_________] and at or before 5 P.M., [New York City] time, on
_________ [or such later date as the Company may designate, by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to their addresses
as set forth in the record books of the Warrant Agent] (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M., [New York City] time, on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period
specified in Section 2.02 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the United States of
America] [applicable currency,] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
[immediately available] [next-day] funds the Warrant Price for each Warrant
Security purchased upon exercise, to the Warrant Agent at its corporate trust
office [or at _______], provided that such exercise is subject to receipt
within five (5) business days of such [payment] [wire transfer] by the Warrant
Agent of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the
5
<PAGE> 6
Warrant Certificate properly completed and duly executed [including any
applicable certifications if the Warrant Securities are issuable in bearer
form]. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it [if non-dollar
denominated funds -- or in such other account designated by the Company] and
shall advise the Company by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company and the [Trustee under the Indenture
relating to the Warrant Securities] of (i) the number of Warrants exercised,
(ii) the instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or such Trustee shall reasonably
require.
(c) As promptly as reasonably practicable after the exercise
of any Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such
holder is entitled, in [fully registered form, registered in such name or names
as may be directed by such holder] [bearer form, provided the holder has
furnished to the Warrant Agent all certifications required by applicable U.S.
Treasury regulations for the delivery of bearer securities and only if the
Company has no reason to know that the certifications are false.] If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate evidencing the
number of such Warrants remaining unexercised. [Unless otherwise instructed by
the Company, Warrant Securities in bearer form shall be delivered to or upon
the order of the holder of such Warrant Certificate only outside the United
States and its possessions.]
6
<PAGE> 7
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE II
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the [Indenture relating to the
Warrant Securities].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the mutilated, lost,
stolen or
7
<PAGE> 8
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of his Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or
Lease. If at any time there shall be a merger, consolidation, conveyance,
transfer or lease of assets subject to Section ____ of the [Indenture relating
to the Warrant Securities], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect, subject to such Indenture, as if it had been
named herein and in the Warrant as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and shall execute and
deliver Warrant Securities in its own name or in the name of the company
pursuant to such Indenture, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Warrants theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Warrants had been issued at the date of
the execution hereof. In any case of any such consolidation, merger,
conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Warrants thereafter to be issued as may be
appropriate.
8
<PAGE> 9
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease complies with the provisions of this Section 3.04 and such
Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants that are immediately detachable -- Upon]
[If Offered Securities with Warrants that are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to
any Detachable Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or _______], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [or the transfer thereof may be registered in whole or
in part]; provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered. [The
Warrant Agent shall keep, at its corporate trust office [and at _____], books
in which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant
Agent at its corporate trust office [_______] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall be
made for any exchange [or registration of transfer] of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge that may be imposed in connection with
any such exchange [or registration or transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or registration of transfer], an
authorized officer of the Warrant Agent shall manually countersign and deliver
to the
9
<PAGE> 10
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange [or registration of
transfer] that will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange [or registration of
transfer] of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificate surrendered for such exchange
[or registration of transfer].
SECTION 4.02 Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose or as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date,] [if registered Warrants -- and prior to due presentment of a
Warrant Certificate for registration of transfer,] [t][T]he Company, the
Warrant Agent and all other persons may treat the holder of a Warrant
Certificate as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange [, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
10
<PAGE> 11
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
______________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth; and ___________ hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees) reasonably
incurred without negligence or bad faith by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the costs and expenses of defending against
any claim of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with nationally
recognized counsel satisfactory to it, and the written advice of such counsel
shall be full and complete
11
<PAGE> 12
authorization and protection in respect of any action reasonably taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of Holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with
the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under
12
<PAGE> 13
any duty or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to the
Company pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of its
covenants or agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall be not less than three (3) months after the date on which such
notice is given, unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument in
writing signed by or on behalf of the Company and specifying such removal and
the intended date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as hereinafter provided,
of a successor Warrant Agent (which shall be a bank or trust company authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue to
the extent set forth therein notwithstanding the resignation or removal of the
Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other
13
<PAGE> 14
applicable Federal or state bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Warrant Agent or its property or affairs, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have been entered
in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be
14
<PAGE> 15
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided;
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_________________________, Attention: ______________ and any communication from
the Warrant Agent to the Company with respect to this Agreement shall be
addressed to HS Resources, Inc., One Maritime Plaza, Fifteenth Floor, San
Francisco, CA 94111, Attention: Chief Financial Officer; with a copy to
HS Resources, Inc., 1999 Broadway, Suite 3600, Denver, CO 80202,
Attention: General Counsel; (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of [New York].
SECTION 6.05. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of the Warrants (the
15
<PAGE> 16
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery
of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended),
which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the
Warrant Certificates, the exercise of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
16
<PAGE> 17
IN WITNESS WHEREOF HS Resources, Inc. and ______________ have
caused this Agreement to be signed by their respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
HS RESOURCES, INC.
By: ____________________________
Title:
Attest:
_________________________
Title:
[Warrant Agent]
By: ____________________________
Title:
Attest:
_________________________
Title:
17
<PAGE> 18
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Offered Prior to ___________ this
Securities with Warrants Warrant Certificate cannot
that are not immediately be transferred or exchanged
detachable. unless attached to a [Title
of Offered Securities].]
[Form of Legend if Warrants Prior to ___________,
are not immediately Warrants evidenced by this
exercisable. Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HS RESOURCES, INC.
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
VOID AFTER 5 P.M. [NEW YORK CITY TIME] ON _____________.
No. __________ __________ Warrants
This certifies that [the bearer is the] [_________________ or
registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such owner [If Offered Securities with
Warrants that are not immediately detachable --, subject to [bearer]
[registered] owner] qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined to purchase, at any time [after 5 P.M., [New York City]
time, on _________ and] on or before 5 P.M., [New York City] time, _________
principal amount of [Title of Warrant Securities] (the "Warrant Securities"),
of HS Resources, Inc. (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: [during the period
from _____________, through and including ___________] the exercise price of
each Warrant will be ________ plus [accrued amortization of the original issue
discount] [accrued interest] from __________; [during the
A-1
<PAGE> 19
period from ____________, through and including ____________, the exercise
price of each Warrant will be _____________ plus [accrued amortization of the
original issued discount[ [accrued interest] from __________;] [in each case,
the original issue discount will be amortized at a __________% annual rate,
computed on an annual basis using the "interest" method and using a 360-day
year consisting of twelve 30-day months] (the "Warrant Price"). [The original
issue discount for each _________ principal amount of Warrant Securities is
_________.] The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof, including any applicable
certifications if the Warrant Securities are issuable in bearer form, and by
paying in full [in lawful money of the United States of America] [applicable
currency] [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in [immediately available)
[next-day] funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the
"Warrant Agent") [or ________], which is, on the date hereof, at the address on
the reverse hereof, and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable -- , prior to
___________ (the "Detachable Date"), the [bearer] [registered owner] of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] [the bearer of this
Warrant Certificate] [the person in whose name at the time of this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of __________ and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of
A-2
<PAGE> 20
___________ (the "Warrant Agreement") between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant Agreement,
to all of which terms and provisions the holder of this Warrant Certificate
consents by acceptance hereof. Copies of the Warrant Agreement are on file at
the above-mentioned office of the Warrant Agent [and at ____________].
[If Offered Securities with Warrants that are not immediately
detachable -- Prior to _____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer
of such Offered Security. After such date, this] [if Offered securities with
Warrants that are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ___________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.] [effected by delivery and the Company and the Warrant Agent may
treat the bearer hereof as the owner for all purposes.]
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants are immediately detachable or Warrants
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
_______________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
A-3
<PAGE> 21
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of __________________
HS RESOURCES, INC.
By: ____________________________
Authorized Officer
By: ____________________________
Authorized Officer
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By: ______________________
Authorized Signature
A-4
<PAGE> 22
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
In exercise the Warrants evidenced hereby, the holder must pay
in [Dollars] [applicable currency] [in cash or by certified check or official
bank check or by bank wire transfer] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. _________ [or __________], which [payment] [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the
information required below, including any applicable certifications if the
Warrant Securities are issuable in bearer form, and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five (5) business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
__________ Warrants, evidenced by this Warrant Certificate, to purchase
_________ principal amount of the [Title of Warrant Securities] (the "Warrant
Securities") of HS Resources, Inc. and represents that he has
tendered payment for such Warrant Securities in [Dollars] [applicable currency]
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer] in [immediately available) [next-day]
funds to the order of HS Resources, Inc., c/o [insert name and address of
Warrant Agent], in the amount of __________ in accordance with the terms
hereof. The undersigned requests that said principal amount of Warrant
Securities be in [bearer] [fully registered] form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below. [However, unless otherwise
designated by the Company, Warrant Securities in bearer form shall be delivered
to or upon the order of the holder of such Warrant Certificate only outside the
United States and its possessions.]
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the
A-5
<PAGE> 23
remaining Warrants hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated: ___________________ Name ____________________________
__________________________ Address _________________________
(Insert Social Security or
Other Identifying Number of Holder) _________________________
(Signature ______________________
[If registered Warrant -- If registered Warrant --
Signature Guaranteed Signature must conform in all
____________________ respects to name of holder as
specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York or Pacific Stock Exchange]
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
By mail at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-6
<PAGE> 24
[IF REGISTERED WARRANT]
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
__________________________ __________________________________
(Please print name) (Please insert social
security or other
identifying number)
__________________________
(Address)
__________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
___________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York or
Pacific Stock Exchange.)
Signature Guaranteed:
_________________________
A-7
<PAGE> 25
CERTIFICATIONS AS TO NON-U.S. OWNERSHIP
[To be completed if Securities
in bearer form are requested]
[Form of certificate to be given by person requesting
delivery of bearer [Warrant] Security upon
exercise of Warrant]
CERTIFICATE
HS RESOURCES, INC.
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: HS Resources, Inc.
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the [Warrant] Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of ____________.
The undersigned hereby certifies that as of the date hereof,
the [Warrant] Securities which are to be delivered to the undersigned in bearer
form upon the exercise by the undersigned of such Warrant Certificate (i) are
owned by persons that are not United States Persons, as defined below; (ii) are
owned by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the obligations
through foreign branches of United States financial institutions and who hold
the obligations through such financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution provides
a certificate in the form that follows this certificate); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
certify that they have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a
A-8
<PAGE> 26
person within the United States or its possessions. The undersigned undertakes
to advise you by tested telex followed by written confirmation if the statement
in the immediately preceding sentence is not correct on the date of delivery of
the above-captioned [Warrant] Securities in bearer form.
We understand that this certificate is required in connection
with United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
"United States Person" shall mean a citizen or resident of the United States of
America (including the District of Columbia), a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof or an estate or trust that is subject to
United States Federal income taxation regardless of the source of its income.
Date: _______________________
[Name of Person Entitled to
Receive Warrant Security
Described Herein]
______________________________
(Authorized Signatory)
Name: ________________________
Title:
_______________
Subject to change in accordance with changes in
applicable tax laws and regulations.
A-9
<PAGE> 27
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
HS RESOURCES, INC.
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: HS Resources, Inc.
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of ________________.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and is not purchasing for resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. We undertake to advise you by tested telex
followed by written confirmation if the statement in the immediately preceding
sentence is not correct on the date of delivery of the above-captioned
Securities in bearer form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to
A-10
<PAGE> 28
any interested party in any administrative or legal proceedings with respect to
the matters covered by this certificate.
Date: _____________________
[Name of Person Entitled to
Delivery of Warrant Securities
Described Herein]
______________________________
(Authorized Signatory)
Name: ________________________
Title: _______________________
_______________
Subject to change in accordance with changes in applicable tax laws and
regulations.
A-11
<PAGE> 1
Exhibit 5.1
June 16, 1997
HS Resources, Inc.
One Maritime Plaza, 15th Floor
San Francisco, California 94111
Re: Shelf Registration Statement on Form S-3 Relating
to $300,000,000 Aggregate Principal Amount
of Equity Securities and Debt Securities
Ladies and Gentlemen:
We have acted as counsel for HS Resources, Inc., a Delaware
corporation (the "Company") in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") filed by the
Company with the Securities and Exchange Commission. The Registration
Statement relates to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of $300,000,000 principal amount of equity securities
(the "Equity Securities") and debt securities (the "Debt Securities" and
together with the Equity Securities, the "Securities") that may be issued by
the Company.
This opinion is delivered pursuant to the requirements of Item
601(b)(5) of Regulation S-K under the 1933 Act.
We have examined the form of the Indenture filed by the Company as an
exhibit to the Registration Statement (the "Indenture"). In addition, we have
examined and relied on originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records and other
instruments, have made such inquiries as to questions of fact of officers and
representatives of the Company and have made such examinations of law as we
have deemed necessary or appropriate for purposes of giving the opinion
expressed below. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all
<PAGE> 2
HS Resources,Inc.
June 16, 1997
Page 2
documents submitted to us as originals and the conformity with the originals of
all documents submitted to us as copies.
We have assumed for purposes of this opinion (i) the corporate power,
authority and legal right of the trustee or trustees (the "trustees") under the
Indenture to execute, deliver and perform their obligations under the
Indenture, that the performance of such obligations by the trustees will not
violate their charters or by-laws and that the trustees have the legal ability
to exercise their trust powers and (ii) that the Indenture will have been duly
authenticated, authorized, executed and delivered by the applicable trustee at
the time of issuance of any Debt Securities.
The following opinions are limited solely to the applicable federal
law of the United States of America, the law of the State of Colorado and the
General Corporation Law of the State of Delaware. While we are not licensed to
practice in the State of Delaware, we have reviewed applicable provisions of
the General Corporation Law of Delaware as we have deemed appropriate in
connection with the provisions expressed herein. Except as described, we have
neither examined nor do we express any opinion with respect to Delaware law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The issuance and sale by the Company of up to $300,000,000 of
Securities, as provided in the Registration Statement, have been duly and
validly authorized by all necessary corporate action of the Company.
2. The Company's common stock, $0.001 par value per share (the
"Common Stock"), when issued and sold in conformity with the resolutions of the
board of directors of the Company and as contemplated in the Registration
Statement, the prospectus contained therein (the "Prospectus") and in the
applicable supplement to the Prospectus, will be validly issued, fully paid and
non-assessable.
3. The Company's Equity Securities (other than the Common Stock),
when issued and sold in conformity with the resolutions of the board of
directors of the Company and as contemplated in the Registration Statement, the
Prospectus and in the applicable supplement to the Prospectus, will be validly
issued.
4. When (i) the Registration Statement has become effective under
the 1933 Act, (ii) the applicable Indenture has been qualified under the Trust
Indenture Act of 1939, as amended, and has been duly executed and delivered by
the parties thereto, (iii) the definitive terms of any Debt Securities and of
their issue and sale have been duly established in conformity with the
resolutions of the board of directors of the Company and the applicable
Indenture so as not to violate any applicable law or agreement or instrument
then binding on the Company,
<PAGE> 3
HS Resources,Inc.
June 16, 1997
Page 3
(iv) such Debt Securities have been duly executed and authenticated in
accordance with the Indenture and (v) such Debt Securities have been issued and
sold as contemplated in the Registration Statement, the Prospectus and in the
applicable supplement to the Prospectus, such Debt Securities will constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by the applicable Indenture, except (A) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
this firm under the heading "Validity of Securities" in the Prospectus included
in the Registration Statement as the counsel who will pass upon the validity of
the securities. In giving this consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Davis, Graham & Stubbs LLP
DAVIS, GRAHAM & STUBBS LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report (and to all references to our Firm) included in or made a part of this
Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Denver, Colorado,
June 13, 1997.
