<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 10, 1997
REGISTRATION NO. 333-28825
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
HS RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3036864
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE MARITIME PLAZA
15TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111
(415) 433-5795
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
JAMES M. PICCONE, ESQ.
GENERAL COUNSEL
HS RESOURCES, INC.
1999 BROADWAY, SUITE 3600
DENVER, COLORADO 80202
(303) 296-3600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
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. [ ]
------------------------
<PAGE> 2
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 per unit(1) offering price(1) registration fee(1)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 2,864,225 $14.50 $41.531,263 $12,586
=========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c). Based upon the average of the high and low prices
reported by The New York Stock Exchange on June 5, 1997. This fee was
previously paid by the Registrant.
------------------------
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
Exhibit
Number Description of Exhibits
1.1* Underwriting Agreement dated October 9, 1997 by and
among HS Resources, Inc., Orion Acquisition, Inc.,
HSRTW, Inc., HS Energy Services, Inc., Natural Gas
Partners, L.P., Lehman Brothers Inc., Merrill Lynch &
Co. and Petrie Parkman & Co.
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+ Registration Rights Agreement between the Company
and Natural Gas Partners, L.P. dated June 17, 1996.
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.)
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
II-1
<PAGE> 4
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.)
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.))
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.)
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<PAGE> 5
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.)
10.23 Assignment of Liens and Amendment of Amended,
Restated and Consolidated Mortgage, Assignment of
Production, Security Agreement and Financing
Statement, dated June 14,
II-3
<PAGE> 6
1996, among Chase (Assignor), Chase (Assignee) and
the Company. (Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.24 Guaranty Agreement by HSR Acquisition, Inc. in favor
of Chase, as Agent, dated June 14, 1996.
(Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed August 14, 1996.)
10.25 Guaranty Agreement by Orion Acquisition, Inc. in
favor of Chase, as Agent, dated June 14, 1996.
(Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed August 14, 1996.)
10.26 First Amendment to Guaranty Agreement dated as of
June 17, 1996, by and among Orion Acquisition, Inc.
and Chase, in its individual capacity and as agent
for the Lenders. (Incorporated by reference to the
Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.27 First Amendment to Guaranty Agreement dated as of
June 17, 1996, by and among HSRTW, Inc. (formerly
HSR Acquisition, Inc.) and Chase, in its individual
capacity and as agent for the Lenders.
(Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed August 14, 1996.)
10.28 Third Amendment and Supplement to Amended, Restated
and Consolidated Mortgage, Assignment of Production,
Security Agreement and Financing Statement, dated as
of July 15, 1996, by and between the Company and
Chase. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed August 14, 1996.)
10.29 Hedging Agreement between Chase and the Company
dated May 1, 1996. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.30 Hedging Agreement between Chase and the Company
dated May 1, 1996. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.31 Hedging Agreement between Chase and the Company
dated June 1, 1996. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, filed August 14, 1996.)
10.32 Purchase and Sale Agreement between the Company and
Wattenberg Gas Investments, LLC dated April 25,
1996. (Incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed August 14, 1996.)
10.33 Purchase and Sale Agreement between Wattenberg
Resources Land L.L.C. and Wattenberg Gas
Investments, LLC dated May 21, 1996. (Incorporated
by reference to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1996, filed
August 14, 1996.)
10.34 Purchase and Sale Agreement between Orion
Acquisition, Inc. and Wattenberg Gas Investments,
LLC dated June 14, 1996. (Incorporated by reference
to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996, filed August 14,
1996.)
II-4
<PAGE> 7
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 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.
23.3+ Consent of Netherland, Sewell & Associates, Inc.
23.4+ Consent of Davis, Graham & Stubbs LLP (contained in
Exhibit 5.1).
* Filed herewith
+ Previously filed
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
II-5
<PAGE> 8
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 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.
II-6
<PAGE> 9
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 tenth day of October, 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.
October 10, 1997 By: /s/ Nicholas J. Sutton*
Date ----------------------------------------
Nicholas J. Sutton
Chairman of the Board and Chief
Executive Officer (Principal
Executive Officer)
October 10, 1997 By: /s/ P. Michael Highum*
Date ----------------------------------------
P. Michael Highum
President and Director (Principal
Executive Officer)
October 10, 1997 By: /s/ James E. Duffy
Date ----------------------------------------
James E. Duffy
Vice President - Finance and Chief
Financial Officer and
Director (Principal Financial
Officer)
II-7
<PAGE> 10
October 10, 1997 By: /s/ Annette M. Montoya*
Date ----------------------------------------
Annette M. Montoya
Vice President - Accounting/HR/OM
October 10, 1997 By: /s/ Kenneth A. Hersh*
Date ----------------------------------------
Kenneth A. Hersh
Director
October 10, 1997 By: /s/ Michael J. Savage*
Date ----------------------------------------
Michael J. Savage
Director
October 10, 1997 By: /s/ Philip B. Smith*
Date ----------------------------------------
Philip B. Smith
Director
*By: /s/ James E. Duffy
---------------------------------------
Attorney-in-fact
II-8
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
<S> <C> <C>
1.1 Underwriting Agreement dated October 9, 1997 by and
among HS Resources, Inc., Orion Acquisition, Inc.,
HSRTW, Inc., HS Energy Services, Inc., Natural Gas
Partners, L.P., Lehman Brothers Inc., Merrill Lynch &
Co. and Petrie Parkman & Co.
</TABLE>
<PAGE> 1
1,850,010 SHARES
HS RESOURCES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
October 9, 1997
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
PETRIE PARKMAN & CO.
As Representatives of the several
Underwriters named in Schedule 1,
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Natural Gas Partners, L.P., a Delaware limited partnership
(the "Selling Stockholder"), proposes to sell an aggregate of 1,850,010 shares
(the "Stock") of the common stock, par value $0.001 per share (the "Common
Stock"), of HS Resources, Inc., a Delaware corporation (the "Company"). This is
to confirm the agreement concerning the purchase of the Stock from the Selling
Stockholder by the Underwriters named in Schedule 1 hereto (the
"Underwriters").
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No.
333-28825) with respect to the Stock has (i) been prepared by
the Company in conformity with the requirements of the United
States Securities Act of 1933 (the "Securities Act") and the
rules and regulations (the "Rule and Regulations") of the
United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act. Copies of such registration statement and the
amendment thereto have been delivered by the Company to you
as the Representatives (the "Representatives") of the
Underwriters. As used in this Agreement, "Registration
Statement" means such registration statement, as amended to
the date of this Agreement, including the exhibits and
schedules thereto, if any, and all documents incorporated by
reference or deemed to be incorporated by reference therein
and the exhibits and schedules thereto and all information
contained in the final Prospectus (as defined herein) filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and deemed to be a part of the registration
statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; "Effective Time"
means the date and the time as of which the Registration
Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Basic
Prospectus" means the prospectus included in the Registration
Statement; "Preliminary Prospectus" means any preliminary
form of Prospectus
<PAGE> 2
specifically relating to the Stock, in the form first filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 of the Rules and Regulations; "Prospectus
Supplement" means any prospectus supplement specifically
relating to the Stock, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 of the Rules and Regulations; and "Prospectus" means the
Basic Prospectus, together with the Prospectus Supplement,
except that if such Basic Prospectus is amended or
supplemented on or prior to the date on which the Prospectus
Supplement was first filed with the Commission pursuant to
Rule 424 of the Rules and Regulations, the term "Prospectus"
shall refer to the Basic Prospectus as so amended or
supplemented and as supplemented by the Prospectus
Supplement. Reference made herein to any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as
of the date of such Preliminary Prospectus or the Prospectus,
as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed
under the United States Securities Exchange Act of 1934 (the
"Exchange Act") after the date of such Preliminary Prospectus
or the Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or the Prospectus,
as the case may be, and any reference to any amendment to the
Registration Statement shall be deemed to include any annual
report of the Company filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any
order preventing or suspending the use of the Prospectus or
the effectiveness of the Registration Statement.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the
case may be, conform in all respects to the requirements of
the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of
the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, the light of the
circumstances in which they were made) not misleading;
provided that no representation or warranty is made as to
information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(c) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of
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<PAGE> 3
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such
documents become effective or are filed with Commission, as
the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading.
(d) The Company and each of its subsidiaries (as
defined in Section 17) have been duly incorporated or formed
and are validly existing as corporations or partnerships in
good standing under the laws of their respective
jurisdictions of incorporation or formation, are duly
qualified to do business and are in good standing as foreign
corporations or partnerships in each jurisdiction in which
their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification (except where the failure to so qualify would
not result in a material adverse effect on the condition,
financial or otherwise, results of operations or business
prospects of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"), and have all power
(corporate and other) and authority necessary to own or hold
their respective properties and to conduct the businesses in
which they are engaged as described in the Prospectus; and
none of the subsidiaries of the Company (other than Orion
Acquisition, Inc., HSRTW, Inc., HS Energy Services, Inc. and
Resources Gathering Systems, Inc. (collectively, the
"Significant Subsidiaries")) is a "significant subsidiary" as
such term is defined in Rule 405 of the Rules and
Regulations.
(e) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained or incorporated
by reference in the Prospectus; and all of the issued shares
of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors' qualifying shares)
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(f) The shares of the Stock to be sold by the
Selling Stockholder to the Underwriters hereunder have been
duly and validly authorized and issued and are fully paid and
non-assessable.
(g) This Agreement has been duly authorized,
executed and delivered by the Company.
(h) The execution, delivery and performance of this
Agreement by the Company and the consummation of the
transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or
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<PAGE> 4
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except
for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters,
no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(i) There are no contracts, agreements or
understandings between the Company and any person granting
such person the right (other than rights which have been
waived, satisfied or not exercised) to require the Company to
file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
(j) Except as described in the Prospectus, the
Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under,
or Regulations D or S of, the Securities Act, other than
shares issued pursuant to outstanding options, rights or
warrants or under Company equity incentive plans.
(k) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited financial
statements incorporated by reference in the Prospectus, any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or incorporated
by reference in the Prospectus, except for such losses,
interferences, disputes, actions, orders or decrees that do
not have individually or in the aggregate a Material Adverse
Effect; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth
or incorporated by reference in the Prospectus.
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<PAGE> 5
(l) The financial statements (including the related
notes and supporting schedules) filed as part of the
Registration Statement or incorporated by reference in the
Prospectus present fairly the financial condition and results
of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein.
(m) Arthur Anderson L.L.P., who have certified
certain financial statements of the Company, whose report is
incorporated by reference in the Prospectus and who have
delivered the initial letter referred to in Section 9(g)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations
(n) Williamson Petroleum Consultants, Inc. and
Netherland Sewell & Associates, Inc., whose reports are
incorporated by reference in the Prospectus, as of the date
of such report, and are, as of the date hereof, independent
petroleum engineers with respect to the Company.
(o) The Company and each of its subsidiaries have
good and indefeasible title to all items of real property and
good title to all personal property owned by them, in each
case free and clear of all security interests, liens,
encumbrances, equities, claims and other defects except such
as are described in the Prospectus or such as do not
materially and adversely affect the value of such property
and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries;
and the Company and its subsidiaries have valid, subsisting
and enforceable leases for the properties described in the
Prospectus as leased by them, with such exceptions as are not
material and do not interfere with the business of the
Company and its subsidiaries, taken as a whole, in each case
except as described in or contemplated in the Prospectus.
(p) The Company and each of its subsidiaries carry,
or are covered by, insurance in such amounts and covering
such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and
as is customary for companies of similar size and engaged in
similar businesses in similar industries.
(q) The Company and each of its subsidiaries own or
possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations,
copyrights and intellectual property licenses necessary for
the conduct of their respective businesses and have no reason
to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others.
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<PAGE> 6
(r) Except as set forth in the Registration
Statement, the Prospectus or in the documents incorporated by
reference, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might
have a Material Adverse Effect; and to the Company's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(s) The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied by
the Company.
(t) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
(u) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of
the Company on the other hand, which is required to be
described in the Prospectus which is not so described in the
Prospectus or incorporated therein by reference as permitted
by the Rules and Regulations.
(v) No labor disturbance by the employees of the
Company exists or, to the knowledge of the Company, is
imminent which reasonably could be expected to have a
Material Adverse Effect.
(w) The Company is in compliance in all material
respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect
to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(x) The Company has filed all federal, state and
local income and franchise tax returns required to be filed
through the date hereof or has timely requested extensions
thereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or
any of its subsidiaries which has had (nor does the
6
<PAGE> 7
Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its
subsidiaries, might have) a Material Adverse Effect.
(y) Since the date as of which information is given
in the Prospectus through the date hereof, and except as may
otherwise be disclosed in the Prospectus, the Company has not
(i) issued or granted any securities (except pursuant to
Company equity incentive plans), (ii) incurred any liability
or obligation, direct or contingent, other than liabilities
and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any
dividend on its capital stock.
(z) The Company (i) makes and keeps accurate books
and records and (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific
authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management's
general or specific authorization and (D) the reported
accountability for its assets is compared with existing
assets at reasonable intervals.
(aa) Neither the Company nor any of its subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in
default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any
term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject
or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the
conduct of its business, except, in the case of (ii) or (iii)
above, for such defaults and violations that would not have a
Material Adverse Effect.
(ab) Neither the Company nor any of its
subsidiaries, nor any director, officer, agent, employee or
other person associated with or acting on behalf of the
Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made
any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate
funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(ac) Except as disclosed or incorporated by
reference in the Prospectus, there has been no storage,
disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous
7
<PAGE> 8
substances by the Company or any of its subsidiaries (or, to
the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries
in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a
Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the
environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of
its subsidiaries have knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the
terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign
laws or regulations with respect to environmental protection.
(ad) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under
the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(ae) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for
the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has, and immediately
prior to the Delivery Date (as defined in Section 5 hereof)
the Selling Stockholder will have, valid and marketable title
to the shares of Stock to be sold by the Selling Stockholder
hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such
shares and payment therefor pursuant hereto, valid and
marketable title to such shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters.
(b) The Selling Stockholder has full right, power
and authority to enter into this Agreement, and any escrow
agreement, custody agreement or other similar instrument that
may be required in connection with the delivery of the shares
of Stock to the Underwriters (the "Ancillary Documents"); the
execution, delivery and performance of this Agreement and the
Ancillary Documents, if any, by the Selling
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<PAGE> 9
Stockholder and the consummation by the Selling Stockholder
of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the property or assets of the
Selling Stockholder is subject, nor will such actions result
in any violation of the provisions of the partnership
agreement of the Selling Stockholder or any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Selling Stockholder or
the property or assets of the Selling Stockholder; and,
except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement and the Ancillary
Documents, if any, by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby.
(c) The Selling Stockholder Information (as defined
in Section 10(b)) furnished by the Selling Stockholder does
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Selling Stockholder, without having
conducted any independent investigation into the affairs of
the Company, has no knowledge that the representations and
warranties of the Company contained in Section 1 hereof are
not materially true and correct, is familiar with the
Registration Statement and the Prospectus (as amended or
supplemented) and has no knowledge of any material fact,
condition or information not disclosed in the Prospectus (or
any amendment or supplement thereto), as of the applicable
filing date, which has adversely affected or may adversely
affect the business of the Company and is not prompted to
sell shares of Common Stock by any information concerning the
Company which is not set forth in the Prospectus.
(e) The Selling Stockholder has not taken and will
not take, directly or indirectly, any action which is
designed to or which has constituted or which might
reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the shares of
the Stock.
(f) The Selling Stockholder has advised the
Representatives if either it or any of its affiliates
directly, or indirectly through one or more of its
intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with
(within the meaning of Article I, Section 1(q) of the By-laws
of the National
9
<PAGE> 10
Association of Securities Dealers, Inc.), any member firm of
the National Association of Securities Dealers, Inc.
3. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Selling Stockholder hereby agrees to sell
the Stock to the several Underwriters, and each of the Underwriters, severally
and not jointly, agrees to purchase the number of shares of the Stock set
opposite that Underwriter's name in Schedule 1 hereto. The respective purchase
obligations of the Underwriters with respect to the Stock shall be rounded
among the Underwriters to avoid fractional shares, as the Representatives may
determine.
The price of the Stock shall be $16.87 per share.
The Selling Stockholder shall not be obligated to deliver any
of the Stock to be delivered on the Delivery Date, except upon payment for all
the Stock to be purchased on the Delivery Date as provided herein.
4. Offering of Stock by the Underwriters. Upon authorization
by the Representatives of the release of the Stock, the several Underwriters
shall offer the Stock for sale upon the terms and conditions set forth in the
Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Stock shall be made at the office of Davis, Graham & Stubbs
LLP, 370 Seventeenth Street, Suite 4700, Denver, CO 80201, at 9:00 A.M., Denver
time, on the third full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement between the
Representatives and the Selling Stockholder. This date and time are sometimes
referred to as the "Delivery Date." On the Delivery Date, the Selling
Stockholder shall deliver or cause to be delivered certificates representing
the Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Selling Stockholder of the purchase price
by wire transfer in immediately available funds to a bank account designated by
the Selling Stockholder in writing to the Representatives. Time shall be of the
essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Stock shall be registered in such names and in
such denominations as the Representatives shall request in writing not less
than two full business days prior to the Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Stock, the
Selling Stockholder shall make the certificates representing the Stock
available for inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Delivery Date.
On the Delivery Date, the Selling Stockholder will pay, or
cause to be paid, the commission payable on the Delivery Date to the
Underwriters under the last paragraph of Section 3 by certified or official
bank check or checks payable in New York Clearing House (next-day) funds.
6. Further Agreements of the Company. The Company agrees:
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<PAGE> 11
(a) To prepare the Prospectus in a form approved by
the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than
Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act; except for such
post-effective amendment made under Rule 462(d) under the
Securities Act, which amendment shall be approved by the
Representatives, to make no further amendment or any
supplement to the Registration Statement or to the Prospectus
prior to the Delivery Date except as permitted herein; to
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Representatives with copies
thereof; to file promptly all reports and any definitive
proxy or information statements required to be 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 the
Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Stock; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or
sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each Representative and
to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to each Representative such
number of the following documents as such Representative
shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per
share earnings), (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus and
(iii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto); and, if the delivery
of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the Stock and
if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it
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<PAGE> 12
shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the
Representatives and, upon their request, to file such
document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as
each Representative may from time to time reasonably request
of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the judgment of
the Company or the Representatives, be required by the
Securities Act or requested by the Commission;
(e) During the period when a prospectus is required
to be delivered in connection with the offering or sale of
the Stock, prior to filing with the Commission any amendment
to the Registration Statement or supplement to the
Prospectus, any document incorporated by reference in the
Prospectus or any Prospectus pursuant to Rule 424 of the
Rules and Regulations, to furnish a copy thereof to each
Representative and counsel for the Underwriters and obtain
the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date,
to make generally available to the Company's security holders
and to deliver to the Representatives an earnings statement
of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of
the Company, Rule 158);
(g) For a period of five years following the
Effective Date, to furnish to the Representatives copies of
all materials furnished by the Company to its stockholders
and all public reports and all reports and financial
statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule
or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action
as the Representatives may reasonably request to qualify the
Stock for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the
Stock;
(i) For a period of 45 days from the Delivery Date,
not to, directly or indirectly, (i) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction
or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the
future of) any shares of Common Stock or
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<PAGE> 13
securities convertible into or exchangeable for Common Stock
(other than the Stock), or sell or grant options, rights or
warrants with respect to any shares of Common Stock or
securities convertible into or exchangeable for Common Stock,
other than grants of options pursuant to the Company's
employee or director option plans existing on the date
hereof, or (ii) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or other securities, in cash or
otherwise, in each case without the prior written consent of
Lehman Brothers Inc.;
(j) Prior to the Effective Date, to apply for the
listing of the Stock on the New York Stock Exchange, Inc. and
to use its best efforts to complete that listing, subject
only to official notice of issuance, prior to the Delivery
Date; and
(k) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall
become an "investment company" within the meaning of such
term under the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) Except for Permitted Dispositions (as defined
below), for a period of 90 days from the Delivery Date, not
to, directly or indirectly, (i) offer for sale, sell, pledge
or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result
in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into
or exchangeable for Common Stock (other than the Stock) or
(ii) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, in
each case without the prior written consent of Lehman
Brothers Inc. The foregoing sentence shall not apply to the
shares of Common Stock to be sold hereunder. "Permitted
Dispositions" mean (i) a bona fide gift, provided that the
donee thereof agrees in writing to be bound by the
restrictions imposed by this Section 7(a), (ii) a
distribution to partners of the Selling Stockholder and its
general partner, provided that such distributees agree in
writing to be bound by the restrictions imposed by this
Section 7(a), or (iii) a transfer to an affiliate of the
Selling Stockholder, provided that the affiliate agrees in
writing to be bound by the restrictions imposed by this
Section 7(a).
(b) That the Stock to be sold by the Selling
Stockholder hereunder is subject to the interest of the
Underwriters and that the obligations of the Selling
Stockholder hereunder shall not be terminated by any act of
the Selling Stockholder, by operation of law or the
occurrence of any other event.
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(c) To deliver to the Representatives prior to the
Delivery Date a properly completed and executed United States
Treasury Department Form W-9.
8. Expenses. The Company agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Stock and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided
in this Agreement; (d) the costs of producing and distributing this Agreement
and any other related documents in connection with the offering, purchase, sale
and delivery of the Stock; (e) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Stock; (f) any applicable listing or other fees; (g) the
fees and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 6(h) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); and (h) all other costs and expenses incident to
the performance of the obligations of the Company and the Selling Stockholder
under this Agreement; provided that, except as provided in this Section 8 and
in Section 13, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell, the expenses of advertising any offering of the
Stock made by the Underwriters and the expenses of the roadshow (excluding the
Company's air and rail transportation and lodging expenses), and the Selling
Stockholder shall pay the fees and expenses of its counsel, the costs of
delivering and distributing the Ancillary Documents, if any, and any transfer
taxes payable in connection with its sale of Stock to the Underwriters. The
provisions of this Section 8 shall not affect any agreement that the Company
and the Selling Stockholder have or may make for the sharing of the foregoing
costs and expenses.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on the Delivery Date, of the representations and warranties of the
Company and the Selling Stockholder contained herein, to the performance by the
Company and the Selling Stockholder of their obligations hereunder, and to each
of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion
of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to the Delivery Date
that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Akin, Gump, Strauss, Hauer
& Feld, L.L.P., counsel for the Underwriters, is
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<PAGE> 15
material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and validity of
this Agreement, the Ancillary Documents, if any, the Stock,
the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the
Company and the Selling Stockholder shall have furnished to
such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Davis, Graham & Stubbs LLP shall have furnished
to the Representatives their written opinion, as counsel to
the Company, addressed to the Underwriters and dated the
Delivery Date, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) The Company and each of the Significant
Subsidiaries have been duly incorporated and are
validly existing as corporations in good standing
under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or
lease of property or the conduct of their respective
businesses requires such qualification (except where
the failure to so qualify or be in good standing
would not reasonably be expected to have a Material
Adverse Effect) and have all corporate power and
authority necessary to own or hold their respective
properties and conduct the businesses in which they
are engaged;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued shares of capital stock of the
Company (including the shares of Stock being
delivered on the Delivery Date) have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description
thereof contained or incorporated by reference in
the Prospectus and all of the issued shares of
capital stock of each subsidiary of the Company have
been duly and validly authorized and issued and are
fully paid, non-assessable and (except as disclosed
or incorporated by reference in the Prospectus and
for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all
perfected security interests and, to the knowledge
of such counsel, any other liens, encumbrances or
claims;
(iii) There are no preemptive or other rights
to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any shares of the
Stock pursuant to the Company's charter or by-laws
or any agreement or other instrument of the Company
known to such counsel;
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<PAGE> 16
(iv) To such counsel's knowledge, there are
no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a
party or of which any property or assets of the
Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any
of its subsidiaries, would likely have a Material
Adverse Effect; and, to such counsel's knowledge, no
such proceedings are threatened by governmental
authorities or threatened by others;
(v) The Registration Statement was declared
effective under the Securities Act as of the date
and time specified in such opinion, the Prospectus
was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened
by the Commission;
(vi) The Registration Statement and the
Prospectus and any further amendments or supplements
thereto made by the Company prior to the Delivery
Date (other than the financial statements and
related schedules therein, as to which such counsel
need express no opinion) comply as to form in all
material respects with the requirements of the
Securities Act and the Rules and Regulations; and
the documents incorporated by reference in the
Prospectus and any further amendment or supplement
to any such incorporated document made by the
Company prior to the Delivery Date (other than the
financial statements and related schedules therein,
as to which such counsel need express no opinion),
when they became effective or were filed with the
Commission, as the case may be, complied as to form
in all material respects with the requirements of
the Exchange Act and the rules and regulations of
the Commission thereunder;
(vii) To such counsel's knowledge, there are
no contracts or other documents which are required
to be described in the Prospectus or filed as
exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the
Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly
authorized, executed and delivered by the Company;
(ix) Neither the Company nor any subsidiary
is an "investment company" within the meaning of
such term under the Investment Company Act of 1940,
as amended, and the rules and regulations of the
Commission thereunder;
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<PAGE> 17
(x) The sale of the shares of Stock being
delivered on the Delivery Date by the Selling
Stockholder and the compliance by the Company with
its obligations under this Agreement and the
consummation of the transactions contemplated hereby
will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries is bound or to which any of the
property or assets of the Company or any of its
subsidiaries is subject, nor will such actions
result in any violation of the provisions of the
charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of
their properties or assets; and, except for the
registration of the Stock under the Securities Act
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this
Agreement by the Company; and
(xi) To such counsel's knowledge, there are
no contracts, agreements or understandings between
the Company and any person granting such person the
right (other than rights which have been waived,
satisfied or not exercised) to require the Company
to file a registration statement under the
Securities Act with respect to any securities of the
Company owned or to be owned by such person or to
require the Company to include such securities in
the securities registered pursuant to the
Registration Statement or in any securities being
registered pursuant to any other registration
statement filed by the Company under the Securities
Act.
In rendering such opinion, such counsel may (i) state that
their opinion is limited to matters governed by the Federal
laws of the United States of America, the laws of the State
of New York and the General Corporation Law of the State of
Delaware and that such counsel is not admitted in the State
of Delaware and (ii) rely as to matters of fact (but not
legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and
public officials. Such counsel shall also have furnished to
the Representatives a written statement, addressed to the
Underwriters and dated the Delivery Date, in form and
substance satisfactory to the Representatives, to the effect
that (i) such counsel has acted as counsel to the Company on
a regular basis (although the Company is also represented by
its General Counsel and, with respect to certain other
matters, by other outside counsel), has acted as counsel to
the Company in connection with previous financing
transactions and has acted as counsel
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<PAGE> 18
to the Company in connection with the preparation of the
Registration Statement, and (ii) based on the foregoing, no
facts have come to the attention of such counsel which lead
them to believe that (A) the Registration Statement, as of
the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading or (B) any document incorporated by reference in
the Prospectus or any further amendment or supplement to any
such incorporated document made by the Company prior to the
Delivery Date, when they became effective or were filed with
the Commission as the case may be, contained in the case of a
registration statement which became effective under the
Securities Act, any untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, such counsel need
express no belief with respect to the financial statements,
financial schedules, other financial or statistical data
(including any reserve, production and cost data) and any
geologic information included in or incorporated by reference
in the Prospectus and any amendment or supplement thereto.
(e) The counsel for the Selling Stockholder shall
have furnished to the Representatives his written opinion, as
counsel to the Selling Stockholder, addressed to the
Underwriters and dated the Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to
the effect that:
(i) The Selling Stockholder has full right,
power and authority to enter into this Agreement and
the Ancillary Documents, if any; the execution,
delivery and performance of this Agreement and the
Ancillary Documents, if any, by the Selling
Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby
and thereby will not conflict with or result in a
breach or violation of any of the terms or
provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument
known to such counsel to which the Selling
Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property
or assets of the Selling Stockholder is subject, nor
will such actions result in any violation of the
provisions of the limited partnership agreement of
the Selling Stockholder or any statute or any order,
rule or regulation known to such counsel of any
court or governmental agency or body having
jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder; and,
except for the registration of the Stock under the
Securities Act and such consents, approvals,
authorizations,
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<PAGE> 19
registrations or qualifications as may be required
under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this
Agreement and the Ancillary Documents, if any, by
the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated
hereby and thereby;
(ii) This Agreement has been duly executed
and delivered by or on behalf of the Selling
Stockholder;
(iii) The Ancillary Documents, if any, have
been duly executed and delivered by the Selling
Stockholder and constitute valid and binding
agreements of the Selling Stockholder, enforceable
in accordance with their respective terms;
(iv) Immediately prior to the Delivery Date,
the Selling Stockholder had valid and marketable
title to the shares of Stock to be sold by the
Selling Stockholder under this Agreement, free and
clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell,
assign, transfer and deliver such shares to be sold
by the Selling Stockholder hereunder; and
(v) Valid and marketable title to the
shares of Stock to be sold by the Selling
Stockholder under this Agreement, free and clear of
all liens, encumbrances, equities or claims, has
been transferred to each of the several Underwriters
who have purchased such Stock pursuant to the
provisions of this Agreement.
In rendering such opinion, such counsel may (i) state that
his opinion is limited to matters governed by the Federal
laws of the United States of America, the laws of the State
of Texas and the Delaware Revised Uniform Limited Partnership
Act and that such counsel is not admitted in the State of
Delaware and (ii) in rendering the opinion in Section
9(e)(iv) above, rely upon a certificate of the Selling
Stockholder in respect of matters of fact as to ownership of
and liens, encumbrances, equities or claims on the shares of
Stock sold by the Selling Stockholder, provided that such
counsel shall furnish copies thereof to the Representatives
and state that he believes that both he and the Underwriters
are justified in relying upon such certificate. Such counsel
shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that (A) such counsel has
acted as counsel to the Selling Stockholder on a regular
basis and has acted as counsel to the Selling Stockholder in
connection with the preparation of the Registration
Statement, and (B) based on the foregoing, no facts have come
to the attention of such counsel which lead him to believe
that the Registration Statement, as of the Effective Date,
contained any untrue
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<PAGE> 20
statement of a material fact relating to the Selling
Stockholder or omitted to state such a material fact required
to be stated therein or necessary in order to make the
statements therein relating to the Selling Stockholder not
misleading, or that the Prospectus contains any untrue
statement of a material fact relating to the Selling
Stockholder or omits to state such a material fact required
to be stated therein or necessary in order to make the
statements therein relating to the Selling Stockholder, in
light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does
not assume any responsibility for the accuracy or
completeness of the statements contained in the Registration
Statement or the Prospectus.
(f) The Representatives shall have received from
Akin, Gump, Strauss, Hauer & Feld, LLP, counsel for the
Underwriters, such opinion or opinions, dated the Delivery
Date, with respect to the issuance and sale of the Stock, the
Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from Arthur Andersen LLP
a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the
date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a
date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection
with registered public offerings.
(h) With respect to the letter of Arthur Andersen
LLP referred to in the preceding paragraph and delivered to
the Representatives concurrently with the execution of this
Agreement (the "initial letter"), the Company shall have
furnished to the Representatives a letter (the "bring-down
letter") of such accountants, addressed to the Underwriters
and dated the Delivery Date (i) confirming that they are
independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since
the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more
than three days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the
financial information and
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<PAGE> 21
other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and
findings set forth in the initial letter.
(i) The Company shall have furnished to the
Representatives a certificate, dated the Delivery Date, of
its Chairman of the Board, its President or a Vice President
and its chief financial officer stating that:
(i) The representations, warranties and
agreements of the Company in Section 1 are true and
correct as of the Delivery Date; the Company has
complied with all its agreements contained herein;
and the conditions set forth in Sections 9(a) and
9(k) have been fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not
include any untrue statement of a material fact and
did not omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective
Date no event has occurred which is required under
the Securities Act to be set forth in a supplement
or amendment to the Registration Statement or the
Prospectus.
(j) The Selling Stockholder shall have furnished to
the Representatives on the Delivery Date a certificate, dated
the Delivery Date, signed by, or on behalf of, the Selling
Stockholder stating that the representations, warranties and
agreements of the Selling Stockholder contained herein are
true and correct as of the Delivery Date and that the Selling
Stockholder has complied with all agreements contained herein
to be performed by the Selling Stockholder at or prior to the
Delivery Date.
(k) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date hereof or
the respective dates as of which information is given in the
Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or incorporated by reference in the Prospectus, except
such losses, interferences, disputes, actions, orders or
decrees that do not individually or in the aggregate have a
Material Adverse Effect or (ii) since such dates there shall
not have been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective
change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise
than as set forth or incorporated by reference in the
Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on the
Delivery Date on the terms and in the manner contemplated in
the Prospectus.
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<PAGE> 22
(l) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a
material adverse change in general economic, political or
financial conditions (or the effect of international
conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority
in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery
of the Stock being delivered on the Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(m) The New York Stock Exchange, Inc. shall have
approved the Stock for listing, subject only to official
notice of issuance.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company and Orion Acquisition, Inc., HSRTW,
Inc. and HS Energy Services, Inc., its principal operating
subsidiaries (the "Principal Subsidiaries") jointly and
severally, shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if
any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of
Stock), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment
or supplement thereto or (B) in any blue sky application or
other document prepared or executed by the Company (or based
upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the
Stock under the securities laws of any state or other
jurisdiction (any such application, document or information
being hereinafter called a "Blue Sky Application"), or (ii)
the omission or alleged omission to state in any
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<PAGE> 23
Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company and the
Principal Subsidiaries shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon
and in conformity with written information concerning such
Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter
specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Company
or the Principal Subsidiaries may otherwise have to any
Underwriter or to any officer, employee or controlling person
of that Underwriter.
(b) The Selling Stockholder shall indemnify and hold
harmless each Underwriter, its officers and employees, and
each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and
sales of Stock), to which that Underwriter, officer, employee
or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment
or supplement thereto or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, Registration
Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter, its
officers and employees and each such controlling person for
any legal or other expenses reasonably incurred by that
Underwriter, its officers and employees or controlling person
in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that
the Selling Stockholder shall be obligated under this Section
10(b) to indemnify and hold harmless and reimburse the
expenses of each Underwriter, its officers and employees and
each person, if any, who controls any Underwriter within the
meaning of the Securities Act, only to the extent that such
loss, claim, damage or action arises out of, or is based
upon, any untrue statement or omission or alleged untrue
statement or omission of a material fact made in reliance
upon and in conformity with written information furnished to
the Company by such Selling Stockholder ("Selling Stockholder
Information") expressly for use in any Preliminary
Prospectus, the Registration Statement, or the Prospectus or
in any such amendment or supplement; provided, further, that
the Selling Stockholder shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or
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<PAGE> 24
alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity
with written information concerning such Underwriter
furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein.
The foregoing indemnity agreement is in addition to any
liability which the Selling Stockholder may otherwise have to
any Underwriter or any officer, employee or controlling
person of that Underwriter.
(c) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, its officers
and employees, each of its directors, and each person, if
any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer,
employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or
in any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter
furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such
director, officer, employee or controlling person for any
legal or other expenses reasonably incurred by the Company or
any such director, officer, employee or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party
under this Section 10 of notice of any claim or the
commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 10
except to the extent it has been materially prejudiced by
such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise
than under this Section 10. If any such claim or action shall
be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the
24
<PAGE> 25
extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 10 for any
legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided,
however, that the indemnified party shall have the right to
employ counsel to represent such indemnified party if the
indemnified party shall have been advised by counsel that
there may be legal defenses available to it which are
different from or in addition to those available to such
indemnifying party, and in that event the fees and expenses
of such separate counsel shall be paid by the indemnifying
party. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(e) If the indemnification provided for in this
Section 10 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 10(a), 10(b) or 10(c) in respect of any loss, claim,
damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in
respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company, the Principal Subsidiaries and the Selling
Stockholder on the one hand and the Underwriters on the other
from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but
also the relative fault of the Company, the Principal
Subsidiaries, and the Selling Stockholder on the one hand and
the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations; provided, however, that
the Selling Stockholder shall have an obligation to
contribute under this Section 10(e) only with respect to
losses, liabilities, claims, damages or expenses arising out
of an untrue statement or omission or alleged untrue
statement or omission of a material fact made in reliance
upon and in conformity with Selling
25
<PAGE> 26
Stockholder Information. The relative benefits received by
the Company, the Principal Subsidiaries, and the Selling
Stockholder on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering
of the Stock purchased under this Agreement (before deducting
expenses) received by the Company, the Principal
Subsidiaries, and the Selling Stockholder, on the one hand,
and the total underwriting discounts and commissions received
by the Underwriters with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to
the total gross proceeds from the offering of the shares of
the Stock under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to
information supplied by the Company, the Principal
Subsidiaries, the Selling Stockholder or the Underwriters,
the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent
such statement or omission. For purposes of the preceding two
sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the
Principal Subsidiaries and information supplied by the
Company shall also be deemed to have been supplied by the
Principal Subsidiaries. The Company, the Principal
Subsidiaries, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if
contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include,
for purposes of this Section 10(e), any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 10(e),
no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 10(e) are several in
proportion to their respective underwriting obligations and
not joint.
(f) The Underwriters severally confirm and the
Company acknowledges that the statements with respect to the
public offering of the Stock by the Underwriters set forth on
the cover page of, the legend concerning stabilization on the
inside front cover page of and the information under the
caption "Underwriting" in, the Prospectus are correct and
constitute the only information concerning such Underwriters
furnished in
26
<PAGE> 27
writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and
the Prospectus.
11. Defaulting Underwriters. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Stock which the defaulting Underwriter agreed but failed to
purchase on the Delivery Date in the respective proportions which the number of
shares of the Stock set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of shares of the
Stock set opposite the names of all the remaining non-defaulting Underwriters
in Schedule 1 hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Stock on the
Delivery Date if the total number of shares of the Stock which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
10% of the total number of shares of the Stock to be purchased on the Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of shares of the Stock which it agreed to
purchase on the Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Stock to be purchased on
the Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase on the
Delivery Date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company or the Selling Stockholder,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 8 and 13. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto who,
pursuant to this Section 11, purchases Stock which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company and the Selling
Stockholder for damages caused by its default. If other underwriters are
obligated or agree to purchase the Stock of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone the
Delivery Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Underwriters
may be necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
12. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives by notice given to and
received by the Company and the Selling Stockholder prior to delivery of and
payment for the Stock if, prior to that time, any of the events described in
Sections 9(k) or 9(l), shall have occurred or if the Underwriters shall decline
to purchase the Stock for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If the Selling
Stockholder shall fail to tender the Stock for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company or the
Selling Stockholder to perform any agreement on its part to be
27
<PAGE> 28
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or the Selling Stockholder is
not fulfilled, the Company and the Selling Stockholder will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Stock, and upon demand the Company
and the Selling Stockholder shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 11 by
reason of the default of one or more Underwriters, neither the Company nor the
Selling Stockholder shall be obligated to reimburse any defaulting Underwriter
on account of those expenses.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Lehman
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice
pursuant to Section 10(d), to the Director of Litigation,
Office of the General Counsel, Lehman Brothers Inc., 3 World
Financial Center, 10th Floor, New York, NY 10285;
(b) if to the Company or to the Principal
Subsidiaries, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: James M.
Piccone, Esq. (Fax: (303) 296-3601); and
(c) if to the Selling Stockholder, shall be
delivered or sent by mail, telex or facsimile transmission to
the Selling Stockholder at the address set forth on Schedule
2 hereto;
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Selling Stockholder shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Lehman Brothers Inc.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, the Selling Stockholder and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities and
agreements of the Company and the Selling Stockholder contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act (b) the indemnity agreement of the Underwriters contained in
Section 10(c) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the
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<PAGE> 29
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 15, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Principal Subsidiaries, the
Selling Stockholder and the Underwriters contained in this Agreement or made by
or on behalf on them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Stock and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
[The remainder of this page is intentionally left blank.]
29
<PAGE> 30
If the foregoing correctly sets forth the agreement among the
Company, the Principal Subsidiaries, the Selling Stockholder and the
Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
HS RESOURCES, INC.
By: /s/ Nicholas J. Sutton
-----------------------------------
Nicholas J. Sutton
Chief Executive Officer
ORION ACQUISITION, INC., a Principal
Subsidiary
By: /s/ Nicholas J. Sutton
-----------------------------------
Nicholas J. Sutton
Chief Executive Officer
HSRTW, INC., a Principal Subsidiary
By: /s/ Nicholas J. Sutton
-----------------------------------
Nicholas J. Sutton
Chief Executive Officer
HS ENERGY SERVICES, INC., a Principal
Subsidiary
By: /s/ Nicholas J. Sutton
-----------------------------------
Nicholas J. Sutton
Chief Executive Officer
S-1
<PAGE> 31
The Selling Stockholder:
NATURAL GAS PARTNERS, L.P.
By: G.F.W. Energy, L.P.
Its: General Partner
By: /s/ David R. Albin
------------------------------
David R. Albin
Authorized Signatory
Accepted:
Lehman Brothers Inc.
By /s/ Glen C. Warren
-------------------------
Authorized Representative
For itself and as Representative
of the several Underwriters named
in Schedule 1 hereto
S-2
<PAGE> 32
SCHEDULE 1
<TABLE>
<CAPTION>
Number of
Underwriters Shares
- ------------ ---------
<S> <C>
Lehman Brothers Inc. ....................................... 616,670
Merrill Lynch, Pierce, Fenner & Smith Incorporated ......... 616,670
Petrie Parkman & Co. ....................................... 616,670
---------
Total ............................................. 1,850,010
=========
</TABLE>
<PAGE> 33
SCHEDULE 2
<TABLE>
<CAPTION>
Number of Shares
Name and address of Selling Stockholder of Stock
- --------------------------------------- ----------------
<S> <C>
Natural Gas Partners, L.P. ................................. 1,850,010
777 Main Street, Suite 2700
Ft. Worth, TX 76102-5304
Total ............................................. 1,850,010
</TABLE>
