<PAGE> 1
As filed with the Securities and Exchange Commission on February 5, 1997
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
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
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
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Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed Proposed
Amount maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered registered(1) per unit(1)(2) offering price(1)(3) registration fee(3)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4)(5)
Common Stock, par value $.001 per share(5)(6)(7) $300,000,000 100% $300,000,000 $90,910
Preferred Stock, par value $.001
per share(5)(7)(8)
Warrants(5)(9)
==========================================================================================================================
</TABLE>
(1) In U.S. dollars or the equivalent thereof in one or more foreign
currencies or currency units or composite currencies, including the
European Currency Unit.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $300,000,000.
(4) Subject to Footnote (3), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $300,000,000.
(5) Subject to Footnote (3), there are being registered hereunder an
indeterminate amount and number of Debt Securities, Preferred Stock and
Common Stock as may be issuable upon the conversion or redemption of Debt
Securities or Preferred Stock registered hereby or upon exercise of the
Warrants registered hereby.
(6) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by the Registrant.
(7) This Registration Statement also applies to Rights under the Company's
Stockholders' Rights Plan, which are attached to and tradeable only with
the Shares of Common Stock registered hereby. No registration fees are
required for such rights and the shares underlying such rights as they
will be issued for no additional consideration.
(8) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold from time
to time by the Registrant.
(9) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of Warrants as may be sold from time to time by the
Registrant.
---------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any State.
SUBJECT TO COMPLETION, DATED FEBRUARY 5, 1997
PROSPECTUS
$300,000,000
HS RESOURCES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
------------------------------
HS Resources, Inc. (the "Company") may offer from time to time (i) Debt
Securities ("Debt Securities"), which may be either senior debt securities
("Senior Securities"), senior subordinated debt securities ("Senior
Subordinated Securities") or subordinated debt securities ("Subordinated
Securities"), consisting of debentures, notes, bonds and/or other unsecured
evidences of indebtedness in one or more series, (ii) shares of Preferred Stock
("Preferred Stock") in one or more series, (iii) shares of Common Stock, $.001
par value ("Common Stock"), or (iv) Warrants ("Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock. The Securities will be offered at
an aggregate initial offering price not to exceed U.S. $300,000,000, at prices
and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the
particular Securities in respect of which this Prospectus is being delivered
(i) in the case of Debt Securities, the title, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency,
currencies or currency unit, including the European Currency Unit), maturity,
rate, if any (which may be fixed or variable), or method of calculation
thereof, and time of payment of any interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, any
conversion or exchange rights, any listing on a securities exchange and the
initial public offering price and any other terms in connection with the
offering and sale of such Debt Securities, (ii) in the case of Preferred Stock,
the designation, aggregate principal amount, and stated value and liquidation
preference per share, initial public offering price, dividend rate (or method
of calculation), dates on which dividends shall be payable and dates from which
dividends shall accrue, any redemption or sinking fund provisions, any
conversion or exchange rights, any listing of the Preferred Stock on a
securities exchange, and any other terms in connection with the offering and
sale of such Preferred Stock; (iii) in the case of Common Stock, the number of
shares of Common Stock and the terms of the offering thereof; and (iv) in the
case of Warrants, the number and terms thereof, the designation and the number
of Securities and/or amount of cash consideration issuable upon their exercise,
the exercise price, any listing of the Warrants or the underlying Securities on
a securities exchange and any other terms in connection with the offering, sale
and exercise of the Warrants. The Prospectus Supplement will also contain
information, as applicable, about certain United States Federal income tax
considerations relating to the Securities in respect of which this Prospectus
is being delivered.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Senior Subordinated Securities will
be subordinated to all existing and future Senior Indebtedness (as defined) of
the Company, and senior to all existing and future Subordinated Indebtedness
(as defined) of the Company. The Subordinated Securities will be subordinated
to all existing and future Senior Indebtedness (as defined) of the Company. All
or a portion of any Debt Securities may be issued in permanent global form.
The Company's Common Stock is listed on The New York Stock Exchange
(Symbol: "HSE"). Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange.
The Company may sell Securities to or through one or more underwriters,
and also may sell Securities directly to other purchasers or through agents.
The accompanying Prospectus Supplement sets forth the names of any underwriters
or agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased
by underwriters and the compensation, if any, of such underwriters or agents.
See "Plan of Distribution" herein.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1997
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR IN THE PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, AGENT OR DEALER. THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE SECURITIES TO WHICH THEY RELATE OR AN OFFER TO SELL, OR A SOLICITATION OF
AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT, NOR ANY SALE MADE THEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE THE IMPLICATION THAT THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Company is currently subject to the periodic reporting and
other informational requirements of the Exchange Act. Such reports and other
information may be inspected and copied at the public reference facilities of
the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, as well as at the following Regional Offices: 7 World Trade Center,
Suite 1300, New York, New York 10048, and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Commission by mail at prescribed rates. Requests should be
directed to the Commission's Public Reference Section, Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington D.C. 20549. The Commission also
maintains a website at http://www.sec.gov that contains reports, proxy
statements, and other information. HSR's common stock is listed on the New York
Stock Exchange (the "NYSE"). Reports proxy and information statements and other
information relating to HSR can be inspected at the offices of the NYSE at 20
Broad Street, New York, New York 10005. Any such request and requests for the
agreements summarized herein should be directed to James M. Piccone, Secretary,
HS Resources, Inc., 1999 Broadway, Suite 3600, Denver, Colorado 80202,
telephone (303) 296-3600.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933 (the
"Securities Act") with respect to the Securities offered hereby. This
Prospectus, which constitutes a part of the Registration Statement, does not
contain all the information set forth in the Registration Statement in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and the exhibits thereto for further
information with respect to the Company and the Securities.
The Registration Statement and the exhibits thereto can be obtained from
or inspected and copied at the public reference facilities maintained by the
Commission as described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's annual report on Form 10-K for the year ended December 31,
1995, quarterly reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996, and September 30, 1996 and Current Report on Form 8-K filed June
22, 1996, are incorporated by reference in this Prospectus. All documents filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the securities registered hereunder shall
be deemed to be incorporated by reference in this Prospectus and to be part
hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part of
this Prospectus.
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Upon request, the Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered a copy of any documents
incorporated by reference herein (other than exhibits unless the exhibits are
specifically incorporated by reference into this Prospectus). Requests should
be directed to James M. Piccone, HS Resources, Inc., 1999 Broadway, Suite 3600,
Denver, Colorado 80202.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference statements that are
not purely historical and are "forward-looking statements" within the meaning
of Section 27A of the Securities Act and Section 21E of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including statements regarding
the Company's expectations, hopes, beliefs, intentions or strategies regarding
the future. All statements other than statements of historical facts included
or incorporated by reference in this Prospectus, including without limitation,
statements under "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Business and Properties" regarding reserves and
their values, planned capital expenditures, increases in oil and natural gas
production, the number and prospective nature of anticipated wells to be drilled
in 1997 and thereafter, development potential, infill potential, drillsite
potential, exploitation and exploration prospects and leads, drilling prospects,
consolidation opportunities and the Company's financial position, business
strategy and other plans and objectives for future operations, are
forward-looking statements. All forward-looking statements included or
incorporated by reference in this Prospectus are based on information available
to the Company on the date hereof, and the Company assumes no obligation to
update such forward-looking statements. Although the Company believes that the
assumptions and expectations reflected in such forward-looking statements are
reasonable, it can give no assurance that such expectations will prove to have
been correct or that the Company will take any actions that may presently be
planned. There are numerous uncertainties inherent in estimating quantities of
proved oil and natural gas reserves and projecting future rates of production
and timing of development expenditures, including many factors beyond the
control of the Company. Certain important factors that could cause actual
results to differ materially from the Company's expectations are disclosed under
"Risk Factors" and elsewhere in this Prospectus. All subsequent written or oral
forward-looking statements attributable to the Company or persons acting on its
behalf are expressly qualified in their entirety by such factors.
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THE COMPANY
HS Resources, Inc. is a leading United States independent energy company
engaged in the development, acquisition, exploitation, exploration, production
and marketing of oil and natural gas. Through its experienced management and
technical staff, the Company has consistently increased reserves and production
and has established itself as one of the most efficient operators in the
industry. HSR has created a diversified asset base in three core geographic
areas: the Denver-Julesburg Basin (the "D-J Basin") of the Rocky Mountains, the
Anadarko and Arkoma Basins of the Mid-Continent and the on-shore Gulf Coast
area. It has done so by executing a large scale development drilling program
focused in the Wattenberg Field area of the D-J Basin and through the
Acquisitions, the Merger and the formation of Gulf Coast joint ventures. The
Company believes that each core geographic area adds operational and financial
opportunities, positions the Company to maximize the benefits of its more
predictable, long-lived production in the D-J Basin, while providing meaningful
exposure to higher return potential exploitation dn exploration projects in the
Mid-Continent and Gulf Coast. HSR has an inventory of growth opportunities that
includes in excess of 1,850 infill, development and exploratory drilling
locations and over 1.1 million gross undeveloped acres.
The Company has achieved substantial growth in reserves, production,
revenues and EBITDA (as defined) over the past five years. HSR has increased
reserves from 20.8 MMBoe as of December 31, 1990, to 143.9 MMBoe on a pro forma
basis as of December 31, 1995. HSR also increased production from 0.9 MMBoe for
the year ended December 31, 1991, to 11.1 MMBoe on a pro forma basis for the
year ended December 31, 1995. Oil and natural gas revenues and EBITDA also have
grown significantly over this period, increasing from $12.8 million and $8.3
million, respectively, for the year ended December 31, 1991, to $115.2 million
and $84.8 million, respectively, on a pro forma basis for the year ended
December 31, 1995. On a pro forma basis for the nine months ended September 30,
1996, the Company generated oil and natural gas revenues of $96.5 million and
EBITDA of $73.5 million.
At December 31, 1995, the Company's pro forma reserves had an estimated
pre-tax present value (discounted at 10% of $555 million. Natural gas
constituted approximately 75% of the Company's reserves and approximately 73%
of the Company's reserves were classified as proved developed. At September 30,
1996, the Company operated more than 73% of its 3,544 wells. Management
believes that its ability to control the operation of its wells and to minimize
overhead expenses has contributed to the Company achieving one of the lowest
cost structures in the industry.
The Company's principal executive office is located at One Maritime Plaza,
15th Floor, San Francisco, California 94111 and its telephone number at such
address is (415) 433-5795.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement or
any Pricing Supplement, the net proceeds from the sale of Securities will be
used for general corporate purposes, which may include refinancings or
repayments of indebtedness, capital expenditures, working capital, acquisitions
and repurchases and redemptions of securities.
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RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Year ended December 31,
----------------------------------------------------
1991 1992 1993 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed charges(1) -- 2.1x 5.0x 1.9x --
</TABLE>
(1) Earnings were insufficient to cover fixed charges by $723,000 and
$1,551,000 at December 31, 1991 and 1995, respectively.
For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of net earnings before income taxes and fixed charges
(exclusive of capitalized interest). Fixed charges consist of interest expense
(which includes amounts capitalized and the amortization of debt discount) and
that portion of rental cost that is equivalent to interest (estimated to be
one-third of rental cost).
5
<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
The following is a description of certain general terms and provisions of
the Debt Securities. The particular terms of any series of Debt Securities will
be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
Debt Securities may be issued time to time in one or more series by the
Company. In the following description, references to the Issuer refer to the
Company.
The Debt Securities will constitute either indebtedness designated as
Senior Indebtedness ("Senior Securities"), indebtedness designated as Senior
Subordinated Indebtedness ("Senior Subordinated Securities") or indebtedness
designated as Subordinated Indebtedness ("Subordinated Securities"). The
particular terms of each series of Securities offered by a particular
Prospectus Supplement will be described therein. Senior Securities, Senior
Subordinated Securities and Subordinated Securities will each be issued under a
separate indenture (individually an "Indenture" and collectively the
"Indentures") to be entered into prior to the issuance of such Debt Securities.
The Indentures will be substantially identical, except for provisions relating
to subordination. See "Subordination of Senior Subordinated Securities and
Subordinated Securities". There will be a separate Trustee (individually a
"Trustee" and collectively the "Trustees') under each Indenture. Information
regarding the Trustee under an Indenture will be included in any Prospectus
Supplement relating to the Debt Securities issued thereunder. The following
discussion includes a summary description of all material terms of the
Indentures, other than terms that are specific to a particular series of Debt
Securities and that will be described in the Prospectus Supplement relating to
such series. The following summaries do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of certain
terms capitalized in this Prospectus. Wherever particular Sections or Articles
or defined terms of the Indentures are referred to herein or in a Prospectus
Supplement, such Sections or defined terms are incorporated herein or therein
by reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any
Prospectus Supplement or Prospectus Supplements will be described in such
Prospectus Supplement or Prospectus Supplements relating to such series.
To the extent applicable to the Debt Securities of a particular series, as
indicated in the applicable Prospectus Supplement, there are no provisions of
the Indentures that afford holders of the Debt Securities protection in the
event of a highly leveraged transaction involving the Company.
GENERAL
The Indentures do not limit the aggregate amount of Debt Securities that
may be issued thereunder, and Debt Securities may be issued thereunder from
time to time in separate series up to the aggregate amount from time to time
authorized by the Issuer for each series. Debt Securities of a series may be
issuable in registered form without coupons ("Registered Debt Securities"), in
bearer form with or without coupons attached ("Bearer Debt Securities") or in
the form of one or more Global Securities in registered or bearer form (each a
"Global Security"). Bearer Debt Securities, if any, will be offered only to
non-United States persons and to offices located outside the United States of
certain United States financial institutions. The Senior Securities will be
unsecured and unsubordinated obligations of the Issuer and will rank equally
and ratably with other unsecured and unsubordinated indebtedness of the Issuer.
The Senior Subordinated Securities and the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness (as defined) of the Issuer, as described below under
"Subordination of Subordinated Securities" and in a Prospectus Supplement
applicable to an offering of Senior Subordinated Securities or Subordinated
Securities.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities in respect of
which this Prospectus is being delivered: (1) the title of such Debt
Securities; (2) any limit on the aggregate principal amount of such Debt
Securities; (3) whether such Debt Securities will be issued as Registered Debt
Securities, Bearer Debt Securities or any combination thereof, and any
limitation on issuance of such Bearer Debt Securities and any provisions
regarding the transfer or exchange of such Bearer Debt Securities, including
exchange for Registered Debt Securities of the same series; (4) whether any of
such Debt Securities are to be issuable as a Global Security, whether such
Global Securities are to be issued in temporary global form or permanent global
form, and, if so, the terms and conditions, if any, upon which interests in
such Securities in global form may be exchanged, in whole or
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in part, for the individual Debt Securities represented thereby; (5) the person
to whom any interest on any Debt Security of the series shall be payable if
other than the person in whose name the Debt Security is registered on the
Regular Record Date; (6) the date or dates on which such Debt Securities will
mature; (7) the rate or rates of interest, if any, or the method of calculation
thereof, that such Debt Securities will bear; (8) the date or dates from which
any such interest will accrue, the Interest Payment Dates on which any such
interest on such Debt Securities will be payable and the Regular Record Date
for any interest payable on any Interest Payment Date; (9) the place or places
where the principal of, premium (if any) and interest on such Debt Securities
will be payable; (10) the period or periods within which, the events upon the
occurrence of which, and the price or prices at which, such Debt Securities
may, pursuant to any optional or mandatory provisions, be redeemed or
purchased, in whole or in part, by the Issuer and any terms and conditions
relevant thereto; (11) the obligation of the Issuer, if any, to redeem or
repurchase such Debt Securities at the option of the Holders; (12) the
denominations in which any such Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (13) the currency,
currencies or currency unit or units of payment of principal of and any premium
and interest on such Debt Securities if other than U.S. dollars; (14) any index
or formula used to determine the amount of payments of principal of and any
premium and interest on such Debt Securities; (15) if the principal of or any
premium or interest on such Debt Securities is to be payable, at the election
of the Issuer or a Holder thereof, in one or more currencies or currency units
other than that or those in which such Debt Securities are stated to be
payable, the currency, currencies or currency units in which payment of the
principal of and any premium and interest on Debt Securities of such series as
to which such election is made shall be payable, and the periods within which
and the terms and conditions upon which such election is to be made; (16) if
other than the principal amount thereof, the portion of the principal amount of
such Debt Securities of the series that will be payable upon declaration of the
acceleration of the Maturity thereof; (17) any covenants of the Company; (18)
the applicability of any provisions described under "Defeasance"; (19) the
terms and conditions, if any, pursuant to which such Debt Securities are
convertible or exchangeable into Common Stock or other securities; and (20) any
other terms of such Debt Securities not inconsistent with the provisions of the
respective Indentures.
Debt Securities may be issued at a discount from their principal amount.
United States Federal income tax considerations and other special
considerations applicable to any such Original Issue Discount Securities will
be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or
units, the restrictions, elections, general tax considerations, specific terms
and other information with respect to such issue of Debt Securities and such
foreign currency or currencies or foreign currency unit or units will be set
forth in the applicable Prospectus Supplement.
SENIOR SECURITIES
The Senior Securities will rank pari passu with all other unsecured and
unsubordinated debt of the Issuer and senior to the Senior Subordinated
Securities and Subordinated Securities.
SUBORDINATION OF SENIOR SUBORDINATED SECURITIES AND SUBORDINATED SECURITIES
The indebtedness evidenced by the Senior Subordinated Securities and the
Subordinated Securities will be subordinated and junior in right of payment to
the extent set forth in the respective Indenture to the prior payment in full
of amounts then due on all Senior Indebtedness (as defined below) and the
indebtedness evidenced by the Subordinated Securities will be subordinated and
junior in right of payment to the extent set forth in the respective Indenture
to the prior payment in full of amounts then due on all indebtedness other than
Subordinated Indebtedness, including any Senior Subordinated Securities. No
payment shall be made by the Issuer on account of principal of (or premium, if
any) or interest on the Senior Subordinated Securities or the Subordinated
Securities or on account of the purchase or other acquisition of Senior
Subordinated Securities or the Subordinated Securities, if at the time of such
payment there exists a default in payment of all or any portion of any Senior
Indebtedness, and such default shall not have been cured or waived in writing
or the benefits of this provision waived in writing by or on behalf of the
holders of such Senior Indebtedness. In addition, during the continuance of any
event of default (other than a default in payment of all or any portion of any
Senior Indebtedness) with respect to any Specified Senior Indebtedness, as such
event of default is defined therein or in the instrument under which it is
outstanding, permitting the holders of such Specified Senior Indebtedness to
accelerate the maturity thereof, and upon written notice thereof given by the
Principal Agent to the Trustee, with a copy
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to the Company (the delivery of which shall not affect the validity of the
notice thereof to the Trustee), then, unless and until such event of default
shall have been cured or waived or shall have ceased to exist, no payment shall
be made; provided that if the holders of the Specified Senior Indebtedness to
which the default related have not declared such Specified Senior Indebtedness
to be immediately due and payable within 179 days after the occurrence of such
default (or have declared such Specified Senior Indebtedness to be immediately
due and payable and within such period have rescinded such declaration of
acceleration), then the Company shall resume making any and all unpaid
scheduled payments on such Senior Subordinated Securities or Subordinated
Securities. In no event shall such a payment blockage period described in the
preceding sentence extend beyond 179 days from the date on which such payment
blockage period commenced. Not more than one payment blockage period may be
commenced within any consecutive 365-day period with respect to the Senior
Subordinated Securities or Subordinated Securities. No event of default that
existed or was continuing on the date of the commencement of any payment
blockage period with respect to the Specified Senior Indebtedness initiating
such payment blockage period shall be, or be made, the basis for the
commencement of a second payment blockage period by the holder or holders of
such Specified Senior Indebtedness at any time after the 365-day period
referred to in the preceding sentence unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days. A
failure to make any payment with respect to the Senior Subordinated Securities
or Subordinated Securities as a result of the rights of the holders of Senior
Indebtedness described in this paragraph will not have any effect on the right
of the holders of such Debt Securities to accelerate the maturity thereof as a
result of such payment default.
Upon any distribution of assets of the Issuer upon any receivership,
dissolution, winding-up, liquidation, reorganization or similar proceedings of
the Issuer, whether voluntary or involuntary, or in bankruptcy or insolvency,
all principal of (and premium, if any) and interest due upon all Senior
Indebtedness must be paid in full before the Holders of the Senior Subordinated
Securities and the Subordinated Securities or the Trustee is entitled to
receive or retain any assets so distributed in respect of the Senior
Subordinated Securities or the Subordinated Securities. By reason of this
provision, in the event of insolvency Holders of the Senior Subordinated
Securities and the Subordinated Securities may recover less, ratably, than
other creditors of the Issuer, including holders of Senior Indebtedness.
"Senior Indebtedness" means the Obligations of the Company with respect to
(i) Indebtedness of the Company under the Bank Credit Facility and any renewal,
refunding, refinancing, replacement or extension thereof and (ii) any other
Indebtedness of the Company (other than the Debt Securities), whether
outstanding on the date of the Indenture or thereafter created, incurred or
assumed, and any renewal, refunding, refinancing, replacement or extension
thereof, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Debt Securities. Notwithstanding the foregoing, Senior
Indebtedness shall not include (i) Indebtedness of the Company to a Subsidiary
of the Company, (ii) amounts owed for goods, materials or services purchased in
the ordinary course of business, (iii) Indebtedness (other than Indebtedness
under the Bank Credit Facility) incurred in violation of the Indentures, (iv)
amounts payable or any other Indebtedness to employees of the Company or any
Subsidiary of the Company, (v) any liability for Federal, state, local or other
taxes owed or owing by the Company, (vi) any Indebtedness of the Company that,
when incurred and without regard to any election under Section 1111(b) of the
United States Bankruptcy Code, was without recourse to the Company, (vii)
Indebtedness evidenced by the Company's $75,000,000 of 9 7/8% Senior
Subordinated Notes due 2003 (the "9 7/8% Notes") and $150,000,000 of 9 1/4%
Senior Subordinated Notes due 2006 (the "9 1/4% Notes"); and (viii) Indebtedness
evidenced by the Senior Subordinated Securities and the Subordinated Securities.
As of September 30, 1996, the amount of Senior Indebtedness of the Company
was approximately $173 million. The Senior Subordinated Indenture and
Subordinated Indenture do not prohibit or limit the incurrence of additional
Senior Indebtedness.
If this Prospectus is being delivered in connection with a series of
Senior Subordinated Securities or Subordinated Securities, the accompanying
Prospectus Supplement or the information incorporated herein by reference will
set forth the approximate amount of Senior Indebtedness outstanding as of the
most recent practicable date.
FORM, EXCHANGE, REGISTRATION, CONVERSION AND TRANSFER
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise indicated in an
applicable Prospectus Supplement, Bearer Debt Securities will have interest
coupons attached. Debt Securities are also issuable in temporary or permanent
global form.
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Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, with
respect to any series of Bearer Debt Securities, at the option of the holder,
subject to the terms of the Indenture, such Bearer Debt Securities (with all
unmatured coupons, except as provided below, and all matured coupons in
default) will be exchangeable into Registered Debt Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor. Bearer Debt Securities surrendered in exchange for Registered Debt
Securities between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest, and interest accrued as of such
date will not be payable in respect of the Registered Debt Security issued in
exchange for such Bearer Debt Security, but will be payable only to the holder
of such coupon when due in accordance with the terms of the Indenture.
In connection with its sale during the restricted period (as defined
below), no Bearer Debt Security (including a Debt Security in permanent global
form that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the
United States (as defined under "-- Limitations on Issuance of Bearer Debt
Securities") and a Bearer Debt Security may be delivered outside the United
States in definitive form in connection with its original issuance only if
prior to delivery the person entitled to receive such Bearer Debt Security
furnishes written certification, in the form required by the Indenture, to the
effect that such Bearer Debt Security is owned by: (a) a person (purchasing for
its own account) who is not a United States person (as defined under "--
Limitations on Issuance of Bearer Debt Securities"); (b) a United States person
who (i) is a foreign branch of a United States financial institution purchasing
for its own account or for resale or (ii) acquired such Bearer Debt Security
through the foreign branch of a United States financial institution and who for
purposes of the certification holds such Bearer Debt Security through such
financial institution on the date of certification and, in either case, such
United States financial institution certifies to the Issuer or the distributor
selling the Bearer Debt Security within a reasonable time stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations thereunder, or (c) a United States or foreign financial
institution for purposes of resale within the "restricted period" as defined in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial
institution described in clause (c) of the preceding sentence (whether or not
also described in clauses (a) and (b)) must certify that it has not acquired
the Bearer Debt Security for purpose of resale, directly or indirectly, to a
United States person or to a person within the United States or its
possessions. In the case of a Bearer Debt Security in permanent global form,
such certification must be given in connection with notation of a beneficial
owner's interest therein in connection with the original issuance of such Debt
Security or upon exchange of a portion of a temporary global Debt Security.
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration of transfer (with
the form of transfer endorsed thereon duly executed), at the office or agency
of the Issuer maintained for such purposes and at any other office or agency
maintained for such purpose with respect to any series of Debt Securities and
referred to in the applicable Prospectus Supplement, without a service charge
and upon payment of any taxes and other governmental charges as described in
the Indenture. Such transfer or exchange will be effected upon the Issuer or
its agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request.
In the event of any redemption in part, the Issuer shall not be required
to (i) issue, register the transfer of or exchange Debt Securities of any
series during a period beginning at the opening of business 15 days prior to
the selection of Debt Securities of that series for redemption and ending on
the close of business on (A) if Debt Securities of the series are issued only
as Registered Debt Securities, the day of mailing of the relevant notice of
redemption and (B) if Debt Securities of the series are issued as Bearer Debt
Securities, the day of the first publication of the relevant notice of
redemption except that, if Securities of the series are also issued as
Registered Debt Securities and there is no publication, the day of mailing of
the relevant notice of redemption; (ii) register the transfer of or exchange
any Registered Debt Security, or portion thereof, called for redemption, except
the unredeemed portion of any Registered Debt Security being redeemed in part;
or (iii) exchange any Bearer Debt Security called for redemption, except to
exchange such Bearer Debt Security for a Registered Debt Security of that
series and like tenor which is simultaneously surrendered for redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of principal of (and any premium) and interest on Bearer Debt
Securities will be payable, subject to any applicable laws and regulations, in
the designated
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currency or currency unit, at the offices of such Paying Agents ("Paying
Agents") outside the United States as the Issuer may designate from time to
time, at the option of the holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United States;
provided, however, that the written certification described above under "--
Form, Exchange, Registration and Transfer" has been delivered prior to the
first actual payment of interest. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest on Bearer Debt Securities on any
Interest Payment Date will be made only against surrender to the Paying Agent
of the coupon relating to such Interest Payment Date. No payment with respect
to any Bearer Debt Security will be made at any office or agency of the Issuer
in the United States or by check mailed to any address in the United States or
by transfer to any account maintained with a bank located in the United States,
nor shall any payments be made in respect of Bearer Debt Securities upon
presentation to the Issuer or its designated Paying Agents within the United
States. Notwithstanding the foregoing, payments of principal of (and premium,
if any) and interest on Bearer Debt Securities denominated and payable in U.S.
dollars will be made at the office of the Issuer's Paying Agent in the United
States, if (but only if) payment of the full amount thereof in U.S. dollars at
all offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions.
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of principal of (and premium, if any) and interest on Registered Debt
Securities will be made in the designated currency or currency unit at the
office of such Paying Agent or Paying Agents as the Issuer may designate from
time to time, except that at the option of the Issuer payment of any interest
may be made by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register. Unless otherwise indicated
in an applicable Prospectus Supplement, payment of any installment of interest
on Registered Debt Securities will be made to the person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee will be designated as a Paying Agent for
the Trustee for payments with respect to Debt Securities that are issuable
solely as Registered Debt Securities, and the Issuer will maintain a Paying
Agent outside the United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer Debt Securities)
that are issued solely as Bearer Debt Securities, or as both Registered Debt
Securities and Bearer Debt Securities. Any Paying Agents outside the United
States and any other Paying Agents in the United States initially designated by
the Issuer for the Debt Securities will be named in an applicable Prospectus
Supplement. The Issuer may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities of a
series are issued solely as Registered Debt Securities, the Issuer will be
required to maintain a Paying Agent in each Place of Payment for such series
and, if Debt Securities of a series are issued as Bearer Securities, the Issuer
will be required to maintain (i) a Paying Agent in the United States for
principal payments with respect to any Registered Debt Securities of the series
(and for payments with respect to Bearer Debt Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Securities of such
series and any coupons appertaining thereto may be presented and surrendered
for payment.
All monies paid by the Issuer to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security that remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Issuer and the holder of such Debt Security or any coupon will
thereafter look only to the Issuer for payment thereof.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any
portion of the Debt Securities of a series which are issuable as Bearer Debt
Securities will initially be represented by one or more temporary global Debt
Securities, without interest coupons, to be deposited with a common depository
in London for the Euroclear System ("Euroclear") and CEDEL S.A. ("CEDEL") for
credit to the designated accounts. On and after the date determined as provided
in any such temporary global Debt Security and described in the applicable
Prospectus Supplement, each such temporary global Debt Security will be
exchangeable for definitive Bearer Debt Securities, definitive Registered Debt
Securities or all or a portion of a permanent global security, or any
combination thereof, as specified in the applicable Prospectus Supplement, but,
unless otherwise specified in the applicable Prospectus Supplement, only upon
written certification in the form and to the effect described under "-- Form,
Exchange, Registration and Transfer." No Bearer Debt Security
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delivered in exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in
connection with such exchange.
Unless otherwise specified in the applicable Prospectus Supplement,
interest in respect of any portion of a temporary global Debt Security payable
in respect of an Interest Payment Date occurring prior to the issuance of
definitive Debt Securities or a permanent global Debt Security will be paid to
each of Euroclear and CEDEL with respect to the portion of the temporary global
Debt Security held for its account. Each of Euroclear and CEDEL will undertake
in such circumstances to credit such interest received by it in respect of a
temporary global Debt Security to the respective accounts for which it holds
such temporary global Debt Security only upon receipt in each case of written
certification in the form and to the effect described above under "-Form,
Exchange, Registration and Transfer" as of the relevant Interest Payment Date
regarding the portion of such temporary global Debt Security on which interest
is to be so credited.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent global Debt
Securities may exchange such interests for Debt Securities of such series and
of like tenor and principal amount in any authorized form and denomination. No
Bearer Debt Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location in the
United States in connection with such exchange.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of Outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as a whole by
the Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any nominee to a successor Depositary or a
nominee of such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Issuer expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depositary will be represented by a Global Security
registered in the name of such Depositary or its nominee. Upon the issuance of
such Global Security, and the deposit of such Global Security with or on behalf
of the Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Issuer, if such Debt
Securities are offered and sold directly by the Issuer. Ownership of beneficial
interest in such Global Security will be limited to participants or Persons
that may hold interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by
the Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through participants
will be shown on, and the transfer of that ownership interest within such
participant will be effected only through, records maintained by such
participant. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. The
foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the applicable
Indenture. Unless otherwise specified in the
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applicable Prospectus Supplement, owners of beneficial interests in such Global
Security will not be entitled to have Debt Securities of the series represented
by such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities of such series in
certificated form and will not be considered the Holders thereof for any
purposes under the applicable Indenture. Accordingly, each Person owning a
beneficial interest in such Global Security must rely on the procedures of the
Depositary and, if such Person is not a participant, on the procedures of the
participant through which such Person owns its interest, to exercise any rights
of a Holder under the applicable Indenture. The Issuer understands that under
existing industry practices, if the Issuer requests any action of Holders or an
owner of a beneficial interest in such Global Security desires to give any
notice or take any action a Holder is entitled to give or take under an
Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States Federal tax laws and regulations, Bearer
Debt Securities (including securities in permanent global form that are either
Bearer Debt Securities or exchangeable for Bearer Debt Securities) will not be
offered or sold during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40
days after the closing date, and, with respect to unsold allotments, until
sold) within the United States or to United States persons (each as defined
below) other than to an office located outside the United States of a United
States financial institution (as defined in Section 1.165-12(c)(1)(v) of the
United States Treasury Regulations), purchasing for its own account or for
resale or for the account of certain customers, that provides a certificate
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Code and the United States Treasury Regulations thereunder,
or to certain other persons described in Section 1.163-5(c)(2)(i)(D)(1)(iii)(B)
of the United States Treasury Regulations. Moreover, such Bearer Debt
Securities will not be delivered in connection with their sale during the
restricted period within the United States. Any underwriters and dealers
participating in the offering of Bearer Debt Securities must covenant that they
will not offer or sell during the restricted period any Bearer Debt Securities
within the United States or to United States persons (other than the persons
described above) or deliver in connection with the sale of Bearer Debt
Securities during the restricted period any Bearer Debt Securities within the
United States and that they have in effect procedures reasonably designed to
ensure that their employees and agents who are directly engaged in selling the
Bearer Debt Securities are aware of the restrictions described above. No Bearer
Debt Security (other than a temporary global Bearer Debt Security) will be
delivered in connection with its original issuance nor will interest be paid on
any Bearer Debt Security until receipt by the Issuer of the written
certification described above under "--Form, Exchange, Registration and
Transfer." Each Bearer Debt Security, other than a temporary global Bearer Debt
Security, will bear a legend to the following effect: "Any United States person
who holds this obligation will be subject to limitations under the
United States Federal income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America
(including the states and the District of Columbia) and its possessions.
CERTAIN COVENANTS OF THE COMPANY
The applicable Prospectus Supplement with respect to a particular series
of Debt Securities will set forth certain covenants of the Company with respect
to such Debt Securities.
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (a) failure to pay principal of or premium, if
any, on any Debt Security of that series when due; (b) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(c) failure to make any sinking fund payment, when due, in respect of any Debt
Security of that series; (d) failure to perform any other covenant of the
Company in the
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applicable Indenture (other than a covenant included in such Indenture solely
for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the respective
Indentures; (e) failure to pay at the final maturity thereof the principal of,
or acceleration of, any indebtedness for money borrowed by the Issuer in excess
of a stated amount, if such indebtedness is not discharged, or such
acceleration is not annulled, as provided in the respective Indentures; (f)
certain events of bankruptcy, insolvency or reorganization of the Issuer; and
(g) any other Event of Default provided with respect to Debt Securities of that
series.
If an Event of Default with respect to Outstanding Debt Securities of any
series shall occur and be continuing, either the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that series
by notice as provided in the respective Indenture may declare the principal
amount (or, if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all Debt Securities of that series to be due and
payable immediately. However, at any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the Holders of
a majority in principal amount of the Outstanding Debt Securities of that
series may, under certain circumstances, rescind and annul such acceleration.
For information as to waiver or defaults, see "Modification and Waiver" below.
The Indentures provide that, subject to the duty of the respective
Trustees thereunder during an Event of Default to act with the required
standard of care, such Trustee will be under no obligation to exercise any of
its rights or powers under the respective Indentures at the request or
direction of any of the Holders, unless such Holders shall have offered to such
Trustee reasonable security or indemnity. Subject to certain provisions,
including those requiring security or indemnification of the Trustees, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable Trustee,
or exercising any trust or power conferred on such Trustee, with respect to the
Debt Securities of that series.
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the applicable Indenture or for any
remedy thereunder, unless such Holder shall have previously given to the
applicable Trustee written notice of a continuing Event of Default (as defined)
and unless also the Holders of at least 25 percent in aggregate principal
amount of the Outstanding Debt Securities of the same series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of the same series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security
for enforcement of payment of the principal of and interest on such Debt
Security on or after the respective due dates expressed in such Debt Security.
The Issuer will be required to furnish to the Trustees annually a
statement as to the performance by the Issuer of its obligations under the
respective Indentures and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be made by
the Issuer and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected thereby; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby: (a) change the Stated Maturity of the principal of,
or any installment of principal of, or interest on, any Debt Security; (b)
reduce the principal amount of, the rate of interest on, or the premium, if
any, payable upon the redemption of, any Debt Security; (c) reduce the amount
of principal of an Original Issue Discount Security payable upon acceleration
of the Maturity thereof; (d) change the place or currency of payment of
principal of, or premium, if any, or interest on any Debt Security; (e) impair
the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security on or after the Stated Maturity or Redemption Date
thereof; or (f) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is required for
modification or amendment of the applicable Indenture or for waiver of
compliance with certain provisions of the applicable Indenture or for waiver of
certain defaults.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance
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by the Issuer with certain covenants of the applicable Indenture. The Holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of any series may, on behalf of the Holders of all Debt Securities
of that series, waive any past default under the applicable Indenture with
respect to that series, except a default in the payment of the principal of, or
premium, if any, or interest on, any Debt Security of that series or in respect
of a provision which under the applicable Indenture cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
that series affected.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Issuer, without the consent of any Holders of Outstanding Debt
Securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate with or merge into, or transfer or lease its assets substantially
as an entirety to, the Issuer, provided (a) that the Person (if other than the
Issuer) formed by such consolidation or into which the Issuer is merged or
which acquires or leases the assets of the Issuer substantially as an entirety
is a Person organized and existing under the laws of any United States
jurisdiction and assumes the Issuer's obligations on the Debt Securities and
under the respective Indentures, (b) that after giving effect to such
transaction no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing, and (c) that certain other conditions are met.
DEFEASANCE AND COVENANT DEFEASANCE
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Issuer, at its option, will be discharged from
all its obligations with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of such Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying agencies
and to hold moneys for payment in trust) upon the deposit in trust for the
benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or a combination thereof, which, through the payment of principal,
premium, if any, and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and any
premium and interest on such Debt Securities at Stated Maturity or on earlier
redemption in accordance with the terms of the applicable Indenture and the Debt
Securities. Such defeasance or discharge may occur only if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that (i) the Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling or (ii) since the date of the
Indenture there has been a change in the applicable Federal income tax law, in
either case to the effect that Holders of such Debt Securities will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge were not to occur; and that the
resulting trust will not be an "Investment Company" within the meaning of the
Investment Company Act of 1940 unless such trust is qualified thereunder or
exempt from regulation thereunder.
If so indicated in the applicable Prospectus Supplement with respect
to the Debt Securities of a series, the Issuer, at its option, may omit to
comply with certain covenants, as set forth in the applicable Prospectus
Supplement with respect to the Debt Securities of such series, and that the
occurrence of certain Events of Default, as set forth in the applicable
Prospectus Supplement with respect to the Debt Securities of such series, will
be deemed not to be or result in an Event of Default. The Company, in order to
exercise such option, will be required to deposit, in trust for the benefit of
the Holders of such Debt Securities, money or U.S. Government Obligations, or a
combination thereof, which, through the payment of principal, premium, if any,
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities at Stated Maturity or on earlier redemption in
accordance with the terms of the Indenture and such Debt Securities. The
Company will also be required, among other things, to deliver to the Trustee an
Opinion of Counsel to the effect that Holders of such Debt Securities will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and defeasance were not to occur; and
that the resulting trust will not be an "Investment Company" within the meaning
of the Investment Company Act of 1940 unless such trust is qualified thereunder
or exempt from regulation thereunder. In the event the Company were to exercise
this option and such Debt Securities were declared due and payable because of
the occurrence of any Event of Default, the amount of money and U.S. Government
Obligations so deposited in trust would be sufficient to pay amounts due on
such Debt Securities at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Debt Securities upon any acceleration
resulting from such Event of Default. In such case, the Company would remain
liable for such payments.
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<PAGE> 17
Notwithstanding the description set forth under "Subordination of Senior
Subordinated Securities and Subordinated Securities" above, in the event that
the Company deposits money or U.S. Government Obligations in compliance with
such Indenture in order to defease all or certain of its obligations with
respect to any Senior Subordinated Securities or Subordinated Securities, the
monies or U.S. Government Obligations so deposited will not be subject to the
subordination provisions of such Indenture and the indebtedness evidenced by
such Securities will not be subordinated in right of payment to the holders of
Senior Indebtedness to the extent of the monies or U.S. Government Obligations
so deposited.
NOTICES
Except as otherwise provided in the Indenture, notices to holders of
Bearer Debt Securities will be given by publication at least twice in a daily
newspaper in the City of New York and London or other capital city in Western
Europe and in such other city or cities as may be specified in such Securities.
Notices to holders of Registered Debt Securities will be given by mail to the
addresses of such holders as they appear in the Security Register.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the Trustee,
should it become a creditor of the Issuer, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received
in respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Debt Securities, it must
eliminate such conflict or resign.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock will
be described in the applicable Prospectus Supplement. If so indicated in a
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below. Certain provisions applicable to the Company's Preferred Stock
are set forth below in "Description of Common Stock." In the following
description, references to the Issuer refer to the Company.
The summary of terms of the Issuer's preferred stock (including the
Preferred Stock) contained in this Prospectus does not purport to be complete
and is subject to, and qualified in its entirety by, the provisions of the
Issuer's Certificate of Incorporation and the certificate of designations
relating to each series of the Preferred Stock (the "Certificate of
Designations"), which will be filed as an exhibit to or incorporated by
reference in the Registration Statement of which this Prospectus is a part at
or prior to the time of issuance of such series of the Preferred Stock.
The Company's Certificate of Incorporation authorizes the issuance of
15,000,000 shares of preferred stock, par value of $.001 per share. The
Company's preferred stock may be issued from time to time in one or more
series, without stockholder approval. Subject to limitations prescribed by law,
the Board of Directors of the Issuer is authorized to determine and alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of preferred stock, and to increase or decrease (but not
below the number of shares of such series then outstanding) the number of
shares of such series of preferred stock. As such, the Company's Board of
Directors, without stockholder approval, could authorize the issuance of
preferred stock with voting, conversion and other rights that could adversely
affect the voting power and other rights of holders of Common Stock or other
series of preferred stock or that could have the effect of delaying, deferring
or preventing a change in control of the Company. See "Description of Common
Stock" herein.
The Preferred Stock issued by the Company shall have the dividend,
liquidation, redemption and voting rights set forth below unless otherwise
provided in a Prospectus Supplement relating to a particular series of the
Preferred Stock.
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<PAGE> 18
The applicable Prospectus Supplement will describe the following terms of the
series of Preferred Stock in respect of which this Prospectus is being
delivered: (1) the designation and stated value per share of such Preferred
Stock and the number of shares offered; (2) the amount of liquidation
preference per share; (3) the initial public offering price at which such
Preferred Stock will be issued; (4) the dividend rate (or method of
calculation), the dates on which dividends shall be payable and the dates from
which dividends shall commence to cumulate, if any; (5) if applicable, any
index or formula used to determine the amount of dividends payable; (6) any
redemption or sinking fund provisions; (7) any conversion or exchange rights;
and (8) any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions.
GENERAL
The Preferred Stock offered hereby will be issued in one or more series.
The holders of Preferred Stock will have no preemptive rights. Preferred Stock,
upon issuance against full payment of the purchase price therefor, will be
fully paid and nonassessable. Neither the par value nor the liquidation
preference is indicative of the price at which the Preferred Stock will
actually trade on or after the date of issuance. The applicable Prospectus
Supplement will contain a description of certain United States Federal income
tax consequences relating to the purchase and ownership of the series of
Preferred Stock offered by such Prospectus Supplement.
RANK
The Preferred Stock shall, with respect to dividend rights and rights on
liquidation, winding up and dissolution of the Issuer, rank prior to the
Issuer's Common Stock and to all other classes and series of equity securities
of the Issuer now or hereafter authorized, issued or outstanding (the Common
Stock and such other classes and series of equity securities collectively may
be referred to herein as the "Junior Stock"), other than any classes or series
of equity securities of the Issuer ranking on a parity with (the "Parity
Stock") or senior to (the "Senior Stock") the Preferred Stock as to dividend
rights and rights upon liquidation, winding up or dissolution of the Issuer.
The Preferred Stock shall be junior to all outstanding debt of the Issuer. The
Preferred Stock shall be subject to creation of Senior Stock, Parity Stock and
Junior Stock to the extent not expressly prohibited by the Issuer's Certificate
of Incorporation.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds of the Issuer legally
available for payment, cash dividends, payable at such dates and at such rates
per share per annum as set forth in the applicable Prospectus Supplement. Such
rate may be fixed or variable or both. Each declared dividend shall be payable
to holders of record as they appear at the close of business on the stock books
of the Issuer on such record dates, not more than 60 calendar days preceding
the payment dates therefor, as are determined by the Board of Directors (each
of such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
Preferred Stock will have no right to receive a dividend in respect of such
dividend period, and the Issuer will have no obligation to pay the dividend for
such period, whether or not dividends are declared payable on any future
Dividend Payment Dates. Dividends on the shares of each series of Preferred
Stock for which dividends are cumulative will accrue from the date on which the
Issuer initially issues shares of such series.
No full dividends shall be declared or paid or set apart for payment on
preferred stock of the Issuer of any series ranking, as to dividends, on a
parity with or junior to the series of Preferred Stock offered by the
Prospectus Supplement attached hereto for any period unless full dividends for
the immediately preceding dividend period on such Preferred Stock (including
any accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on such Preferred Stock are cumulative) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment. When dividends are not so
paid in full (or a sum sufficient for such full payment is not so set apart)
upon such Preferred Stock and any other preferred stock of the Issuer ranking
on a parity as to dividends with the Preferred Stock, dividends upon shares of
such Preferred Stock and dividends on such other preferred stock shall be
declared pro rata so that the amount of dividends declared per share on such
Preferred Stock and such other preferred stock shall in all cases bear to each
other the same ratio that accrued dividends for the then-current
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<PAGE> 19
dividend period per share on the shares of such Preferred Stock (including any
accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on such Preferred Stock are cumulative) and accrued dividends,
including required or permitted accumulations, if any, on shares of such other
preferred stock, bear to each other. Unless full dividends on the series of
Preferred Stock offered by the Prospectus Supplement attached hereto have been
declared and paid or set apart for payment for the immediately preceding
dividend period (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such Preferred Stock are cumulative)
(a) no cash dividend or distribution (other than in shares of Junior Stock) may
be declared, set aside or paid on the Junior Stock, (b) the Issuer may not
repurchase, redeem or otherwise acquire any shares of its Junior Stock (except
by conversion into or exchange for Junior Stock) and (c) the Issuer may not,
directly or indirectly, repurchase, redeem or otherwise acquire any shares of
Preferred Stock or Parity Stock otherwise than pursuant to certain pro rata
offers to purchase or a concurrent redemption of all, or a pro rata portion, of
the outstanding shares of such Preferred Stock and Parity Stock (except by
conversion into or exchange for Junior Stock).
CONVERTIBILITY
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock of the Company or another series of Preferred Stock or other securities
of the Company will be set forth in the Prospectus Supplement relating thereto.
See "Description of Common Stock."
REDEMPTION
The terms, if any, on which shares of Preferred Stock of any series may be
redeemed will be set forth in the related Prospectus Supplement.
LIQUIDATION
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Issuer, the holders of a series of Preferred Stock will be
entitled, subject to the rights of creditors, but before any distribution or
payment to the holders of Senior Stock on liquidation, dissolution or winding
up of the Issuer, to receive an amount per share as set forth in the related
Prospectus Supplement plus accrued and unpaid dividends for the then-current
dividend period (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such series of Preferred Stock are
cumulative). If the amounts available for distribution with respect to the
Preferred Stock and all other outstanding stock of the Issuer ranking on a
parity with the Preferred Stock upon liquidation are not sufficient to satisfy
the full liquidation rights of all the outstanding Preferred Stock and stock
ranking on a parity therewith, then the holders of each series of such stock
will share ratably in any such distribution of assets in proportion to the full
respective preferential amount (which in the case of preferred stock may
include accumulated dividends) to which they are entitled. After payment of the
full amount of the liquidation preference, unless otherwise specified in the
applicable Prospectus Supplement, the holders of shares of Preferred Stock will
not be entitled to any further participation in any distribution of assets by
the Issuer.
VOTING
The Preferred Stock of a series will not be entitled to vote, except as
provided below or in the applicable Prospectus Supplement and as required by
applicable law. With respect to Preferred Stock issued by the Company, unless
otherwise specified in the related Prospectus Supplement, at any time dividends
in an amount equal to six quarterly dividend payments on the Preferred Stock
shall have accrued and be unpaid, holders of the Preferred Stock issued by the
Company shall have the right to a separate class vote (together with the
holders of shares of any Parity Stock upon which like voting rights have been
conferred and are exercisable, "Voting Parity Stock") to elect two members of
the Board of Directors of the Company at the next annual meeting of
stockholders and thereafter until dividends on the Preferred Stock have been
paid in full for four consecutive dividend periods, including the last
preceding dividend period. Additionally, without the affirmative vote of the
holders of two-thirds of the shares of Preferred Stock issued by the Company
then outstanding (voting separately as a class together with any Voting Parity
Stock), the Company may not, either directly or indirectly or through merger or
consolidation with any other corporation, (i) approve the authorization,
creation or issuance, or an increase in the authorized or issued amount, of any
class or series of stock ranking prior to the shares of Preferred Stock in
rights and preferences or (ii) amend, alter or repeal its Certificate of
Incorporation or the Certificate
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<PAGE> 20
of Designations so as to materially and adversely change the specific terms of
the Preferred Stock. An amendment that increases the number of authorized
shares of or authorizes the creation or issuance of other classes or series of
preferred stock ranking junior to or on a parity with the Preferred Stock with
respect to the payment of dividends or distribution of assets upon liquidation,
dissolution or winding up, or substitutes the surviving entity in a merger,
consolidation, reorganization or other business combination for the Company,
shall not be considered to be such an adverse change.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the related Prospectus Supplement, the
Certificate of Incorporation and in the certificate of designations or as
otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be designated
in the related Prospectus Supplement.
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<PAGE> 21
DESCRIPTION OF COMMON STOCK
The following is a description of certain general terms and provisions of
the Common Stock. In the following description, references to the Issuer refer
to the Company. The summary of terms of the Issuer's Common Stock contained in
this Prospectus does not purport to be complete and is subject to, and
qualified in its entirety by, the provisions of the Issuer's Certificate of
Incorporation, Bylaws and Rights Agreement, dated as of February 28, 1996,
between the Company and Harris Trust Company of California (the "Rights
Agreement"), each of which has been incorporated by reference herein.
The Company's Certificate of Incorporation authorizes the issuance of
30,000,000 shares of Common Stock. No class of capital stock of HSR entitles the
holder thereof to any preemptive rights to purchase or subscribe for shares of
any class or any other securities.
All issued and outstanding shares of Common Stock are validly issued,
fully paid and nonassessable. The holders of Common Stock are entitled to one
vote for each share held on all matters submitted to a vote of common
stockholders. The Common Stock does not have cumulative voting rights. Each
share of Common Stock is entitled to participate equally in dividends, as and
when declared by the Company's Board of Directors, and in the distribution of
assets in the event of liquidation, subject in all cases to any prior rights of
outstanding shares of the Company's preferred stock. The shares of Common Stock
have no preemptive or conversion rights, redemption rights or sinking fund
provisions.
The outstanding shares of Common Stock are listed on The New York
Stock Exchange and trade under the symbol "HSE." Harris Savings and Trust is
the transfer agent, registrar and dividend disbursing agent for the Common
Stock.
PREFERRED STOCK PURCHASE RIGHTS
On February 28, 1996, the Company's Board of Directors declared a dividend
distribution of one Preferred Stock Purchase Right (a "Right") for each
outstanding share of Common Stock. The description and terms of the Rights are
set forth in the Rights Agreement. The distribution was made as of March 14,
1996, to stockholders of record on that date. Each Right entitles the registered
holder of Common Stock to purchase from the Company one one-hundredth ( 1/100)
of a share of preferred stock, designated as Series A Junior Preferred Stock, at
a price of $60.00 per one one-hundredth ( 1/100) of a share. The Rights will
expire at the close of business on March 14, 2006, unless earlier redeemed by
the Company as described in the Rights Agreement.
Initially, the Rights will not be exercisable or represented by a separate
certificate but will trade together with the Common Stock. The Rights, unless
redeemed prior thereto, become exercisable only upon the close of business on
the day which is the earlier of (a) the tenth day after a public announcement
that a person or group of affiliated or associated persons, with certain
exceptions as noted in the Rights Agreement, has acquired beneficial ownership
of 15% or more of the Company's voting stock (an "Acquiring Person") or (b) the
tenth business day (or such later date as may be determined by the Company's
Board of Directors prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) after the commencement or announcement of
an intention to commence a tender or exchange offer, the consummation of which
would result in the ownership of 30% or more of the Company's voting stock (even
if no stock is actually purchased pursuant to such offer). An Acquiring Person
does not include, among others, Natural Gas Partners, L.P. unless it is the
beneficial owner of 22.193% or more of the voting stock of the Company. All
further issuances of Common Stock will include Rights.
For as long as the Rights are redeemable pursuant to the terms of the
Rights Agreement, the Company may, except with respect to the redemption price
or date of expiration of the Rights, amend the Rights in any manner, including
an amendment to extend the time period in which the Rights may be redeemed. At
any time when the Rights are not then redeemable, the Company may amend the
Rights in any manner that does not materially adversely affect the interests of
holders of the Rights as such. Amendments to the Rights Agreement from and
after the time that any Person (as defined in the Rights Agreement) becomes an
Acquiring Person requires the approval of a majority of the Continuing
Directors (as defined in the Rights Agreement).
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<PAGE> 22
DESCRIPTION OF WARRANTS
The following is a description of certain general terms and provisions of
the Warrants. The particular terms of any series of Warrants will be described
in the applicable Prospectus Supplement. If so indicated in a Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below.
GENERAL
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as Warrants to purchase other types of
securities, including equity securities. Warrants may be issued independently
or together with any Debt Securities and may be attached to or separate from
such Debt Securities. Each series of Warrants will be issued under a separate
warrant agreement (each a "Warrant Agreement") to be entered into between the
Company and a warrant agent ("Warrant Agent"). The Warrant Agent will act
solely as an agent of the Company in connection with the Warrants of such
series and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Warrants. The following sets
forth certain general terms and provisions of the Warrants offered hereby.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the following terms of
the Debt Warrants in respect of which this Prospectus is being delivered: (1)
the title of such Debt Warrants; (2) the aggregate number of such Debt
Warrants; (3) the price or prices at which such Debt Warrants will be issued;
(4) the currency or currencies, including composite currencies, in which the
price of such Debt Warrants may be payable; (5) the designation, aggregate
principal amount and terms of the Debt Securities purchasable upon exercise of
such Debt Warrants; (6) if applicable, the designation and terms of the Debt
Securities with which such Debt Warrants are issued and the number of such Debt
Warrants issued with each such Debt Security; (7) the currency or currencies,
including composite currencies, in which the principal of or any premium or
interest on the Debt Securities purchasable upon exercise of such Debt Warrants
will be payable; (8) if applicable, the date on and after which such Debt
Warrants and the related Debt Securities will be separately transferable; (9)
the price at which and currency or currencies, including composite currencies,
in which the Debt Securities purchasable upon exercise of such Debt Warrants
may be purchased; (10) the date on which the right to exercise such Debt
Warrants shall commence and the date on which such right shall expire; (11) if
applicable, the minimum or maximum amount of such Debt Warrants which may be
exercised at any one time; (12) if applicable, any index or formula used to
determine the amount of payments of principal of and any premium and interest
on Debt Securities purchasable upon exercise of such Debt Warrants; (13)
information with respect to book-entry procedures, if any; (14) if applicable,
a discussion of certain United States Federal income tax considerations; and
(15) any other terms of such Debt Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Debt Warrants.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of which
this Prospectus is being delivered: (1) the title of such Warrants; (2) the
securities (which may include Preferred Stock or Common Stock) and/or amount of
cash consideration for which such Warrants are exercisable; (3) the price or
prices at which such Warrants will be issued; (4) the currency or currencies,
including composite currencies, in which the price of such Warrants may be
payable; (5) if applicable, the designation and terms of the Preferred Stock
with which such Warrants are issued and the number of such Warrants issued with
each share of Preferred Stock or Common Stock; (6) if applicable, the date on
and after which such Warrants and the related Preferred Stock or Common Stock
will be separately transferable; (7) if applicable, any index or formula used to
determine the price or prices at which such other securities and/or cash
consideration will be issued; (8) if applicable, a discussion of certain United
States Federal income tax considerations; and (9) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants.
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<PAGE> 23
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters, through
agents or dealers or directly to other purchasers.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such market prices
or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers in the form of
discounts, concessions or commissions. Underwriters, agents and dealers
participating in the distribution of the Securities may be deemed to be
underwriters within the meaning of the Securities Act.
Pursuant to agreements which may be entered into between the Company and
any underwriters or agents named in the Prospectus Supplement, such
underwriters or agents may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company may issue
Securities to or through underwriters, agents or dealers in connection with the
conversion or redemption of its outstanding securities.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as agents for the Company to solicit
offers by certain institutional investors to purchase Debt Securities or
Preferred Stock from the Company pursuant to contracts providing for payment
and delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
shall in all cases be subject to the approval of the Company. The obligations
of the purchaser under any such contract will not be subject to any conditions
except (i) the investment in the Debt Securities or Preferred Stock by the
institution shall not at the time of delivery be prohibited by the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if a portion of the Debt Securities or Preferred Stock is being sold to
underwriters, the Company shall have sold to such underwriters the Debt
Securities or Preferred Stock not sold for delayed delivery. Underwriters and
such other persons will not have any responsibility in respect of the validity
or performance of such contracts.
All Debt Securities, Preferred Stock and Warrants offered will be a new
issue of securities with no established trading market. Any underwriters to
whom such Debt Securities, Preferred Stock and Warrants are sold by the Company
for public offering and sale may make a market in such Debt Securities,
Preferred Stock and Warrants, but such underwriters will not be obligated to do
so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for any
Debt Securities, Preferred Stock or Warrants.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for the Company
in the ordinary course of business.
The specific terms and manner of sale of the Securities in respect of
which this Prospectus is being delivered are set forth or summarized in the
Prospectus Supplement.
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for the Company
by Davis, Graham & Stubbs LLP Denver, Colorado.
EXPERTS
The Consolidated Financial Statements of the Company included in this
Prospectus to the extent and for the periods indicated in their report have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated
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<PAGE> 24
in their report dated February 29, 1996, with respect thereto, and are include
herein in reliance upon he authority of said firm as experts in giving said
report.
Estimates of historical oil and natural gas reserves of the Company as of
December 31, 1993, 1994 and 1995, appearing or incorporated by reference herein
are based upon engineering studies prepared by the Company and reviewed by the
independent petroleum engineering firm of Williamson Petroleum Consultants,
Inc. Such estimates are included herein in reliance upon the authority of such
firm as experts in such matters.
22
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of the Company.
(Incorporated herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, No. 33-52774, filed October 2,
1992.)
3.2 Third Amended and Restated Bylaws of the Company adopted December 16,
1996. (Incorporated herein by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-4, No. 333-19433, filed January 8,
1997.)
4.1 Form of Indenture dated December 1, 1993, entered into between the
Company and the Trustee. (Incorporated by reference to Exhibit 4.7 to
Amendment No. 3 to the Company's Registration Statement on Form S-3,
No. 33-70354, filed November 23, 1993.)
4.2 Indenture dated November 27, 1996, among the Company, Orion
Acquisition, Inc., HSRTW, Inc., and Harris Trust and Savings Bank as
Trustee. (Incorporated herein by reference to Exhibit 4.2 to the
Company's Registration Statement on Form S-4, No. 333- 19433, filed
January 8, 1997.)
4.3 First Supplemental Indenture dated November 25, 1996 among the Company,
Orion Acquisition, Inc., HSRTW, Inc., and Harris Trust and Savings Bank
as Trustee. (Incorporated herein by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-4, No. 333-19433, filed
January 8, 1997.)
4.4+ Form of Senior Indenture, including form of Senior Debt Security
4.5+ Form of Subordinated Indenture, including form of Subordinated Security
4.6+ Form of Certificate of Designations of Preferred Stock
4.7+ Specimen Stock Certificate with respect to Preferred Stock
4.8+ Specimen Stock Certificate with respect to Common Stock
4.9+ Form of Preferred Stock Warrant Agreement (including form of Preferred
Stock Warrant Certificate)
4.10+ Form of Common Stock Warrant Agreement (including form of Common Stock
Warrant Certificate)
4.11+ Form of Debt Warrant Agreement (including form of Debt Warrant
Certificate)
5.1+ Opinion of Davis, Graham & Stubbs LLP
10.1 Amended Note and Warrant Purchase Agreement dated January 15, 1991,
among NGP, Resolute Resources, Inc., and the Company. (Incorporated by
reference to Exhibit 4.4.1 to the Company's Quarterly Report on Form
10-Q for the quarter ended December 31, 1990, filed February 14, 1991.)
</TABLE>
II-1
<PAGE> 26
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 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.
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.)
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<PAGE> 27
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.)
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. ("Orion"). (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 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.)
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<PAGE> 28
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, 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.)
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<PAGE> 29
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.)
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.)
23.1* Consent of Arthur Andersen LLP.
23.2+ Consent of Williamson Petroleum Consultants Inc.
23.3+ Consent of Davis, Graham & Stubbs LLP (contained in Exhibit 5.1).
25.1+ Statement of Eligibility of Trustee on Form T-1 with respect to the
Debt Securities.
* Filed herewith
+ To be filed by amendment or subsequently incorporated herein
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in this Registration Statement shall
be deemed to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes:
II-5
<PAGE> 30
(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.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the Subordinated Trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
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<PAGE> 31
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 5th day of February, 1997.
HS Resources, Inc.
a Delaware corporation
By: /s/ NICHOLAS J. SUTTON
---------------------------------
Nicholas J. Sutton
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Nicholas J. Sutton, P. Michael Highum and
James E. Duffy, and each of them his true and lawful attorneys-in-fact and
agents with full power and substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including without limitation post-effective amendments and any
amendments pursuant to Rule 462 under the Securities Act) to this Registration
Statement, and to file the same with the Securities and Exchange Commission,
together with any exhibits thereto and other documents therewith, granting unto
said attorneys-in-fact and agents and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary and
advisable to enable the Registrant to comply with the Securities Act and any
rules, regulations and requirements of the Securities and Exchange Commission
in respect thereof to be done in and about the premises, as fully to all
intents and purposes and he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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.
February 5, 1997 By: /s/ NICHOLAS J. SUTTON
Date -----------------------------------
Nicholas J. Sutton
Chairman of the Board and Chief
Executive Officer
(Principal Executive Officer)
February 5, 1997 By: /s/ P. MICHAEL HIGHUM
Date -----------------------------------
P. Michael Highum
President and Director
(Principal Executive Officer)
February 5, 1997 By: /s/ JAMES E. DUFFY
Date ------------------------------------
James E. Duffy
Vice President - Finance and
Chief Financial Officer and Director
(Principal Financial Officer)
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<PAGE> 32
February 5, 1997 By: /s/ ANNETTE M. MONTOYA
Date ------------------------------------
Annette M. Montoya
Vice President - Accounting and
Controller (Principal
Accounting Officer)
February 5, 1997 By: /s/ KENNETH A. HERSH
Date ------------------------------------
Kenneth A. Hersh
Director
By:
------------------------------------
Michael J. Savage
Director
February 5, 1997 By: /s/ PHILIP B. SMITH
Date ------------------------------------
Philip B. Smith
Director
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<PAGE> 33
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
<S> <C> <C>
23.1 Consent of Arthur Andersen LLP.
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report (and to all references to our Firm) included in or made a part of this
Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Denver, Colorado,
February 5, 1997.
