As filed with the Securities and Exchange Commission on August
26, 1994
Registration No. 33--
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
- ------------------
TOSCO CORPORATION
(Exact name of registrant as specified in its charter)
Nevada
95-1865716
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
72 Cummings Point Road
Stamford, Connecticut 06902
(203) 977-1000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Martin H. Neidell, Esq.
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004
(212) 806-5400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Mark Zvonkovic, Esq.
Andrews & Kurth L.L.P.
425 Lexington Avenue
New York, New York 10017
(212) 850-2800
Approximate date of commencement of proposed sale to public:
As soon as practicable after the effectiveness 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, other than
securities being offered in connection with dividend or interest
reinvestment plans, check the following box. /X/
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Shares Amount to be Proposed Maximum Aggregate Proposed Maximum Amount of
to be Registered Registered Price Per Share (1) Aggregate Offering Registration Fee
Price (1)
<S> <C> <C> <C> <C>
Common Stock,$.75 par value 4,791,174 $32.50 $155,713,155 $53,695
shares(2)
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the
Securities Act of 1933 on the basis of the average of the high and low prices of the Common Stock of the
Registrant on the New York Stock Exchange on August 23, 1994.
(2) Represents the maximum number of shares of Common Stock issuable upon conversion of 2,299,800 shares of
Registrant's $4.375 Series F Cumulative Convertible Preferred Stock, par value $1.00 per share.
</TABLE>
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.
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 such State.
PROSPECTUS (Subject to Completion)
Issued August 26, 1994
4,791,174 Shares
TOSCO CORPORATION
COMMON STOCK
On August 26, 1994, Tosco Corporation, a Nevada
corporation (the "Company" or "Tosco"), called for
redemption on September 26, 1994 (the "Redemption Date") all
outstanding shares of its $4.375 Series F
Cumulative Convertible Preferred Stock, par value $1.00 per share
(the "Series F Preferred Stock"), pursuant to a
Notice of Redemption mailed to holders of record of shares of
Series F Preferred Stock. The redemption price of
each share of Series F Preferred Stock is $53.0625 plus an amount
per share in accumulated and unpaid dividends
thereon through the Redemption Date of $.486 for a total per
share payment of $53.5485 (the "Redemption
Price").
Each share of Series F Preferred Stock is convertible
into shares of the Company's Common Stock, par
value $.75 per share (the "Common Stock"), at a conversion price
of $24.00 per share (equivalent to a conversion
rate of 2.0833 shares of Common Stock for each share of Series F
Preferred Stock). The conversion right expires
at the close of business at the main offices of the Company's
conversion agent (5:00 p.m., Los Angeles, California
time) on the Redemption Date. Thereafter, no further conversion
of Series F Preferred Stock may be made.
From and after the Redemption Date, holders of the Series F
Preferred Stock will be entitled only to receive the
Redemption Price, without any interest thereon, and dividends on
the Series F Preferred Stock will cease to
accumulate. As long as the market price of the Common Stock is
greater than $25.70 per share, a holder of Series
F Preferred Stock who converts will receive Common Stock, plus
cash in lieu of any fractional share (but without
taking into account the dividend of $.16 per share of Common
Stock payable to stockholders of record on
September 20, 1994), with a market value greater than the amount
of cash the holder would otherwise be entitled
to receive upon redemption. The last reported sale price of the
Common Stock on the New York Stock Exchange
Composite Tape on August 24, 1994 was $32.25 per share. See
"Price Range of Common Stock and Dividends."
The Common Stock and the Series F Preferred Stock are
listed on the New York Stock Exchange and the
Pacific Stock Exchange.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The Company has made arrangements with Morgan Stanley &
Co. Incorporated and Donaldson, Lufkin &
Jenrette Securities Corporation (the "Standby Purchasers")
pursuant to which the Standby Purchasers have agreed,
severally and not jointly, subject to certain conditions, to
purchase at a price of $25.70 per share of Common Stock
(equivalent to $53.5485 per share of Series F Preferred Stock),
such number of shares of Common Stock in excess
of 785,224 shares of Common Stock, as would have been issuable
upon the conversion of any shares of Series F
Preferred Stock which are not duly surrendered for conversion
prior to the Redemption Date. The proceeds of
such sales will be utilized by the Company to finance the
redemption of any shares of Series F Preferred Stock not
so converted prior to the Redemption Date. The Company has
agreed to pay the redemption price for the first
376,914 shares of Series F Preferred Stock (having an aggregate
redemption price of $20.0 million and convertible
into 785,224 shares of Common Stock) surrendered for redemption
or not duly surrendered for conversion. The
Standby Purchasers may also purchase Series F Preferred Stock in
the open market or otherwise prior to the
Redemption Date and have agreed to surrender for conversion into
Common Stock prior to the Redemption Date
all Series F Preferred Stock so purchased by them and all Series
F Preferred Stock otherwise beneficially owned by
them. See "Standby Arrangements" for a description of the
Standby Purchasers' compensation and indemnification
arrangements with the Company and for information concerning the
method of offering and sale of shares of
Common Stock by the Standby Purchasers.
This Prospectus covers the issuance of a maximum of
4,791,174 shares of Common Stock which may be
issued upon conversion of 2,299,800 shares of Series F Preferred
Stock and the resale of shares of Common Stock acquired by the
Standby Purchasers. See "Standby Arrangements."
Morgan Stanley & Co.
Donaldson, Lufkin & Jenrette
INCORPORATED Securities Corporation
August 26, 1994
IN CONNECTION WITH THIS OFFERING, THE STANDBY PURCHASERS
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICE OF THE COMMON STOCK OR THE SERIES F PREFERRED
STOCK AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK
STOCK EXCHANGE, THE PACIFIC STOCK EXCHANGE, IN THE OVER-THE-
COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
No person is authorized in connection with any offering
made hereby to give any information or to make any
representations other than as contained or incorporated by
reference in this Prospectus, and, if given or made, such
information or representations must not be relied upon as having
been authorized by the Company or by any Standby
Purchaser. This Prospectus does not constitute an offer to sell
or the solicitation of an offer to buy any of the securities
offered hereby to any person in any jurisdiction in which it is
unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that the
information contained herein is correct as of any date subsequent
to the date hereof.
_______________________________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company
with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993;
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994;
3. The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1994;
4. The Company's Current Report on Form 8-K, dated
December 28, 1993; and
5. The Company's Registration Statement on Form 8-A,
dated June 29, 1989, with respect to the Company's Common Stock.
All documents filed by the Company with the Securities
and Exchange Commission (the "Commission") pursuant
to Sections 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 shares hereunder shall be deemed
to be incorporated by reference herein and to be part
hereof from the date of filing of such reports and 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 the purposes of
this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is
incorporated or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part
of this Prospectus.
The Company will provide a copy of any or all of such
documents (exclusive of exhibits unless such exhibits are
specifically incorporated by reference therein), without charge,
to each person to whom this Prospectus is delivered,
upon written or oral request to Investor Relations, Tosco
Corporation, 72 Cummings Point Road, Stamford,
Connecticut 06902 (telephone (203) 977-1000).
THE COMPANY
Tosco, through divisions and subsidiaries, is a large
independent refiner, wholesaler, and retail marketer
of petroleum products, principally on the East and West Coasts of
the United States. Tosco has extensive
distribution facilities and also engages in related commercial
activities throughout the United States and
internationally. Tosco, through three major facilities,
currently processes approximately 500,000 barrels per
day of crude oil and other feedstocks into various petroleum
products, consisting chiefly of light transportation
fuels (gasoline, diesel and jet fuel) and heating oil.
During 1993, Tosco considerably expanded and focused its
efforts on its core businesses with the
acquisition of the Bayway Refinery from Exxon Corporation and the
acquisition of British Petroleum's
petroleum refining and retail marketing assets in the Pacific
Northwest. In 1994, Tosco acquired additional
retail marketing assets in Northern California from British
Petroleum. Tosco has the exclusive license to
market under the BP (British Petroleum) brand for at least twelve
years in nine western states, including
Washington, Oregon and California. Tosco markets in excess of
60,000 barrels per day of petroleum fuels
under the BP brand through a system of approximately 870 retail
gas stations. Tosco also exited the phosphate
fertilizer business with the sale by its subsidiary, Seminole
Fertilizer Corporation, of the bulk of its operating
assets in 1993.
Tosco also has interests in oil shale properties in
Colorado and Utah.
Tosco's earnings, like those of other independent
refiners, are volatile and depend principally on two factors,
the operating efficiency of its refineries and refining
margins (the difference between the sales value of refined
products produced for sale and raw material costs). Tosco
schedules periodic maintenance of major processing units
for significant non-routine repairs and maintenance as the
units reach the end of their normal operating cycles. Refining
operating performance and earnings are lowered, and deferred
maintenance expenditures increased, during such periods.
The scheduled turnaround of the fluid coker at Tosco's Avon
refinery, which occurs approximately every three years, was
completed on time and under budget in the second quarter of 1994.
The fluid catalytic cracking unit, the largest in the world, at
Tosco's recently acquired Bayway refinery, is scheduled for
maintenance in the third quarter of 1994 and will negatively
impact the result of operations. Tosco is not able to predict
the level or trend of refining margins. The relatively weak
margins experienced at Tosco's West Coast refineries during the
second quarter of this year have continued into the third
quarter. The effect of weak West Coast margins could have a
greater than normal impact on Tosco's third quarter earnings if
they continue during the scheduled maintenance period at Bayway
when its sales will be significantly reduced.
Tosco was incorporated under the laws of the State of
Nevada in 1955. Its principal executive offices
are located at 72 Cummings Point Road, Stamford, Connecticut
06902 and its telephone number is (203) 977-
1000.
USE OF PROCEEDS
The net proceeds from the sale of any Common Stock to the
Standby Purchasers pursuant to the
standby arrangements described herein will be used to effect the
redemption of any shares of Series F
Preferred Stock not tendered for conversion. See "Standby
Arrangements." There will be no proceeds to the
Company from the issuance of Common Stock upon the conversion of
shares of Series F Preferred Stock by
holders thereof.
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Common Stock is listed on the New York Stock
Exchange (the "NYSE") and the Pacific Stock
Exchange under the symbol "TOS". The following table sets forth
for the periods indicated the high and low
closing sales prices per share of the Common Stock as reported on
the NYSE Composite Tape, together with
the dividends declared by the Company per share of Common Stock.
Common Stock Price Cash
High Low Dividends
Declared
Per Share
Year ended December 31, 1992:
First Quarter $30 $25-5/8 $.15
Second Quarter 30-3/8 22-1/2 .15
Third Quarter 23-3/4 18-3/8 .15
Fourth Quarter 21-1/8 16-1/2 .15
Year ended December 31, 1993:
First Quarter 24-3/8 19 .15
Second Quarter 25-7/8 22-3/8 .15
Third Quarter 26-5/8 22 .15
Fourth Quarter 31-1/2 26-1/2 .15
Year ended December 31, 1994:
First Quarter 34 29 .15
Second Quarter 32-1/4 28-1/8 .15
Third Quarter
(through August 24, 1994) 32-5/8 29-7/8 .16
A recent reported last sale price per share for the
Common Stock on the NYSE is set forth on the cover page of this
Prospectus.
The Company has paid a regular quarterly cash dividend
of $.15 per share on its Common Stock since the third quarter of
1989. Commencing with the third quarter of 1994, the Company has
increased its quarterly cash dividend to $.16 per share. Holders
of Common Stock are entitled to receive dividends from
funds legally available therefor, when, as and if declared by the
Board of Directors of the Company, subject
to the prior rights of holders of any shares of preferred stock
of the Company. The payment of dividends in
the future is subject to the Company's earnings and financial
condition and such other factors as the
Company's Board of Directors may deem relevant.
Under the Company's Credit Agreement, as long as no
event of default has occurred, the Company
is permitted to declare and pay dividends in an aggregate amount
not to exceed the greater of $31 million per
year, plus specific amounts for new equity issued, or 50% of net
income for the fiscal year, without restriction.
The Company may pay dividends in excess of such amounts, and make
other restricted payments out of free
cash, as defined by the Credit Agreement. At June 30, 1994, the
aggregate amount permitted under the Credit
Agreement for dividends and other restricted payments was in
excess of $250 million.
CAPITALIZATION
The following table sets forth the unaudited
consolidated capitalization of the Company and its
subsidiaries at June 30, 1994, and as adjusted to reflect the
conversion of all of the outstanding shares of Series
F Preferred Stock into the maximum number of shares of Common
Stock issuable upon conversion pursuant
to the Company's call for redemption of the Series F Preferred
Stock. The following table should be read in
conjunction with the Consolidated Financial Statements and
related notes incorporated by reference in this
Prospectus.
<TABLE>
June 30, 1994
Actual As Adjusted
(in thousands)
<S> <C> <C>
Cash, cash equivalents, short-term investments
and deposits(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . .$64,855$ 63,755
Long-term debt--collateralized:
Revolving Credit Facilities. . . . . . . . . . . . . . . . . . . . . . .$154,000 $154,000
Mortgage Bonds guaranteed on a secured basis
by the Bayway Refining Company . . . . . . . . . . . . . . . . . . . .150,000 150,000
Mortgage Bonds secured by the Avon Refinery. . . . . . . . . . . . . . .300,000 300,000
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,832 5,832
Long-term debt--uncollateralized:
Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,447 1,447
Total debt, including current portion(b) . . . . . . . . . . . . . . 611,279 611,279
Less current portion . . . . . . . . . . . . . . . . . . . . . . . . . (783) (783)
Total long-term debt . . . . . . . . . . . . . . . . . . . . . . . 610,496 610,496
Shareholders' equity:
Series F Preferred Stock--$1.00 par value--
Authorized 2,500,000 shares; issued and
outstanding 2,300,000 shares (liquidation preference of
$115,000,000); none (as adjusted)(c) . . . . . . . . . . . . . . . 111,197 --
Common shareholders' equity:
Common Stock--$.75 par value--Authorized
50,000,000 shares; issued 34,814,491 shares
(actual); 39,606,081 (as adjusted)(c). . . . . . . . . . . . . . . . . 26,114 29,708
Capital in excess of par value(c). . . . . . . . . . . . . . . . . . 533,579 640,082
Retained earnings (deficit). . . . . . . . . . . . . . . . . . . . (42,904) (42,904)
Less reductions from capital, primarily
common stock held in treasury, at cost
(2,549,041 shares) . . . . . . . . . . . . . . . . . . . . . . . . (68,880) (68,880)
Total shareholders' equity . . . . . . . . . . . . . . . . . . . 559,106 558,006
Total capitalization . . . . . . . . . . . . . . . . . . . $1,169,602 $1,168,502
Total capitalization, cash, cash equivalents,
short-term investments and deposits. . . . . . . . . . . . . . $1,234,457 $1,232,257
</TABLE>
_________________________
(a) Includes $13 million which is restricted cash held by a
wholly-owned subsidiary of the Company.
(b) At June 30, 1994, the Credit Agreement provided for an
extension of up to $450 million in credit. At that date, the
Company had $154 million of cash borrowings and outstanding
letters of credit of approximately $86 million under such
facility.
(c) Reflects the conversion of 2,299,800 shares of Series F
Preferred Stock into 4,791,174 shares of the Company's Common
Stock at a conversion price of $24.00 per share and the payment
of certain fees and expenses pursuant to the Company's call for
redemption of the Series F Preferred Stock. Does not reflect the
conversion of 200 shares of Series F Preferred Stock into 416
shares of Common Stock during July 1994. Such conversion is
reflected in the "As Adjusted" column. Does not reflect
1,970,766 shares of Common Stock reserved for issuance upon
exercise of presently outstanding stock options.
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated
financial data of the Company for each of the five years in the
period ended December 31, 1993 and for the six-month periods
ended June 30, 1994 and 1993. The selected consolidated
financial data for the interim
periods have been derived from the unaudited interim financial
statements and, in the opinion of management, include all
adjustments (consisting of normal recurring accruals) necessary
for a fair presentation. The selected consolidated financial
data for the interim periods
are not necessarily indicative of the results to be achieved for
the full years. This table should be read in conjunction with
the Company's Consolidated Financial Statements and related notes
incorporated by reference in this Prospectus.
<TABLE>
<CAPTION>
Year Ended December 31, (a) Six Months Ended June 30,(a)
(Unaudited)
1989 1990 1991 1992 1993 1993 1994
(Millions of dollars except per share and ratio data)
<S> <C> <C> <C> <C> <C> <C> <C>
Results of Operations
Sales $1,308.7 $1,854.6 $1,608.7 $1,861.0 $3,559.2 $1,372.4 $2,895.4
Gross profit on sales 91.7 248.3 121.2 132.7 251.8 105.9 150.5
Inventory writedown 17.7
Environmental cost accrual 2.0 4.0 25.0
Operating contribution 91.7 246.3 117.2 107.7 234.1 105.9 150.5
Selling, general and
administrative expenses 23.9 48.1 30.2 38.7 58.2 23.7 41.6
Interest expense, net 26.4 24.3 16.5 18.0 44.1 20.2 25.5
Pre-tax income 41.4 173.9 70.5 51.0 131.8 62.0 83.4
Provision (credit) for income
taxes (b) (7.8) 19.6 2.4 20.8 51.2 25.1 30.1
Income from continuing
operations before other
items 49.2 154.3 68.1 30.2 80.6 36.9 53.3
Discontinued operations, net
of income taxes:
Income (loss) from
operations (8.7) (31.1) 7.3 (15.9)
Estimated loss
on disposal (105.0)
Cumulative effect of
accounting changes 16.2
Net income (loss) $ 40.5 $ 123.2 $ 75.4 ($ 74.5) $ 80.6 $ 36.9 $ 53.3
Income (loss) per common
and common equivalent share
Primary:
From continuing operations $ 2.36 $ 6.81 $ 2.15 $ .68 $ 2.38 $ 1.09 $ 1.48
From discontinued
operations (.65) (1.44) .24 (4.08)
From cumulative effect of
accounting changes .55
Net income (loss) $ 1.71 $ 5.37 $ 2.39 ($ 2.85) $ 2.38 $ 1.09 $ 1.48
Fully-diluted:
From continuing
operations $ 1.51 $ 4.94 $ 2.12 $ .68 $ 2.33 $ 1.08 $ 1.42
From discontinued
operations (.27) (1.00) .23 (4.08)
From cumulative effect of
accounting changes .55
Net income (loss) $ 1.24 $ 3.94 $ 2.35 ( $2.85) $ 2.33 $ 1.08 $ 1.42
Balance Sheet Data (at end of
period)
Total assets $ 691.4 $ 678.9 $ 871.0 $ 952.9 $1,492.9 $1,301.7 $1,659.8
Long-term debt $ 308.8 $ 202.7 $ 211.9 $ 356.8 $ 603.3 506.9 610.5
Preferred stock 153.8 111.2 111.2 111.2 111.2 111.2
Common shareholders'
equity 115.8 333.3 385.6 270.2 410.4 292.8 447.9
Total capitalization $ 578.4 $ 536.0 $ 708.7 $ 738.2 $1,124.9 $ 910.9 $1,169.6
Other Information
Ratio of long-term debt to
total capitalization .53 .38 .30 .48 .54 .56 .52
Current ratio 1.9 1.6 1.6 2.6 2.2 1.8 1.9
Book value per share $ 7.00 $ 11.15 $ 12.78 $ 9.10 $12.60 $ 9.87 $ 13.76
Cash dividends per share $ .30 $ .60 $ .60 $ .60 $ .60 $ .30 $ .30
</TABLE>
(a) Reflects Seminole Fertilizer Corporation, acquired July 1,
1989, as a discontinued operation.
(b) Reflects the provision for income taxes for 1994, 1993 and
1992 at regular tax rates pursuant to the provisions of SFAS No.
109 adopted January 1, 1992.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of
50 million shares of Common Stock, $.75 par
value per share, and 12 million shares of preferred stock, $1.00
par value (the "Preferred Stock"). As of June
30, 1994 there were 32,265,450 shares of Common Stock (net of
2,549,041 treasury shares) and 2,300,000
shares of Series F Preferred Stock outstanding. None of the
Series F Preferred Stock will be outstanding upon
completion of the redemption thereof on the Redemption Date.
Common Stock
The holders of the Common Stock are entitled to one
vote for each share held and have the sole right
and power to vote on all matters on which a vote of stockholders
is taken, except as otherwise provided by
statute and subject to voting rights of any holders of Preferred
Stock. Subject to the rights of any holders of
Preferred Stock, the holders of shares of Common Stock are
entitled to receive dividends when, as and if
declared by the Board of Directors, out of funds legally
available therefor and to share pro rata in any
distribution to stockholders. Upon liquidation, dissolution, or
winding up of the Company, subject to the
rights of the holders of any shares of Preferred Stock, the
holders of Common Stock are entitled to receive
the net assets of the Company in proportion to the respective
number of shares held by them. The holders
of Common Stock do not have any preemptive right to subscribe for
or purchase any shares of any class of
stock. The outstanding shares of Common Stock are not subject to
further call or redemption and are fully
paid and nonassessable.
The transfer agent and registrar for the Common Stock
is First Interstate Bank of California, Los
Angeles, California.
Preferred Stock
The Company is authorized to issue 12 million shares of
Preferred Stock. Such shares may be issued
from time to time at the discretion of the Board of Directors,
without stockholder approval. The Board of
Directors is authorized to issue such shares in different series
and with respect to each series to determine the
dividend rate, the redemption provisions, conversion provisions,
liquidation preferences, and such other rights
and privileges not in conflict with the Restated Articles of
Incorporation and any qualifications, limitations
or restrictions on such shares.
STANDBY ARRANGEMENTS
The Company has entered into an agreement (the "Standby
Agreement") with Morgan Stanley & Co.
Incorporated and Donaldson, Lufkin & Jenrette Securities
Corporation (the "Standby Purchasers") pursuant
to which the Standby Purchasers have agreed, severally and not
jointly, subject to certain conditions, to
purchase from the Company at a price of $25.70 per share of
Common Stock (equivalent to $53.5485 per share
of Series F Preferred Stock), such number of shares of Common
Stock in excess of 785,224 shares of Common
Stock, as would have been issued upon conversion of any shares of
the Series F Preferred Stock not duly
surrendered for conversion prior to the Redemption Date. Each of
the Standby Purchasers has agreed to
purchase 50% of such shares. The Company has agreed to pay the
Redemption Price for the first 376,914
shares of Series F Preferred Stock (having an aggregate
redemption price of $20 million and convertible into
785,224 shares of Common Stock) surrendered for redemption or not
duly surrendered for conversion. The
Standby Purchasers may also purchase Series F Preferred Stock in
the open market or otherwise prior to the
Redemption Date, and have agreed to surrender for conversion into
Common Stock all Series F Preferred
Stock so purchased by them prior to the Redemption Date.
The Company has agreed to pay compensation to the
Standby Purchasers for the commitments
undertaken by them under the Standby Agreement in the amount of
(a) $800,000 as a standby fee and (b) in
the event the Standby Purchasers acquire any shares of Common
Stock from the Company, $.80 per share for
all shares of Common Stock acquired. Thus, the minimum
compensation to be received by the Standby
Purchasers would be $800,000 if all outstanding shares of Series
F Preferred Stock are converted by the holders
prior to the Redemption Date, and the maximum compensation would
be $4,004,760 if none of the
outstanding shares of Series F Preferred Stock are so converted.
In addition, the Company has agreed to
reimburse the Standby Purchasers for their reasonable
out-of-pocket expenses, including attorneys' fees.
The Standby Purchasers may offer the shares of Common
Stock acquired by them through purchase
or conversion to the public, on the New York Stock Exchange, in
the over-the-counter market or otherwise,
at prices determined from time to time by the Standby Purchasers.
It is intended that such prices will not be
increased more frequently than once in any calendar day and will
not exceed the greater of the last reported
sale or current asked price of the Common Stock on the New York
Stock Exchange, plus applicable dealers'
commissions. In effecting such transactions, the Standby
Purchasers may realize profits and losses independent
of the compensation referred to above. The Standby Purchasers
also may make sales to dealers at prices which
represent concessions from the prices at which the shares of
Common Stock are then being offered to the
public. The amount of such concessions is to be determined from
time to time by the Standby Purchasers.
The Standby Purchasers' profit, if any, upon the resale
of shares of Common Stock purchased or
acquired by them may be deemed to be underwriting compensation
within the meaning of the Securities Act
of 1933, as amended (the "Securities Act").
Pursuant to the Standby Agreement, the Company has
agreed that, subject to certain exceptions, it
will not offer, sell, contract to sell or otherwise dispose of
any shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock, for
a period of 120 days after the date of this
Prospectus.
The Company has agreed to indemnify the Standby
Purchasers against certain liabilities under the
Securities Act.
Morgan Stanley & Co. Incorporated acted as an
underwriter in connection with the Company's public
offering, in November 1993, of 2,600,000 shares of its Common
Stock and received customary compensation
in connection therewith.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Exchange Act and, in accordance
therewith files reports, proxy statements and other information
with the Commission. Reports, proxy
statements and other information filed by the Company may be
inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, as
well as the regional offices of the Commission at Seven World
Trade Center (13th Floor), New York, New
York 10048, and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-
2511. Copies of such information can be obtained by mail from
the Public Reference Section of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at its public reference
facilities in New York, New York and Chicago, Illinois, at
prescribed rates. Such materials can also be
inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005
and the Pacific Stock Exchange, Inc., 301 Pine Street, San
Francisco, California 94104, on which exchanges
the Company's Common Stock is listed.
The Company has filed with the Commission a
Registration Statement on Form S-3 (the "Registration
Statement," which term shall include all amendments, exhibits and
schedules thereto) under the Securities Act,
with respect to the securities offered hereby. This Prospectus
does not contain all of the information set forth
in the Registration Statement, certain parts of which have been
omitted in accordance with the rules and
regulations of the Commission. For further information with
respect to the Company and the securities
offered hereby, reference is made to the Registration Statement,
including the exhibits, annexes and schedules
filed as a part thereof and otherwise incorporated therein.
Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to
are not necessarily complete. With respect
to each such contract, agreement or other document filed as an
exhibit to the Registration Statement,
reference is made to such exhibit for a more complete description
of the matter involved, and each such
statement shall be deemed qualified in its entirety by such
reference. Copies of the Registration Statement
and the exhibits may be inspected, without charge, at the offices
of the Commission, or obtained at prescribed
rates from the Public Reference Section of the Commission at the
address set forth above.
LEGAL MATTERS
Certain legal matters with respect to the validity of
the Common Stock offered hereby will be passed
upon for the Company by Stroock & Stroock & Lavan of New York,
New York. Certain legal matters with
respect to the validity of the Common Stock offered hereby will
be passed upon for the Standby Purchasers
by Andrews & Kurth L.L.P., New York, New York.
EXPERTS
The consolidated balance sheets of the Company as of
December 31, 1993 and 1992, and the
consolidated statements of income, common shareholders' equity
and cash flows for each of the three years
in the period ended December 31, 1993, incorporated by reference
in this Prospectus, have been incorporated
herein in reliance on the report of Coopers & Lybrand,
independent accountants, given on the authority of
that firm as experts in accounting and auditing.
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth the estimated fees and expenses
in connection with the issuance of the
Registrant's securities being registered hereby, all of which
will be borne by the Registrant:
Securities and Exchange Commission registration fee $ 53,695
New York and Pacific Stock Exchange Listing fees 33,150
Blue Sky fees and expenses 10,000
Printing expenses 50,000
Legal fees and expenses 150,000
Accountant's fees and expenses 25,000
Transfer, Conversion and Redemption Agent's fees 10,000
Miscellaneous expenses 3,155
Total $335,000
Item 15. Indemnification of Directors and Officers.
The Restated Articles of Incorporation of the Registrant
provide that the Registrant shall, to the
fullest extent provided by the Nevada General Corporation Law
(the "Nevada GCL"), indemnify any and all
persons whom it shall have the power to indemnify under the
Nevada GCL from and against any and all of
the expenses, liabilities or other matters referred to in or
covered by the Nevada GCL. The indemnification
provided for in the Registrant's Restated Articles of
Incorporation shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any
By-Law, agreement, vote of stockholders or
disinterested Directors, statute, rule or by common law or
otherwise.
Reference is made to the By-Laws of the Registrant which
provide certain indemnification rights to
the Directors and officers of the Registrant.
The Registrant continues to maintain Directors and
officers liability insurance policies. The Registrant
presently carries $13,200,000 of such coverage under a policy
maintained with a wholly-owned subsidiary of
the Registrant engaged in the insurance business in Bermuda. In
addition, the Registrant carries $50,000,000
of Directors and officers liability coverage under policies
maintained with private unaffiliated insurance
carriers. The insurance subsidiary has deposited in trust the
insurance premiums received by it from the
Registrant which will be used to pay losses which are covered by
the insurance policy issued by such subsidiary.
The Restated Articles of Incorporation of the Registrant
include a provision which eliminates the
liability of Directors and officers to the Registrant or its
stockholders for damages for breaches of their
fiduciary duty, except for liability (i) for acts or omissions
which involve intentional misconduct, fraud or a
knowing violation of law; or (ii) for the payment of dividends in
violation of the provisions of the Nevada
GCL which provide that directors who, willfully or with gross
negligence, permit the payment of a dividend
or the making of a distribution other than as permitted by the
Nevada GCL are jointly and severally liable
for the lesser of the amount of the dividend or the loss
sustained by reason of the dividend or other
distribution to stockholders.
Under Nevada law, absent the foregoing provision,
Directors and officers would be liable for negligence
or misconduct in the performance of their duties to the
Registrant. The provision absolves Directors and
officers of liability for negligence, including gross negligence,
in the performance of their duties. They will
remain liable for acts or omissions which involve intentional
misconduct, fraud, a knowing violation of law
or a violation of the provision referred to above concerning
payment of dividends. The provision has no effect
on the availability of equitable remedies such as injunction or
rescission upon breach of such duty. In
addition, the Registrant understands that the Commission takes
the position that the provision will not affect
the liability of such persons under the federal securities laws.
The Commission's position appears to be that
(1) the Nevada law authorizing this provision by its terms only
permits the elimination or limitation for breach
of fiduciary duty as a director or officer, which is a state law
liability and not one imposed by the federal
securities laws, and (2) the federal securities laws preempt
attempts by the states to limit liability for violations
of such laws. However, these issues have not been litigated and
are unresolved at the present time. The
Nevada law authorizing this provision does not state whether
charter amendments adopted pursuant thereto
will apply prospectively only or whether they will also apply to
acts or omissions which are alleged to have
occurred prior to their adoption and the Nevada courts have not
addressed such issue. In the event that such
amendments are determined by the Nevada courts to apply
retroactively, the Registrant intends the provision
to have such retroactive application.
Registrant has entered into indemnification agreements
with its Directors which provide them with
certain indemnification rights.
Reference is made to Article VI of the Standby
Agreement, included as Exhibit 1 hereto, which
provides certain indemnification rights to the Standby
Purchasers.
Item 16. Exhibits.
Exhibit
Number Description of Exhibits
(a) Exhibits.
1 Form of Standby Agreement.
4.1 Form of Indenture between Registrant and IBJ Schroder
and Trust Company, as Trustee, relating to 9% Series A First
Mortgage Bonds due March 15, 1997 and 9-5/8% Series B First
Mortgage Bonds due March 15, 2002. Incorporated by reference to
Exhibit 4.1 to Registration Statement filed by Registrant on Form
S-3 dated March 4, 1992.
4.2 Form of Indenture among Registrant, Bayway Refining
Company and the First National Bank of Boston, as Trustee,
relating to 8-1/4% First Mortgage Bonds due 2003. Incorporated
by reference to Exhibit 4.1 to Registration Statement filed by
Registrant on Form S-4 dated April 29, 1993.
5 Opinion of Stroock & Stroock & Lavan.
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Stroock & Stroock & Lavan (contained in
Exhibit 5).
24 Power of Attorney (included on the signature page).
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in
which offers or sales of the registered securities 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 this registration statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (i) and (ii) shall 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.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by
means of a post-effective amendment any of the
securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining
any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section
13(a) or 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
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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 and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant
of expenses 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 and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the
City of Stamford, State of Connecticut, on August 24, 1994.
TOSCO CORPORATION
(Registrant)
By: /s/ Thomas D. O'Malley
Thomas D. O'Malley
Chairman of the Board of
Directors, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below
constitutes and appoints Thomas D. O'Malley, Jefferson F. Allen
and Wilkes McClave, and each of them, his
true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution for him and in
his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective
amendments) of and supplements to this Registration Statement and
to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto
such attorneys-in-fact and agents and each of them full power and
authority to do and perform each and every
act and thing requisite and necessary to be done in and about the
premises, to all intents and purposes and
as fully as they might or could do in person, hereby ratifying
and confirming all that such attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been
signed below by the following persons in the capacities and on
the dates indicated.
Signature Title Date
/s/ Thomas D. O'Malley Chairman of the Board, August 24, 1994
Thomas D. O'Malley President and Chief Executive
Officer (Principal
Executive Officer)
/s/ Jefferson F. Allen Principal Financial August 24, 1994
Jefferson F. Allen Officer, Executive Vice
President and Director
/s/ Robert I. Santo
Robert I. Santo Principal Accounting Officer August 24, 1994
/s/ Joseph B. Carr
Joseph B. Carr Director August 24, 1994
/s/ Houston I. Flournoy
Houston I. Flournoy Director August 24, 1994
/s/ Clarence G. Frame
Clarence G. Frame Director August 24, 1994
/s/ Edmund A. Hajim
Edmund A. Hajim Director August 24, 1994
/s/ Joseph P. Ingrassia
Joseph P. Ingrassia Director August 24, 1994
/s/ Charles L. Luellen
Charles L. Luellen Director August 24, 1994
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits Page
1 Form of Standby Agreement.
4.1 Form of Indenture between Registrant and IBJ
Schroder and Trust Company, as Trustee, relating
to 9% Series A First Mortgage Bonds due
March 15, 1997 and 9-5/8% Series B First Mortgage
Bonds due March 15, 2002. Incorporated by reference
to Exhibit 4.1 to Registration
Statement filed by Registrant on Form S-3 dated
March 4, 1992.
4.2 Form of Indenture among Registrant, Bayway Refining
Company and the First National Bank of Boston, as
Trustee, relating to 8-1/4% First
Mortgage Bonds due 2003. Incorporated by reference
to Exhibit 4.1 to Registration Statement filed by
Registrant on Form S-4 dated April 29, 1993.
5 Opinion of Stroock & Stroock & Lavan.
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Stroock & Stroock & Lavan (contained in
Exhibit 5).
24 Power of Attorney (included on the signature page).
EXHIBIT 1
TOSCO CORPORATION
$4.375 Series F
Cumulative Convertible
Preferred Stock
STANDBY AGREEMENT
August 26, 1994
August 26, 1994
Morgan Stanley & Co.
Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs and Madames:
Tosco Corporation, a Nevada corporation (the
"Company"), has issued and outstanding an
aggregate of 2,299,800 shares of its $4.375 Series F Cumulative
Convertible Preferred Stock, $1.00 par value per
share (the "Preferred Stock"). The Company proposes to redeem on
September 26, 1994 (the "Redemption
Date") all the outstanding shares of Preferred Stock (the
"Preferred Shares") pursuant to a notice of
redemption, dated August 26, 1994. The Preferred Shares will be
redeemed at the redemption price of $53.5485
per share, which consists of $53.0625 plus accumulated dividends
from August 16, 1994 through the Redemption Date
of $.486. The Preferred Shares are convertible into shares of
Common Stock, $.75 par value per share (the
"Common Stock"), at a conversion price of $24.00 per share
(equivalent to 2.0833 shares of Common Stock
per share of Preferred Stock). The right to convert the
Preferred Stock into shares of Common Stock will
terminate at the close of business (8:00 p.m. New York City time)
on the Redemption Date (the "Conversion
Expiration Time").
The Company desires to make arrangements with you
(collectively, the "Purchasers," and each
individually, a "Purchaser"), pursuant to which you will purchase
authorized but unissued shares of Common
Stock which would have been issuable upon conversion of those
shares of Preferred Stock in excess of 376,914
shares of Preferred Stock (having a total redemption price of $20
million and convertible into 785,224 shares
of Common Stock) which are not duly surrendered for conversion
prior to the Conversion Expiration Time, for
a purchase price equal to $25.70 per share of Common Stock (the
"Purchase Price").
The Company has prepared and filed with the
Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement of Form
S-3 relating to 4,791,174 shares of Common Stock (the "Common
Shares") issuable by the Company upon
conversion of the Preferred Stock and in accordance with this
Agreement. The Company has also filed such
amendments thereto, if any, as may have been required to the date
hereof and will file, if required, on or prior
to the effective date of the registration statement one or more
additional amendments thereto. As used in this
Agreement, the term "Registration Statement" means such
registration statement in the form in which it
becomes effective and includes all financial statements,
schedules, reports and documents incorporated by
reference therein and not required to be filed therewith by Form
S-3 under the Securities Act (the
"Incorporated Documents"), filed in accordance with the
Securities Exchange Act of 1934, as amended, and
the rules, regulations and forms of the Commission thereunder
(collectively, the "Exchange Act") on or before
the date on which the Registration Statement becomes effective.
The term "Prospectus" means the prospectus,
including any Incorporated Documents, on file with the Commission
at the time the Registration Statement
becomes effective; provided, that (a) if the prospectus filed by
the Company pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Exchange Act differs
from such prospectus, the term
"Prospectus" shall refer to the Rule 424(b) Prospectus from and
after the time it is mailed or otherwise
delivered to the Commission for filing, and (b) if the Company
files any documents pursuant to Section 13 or
14 of the Exchange Act after the time the Registration Statement
becomes effective and prior to the termination
of the offering of the Common Stock by the Purchasers, which
documents are deemed to be incorporated by
reference into the Prospectus, the term "Prospectus" shall refer
to said Prospectus as supplemented by the
documents so filed from and after the time said documents are
filed with the Commission.
I.
The Company represents and warrants to each of the
Purchasers that:
(a) The Company and the transactions
contemplated by this Agreement meet the requirements for using
Form S-3 under the Securities Act. The Registration Statement in
the form in which it becomes effective, and also in such form as
it may be when any post-effective amendment thereto shall become
effective and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under
the Securities Act, complied or will comply in all material
respects with the provisions of the Securities Act and will not
at any such times contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; except
that this representation and warranty does not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by either of the
Purchasers expressly for use therein.
(b) The Incorporated Documents heretofore
filed, when they were filed (or, if any amendment with respect to
any such document was filed, when such amendment was filed),
conformed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; any
further Incorporated Documents so filed will, when they are
filed, conform in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder; no
such document when it was filed (or, if an amendment with
respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and no such further document, when it is filed, will contain an
untrue statement of a material fact or will omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(c) The Company has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of the State of Nevada, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) All the outstanding shares of Preferred Stock
and Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable; the
Purchased Shares (as defined in paragraph II(a)) to be issued and
sold by the Company have been duly authorized and when issued and
delivered to the Purchasers against payment therefor in
accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and free of any preemptive or similar
rights; the Additional Shares (as defined in paragraph II(b))
to be issued by the Company have been duly authorized and when
issued and delivered to the Purchasers upon conversion of any
Preferred Shares held by them in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and
free of any preemptive or similar rights; and the capital stock
of the Company conforms in all material respects to the
description thereof in the Registration Statement and the
Prospectus.
(f) All of the outstanding shares of capital
stock of each of the Company's subsidiaries have been duly
authorized and are validly issued, fully paid and non-assessable,
and are owned of record and beneficially by the Company or a
subsidiary of the Company (except for directors' qualifying
shares) free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements and voting
trusts, except for pledges made under certain of the Company's
and the Company's subsidiaries' credit agreements. There is no
commitment, plan or arrangement to issue, and no outstanding
option, warrant or other right calling for the issuance of, any
share of capital stock of the Company or any of the Company's
subsidiaries to any person or any security or other instrument
which by its terms is convertible into, exercisable for or
exchangeable for capital stock of the Company or any of the
Company's subsidiaries, except as described or otherwise
disclosed in the Prospectus and except for grants made under and
in accordance with the Company's stock option plans. There are
no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to include any securities of the Company in the
Registration Statement.
(g) This Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid
and binding agreement of the Company enforceable against
the Company in accordance with its terms, except that
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of
creditors' rights generally and by general equity principles.
(h) (A) The redemption of the Preferred
Shares and conversion thereof in accordance with the terms of
this Agreement and the execution and delivery by the Company
of, and the performance by the Company of its obligations under,
this Agreement and the consummation of the transactions
contemplated hereby will not contravene (1) any provision
of applicable law or the restated Articles of Incorporation or
by-laws of the Company or (2) any agreement, contract, bond,
indenture or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or (3) any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and (B) no
consent, approval, authorization or order of or qualification
with any governmental body or agency is required for any such
actions or for the performance by the Company of its obligations
under this Agreement and the consummation of the transactions
contemplated hereby, except the registration under the
Securities Act of the Common Shares deliverable upon conversion
of the Preferred Shares and upon purchase pursuant to Article II
hereof. and except such consents, approvals,
authorizations, orders or qualifications as may be required under
the securities, or Blue Sky, laws of the various states in
connection with the acquisition, sale and distribution of the
Common Shares by the Purchasers. The redemption of the Preferred
Shares and conversion thereof in accordance with the terms of
this Agreement and the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement and the consummation of the transactions
contemplated hereby will not result in the imposition of any
lien, charge or encumbrance upon any of the assets of the Company
or any of its subsidiaries, pursuant to the terms of any
agreement, indenture or instrument to which the Company or any of
its subsidiaries is a party or by which any of them is bound.
(i) There has not occurred any material
adverse change, or any development involving a prospective
material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations, or prospects
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus. Since the date of the latest
audited financial statements included in the Prospectus, there
has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries, except
as disclosed in the Prospectus.
(j) There are no legal or governmental
proceedings pending or, to the best of the Company's knowledge,
threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of
its subsidiaries is subject that might result in a material
adverse change in the condition, financial or otherwise, or in
the earnings, business, operations or prospects of the Company
and its subsidiaries, taken as a whole, that affects the
transactions contemplated by this Agreement or that are required
to be described in the Registration Statement or the Prospectus
and are not so described, or any statutes, regulations,
contracts, instruments, leases, licenses or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(k) The Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and covering
such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties.
(l) Subsequent to the respective dates as of
which information is given in the Prospectus, and except as may
otherwise be described in the Prospectus, neither the Company
nor any of its subsidiaries has (i) entered into any transaction
not in the ordinary course of business, or (ii) declared or paid
any dividend on its capital stock other than regular quarterly
dividends on the Company's Common Stock and the Preferred Stock.
(m) Each of the Company and its subsidiaries
has all necessary consents, authorizations, approvals, orders,
certificates and permits (collectively, "Permits") of and from,
and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Neither the Company nor any of
its subsidiaries has received any notice of proceedings relating
to the revocations or modification of any such Permits which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material adverse
effect on the Company and its subsidiaries taken as a whole,
except as described in or contemplated by the Prospectus.
(n) Each preliminary prospectus filed as part
of the registration statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects
with the Securities Act and the rules and regulations of the
Commission thereunder.
(o) Neither the Company nor any of its
subsidiaries is (i) an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, or (ii) subject
to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, or the Interstate Commerce Act, in
each case as amended and in effect from time to time, or is
subject to any law, rule, regulation, order, judgment or decree
which regulates the redemption and conversion of the Preferred
Shares as contemplated herein or the offering or sale of the
Common Shares by the Purchasers, (other than the Securities Act,
the Exchange Act and the Blue Sky or securities laws),
including, without limitation, any law, rule, regulation, order,
judgment or decree relating to common or contract carriers or to
the sale of electricity, gas, steam, water or other public
utility services.
(p) Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any other
party is now or is reasonably expected by the Company or its
subsidiaries to be in violation or breach of, or in default with
respect to, any provision of any material contract, agreement,
instrument, lease, or license to which the Company or any
subsidiary is a party, the effect of which would materially
adversely affect the condition, financial or otherwise, earnings,
business, operations or prospects of the Company and its
subsidiaries, taken as a whole. Each such contract, agreement,
instrument, lease or license (i) is in full force, (ii) is the
legal, valid, and binding obligation of the Company or its
subsidiaries and is enforceable as to the Company or its
subsidiaries, as the case may be, in accordance with its
terms and (iii) to the Company's knowledge, is the legal, valid
and binding obligation of the other parties thereto and is
enforceable as to each of them in accordance with its terms,
except that enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by general equity
principles.
Neither the Company nor any of its subsidiaries is,
or with giving of notice or lapse of time or both would be, in
violation of its corporate charter or by-laws.
(q) The Company and its subsidiaries have
title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to
the business of the Company and its subsidiaries, in each case
free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case
except as described in or contemplated by the Prospectus. Each
of the Company, and its subsidiaries enjoys peaceful and
undisturbed possession under all material leases and licenses
under which it is operating.
(r) The Company and its subsidiaries are (i)
in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other
approvals and filed all notices required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license, notice or approval and
any remedial obligations under any Environmental Law, except
where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits,
licenses, approvals or obligations or to file such notices would
not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(s) Except as set forth in the Registration
Statement and Prospectus, or incorporated by reference, (i) the
Company does not know of any release or threatened release of any
Hazardous Material (as hereinafter defined) on or to the
Company's property the effect of which might have a materially
adverse effect on the condition, financial or otherwise, or in
the earnings, business, operations or prospects of the Company
and its subsidiaries, taken as a whole; and (ii) the Company has
no present or contingent liability in connection with any
release or threatened release of any Hazardous Material into the
environment, whether on or off its property the violation of any
of which might have a materially adverse effect on the
condition, financial or otherwise, or in the earnings, business,
operations or prospects of the Company and its subsidiaries,
taken as a whole. The term "Hazardous Material" means any
oil (including petroleum products, crude oil and any fraction
thereof), chemical, contaminant, pollutant, solid or hazardous
waste, Hazardous Substance (as defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability
Act and regulations thereunder), or other material that is toxic
or harmful to human health or the environment or the use,
treatment, sale, discharge or disposal of which is regulated by a
local, state or federal governmental authority charged with
protection of health, safety or the environment.
(t) The Company and each of its subsidiaries
is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and the regulations and
published interpretations thereunder; no "reportable event" (as
defined in ERISA and the regulations and published
interpretations thereunder) has occurred with respect to any
"pension plan" (as defined in ERISA and the regulations and
published interpretations thereunder) established or maintained
by the Company and its subsidiaries. Neither the Company nor any
of its subsidiaries have incurred and do not expect to incur
liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended (the "Code"); and each "pension plan"
established or maintained by the Company or any of its
subsidiaries that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and
has received a favorable determination letter as to its
qualification and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(u) No tax deficiency has been incurred, nor
do the Company or any of its subsidiaries have any knowledge of
any tax deficiency which if determined adversely to the
Company or any of its subsidiaries, might have a material adverse
effect on the condition, financial or otherwise, or in the
earnings, business, operations or prospects of the Company and
its subsidiaries, taken as a whole.
(v) The Company (i) makes and keeps accurate
books and records and (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of
its financial statements and to maintain accountability for
its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets
at reasonable intervals.
(w) Neither the Company nor any of its
subsidiaries, nor to the knowledge of the Company, any director,
officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(x) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by reference
in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise indicated therein.
(y) Coopers & Lybrand, who have certified
certain financial statements of the Company and whose report is
included in the Prospectus or is incorporated by reference
therein, are independent public accountants within the meaning of
the Securities Act and the rules and regulations thereunder.
(z) No labor problem exists or, to the
knowledge of the Company, is imminent with the employees of the
Company or any of its subsidiaries which would have a material
adverse effect on the condition, financial or otherwise, or in
the earnings, business, operations or prospects of the Company
and its subsidiaries, taken as a whole.
(aa) Except as set forth in the Prospectus,
neither the Company nor any of its subsidiaries has violated any
applicable federal or state law relating to discrimination in
hiring, promotion, or pay of employees, nor any applicable
federal or state wages and hours law, the violation of any of
which might have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(ab) The Company is in compliance with all
provisions of Florida Statutes Section 517.075 relating to
issuers doing business with Cuba, and the Company further agrees
that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the
date the Registration Statement becomes or has become effective
with the Commission or with the Florida Department of Banking and
Finance (the "Department"), which ever date is later, or if the
information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(ac) At the close of business on August 25,
1994, 2,299,800 shares of the Preferred Stock remained
outstanding; the Preferred Shares are convertible, until the
Conversion Expiration Time, into Common Stock at a Conversion
Price of $24.00 per Preferred Share (equivalent to 2.0833 shares
of Common Stock per Preferred Share) and such shares of
Common Stock have been duly reserved for issuance upon conversion
of the Preferred Shares; and from and after the time the
Registration Statement becomes effective and until the
Conversion Expiration Time the Company will take no action which
would result in any change in the Conversion Price.
(ad) The Company has instructed First
Interstate Bank of California, the conversion agent for the
Preferred Shares, to cooperate with you in order to facilitate
the conversion of Preferred Shares acquired by you until the
Conversion Expiration Time.
(ae) The Company has not taken and shall not
take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which would constitute,
the stabilization or manipulation of the price of shares of
Common Stock to facilitate the sale of the Common Shares.
(af) On and after the date hereof and prior to
the Redemption Date, there will be no change in the outstanding
capital stock of the Company and the Company will not issue
or sell or enter into any agreement (other than this Agreement),
arrangement or understanding of any kind, or take any action, for
the issuance or sale of any capital stock of the Company
or securities convertible into capital stock of the Company or
warrants or options for the purchase of capital stock of the
Company or securities convertible into capital stock of the
Company without the prior approval of the Purchasers, except for
the issuance of Common Stock pursuant to the Company's stock
option plans or upon conversion of the Preferred Shares.
(ag) The redemption of all the outstanding
shares of Preferred Stock on the Redemption Date has been duly
authorized by the Company; on the date hereof, the Preferred
Stock shall have been duly called for redemption on the
Redemption Date in accordance with the terms of the Company's
Certificate of Voting Powers, Designations, Preferences and
Relative, Participating, Optional or Other Special Rights
relating to the Preferred Stock (the "Certificate of
Designations"), and the right to convert the Preferred Stock into
Common Stock shall expire at 8:00 p.m., New York City time, on
September 26, 1994.
(ah) All taxes, if any, required to be paid by
the Company with respect to the redemption of the Preferred Stock
and the issuance of shares of Common Stock upon conversion of the
Preferred Stock or pursuant to this Agreement, have been or will
be paid by the Company.
II.
(a) On the basis of the representations and
warranties contained in this Agreement, and subject to its terms
and conditions, the Purchasers agree, severally and not jointly,
that the Purchasers will purchase from the Company at the
Purchase Price, in the respective percentages set forth opposite
their names on Schedule I, such number of shares of Common Stock
in excess of 785,224 shares of Common Stock that would have been
issued upon conversion of any shares of Preferred Stock that are
not duly surrendered for conversion on or prior to the Conversion
Expiration Time; provided, however, that the aggregate number of
such shares of Common Stock purchased pursuant to this Agreement
shall not exceed 4,005,950. Shares of Common Stock acquired by
the Purchasers pursuant to this paragraph II(a) are referred to
herein as "Purchased Shares." The Purchasers shall pay the
Company for the Purchased Shares, if any, purchased pursuant to
this paragraph II(a) by certified or official bank check or
checks payable in New York Clearing House (next day) funds to the
order of the Company on the Redemption Date (the "Closing Date").
Delivery to the Purchasers of any Purchased Shares purchased
pursuant to this paragraph II(a) shall be made at the offices of
Morgan Stanley & Co. Incorporated, 1251 Avenue of the Americas,
New York, New York, on the Closing Date.
(b) Until the Conversion Expiration Time, the
Purchasers may (but shall not be obligated to) purchase shares of
Preferred Stock in the open market or otherwise in such
amounts and at such prices as the Purchasers may deem advisable.
The Purchasers agree to surrender for conversion at the
Conversion Expiration Time any shares of Preferred Stock
beneficially owned by them on the Redemption Date. Shares of
Common Stock issued to the Purchasers upon conversion of such
shares of Preferred Stock may be sold by the Purchasers
at any time or from time to time pursuant to an effective
registration statement under the Securities Act (including the
Registration Statement) or an applicable exemption under the
Securities Act. Shares of Common Stock acquired upon conversion
of the shares of Preferred Stock referred to in this paragraph
II(b) are referred to as "Additional Shares." Purchased
Shares and Additional Shares are referred to in this Agreement as
"Acquired Shares."
(c) The Purchasers agree to inform the
Company when all Acquired Shares have been sold or if any
offering of Acquired Shares is otherwise terminated.
(d) The Company hereby agrees that, without
the prior written consent of the Purchasers it will not offer,
sell, contract to sell or otherwise dispose of any shares of
common stock of the Company or any securities convertible into or
exercisable or exchangeable for such common stock for a period of
120 days after the date hereof, other than (i) sales to the
Purchasers pursuant to this Agreement and (ii) any shares of such
Common Stock sold by the Company upon the exercise of an option
or warrant or the conversion of a security outstanding
on the date hereof.
III.
As compensation to the Purchasers for their
commitment hereunder, the Company will pay to
the Purchasers, in the respective percentages set forth in
Schedule I: (i) on the date hereof, $800,000 as a
standby fee, by wire transfer of immediately available funds, and
(ii) on the Closing Date, in the event the
Purchasers acquire Purchased Shares, an amount equal to $.80 per
Purchased Share for all Purchased Shares,
by certified or official bank check or checks payable in New York
Clearing House funds to the order of the
Purchasers. At the option of the Purchasers, in lieu of being
paid by the Company the amount referred to in
this Article III, the Purchasers may deduct such amount from the
Purchase Price payable pursuant to paragraph
II(a).
IV.
The obligations of the Company and the several
obligations of the Purchasers hereunder are
subject to the condition that the Registration Statement shall
have become effective not later than 5:30 p.m.,
New York City time, on the date hereof.
The several obligations of the Purchasers hereunder
are subject, in their sole discretion, to the
condition that all representations and warranties and other
statements of the Company herein are, at and as of
the date hereof and the Closing Date, true and correct in all
respects (except for those representations which
are made at a specified date, which shall be true as of such
date), and to the condition that the Company shall
have performed all of its obligations hereunder theretofore to be
performed and to the following further
conditions:
(a) (i) No stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall be pending or,
to the knowledge of the Company, shall be contemplated by the
Commission at the Closing; (ii) there shall not be in effect any
injunction, restraining order or other order of a court of any
governmental agency that prohibits or restrains the Purchasers
from converting the Preferred Stock into Common Stock; and (iii)
there shall not have been any material change in the capital
stock of the Company (other than in the ordinary course of
business) from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto).
(b) The Purchasers shall have received on the
Closing Date a certificate, dated the Closing Date and signed by
an executive officer of the Company satisfactory to you, to the
effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date
and to the effect set forth in paragraph (a).
(c) On the date the Registration Statement
becomes effective and prior to the mailing of the Notice of
Redemption, you shall have received an opinion of Stroock &
Stroock & Lavan, counsel for the Company, dated such date, in
form and substance satisfactory to you to the effect that
(i) the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the State of Nevada, has the corporate
power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in the States of
California, Connecticut and New Jersey;
(ii) The authorized and outstanding
capital stock of the Company is as set forth under the caption
"Capitalization" in the Prospectus; and the authorized
capital stock of the Company conforms in all material respects as
to legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock";
(iii) all the shares of capital stock of
the Company outstanding prior to the issuance of the Common
Shares have been duly authorized and are validly issued,
fully paid and non-assessable; to the knowledge of such counsel,
there is no commitment, plan or arrangement to issue, and no
outstanding option, warrant or other right calling for the
issuance of, any share of capital stock of the Company or
any of the Company's subsidiaries to any person or any security
or other instrument which by its terms is convertible into,
exercisable for or exchangeable for capital stock
of the Company or any of the Company's subsidiaries, except as
described or otherwise disclosed in the Prospectus, and there are
no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to include any securities of the Company in the
Registration Statement;
(iv) the Common Shares have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and, to the best of such counsel's knowledge, the
issuance of such Common Shares will not be subject to any
preemptive or similar rights;
(v) neither the Company nor any of its
subsidiaries is in violation or breach of, or in default with
respect to any term of its articles of incorporation (or
other charter document) or by-laws;
(vi) this Agreement has been duly
authorized, executed and delivered by the Company, and
constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except to the extent that rights to indemnity or contribution
hereunder may be limited by federal or state
securities laws or the public policy underlying such laws;
(vii) (A) the redemption of the
Preferred Shares and conversion thereof in accordance with the
terms of this Agreement and the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, this Agreement and the consummation of the transactions
contemplated hereby, will not contravene (1) any provision of
applicable law or the restated Articles of Incorporation or
by-laws of the Company or (2) any agreement, contract, bond,
indenture or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, (3) to the best
of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and (B) no consent, approval,
authorization or order of or qualification with any governmental
body or agency is required for any such actions or for the
performance by the Company of its obligations under this
Agreement, except the registration under the
Securities Act of the Common Shares deliverable upon conversion
of the Preferred Shares and upon purchase pursuant to Article II
hereof, and except such consents, approvals, authorizations,
orders or qualifications as may be required under the
securities, or Blue Sky, laws of the various states in connection
with the offer and sale of the Common Shares by the Purchasers;
(viii) to the knowledge of such counsel,
no default or event of default has occurred under any contract,
agreement, bond, indenture or other instrument relating
to indebtedness of the Company or any of its subsidiaries for
money borrowed, to which the Company or any of its subsidiaries
is a party which would give another party thereto the right to
terminate such contract, agreement, bond, indenture or other
instrument relating to indebtedness of the Company or to declare
the indebtedness thereunder or any portion thereof to be due and
payable prior to maturity;
(ix) the statements (1) in the
Prospectus under the caption "Description of Capital Stock" and
(2) in the Registration Statement in Item 15, in each case
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(x) the Registration Statement has
become effective under the Securities Act; to the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for
that purpose has been instituted or threatened by the Commission
or the securities authority of any jurisdiction;
(xi) neither the Company nor any of its
subsidiaries is (1) an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended, or (2)
subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Investment Company Act of
1940 or the Interstate Commerce Act, in each case as amended and
in effect from time to time, or is subject to any law,
rule, regulation, order, judgment or decree which regulates the
redemption and conversion of the Preferred Shares as contemplated
herein, the offering or sale of the Common Shares by the
Purchasers (other than the Securities Act, the Exchange Act,
and the Blue Sky, or state securities laws), including, without
limitation, any law, rule, regulation, order, judgment or decree
relating to common or contract carriers or to
the sale of electricity, gas, steam, water or other public
utility services;
(xii) after due inquiry, such counsel
does not know of any legal or governmental proceeding pending or
threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that (A) affects
the transactions contemplated by this Agreement, (B) if
determined adversely to the Company or one of its subsidiaries
might have a material adverse effect on the condition, financial
or otherwise, or in the earnings, business, operations and
prospects of the Company and its subsidiaries, taken
as a whole, or (C) are required to be described in the
Registration Statement or the Prospectus and are not so described
or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required;
(xiii) (1) each Incorporated Document
(except for financial statements and schedules as to which such
counsel need not express any opinion) complied when
filed pursuant to the Exchange Act as to form in all material
respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder and
(2) the Registration Statement and Prospectus and any
supplements or amendments thereto (except for financial
statements and schedules included therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder;
(xiv) The Preferred Shares are
convertible into shares of Common Stock as provided in the
Certificate of Designations and such shares of Common Stock have
been duly reserved for issuance upon conversion of the Preferred
Shares; and
(xv) The redemption of all of the outstanding
Preferred Stock on the Redemption Date has been duly authorized;
and the only remaining action required by the terms of the
Preferred Stock to call the Preferred Stock for redemption on the
Redemption Date is the giving of the Notice of Redemption by mail
in accordance with the requirements thereof.
In addition, such counsel shall state that such
counsel participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants for the
Company and representatives of the Purchasers at which the
contents of the Registration Statement, the
Prospectus and any amendment thereof or supplement thereto, and
related matters were discussed and, although
such counsel has not independently verified and is not passing
upon and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus
(except as otherwise indicated above), on the basis of the
foregoing (relying as to materiality to a large extent
upon the opinions of officers and representatives of the
Company), no facts have come to the attention of such
counsel which lead them to believe that either the Registration
Statement or any amendment thereto, at the time
the Registration Statement or amendment became effective,
contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the
statements therein not misleading or that the
Prospectus as of its date or any supplement thereto as of its
date, or the Registration Statement or the
Prospectus and any amendment or supplement thereto as of the date
thereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial
statements and schedules and other financial and statistical data
included in the Registration Statement or Prospectus).
The opinion of Stroock & Stroock & Lavan described in
paragraph (c) above shall be rendered to you at the request of
the Company and shall so state therein. In rendering such
opinion, such counsel may state that their opinion is limited to
matters governed by the federal laws of the United States of
America, the laws of the State of New York and the corporate laws
of the State of Nevada.
(d) On the date the Registration Statement
becomes effective, you shall have received an opinion of Andrews
& Kurth L.L.P., special counsel for the Purchasers, dated such
date, covering such matters referred to in subparagraph (iv),
(vi), (x) and clause (2) of (xiii) (but only as to the statements
in the Prospectus under "Standby Arrangements") and the
paragraph immediately following subparagraph (xv) of paragraph
(c) above. In rendering such opinion, such counsel may state
that their opinion is limited to matters governed by the federal
laws of the United States of America, the laws of the State of
New York and the corporate laws of the State of Delaware.
(e) At the time of the execution of this
Agreement and prior to the mailing of the Notice of Redemption,
you shall have received a letter dated the date hereof, in form
and substance satisfactory to you, from Coopers & Lybrand
independent public accountants, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) The "lock-up" agreements between you and
certain shareholders of the Company relating to sales of shares
of Common Stock of the Company or any securities
convertible into or exercisable or exchangeable for such Common
Stock, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(g) Subsequent to the execution and delivery
of this Agreement (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or
Preferred Stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities
or Preferred Stock.
(h) Any certificate signed by an officer of
the Company and delivered, pursuant to this Agreement or in
connection with this Agreement and the transactions contemplated
hereby, to you or your counsel shall be deemed a representation
and warranty by the Company to each of you as to the matters
covered thereby.
(i) The Common Shares shall have been
approved for listing on the New York Stock Exchange ("NYSE") and
the Pacific Stock Exchange, subject to notice of issuance.
(j) There shall not have been any change
after the date of this Agreement in the restated Articles of
Incorporation or bylaws of the Company adversely affecting the
rights of the holders of the Common Stock or the Preferred Stock.
(k) On the Closing Date, the Purchasers shall
have received, in form and satisfactory to the Purchasers, (i)
letters, dated the Closing Date, from Stroock & Stroock &
Lavan and Andrews & Kurth L.L.P. to the effect that they reaffirm
the respective opinions set forth in paragraphs IV(c) and (d)
respectively, and (ii) a letter from Coopers & Lybrand to
the effect that it reaffirms its statements made in its letter
furnished pursuant to paragraph IV(e).
If any condition specified in this Article shall not
have been fulfilled when and as required by
this Agreement to be fulfilled, this Agreement and all your
obligations hereunder may be cancelled by you by
notifying the Company of such cancellation in writing, and any
such cancellation shall be without liability of any
party to any other party except as provided in Article I, Article
VI and Article VII.
V.
In further consideration of the agreements of the
Purchasers herein contained, the Company
covenants as follows:
(a) The Company will use its best efforts to
cause the Registration Statement to become effective by 5:30 p.m.
on the date hereof and will advise the Purchasers promptly and,
if requested by the Purchasers, will confirm such advice in
writing, when the Company receives notice (written or oral) that
the Registration Statement has become effective. The Company
also will advise the Purchasers promptly and, if requested by the
Purchasers, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to
the Registration Statement or the Prospectus or for additional
information; and (ii) upon knowledge thereof, of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension
of qualification of the Common Shares for offering or sale in any
jurisdiction or of the initiation of any proceeding for such
purpose. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
the Company, upon knowledge thereof, will make every
reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(b) To furnish to you, without charge, (i) as
many signed and conformed copies of the Registration Statement
(including exhibits thereto and documents incorporated by
reference) as you may reasonably request and (ii) from time to
time during such period after the date hereof as in the opinion
of your counsel the Prospectus is required by law to be
delivered in connection with sales by a Standby Purchaser or
dealer, as many copies of the Prospectus and any supplements and
amendments thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the rules and
regulations thereunder. The Company consents to the use of the
Prospectus (and of any amendment or supplement thereto)
in accordance with the provisions of the Securities Act and with
the securities or Blue Sky laws of the jurisdictions in which the
Common Shares are offered by the Purchasers and by all
dealers to whom the Common Shares may be sold, both in connection
with the offering and sale of the Common Shares and for such
period of time thereafter as the Prospectus is required
by the Securities Act to be delivered in connection with sales by
the Purchasers or dealers.
(c) Before amending or supplementing the
Registration Statement or the
Prospectus to furnish to you a copy of each such proposed
amendment, or supplement and to
file no such proposed amendment or supplement to which you
reasonably object, and before or simultaneous with filing any
document which, upon filing, becomes an Incorporated
Document, to furnish to you a copy of each such proposed
Incorporated Document.
(d) If, during the Registration Period, any
event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of your counsel,
it is necessary to amend or supplement the Prospectus to comply
with law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Purchasers a reasonable
number of copies of any amendments or supplements to the
Prospectus (in form and substance satisfactory to counsel
for the Purchasers) so that the statements in the Prospectus as
so amended or supplemented
will not, in the light of the circumstances when the Prospectus
is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented,
will comply with law. In the event that the Company and the
Purchasers agree that the Prospectus should be amended
or supplemented, the Company, if required by law, regulation or
any rule of the NYSE, will
promptly issue a press release announcing or disclosing the
matters to be covered by the proposed amendment or supplement.
(e) During the Registration Period, to file
in a timely fashion all documents
required to be filed with the Commission pursuant to Section 13
or 14 of the Exchange Act subsequent to the time the Registration
Statement becomes effective.
(f) To endeavor to qualify the Common Shares
for offer and sale under the
securities or Blue Sky laws of such jurisdictions, as you shall
reasonably request, to comply with
such laws as to permit the continuance of sales and dealings in
such jurisdictions for as long as may be necessary to complete
the distribution of the Common Shares and to pay all
expenses (including fees and disbursements of counsel) in
connection therewith and in
connection with any review of the offering of the Common Shares
by the National Association of Securities Dealers, Inc.
(g) To make generally available to the
Company's security holders and to you as
soon as practicable, but not later than 90 days after the close
of the period covered thereby,
an earning statement covering the twelve-month period beginning
not later than the first day
of the Company's fiscal quarter next following the effective date
of the post-effective amendment to the Registration Statement
notifying the Commission of the shares of Common
Stock which will not be sold by the Purchasers. Upon your
request at termination of the offering, the Company will file
such a post-effective amendment with the Commission that
satisfies the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
(h) On August 26, 1994, to mail to holders of
Preferred Shares a Prospectus and
a notice of redemption complying with the requirements of the
Certificate of Designations together with notice of the other
rights of the holders of Preferred Shares.
(i) To advise the Purchasers daily or direct
the conversion agent and redemption agent for the Preferred
Shares to advise the Purchasers daily of the respective number of
Preferred Shares surrendered for conversion into Common Shares
and surrendered for redemption on the preceding day.
(j) To furnish to you "lock-up" agreements,
in form and substance satisfactory
to you, signed by certain of its current executive officers and
directors, prohibiting such
executive officers and directors from offering, selling,
contracting to sell or otherwise disposing
of any Common Stock for a period of 120 days from the date
hereof.
(k) Whether or not the transactions
contemplated in this Agreement are
consummated, to pay or cause to be paid the costs incident to the
performance of its obligations under this Agreement, the
redemption and conversion of the Preferred Shares and
the authorization, issuance, sale and delivery of the Common
Shares and any expenses or taxes
payable in that connection; the costs incident to the
preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments
and exhibits thereto; the
costs of distributing the Registration Statement as originally
filed and each amendment and
post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated
by reference therein, all as provided in this Agreement, and the
costs of printing this
Agreement; the expenses, including printing expenses, in
connection with mailing the Notice of Redemption and related
documents and the publication of the advertisements relating to
the redemption; all costs and expenses of issuance and delivery
of the shares of Common Stock
upon conversion of the Preferred Shares, including the fees of
the conversion agent; the
reasonable fees and disbursements of the Company's counsel and
accountants; the reasonable fees and expenses of preparing and
printing a Blue Sky Memorandum (including fees and
expenses of counsel to the Purchasers in connection therewith);
and the fees and expenses, if
any, of listing the Common Shares on the New York Stock Exchange,
Inc. and the Pacific Stock Exchange.
(l) The Company will also reimburse the
Purchasers for all of the Purchasers' out-of-pocket expenses
reasonably incurred in connection herewith, including fees and
expenses of counsel to the Purchasers, not in excess of $65,000
in the aggregate.
VI.
The Company agrees to indemnify and hold harmless
each Purchaser and each person, if any,
who controls such Purchaser within the meaning of either Section
15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation,
any legal or other expenses reasonably incurred by any Purchaser
or any such controlling person in connection
with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Purchaser furnished to the Company in writing
by such Purchaser through you expressly for use therein.
Each Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such
Purchaser, but only with reference to information
relating to such Purchaser furnished to the Company in writing by
such Purchaser through you expressly for use
in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements
thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving
any person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and representation
of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying
party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such
separate firm for the Purchasers and such control
persons of Purchasers, such firm shall be designated in writing
by Morgan Stanley & Co. Incorporated. In the
case of any such separate firm for the Company, and such
directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional
release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or
second paragraph of this Article VI is
unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchasers on the other hand
from the transactions contemplated by this
Agreement or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the
Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Purchasers
on the other hand in connection with the transactions
contemplated by this Agreement shall be deemed to be
in the same respective proportions as the aggregate Redemption
Price of the Preferred Shares outstanding on
the date of this Agreement bears to the total compensation
required by the Purchasers pursuant to Article III
of this Agreement. The relative fault of the Company on the one
hand and the Purchasers on the other hand
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the
Company or by the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity
to correct or prevent such statement or omission. The
Purchasers' respective obligations to contribute pursuant
to this Article VI are several in proportion to the respective
number of Shares they have purchased hereunder,
and not joint.
The Company and the Purchasers agree that it would
not be just or equitable if contribution
pursuant to this Article VI were determined by pro rata
allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article
VI, no Purchaser shall be required to contribute
any amount in excess of the amount of compensation such Purchaser
receives pursuant to Article III of this
Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Article VI
are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions contained
in this Article VI and the representations
and warranties of the Company contained in this Agreement shall
remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Purchaser
or any person controlling any Purchaser or by or on behalf of the
Company, its officers or directors or any
person controlling the Company, (iii) delivery of the Common
Shares upon conversion of the Preferred Shares
and (iv) the purchase of the Common Shares pursuant to Article II
hereof.
VII.
Prior to the time the Company mails notice of the
redemption of the Preferred Shares on the
Redemption Date, this Agreement may be terminated by the Company
by written notice to the Purchasers, or
by the Purchasers by written notice to the Company.
This Agreement shall also be subject to termination
by notice given by you to the Company,
if (a) after the execution and delivery of this Agreement and
prior to the Redemption Date (i) trading generally
shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock
Exchange, the American Stock Exchange, or the National
Association
of Securities Dealers, Inc., (ii) trading of any
securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, or (iii)
a general moratorium on commercial banking activities in New York
shall have been declared by either Federal
or New York State authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities in which the United
States is involved, any declaration of war by the United States
Congress, or any other substantial national or international
calamity, crisis or adverse change in United States
or international financial, political or economic conditions
that, in your judgment is materia and adverse and
(b) in the case of any of the events specified in clause (a)(i)
through (iv), such event singly or together with any other
such event makes it, in your judgment, impracticable or
inadvisable to proceed with the purchases of and
payment for the Preferred Shares or the Common Shares, the
conversion of the Preferred Shares into Common
Shares or the resale of the Common Shares by the Purchasers.
VIII.
This Agreement shall become effective upon the later
of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement by the
Commission.
If, on the Closing Date, either of the Purchasers
shall fail or refuse to purchase Common Shares
that it has agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such
defaulting Purchaser agreed but failed or refused to purchase is
not more than one tenth of the aggregate
number of the Common Shares to be purchased on such date, the
non-defaulting Purchaser may make
arrangements satisfactory to the Company for the purchase of such
Common Shares by other persons, including
the non-defaulting Purchaser, but if no such arrangements are
made by the close of business on the Closing
Date, the non-defaulting Purchaser shall be obligated to purchase
the Common Shares that such defaulting
Purchaser agreed but failed to purchase. If on the Closing Date,
either Purchaser shall fail or refuse to purchase
Common Shares and the aggregate number of Common Shares with
respect to which such default occurs is more
than one-tenth of the aggregate number of Common Shares to be
purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such
Common Shares are not made prior to the close
of business on the Redemption Date, this Agreement shall
terminate without liability on the part of any non-
defaulting Purchaser. Any action taken under this paragraph
shall not relieve any defaulting Purchaser from
liability in respect of any default of such Purchaser under this
Agreement.
If this Agreement shall be terminated by the
Purchasers, or any of them, because of any failure
or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to
perform its obligations under this Agreement,
the Company will reimburse the Purchasers or such Purchasers as
have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their
counsel) reasonably incurred by such Purchasers in connection
with this Agreement and the transactions
contemplated hereunder.
This Agreement may be signed in two or more
counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the internal laws of the
State of New York.
Very truly yours,
TOSCO CORPORATION
By:
Name: Jefferson F. Allen
Title: Executive Vice President and
Chief Financial Officer
Accepted, ________________, 1994
MORGAN STANLEY & CO.
INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: Morgan Stanley & Co. Incorporated
By:
Name: Lisa A. Genova
Title: Vice President
SCHEDULE I
Purchasers
Purchaser Percentage
Morgan Stanley & Co. Incorporated . . . . . . . . . . 50%
Donaldson Lufkin & Jenrette
Securities Corporation. . . . . . . . . . . . . . . 50%
Total . . . . . . . . . . . 100%
<PAGE>
Exhibit 5.1
August 25, 1994
Tosco Corporation
72 Cummings Point Road
Stamford, CT 06902
Ladies and Gentlemen:
We have acted as counsel to Tosco Corporation, a Nevada
corporation (the "Company") in connection with the preparation
and filing of a Registration Statement on Form S-3 (the
"Registration Statement") relating to the public offering of up
to 4,791,174 shares of Common Stock of the Company (the
"Shares").
We have examined copies of the Restated Articles of Incorporation
and Bylaws of the Company, the Registration Statement and all
exhibits thereto, and such other corporate records and documents
and papers, statutes and authorities, and have made such
examinations of law, as we have deemed necessary to form the
basis for the opinion hereinafter expressed. In our examination
of such material, we have assumed the genuineness of all
signatures, the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies submitted to
us. As to various questions of fact material to such opinion, we
have relied upon statements and certificates of officers and
representatives of the Company and others.
We are members of the bar of the State of New York and do not
purport to be experts on the laws of any other state or
jurisdiction relevant to this opinion.
Based on the foregoing, we are of the opinion that the Shares, if
and when issued under the circumstances contemplated by the
Registration Statement, have been duly authorized and, such
Shares, when issued and sold in accordance with the Registration
Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this firm
under the caption "Legal Matters" in the Prospectus forming a
part of the Registration Statement. In giving such permission,
we do not admit
hereby that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as
amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
registration statement of Tosco Corporation on Form S-3 (File No.
33-__________) of our report dated February 4, 1994, on our
audits of the consolidated financial statements and the financial
statement schedules of Tosco Corporation as of December 31, 1993
and 1992, and for the years ended December 31, 1993, 1992, and
1991, which report is included in this Annual Report on Form
10-K. We also consent to the reference to our firm under the
caption "Experts."
Coopers & Lybrand L.L.P.
Oakland, California
August 24, 1994
