AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 1996
REGISTRATION STATEMENT NO. 333-2521
POST-EFFECTIVE AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 33-59423
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT NO. 333-2521
AND POST-EFFECTIVE
AMENDMENT NO. 2 TO S-3
REGISTRATION STATEMENT NO. 33-59423
UNDER THE SECURITIES ACT OF 1933
------------
TOSCO CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 95-1865716
(State or other jurisdiction (I.R.S. employer
of 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)
------------
WILKES MCCLAVE III, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(203) 977-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------
Copy to:
MARTIN H. NEIDELL, ESQ.
STROOCK & STROOCK & LAVAN
SEVEN HANOVER SQUARE, NEW YORK, N.Y. 10004-2594
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, please check the following box. [X]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
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 ANY 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 APRIL 30, 1996
$200,000,000
TOSCO CORPORATION
DEBT SECURITIES
------------
Tosco Corporation ("Tosco" or the "Company") may offer and issue from time
to time up to $200,000,000 in aggregate proceeds of its debt securities each of
which will be a direct, unsecured obligation of Tosco (the "Debt Securities").
The Debt Securities may be offered to the public on terms determined by market
conditions at the time of sale.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, interest rate (or method of calculation) and time of
payment of interest (if any), any terms for redemption or repurchase, any
listing on a securities exchange or other specific terms of the Debt Securities
in respect of which this Prospectus is being delivered (the "Offered
Securities") are set forth in the accompanying supplement to this Prospectus
(the "Prospectus Supplement"), together with the terms of offering of the
Offered Securities.
------------
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 Debt Securities may be offered directly, through agents designated from
time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution." Any such agents, dealers or underwriters will be set forth in the
Prospectus Supplement. If an agent of the Company or a dealer or underwriter is
involved in the offering of the Offered Securities, the agent's commission,
dealer's purchase price, underwriter's discount and net proceeds to the Company
will be set forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
____________ , 1996
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY
THIS PROSPECTUS AND PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF
AN OFFER TO BUY ANY OF THE OFFERED SECURITIES IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THIS PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER OR UNDER THE
PROSPECTUS SUPPLEMENT SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES SINCE THE RESPECTIVE DATES OF THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT.
------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). 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 7 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 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such materials can also be
inspected at the offices of the New York Stock Exchange, Inc. and the Pacific
Stock Exchange, Inc., on which exchanges the Company's Common Stock is listed.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (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 filed as a part thereof and otherwise incorporated
therein. 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.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
1. Annual Report on Form 10-K for the year ended December 31, 1995
filed on March 20, 1996.
2. Current Report on Form 8-K filed on April 25, 1996.
All documents filed by the Company 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 the Debt Securities hereunder shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the 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 and the Prospectus
Supplement to the extent that a statement contained herein or in any other
subsequently filed document which also 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 or the Prospectus
Supplement.
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 Joseph Watson, Investor Relations, Tosco
Corporation, 72 Cummings Point Road, Stamford, Connecticut 06902 (telephone
(203) 977-1000).
------------
IN CONNECTION WITH THE OFFERING OF THE SECURITIES DESCRIBED IN THE
ACCOMPANYING PROSPECTUS SUPPLEMENT, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF SUCH SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
3
<PAGE>
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.
During 1995, Tosco focused its efforts on consolidating its 1993 and 1994
acquisitions of retail marketing assets in the Pacific Northwest, California and
Arizona and expanding both the British Petroleum ("BP") brand in nine western
states and the Exxon brand in Arizona, where Tosco has the right to market under
those brands. Tosco continued to maintain and upgrade its three refineries,
Avon, Bayway and Ferndale, to remain competitive in the domestic refining
markets.
Tosco also has interests in oil shale properties in Colorado and Utah.
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.
THE CIRCLE K CORPORATION ACQUISITION
On February 16, 1996, Tosco agreed to acquire The Circle K Corporation
("Circle K") and to merge Circle K with a subsidiary of Tosco (the "Merger").
Circle K has approximately 2,500 convenience stores in the United States of
which 2,300 are company-owned and operated and 200 are franchised. Approximately
1,900 of the Circle K stores sell gasoline. Completion of the transaction is
subject to the approval of various regulatory authorities, the shareholders of
Circle K, and the satisfaction of certain conditions. It is expected to close
prior to mid-1996. Payment of the total acquisition price of approximately $710
million, not including transaction and certain other costs, presently will
consist of approximately 6.8 million shares of Tosco Common Stock and cash. The
number of shares of Common Stock to be issued is subject to adjustment if the
price of Tosco Common Stock fluctuates outside an agreed range and for shares
issued with respect to stock options held by certain employees of Circle K. Upon
completion of the Merger, Tosco will be the largest operator of company-owned
convenience stores in the United States and Tosco's retail gasoline sales are
expected to increase significantly to approximately 8,000,000 gallons per day. A
large portion of the Circle K system is located in areas where Tosco is licensed
to operate under the BP brand. Tosco intends, where appropriate, to rebrand
certain locations.
RECENT DEVELOPMENTS
Tosco has entered into an amended and restated revolving credit agreement
(the "New Credit Agreement") to replace Tosco's existing revolving credit
agreement. The New Credit Agreement provides Tosco with $600 million of
revolving credit facilities which are available to Tosco for working capital and
general corporate purposes, including the acquisition of Circle K. The New
Credit Agreement converts the existing credit agreement, which was a secured,
working capital revolving loan agreement which permitted borrowings based on a
borrowing base, to an unsecured facility, without any borrowing base. The New
Credit Agreement also substantially modifies the financial covenants to provide
Tosco with more flexibility.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds to Tosco from the sale of the Debt Securities offered hereby will be
used to pay a portion of the purchase price for the acquisition of Circle K. The
balance of the cash portion of the purchase price, including working capital,
for Circle K will come from Tosco's available cash and from borrowings under the
New Credit Agreement. See "Recent Developments." Any remaining proceeds will be
used for general corporate purposes.
4
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------
1995 1994 1993 1992 1991
----- ----- ----- ----- -----
2.49x 2.83x 3.28x 2.71x 3.55x
For the purpose of computing the above ratio of earnings to fixed charges,
earnings consist of consolidated income from operations before income taxes and
fixed charges. Fixed charges consist of interest on outstanding debt, one third
(the proportion deemed representative of the interest factor) of net rentals and
amortization of debt discount and expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Securities") and the extent,
if any, to which such general provisions may not apply thereto will be described
in the Prospectus Supplement relating to such Offered Securities.
The Debt Securities are to be issued in one or more series (each such
series a "Series") under an Indenture (the "Indenture") between the Company and
State Street Bank and Trust Company, as Trustee (the "Trustee"). The form of the
Indenture is included as an exhibit to the Registration Statement.
GENERAL
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that debt securities of any Series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indenture does not limit the amount of other
indebtedness or securities which may be issued by the Company. All Debt
Securities will be unsecured and will not rank below any other unsecured
indebtedness of the Company. The Trustee will authenticate and deliver Debt
Securities executed and delivered to it by the Company as set forth in the
Indenture.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each Series of the Offered Securities in respect of which this
Prospectus is being delivered: (i) the title of the Offered Securities; (ii) any
limit upon the aggregate principal amount of the Offered Securities; (iii) if
other than 100% of the principal amount, the percentage of their principal
amount at which the Offered Securities will be offered; (iv) the date or dates
on which the principal of the Offered Securities will be payable (or method of
determination thereof); (v) the rate or rates (or method of determination
thereof) at which the Offered Securities will bear interest, if any, the date or
dates from which any such interest will accrue and on which such interest will
be payable, and the record dates for the determination of the holders, to whom
interest is payable; (vi) if other than as set forth herein, the place or places
where the principal of and interest, if any, on the Offered Securities will be
payable; (vii) the price or prices at which, the period or periods within which
and the terms and conditions upon which Offered Securities may be redeemed, in
whole or in part, at the option of the Company; (viii) the obligation, if any,
of the Company to redeem, repurchase or repay Offered Securities, whether
pursuant to any sinking fund or analogous provisions or pursuant to other
provisions set forth therein or at the option of a holder thereof; (ix) the
events of default or covenants relating to the Offered Securities, to the extent
different or in addition to those described herein; (x) whether the Offered
Securities will be issued in certificated and/or book-entry form; (xi) whether
the Offered Securities will be in registered or bearer form and the
denominations thereof; and (xi) any other terms or conditions not inconsistent
with the provisions of the Indenture upon which the Offered Securities will be
offered.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Securities, principal and interest, if any, will be payable, and the
Debt Securities will be transferable and exchangeable, at the office or offices
or agency maintained by the Company for such purposes, provided that payment of
interest on the Debt Securities will be paid at such place of payment by check
mailed to the persons entitled thereto at the addresses of such persons
appearing on the Security Register. Interest on the Debt Securities will be
payable on any interest payment date to the persons in whose name the Debt
Securities are registered at the close of business on the record date with
respect to such interest payment date.
5
<PAGE>
Unless otherwise set forth in the Prospectus Supplement, Debt Securities
may be issued only in fully registered form in minimum denominations of $1,000
and any integral multiple thereof. Debt Securities may be exchanged for an equal
aggregate principal amount of Debt Securities of the same Series and date of
maturity in such authorized denominations as may be requested upon surrender of
the Debt Securities at an agency of the Company maintained for such purpose and
upon fulfillment of all other requirements of such agent. No service charge will
be made for any transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate which, at the time of issuance, is
below the prevailing market rate, will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the applicable
Prospectus Supplement.
The Indenture requires the annual filing by the Company with the Trustee of
a certificate as to compliance with all conditions and covenants contained in
the Indenture.
The Company will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of the Company to purchase Offered Securities at
the option of the holders thereof. Any such obligations applicable to a Series
of Debt Securities will be described in the Prospectus Supplement relating
thereto.
Unless otherwise described in a Prospectus Supplement relating to any
Offered Securities, there are no covenants or provisions contained in the
Indenture which may afford the holders of Offered Securities protection in the
event of a highly leveraged transaction involving the Company. Except as
otherwise described in the Prospectus Supplement, any such covenants or
provisions will not be subject to waiver by the Company's Board of Directors
without the consent of the holders of not less than a majority in principal
amount of Debt Securities of each Series as described under "Modification of the
Indenture" below.
GLOBAL SECURITY
Unless otherwise set forth in the Prospectus Supplement, upon issuance,
each series of Debt Securities will be represented by a single global security
(the "Global Security") which will be deposited with, or on behalf of, The
Depository Trust Company (the "Depositary") and will be registered in the name
of the Depositary or a nominee of the Depositary.
Upon the issuance of the Global Security, the Depositary or its nominee
will credit on its book-entry registration and transfer system the respective
principal amounts of the individual Debt Securities represented by the Global
Security to the accounts of persons that have accounts with such Depositary
("Participants"). Such accounts shall be designated by the underwriters, if any.
Ownership of beneficial interests in the Global Security will be limited to
Participants or persons that may hold interests through Participants. Ownership
of beneficial interests in the Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary or its nominee (with respect to interests of Participants) and
the records of Participants (with respect to interests of persons who hold
through Participants). The laws of some states require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depositary, or its nominee, is the registered owner of the
Global Security, the Depositary or the nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented by the
Global Security for all purposes under the Indenture. Except as provided below,
owners of beneficial interests in the Global Security will not be entitled to
have any of the individual Debt Securities represented by the Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest (if any) on
individual Debt Securities represented by the Global Security registered in the
name of the Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security.
None of the Company, the Trustee, any Paying
6
<PAGE>
Agent, or the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interest of the Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company has been advised by the Depositary that, upon receipt of any
payment of principal, premium or interest in respect of the Global Security, the
Depositary immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the principal
amount of the Global Security as shown on the records of the Depositary.
Payments by Participants to owners of beneficial interests in the Global
Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such Participants.
If the Depositary is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue individual Debt Securities in
exchange for the Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue
individual Debt Securities in exchange for the Global Security for such series.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in the Global Security may, on terms
acceptable to the Company, the Trustee and the Depositary, receive individual
Debt Securities in exchange for such beneficial interests. In any such instance,
an owner of a beneficial interest in the Global Security will be entitled to
physical delivery of individual Debt Securities equal in principal amount to
such beneficial interest and to have such Debt Securities registered in its
name. Individual Debt Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Company, of $1,000 and integral
multiples thereof.
Except as provided above, owners of beneficial interests in the Global
Security will not be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered the holders thereof for any purposes
under the Indenture. Accordingly, each person owning a beneficial interest in a
Global Security for a series of Debt Securities must rely on the procedures of
the Depositary and, if such person is not a Participant, on the procedures of
the Participant through which such person owns its interest, to exercise any
rights of a holder of such securities under the Indenture. The Depositary may
grant proxies and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a holder is entitled to give or take under the Indenture. The Company
understands that under existing industry practices, in the event that the
Company requests any action of holders or that an owner of a beneficial interest
in the Global Security desires to give or take any action to which a holder is
entitled to give or take under the Indenture, the Depositary would authorize the
Participants holding the relevant beneficial interests to give or take such
action, and such Participants would authorize beneficial owners owning through
such Participants to give or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
The Depositary has advised the Company that the Depositary is a
limited-purpose trust company organized under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the Exchange Act. The Depositary was created to hold the
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers (including the
underwriters, if any), banks, trust companies, clearing corporations, and
certain other organizations, some of whom (and/or the representatives) own the
Depositary. Access to the Depositary's book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a participant either directly or
indirectly.
COVENANTS
Any applicable covenants with respect to the Offered Securities will be
described in the Prospectus Supplement.
EVENTS OF DEFAULT
As to any Series of Debt Securities, the Indenture defines the following
events as "Events of Default": (a) failure to pay interest on any Debt Security
of such series after the interest becomes due and payable and continuance of
such
7
<PAGE>
default for a period of 30 days; (b) failure to pay all or any portion of the
principal of any Debt Security of such Series when such principal becomes due
and payable at maturity without any grace period; (c) default in the
performance, or breach, of any other covenant of the Company for the benefit of
the Debt Securities of such Series that continues for a period of 30 days (or
such other period specified in such other document) after written notice of such
default has been given (i) to the Company by the Trustee or (ii) to the Company
and the Trustee by the holders of at least 25% of the Debt Securities of such
Series then outstanding; (d) the occurrence of a default under any indebtedness
aggregating in excess of $10,000,000 (i) resulting from the failure to pay
principal at maturity or (ii) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity; (e) final
judgments against the Company or any Subsidiary in excess of $10,000,000 which
remain undischarged for 60 days; or (f) certain events of bankruptcy,
insolvency, or reorganization which are voluntary or, if involuntary, continue
for a period of 90 days.
Additional Events of Default may be added for the benefit of holders of
certain Series of Debt Securities which, if added, will be described in the
Prospectus Supplement relating to such Debt Securities. The Indenture provides
that the Trustee shall notify the holders of Debt Securities of each Series of
any continuing default known to the Trustee which has occurred with respect to
that Series within 90 days after the occurrence thereof. The Indenture provides
that notwithstanding the foregoing, except in the case of default in the payment
of the principal of or interest on any of the Debt Securities of such Series the
Trustee may withhold such notice if the Trustee in good faith determines that
the withholding of such notice is in the interests of the holders of Debt
Securities of such Series.
The Indenture provides that if an Event of Default (other than an Event of
Default described in clause (f) above) with respect to any Series of Debt
Securities shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of Debt Securities of
that Series then outstanding may declare the principal amount of, and accrued
and unpaid interest on, all Debt Securities of that Series to be due and payable
immediately. Upon certain conditions such acceleration may be annulled. The
Indenture provides that if an Event of Default described in clause (f) shall
have occurred and be continuing, the principal amount of (and accrued and unpaid
interest on) all Debt Securities of all Series shall ipso facto become due and
payable immediately, without any declaration or other act on the part of the
Trustee or any holder. Any past defaults and the consequences thereof (except a
default in the payment of principal of or interest on Debt Securities of that
Series) may be waived by the holders of a majority in principal amount of the
Debt Securities of that Series then outstanding. The Indenture also permits the
Company not to comply with certain covenants in the Indenture with respect to
Debt Securities of any Series upon waiver by the holders of a majority in
principal amount of the Debt Securities of such Series then outstanding.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default with respect to any Series of Debt
Securities shall occur and be continuing, the Trustee shall not be under any
obligation to exercise any of the trust powers vested in it by the Indenture at
the request or direction of any of the holders of that Series, unless such
holders shall have offered to the Trustee reasonable security or indemnity. The
holders of a majority in aggregate principal amount of the Debt Securities of
each Series affected and then outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee under the Indenture or exercising any trust power conferred on the
Trustee with respect to the Debt Securities of that Series; provided that the
Trustee may refuse to follow any direction which is in conflict with any law or
the Indenture and subject to certain other limitations.
No holder of any Debt Securities of any Series will have any right by
virtue or by availing of any provision of the Indenture to institute any
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to the Indenture or for any remedy thereunder, unless such holder
shall have previously given the Trustee written notice of an Event of Default
with respect to Debt Securities of that Series and unless also the holders of at
least 25% in aggregate principal amount of the outstanding Debt Securities of
that Series shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceeding as trustee and the Trustee shall
have failed to institute such proceeding within 60 days after its receipt of
such request, and the Trustee shall not have received from the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
that Series a direction inconsistent with such request. However, the right of a
holder of any Debt Security to receive payment of the principal of and any
interest on such Debt Security on or after the due dates expressed in such Debt
Security, or to institute suit for the enforcement of any such payment on or
after such dates, shall not be impaired or affected without the consent of such
holder.
8
<PAGE>
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation, or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under the Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing.
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture with respect to any Series (except for certain specified
surviving obligations including, among other things, the Company's obligation to
pay the principal of and interest on the Debt Securities of such Series) will be
discharged and cancelled upon the satisfaction of certain conditions, including
the payment of all principal of and interest on all the Debt Securities of such
Series or the deposit with the Trustee of cash or appropriate Government
Obligations or a combination thereof sufficient for such payment or redemption
in accordance with the Indenture and the terms of the Debt Securities of such
Series.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities of each Series at the time outstanding
under the Indenture, to execute supplemental indentures adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture or any supplemental indenture with respect to the Debt Securities of
such Series or modifying in any manner the rights of the holders of the Debt
Securities of such Series; provided that no such supplemental indenture may (i)
extend the stated maturity of the principal of any Debt Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereof, or reduce any amount payable on
redemption thereof (including any amount with respect to original issue
discount), or reduce the amount of original issue discount security payable upon
acceleration or provable in bankruptcy, or impair or affect the right of any
holder of Debt Securities to institute suit for payment thereof, or, if the Debt
Securities provide therefor, any right of repayment at the option of the holders
of the Debt Securities, without the consent of the holder of each Debt Security
so affected, or (ii) reduce the aforesaid percentage of Debt Securities of such
Series, the consent of holders of which is required for any such supplemental
indenture, without the consent of the holders of all Debt Securities of such
Series so affected. Additionally, in certain prescribed instances, including the
establishment of the forms or terms of Debt Securities of any Series, the
Company and the Trustee may execute supplemental indentures without the consent
of the holders of Debt Securities.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, if such provision is made applicable to the Debt
Securities of any Series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest on, all Debt Securities of such Series when
due) ("defeasance") or (b) to be released from its obligations with respect to
such Debt Securities upon the deposit with the Trustee, in trust for such
purpose, of money and/or Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money, in an
amount sufficient (in the opinion of a nationally recognized firm of independent
public accountants) to pay the principal of and interest, if any, on the
outstanding Debt Securities of such Series, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor. Such a trust
may be established only if, among other things, the Company has delivered to the
Trustee an opinion of counsel (as specified in the Indenture) with regard to
certain matters, including an opinion to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and discharge and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and
9
<PAGE>
defeasance had not occurred. The Prospectus Supplement may further describe
these or other provisions, if any, permitting defeasance or covenant
defeasance with respect to the Debt Securities of any Series.
CERTAIN DEFINITIONS
The terms set forth below are defined in the Indenture as follows:
"Government Obligations" means, unless otherwise specified pursuant to the
Indenture, securities which are (i) direct obligations of the United States
government for which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by, or acting as an agency or instrumentality
of, the United States government, the payment of which obligations is
unconditionally guaranteed by the United States government, and which, in either
case, are full faith and credit obligations of the United States government, and
which are not callable or redeemable at the option of the issuer thereof prior
to their stated maturity.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of the
outstanding capital stock (or other interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, general
partners, managers, managing members, managing partners or trustees thereof or,
if such persons are not elected, to vote on any matter that is submitted to the
vote of all persons holding ownership interests in such entity) is at the time
owned or controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
APPLICABLE LAW
The Debt Securities and the Indenture will be governed by, and construed in
accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEE
The Trustee may provide various commercial banking services to the Company
from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Offered Securities will be named, and any commissions payable by the Company
to such agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as the term is defined in the Securities Act, of the Debt
Securities so offered and sold. Agents may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engaged in transactions with or perform services for the Company
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
Offered Securities. The underwriters may be entitled under the relevant
underwriting agreement to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
If a dealer is utilized in the sale of Offered Securities, the Company will
sell such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. Dealers may be entitled, under agreements
which may be entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
such
10
<PAGE>
dealers or their affiliates may be customers of, extend credit to or engage
in transactions with, or perform services for the Company in the ordinary course
of business. The name of any dealer and the terms of the transactions will be
set forth in the Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the Prospectus Supplement
relating thereto.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the Prospectus Supplement.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Debt Securities
offered hereby will be passed upon for the Company by Stroock & Stroock & Lavan
of New York, New York.
EXPERTS
The consolidated balance sheets of Tosco as of December 31, 1995 and 1994,
and the consolidated statements of income, common shareholders' equity (deficit)
and cash flows, and the financial statement schedules, for each of the three
years in the period ended December 31, 1995, incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
The audited consolidated financial statements of Circle K incorporated in
this Prospectus by reference from Tosco's Current Report on Form 8-K filed on
April 25, 1996 have been audited by Coopers & Lybrand L.L.P., independent
accountants, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth the estimated expenses in connection with the
issuance and distribution of the Registrant's securities being registered
hereby, other than underwriting discounts and commissions, all of which will be
borne by the Registrant:
Securities and Exchange Commission registration fee ...... $ 25,862*
Printing and engraving expenses .......................... 75,000
Legal fees and expenses .................................. 40,000
Accounting fees and expenses ............................. 25,000
Blue Sky fees and expenses ............................... 10,000
Trustee's Fees ........................................... 10,000
Miscellaneous expenses ................................... 4,138
--------
Total .................................................. $190,000
========
- ------------
* A fee of $43,104 was previously paid in connection with the registration of
$125,000,000 maximum aggregate offering price of securities which are being
carried forward to this Registration Statement from Registration Statement
No. 33-59423.
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.
The By-Laws of the Registrant also provide that the Registrant shall
indemnify officers and Directors of the Registrant, for, among other things, any
threatened, pending, or completed action, suit or proceeding if he acted in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the Registrant, and, in the case of a criminal action or
proceeding, he had no reasonable cause to believe that his conduct was unlawful.
The Registrant continues to maintain Directors and officers liability
insurance policies. The Registrant presently carries $14 million 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
II-1
<PAGE>
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.
The Registrant has entered into indemnification agreements with its
Directors which provide that the Registrant will indemnify such Directors for,
among other things, their expenses in any threatened, pending, or completed
action, suit, proceeding, inquiry or investigation, except where the Registrant
is prohibited by law from paying such expenses, where payment of such expenses
is made by an insurance policy, and certain cases involving the dishonesty of
the Director, including certain securities law violations, and where the
Director initiated the matter against the Registrant.
Reference is made to the Standard Provisions of the Underwriting Agreement,
incorporated by reference as Exhibit 1.1 hereto, which provides certain
indemnification rights to Directors and officers of the Registrant.
ITEM 16. EXHIBITS.
1.1 -- Form of Standard Provisions of the Underwriting Agreement.
Incorporated by reference to Exhibit 1.1 to the Registrant's
Registration Statement on Form S-3 (File No. 33-59423) filed on May 18,
1995.
2.1 -- Agreement and Plan of Merger, dated as of February 16, 1996, among
the Registrant, Tosco Acquisition Sub, Inc. and The Circle K
Corporation. Incorporated by reference to Exhibit 2 to the Registrant's
Schedule 13D dated February 23, 1996, filed with respect to The Circle K
Corporation.
2.2 -- Stock Sale Agreement, dated as of February 16, 1996, among the
Registrant and the selling stockholders of The Circle K Corporation
named therein. Incorporated by reference to Exhibit 1 to the
Registrant's Schedule 13D dated February 23, 1996, filed with respect to
The Circle K Corporation.
4.1*-- Form of Indenture between Registrant and State Street Bank and Trust
Company, as Trustee, relating to Debt Securities (including Form of Debt
Security).
5.1*-- Opinion of Stroock & Stroock & Lavan as to the legality of the Debt
Securities.
12.1*-- Statement regarding computation of ratio of earnings to fixed charges.
23.1*-- Consent of Stroock & Stroock & Lavan (included in Exhibit 5.1).
23.2 -- Consent of Coopers & Lybrand L.L.P.
23.3 -- Consent of Coopers & Lybrand L.L.P.
24.1*-- Power of attorney (included in Part II of this Registration Statement).
25.1*-- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of State Street Bank and Trust Company. Such
statement is bound separately from the other exhibits to this
Registration Statement.
- ---------
* Previously filed.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
1993 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and 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 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the 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.
(c) The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the 1933 Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the Registrant
after the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by the
Registrant and no reoffering of such securities by the purchasers is proposed to
be made.
(d) Insofar as indemnification for liabilities arising under the Securities
Act 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.
II-3
<PAGE>
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
(f) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended
(the "Act"), in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
II-4
<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 Amendment to
Registration Statement Nos. 33-59423 and 333-2521 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Stamford, State of
Connecticut, on April 29, 1996.
TOSCO CORPORATION
*
By: -----------------------------------
THOMAS D. O'MALLEY
CHAIRMAN OF THE BOARD OF DIRECTORS
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement Nos. 33-59423 and 333-2521 has been signed below by
the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
*
- ------------------------- Chairman of the Board of
THOMAS D. O'MALLEY Directors and Chief
Executive Officer April 29, 1996
*
- ------------------------- Principal Financial Officer
JEFFERSON F. ALLEN and Director April 29, 1996
*
- ------------------------- Principal Accounting Officer April 29, 1996
ROBERT I. SANTO
*
- ------------------------- Director April 29, 1996
JOSEPH B. CARR
*
- ------------------------- Director April 29, 1996
PATRICK M. DEBARROS
- ------------------------- Director , 1996
HOUSTON I. FLOURNOY
*
- ------------------------- Director April 29, 1996
CLARENCE G. FRAME
*
- ------------------------- Director April 29, 1996
EDMUND A. HAJIM
*
- ------------------------- Director April 29, 1996
JOSEPH P. INGRASSIA
*
- ------------------------- Director April 29, 1996
CHARLES J. LUELLEN
*By /s/ WILKES McCLAVE
---------------------
WILKES McCLAVE,
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
- -------
1.1 -- Form of Standard Provisions of the Underwriting Agreement.
Incorporated by reference to Exhibit 1.1 to the Registrant's
Registration Statement on Form S-3 (File No. 33-59423) filed on May 18,
1995.
2.1 -- Agreement and Plan of Merger, dated as of February 16, 1996, among the
Registrant, Tosco Acquisition Sub, Inc. and The Circle K Corporation.
Incorporated by reference to Exhibit 2 to the Registrant's Schedule 13D
dated February 23, 1996, filed with respect to The Circle K Corporation.
2.2 -- Stock Sale Agreement, dated as of February 16, 1996, among the
Registrant and the selling stockholders of The Circle K Corporation
named therein. Incorporated by reference to Exhibit 1 to the
Registrant's Schedule 13D dated February 23, 1996, filed with respect to
The Circle K Corporation.
4.1*-- Form of Indenture between Registrant and State Street Bank and Trust
Company, as Trustee, relating to Debt Securities (including Form of Debt
Security).
5.1*-- Opinion of Stroock & Stroock & Lavan as to the legality of the Debt
Securities.
12.1*-- Statement regarding computation of ratio of earnings to fixed charges.
23.1*-- Consent of Stroock & Stroock & Lavan (included in Exhibit 5.1).
23.2 -- Consent of Coopers & Lybrand L.L.P.
23.3 -- Consent of Coopers & Lybrand L.L.P.
24.1*-- Power of attorney (included in Part II of this Registration Statement).
25.1*-- Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of State Street Bank and Trust Company. Such
statement is bound separately from the other exhibits to this
Registration Statement.
- -----------
* Previously filed.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Tosco Corporation on Amendment No. 1 to Form S-3 (File No. 333-2521) and
Post-Effective Amendment No. 2 to the registration statement of Tosco
Corporation on Form S-3 (File No. 33-59423) of our report dated January 25,
1996, except as to the information in Note 16, for which the date is February
16, 1996, on our audits of the consolidated financial statements and the
financial statement schedule of Tosco Corporation. We also consent to the
reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Oakland California
April 29, 1996
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment No. 1 to the
registration statement of Tosco Corporation on Form S-3 (File No. 333-2521) and
Post-Effective Amendment No. 2 to the registration statement of Tosco
Corporation on Form S-3 (File No. 33-59423) of our report dated June 14, 1995,
on our audits of the consolidated financial statements of The Circle K
Corporation and subsidiaries ("Circle K") as of April 30, 1995 and 1994, and for
the year ended April 30, 1995 and for the period from July 27, 1993 (date of
inception) to April 30, 1994, and the consolidated statements of operations,
stockholders' equity, and cash flows of Circle K's predecessor and its
subsidiaries for the period from May 1, 1993 to July 26, 1993 and the year ended
April 30, 1993, which report is included in Tosco Corporation's Current Report
on Form 8-K, dated April 24, 1996. We also consent to the reference to our firm
under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Phoenix, Arizona
April 29, 1996
