As filed with the Securities and Exchange Commission on January 22, 1997
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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.
Senior 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)
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Copy to:
MARTIN H. NEIDELL, ESQ.
STROOCK & STROOCK & LAVAN
Seven Hanover Square
New York, N.Y. 10004-2594
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Approximate date of commencement of proposed sale to public:
From time to time after this Registration Statement becomes effective.
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<PAGE>
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/
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------
Proposed
Proposed Maximum
Title of each Class Maximum Aggregate
of Securities to be Amount to be Offering Price Offering Amount of
Registered(1) Registered(1) Per Unit(2) Price(2) Registration Fee
- ---------------------------------------------------------------------------
Debt Securities
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Common Stock,
$.75 par value
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Preferred Stock, $1.00
par value
- ---------------------------------------------------------------------------
Depositary Shares
representing Preferred
Stock
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Total $1,500,000,000 100% $1,500,000,000 $454,545 (3)
- ---------------------------------------------------------------------------
(1) Securities registered hereunder may be sold separately, together or as
units with other securities registered hereunder. The securities
hereunder also include such indeterminate number of shares of Common
Stock and Preferred Stock that may be issued upon conversion of
convertible debt securities or convertible preferred stock.
(2) The proposed maximum offering price per unit will be determined from
time to time by the Registrant in connection with the offering price of
all securities registered hereunder.
(3) Estimated solely for purposes of calculating the registration fee.
In no event will the aggregate maximum offering price of all
securities issued under this Registration Statement exceed
$1,500,000,000, or if any Debt Securities are issued with original
issue discount, such greater amount as shall result in proceeds of
$1,500,000,000 to the Registrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PROSPECTUS (Subject to Completion)
Issued January 22, 1997
$1,500,000,000
TOSCO CORPORATION
DEBT SECURITIES, COMMON STOCK, PREFERRED STOCK AND DEPOSITARY SHARES
Tosco Corporation ("Tosco" or the "Company") may offer and issue from
time to time up to $1,500,000,000 aggregate principal amount of its securities
consisting of (i) one or more series of debentures, notes or other unsecured
evidences of indebtedness (the "Debt Securities"), which may be either senior
debt securities ("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities"), (ii) shares of its Common Stock, par value
$.75 per share ("Common Stock"), (iii) shares of its Preferred Stock, par value
$1.00 per share ("Preferred Stock") and (iv) shares of Preferred Stock
represented by depositary shares (the "Depositary Shares"). The Debt Securities,
Common Stock, Preferred Stock and Depositary Shares (collectively, the
"Securities") may be offered, separately or together, in amounts, at prices and
on terms to be set forth in one or more supplements to this Prospectus (each a
"Prospectus Supplement").
The specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Common Stock,
any initial public offering price, (ii) in the case of Preferred Stock, the
specific title and stated value, any dividend, liquidation, redemption,
conversion, voting and other rights, and any initial public offering price,
(iii) in the case of Depositary Shares, the fractional share of Preferred Stock
represented by each Depositary Share and (iv) in the case of Debt Securities,
the specific title, series, aggregate principal amount, maturity, rate (or
manner of calculation thereof) and time of payment of interest, form (which may
be registered or bearer or certificated or global), authorized denominations,
terms for redemption at the option of the Company or repayment at the option of
the holder, terms for sinking fund payments, covenants, whether they are senior
or subordinate and any initial public offering price.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, Securities covered by
such Prospectus Supplement.
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 Securities may be offered directly or through agents designated
from time to time by the Company or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Securities
their names, and any applicable purchase price, fee, commission or discount
arrangement between or among them, will be set forth, or will be calculable from
the information set forth, in an accompanying Prospectus Supplement. No
Securities may be sold by the Company through agents, underwriters or dealers
without delivery of a Prospectus Supplement describing the method and terms of
the offering of such Securities. See "Plan of Distribution."
January , 1997
<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.
<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, 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. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
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
OFFER 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
INFORMATION SET FORTH IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT OR 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. Such reports and other information filed with the
Commission may also be available at the Commission's site on the World Wide Web
located at http://www.sec.gov. 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. 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.
<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.
2. Quarterly report on Form 10-Q for the quarter ended March
31, 1996.
3. Quarterly report on Form 10-Q for the quarter ended June 30,
1996.
4. Quarterly report on Form 10-Q for the quarter ended
September 30, 1996.
5. Current reports on Form 8-K filed on April 25, 1996, June
12, 1996 and December 27, 1996 and Form 8-K/A filed on
August 12, 1996.
6. Proxy Statement for 1996 Annual Meeting of Stockholders.
7. Proxy Statement dated January 10, 1997 for Special Meeting
of Stockholders.
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 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).
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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 ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-
THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
THE COMPANY
Tosco is one of the largest independent refiners and marketers of
petroleum products in the United States, operating principally on the East and
West Coasts of the United States. Tosco, through its Avon Refinery located in
the San Francisco Bay Area, Ferndale Refinery located on Puget Sound north of
Seattle, and Bayway Refinery located in Linden, New Jersey, processes
approximately 550,000 barrels per day of crude oil and other feedstocks into
various petroleum products. Tosco also owns a refinery located in Trainer,
Pennsylvania, near Philadelphia. Operations at this 150,000 barrel per day
facility are currently suspended and the plant is undergoing a modernization and
upgrading program which is expected to be completed in June 1997, when
operations are expected to recommence. Through its retail distribution network,
Tosco has approximately 8,000,000 gallons per day of retail fuel sales. Tosco
has extensive distribution facilities and also engages in related commercial
activities throughout the United States and internationally. With the
acquisition of The Circle K Corporation in May 1996, Tosco is the nation's
largest operator of company-controlled convenience stores. Tosco also has
interests in oil shale properties in Colorado and Utah.
On December 14, 1996, Tosco entered into a definitive agreement to
acquire the West Coast petroleum refining, marketing and related supply and
transportation assets of Union Oil Company of California ("Unocal"). See
"Acquisition of Unocal Refining and Marketing Assets." Upon completion of the
proposed acquisition, Tosco would be the largest independent refiner and
marketer in the United States, with over 950,000 barrels per day of refining
capacity and approximately 12,000,000 gallons per day of retail fuel sales
through more than 5,300 sites.
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.
ACQUISITION OF UNOCAL REFINING AND MARKETING ASSETS
On December 14, 1996, Tosco entered into a definitive Sale and
Purchase Agreement (the "Agreement") with Unocal to acquire Unocal's West Coast
petroleum refining, marketing and related supply and transportation assets for a
purchase price of approximately $1.4 billion, plus the value of inventory as of
the closing date (the "Acquisition"). In addition, Unocal will be entitled to
receive contingent participation payments over the next seven years, up to a
maximum amount of $250 million, if the margin on dealer tank wagons exceeds a
base index and/or the differential between California Air Resources Board Phase
II gasoline and conventional gasoline exceeds a base index. For a period of 25
years, Unocal will be responsible for environmental liabilities arising out of
or relating to the period prior to the closing, except that Tosco will pay the
first $7 million of such environmental liabilities each year, plus 40% of any
amounts in excess of $7 million per year, with Unocal paying the remaining 60%
each year. The aggregate maximum amount that Tosco may have to pay in total for
25 years for such environmental liabilities is limited to $200 million.
Environmental liabilities assumed by Tosco pursuant to the Acquisition will be
reserved for at the time of Acquisition.
The assets to be acquired from Unocal include the following: two
petroleum refining systems comprised of four sites in California with an
aggregate throughput capacity of 250,000 barrels per day; a retail gasoline
system, consisting of approximately 1,350 76-branded gasoline stations,
approximately 1,100 of which are company-controlled, which currently sells over
100,000 barrels per day of gasoline and diesel fuel; a distribution system
comprised of 13 company-owned oil storage terminals, three modern American-flag
40,000 deadweight-ton tankers and 1,500 miles of crude oil and product pipeline;
the worldwide rights to the "76" and "Union 76" brands, together with the
distinctive orange ball logo, in the petroleum refining and marketing
businesses, except for pre-existing license grants relating to 76 Truckstops and
to Uno-Ven; and Unocal's lubricants manufacturing, distribution and marketing
business.
Consummation of the Acquisition is subject to the satisfaction of a
number of conditions, including obtaining governmental regulatory approvals,
approval by Tosco's stockholders of an amendment to its charter to allow for the
issuance of additional shares of Tosco's Common Stock and the satisfaction of
other conditions normally contained in transactions of this type. Pursuant to
the Agreement, on January 15, 1997, Tosco deposited into an escrow account $1
billion in cash or equivalents and the right to receive $400 million of Common
Stock of Tosco. Tosco will not be required to issue Common Stock having a value
of less than $45 per share. The number of shares of Common Stock to which Unocal
will be entitled will be determined based on the average Tosco stock prices for
the ten days preceding the date Unocal would be entitled to receive such shares.
If the price is below $45 per share, each of Tosco and Unocal will have
specified rights. If the charter amendment is not approved and Tosco does not
elect to pay the entire purchase price in cash, either party has the right to
terminate the Agreement and Unocal would receive a $20 million break-up fee. If
Unocal receives shares of Common Stock, it will be granted registration rights
to sell such shares and will enter into an agreement with Tosco restricting its
right to sell such shares or acquire additional shares, agreeing to vote such
shares at all stockholder meetings in proportion to the votes of other
stockholders and undertaking not to take or influence the control of Tosco.
The Acquisition is presently expected to close in the first quarter of
1997. There is no assurance that the Acquisition will be consummated.
RECENT FINANCINGS
In December 1996, Tosco Financing Trust, a Delaware statutory business
trust (the "Trust"), sold an aggregate of 6 million 5-3/4% trust convertible
preferred securities (the "Convertible Preferred Securities") for a total sales
price of $300 million in cash. Tosco owns all the common securities of the
Trust. The proceeds received by the Trust from the sale of the Convertible
Preferred Securities were used by the Trust to acquire $300 million of 5-3/4%
Convertible Junior Subordinated Debentures due December 15, 2026 of Tosco. The
Convertible Preferred Securities are convertible at any time from and after
March 15, 1997 and prior to December 15, 2026 into shares of Common Stock of
Tosco at an initial conversion rate of .50633 shares of Tosco Common Stock for
each Convertible Preferred Security (equivalent to a conversion price of $98.75
per share of Tosco Common Stock). The conversion price will be reset if the
Acquisition is terminated or not consummated on or prior to December 31, 1997.
The proceeds were used to pay down borrowings under Tosco's Credit Agreement (as
defined herein) and to the payment of $100 million of 9% First Mortgage Bonds
due March 15, 1997.
On January 14, 1997, Tosco sold an aggregate of $600 million of notes
(the "Notes"), consisting of $200 million of 7.25% notes due 2007, $300 million
of 7.80% debentures due 2027 and $100 million of 7.90% debentures due 2047. The
proceeds from the Notes will be used to finance the Acquisition and have been
placed in escrow pursuant to the Agreement.
On January 14, 1997, Tosco entered into an amended and restated
revolving credit agreement (the "New Credit Agreement"), which expanded Tosco's
existing revolving credit agreement (the "Credit Agreement") from $600 million
to $1 billion. The increased amount of availability will be used to finance the
Acquisition and for working capital purposes.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds to Tosco from the sale of the Securities offered hereby will be
used for general corporate purposes, which may include financing the
Acquisition. The balance of the cash portion of the purchase price for the
Acquisition, including working capital, will come from Tosco's available cash,
from borrowings under the New Credit Agreement, and from the net proceeds
received from Tosco's sale of the Notes.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges
for the periods indicated.
- ----------------------- -----------------------------------------------------
Nine Months Ended
September 30, Years Ended December 31,
- ----------------------- -----------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
- ----------------------- -----------------------------------------------------
3.28x 2.08x 2.49x 2.83x 3.28x 2.71x 3.55x
The following table sets forth the ratio of earnings to combined fixed
charges and preferred stock dividends for the periods indicated.
- ------------------------ ----------------------------------------------------
Nine Months Ended
September 30, Years Ended December 31,
- ------------------------ ----------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
- ------------------------ ----------------------------------------------------
3.28x 2.08x 2.49x 2.31x 2.25x 1.42x 2.78x
For the purpose of computing the above ratios, 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. Fixed charges and preferred stock dividends include
the foregoing, plus dividends on preferred stock adjusted to a pre-tax basis.
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 Senior Debt Securities are to be issued in one or more series (each
such series a "Series") under an Indenture dated as of May 1, 1996, to be
supplemented by one or more supplemental indentures (the "Senior Indenture")
between the Company and State Street Bank and Trust Company, as Trustee (the
"Trustee"). The form of the Senior Indenture is included as an exhibit to the
Registration Statement. The Subordinated Debt Securities are to be issued under
a separate indenture to be entered into between the Company and the Trustee (the
"Subordinated Indenture"). The form of Subordinated Indenture will be filed in
connection with any offering of Subordinated Debt. The Senior Indenture and
Subordinated Indenture are collectively referred to herein as the "Indentures."
GENERAL
The Indentures do not limit the amount of Debt Securities which can be
issued thereunder and provide 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 Indentures do not limit the amount of other
indebtedness or securities which may be issued by the Company. All Senior Debt
Securities will be unsecured and will not rank below any other unsecured
indebtedness of the Company. The Subordinated Debt Securities when issued will
be subordinated in right of payment to the prior payment in full of all Senior
Debt of the Company, as described under "Subordination of Subordinated Debt
Securities" and in the applicable Prospectus Supplement. The Trustee will
authenticate and deliver Debt Securities executed and delivered to it by the
Company as set forth in the Indentures.
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 from 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; (xii) whether the Debt Securities
offered will be Senior Debt Securities or Subordinated Debt Securities; (xiii)
if applicable, the terms of any right to convert Debt Securities into shares of
Common Stock of the Company or other securities or property; and (xiv) any other
terms or conditions not inconsistent with the provisions of the Indentures 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.
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 or a floating rate.
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 Indentures require the annual filing by the Company with the
Trustee of a certificate as to compliance with all conditions and covenants
contained in the Indentures.
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
Indentures 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
Indentures" below.
CONVERSION RIGHTS
The terms on which Debt Securities of any Series are convertible into
Common Stock or other securities or property will be set forth in the Prospectus
Supplement relating thereto. Such terms shall include provisions as to whether
conversion is mandatory or at the option of the holder and may include
provisions pursuant to which the number of shares of Common Stock or other
securities or property to be received by the Holders of Debt Securities would be
calculated according to the market price of Common Stock or other securities or
property as of a time stated in the applicable Prospectus Supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Debt, including the Senior Debt Securities. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Debt will first be
entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the Holders of the Subordinated
Debt Securities will be entitled to receive or retain any payment in respect of
the principal of (and premium, if any) or interest, if any, on the Subordinated
Debt Securities.
By reason of such subordination, in the event of liquidation or
insolvency, creditors of the Company who are not holders of Senior Debt or are
Holders of Subordinated Debt Securities may recover less, ratably, than holders
of Senior Debt and may recover more, ratably, than the Holders of the
Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Subordinated
Debt Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Subordinated Debt Securities.
No payments on account of principal (or premium, if any) or interest,
if any, in respect of the Subordinated Debt Securities may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Debt, or an event of default with respect to any Senior Debt resulting in
the acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. For purposes of the subordination
provisions, the payment, issuance and delivery of cash, property or securities
(other than stock and certain subordinated securities of the Company) upon
conversion of a Subordinated Debt Security will be deemed to constitute payment
on account of the principal of such Subordinated Debt Security.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is allowed in such
proceeding), on indebtedness for borrowed money, whether incurred on or prior to
the date of the Subordinated Indenture or thereafter incurred, unless, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are not superior in right of
payment to the Subordinated Debt Securities or to other indebtedness for
borrowed money which is pari passu with, or subordinated to, the Subordinated
Debt Securities; provided, however, that Senior Debt shall not be deemed to
include the Subordinated Debt Securities.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Debt, which may include indebtedness that is senior to the
Subordinated Debt Securities, but subordinate to the other obligations of the
Company. The Senior Debt Securities, when issued, will constitute Senior Debt.
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular Series.
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 Indentures. 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 Indentures.
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 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 Debt Securities in definitive
registered form 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 Debt Securities in definitive registered form 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 Debt Securities in definitive registered form 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 Debt
Securities in definitive registered form equal in principal amount to such
beneficial interest. Debt Securities in definitive registered form 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 Indentures. 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 Indentures. 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 Indentures. 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 Indentures, 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 Indentures define 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 default for a period of 30 days (with respect to
Subordinated Debt Securities whether or not such payment is prohibited by the
subordination provisions of the Subordinated Indenture); (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 (with
respect to Subordinated Debt Securities whether or not such payment is
prohibited by the subordination provisions of the Subordinated Indenture); (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; or (d) 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 or the Events of Default may be changed, which
additions or changes will be described in the Prospectus Supplement relating to
such Debt Securities. The Indentures provide 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 Indentures provide 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 Indentures provide that if an Event of Default (other than an Event
of Default described in clause (d) 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
Indentures provide that if an Event of Default described in clause (d) 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 Indentures also permit the
Company not to comply with certain covenants in the Indentures 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 Indentures 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 Indentures 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 Indentures 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 Indentures 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 Indentures to institute any
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to the Indentures 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.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indentures provide 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 Indentures according to their tenor and the due
and punctual performance and observance of all of the covenants and conditions
of the Indentures 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 INDENTURES
The Indentures 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 Indentures and the terms of the
Debt Securities of such Series.
MODIFICATION OF THE INDENTURES
The Indentures contain 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 Indentures, to execute supplemental indentures adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, the Indentures 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, (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 or (iii) in the case of Subordinated
Debt Securities, modify the subordination provisions in a manner adverse to the
Holders of the Subordinated Debt Securities. 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 Indentures provide, 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 Indentures) 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 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 Indentures as follows:
"Government Obligations" means, unless otherwise specified pursuant to
the Indentures, 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 Indentures 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. Upon the occurrence of an Event of Default or an
event which, after notice or lapse of time or both, would become an Event of
Default, or upon the occurrence of a default under such other indenture, the
Trustee may be deemed to have a conflicting interest with respect to the Debt
Securities for purposes of the Trust Indenture Act of 1939 and, unless the
Trustee is able to eliminate any such conflicting interest, the Trustee may be
required to resign as Trustee under either the Subordinated Indenture or the
Senior Indenture. In that event, the Company would be required to appoint a
successor trustee for such Indenture.
DESCRIPTION OF PREFERRED STOCK
GENERAL
The Company is authorized to issue 12,000,000 shares of Preferred
Stock, $1.00 par value per share, of which no Preferred Stock was outstanding at
the date hereof. Subject to the limitations prescribed by the Articles of
Incorporation, the Board of Directors is authorized to fix the number of shares
constituting each series of Preferred Stock and the designations and powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including such provisions
as may be desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution of the Board of Directors.
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of a particular series of Preferred
Stock will be described in the Prospectus Supplement relating to that series. If
so indicated in the Prospectus Supplement, the terms of any such series may
differ from the terms set forth below. The description of certain provisions of
the Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is in all respects subject to and qualified in its
entirety by reference to the applicable provisions of the Company's Articles of
Incorporation and Bylaws and any applicable certificate of designations
supplementary to the Articles of Incorporation designating terms of a series of
Preferred Stock which will be filed with the Commission in connection with the
offering of such series of Preferred Stock.
The issuance of Preferred Stock could adversely affect the voting
power, dividend rights and other rights of holders of Common Stock. Issuance of
Preferred Stock also could, depending on the terms of such issue, either impede,
delay, prevent or facilitate a merger, tender offer or change in control of the
Company. Although the Board of Directors is required to make a determination as
to the best interests of the stockholders of the Company when issuing Preferred
Stock, the Board could act in a manner that would discourage an acquisition
attempt or other transaction that some, or a majority, of the stockholders might
believe to be in the best interests of the Company or in which stockholders
might receive a premium for their shares over the then prevailing market price.
Management believes that the availability of Preferred Stock will provide the
Company with increased flexibility in structuring possible further financing and
acquisitions and in meeting other needs that might arise.
TERMS
The Preferred Stock offered hereby will be issued in one or more
series. The Preferred Stock will, when issued, be fully paid and nonassessable
by the Company and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the
particular series of Preferred Stock offered thereby for specific terms,
including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such
Preferred Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred
Stock;
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred
Stock;
(7) The provision for redemption, if applicable, of such Preferred
Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into Common Stock of the
Company, including the conversion price (or manner of calculation
thereof);
(10) Whether interests in such Preferred Stock will be represented by
Depositary Shares;
(11) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(12) A discussion of federal income tax considerations applicable to
such Preferred Stock;
(13) The relative ranking and preferences of such Preferred Stock as
to dividend rights and rights upon liquidation, dissolution or
winding up of the Company; and
(14) Any limitations on issuance of any series of Preferred Stock
ranking senior to or on a parity with such series of Preferred
Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the Company.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Stock of the Company, and to all equity securities ranking
junior to such Preferred Stock; (ii) on a parity with all equity securities
issued by the Company the terms of which specifically provide that such equity
securities rank on a parity with the Preferred Stock; and (iii) junior to all
equity securities issued by the Company the terms of which specifically provide
that such equity securities rank senior to the Preferred Stock. The term "equity
securities" does not include convertible debt securities.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company, out
of funds legally available therefor, cash dividends at such rates and on such
dates as will be set forth in the applicable Prospectus Supplement. Different
series of the Preferred Stock may be entitled to dividends at different rates or
based upon different methods of determination. Such rates may be variable or
fixed or both. Each such dividend shall be payable to holders of record as they
appear on the share transfer books of the Company on such record dates as shall
be fixed by the Board of Directors of the Company. Dividends on any series of
the Preferred Stock may be cumulative or non-cumulative, as provided in the
applicable Prospectus Supplement.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company of
any other series ranking, as to dividends, on a parity with or junior to the
Preferred Stock of such series for any period unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series for all past dividend periods and the then current dividend period or
(ii) if such series of Preferred Stock does not have a cumulative dividend, full
dividends for the then current dividend period have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Preferred Stock of such series. When dividends
are not paid in full (or a sum sufficient for such full payment is not so set
apart) upon Preferred Stock of any series and the shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Preferred Stock of
such series, all dividends declared upon Preferred Stock of such series and any
other series of Preferred Stock ranking on a parity as to dividends with such
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Preferred Stock of such series and such other series of
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Preferred Stock of such series (which shall
not include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend) and such
other series of Preferred Stock bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i)
if such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for the then current divided
period, no dividends (other than in shares of Common Stock or other capital
shares ranking junior to the Preferred Stock of such series as to dividends and
upon liquidation) shall be declared or paid or set aside for payment or other
distribution shall be declared or made upon the Common Stock, or any other
capital shares of the Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or upon liquidation, nor shall
any shares of Common Stock, or any other capital shares of the Company ranking
junior to or on a parity with the Preferred Stock of such series as to dividends
or upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund for
the redemption of any such shares) by the Company (except by conversion into or
exchange for other capital shares of the Company ranking junior to the Preferred
Stock of such series as to dividends and upon liquidation).
REDEMPTION
The terms, if any, on which shares of a series of Preferred Stock may
be subject to mandatory redemption or redemption at the option of the Company,
as a whole or in part, will be set forth in the Prospectus Supplement applicable
to such series.
RIGHTS UPON LIQUIDATION
Upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, then, before any distribution or payment shall be made to the
holders of Common Stock or any other class or series of capital shares of the
Company ranking junior to such series of Preferred Stock, the holders of each
series of Preferred Stock shall be entitled to receive out of assets of the
Company legally available for distribution to shareholders liquidating
distributions in the amount of the liquidation preference per share (set forth
in the applicable Prospectus Supplement), plus an amount equal to accrued and
unpaid dividends for the then current dividend period and, if such series of
Preferred Stock is cumulative, for all dividend periods prior thereto, all as
set forth in the Prospectus Supplement with respect to such shares.
VOTING RIGHTS
Holders of the Preferred Stock will not be entitled to vote, except as
otherwise from time to time required by law or as indicated in the applicable
Prospectus Supplement.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred
Stock is convertible into shares of Common Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of shares of Common Stock into which the shares of Preferred Stock are
convertible, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the holders of the Preferred Stock or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such series of Preferred Stock.
SHAREHOLDER LIABILITY
Applicable Nevada law provides that no shareholder, including holders
of Preferred Stock, shall be personally liable for the acts and obligations of
the Company and that the funds and property of the Company shall be the only
recourse for such acts or obligations.
REGISTRAR AND TRANSFER AGENT
The registrar and transfer agent for the Preferred Stock will be set
forth in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable Prospectus
Supplement. Shares of Preferred Stock of each series represented by the
Depositary Shares will be deposited under a separate Deposit Agreement (each, a
"Deposit Agreement") among the Company, the depositary named therein (the
"Preferred Stock Depositary") and the holders from time to time of the
Depositary Receipts. Subject to the terms of the Deposit Agreement, each owner
of a Depositary Receipt will be entitled, in proportion to the fractional
interest of a share of a particular series of Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipt, to all the rights and
preferences of the Preferred Stock represented by such Depositary Shares
(including dividend, voting, conversion, redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to the Preferred Stock
Depositary, the Company will cause the Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the applicable form of
Deposit Agreement and Depositary Receipt may be obtained from the Company upon
request.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions received in respect of the Preferred Stock to the
record holders of Depositary Receipts evidencing the related Depositary Shares
in proportion to the number of such Depositary Receipts owned by such holders,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to the Preferred Stock
Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depositary, unless the Preferred Stock
Depositary determines that is it not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust
office of the Preferred Stock Depositary (unless the related Depositary Shares
have previously been called for redemption), the holders thereof will be
entitled to delivery at such office, to or upon such holders' order, of the
number of whole or fractional shares of the Preferred Stock and any money or
other property represented by the Depositary Shares evidenced by such Depositary
Receipts. Holders of Depositary Receipts will be entitled to receive whole or
fractional shares of the related Preferred Stock on the basis of the proportion
of Preferred Stock represented by each Depositary Share as specified in the
applicable Prospectus Supplement, but holders of such shares of Preferred Stock
will not thereafter be entitled to receive Depositary Shares therefor. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
shares of Preferred Stock to be withdrawn, the Preferred Stock Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held by the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the
same redemption date the number of Depositary Shares representing shares of the
Preferred Stock so redeemed, provided the Company shall have paid in full to the
Preferred Stock Depositary the redemption price of the Preferred Stock to be
redeemed plus an amount equal to any accrued and unpaid dividends thereon to the
date fixed for redemption. The redemption price per Depositary Share will be
equal to the redemption price and any other amounts per share payable with
respect to the Preferred Stock. If fewer than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company.
From and after the date fixed for redemption, all dividends in respect
of the shares of Preferred Stock so called for redemption will cease to accrue,
the Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts evidencing
the Depositary Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or other property
to which the holders of such Depositary Receipts were entitled upon such
redemption upon surrender thereof to the Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Preferred Stock Depositary will mail
the information contained in such notice of meeting to the record holders of the
Depositary Receipts evidencing the Depositary Shares which represent such
Preferred Stock. Each record holder of Depositary Receipts evidencing Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Preferred Stock Depositary
as to the exercise of the voting rights pertaining to the amount of Preferred
Stock represented by such holder's Depositary Shares. The Preferred Stock
Depositary will vote the amount of Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Stock Depositary in order to enable the Preferred Stock Depositary to
do so. The Preferred Stock Depositary will abstain from voting the amount of
Preferred Stock represented by such Depositary Shares to the extent it does not
receive specific instructions from the holders of Depositary Receipts evidencing
such Depositary Shares. The Preferred Stock Depositary shall not be responsible
for any failure to carry out any instruction to vote, or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or wilful misconduct of the
Preferred Stock Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of each Depositary
Receipt will be entitled to the fraction of the liquidation preference accorded
each share of Preferred Stock represented by the Depositary Share evidenced by
such Depositary Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, are not convertible into Common Stock
or any other securities or property of the Company. Nevertheless, if so
specified in the applicable Prospectus Supplement relating to an offering of
Depositary Shares, the Depositary Receipts may be surrendered by holders thereof
to the Preferred Stock Depositary with written instructions to the Preferred
Stock Depositary to instruct the Company to cause conversion of the Preferred
Stock represented by the Depositary Shares evidenced by such Depositary Receipts
into whole shares of Common Stock, other shares of Preferred Stock of the
Company or other shares of capital stock, and the Company has agreed that upon
receipt of such instructions and any amounts payable in respect thereof, it will
cause the conversion thereof utilizing the same procedures as those provided for
delivery of Preferred Stock to effect such conversion. If the Depositary Shares
evidenced by a Depositary Receipt are to be converted in part only, a new
Depositary Receipt or Receipts will be issued for any Depositary Shares not to
be converted. No fractional shares of Common Stock will be issued upon
conversion, and if such conversion will result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depositary. However, any amendment that materially and adversely alters the
rights of the holders of Depositary Receipts or that would be materially and
adversely inconsistent with the rights granted to holders of the related
Preferred Stock will not be effective unless such amendment has been approved by
the existing holders of at least two-thirds of the Depositary Shares evidenced
by the Depositary Receipts then outstanding. No amendment shall impair the
right, subject to certain exceptions in the Deposit Agreement, of any holder of
Depositary Receipts to surrender any Depositary Receipt with instructions to
deliver to the holder the related Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with law. Every
holder of an outstanding Depositary Receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
The Deposit Agreement may be terminated by the Company upon not less
than 30 days' prior written notice to the Preferred Stock Depositary if a
majority of each series of Preferred Stock affected by such termination consents
to such termination, whereupon the Preferred Stock Depositary shall deliver or
make available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depositary Shares evidenced
by such Depositary Receipts together with any other property held by the
Preferred Stock Depositary with respect to such Depositary Receipt. In addition,
the Deposit Agreement will automatically terminate if (i) all outstanding
Depositary Shares shall have been redeemed, (ii) there shall have been a final
distribution in respect of the related Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Receipts evidencing the
Depositary Shares representing such Preferred Stock or (iii) each share of the
related Preferred Stock shall have been converted into capital stock of the
Company not so represented by Depositary Shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the Deposit Agreement. In addition,
the Company will pay the fees and expenses of the Preferred Stock Depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay certain other transfer and
other taxes and governmental charges as well as the fees and expenses of the
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any time
remove the Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary. A
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable
if it is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The obligations
of the Company and the Preferred Stock Depositary under the Deposit Agreement
will be limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of Preferred
Stock represented by the Depositary Shares), gross negligence or willful
misconduct, and the Company and the Preferred Stock Depositary will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or shares of Preferred Stock represented
thereby unless satisfactory indemnity is furnished. The Company and the
Preferred Stock Depositary may rely on written advice of counsel or accountants,
or information provided by persons presenting shares of Preferred Stock
represented thereby for deposit, holders of Depositary Receipts or other persons
believed in good faith to be competent to give such information, and on
documents believed in good faith to be genuine and signed by a proper party.
In the event the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
DESCRIPTION OF COMMON STOCK
GENERAL
The authorized capital stock of the Company includes 50 million shares
of Common Stock, $.75 par value per share. At December 27, 1996 there were
43,671,907 shares of Common Stock outstanding.
The holders of Common Stock are entitled to one vote for each share
held and have the sole right and power to vote in 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 Tosco, 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 Tosco 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 all outstanding shares of Common Stock are validly issued,
fully paid and non-assessable.
All shares of Common Stock issued and sold will be duly authorized,
fully paid, and non-assessable. The Company has paid quarterly dividends since
1989.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Common Stock is Boston
EquiServe, Boston, Massachusetts.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the offer
and sale of the Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Securities at a fixed price or
prices, which may be changed, at prices related to the prevailing market prices
at the time of sale or at negotiated prices. The Company also may, from time to
time, authorize underwriters acting as their agents to offer and sell the
Securities upon the terms and conditions as are set forth in the applicable
Prospectus Supplement. In connection with the sale of Securities, underwriters
may be deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Securities for whom they may act as agent. Underwriters may sell
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers, are
set forth in the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize dealers acting as their agents to solicit offers by certain
institutions to purchase Securities from them at the public offering price set
forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated in
such Prospectus Supplement. Each Contract will be for an amount not less than,
and the aggregate principal amount of Securities sold pursuant to Contracts
shall be not less nor more than, the respective amounts stated in the applicable
Prospectus Supplement. Institutions with whom Contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Securities covered by its Contracts shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject, and (ii) if the Securities are being sold
to underwriters, the Company shall have sold to such underwriters the total
principal amount of the Securities less the principal amount thereof covered by
Contracts.
The Securities (other than Common Stock) will be a new issue of
securities with no established trading market. If so indicated in the applicable
Prospectus Supplement, any underwriters or agents to or through whom Securities
are sold by the Company for public offering and sale may make a market in such
Securities, but such underwriters and agents will not be obligated to do so and
may discontinue any market-making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Securities, other
than Common Stock.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company in the ordinary
course of business.
LEGAL MATTERS
Certain legal matters with respect to the validity of the 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 consolidated balance sheets of 76 Products Company and
subsidiaries (a division of Union Oil Company of California) as of September 30,
1996 and December 31, 1995 and the related consolidated statements of
operations, cash flows and parent company investment for the nine months ended
September 30, 1996 and the years ended December 31, 1995 and 1994, 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.
<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 $ 454,545
Printing and engraving expenses ............................. 75,000
Legal fees and expenses ..................................... 75,000
Accounting fees and expenses ................................ 50,000
Blue Sky fees and expenses .................................. 10,000
Trustee's Fees .............................................. 10,000
Miscellaneous expenses ...................................... 25,455
Total ................................................... $ 700,000
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.
The By-Laws of the Registrant also 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 $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 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.
ITEM 16. EXHIBITS.
4.1 - Indenture between Registrant and State Street Bank and Trust
Company, as Trustee, relating to Senior Debt Securities (including
form of Senior Debt Security). Incorporated by reference to
Registration Statement on Form S-3 (File No. 333-2521). ("1996 S-3")
4.2 - Indenture between the Registrant and State Street Bank and Trust
Company, as Trustee, relating to Subordinated Debt Securities (1).
4.3 - Form of Designating Amendment for Preferred Stock (1).
4.4 - Form of Preferred Stock Certificate (1).
4.5 - Form of Deposit Agreement (1).
5.1 - Opinion of Stroock & Stroock & Lavan as to the legality of the
Securities.
12.1 - Statement regarding computation of ratio of earnings to fixed
charges.
12.2 - Statement regarding computation of ratio of earnings to fixed
charges and preferred stock dividends.
23.1 - Consent of Stroock & Stroock & Lavan (included in Exhibit 5).
23.2 - Consent of Coopers & Lybrand L.L.P.
23.3 - Consent of Coopers & Lybrand L.L.P.
24 - Power of attorney (included on signature page of this Registration
Statement).
25 - Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of State Street Bank and Trust Company.
Incorporated by reference to Exhibit 25 to 1996 S-3. ---------------
(1) To be incorporated by reference in connection with any offering of
Subordinated Debt Securities or Preferred Stock.
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
Securities 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 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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 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.
(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.
(e) 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 Securities 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.
(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.
<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 January 22, 1997.
TOSCO CORPORATION
By: /s/
Thomas D. O'Malley
Chairman of the Board of Directors
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 III, 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 any Registration Statement relating to any offering made pursuant
to this Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto such attorney-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.
<PAGE>
Signature Title Date
_/s/______________________ Chairman of the Board January 22, 1977
Thomas D. O'Malley of Directors and
Chief Executive Officer
_/s/______________________ Principal Financial Officer January 22, 1997
Jefferson F. Allen and Director
_/s/______________________ Principal Accounting Officer January 22, 1997
Robert I. Santo
_/s/______________________ Director January 22, 1997
Joseph B. Carr
_____________________ Director January , 1997
Patrick M. deBarros
_______________________ Director January , 1997
Houston I. Flournoy
_/s/______________________ Director January 22, 1997
Clarence G. Frame
_/s/______________________ Director January , 1997
Edmund A. Hajim
_/s/______________________ Director January 22, 1997
Joseph P. Ingrassia
_ ______________________ Director January 22, 1997
Charles J. Luellen
_/s/______________________ Director January 22, 1997
Mark R. Mulvoy
<PAGE>
Exhibit Index
Exhibit Description
4.1 - Indenture between Registrant and State Street Bank and
Trust Company, as Trustee, relating to Senior Debt Securities
(including form of Senior Debt Security). Incorporated by
reference to Registration Statement on Form S-3
(File No. 333-2521). ("1996 S-3")
4.2 - Indenture between the Registrant and State Street Bank and
Trust Company, as Trustee, relating to Subordinated Debt
Securities (1).
4.3 - Form of Designating Amendment for Preferred Stock (1).
4.4 - Form of Preferred Stock Certificate (1).
4.5 - Form of Deposit Agreement (1).
5.1 - Opinion of Stroock & Stroock & Lavan as to the
legality of the Securities.
12.1 - Statement regarding computation of ratio of earnings
to fixed charges.
12.2 - Statement regarding computation of ratio of earnings
to fixed charges and preferred stock dividends.
23.1 - Consent of Stroock & Stroock & Lavan (included in
Exhibit 5).
23.2 - Consent of Coopers & Lybrand L.L.P.
23.3 - Consent of Coopers & Lybrand L.L.P.
24 - Power of attorney (included on signature page of this
Registration Statement).
25 - Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of State Street Bank
and Trust Company. Incorporated by reference to Exhibit 25
to 1996 S-3.
(1) To be incorporated by reference in connection with any offering of
Subordinated Debt Securities or Preferred Stock.
EXHIBIT 5.1
January 21, 1997
Tosco Corporation
72 Cummings Point Road
Stamford, Connecticut 06902
Ladies and Gentlemen:
Tosco Corporation (the "Corporation") has requested our opinion in connection
with the filing of a shelf registration statement on Form S-3 by the Corporation
(the "Registration Statement") registering up to $1,500,000,000 aggregate
initial offering price of (i) one or more series of debentures, notes or other
unsecured evidences of indebtedness ("Debt Securities"), (ii) shares of common
stock, $.75 par value per share, of the Corporation (the "Common Stock"), (iii)
shares of preferred stock, $1.00 par value per share, of the Corporation (the
"Preferred Stock"), (iv) shares of Preferred Stock represented by depository
shares (the "Depository Shares" and, together with the Debt Securities, Common
Stock and the Preferred Stock, the "Securities") to be issued to the public from
time to time and up to $300,000,000 aggregate initial offering price of
Securities that may be registered pursuant to Rule 462(b) under the Securities
Act of 1933, as amended (the "Securities Act") by means of an additional
registration statement relating to the Registration Statement (any such
additional registration statement, the "462(b) Registration Statement").
In furnishing this opinion, we have examined copies of the Registration
Statement, the Articles of Incorporation and By-Laws of the Corporation, as
amended to date, and the minutes of the meeting of the Board of Directors of the
Corporation authorizing the issuance of the Securities. We have also examined
such other documents, papers, statutes and authorities as we deemed necessary to
form a basis for the opinion hereinafter expressed. In our examinations of such
material, we have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as original documents and the conformity to
original documents of all documents supplied to us as copies. As to various
questions of fact material to such opinion, we have relied upon statements and
certificates of officers and representatives of the Corporation and others.
Based upon and subject to the foregoing, it is our opinion that:
1. Subject to shareholder approval of an amendment to its Articles of
Incorporation increasing its authorized Common Stock, the Common Stock
(including any Common Stock issued pursuant to the 462(b) Registration
Statement) will be duly authorized by all necessary corporate action of the
Corporation and when (a) the applicable provisions of the Securities Act
and such state "blue sky" or securities laws as may be applicable have been
complied with and (b) the shares of Common Stock have been issued,
delivered, and paid for, such shares of Common Stock will be legally
issued, fully paid, and nonassesable.
2. The Preferred Stock (including any Preferred Stock issued pursuant to the
462(b) Registration Statement) has been duly authorized by all necessary
corporate action of the Corporation and when (a) the applicable provisions
of the Securities Act and such state "blue sky" or securities laws as may
be applicable have been complied with, (b) the Corporation's board of
directors has adopted and the Corporation has duly filed with the Secretary
of State of Nevada a Certificate of Designations establishing the
preferences, limitations and relative voting and other rights of each
series of Preferred Stock prior to issuance thereof and (c) the shares of
Preferred Stock have been issued, delivered, and paid for, such shares of
Preferred Stock will be legally issued, fully paid and nonassessable.
3. The Depositary Shares (including any Depositary Shares issued pursuant to
the 462(b) Registration Statement) have been duly authorized by all
necessary corporate action of the Corporation and when (a) the applicable
provisions of the Securities Act and such state "blue sky" or securities
laws as may be applicable have been complied with, (b) the Corporation's
board of directors has adopted and the Corporation has duly filed with the
Secretary of State of Nevada a Certificate of Designations establishing the
preferences, limitations and relative voting and other rights of each
series of Preferred Stock underlying the Depositary Shares and the
fractional share of Preferred Stock represented by each Depositary Share
prior to issuance thereof, (c) the shares of Preferred Stock represented by
the Depositary Shares have been deposited under an enforceable deposit
agreement and (d) the Depositary Shares have been issued, delivered, and
paid for, such Depositary Shares will be legally issued, fully paid, and
nonassessable.
4. The Debt Securities (including any Debt Securities issued pursuant to the
462(b) Registration Statement) have been duly authorized by all necessary
corporate action of the Corporation and when (a) the applicable provisions
of the Securities Act and such state "blue sky" or securities laws as may
be applicable have been complied with and (b) the Debt Securities have been
issued and delivered for value as contemplated in the Registration
Statement, such Debt Securities will be legally issued and will be the
binding obligation of the Corporation.
To the extent that the obligations of the Corporation as obligor under an
indenture may be dependent upon such matters, we have assumed for purposes of
this opinion (i) that the applicable trustee is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and is
duly qualified to engage in the activities contemplated by the indenture, (ii)
that such indenture has been duly authorized, executed and delivered by and
constitutes the legal, valid and binding obligation of such trustee, enforceable
in accordance with its terms, (iii) that such trustee is in compliance,
generally and with respect to acting as a trustee under the indenture, with all
applicable laws and regulations and (iv) that such trustee has the requisite
organizational and legal power and authority to perform its obligations under
the indenture.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not purport to be experts on, or to
express any opinion herein concerning, any law other than the laws of the State
of New York, the Nevada General Corporation Law and the federal laws of the
United States of America.
We hereby consent to be named in the Registration Statement to be filed by the
Corporation with the Securities and Exchange Commission under the Securities Act
as attorneys who have passed upon the legality of the Securities to be
registered by the Registration Statement; and we further consent to your filing
a copy of this opinion as an exhibit to the Registration Statement and to the
incorporation by reference of this opinion in any 462(b) 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 or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN
Exhibit 12.1
TOSCO CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE YEARS ENDED DECEMBER 31, 1995, 1994, 1993, 1992 and 1991
AND THE NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995
(Thousands of Dollars, Except Ratio Data)
<TABLE>
<CAPTION>
For the Nine Months Ended
September 30, For the Year Ended December 31,
-------------------------- -------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------ ----- ------ ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes per
income statement $195,830 $71,535 $127,439 $133,849 $131,754 $51,013 $70,465
Fixed charges to be added to
income before income taxes:
Interest expense, including
amortization of debt expenses 64,764 45,525 59,815 58,315 48,868 23,941 22,737
Interest factor of rental expense 19,602 14,046 17,808 13,575 8,869 5,882 4,946
------ ------ ------- ------- ------- ------ ------
Income as adjusted $280,196 $131,106 $205,062 $205,739 $189,491 $80,836 $98,148
-------- -------- -------- -------- -------- ------- -------
Fixed charges:
Interest expense, including
amortization
of debt expenses $ 64,764 $ 45,525 $ 59,815 $ 58,315 $ 48,868 $23,941 $22,737
Interest capitalized 1,055 3,548 4,730 682
Interest factor of rental expense 19,602 14,046 17,808 13,575 8,869 5,882 4,946
------ ------- ------- ------- ------ ------ ------
Total fixed charges $ 85,421 $63,119 $82,353 $72,572 $57,737 $29,823 $27,683
--------- ------- ------- ------- ------- ------- -------
Ratio of earnings to fixed charges 3.28 2.08 2.49 2.83 3.28 2.71 3.55
===== ===== ===== ===== ===== ===== =====
</TABLE>
Exhibit 12.2
TOSCO CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS FOR THE YEARS ENDED
DECEMBER 31, 1995, 1994, 1993, 1992 and 1991
AND THE NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995
(Thousands of Dollars, Except Ratio Data)
<TABLE>
<CAPTION>
For the Nine Months Ended
September 30, For the Year Ended December 31,
---------------------- -----------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes per income statement $195,830 $71,535 $127,439 $133,849 $131,754 $51,013 $70,465
Fixed charges to be added to income before income taxes:
Interest expense, including amortization of debt expenses 64,764 45,525 59,815 58,315 48,868 23,941 22,737
Interest factor of rental expense 19,602 14,046 17,808 13,575 8,869 5,882 4,946
-------- ------- -------- ------- -------- ------- -------
Income as adjusted $280,196 $131,106 $205,062 $205,739 $189,491 $80,836 $98,148
-------- -------- -------- -------- -------- ------- -------
Fixed charges:
Preferred dividend requirements $ - $ - $ - $ 6,293 $ 10,063 $10,063 $ 3,771
Ratio of income before income taxes to net income 169% 165% 165% 160% 164% 169% 103%
-------- -------- -------- -------- -------- ------- -------
Preferred dividend factor on income before income taxes $ - $ - $ - $ 10,046 $ 16,454 $16,972 $ 3,902
Interest expense, including amortization of debt expenses 64,764 45,525 59,815 58,315 48,868 23,941 22,737
Interest capitalized 1,055 3,548 4,730 682 - - -
Interest factor of rental expense 19,602 14,046 17,808 13,575 8,869 5,882 4,946
-------- -------- -------- -------- --------- ------- -------
Total fixed charges and preferred dividends $ 85,423 $ 63,121 $ 82,355 $ 88,913 $ 84,256 $56,859 $35,357
Ratio of earnings to fixed charges and preferred dividends 3.28 2.08 2.49 2.31 2.25 1.42 2.78
======== ======== ========= ======== ======== ======= =======
</TABLE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 (No. 333-____) 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 financial statement schedule
of Tosco corporation and subsidiaries. We also consent to the reference
to our firm under the caption "Experts".
Coopers & Lybrand L.L.P.
San Francisco, California
January 21, 1997
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-3 (No. 333-____) of our report dated December 11, 1996, on our audits
of the consolidated financial statements of 76 Products Company and subsidiaries
(a division of Union Oil Company of California). We also consent to the
reference to our firm under the caption "Experts".
COOPERS & LYBRAND L.L.P.
Newport Beach, California
January 21, 1997
