<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 1996
REGISTRATION NO. 333-4198
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
TRIGEN ENERGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 13-3378939
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
ONE WATER STREET
WHITE PLAINS, NEW YORK 10601
(914-286-6600)
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
EUGENE E. MURPHY, ESQ., VICE PRESIDENT AND GENERAL COUNSEL
TRIGEN ENERGY CORPORATION
ONE WATER STREET
WHITE PLAINS, NEW YORK 10601
(914-286-6611)
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as
determined by market conditions.
---------------
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 dividends
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 statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SHARES AMOUNT TO BE AGGREGATE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) FEE
- ------------------------ -------------- --------------- ---------------- --------------
<S> <C> <C> <C> <C>
Common Shares, par value
$0.01 per share ........ 201,267 shares $20.00 $4,025,340 $1,387.94
- -------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
PROSPECTUS
201,267 SHARES
TRIGEN ENERGY CORPORATION
COMMON STOCK
($.01 PAR VALUE)
All of the 201,267 shares of Common Stock of Trigen Energy Corporation
("Trigen" or "the Company") offered hereunder (the "Shares") may be offered
for sale from time to time by and for the account of certain stockholders of
the Company (the "Selling Stockholders"). See "Selling Stockholders." The
Company will not receive any of the proceeds from the sale of the Shares by
the Selling Stockholders, but has agreed to bear certain expenses of
registration of the Shares. See "Plan of Distribution."
The Shares are listed on the New York Stock Exchange under the symbol
"TGN." On April 22, 1996, the reported last price of the Company's common
shares on the New York Stock Exchange was $20.00 per share.
The Selling Stockholders from time to time may offer and sell the Shares
through "brokers' transactions" (within the meaning of Section 4(4) of the
Securities Act of 1933, as amended (the "Securities Act")), or in
transactions directly with a "market maker" (as defined in Section 3(a)(38)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")). To
the extent required, the names of any broker-dealer and applicable
commissions or discounts and any other required information with respect to
any particular offer will be set forth in an accompanying Prospectus
Supplement. See "Plan of Distribution." Each of the Selling Stockholders
reserves the sole right to accept or reject, in whole or in part, any
proposed purchase of the Shares to be made in the manner set forth above.
The Selling Stockholders and any broker-dealers who participate in a sale
of the Shares by the Selling Stockholders may be considered "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any profits
realized by the Selling Stockholders and the compensation of any
broker-dealers may be deemed to be underwriting discounts and discounts.
However, the Selling Stockholders disclaim being underwriters under the
Securities Act. See "Plan of Distribution" for indemnification arrangements
among the Company and the Selling Stockholders.
THERE ARE CERTAIN RISKS ASSOCIATED WITH AN INVESTMENT IN THE COMPANY'S
COMMON STOCK. SEE "RISK FACTORS" ON PAGE 3 FOR A DISCUSSION OF SUCH RISKS.
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 date of this Prospectus is June 7, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission ("SEC"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington DC 20549, and at the regional offices of the
SEC located at 7 World Trade Center, 13th Floor, New York, New York 10048 and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can also be obtained at the
prescribed rates from the Public Reference Section of the SEC, Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549. Such material
can also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005
The Company has filed with the Commission a registration statement on Form
S-3 (together with any amendments, the "Registration Statement") under the
Securities Act, covering the Shares. This Prospectus, which is part of the
Registration Statement, does not contain all of the information and
undertakings included in the Registration Statement and reference is made to
such Registration Statement, including exhibits, which may be inspected and
copied as specified above. Statements contained in this Prospectus concerning
the provisions of any document are not necessarily complete and, in each
instance, each such statement is qualified in its entirety by such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company (File No. 1-13264)
with the SEC and are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year 1995; and
(2) The Company's Registration Statement on Form 10 filed July 27, 1994,
registering the Company's Common Stock under Section 12(b) of the Exchange
Act.
In addition, all documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made pursuant to the
Registration Statement shall be deemed to be incorporated by reference into
and to be part of this Prospectus from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the documents incorporated by reference (not
including exhibits unless such exhibits are specifically incorporated by
reference in such documents). Requests for copies of such documents should be
directed to the Office of the Secretary, Trigen Energy Corporation, One Water
Street, White Plains, New York 10601, telephone (914) 286-6600.
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RISK FACTORS
In addition to the other information contained in this Prospectus,
prospective purchasers should carefully consider the following factors in
evaluating an investment in the Company's Common Stock.
OPERATING RISKS
Possibility of Catastrophic Occurrences
The occurrence of an explosion or fire at an energy production plant or
pipeline could result in injury, loss of life, property damage, and damage
to, or destruction of, the Company's facilities. In the past five years, the
Company experienced one explosive pipeline rupture in Boston in 1993, which
resulted in minimal damage. The Company attempts to construct or acquire
facilities which minimize the possibility of such occurrences, and maintains
insurance to protect against claims resulting from such events, but the
Company's efforts may not be successful and insurance proceeds may be
inadequate to satisfy any resulting claims.
Substantial Indebtedness
At December 31, 1995 the Company's consolidated indebtedness aggregated
$245 million, comprising 64.3% of the total capitalization (including
short-term debt) of the Company. The Company has incurred most of this
indebtedness at the subsidiary level to finance acquisition or construction.
Most of such financing is secured by mortgages on, or pledges of, the assets
and revenues of the relevant system. Such financing enables the Company to
develop its systems with a limited equity investment, but distributions to
the Company from its subsidiaries also may be limited by the financing
agreements, increasing the risk that a reduction in cash flow could adversely
affect the Company's ability to meet its obligations. This debt may also
reduce the liquidity of the Company's interest in each system since transfers
may be subject to the lender's lien and to restrictions in the relevant
financing agreements. In the event of a default, the lenders generally could
proceed against the collateral, which would typically include the plant,
related contracts and the stock or partnership interests owned by the
Company.
Service Disruptions
The Company's operations are subject to possible failure of its pipelines,
transmission lines, energy production equipment or other equipment or
processes arising from man-made causes or natural catastrophe, which could
reduce output or efficiency. In 1995, the terrorist bombing of a federal
office building in Oklahoma City resulted in loss of revenues, damage to the
distribution system serving that building and a fire at the central plant,
all of which were covered by insurance. There was no other apparent damage to
the distribution system. While the Company attempts to construct, acquire and
maintain facilities with redundancies and back-up mechanisms, and maintains
insurance to protect against certain of these operating risks, such
precautions may not be adequate in all eventualities, and the proceeds of
such insurance may be inadequate to finance repairs, replace lost revenues or
cover damages.
Working Capital
At December 31, 1994 and December 31, 1995, the Company had a working
capital of $9.8 million and $282,000, respectively. The Company historically
has maintained at certain times low or negative working capital levels as a
result of its utilization of short-term indebtedness in the early stages of
project development and acquisition. In the past, Trigen's parent, ELYO, S.A.
("ELYO" and collectively with its other subsidiaries the "ELYO Group"), has
provided comfort letters and guarantees of certain Company short-term
indebtedness. The Company currently has in place short term indebtedness
without support by ELYO, but there can be no assurances that the Company will
continue to obtain required short-term lending on its own or that ELYO will
continue to provide such support.
Competition
The principal competition the Company faces is from a wide variety of
firms that sell products or services to end-users who choose to build and
operate heating and cooling equipment on their own
3
<PAGE>
premises. These firms include suppliers of boilers and chillers and fuel
suppliers (such as gas and electric utilities) which encourage use of
equipment that use their products. In addition, local utilities are competing
directly with the Company in Chicago and Baltimore through unregulated
subsidiaries offering steam and/or cooling, and others may do so at
additional locations. Most of these suppliers have greater financial
resources than the Company. There are currently very few competing operators
of community energy systems.
Seasonality and Dependence Upon Weather Patterns
The Company's steam and hot water sales traditionally peak in the winter,
and chilled water sales peak in the summer months. The Company's heating and
cooling revenues may also be significantly affected by variations in weather
patterns on a year-to-year basis. The Company maintains a line of credit to
meet seasonal variations in its working capital requirements. Over the longer
term the Company believes that income fluctuations will become less
pronounced, particularly if it can meet its goal of increasing the proportion
of electric and chilled water sales and energy services in its product mix.
However, there is no assurance that these efforts will be successful.
REGULATORY AND ENVIRONMENTAL RISKS
Local Operating Authorizations
Generally, the Company's ability to operate its community energy systems
and cogeneration facilities is subject to local and municipal authorizations.
The Company believes that it possesses all material local authorizations, but
there can be no assurance that the Company will be able to obtain or retain
all such authorizations and failure to do so could adversely affect its
ability to operate and expand.
State and Local Regulation of Public Utilities
Three of the Company's operating units (Baltimore, Philadelphia and Kansas
City) are currently subject to the rate and general jurisdiction of state
regulatory agencies, which have broad authority to affect rates and terms of
service, as well as many important business and financial functions of the
utility systems. The Company's community energy system in St. Louis currently
is exempt from such state regulation, although its rates and terms of service
are approved by a not-for-profit corporation controlled by the City of St.
Louis.
Environmental Regulation
The Company's operations are subject to extensive federal, state,
provincial and local environmental laws and regulations governing, among
other matters, emissions into the air, the discharge of effluents, the use of
water, fuel tank management and the storage, handling and disposal of
hazardous or toxic materials (including the use of chlorofluorocarbons and
other refrigerants, and the encapsulation or removal of asbestos insulation
material). Compliance with these laws and regulations may require significant
expenditures from time to time, and violations could result in
administrative, civil or criminal action, including the assessment of
economic penalties and amendment or revocation of permits, which could
require a facility to expend significant additional sums or to reduce or
suspend operations.
Changes in the Domestic Electric Industry
The Company's current business and prospects in the domestic electric
industry may be substantially affected by changes and prospective changes in
regulation and business conditions in that industry. While management
believes that some of these changes may be favorable for the Company,
providing increased opportunities to compete including newly deregulated
markets, there can be no assurance that the Company will not be negatively
affected in this volatile environment.
Loss of Qualifying Facility Status
The Public Utility Regulatory Policies Act of 1978 provides certain
electric generating facilities ("Qualifying Facilities") broad exemptions
from extensive business and financial regulation under the
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Federal Power Act ("FPA"), and the Public Utility Holding Company Act of 1935
("PUHCA"), and from state regulation as electric utilities. At this time the
Company's four electric generating facilities that would otherwise be subject
to such regulation have been certified as Qualifying Facilities. Loss of
Qualifying Facility status could occur if, among other things, a facility
failed to meet the efficiency and operating standards required for such
status by the Federal Energy Regulatory Commission ("FERC") for a period of
at least one calendar year. The Company believes that its facilities exceed
the applicable efficiency and operating standards by substantial margins.
Loss of Qualifying Facility status can also occur if more than 50% of the
equity interests in a facility were owned, directly or indirectly, by an
electric utility or utilities or an electric utility holding company or
companies that are not exempt from PUHCA regulation, or any combination
thereof. There can be no assurance that such companies will not in the future
acquire sufficient Common Stock of the Company or equity securities of its
significant Stockholders to exceed the applicable ownership limitation and
cause a loss of Qualifying Facility status. In addition to subjecting the
Company or some of its operations to restrictive regulations, loss of
Qualifying Facility status might allow a purchaser under an electric sales
agreement to change the contracted rate or to terminate the contract, trigger
a default under one or more of the Company's financing agreements or cause
other adverse effects which could be material.
Ownership by Non-exempt Electric Utility Holding Companies
The Company could be subject to regulation under PUHCA if it were to
become a subsidiary of an electric utility holding company that is not exempt
from PUHCA regulation, and if no other sufficient exemption from PUHCA were
available to the Company. Under PUHCA, a "holding company" of an "electric
utility company" includes, among other things, any company that owns,
controls, or holds with the power to vote, 10% or more of the outstanding
voting securities of an electric utility or of a holding company of an
electric utility. ELYO has an interest in one or more electric utilities
outside the United States which presumptively would cause it and certain
significant stockholders of ELYO to be holding companies under PUHCA. A FERC
ruling has determined that neither the Company nor its non-U.S. owners are
subject to regulation under PUHCA by virtue of these facts because they own
no utility assets in the U.S. ELYO has covenanted in an agreement with the
Company that neither ELYO nor its subsidiaries will engage in activities
which may cause the Company or any of the Company's subsidiaries in the
United States to be an electric utility company or an electric utility
holding company, or a subsidiary of either, under federal, state or local law
or regulations, without the written consent of the Company which shall not be
unreasonably withheld. Nevertheless, the Company does not control the actions
of ELYO or any of its significant stockholders. In addition, because the
Common Stock of the Company and the equity securities of certain of its
significant stockholders are publicly traded, significant direct or indirect
interests in the Company could be acquired in the future by companies that by
virtue of their other holdings are electric utility holding companies or own
utility facilities in the United States. Therefore, there can be no assurance
that the Company will not become a subsidiary of an electric utility holding
company that is not exempt from PUHCA regulation.
PROJECT DEVELOPMENT; FUTURE CAPITAL NEEDS
A principal means of growth for the Company is the development of new
operating units, which may involve the use and expansion of existing
pipelines or production facilities. Project development generally requires
significant financing, and the Company's available cash flow may not be
sufficient to satisfy the equity financing requirements. If additional funds
are raised by issuing equity securities, significant dilution to existing
stockholders may result. If financing is not available on acceptable terms,
the Company may have to cancel or defer new projects. Therefore, there can be
no assurance that the Company will succeed in developing new projects.
HOLDING COMPANY; RESTRICTIONS ON DIVIDENDS FROM SUBSIDIARIES
The Company is a holding company with no operations separate from its
subsidiaries. Its ability to pay dividends on the Common Stock, to service
its outstanding indebtedness and other obligations, or to obtain additional
funding for project development and expansion is dependent on the ability of
its
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subsidiaries to make distributions to the Company. Agreements governing the
long-term indebtedness of the Company and certain of its subsidiaries
currently limit the amount of distributions that can be paid by the
subsidiaries, thereby limiting the ability of the Company to pay cash
dividends and other distributions or to obtain additional funding.
CONCENTRATION OF OWNERSHIP
The ELYO Group owns of record, in the aggregate, approximately 53.3% of
the outstanding Common Stock. Certain executive officers of the Company own
approximately 14.0% of the outstanding Common Stock and have entered into a
stockholders' agreement providing that they will vote their Common Stock as
directed by the ELYO Group with respect to the election of directors and
certain other significant corporate matters until August 1998. Accordingly,
the ELYO Group has the ability to influence or control the election of the
Company's Directors and to influence or control most of the Company's actions
and is deemed to beneficially own approximately 65.2% of the Common Stock.
Approximately 20% of the outstanding Common Stock is held by the Janus Fund
Inc. This concentration of ownership may also have the effect of delaying or
preventing a change of control of the Company.
CERTAIN ANTI-TAKEOVER PROVISIONS
The Company's Certificate of Incorporation and By-laws contain provisions
which may delay, defer or prevent the change of control of the Company and
make removal of management of the Company more difficult. Among other things,
these provisions (i) divide the Board of Directors into three classes, (ii)
provide that Directors may be removed only for cause and (iii) impose certain
advance notice procedures on stockholders seeking to nominate individuals for
election to the Board and limit the ability of stockholders to bring other
business before meetings of the Company's stockholders. The Company is also
authorized to issue preferred stock with rights senior to, or dilutive of,
the rights of holders of Common Stock, without the necessity of approval of
the stockholders.
FUTURE SALES OF COMMON STOCK BY HOLDERS
Future sales of substantial amounts of Common Stock in the public market,
or the perception that such sales could occur, could adversely affect
prevailing market prices for the Common Stock. The Company has outstanding
11,493,819 shares of Common Stock as of April 18, 1996, of which the
3,200,000 shares sold pursuant to the initial public offering in 1994 are
tradeable without restriction by persons other than "affiliates" of the
Company. 7,507,972 shares of Common Stock held by ELYO's United States
investment vehicle, Cofreth American Corporation ("CAC"), Compagnie
Parisienne de Chauffage Urbain, S.A., an affiliate of CAC ("CPCU"), and
certain members of management are subject to resale restrictions under the
Securities Act of 1933 (the "Securities Act") and the regulations thereunder,
and may not be sold in the absence of registration under the Securities Act
or an exemption therefrom, including the exemptions contained in Rule 144
under the Securities Act. Pursuant to the Stockholders Agreement CAC, CPCU
and certain management stockholders have certain rights to require the
Company to register their shares of Common Stock for sale in a public
offering. No prediction can be made as to the effect, if any, that future
sales of shares of Common Stock will have on the market price of the Common
Stock prevailing from time to time.
THE COMPANY
Trigen develops, owns and operates community energy systems and
cogeneration facilities at 13 locations in the United States and Canada. The
Company believes that it is the leading commercial owner and operator of
community energy systems in North America. Steam, hot water and/or chilled
water are sold by the Company to over 1,500 customers, including colleges and
universities, office buildings, hotels, government complexes, civic and
cultural landmarks, housing complexes, industrial plants and hospitals.
Cogenerated electricity produced by the Company is used by the Company in
eight of its systems, and is sold to one steam customer and to local
utilities in three communities. The Company currently has the capacity to
produce the equivalent of 4,255 megawatts of energy, of which approximately
90.0% is steam or hot water, 4.1% is electricity and 5.9% is chilled water.
6
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A community energy system consists of a central production plant that
distributes steam, hot water or chilled water, or both, to customer buildings
through underground distribution pipes. Cogeneration is the conversion of a
single fuel source into two useful energy products, such as steam and
electricity, with a greater efficiency than is possible by producing the two
products separately. At four of its facilities, the Company has expanded
cogeneration to "trigeneration", which is the generation of steam or hot
water, electricity and chilled water. Chilled water production by Trigen's
patented trigeneration machines has saved up to 71% of the fuel used in
conventional stand-alone chilled water production. In addition, Trigen
incorporates in its systems innovative applications for standardized, modular
equipment to improve productivity.
The Company's revenues have increased from approximately $1 million in
1987 (its first full year of operation) to $198.7 million in 1995 through
acquisition and internal growth. In December 1993 the Company acquired United
Thermal Corporation ("UTC"), which operated steam-only energy systems in four
communities. This acquisition (the "UTC Acquisition") more than doubled the
Company's 1993 revenues on a pro forma basis. During 1995, the Company
acquired a waste-to-energy community energy system serving the Province of
Prince Edward Island in Canada and (through a limited partnership in which it
has a 51% managing partner interest) the energy systems of Coor's Brewing
Company ("CBC") and Coors Energy Company in Golden, Colorado. Gas
transportation services are also provided to CBC and certain related
companies pursuant to the acquisition agreements. In January 1996, the
Company acquired Ewing Power Systems, Inc. ("EPS"), which assembles
standardized modular compact steam turbine generators that serve as steam
pressure reduction equipment while producing electricity.
In March 1996, the Company's subsidiary, Trigen-Schuylkill Cogeneration,
Inc. ("Trigen-Schuylkill"), acquired a one-third interest in Grays Ferry
Cogeneration Partnership, a Pennsylvania single purpose partnership that will
construct and operate a 150 megawatt ("MW") gas- or oil-fired combined cycle
cogeneration facility, which Trigen-Schuylkill will operate as managing
partner.
The Company's principal executive offices are located at: One Water
Street, White Plains, New York 10601, (914-286-6600).
SELLING STOCKHOLDERS
Thomas Ewing is the former stockholder of EPS, and received his Shares in
the acquisition of EPS by the Company in January 1996 (the "EPS Acquisition")
in connection with which Mr. Ewing and the Company entered into a
Shareholder's Agreement granting Mr. Ewing the rights to demand once in any
12-month period that the Company file a registration statement with the
Commission to permit the sale of Common Stock owned by him, as well as
piggyback rights with respect to other registration statements filed by the
Company. John J. Ludwig terminated his position as Vice President, Operations
of the Company effective April 15, 1996. Cogeneration Development Corporation
is an S-corporation all of the outstanding stock of which is owned by Messrs.
Murphy and Weiser, officers of the Company and Thomas R. Casten, the
President and Chief Executive Officer of the Company. All other Selling
Stockholders are directors and members of management of the Company. The
following table provides the names and the number of Shares owned by each
Selling Stockholder. Since the Selling Stockholders may sell all, some or
none of their Shares, no estimate can be made of the aggregate number of
Shares that are to be offered hereby or that will be owned by each Selling
Stockholder upon completion of the offering to which this Prospectus relates.
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The Shares offered by this Prospectus may be offered from time to time by
the Selling Stockholders named below:
<TABLE>
<CAPTION>
BENEFICIAL
OWNERSHIP MAXIMUM NUMBER SHARES TO BE
NAME OF BEFORE THE OF SHARES BENEFICIALLY OWNED
BENEFICIAL OWNER TITLE WITH THE COMPANY OFFERING OFFERED HEREBY IF MAXIMUM SOLD
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<S> <C> <C> <C> <C>
George F. Keane Chairman of the Board 28,725(1) 20,000(2) 8,725
Richard E. Kessel Executive Vice President, 12,118 10,000(2) 2,118
Chief Operating Officer
John J. Ludwig Former Vice President, Operations 26,132 25,000(2) 1,132
Jean M. Malahieude Vice President, Engineering 12,000(3) 12,000 -0-
Eugene E. Murphy Vice President, General Counsel 203,212(4) 15,000(2) 148,945
Michael Weiser Vice President, Development 399,376(4) 61,500(2) 298,609
Steven Smith President, Trigen-Philadelphia 3,735 3,500(2) 235
Energy Corporation
Richard Strong President, Trigen-Boston Energy 5,243 5,000(2) 243
Corporation
Thomas Ewing President, EPS 51,848 10,000 41,848
Cogeneration 39,267 39,267(5) -0-
Development
Corporation
</TABLE>
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(1) Includes 25,000 Shares held by the Keane Family Trust, of which Mr.
Keane is trustee and 3,725 shares held by his wife.
(2) Shares being registered to facilitate sales by the shareholder if
necessary to meet obligations under loans incurred or to be incurred in
connection with the acquisition of shares.
(3) Shares held jointly with his wife.
(4) Includes 39,267 shares owned by Cogeneration Development Corporation
(an S-corporation of which he is a shareholder and director) which are
included in this registration.
(5) Shares contributed by Messrs. Casten, Weiser and Murphy.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares, all of which will be received by the Selling Stockholders.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholders on
the New York Stock Exchange or any national securities exchange or automated
interdealer quotation system on which shares of Common Stock are then listed,
through negotiated transactions or otherwise. All Selling Shareholders other
than Messrs. Malahieude and Ewing have advised the Company that their shares
are being registered to enable them to sell shares under applicable
securities laws if necessary to meet their obligations under loans incurred
or to be incurred in connection with the acquisition of shares. The Shares
will be sold at prices and on terms then prevailing, at prices related to the
then current market price or at negotiated prices. The Selling Stockholders
may effect sales of the Shares through "brokers' transactions" (within the
meaning of Section 4(4) of the Securities Act) or in transactions directly
with a "market maker" (as defined in Section 3(a)(38) of the Exchange Act).
Upon the Company being notified by any Selling Stockholder that a material
arrangement has been entered into with a broker or dealer for the sale of
Shares, a Prospectus Supplement will be filed, if required, pursuant to Rule
424(c) under the Securities Act, disclosing (a) the name of each such
broker-dealer, (b) the number of Shares involved, (c) the price at which
Shares were sold, (d) the commissions paid or discounts or concessions
allowed to such
8
<PAGE>
broker-dealer(s), where applicable, and (e) other facts material to the
transaction. In effecting sales, broker-dealers engaged by any Selling
Stockholder and/or the purchasers of the Shares may arrange for other
broker-dealers to participate. Broker-dealers will receive commissions,
concessions or discounts from the Selling Stockholders and/or the purchasers
of the Shares in amounts to be negotiated prior to the sale. Sales will be
made only through broker-dealers registered as such in a subject jurisdiction
or in transactions exempt from such registration. As of the date of this
Prospectus, there are no selling arrangements between the Selling
Stockholders and any broker or dealer.
In offering the Shares covered by this Prospectus, the Selling
Stockholders and any broker-dealers who participate in a sale of the Shares
by the Selling Stockholders may be considered "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any profits realized by
the Selling Stockholders and the compensation of any broker-dealers may be
deemed to be underwriting discounts and commissions. However, the Selling
Stockholders disclaim being underwriters under the Securities Act.
The Company has filed the Registration Statement, of which this Prospectus
forms a part, with respect to the sale of the Shares. The Company has agreed
to use its best efforts to keep the Registration Statement current and
effective through October 26, 1997, with certain exceptions.
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholders. The Company will bear the costs of
registering the Shares under the Securities Act, including the registration
fee under the Securities Act, certain legal and accounting fees and any
printing fees. The Selling Stockholders will bear all other expenses in
connection with this offering, including brokerage fees and the fees and
disbursements of counsel representing the Selling Stockholders.
The Company and the Selling Stockholders have agreed to indemnify each
other and certain other related parties for certain liabilities in connection
with the registration of the Shares.
LEGAL MATTERS
The validity of the Common Stock and certain other legal matters in
connection with the Offering will be passed upon for the Company by Eugene E.
Murphy, Vice President and General Counsel of the Company. Mr. Murphy is a
Selling Stockholder and owns, as of the date of this Prospectus, 203,212
shares.
EXPERTS
The financial statements and financial statement schedules of the Company
as of December 31, 1994 and 1995 and for each of the years in the three-year
period ending December 31, 1995 have been incorporated by reference herein
and in the registration statement of which this Prospectus forms a part in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
The financial statements of UTC as of November 30, 1993 and for the eleven
months ended November 30, 1993 have been incorporated by reference herein and
have been audited by Ernst & Young, independent auditors, as stated in their
report incorporated herein by reference, and have been so included in
reliance upon the report of such firm given upon the authority of such firm
as experts in accounting and auditing.
9
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE SELLING STOCKHOLDERS OR
ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE SUCH DATE.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Available Information .................... 2
Incorporation of Certain Documents by
Reference ............................... 2
Risk Factors ............................. 3
The Company .............................. 6
Selling Stockholders ..................... 7
Use of Proceeds .......................... 8
Plan of Distribution ..................... 8
Legal Matters ............................ 9
Experts .................................. 9
</TABLE>
201,267 SHARES
TRIGEN ENERGY
CORPORATION
COMMON STOCK
PROSPECTUS
June 7, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission Registration Fee ......... $ 1,387.94
Legal Fees and Expenses ...................................... $ 5,000.00*
Accounting Fees and Expenses ................................. $ 4,000.00*
Blue Sky Fees and Expenses (including legal fees and
expenses) ................................................... $ 2,500.00*
Miscellaneous ................................................ $ 2,500.00*
------------
Total ...................................................... $15,387.94*
============
- ---------------
* Estimated.
All of the above items, except for the registration fee, are estimates.
The Selling Stockholders will not bear any of the expenses set forth above.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A summary description relating to the indemnification of directors and
officers of the Company is included in Part II of the Registration Statement
on Form S-1 filed with the Commission effective August 12, 1995 (Registration
Statement No. 33-80410). The Company currently extends indemnification to all
its officers.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------
<S> <C>
2.1* Stock Purchase Agreement between Thomas Ewing and the Company dated January 17, 1996
2.2** Shareholder's Agreement between Thomas Ewing and the Company dated January 17, 1996
(Exhibit 9.2 to the Company's Annual Report on Form 10-K for the year ended December
31, 1995.)
4.1** Restated Certificate of Incorporation of the Company (Exhibit 4.1 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995).
4.2** By-Laws of the Company, as amended (Exhibit 4.2 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1995).
5.1* Opinion of Eugene E. Murphy, Esq. as to the legality of the Common Stock to be
registered.
23.1* Consent of Eugene E. Murphy, Esq. (included in Exhibit 5.1).
23.2* Consent of KPMG Peat Marwick LLP
23.3* Consent of Ernst & Young LLP
24.1* Power of Attorney (included on page II-3).
</TABLE>
- ------------
* Filed herewith.
** Incorporated by reference to the indicated exhibit to a prior filing.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
securities registered hereby, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
II-1
<PAGE>
(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 20 percent 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 the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed 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 this 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of the chapter at the start of any
delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Securities Act
need not be furnished, provided that the registrant includes in the
prospectus, by means of a post-effective amendment, financial statements
required pursuant to this paragraph (4) and other information necessary to
insure that all other information in the prospectus is at least as current as
the date of those financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective amendment
need not be filed to include financial statements and information required by
Section 10(a)(3) of the Securities Act or Rule 3-19 of the chapter if such
financial statements and information are 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 Form F-3.
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 Section 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 this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing, the registrant has been advised that in
the opinion of the 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-2
<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 White Plains, State of New York, on the 26th day
of April, 1996.
TRIGEN ENERGY CORPORATION
By: /s/ Thomas R. Casten
-----------------------------------
Thomas R. Casten, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas R. Casten and Richard E. Kessel, 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 to this
Registration Statement and to file the same, with all exhibits and schedules
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents 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, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said 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 by the following persons in the
capacities indicated on this 26th day of April, 1996.
SIGNATURE TITLE
--------- -----
/s/ Thomas R. Casten Director, President and Chief Executive
-------------------------- Officer (Principal Executive Officer)
Thomas R. Casten
/s/ David H. Kelly Vice President-Finance, Chief Financial
-------------------------- Officer
David H. Kelly
/s/ Daniel J. Samela Controller (Principal Accounting
-------------------------- Officer)
Daniel J. Samela
/s/ Richard E. Kessel Director, Executive Vice President,
-------------------------- Chief Operating Officer
Richard E. Kessel
/s/ George F. Keane Director and Chairman of the Board
--------------------------
George F. Keane
II-3
<PAGE>
SIGNATURE TITLE
--------- -----
/s/ Dominique Mangin d'Ouince Director
--------------------------------
Dominique Mangin d'Ouince
/s/ Patrick Desnos Director
--------------------------------
Patrick Desnos
/s/ Michel Bleitrach Director
--------------------------------
Michel Bleitrach
/s/ Francois Faessel Director
--------------------------------
Francois Faessel
/s/ Michel Cassou Director
--------------------------------
Michel Cassou
/s/ Charles E. Bayless Director
--------------------------------
Charles E. Bayless
/s/ Jonathan O'Herron Director
--------------------------------
Jonathan O'Herron
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ----------- ----------------------------------------------------------------------- -------------
<S> <C> <C>
2.1* Stock Purchase Agreement between Thomas Ewing and the Company dated
January 17, 1996
2.2** Shareholder's Agreement between Thomas Ewing and the Company dated
January 17, 1996 (Exhibit 9.2 to the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
4.1** Restated Certificate of Incorporation of the Company (Exhibit 4.1 to
the Company's Annual Report on Form 10-K for the year ended December
31, 1995).
4.2** By-Laws of the Company, as amended (Exhibit 4.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995).
5.1* Opinion of Eugene E. Murphy, Esq. as to the legality of the Common
Stock to be registered.
23.1* Consent of Eugene E. Murphy, Esq. (included in Exhibit 5.1).
23.2* Consent of KPMG Peat Marwick LLP
23.3* Consent of Ernst & Young LLP
24.1* Power of Attorney (included on page II-3).
</TABLE>
- ------------
* Filed herewith.
** Incorporated by reference to the indicated exhibit to a prior filing.
EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS AGREEMENT dated as of January 17, 1996 is between TRIGEN ENERGY
CORPORATION, as buyer ("Buyer"), and THOMAS EWING, as seller ("Seller").
In consideration of the premises and of the mutual agreements and
covenants hereinafter set forth, Seller and Buyer hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings (to be equally applicable to both the singular and
plural unless the context otherwise requires):
"Averaged Price" means $19.2875, which is the average of the daily
closing prices per share for the twenty (20) business days commencing November
27, 1995 and ending December 22, 1995, inclusive.
"Business" means the business of designing, installing and start-up of
prepackaged steam turbine cogeneration systems ranging in size up to 5MW.
"Encumbrance" means any lien, mortgage, claim, option, easement, charge,
pledge, security interest, use restriction or other encumbrance by a third
party, whether voluntary or involuntary, choate or inchoate.
"Material Adverse Effect" means any change or effect that is, or is
reasonably likely to be, materially adverse to a party's business, assets,
results of operations or condition, financial or otherwise, taken as a whole.
"Tax" means any tax of any kind whatsoever, together with any interest,
penalties and additions to tax with respect thereto, imposed by any taxing
authority.
2. Purchase and Sale of Seller Shares.
2.1 The Transaction. Seller will sell, and Buyer will purchase, on the
terms and conditions provided herein, an aggregate of 300 shares of common
stock, par value $0.01 per share, of Ewing Power Systems, Inc., a Delaware
corporation ("EPS"), represented by certificate No. 2 (such shares herein called
"Seller Shares") in exchange for 51,848 shares of common stock of Buyer adjusted
up or down by the number of shares of common stock of Buyer having a value
(based on the Averaged Price and rounded up to the next whole share) equal to
any difference between $453,915 and EPS's total shareholders' equity as of the
date hereof (such purchase price, as adjusted, the "Ewing Trigen Stock").
Stock Purchase Agreement
Page 2
For the purposes of this calculation, "total shareholders' equity" means the
consolidated assets, less consolidated liabilities, of EPS determined as of the
date hereof by Seller as compiled by his independent accountants, all in
accordance with generally accepted accounting principles (as consistently
applied by EPS) and subject to agreement by Buyer and its accountants described
in Section 2.3.
2.2 Closing. The closing hereunder (the "Closing") shall take place
on the date of execution of this Agreement (the "Closing Date") at such place
as the parties shall mutually agree upon. On and as of the date hereof, Seller
sells and Buyer purchases the Seller Shares. At the Closing, the following
shall be deemed to occur simultaneously: Seller shall deliver or cause to be
delivered to Buyer the certificate evidencing the Seller Shares duly endorsed
in blank or with stock powers in blank attached and duly executed, the
Stockholders' Agreement, the Employment Letter and the Confidentiality, Non-
Compete and Severance Agreement; and Buyer shall deliver or cause to be
delivered to Seller 36,848 shares of the Ewing Trigen Stock, the Stockholder's
Agreement, the Employment Letter and the Confidentiality, Non-Compete and
Severance Agreement. Fifteen thousand (15,000) shares of the Ewing Trigen
Stock (the "Escrowed Stock") shall be delivered by Buyer at the Closing to
Eileen A. McDonnell, who hereby agrees to act as Escrow Agent (the "Escrow
Agent"), and shall be held in escrow pursuant hereto and released in accordance
with the terms hereof.
2.3. Price Adjustment. Within 30 days after the Closing Date, the
purchase price adjustment described in Section 2.1 shall be calculated by
Seller (based on final Closing Date EPS financial statements) and certified by
his accountants, all in accordance with generally accepted accounting
principles (as consistently applied by EPS) and subject to agreement by Buyer
and its independent accountants. If such adjustment results in a reduction of
the purchase price, Escrowed Stock in the amount of such reduction shall be
returned to Buyer and five thousand (5,000) shares of Escrowed Stock less the
amount of such reduction shall be released to Seller by the Escrow Agent. If
such reduction is greater than five thousand (5,000) shares, the excess price
reduction shall be deducted from the remaining Escrowed Stock. If such
adjustment results in an increase of the purchase price, the number of
additional shares of common stock of Buyer (valued at the Averaged Price)
equaling such increase in price shall be delivered by Buyer to Seller along
with five thousand (5,000) shares of Escrowed Stock from the Escrow Agent.
If agreement as to such adjustment cannot be reached within 30 days
after the Closing Date, the accountants of Buyer and Seller shall, within 10
business days thereafter, appoint a third independent accountant, who shall,
within 30 days of such appointment, determine the purchase price adjustment,
which shall be final and binding on Buyer and Seller. In each case, the
appropriate Escrowed Stock or additional shares or both shall be released by
the Escrow Agent and Buyer to Seller or by the Escrow Agent to Buyer as the
case may be within 10 days of determination of the adjusted purchase price.
Stock Purchase Agreement
Page 3
2.4. Escrow Arrangements; Disputes.. (a) If Buyer reasonably believes
that it is entitled it to any portion of the Escrowed Stock pursuant to Section
5 hereof, Buyer will deliver to the Escrow Agent and the Escrow Agent shall
forward to Seller a notice (a "Notice of Claim") setting forth in reasonable
detail the nature of the claim and the aggregate amount of Escrowed Stock to
which Buyer believes it is entitled. All calculations under this Section 2.4
shall be based on the Averaged Price.
(b) If Seller disputes the validity of the claim or any portion of the
amount specified in a Notice of Claim, Seller shall within 20 business days
following receipt of such Notice of Claim deliver to the Escrow Agent and the
Escrow Agent shall forward to Buyer a notice (a "Dispute Notice") providing in
reasonable detail the nature of his disagreement and the amount disputed (a
"Disputed Amount"). If such notice is received, the Escrow Agent shall not
deliver to Buyer any Disputed Amount other than pursuant to clause (c) below.
If no such Dispute Notice is received, the Escrow Agent shall deliver to Buyer
the Escrowed Stock specified in such Notice of Claim and Seller shall be
forever barred and precluded from contesting in any manner or forum whatsoever
the distribution of such Escrowed Stock.
(c) Upon receipt by the Escrow Agent of either (1) a written agreement
between Buyer and Seller or (2) a certified copy of a final order of a court of
competent jurisdiction, in each case specifying the resolution of a Disputed
Amount, the Escrow Agent shall deliver to Buyer the specified amount of
Escrowed Stock, if any.
(d) On the first anniversary of the Closing Date (the "Distribution
Date"), the Escrow Agent shall distribute to Seller the remaining Escrowed
Stock, if any, in excess of (1) the aggregate amount of all unresolved Disputed
Amounts as of the Distribution Date plus (2) the aggregate of all other amounts
specified in Notices of Claims received by the Escrow Agent and not paid as of
such date, which amounts shall be distributed in accordance with clause (a) or
(c) above, and any amount remaining Escrowed Stock shall be distributed to
Seller.
(e) The parties hereby authorize the Escrow Agent to apply to Buyer's
transfer agent for any division of certificates evidencing Escrowed Stock which
may be required in connection with distributions of Escrowed Stock pursuant to
this Agreement.
2.5 Voting, Distributions Etc. Seller shall have, at any time prior
to disbursement thereof, the full and unqualified right and power to exercise
any voting and consent rights with respect to the Escrowed Stock and to
receive when made or provided for any and all distributions in respect of the
Escrowed Stock. The Escrow Agent shall promptly forward to Seller any proxy
material or distribution in respect of the Escrowed Stock upon receipt. Buyer
and Seller shall have the right to inspect and obtain copies of the records of
the Escrow Agent upon reasonable notice and during reasonable business hours
and to receive reports upon request of the status of the Escrowed Stock.
Stock Purchase Agreement
Page 4
3. Representations and Warranties by Seller.
3.1. Authority; No Consents. Seller has full power and authority to
execute this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Seller, the performance and
compliance with all the terms and conditions hereof to be performed and
complied with by Seller, and the consummation by Seller of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of EPS. This Agreement has been duly and validly executed and
delivered by Seller and constitutes the valid and binding obligation of Seller
enforceable in accordance with its terms, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws of general application
affecting enforcement of creditors' rights generally, and (b) general
principles of equity, regardless of whether asserted in a proceeding in equity
or at law. No consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority (foreign or domestic) on
the part of Seller or EPS is necessary for the execution and delivery of this
Agreement by Seller and the delivery of the Seller Shares to be sold hereunder
or for the performance by Seller of any of the terms or conditions hereof.
3.2. Incorporation and Qualification; No Subsidiaries. EPS is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all necessary corporate power and
authority to own, operate or lease the properties and assets now owned,
operated or leased by it and to carry on the Business. EPS is duly qualified
to do business as a foreign corporation, and is in good standing, in each
jurisdiction listed in Section 3.2 of the Disclosure Schedule, and in each
other jurisdiction in which the failure to be so qualified or in good standing
would have a Material Adverse Effect on EPS. EPS has no subsidiaries.
3.3. Ownership of Seller Shares. The Seller Shares are owned
beneficially and of record by Seller, free and clear of any Encumbrance, and
are not the subject of any agreement relating to the acquisition, disposition
or voting of the Seller Shares.
3.4. Capital Stock of EPS. The authorized capital stock of EPS
consists of 1,000 shares of common stock, $.01 par value per share, of which
only the Seller Shares are issued and outstanding. All of the issued and
outstanding shares of common stock of EPS are duly authorized, validly issued,
fully paid and non-assessable. There are not now outstanding any options,
calls, warrants, subscription rights or rights of conversion or other rights,
agreements, arrangements or commitments of any character relating to the
capital stock of EPS or obligating EPS to issue or sell any additional shares
of EPS, or securities convertible into or exchangeable for such shares, or
obligating EPS to issue or grant any such option, call, warrant, subscription
right, right of conversion or other right, agreement, arrangement or
commitment. Except for the Seller Shares, Seller does not own any other
equity interest in EPS.
Stock Purchase Agreement
Page 5
3.5. No Conflict. Execution, delivery and performance of this
Agreement by Seller do not (a) conflict with or violate the certificate or
articles of incorporation or the by-laws of EPS, or (b) conflict with or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award to which Seller or EPS is subject, or (c) result in any
breach of, or constitute a default (or event which with the giving of notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of any other lien on any of the assets or properties of EPS
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument to which EPS or Seller is a
party or by which any of the assets or properties of EPS is bound.
3.6. Financial Statements. (a) None of the information contained in
the financial statements listed in Schedule 3.6 hereto contained (as of the
date thereof) any untrue statement of a material fact and, to the knowledge of
the Seller, EPS has not omitted to furnish to its accountants any material
information necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (b) each of the
balance sheets included in such financial statements (including the related
notes) fairly presents the consolidated financial position of EPS as of the
respective dates thereof, and the other related statements (including the
related notes) included therein fairly present the results of operations and
the cash flows of EPS for the respective fiscal periods set forth therein,
subject, in the case of unaudited statements, to normal year-end adjustments
and (c) each of the financial statements (including the related notes) has been
prepared in accordance with generally accepted accounting principles
consistently applied during the periods involved, except as otherwise noted
therein. EPS is not required to file any forms, reports, statements or other
documents with the Securities and Exchange Commission (the "SEC").
3.7. Litigation. (a) Except as disclosed in Section 3.7 of the
Disclosure Schedule, (i) there are no claims, actions, proceedings or
investigations pending or, to the best knowledge of Seller, threatened against
EPS or Seller, before any court, arbitrator or administrative, governmental or
regulatory authority or body that, individually or in the aggregate, would have
a Material Adverse Effect and (ii) neither EPS nor any of its assets or
properties is subject to any order, writ, judgment, injunction, decree,
determination or award having a Material Adverse Effect.
(b) There are no claims, actions, proceedings or investigations pending
or, to the best knowledge of Seller, threatened, which seek to delay or prevent
the consummation of the transactions contemplated hereby or which would be
reasonably likely to adversely affect or restrict Seller's ability to
consummate such transactions.
3.8. Material Contracts; No Defaults. (a) Section 3.8 of the
Disclosure Schedule lists all material contracts of EPS (the "Material
Contracts"), including: (i) all existing contracts for sales reasonably
expected to involve payments to EPS of more than $100,000 during any
prospective 12-month period; (ii) all indentures, mortgages, notes, loan or
credit agreements, assignments of rents
Stock Purchase Agreement
Page 6
and leases or other contracts or obligations relating to the borrowing of money
(whether long-term or short-term) or to the direct or indirect guaranty or
assumption of such obligations of others; (iii) all contracts or agreements
that limit the ability of EPS to compete in any line of business or with any
person or entity in any geographic area or during any period of time; (iv) all
management, consultant, employment, severance pay or other employment related
agreements; (v) all agreements with Seller; (vi) all other contracts that are
material to the Business as a whole; and (vii) all outstanding written offers
or bids made by EPS that, if accepted, would result in a contract required to
be disclosed herein.
(b) Complete copies of all Material Contracts have been furnished or
made available to Buyer. EPS has complied in all material respects with each
Material Contract and is not in default in any material respect as to any
Material Contract.
(c) No condition or state of facts exists which would (with notice or
the passage of time, or both) constitute a material default by EPS or, to the
actual knowledge of Seller, by any other party, under any Material Contract.
To the actual knowledge of Seller, each Material Contract is in full force and
effect, except where the failure to be in full force and effect would not have
a Material Adverse Effect.
3.9. Licenses; Environmental Matters; Compliance with Law. (a) EPS
has all governmental licenses, permits, franchises, certificates of authority
and other authorizations necessary or desirable to carry out the Business as it
is now being conducted the absence of which would have a Material Adverse
Effect (collectively, "Licenses"). All such Licenses are in full force and
effect, except for such Licenses the absence of which would not have a Material
Adverse Effect. Neither Seller nor EPS has received any written notice that
any License will be revoked, canceled, rescinded or materially modified or will
not be renewed.
(b) All real property listed in Schedule 3.10 and its existing uses
and, to Seller's actual knowledge without any inquiry, prior uses, are and have
at all times been in material compliance with all Environmental Laws. There
are no claims under Environmental Laws pending or to the best knowledge of
Seller threatened against EPS regarding such property. EPS has conducted its
operations on such real property in material compliance with all Environmental
Laws. EPS has not been named as a potentially responsible party at any site
included on the federal National Priorities List (as defined under
Environmental Law) or at any site listed for investigation or remediation under
any analogous state law. For the purposes of this section, "Environmental Law"
means all applicable federal, state or local laws, rules, statutes,
regulations, ordinances, orders, codes, permits, interpretations, judgments,
decrees, directives or decisions relating to pollution or protection of the
environment (including but not limited to ambient air, surface water, ground
water, land surface or subsurface strata).
(c) EPS has not been and is not in conflict with, or in default or
violation of, any applicable local, state, federal or foreign law, ordinance,
regulation, order or decree the occurrence of which would have a Material
Adverse Effect.
Stock Purchase Agreemet
Page 7
3.10. Real Property; Other Property. (a) EPS owns no real property
and has no options or rights to acquire real property.
(b) Section 3.10(b) of the Disclosure Schedule lists (i) each parcel of
real property leased by EPS from a third person, and (ii) the identity of the
lessor and lessee of each such parcel of real property. EPS leases no real
property to any other person.
(c) Except as set forth in Section 3.10(c) of the Disclosure Schedule,
EPS has title to, or valid leasehold interests in, all of the real and tangible
personal property used in conducting the Business, free and clear of all
Encumbrances, except (i) Encumbrances for inchoate mechanics' and materialmen's
liens for construction in progress and workmen's, repairmen's, warehousemen's
and carriers' liens arising in the ordinary course of the Business, (ii)
Encumbrances for Taxes not yet payable, (iii) Encumbrances of record, (iv)
Encumbrances and imperfections of title the existence of which, individually or
in the aggregate, would not have a Material Adverse Effect and (v) Encumbrances
securing debt which is reflected as a liability in financial statements
delivered pursuant to Section 3.6.
(d) Except as set forth in Section 3.10(d) of the Disclosure Schedule,
EPS has no registered trade names, trademarks, servicemarks, patents or
copyrights.
3.11. Insurance. Section 3.11 of the Disclosure Schedule contains a
complete and accurate list of all insurance policies and bonds in force and
owned or maintained by or for the benefit of EPS as a named insured, copies of
which have been made available to Buyer. EPS is in compliance with all such
policies and bonds, and all premiums thereon required to be paid as of the date
hereof have been paid.
3.12. Employee Matters. (a) Section 3.12(a) of the Disclosure
Schedule lists all "employee benefit plans" within the meaning of Section 3(3)
of ERISA, all bonus, stock option, stock purchase, incentive, deferred
compensation, supplemental retirement, severance and other employee benefit
plans, and all employment or compensation agreements, in each case for the
benefit of, or relating to, current employees and former employees of EPS
(collectively, the "Employee Plans"). None of the Employee Plans is a
"multiemployer plan" as defined in Section 3(7) of ERISA. All Employee Plans
are in compliance in all material respects with the requirements prescribed by
applicable law, and EPS has performed all its material obligations under, and
is not in any material respect in default under or in violation of, any of the
Employee Plans. Each Employee Plan intended to be qualified under Section
401(a) of the Internal Revenue Code has heretofore been determined by the
Internal Revenue Service to so qualify, and each trust created thereunder has
heretofore been determined by the Internal Revenue Service to be exempt from
tax under the provisions of Section 501(a) of the Internal Revenue Code and, to
the best knowledge of Seller, nothing has occurred since the date of the most
recent determination that would cause any such Employee Plan or trust to fail
to qualify under Section 401(a)
Stock Purchase Agreement
Page 8
or 501(a) of the Internal Revenue Code. EPS has not incurred any material
liability that remains unpaid to the Pension Benefit Guaranty Corporation or
any "withdrawal liability" within the meaning of Section 4201 of ERISA. The
assets, if any, of each of the Employee Plans are shown on the books and
records of each such plan at their fair market value, except for such assets
that are not shown on such books and records by reference to fair market value
in accordance with customary accounting practice for pension plans. None of
the Employee Plans provides post-retirement medical benefits, except to the
extent required to satisfy the minimum requirements under Section 4980B of the
Internal Revenue Code. EPS has not engaged in a transaction described in
either Section 406 of ERISA or Section 4975(c)(1) of the Internal Revenue Code
for which there is no exemption and which would, individually or in the
aggregate, have a Material Adverse Effect, and EPS has no obligation to
indemnify any other person for any expenses or taxes incurred as a result of
such a transaction or any other violation of ERISA which would, individually or
in the aggregate, have a Material Adverse Effect. Seller has made available to
Buyer copies of all written Employee Plans and, where applicable, summary plan
descriptions with respect to the Employee Plans. No Employee Plan requires the
payment of any amount that will be treated as an "excess parachute payment"
under Section 280G of the Internal Revenue Code.
(b) Except as set forth in Section 3.12(b) of the Disclosure Schedule,
there are no existing collective bargaining agreements with respect to any
employees of EPS. There are currently no strikes or work stoppages by any
employees of EPS. There is no pending union representation election or
negotiation of a collective bargaining agreement with respect to any employees
of EPS.
3.13. Taxes. Except as set forth in Section 3.13(a) of the
Disclosure Schedule, (i) EPS has timely filed or been included in, or will
timely file or be included in, all returns required to be filed by it or in
which it is required to be included with respect to Taxes for any period ending
on or before the date hereof, taking into account any extension of time to file
granted to it; (ii) all Taxes shown to be payable on each such return have been
paid or will be paid; (iii) each such return has been prepared, or will be
prepared, in accordance with the requirements of applicable law and is, or will
be, accurate and complete in all material respects; (iv) all accounting periods
and methods used in each such return is, or will be, a permissible accounting
period and method under applicable law; (v) no deficiency for any Tax has been
asserted or assessed by a taxing authority against EPS; and (vi) there is
currently no action or proceeding pending against EPS or Seller with respect to
any Tax, nor is there currently any audit or examination of EPS by any taxing
authority regarding or relating to claims for any additional Tax with reference
to EPS. Buyer agrees that, prior to seeking reimbursement from Seller under
this Agreement in respect of any sales tax, it will cause EPS (a) to take all
reasonable steps to obtain reimbursement of such amounts from the appropriate
customer or customers, and (b) if such reimbursement is not obtained, to assign
to Seller (upon Seller's payment of such amount) Buyer's rights to such
reimbursement. There are no Tax liens against Seller or Seller's assets
affecting the Seller's Shares or any assets of EPS.
Stock Purchase Agreement
Page 9
3.14. Corporate Records. Seller has delivered to Buyer true and
complete copies of the articles or certificate of incorporation and of the
bylaws of EPS, which copies reflect all amendments thereto to date. Seller has
caused EPS to make available to Buyer copies of all actions or consents by the
directors or shareholders of EPS. Section 3.14 of the Disclosure Schedule is
a true and complete list of all of the current officers and directors of EPS.
3.15. Absence of Certain Changes. Since December 31, 1994, except as
set forth in the Disclosure Schedule, (a) there has not been a Material Adverse
Effect on EPS, and (b) EPS has not (i) split, combined or reclassified any
shares of its capital stock, declared, set aside or paid any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in
respect of its capital stock or redeemed or otherwise acquired any of its
securities except for distributions or payments made in September 1995 to meet
Tax obligations attributable to Seller's interest in EPS; (ii) made any loans,
advances or capital contributions to, or investments in, any person; (iii)
entered into or adopted any bonus, profit sharing, compensation, severance,
termination, stock option, stock appreciation right, restricted stock,
performance unit, pension, retirement, deferred compensation, employment, or
other employee benefit agreements, trusts, plans, funds or other arrangements
for the benefit or welfare of any current or former director, officer or
employee, or amended any of the Employee Plans, or (except for normal increases
in the ordinary course of business that were consistent with past practice)
increased in any manner the compensation or fringe benefits of any current or
former director, officer or employee or paid any benefit not required by the
Employee Plans (including, without limitation, the granting of stock options,
stock appreciation rights, shares of restricted stock or performance units);
(iv) acquired, sold, leased or disposed of any assets other than (x) in the
ordinary course of business or (y) any assets that are not material,
individually or in the aggregate, to EPS, or entered into any material
commitment or transaction other than in the ordinary course of business; (v)
materially changed its accounting methods, principles or practices, except such
changes as were required by generally accepted accounting principles; or (vi)
entered into any contract, agreement, commitment or arrangement to do any of
the foregoing.
3.16. Absence of Undisclosed Liabilities. EPS has no liabilities
required to be included in the financial statements attached to Schedule 3.6 in
accordance with generally accepted accounting principles that are not included
in such financial statements and, except as set forth on Schedule 3.16, has not
incurred any liabilities since the date of the most recent such financial
statements other than in the ordinary course of business.
3.17. No Broker. Seller has not engaged any broker, finder or
financial advisor, other than any financial advisor whose fees and expenses
shall be paid by Seller, in connection with the transactions contemplated
hereby.
3.18 Exclusive Dealing. Since December 1, 1995, Seller did not and
did not permit EPS to, directly or indirectly, through any Representative or
otherwise, solicit or entertain offers from,
Stock Purchase Agreement
Page 10
negotiate with or in any manner encourage, discuss, accept or consider any
proposal of any other person relating to the acquisition of EPS, its assets or
business, in whole or in part, whether through direct purchase, merger,
consolidation or other business combination (other than sales of inventory in
the ordinary course).
4. Representations and Warranties by Buyer.
4.1. Organization of Buyer. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
4.2. Authority; No Consents. Buyer has full corporate power and
authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Buyer,
the performance and compliance with all the terms and conditions hereof to be
performed and complied with by Buyer, and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and constitutes the valid and binding
obligation of Buyer enforceable in accordance with its terms, subject to (a)
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
of general application affecting enforcement of creditors' rights generally,
and (b) general principles of equity, regardless of whether asserted in a
proceeding in equity or at law. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority (foreign or
domestic) on the part of Buyer is necessary for the execution and delivery of
this Agreement by Buyer and the purchase of the Seller Shares to be purchased
by it hereunder or for the performance by it of any of the terms or conditions
hereof.
4.3. No Conflict. Execution, delivery and performance of this
Agreement by Buyer do not (a) conflict with or violate the certificate or
articles of incorporation or the by-laws of Buyer, or (b) conflict with or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award to which Buyer is subject , or (c) result in any breach
of, or constitute a default (or event which with the giving of notice or lapse
of time or both would become a default) under any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument to which Buyer is a party or by which any of the assets or
properties of Buyer is bound, which breach or default would have a Material
Adverse Affect on Buyer.
4.4. Purchase for Investment; No Public Market. Buyer is purchasing
the Seller Shares hereunder for investment for its own account and not with a
view to the distribution thereof. Buyer understands that the sale of the
Seller Shares hereunder has not been registered under the Securities Act of
1933, as amended (the "Securities Act"), by reason of an exemption from the
registration provisions thereof which depends, among other things, upon the
bona fide nature of Buyer's investment intent as expressed herein. Buyer
understands that there is no public market for the Seller Shares and no
Stock Purchase Agreement
Page 11
assurance that a public market for the Seller Shares will ever develop and
acknowledges that the Seller Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or sold pursuant to an
exemption from the registration provisions thereof.
4.5 Capital Stock of Buyer. The authorized capital stock of Buyer
consists of 60,000,000 shares of common stock of which 11,460,998 have been
issued (including the Ewing Trigen Shares), and 15,000,000 shares of preferred
stock of which none have been issued. All of the issued and outstanding shares
of common stock of Buyer, including the Ewing Trigen Stock, are duly
authorized, validly issued, fully paid and non-assessable. The Ewing Trigen
Stock has been listed on the New York Stock Exchange.
4.6 Compliance with Securities Laws. Buyer has previously furnished
to Seller true and complete copies of the following (collectively the "Buyer
Reports"):
(a) Buyer's annual report on Form 10-K filed with the
Securities and Exchange Commission("SEC") for the year ended December 31, 1994;
(b) Buyer's definitive proxy statement filed with the SEC
dated March 30, 1995; and
(c) Buyer's quarterly reports on Form 10-Q filed with the
SEC for each of the quarters ended March 31, 1995, June 30, 1995 and September
30, 1995.
No current reports on Form 8-K have been filed by Buyer with the SEC
since December 31, 1994. As of their respective dates, such Buyer Reports did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading. The
audited consolidated financial statements and unaudited consolidated interim
financial statements included in the Buyer Reports, including any related notes
and schedules (the "Buyer Financial Statements") are true and correct as of the
dates thereof and fairly present the financial position of Buyer and its
consolidated subsidiaries as of the dates thereof and the consolidated results
of operations, cash flows and changes in financial position or other
information included therein for the periods or as of the dates then ended, in
each case in accordance with generally accepted accounting principles
consistently applied during the periods involved (except as otherwise stated
therein and except for normal recurring adjustments for interim periods).
Since December 31, 1994, Buyer has timely filed all such reports, registration
statements and other filings required to be filed by Buyer under the rules and
regulations of the SEC the timeliness of which could have a Material Adverse
Effect on Buyer. Except as reflected or reserved against in the Buyer
Financial Statements, neither Buyer nor any of its subsidiaries has, and Buyer
does not know of any reasonable basis for the assertion against Buyer or any of
its subsidiaries of, any liabilities or obligations for the periods covered
thereby which would have a Material Adverse Effect on Buyer.
Stock Purchase Agreement
Page 12
5. Indemnification. (a) Buyer and Seller shall each defend,
indemnify and hold harmless the other party and its permitted assigns, their
respective agents, employees, officers and directors and anyone else acting for
or on behalf of such party and its permitted assigns, from and against all
claims, damages, losses and expenses, including but not limited to court costs
and reasonable attorneys fees (but without duplication of any amounts recovered
pursuant to Section 2.3 hereof), to the extent arising out of any material
breach of any warranty, or the material inaccuracy of any representation, made
by the indemnifying party in this Agreement; provided that neither party shall
be liable to the other hereunder, whether in contract, in tort, strict
liability, or otherwise, for any special, indirect, incidental or consequential
damages. The aggregate liability of either party for indemnification claims
hereunder shall not exceed $750,000. All claims for indemnification payable by
Seller shall be paid first from Escrowed Stock (valued at the Averaged Price)
until the Escrowed Stock has been disbursed pursuant to Section 2.3 and Section
2.4 or the aggregate amount owed to Buyer exceeds the value of the Escrowed
Stock (valued at the Averaged price) and then at the option of the Seller, in
shares of Buyer's common stock, valued at the Average Price, or in cash. All
claims for indemnification payable by Buyer shall be paid in cash, unless
Seller requests Buyer to pay such claim in shares of Buyer's common stock to
preserve the tax-free nature of the transactions contemplated hereby, in which
case payment shall be made in shares of Buyer's common stock valued at the
Averaged Price. Indemnification under this section for breaches of
representation and warranties under this Agreement shall be the sole remedy of
either party such breach (other than for actual fraud).
(b) If either party shall receive notice or have knowledge of any
action that may result in a claim for indemnification against the other party
pursuant to this Section (a "Claim"), such party shall promptly give the other
party notice of such Claim. The parties shall consult and cooperate with each
other regarding the response to and defense of such Claim, and the indemnifying
party shall be entitled to assume the defense in respect of such Claim,
including the right to select and direct legal counsel and to accept or reject
offers of settlement, all at its sole cost and expense, provided that no such
settlement shall be made without the written consent of the indemnified party
if such settlement is reasonably likely to affect adversely such party's
business or operations. Nothing herein shall prevent an indemnified party from
retaining its own counsel and participating in its own defense at its own cost
and expense.
(c) No claim for indemnification may be made with respect to any
representation or warranty after the expiration of the applicable survival
period described in Section 8.3.
6. Conditions Precedent for the Closing of the Transaction. On the
Closing Date, the obligations of Buyer to consummate the transactions
contemplated hereby shall be conditioned on satisfaction by Seller of each of
its obligations set forth below, and the obligation of Seller to consummate
such transactions shall be conditioned on satisfaction by Buyer of each of its
obligations set forth below:
Stock Purchase Agreement
Page 13
6.1. All representations and warranties given in this Agreement shall
be true and correct in all material respects;
6.2. All necessary consents and approvals of governmental authorities,
lenders, lessors and other third parties shall have been obtained by the party
requiring such consents and approvals;
6.3. No material adverse change in the business, financial condition,
prospects, assets or operations of either party shall have occurred since
November 9, 1995;
6.4. No action shall have been instituted or threatened by any
governmental authority or other person which questions the validity or legality
of the transactions contemplated hereby;
6.5. Buyer and Seller shall each have duly executed and delivered the
Stockholder's Agreement, the Employment Letter and the Confidentiality, Non-
Compete and Severance Agreement; and
6.6. Seller shall have delivered the opinion of Ropes & Gray, counsel
to Seller, substantially in the form attached hereto as Exhibit A; Buyer shall
have delivered the opinion of Eugene E. Murphy, Vice President and General
Counsel of Buyer, substantially in the form attached hereto as Exhibit B; and
each party shall have delivered such other closing certificates, resolutions
and documentation as is reasonably requested by the other party
7. Escrow Agent. (a) The Escrow Agent may resign by notice to the
other parties hereto (the "Resignation Notice"). If, within 60 business days
after the delivery of the Resignation Notice, the Escrow Agent shall not have
received written instructions from Buyer and Seller designating a successor
escrow agent acceptable to both parties and consented to in writing by such
successor escrow agent, the Escrow Agent may apply to a court of competent
jurisdiction to appoint a successor escrow agent. If the Escrow Agent shall
have received such instructions, she shall promptly transfer the Escrowed Stock
to such successor escrow agent. Upon the appointment of a successor escrow
agent and the transfer of the Escrowed Stock thereto, the duties of the Escrow
Agent hereunder shall terminate.
(b) If a dispute as to the proper disposition of the Escrowed Stock
continues for 90 days or more, the Escrow Agent shall be entitled to submit the
dispute to a court of competent jurisdiction and shall thereupon be relieved of
any obligations or liability,
(c) Buyer hereby agrees to reimburse the Escrow Agent or any successor
escrow agent for all fees, expenses, disbursements, and advances incurred or
made by her in the performance of her duties hereunder and to indemnify and
hold the Escrow Agent harmless from and against any and all taxes, expenses
(including reasonable counsel fees), assessments, liabilities, claims, damages,
actions, suits or other charges incurred by or assessed against her for any
thing done or omitted by her in the
Stock Purchase Agreement
Page 14
performance of her duties hereunder, except as a result of her own gross
negligence or willful misconduct. The agreement contained in this section
shall survive any termination of the duties of the Escrow Agent hereunder.
(d) The Escrow Agent shall have no duties or responsibilities,
including, without limitation, a duty to review or interpret this Agreement,
except those expressly set forth herein, She may consult with counsel of her
choice, shall be fully protected with respect to any action taken or omitted in
good faith on advice of counsel and shall have no liability hereunder except
for willful misconduct or gross negligence. The Escrow Agent shall have no
responsibility as to the validity, collectibility or value of the Escrowed
Stock or for investment losses related thereto and she may rely on any notice,
instruction, certificate, statement, request, consent, confirmation, agreement
or other instrument which she believes to be genuine and to have been signed or
presented by a proper person or persons. Notwithstanding any provision to the
contrary contained in any other agreement between any of the parties hereto,
the Escrow Agent shall have no interest in the Escrowed Stock except as
provided in this Agreement.
8. Miscellaneous.
8.1. Expenses. Seller and Buyer each shall bear its own expenses and
legal fees incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby, whether or not the Closing shall occur.
8.2. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments, and
documents as the other party hereto reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
8.3. Survival of Representations and Warranties. All representations
and warranties made hereunder by either party shall be deemed to have been made
again at and as of the Closing Date and shall survive the execution and
delivery of this Agreement and the payment for and delivery of the Seller
Shares sold hereunder until the first anniversary of the Closing Date; provided
that the representations in Sections 3.9 and 3.13 shall survive for a period of
three years from the Closing Date.
8.4. Assignment; Successors and Assigns. This Agreement may not be
assigned by either party. All covenants and agreements in this Agreement
contained by or on behalf of either of the parties hereto shall bind and inure
to the benefit of the respective heirs, executors, legal representatives,
successors and permitted assigns of the parties hereto whether so expressed or
not.
8.5. Entire Agreement, Amendments. This Agreement and the
Stockholder's Agreement constitute the entire agreement with respect to the
subject matter hereof and supersede all prior written
Stock Purchase Agreement
Page 15
and oral agreements with respect thereto. This Agreement may be waived,
changed, discharged or terminated only by an instrument in writing signed by
the party against whom enforcement of any waiver, change, discharge or
termination is sought.
8.6. Headings. The descriptive headings of the several paragraphs and
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
8.7. Counterparts. This Agreement may be executed with counterpart
signature pages or in two or more counterparts, each of which shall be deemed
an original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
8.8. Severability. If any term or provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transaction contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent as
closely as possible in a mutually acceptable manner.
8.9. Governing Law; Jurisdiction; Process. This Agreement shall be
construed and enforced in accordance with the laws of the State of New York,
without giving effect to the choice of law principles thereof. Each of Buyer
and Seller hereby consents to the non-exclusive jurisdiction of the courts of
the State of New York, the Commonwealth of Massachusetts and of the Federal
Court of the United States for the Southern District of New York and the
District of Massachusetts in any action brought in connection with this
Agreement.
8.10. Notices. Except as otherwise provided below, all notices,
consents and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given (i) when delivered by hand, (ii) when
received by the addressee if sent by Express Mail, Federal Express or other
express delivery service, or (iii) when sent by telex or telecopier (with
receipt confirmed), provided that a copy is mailed by certified mail, return
receipt requested, as follows (or to such other addresses, telex numbers and
telecopier numbers as a party may designate as to itself by notice to the other
parties):
Escrow Agent: Eileen A. McDonnell, Trigen Energy Corporation, 1 Water
Street, White Plains, New York 10601, Telephone 914.286.6633, Telecopier
914.948.9157.
Buyer: President, Trigen Energy Corporation, 1 Water Street, White
Plains, New York 10601, Telephone 914.286.6613, Telecopier 914.948.9157.
Stock Purchase Agreemen
Page 16
Seller: Thomas S. Ewing, 108 Old Mountain Road, Leverett, MA 01054,
with a copy to: Ropes & Gray, Attention, Ann L. Milner, Esq., One
International Place, Boston, Massachusetts 02110-2624, Telecopier 617.951.7050.
Notwithstanding any of the foregoing, no notice or instructions to the Escrow
Agent shall be deemed to have been received or to be effective prior to actual
receipt.
8.11 Access. During any period between the execution of this
Agreement and the Closing, Seller shall continue to cause EPS to provide Buyer
reasonable access to EPS facilities, books and records and cause the directors,
employees, accountants, and other agents and representatives (collectively,
"Representatives") of EPS to cooperate fully with Buyer and its Representatives
in connection with its due diligence investigation of EPS and EPS' assets,
contracts, liabilities, operations, records and other aspects of its business .
Buyer shall not disclose the reasons for its inquiry to EPS customers and
suppliers.
8.12 Termination. If the Closing does not occur on or prior to January
31, 1996, this Agreement shall terminate and neither party shall have any
further right or obligation hereunder.
8.13 Final Tax Return. Seller will prepare and Buyer shall cause
EPS to file S-corporation tax returns required to be filed by EPS for the year
ending December 31, 1995 and for the period ending on the Closing Date.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIGEN ENERGY CORPORATION, as Buyer
Date: THOMAS R. CASTEN
---------- ------------------------------------
Name:
Title:
Date: January 17, 1996 THOMAS EWING
-----------------------------------
THOMAS EWING, as Seller
Accepted and Agreed To:
EILEEN A. MCDONNELL
- -------------------------------------
EILEEN A. MCDONNELL, as Escrow Agent
Date: January 17, 1996
[LETTERHEAD OF TRIGEN ENERGY CORPORATION]
April 29, 1996
Trigen Energy Corporation
One Water Street
White Plains, NY 10601
Re: Form S-3 Registration Statement relating to 60,000,000 shares of
Common Stock, par value $.01 per share, of Trigen Energy Corporation
---------------------------------------------------------------------
Ladies and Gentlemen:
I am Vice President and General Counsel of Trigen Energy Corporation, a
Delaware corporation (the "Company"). I am delivering this opinion in
connection with the preparation of the Registration Statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, relating to the offering from
time to time of up to 201,267 shares (the "Shares") of Common Stock, par value
$.01 per share, of the Company, by certain stockholders of the Company (the
"Selling Stockholders").
I have examined and relied upon such records, documents, certificates
and other instruments as in my judgment are necessary or appropriate to form
the basis for the opinions hereinafter set forth. In all such examinations, I
have assumed the genuineness of signatures on original documents (other than
signatures on behalf of the Company) and the conformity to such original
documents of all copies submitted to me as certified, conformed or photographic
copies, and I have assumed any certificates of public officials to have been
properly given and to be accurate.
Based upon the foregoing, I am of the opinion that:
(i) The Company is a corporation incorporated and validly existing
in good standing under the laws of the State of Delaware; and
(ii) The Shares have been duly authorized and validly issued, and
are fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this opinion under the caption
"Legal Matters" in the Prospectus that forms a part of the Registration
Statement.
Very truly yours,
/s/ Eugene E. Murphy
Eugene E. Murphy
Independent Accountants' Consent
The Board of Directors
Trigen Energy Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the registration
statement. Our report on the consolidated financial statements refers to the
company's adoption of the provisions of Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of."
/s/ KPMG Peat Marwick LLP
Stamford, Connecticut
April 24, 1996
CONSENT
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related prospectus of Trigen Energy
Corporation and subsidiaries for the registration of 201,267 shares of its
common stock and to the incorporation by reference therein of our report dated
January 28, 1994, with respect to the consolidated financial statements of
United Thermal Corporation and subsidiaries for the eleven months ended
November 30, 1993, which have also been incorporated by reference therein and
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
New York, New York
April 29, 1996
