<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 10, 1996
REGISTRATION NO. 333-
==============================================================================
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)
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DELAWARE 13-3378939
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
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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
=============================================================================
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PROPOSED PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SHARES AMOUNT TO BE AGGREGATE PRICE OFFERING PRICE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) (1) FEE
- ----------------------- -------------- --------------- ---------------- --------------
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Common Stock, par value
$0.01 per share ....... 200,000 shares $21.25 $4,250,000 $1,287.88
- ----------------------- -------------- --------------- ---------------- --------------
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=============================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
==============================================================================
<PAGE>
PROSPECTUS
200,000 SHARES
TRIGEN ENERGY CORPORATION
COMMON STOCK
($.01 PAR VALUE)
----------------
All of the 200,000 shares of common stock, $.01 Par Value (the "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 a certain stockholder of the Company (the "Selling
Stockholder"). See "Selling Stockholder" and "Plan of Distribution." The
Company will not receive any of the proceeds from the sale of the Shares by
the Selling Stockholder, but has agreed to bear certain expenses of
registration of the Shares. See "Plan of Distribution."
The Common Stock is listed on the New York Stock Exchange under the symbol
"TGN." On October 8, 1996, the reported last price of the Company's common
shares on the New York Stock Exchange was $22.875 per share.
The Selling Stockholder 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 a supplement to this Prospectus (a
"Prospectus Supplement"). See "Plan of Distribution." The Selling Stockholder
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 Stockholder and any broker-dealers who participate in a sale
of the Shares by the Selling Stockholder may be considered "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any profits
realized by the Selling Stockholder and the compensation of any
broker-dealers may be deemed to be underwriting discounts and commissions.
However, the Selling Stockholder disclaims being an underwriter under the
Securities Act. See "Plan of Distribution" for indemnification arrangements
between the Company and the Selling Stockholder.
THERE ARE CERTAIN RISKS ASSOCIATED WITH AN INVESTMENT IN THE COMPANY'S
COMMON STOCK. SEE "RISK FACTORS" BEGINNING 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 October , 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington DC 20549, and at the
regional offices of the Commission 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 Commission, Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549. The Commission maintains a Web site at
http://www.sec.gov that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the
Commission. The Common Stock is listed on the New York Stock Exchange.
Reports, proxy statements and other information concerning the Company 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 Commission and are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(2) The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1996 and June 30, 1996; and
(3) 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.
----------------
2
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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 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
4
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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
5
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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 52.8% of
the outstanding Common Stock. Certain executive officers of the Company own
approximately 13.0% of the outstanding Common Stock and have entered into a
stockholders' agreement (the "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 65.8% 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
11,943,276 shares of Common Stock as of October 4, 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. 7,733,229 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 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.
The Company's principal executive offices are located at: One Water
Street, White Plains, New York 10601, (914-286-6600).
RECENT DEVELOPMENTS
On July 19, 1996, Trigen-Boston Energy Corporation was granted an
additional condemnation award of $6.8 million related to one of its
facilities in Boston, Massachusetts.
On September 18, 1996, Trigen-Oklahoma City Energy Corporation
("Trigen-Oklahoma") filed an antitrust suit in the U.S. District Court for
the Western District of Oklahoma against Oklahoma Gas & Electric Company
claiming that the electric utility has violated state and federal antitrust
laws by engaging in unfair restraint of trade, and using its monopoly power
as an electric utility to compete unfairly against Trigen-Oklahoma in an
unregulated business. The suit claims damages in excess of $21 million.
7
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SELLING STOCKHOLDER
All of the Common Stock offered hereby is being sold by The Trust Company
of the West, not in its individual capacity but only as trustee of the trust
established pursuant to an Individual Trust Agreement dated as of January 31,
1987, as amended, between the Boilermaker-Blacksmith National Pension Trust
and itself (in such capacity, "TCW" or the "Selling Stockholder"), which
received the Shares in connection with the prepayment by the Company in
September 1996 of $12 million principal amount of 15% notes due 2008 of its
wholly owned subsidiary, Trigen Lindbergh Corporation (the "TCW Repayment").
See "Plan of Distribution" for terms of the TCW Repayment. The Shares
represent approximately 1.7% of the total outstanding Common Stock. Since TCW
intends to sell all of the Shares, upon completion of the offering to which
this Prospectus relates, TCW will own no shares of Common Stock.
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BENEFICIAL
NAME OF OWNERSHIP MAXIMUM NUMBER SHARES TO BE
BENEFICIAL BEFORE THE OF SHARES BENEFICIALLY OWNED
OWNER OFFERING OFFERED HEREBY IF MAXIMUM SOLD
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TCW 200,000 200,000 -0-
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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 Stockholder. See
"Selling Stockholder" for the terms of the outstanding indebtedness paid by
the Company in the TCW Repayment.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholder 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. In connection with the TCW
Repayment, the Selling Stockholder and the Company entered into a Stock
Transfer and Shareholders Agreement, under which the Company agreed to file a
registration statement with the Commission to permit the sale of the Shares
by the Selling Stockholder. The Company also agreed to pay to TCW, if the
Shares are sold pursuant hereto for a price lower than $21.25 (which was the
price used to determine the number of shares transferred in the TCW
Repayment), the difference between $21.25 and the price at which the Shares
were sold. 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 Stockholder 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 the 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 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 Stockholder 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
Stockholder and any broker or dealer.
In offering the Shares covered by this Prospectus, the Selling Stockholder
and any broker-dealers who participate in a sale of the Shares by the Selling
Stockholder may be considered "underwriters" within the meaning of Section
2(11) of the Securities Act, and any profits realized by the Selling
Stockholder and the compensation of any broker-dealers may be deemed to be
underwriting discounts and commissions. However, the Selling Stockholder
disclaims being an underwriter under the Securities Act.
8
<PAGE>
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 , 1997, with certain exceptions.
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholder. Except as set forth in the next sentence,
the Company will bear all costs of registering the Shares under the
Securities Act, including without limitation the registration fee under the
Securities Act, certain legal and accounting fees (including the fees and
disbursements of counsel representing the Selling Stockholder) and any
printing fees. The Selling Stockholder will bear brokerage fees with respect
to the sale of Shares.
The Company and the Selling Stockholder 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 Shares 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 owns, as of the
date of this Prospectus, 190,712 shares of Common Stock.
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 report of KPMG Peat
Marwick LLP refers to a change in the accounting for the impairment of
long-lived assets in 1995.
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 STOCKHOLDER 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 Stockholder ...................... 8
Use of Proceeds .......................... 8
Plan of Distribution ..................... 8
Legal Matters ............................ 9
Experts .................................. 9
</TABLE>
200,000 SHARES
TRIGEN ENERGY
CORPORATION
COMMON STOCK
PROSPECTUS
OCTOBER , 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee ......... $ 1,287.88
Legal Fees and Expenses ...................................... $ 2,500.00*
Accounting Fees and Expenses ................................. $ 3,000.00*
Blue Sky Fees and Expenses (including legal fees and
expenses) ................................................... $ 2,500.00*
Miscellaneous ................................................ $ 1,500.00*
------------
Total ...................................................... $10,787.88*
============
</TABLE>
* Estimated.
The Selling Stockholder 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, 1994 (Registration
Statement No. 33-80410). The Company currently extends indemnification to all
its officers.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------
<S> <C>
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).
4.3* Stock Transfer and Shareholders Agreement between Trust Company of the West, not in its
individual capacity but only as trustee of the trust established pursuant to an Individual Trust
Agreement dated as of January 31, 1987, as amended, between the Boilermaker-Blacksmith National
Pension Trust and itself, and the Company dated September 30, 1996.
5.1* Opinion of Eugene E. Murphy, Esq. as to the legality of the Shares 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:
II-1
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar 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 provisions or otherwise, 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 10th day
of October, 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 10th day of October, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/Thomas R. Casten
-------------------------------- Director, President and Chief Executive
Thomas R. Casten Officer (Principal Executive Officer)
/s/David H. Kelly
-------------------------------- Vice President-Finance, Chief Financial
David H. Kelly Officer
/s/Daniel J. Samela
-------------------------------- Controller (Principal Accounting
Daniel J. Samela Officer)
/s/Richard E. Kessel
-------------------------------- Director, Executive Vice President,
Richard E. Kessel Chief Operating Officer
/s/George F. Keane
-------------------------------- Director and Chairman of the Board
George F. Keane
II-3
<PAGE>
SIGNATURE TITLE
--------- -----
/s/Dominique Mangin d'Ouince
--------------------------------
Dominique Mangin d'Ouince Director
/s/Patrick Desnos
--------------------------------
Patrick Desnos Director
/s/Michel Bleitrach
--------------------------------
Michel Bleitrach Director
/s/Francois Faessel
--------------------------------
Francois Faessel Director
/s/Michel Cassou
--------------------------------
Michel Cassou Director
/s/Charles E. Bayless
--------------------------------
Charles E. Bayless Director
/s/Jonathan O'Herron
--------------------------------
Jonathan O'Herron Director
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ----------- ----------- ---------
<S> <C> <C>
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).
4.3* Stock Transfer and Shareholders Agreement between Trust Company of the
West, not in its individual capacity but only as trustee of the trust
established pursuant to an Individual Trust Agreement dated as of January
31, 1987, as amended, between the Boilermaker-Blacksmith National Pension
Trust and itself, and the Company dated September 30, 1996.
5.1* Opinion of Eugene E. Murphy, Esq. as to the legality of the Shares 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.
<PAGE>
STOCK TRANSFER AND SHAREHOLDERS AGREEMENT
THIS AGREEMENT dated as of September 30, 1996 (this "Agreement") is
among TRIGEN ENERGY CORPORATION ("Trigen"), Trigen's wholly owned subsidiary,
TRIGEN LINDBERGH CORPORATION ("TLC"; Trigen and TLC, collectively, the "Trigen
Entities"), and TRUST COMPANY OF THE WEST, not in its individual capacity but
only as trustee of the trust established pursuant to an Individual Trust
Agreement dated as of January 1, 1987, as amended (the "Trust Agreement"),
between The Boilermaker-Blacksmith National Pension Trust and itself ("TCW").
WHEREAS, TLC entered into a Securities Purchase Agreement with TCW
dated as of November 18, 1993 (the "Securities Agreement") pursuant to which
TCW purchased notes of TLC due 2008 in the aggregate principal amount of
$12,000,000 (the "Notes");
WHEREAS, Trigen intends to deliver to TCW on behalf of TLC 200,000
shares of its common stock, par value $.01 per share ("Trigen Shares"),
together with $4,500,977.41 in cash, as payment in full of the remaining
outstanding indebtedness of TLC on the Notes as described in TLC's notice of
prepayment dated September 23, 1996; and
WHEREAS, TCW is willing to permit such unscheduled prepayment in full
of the Notes on the terms and conditions set forth herein.
NOW, THEREFORE, Trigen, TLC and TCW agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used herein without
definition have the meanings given them in the Securities Agreement.
"Person" means any individual, partnership, joint venture,
corporation, association, trust, government (or any department, division or
agency thereof) or any other entity.
"Registration Expenses" means all fees and expenses other than
commissions or brokerage fees in connection with or compliance with this
Agreement, including without limitation, transfer taxes and the reasonable fees
and expenses of legal counsel to TCW, and all expenses incurred by Trigen in
preparing and filing a Registration Statement with respect to the Trigen
Shares, including but not limited to all registration and filing fees, the fees
and expenses of the counsel and accountants for Trigen (including the expenses
of any "cold comfort" letters and special audits required by or incident to the
performance of such persons), all other costs and expenses of Trigen incident
to the preparation, printing and filing of a Registration Statement (and all
amendments and supplements thereto) and furnishing copies thereof and of the
prospectus included therein, the costs and expenses incurred by Trigen in
connection with the qualification of the Trigen Shares under the state
securities or blue sky laws of various jurisdictions, the costs and expenses of
listing the Trigen Shares for trading on the New York Stock Exchange, and
management resources and time.
<PAGE>
2. CLOSING OF TRANSACTION. Subject to the terms and conditions hereof,
Trigen will deliver to TCW, and TCW agrees to accept, the Trigen Shares,
together with $4,500,977.41 in cash (the "Payoff Amount"), as payment in full
of the remaining outstanding indebtedness of TLC on the Notes as described in
its notice of prepayment dated September 23, 1996. The closing hereunder (the
"Closing") shall take place on September 30, 1996 (the "Closing Date"), at such
time and place as the parties mutually agree. On the Closing Date, Trigen shall
make a voluntary prepayment on behalf of TLC in accordance with Section
2.5C(i)(b) of the Securities Agreement, including a yield maintenance premium
calculated as of September 30, 1996. On the Closing Date, subject to the terms
and conditions hereof, Trigen will tender the Trigen Shares and transfer cash
in an amount equal to the Payoff Amount in immediately available funds to the
account designated by TCW in Section 2.5D of the Securities Agreement, against
delivery by TCW of the cancelled Notes and the stock certificate of TLC held as
collateral by TCW. On the Closing Date, upon payment of the Payoff Amount to
TCW and delivery of the Trigen Shares to TCW, all liens of TCW under the
Securities Agreement shall be hereby terminated. TCW will take all actions
reasonably requested by Trigen to effect the release of Collateral. It is a
condition to the obligations of TCW under this Agreement, that on the Closing
Date Trigen shall cause to be delivered to TCW one or more legal opinions from
counsel to Trigen acceptable to TCW covering the matters set forth in Annex A
hereto. Each party is relying on the representations, warranties and covenants
of the other party in consummating the transactions contemplated hereby.
3. AGREEMENTS.
3.1 TCW Registration Rights. Trigen will prepare and file on or after
the Closing Date, but in any event by October 31, 1996 ("Filing Date"), a
registration statement (the "Registration Statement"), including a prospectus
(the "Prospectus"), on Form S-3 or another appropriate form under the
Securities Act of 1933, as amended ("Securities Act"), which shall be available
for the sale of the Trigen Shares in accordance with the intended method or
methods of distribution (a "TCW Registration"). TCW shall be entitled to one
TCW Registration that has been declared effective and maintained continuously
effective until all Trigen Shares have been sold, but in no event shall Trigen
be obligated to keep the Registration Statement effective for more than 365
days. Trigen shall bear all Registration Expenses relating to a TCW
Registration.
3.2 Additional Payments. The Trigen Entities agree that, in exchange
for entering into this Agreement and consummating the transactions contemplated
hereby, TCW will be entitled to additional payments for each day after the
Filing Date that TCW holds the Trigen Shares. Accordingly, the Trigen Entities
agree to pay to TCW, in addition to amounts otherwise due under this Agreement,
an additional amount of cash equal to $0.0072774 per Trigen Share for each day
each such Trigen Share is held by TCW after the Filing Date. The Trigen
Entities shall pay any such amounts on each March 31, June 30, September 30 and
December 31 and each date on which TCW sells Trigen Shares. References to TCW
in this Agreement include its successors and permitted assigns.
2
<PAGE>
3.3 Transfers of Trigen Shares by TCW: Price Protection.
(a) Promptly upon effectiveness of the Registration
Statement, TCW shall use reasonable efforts, consistent with its
fiduciary duties and prudent business judgment, promptly to consummate
one or more sales pursuant to the Registration Statement for the
acquisition by one or more Persons of the Trigen Shares. Upon the
consummation of a public sale such shares shall be free and clear of
the restrictions of this Agreement and the new holder of such shares
shall have no obligations, and be prohibited from claiming any
benefits, arising hereunder from the holding of such shares.
(b) If any of the Trigen Shares are sold pursuant to a TCW
Registration for a net per share price, after deducting commissions or
brokerage fees or other expenses, if any, payable by TCW, less than
$21.25 (as such price per share shall be adjusted to reflect stock
splits, combinations, dividends, mergers or reorganizations or other
like events), the Trigen Entities shall pay TCW, its successors or
permitted assigns within 10 days after the sale of such Trigen Shares
an amount equal to such difference. The obligations of the Trigen
Entities under this Section 3.3(b) shall expire on the 366th day that
the Registration Statement has been effective.
3.4 Registration Procedures. Trigen will, as expeditiously as
practicable:
(a) prepare and file a Registration Statement as soon as
practicable after the Closing Date, but in any event prior to the
Filing Date and use its best efforts to cause such Registration
Statement to become effective and prepare and file such amendments and
post effective amendments as may be necessary to keep each
Registration Statement effective for such period as required for all
Trigen Shares to be sold and prior to filing any thereof provide TCW
and its counsel with an opportunity to review all documents to be
filed, which review will be effected as promptly as practicable;
(b) notify TCW and its counsel promptly when the Registration
Statement or any post-effective amendment has become effective, when a
Prospectus or supplement or amendment has been filed, of the issuance
of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, of
receipt of notice of suspension of qualification in any jurisdiction
and of the happening of any event which makes any statement made in
the Registration Statement untrue or which requires the
making of any changes in the Registration Statement in order to make
the statements therein not misleading;
(c) deliver to TCW and its counsel one signed copy of the
Registration Statement and each amendment thereto and as many copies
of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as may be reasonably requested and
consent to their use in connection with the offering and sale of the
Trigen Shares;
3
<PAGE>
(d) prior to the public offering of Trigen Shares, use its
best efforts to register or qualify, or cooperate with TCW and its
counsel in connection with the registration or qualification of, such
Trigen Shares for offer and sale under the securities or blue sky laws
of such jurisdictions as appropriate, and maintain the effectiveness
of such registration or qualification for such period as required for
all Trigen Shares to be sold, and do any and all other acts or things
reasonably necessary to enable the disposition in such jurisdictions
of the Trigen Shares; provided that Trigen will not be required to
qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action that would subject it to
general service of process in any such jurisdiction where it is not
then so subject;
(e) use its best efforts to cause the Trigen Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of Trigen to enable the buyers thereof to consummate the
disposition of such Trigen Shares,
(f) cause all Trigen Shares covered by any Registration
Statement to be listed on the New York Stock Exchange;
(g) to the extent reasonably required for the satisfaction of
any due diligence obligations, make available for inspection by TCW,
all financial and other records, pertinent corporate documents and
properties of Trigen; provided that any records, information or
documents that are designated by Trigen in writing as confidential
shall be kept confidential by TCW unless disclosure of such records,
information or documents is required by court or administrative order
or any regulatory body having jurisdiction or they become public
without violation by TCW of its obligation hereunder;
(h) comply with all applicable rules and regulations of the
Securities and Exchange Commission and make generally available to its
securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of Trigen after the effective
date of a Registration Statement, which statements shall cover said
12-month periods; and
(i) upon the occurrence of any event that makes any statement
made in a Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state
4
<PAGE>
any material fact required to be stated therein or necessary to make
the statements therein, not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, as promptly
as practicable prepare a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Trigen Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
If notified of any suspension of effectiveness of the Registration
Statement or of the qualification of Trigen Shares for sale, TCW agrees that,
upon receipt of such notice, TCW will discontinue disposition pursuant to the
Registration Statement until receipt of copies of the supplemented or amended
Prospectus, or until advised in writing by Trigen that the use of the
Prospectus may be resumed.
3.5 Indemnification.
(a) Trigen agrees to indemnify, to the fullest extent
permitted by law, TCW, its Affiliates and each Person who controls
TCW, and the partners, advisors and employees of each thereof, against
all losses, claims, damages, liabilities and expenses, as incurred,
arising out of or based upon any untrue or alleged untrue statement of
a material fact contained in any Registration Statement, Prospectus,
preliminary Prospectus or any omission or alleged omission to state
therein a material fact necessary to make the statements therein (in
the case of a Prospectus or any preliminary Prospectus, in light of
the circumstances under which they were made) not misleading, except
insofar as the same are contained in any information with respect to
TCW furnished in writing to Trigen by TCW or its representative.
(b) In connection with the Registration Statement, TCW will
furnish to Trigen in writing such information with respect to TCW as
Trigen reasonably requests and agrees to indemnify, to the fullest
extent permitted by law, Trigen, its Affiliates, the directors,
officers and employees of Trigen signing the Registration Statement
and each Person who controls Trigen against any losses, claims,
damages, liabilities and expenses, as incurred, arising out of or
based upon any untrue statement of a material fact or any omission to
state a material fact required to be stated therein or necessary to
make the statements in the Registration Statement or Prospectus or
preliminary Prospectus (in the case of the Prospectus or any
preliminary Prospectus, in light of the circumstances under which they
were made) not misleading, but only to the extent that such untrue
statement or omission is contained in any information with respect to
TCW so furnished in writing by TCW specifically for inclusion therein.
In no event shall TCW's obligation hereunder be greater than the net
proceeds received by TCW upon the sale of Trigen Shares giving rise to
such obligation.
5
<PAGE>
(c) Any Person entitled to indemnification hereunder
will:
(i) give prompt written notice to the indemnifying
party after the receipt by the indemnified party of a written
notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which
such indemnified party will claim indemnification or
contribution pursuant to this Agreement; provided, that the
failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its
obligations under subsections (a) and (b) above, except to
the extent that the indemnifying party is actually prejudiced
by such failure to give notice, and
(ii) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to
the indemnified party; provided, however, that an indemnified
party shall have the right to employ separate counsel and to
participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified
party or parties unless: (1) the indemnifying party agrees to
pay such fees and expenses; or (2) the indemnifying party
fails promptly to assume the defense of such proceeding or
fails to employ counsel reasonably satisfactory to such
indemnified party; or (3) the named parties to any such
proceeding (including any impleaded parties) include both
such indemnified party or parties and the indemnifying party
or an Affiliate of the indemnifying party and such
indemnified parties, and the indemnifying party shall have
been advised in writing by counsel that there may be one or
more material defenses available to such indemnified party or
parties that are different from or additional to those
available to the indemnifying party, in which case, if such
indemnified party or parties notifies the indemnifying party
in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the indemnifying
party, it being understood, however, that, unless there
exists a conflict among indemnified parties, the indemnifying
party shall not, in connection with any one such proceeding
be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel)
at any time for such indemnified party or parties, or for
fees and expenses that are not reasonable. The indemnifying
party will not be subject to any liability for any settlement
made without its consent (but such consent will not be
unreasonably withheld).
(d) If for any reason the indemnification provided in the
preceding subsections is unavailable to an indemnified party as
contemplated or is insufficient to hold such indemnified party
harmless as contemplated herein, then the indemnifying party in lieu
of indemnification shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage,
liability or expense in such proportion as is appropriate to reflect
the relative fault of the indemnified party and the indemnifying
party, as well as any other relevant equitable considerations. The
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parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 3.5(d) were determined by pro
rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in the
immediately preceding sentence. Notwithstanding the provisions of this
Section 3.5(d), TCW shall not be required to contribute any amount in
excess of the amount by which the total price at which the Trigen
Shares sold by TCW and distributed to the public were offered to the
public exceeds the amount of any damages that such indemnifying party
has otherwise been required to pay by reasons of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the parties under this Section 3.5
shall be in addition to any liability each indemnifying Person may
otherwise have.
4. REPRESENTATIONS AND WARRANTIES
4.1 Ownership of Trigen Shares. Each Trigen Entity hereby represents
that the Trigen Shares to be transferred to TCW hereunder at the Closing Date
are duly authorized to be issued and, upon issuance in accordance with Section
2, will be validly issued, fully paid and non-assessable and shall be owned by
TCW free and clear of any lien, claim, option, security interest or other
encumbrance created by, or arising as a result of actions or omissions by,
Trigen or any of its Affiliates.
4.2 Authority of Trigen Entities. Each Trigen Entity hereby
represents that: (i) it has full power and authority to execute this Agreement
and to consummate the transactions contemplated hereby; (ii) the execution and
delivery of this Agreement by such Trigen Entity, the performance and
compliance with all the terms and conditions hereof to be performed and
complied with by such Trigen Entity, and the consummation by such Trigen Entity
of the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of such Trigen Entity; (iii) this
Agreement has been duly and validly executed and delivered by such Trigen
Entity and constitutes the valid and binding obligation of such Trigen Entity
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; (iv) no consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority (foreign or domestic) or
other third party on the part of such Trigen Entity is necessary for the
execution and delivery of this Agreement by such Trigen Entity and the delivery
of the Trigen Shares to be sold by it hereunder or for the performance by it of
any of the terms or conditions hereof; and (v) the offer, issuance and sale of
the Trigen Shares to TCW in accordance with the terms of this Agreement are not
required to be registered under the Securities Act or required to be registered
or qualified under any state securities or blue sky laws.
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4.3 No Conflict. Each Trigen Entity hereby represents that the
execution, delivery and performance by such Trigen Entity of this Agreement and
the consummation of the transactions contemplated hereby do not and will not
conflict with, violate or cause a breach of (i) the Certificate of
Incorporation or Bylaws of such Trigen Entity, (ii) any material contractual
obligation to which such Trigen Entity is a party or (iii) any applicable law,
or any regulation, judgment, order or decree binding on such Trigen Entity or
its properties.
4.4 Compliance With Obligations. Each Trigen Entity hereby
represents that it is in compliance in all material respects with all of its
obligations under any material contracts to which it is a party or by which it
is bound.
4.5 Full Disclosure. Each Trigen Entity hereby represents that this
Agreement does not contain any untrue statement by such Trigen Entity of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein not misleading. Each Trigen Entity hereby
represents that there is no fact which materially adversely affects, or will
materially adversely affect, such Trigen Entity's business and operations,
which has not been set forth in this Agreement or in any regular filings with
the Securities and Exchange Commission or otherwise has been disclosed in
writing to TCW by such Trigen Entity.
4.6 Authority of TCW. TCW hereby represents that: (i) it has full
power and authority to execute this Agreement and to consummate the
transactions contemplated hereby; (ii) the execution and delivery of this
Agreement by TCW, the performance and compliance with all the terms and
conditions hereof to be performed and complied with by TCW, and the
consummation by TCW of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on the part of TCW and
do not contravene the Trust Agreement; and (iii) this Agreement has been duly
and validly executed and delivered by TCW and constitutes the valid and binding
obligation of TCW 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.
4.7 Investment Representations. TCW hereby represents that: (i) it
acknowledges and understands that the Trigen Shares have not been registered
under the Securities Act or under any state securities laws in reliance upon
exemptions provided thereunder and the representations and warranties contained
herein are being relied upon by Trigen as a basis for the exemption of the
offer and sale of the Trigen Shares pursuant to this Agreement under the
registration requirements of the Securities Act and any applicable state
securities laws; (ii) it acknowledges that it is acquiring the Trigen Shares
for its account solely in its capacity as trustee under the Trust Agreement;
(iii) it understands and agrees that the Trigen Shares must be held
indefinitely unless they are subsequently registered under the Securities Act
and any applicable state securities laws or regulations or an exemption from
registration under the Securities Act and such other laws is available; (iv) it
is an "accredited investor" as defined in Regulation D promulgated under the
Securities Act; (v) it has been furnished and reviewed all materials it has
requested about Trigen and the Trigen Shares and has had an opportunity to ask
questions of and receive answers from the officers of Trigen about the offering
and the
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Trigen Shares and the business and financial condition of Trigen; and
(vi) it acknowledges that in purchasing Trigen Shares being purchased by it
pursuant to this Agreement, it has relied to the extent it has determined to be
necessary on its own advisors as to financial, tax, legal and related matters
and not on advice with respect to such matters from Trigen or its tax, legal,
financial or other advisors.
4.8 No Broker. Each party represents and warrants to the other that it
has not dealt with any broker, finder or financial advisor, other than any
financial advisor whose fees and expenses shall be paid by the party who
retained same, in connection with the Closing, and each party covenants that it
will indemnify and hold the other harmless in respect of any commission, fee,
judgment or expense of any nature and kind which it may become liable to pay by
reason of any claim by or on behalf of any broker, finder or financial advisor
based on any action taken or communication made by such party in connection
with the Closing or any litigation or similar proceeding arising from any such
claim.
5. MISCELLANEOUS
5.1 Expenses. The Trigen Entities shall bear all expenses and legal
fees of the Trigen Entities and TCW incurred in connection with the
transactions contemplated by this Agreement.
5.2 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.
5.3 Representations and Warranties. All representations and warranties
made hereunder by any 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 Trigen Shares.
5.4 Late Payments. Any overdue payments under this Agreement shall
bear interest from the date on which payment was due until the date on which
payment is made at an annual rate of 12.5% per annum, based on a year comprised
of 365 days.
5.5 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement with respect to the subject matter hereof and supersedes all
prior written and oral agreements with respect thereto, and 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.
5.6 Remedies. In the event of a breach by Trigen of any of its
obligations under this Agreement, TCW in addition to being entitled to exercise
all rights granted by law,
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including recovery of damages, will be entitled to specific performance of its
rights under this Agreement.
5.7 No Inconsistent Agreements. Trigen has not as of the date hereof
entered, nor shall Trigen, on or after the date of this Agreement, enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to TCW in this Agreement or otherwise conflicts with the
provisions hereof.
5.8 Adjustments Affecting Registrable Securities. Trigen shall not
directly or indirectly, take any action with respect to the Trigen Shares as a
class that would adversely affect the ability of TCW to include such Trigen
Shares in a registration undertaken pursuant to this Agreement.
5.9 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.
5.10 Interpretation. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
5.11 Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served or sent by telefacsimile or United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telefacsimile, or
three Business Days after depositing it in the United States mail with postage
prepaid and properly addressed. For the purposes hereof, the notice address of
each party shall be as set forth below its name on the signature page, or such
other address as shall be designated by such party in a written notice
delivered to the other party.
5.12 Counterparts. This Agreement may be executed with
counterpart signature pages or in two or more counterparts, each of which shall
be deemed an original.
5.13 Assignment. This Agreement may not be assigned by Trigen and may
not be assigned by TCW or its successors or permitted assigns except that,
after September 30, 1997, so long as the Registration Statement is not
effective, TCW may assign this Agreement to any Person who purchases any Trigen
Shares from TCW or its successors or permitted assigns in a private transaction
not pursuant to a TCW Registration. All covenants and agreements in this
Agreement by or on behalf of either of the parties hereto shall bind and inure
to the benefit of their successors and permitted assigns.
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5.14 Governing Law. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRUST COMPANY OF THE WEST,
not in its individual
capacity but only as
trustee of the trust
established pursuant to an
Individual Trust Agreement
dated as of January 31,
1987, as amended, between
The Boilermaker-Blacksmith
National Pension Trust and
itself
By: /s/ Brian J. Daly
_________________________________
Title: Vice President
Notice Address:
200 Park Avenue, Suite 2200
New York, New York 10166
Telecopier No.: 212/297-4066
Attn: Brian J. Daly
TRIGEN ENERGY CORPORATION
By: /s/ S. T. Ward
__________________________________
Title: Treasurer
Notice Address:
1 Water Street
White Plains, New York 10601
Telecopier No.: 914/948-9157
Attn: Treasurer
TRIGEN LINDBERGH CORPORATION
By: /s/ S. T. Ward
__________________________________
Title: Treasurer
Notice Address:
c/o Trigen Energy Corporation
1 Water Street
White Plains, New York 10601
Telecopier No.: 914/948-9157
Attn: Treasurer
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[TRIGEN ENERGY CORPORATION LETTERHEAD]
October 9, 1996
Trigen Energy Corporation
One Water Street
White Plains, NY 10601
Re: Form S-3 Registration Statement relating
to 200,000 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 200,000 shares (the "Shares") of Common Stock, par value $.01
per share, of the Company, by Trust Company of the West, not in its individual
capacity but only as trustee of the trust established pursuant to an Individual
Trust Agreement dated as of January 31, 1987, as amended, between The
Boilermaker-Blacksmith National Pension Trust and itself ("TCW").
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
Vice President and General Counsel
<PAGE>
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 a
change in accounting for the impairment of long-lived assets in 1995.
/s/ KPMG Peat Marwick LLP
Stamford, Connecticut
October 3, 1996
<PAGE>
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 200,000 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
October 7, 1996
