<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 22, 1996
REGISTRATION NO. 333-13843
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1
TO
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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<S> <C>
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 22, 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
<PAGE>
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
<PAGE>
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.
<TABLE>
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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 22, 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 22, 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
