As filed with the Securities and Exchange Commission on September 2, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________
TRITON ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
_________________________
Texas 75-1151855
(State or other (I.R.S. Employer Identification No.)
jurisdiction of
incorporation or
organization)
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(214) 691-5200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_________________________
Robert B. Holland, III, Esq.
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
(214) 691-5200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_________________________
Copies to:
Vincent Pagano, Jr., Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3909
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
<PAGE>
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of each class of Proposed maximum Proposed maximum Amount of
securities to be Amount to be offering price per aggregate offering registration fee
registered registered unit <F2> price <F2>
----------------------- ------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Debt Securities<F1> . . .
Preferred Stock, without
par value<F3> . . . . . .
Common Stock, par value
$1.00 per share <F4>
Warrants<F5> . . . . . .
Total . . . . . . . . . . $127,799,200<F6> 100% $127,799,200<F6> $44,069
_________________________
<FN>
<F1> Including such additional amount as may be necessary so that, if Debt
Securities are issued with an original issue discount, the aggregate
initial offering prices of all Debt Securities will equal $127,799,200.
<F2> Estimated solely for the purpose of calculating the registration fee.
<F3> Subject to note (6) below, there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from
time to time, by the Registrant.
<F4> Subject to note (6) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time
to time, by the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as shall be issuable upon
conversion or redemption of Preferred Stock or Debt Securities registered
hereby.
<F5> Subject to note (6) below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase Preferred Stock, Common Stock or Debt Securities registered
hereby.
<PAGE>
<F6> In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$127,799,200. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus herein also relates to the remaining $172,200,800 of Debt Securities
covered by Registration Statement No. 33-69230. The enclosed Prospectus
constitutes Post-Effective Amendment No. 1 to said Registration Statement No.
33-69230 to cover up to $172,200,800 of Debt Securities of the Registrant,
which the Registrant hereby requests be declared effective at the same time as
the within registration statement.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said section 8(a),
may determine.
<PAGE>
_______________________________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
_______________________________________________________________________________
Subject to Completion, dated September 2, 1994
PROSPECTUS
Triton Energy Corporation
Debt Securities
Preferred Stock
Common Stock
Warrants
_________________________
Triton Energy Corporation ("Triton" or the "Company") may offer and sell
from time to time, in one or more series, (i) its unsecured debt securities
consisting of notes, debentures or other evidences of indebtedness (the "Debt
Securities") which may be senior ("Senior Debt Securities"), senior
subordinated ("Senior Subordinated Debt Securities") or subordinated
("Subordinated Debt Securities"), (ii) preferred stock, without par value, of
the Company (the "Preferred Stock"), (iii) common stock, par value $1.00 per
share, of the Company (the "Common Stock") and (iv) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock or Common Stock (the Debt Securities,
Preferred Stock, Common Stock and Warrants are collectively referred to as the
"Securities"), or any combination of the foregoing, at an aggregate initial
offering price not to exceed $127,799,200 at prices and on terms to be
determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"), together with the terms of the offering of the
Securities and the initial price and the net proceeds to Triton from the sale
thereof. The Prospectus Supplement will set forth with regard to the
particular Securities, without limitation, the following: (i) in the case of
Debt Securities, the specific designation, aggregate principal amount, ranking
as senior debt, senior subordinated debt or subordinated debt, maturity, rate
or rates (or method of determining the same) and time or times for the payment
of interest, if any, any terms for optional or mandatory redemption or
<PAGE>
repurchase or sinking fund provisions, any conversion or exchange rights, (ii)
in the case of Preferred Stock, the designation, number of shares, liquidation
preference per share, initial public offering price, dividend rate (or method
of calculation thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any redemption or sinking fund provisions,
any conversion or exchange rights, (iii) in the case of Common Stock, the
number of shares of Common Stock and the terms of the offering and sale thereof
and (iv) in the case of Warrants, the number and terms thereof, the designation
and the number of securities issuable upon their exercise, the exercise price,
the terms of the offering and sale thereof and, where applicable, the duration
and detachability thereof.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any underwriters
are involved in the sale of any Securities in respect of which this Prospectus
is being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_________________________
The date of this Prospectus is , 1994.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission, 450
Fifth Street, N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549; and at
regional offices of the Commission at the Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7 World Trade
Center, New York, New York 10048. Copies of such material may be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Such material may also be
inspected and copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information contained in the Registration Statement on
Form S-3 (the "Registration Statement") of which this Prospectus is a part. For
<PAGE>
further information with respect to the Company and the Securities offered
hereby, reference is made to the Registration Statement and the exhibits
thereto. Statements made in this Prospectus as to the contents of any contract,
agreement or other document are not necessarily complete; and while the Company
believes the descriptions of the material provisions of such contracts,
agreements and other documents contained in this Prospectus are accurate
summaries of such material provisions, reference is made to such contract,
agreement or other document filed as an exhibit to the Registration Statement
for a more complete description of the matter involved, and each such statement
is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following documents previously filed with the Commission pursuant to the
Exchange Act: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended May 31, 1994 and (ii) the Company's Current Report on Form 8-K/A dated
July 15, 1994.
Each document 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 of the Securities pursuant hereto shall be
deemed to be incorporated by reference in this Prospectus and to be a part of
this Prospectus from the date of filing of such document. Any statement
contained in this Prospectus or in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to
the extent that a statement contained in this Prospectus or in any subsequently
filed document that also is or is deemed to be incorporated by reference in
this Prospectus 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 the Registration Statement or 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 that are incorporated by reference in this
Prospectus, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to Investor Relations, Triton Energy Corporation, 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, telephone (214) 691-5200.
THE COMPANY
Triton is an independent energy company primarily engaged in international
oil and gas exploration and production through wholly-owned and partly-owned
subsidiaries and affiliates. Triton's principal properties and operations are
located in Colombia and Malaysia-Thailand. Triton also has oil and gas
interests in other Latin American and Asian countries, Europe, Australia and
North America.
The Company was incorporated in Texas in 1962. The Company's principal
executive offices are located at 6688 North Central Expressway, Suite 1400,
<PAGE>
Dallas, Texas 75206-9926, and the Company's telephone number is (214) 691-5200.
The "Company" or "Triton" refers to Triton Energy Corporation and its
consolidated subsidiaries, unless otherwise indicated or the context otherwise
suggests.
INVESTMENT CONSIDERATIONS
In addition to the other information set forth in or incorporated by
reference in this Prospectus and any applicable Prospectus Supplement,
potential investors in the Securities should consider the following investment
considerations.
The Oil and Gas Industry Generally. The oil and gas exploration and production
industry is volatile and highly competitive. Oil and gas prices have
fluctuated substantially in recent years as a result of numerous factors,
including changes in worldwide production and demand levels, various worldwide
political and economic events, reduced rates of economic growth throughout much
of the world and other events which are outside of the Company's control. The
Company's operations in the Llanos Basin of Colombia primarily involve oil
production and will therefore be especially sensitive to the future price of
oil. The Company's oil and gas business is also subject to all of the
operating risks normally associated with the exploration for and production of
oil and gas, including blowouts, cratering, pollution and fires, each of which
could result in damage to or destruction of oil and gas wells, formations,
production facilities or properties, or in personal injury. In addition,
reserve estimates with respect to Colombia and other areas of the Company's oil
and gas operations are imprecise and subject to change as further information
becomes available.
Moreover, because the Company may not be the operator or own a majority
interest in a number of contract areas, it will not be able to control the
timing or manner in which capital expenditures will occur in these areas to the
same degree as if it were the operator or owner of a majority interest. The
Company's inability to meet its obligations in these and other contract areas
could have a material adverse effect on its interests in these contract areas.
The Company's Financial Position. The Company reported losses from continuing
operations in each of the last five fiscal years. To date, working capital
(amounting to $116.8 million as of May 31, 1994, excluding $28.8 million of
long-term marketable securities), external sources of funding, asset sales and
net cash flow from operations have been sufficient to service the Company's
existing debt obligations, even though the Company has experienced losses.
The Company expects to pursue financing alternatives and to dispose of certain
assets or operations in order to meet expenditure requirements on existing or
contemplated projects and to service its debt obligations, the timing and
nature of which may be affected by, among other things, the timing and extent
of production and capital expenditures in Colombia and elsewhere. There can
be no assurance as to the ability of the Company to effect sales of its assets
or to access public or private markets for such financings, the timing of such
sales or financings or the proceeds, if any, that the Company could realize
<PAGE>
therefrom. Moreover, the Company's ability to pursue additional debt financing
is limited by covenants in the indenture pursuant to which $240 million
principal amount of its 12 1/2% Senior Subordinated Discount Notes due 1997
(the "1997 Notes") were issued in 1992 and in the indenture pursuant to which
$170 million principal amount of its 9 3/4% Senior Subordinated Discount Notes
due 2000 (the "2000 Notes") were issued in 1993. The indenture relating to
the 1997 Notes, as amended in August 1993, also would require the Company to
repurchase a portion of the outstanding 1997 Notes if the Company fails to
maintain a consolidated net worth of at least $225 million (compared to a
consolidated net worth of $263.4 million at May 31, 1994).
For information regarding the Company's financial position and results of
operations, including the amounts of such losses, the Company's net working
capital from time to time, and the Company's deficits of earnings to fixed
charges and earnings to combined fixed charges and preferred dividends, see
"Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and
Preferred Dividends" herein and the Company's Consolidated Statements of
Operations, Consolidated Balance Sheets and Consolidated Statements of Cash
Flows in the Company's annual and periodic reports and other documents
incorporated herein by reference, including "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included in the
Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1994.
Environmental Matters. The Company is subject to extensive environmental laws
and regulations. These laws regulate the discharge of oil, gas or other
materials into the environment and may require the Company to remove or
mitigate the environmental effects of the disposal or release of such materials
at various sites. The Company does not believe that its environmental risks
are materially different from those of comparable companies in the oil and gas
industry. Nevertheless, no assurance can be given that environmental laws and
regulations will not, in the future, adversely affect the Company's results of
operations, cash flows or financial position.
Risks of Foreign Operations. The Company derives a significant portion of its
consolidated revenues from foreign operations. Risks inherent in foreign
operations include loss of revenue, property and equipment from such hazards as
expropriation, nationalization, war, insurrection and other political risks,
risks of increase in taxes and governmental royalties, renegotiation of
contracts with governmental entities, as well as changes in laws and policies
<PAGE>
governing operations of foreign based companies. Other risks inherent in
foreign operations are the possibility of realizing economic currency exchange
losses when transactions are completed in currencies other than United States
dollars and the Company's ability to freely repatriate its earnings under
existing exchange control laws.
Triton's interests in Colombia, on which Triton's ability to service its
debt and preferred stock substantially depends, are subject to additional more
specific risks, including uncertainty as to the extent of the discoveries and
the cost and magnitude of capital expenditures for drilling and production
facilities, and guerilla activities.
Regulatory Matter. On July 28, 1992, the Securities and Exchange Commission
requested that the Company provide to the Commission, on a voluntary basis,
information and documents regarding certain of the Company's employees and
former employees, the Company's operations in Indonesia, the Company's dealings
with Indonesian officials, and the Company's internal accounting controls. The
staff of the Commission has advised the Company that the Company should not
construe this inquiry as an indication that any violation of law has occurred
or as an adverse reflection upon any person, entity or security. Subsequently,
the Company has been advised that the Justice Department is conducting a
similar inquiry. The Company continues to cooperate with both agencies. Based
upon the information available to the Company to date, the Company believes
that it will be able to resolve any issues that either agency might raise
concerning these matters in a manner that would not have a material adverse
effect on the Company's consolidated financial condition.
USE OF PROCEEDS
Unless otherwise provided in the applicable Prospectus Supplement, the net
proceeds from the sale of the particular Securities offered by this Prospectus
and each Prospectus Supplement (the "Offered Securities") will be used
principally to continue funding the Company's obligations relating to the
development of its operations in Colombia and Malaysia-Thailand.
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
For purposes of computing the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred dividends, earnings consist of
earnings (loss) from continuing operations before income taxes, minority
interest and extraordinary items and cumulative effect of accounting change,
plus fixed charges (interest charges and preferred stock dividend requirements
of subsidiaries, adjusted to a pretax basis), less interest capitalized, less
preferred stock dividend requirements of subsidiaries adjusted to a pretax
basis and less undistributed earnings of affiliates whose debt is not
guaranteed by the Company.
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred dividends for the Company for
the periods indicated:
<TABLE>
<CAPTION>
Years Ended May 31,
------------------------------------------------------------
1994 1993 1992 1991 1990
--------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges <F1> <F1> <F1> 1.2x <F1>
Ratio of earnings to combined fixed charges and
preferred dividends <F2> <F2> <F2> 1.0x <F2>
____________________
<FN>
<F1> Earnings were inadequate to cover fixed charges for the years ended May
31, 1994, 1993, 1992 and 1990 by $45,070,000, $157,724,000, $103,138,000
and $62,825,000, respectively. The ratio of earnings to fixed charges,
if adjusted to remove significant nonrecurring items, would have been
0.5x in 1991 and 0.3x in 1990. Without nonrecurring items, earnings
would have been inadequate to cover fixed charges for the years ended
May 31, 1994, 1993, 1992, 1991 and 1990 by $55,509,000,
$47,029,000, $35,960,000, $14,723,000 and $24,615,000.
<F2> Earnings were inadequate to cover fixed charges and preferred dividends
for the years ended May 31, 1994, 1993, 1992 and 1990 by $45,070,000,
$157,724,000, $104,524,000 and $68,223,000, respectively. The ratio of
earnings to fixed charges and preferred dividends, if adjusted to remove
significant nonrecurring items, would have been .4x in 1991 and .3x in
1990. Without nonrecurring items, earnings would have been inadequate to
cover fixed charges and preferred dividends for the years ended May 31,
1994, 1993, 1992, 1991 and 1990 by $55,509,000, $47,029,000, $37,346,000,
$20,269,000 and $30,013,000, respectively.
</TABLE>
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured senior, senior subordinated or
subordinated debt of the Company and will be issued, in the case of Senior Debt
Securities, under a Senior Indenture (the "Senior Debt Indenture") between the
Company and Chemical Bank, as trustee, in the case of Senior Subordinated Debt
Securities, under a Senior Subordinated Indenture (the "Senior Subordinated
Debt Indenture") between the Company and United States Trust Company of New
York, as trustee, and in the case of Subordinated Debt Securities, under a
Subordinated Indenture (the "Subordinated Debt Indenture") between the Company
and such trustee as shall be named in a Prospectus Supplement (the
"Subordinated Debt Trustee"). The Senior Debt Indenture, the Senior
Subordinated Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures." None of the Indentures limits the amount of Debt Securities that
may be issued thereunder. The Indentures permit the appointment of a different
trustee for each series of Debt Securities. As used herein, the term "Trustee"
means Chemical Bank, United States Trust Company of New York or the
Subordinated Debt Trustee, as the case may be. If there is at any time more
than one trustee under any Indenture, the term "Trustee" as used in this
Prospectus will mean each such trustee and will apply to each such trustee only
with respect to those series of Debt Securities with respect to which it is
serving as trustee. The Indentures are filed as exhibits to the Registration
Statement of which this Prospectus is a part. The following summaries of
certain provisions of the Indentures and the Debt Securities do not purport to
be complete and, while the Company believes the descriptions of the material
provisions of the Indentures and Debt Securities contained in this Prospectus
are accurate summaries of such material provisions, such summaries are subject
to the detailed provisions of the applicable Indenture to which reference is
hereby made for a full description of such provisions, including the definition
of certain terms used herein. Section references in parentheses below are to
sections in each Indenture unless otherwise indicated. Wherever particular
sections or defined terms of the applicable Indenture are referred to, such
sections or defined terms are incorporated herein by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference. The Indentures are substantially identical, except for provisions
relating to subordination.
Provisions Applicable to Senior, Senior Subordinated and Subordinated Debt
Securities
General. The Debt Securities will be unsecured senior, senior subordinated
or subordinated obligations of the Company and may be issued from time to time
in one or more series. Except to the extent set forth in the applicable
Prospectus Supplement, none of the Indentures limits the payment of dividends
or the acquisition of stock of the Company. Except to the extent set forth in
any Prospectus Supplement, the Indentures do not, and the Debt Securities will
not, contain any covenants or other provisions that are intended to afford
holders of the Debt Securities special protection in the event of either a
change of control of the Company or a highly leveraged transaction by the
Company.
<PAGE>
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities being offered (the "Offered
Debt Securities") (to the extent such terms are applicable to such Offered Debt
Securities): (i) the title of the Offered Debt Securities; (ii) classification
as Senior Debt Securities, Senior Subordinated Debt Securities or Subordinated
Debt Securities, aggregate principal amount, purchase price and denomination;
(iii) the date or dates on which the Offered Debt Securities will mature; (iv)
the method by which amounts payable in respect of principal, premium, if any,
or interest, if any, on or upon the redemption of such Offered Debt Securities
may be calculated; (v) the interest rate or rates (or the method by which such
will be determined), and the date or dates from which such interest, if any,
will accrue; (vi) the date or dates on which such interest, if any, will be
payable; (vii) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on the Offered Debt Securities will
be payable and the place or places where the Offered Debt Securities may be
presented for transfer; (viii) the right, if any, or obligation, if any, of the
Company to redeem, repay or purchase the Offered Debt Securities pursuant to
any sinking fund or analogous provisions or at the option of a holder thereof,
and the period or periods within which, the price or prices (or the method by
which such price or prices will be determined, or both) at which, the form or
method of payment therefor if other than in cash and the terms and conditions
upon which the Offered Debt Securities will be redeemed, repaid or purchased
pursuant to any such obligation; (ix) the terms for conversion or exchange, if
any, of the Offered Debt Securities; (x) any provision relating to the issuance
of the Offered Debt Securities at an original issue discount; (xi) if the
amounts of payments of principal of, premium, if any, and interest, if any, on
the Offered Debt Securities are to be determined with reference to an index,
the manner in which such amounts shall be determined; (xii) any applicable
United States federal income tax consequences; (xiii) the currency or
currencies for which the Offered Debt Securities may be purchased and the
currency or currencies in which principal, premium, if any, and interest, if
any, may be payable; (xiv) the Subordinated Debt Trustee and, if a trustee
other than Chemical Bank with respect to any series of Senior Debt Securities
or United States Trust Company of New York with respect to any series of Senior
Subordinated Debt Securities is named for such series of Offered Debt
Securities, the name of such Trustee; and (xv) any other specific terms of the
Offered Debt Securities, including any deleted, modified or additional events
of default or remedies or additional covenants provided with respect to such
Offered Debt Securities, and any terms that may be required by or advisable
under applicable laws or regulations.
Unless otherwise specified in any Prospectus Supplement, the Debt
Securities will be issuable in registered form and in denominations of $1,000
and any integral multiple thereof (Section 2.7). No service charge will be made
for any transfer or exchange of any Debt Securities but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith (Section 2.8).
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
<PAGE>
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
In determining whether the holders of the requisite aggregate principal
amount of outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indentures, the principal amount of any series of Debt Securities originally
issued at a discount from their stated principal amount that will be deemed to
be outstanding for such purposes will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities ("Global Securities")
that will be deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security (i) may not
be transferred except as a whole and (ii) may only be transferred (A) by the
Depositary for such Global Security to its nominee, (B) by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or (C) by
such Depositary or any such nominee to a successor Depositary or nominee of
such successor Depositary (Section 2.8).
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will
generally apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such Depositary. Such accounts shall be designated by the
dealers, underwriters or agents with respect to such Debt Securities or by the
Company if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the applicable Depositary ("participants") or
persons that may hold interests through participants. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interests of participants) and the
records of participants (with respect to interests of persons other than
participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities of the series represented by such Global Security for all purposes
<PAGE>
under the Indenture governing such Debt Securities. Except as provided below,
owners of beneficial interests in a Global Security will not be entitled to
have any of the individual Debt Securities of the series represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the Indenture
governing such Debt Securities.
Payment of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. The Company expects that the Depositary for
a series of Debt Securities or its nominee, upon receipt of any payment of
principal of, premium, if any, and interest, if any, in respect of a Global
Security representing any such Debt Securities, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
for such Debt Securities as shown on the records of such Depositary or its
nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name." Such payments will be the responsibility of such
participants. Neither the Company, the Trustee for such Debt Securities, any
paying agent nor the registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue individual Debt Securities of such series in exchange for the Global
Security representing such series of Debt Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities,
determine not to have any Debt Securities of a series represented by a Global
Security and, in such event, will issue individual Debt Securities of such
series in exchange for the Global Security representing such series of Debt
Securities. Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms acceptable to the
Company, the Trustee and the Depositary for such Global Security, receive
individual Debt Securities of such series in exchange for such beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
of individual Debt Securities of the series represented by such Global Security
equal in principal amount to such beneficial interest and to have such Debt
Securities registered in its name. Individual Debt Securities of such series so
issued will be issued in registered form and in denominations, unless otherwise
<PAGE>
specified in the applicable Prospectus Supplement relating to such series of
Debt Securities, of $1,000 and integral multiples thereof.
Events of Default. Unless otherwise specified in the applicable Prospectus
Supplement, an Event of Default is defined under each Indenture with respect to
the Debt Securities of any series issued under such Indenture as being: (a)
default in the payment of principal of or premium, if any, with respect to Debt
Securities of such series when due; (b) default in the payment of any
installment of interest upon any of the Debt Securities of such series when
due, continued for 30 days; (c) default in the payment or satisfaction of any
sinking fund or other purchase obligation with respect to Debt Securities of
such series when due; (d) default in the performance of any other covenant of
the Company applicable to Debt Securities of such series, continued for 90 days
after written notice to the Company by the Trustee or to the Company and the
Trustee, by the holders of at least 25% in aggregate principal amount of the
Debt Securities of such series then outstanding requiring the same to be
remedied; (e) certain events of bankruptcy, insolvency or reorganization; and
(f) default under any bond, debenture, note or other evidence of indebtedness
for money borrowed by the Company or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed of the Company resulting in the
acceleration of such indebtedness, or any default in payment of such
indebtedness (after expiration of any applicable grace periods and presentation
of any debt instruments, if required), if the aggregate amount of all such
indebtedness that has been so accelerated and with respect to which there has
been such a default in payment shall exceed $15,000,000 and there has been a
failure to obtain rescission or annulment of all such accelerations or to
discharge all such defaulted indebtedness within 20 days after written notice
of the type specified in the foregoing clause (d) (Section 5.1).
If any Event of Default shall occur and be continuing, the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding, by notice in writing to the Company
(and to the Trustee, if given by the holders), may declare the principal (or,
in the case of any series of Debt Securities originally issued at a discount
from their stated principal amount, such portion of the principal amount as may
be specified in the terms of such series) of all of the Debt Securities of such
series and the interest, if any, accrued thereon to be due and payable
immediately; provided, however, that the holders of a majority in aggregate
principal amount of the Debt Securities of such series then outstanding, by
notice in writing to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all defaults under such Indenture are cured
or waived (Section 5.1).
Each Indenture provides that no holder of any series of Debt Securities
then outstanding may institute any suit, action or proceeding with respect to,
or otherwise attempt to enforce, such Indenture, unless (i) such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, (ii) the holders of not less than 25% in aggregate
principal amount of such series of Debt Securities then outstanding shall have
made written request to the Trustee to institute such suit, action or
proceeding and shall have offered to the Trustee such reasonable indemnity as
it may require with respect thereto and (iii) the Trustee for 60 days after its
<PAGE>
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; provided that,
subject to the subordination provisions applicable to the Senior Subordinated
Debt Securities and the Subordinated Debt Securities, the right of any holder
of any Debt Security to receive payment of the principal of, premium, if any,
or interest, if any, on such Debt Security, on or after the respective due
dates, or to institute suit for the enforcement of any such payment shall not
be impaired or affected without the consent of such holder (Section 5.4). The
holders of a majority in aggregate principal amount of the Debt Securities of
such series then outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of such series, provided that the Trustee may decline to follow such direction
if the Trustee determines that such action or proceeding is unlawful or would
involve the Trustee in personal liability (Section 5.7).
The Company is required to furnish to the Trustee annually a certificate
as to the compliance by the Company with all conditions and covenants under
each Indenture (Section 4.3).
Discharge and Defeasance. Unless otherwise specified in the applicable
Prospectus Supplement, the Company can discharge or defease its obligations
with respect to any series of Debt Securities as set forth below (Article Ten).
The Company may discharge all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under either
Indenture that have not already been delivered to the Trustee for cancellation
and that have either become due and payable, or are by their terms due and
payable within one year (or scheduled for redemption within one year), by
irrevocably depositing with the Trustee cash or U.S. Government Obligations (as
defined in such Indenture), or a combination thereof, as trust funds in an
amount certified to be sufficient to pay when due the principal of, premium, if
any, and interest, if any, on all outstanding Debt Securities of such series
and to make any mandatory sinking fund payments, if any, thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may also elect at any time to (a) defease and be discharged from all of
its obligations (except those set forth below) to holders of any series of Debt
Securities issued under each Indenture ("defeasance") or (b) be released from
all of its obligations with respect to certain covenants applicable to any
series of Debt Securities issued under each Indenture ("covenant defeasance"),
if, among other things: (i) the Company irrevocably deposits with the Trustee
cash or U.S. Government Obligations, or a combination thereof, as trust funds
in an amount certified to be sufficient to pay when due the principal of,
premium, if any, and interest, if any, on all outstanding Debt Securities of
such series and to make any mandatory sinking fund payments, if any, thereon
when due and such funds have been so deposited for 91 days; (ii) such deposit
will not result in a breach or violation of, or cause a default under, any
agreement or instrument to which the Company is a party or by which it is
bound; and (iii) the Company delivers to the Trustee an opinion of counsel to
the effect that the holders of such series of Debt Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and that defeasance or
<PAGE>
covenant defeasance will not otherwise alter the United States federal income
tax treatment of such holders' principal and interest payments, if any, on such
series of Debt Securities. Such opinion in the case of defeasance under clause
(a) above must be based on a ruling of the Internal Revenue Service or a change
in United States federal income tax law occurring after the date of the
Indenture relating to the Debt Securities of such series, since such a result
would not occur under current tax law (Section 10.1).
Notwithstanding the foregoing, no discharge, defeasance or covenant
defeasance described above shall affect the following obligations to or rights
of the holders of any series of Debt Securities: (i) rights of registration of
transfer and exchange of Debt Securities of such series, (ii) rights of
substitution of mutilated, defaced, destroyed, lost or stolen Debt Securities
of such series, (iii) rights of holders of Debt Securities of such series to
receive payments of principal thereof and premium, if any, and interest, if
any, thereon, upon the original due dates therefor (but not upon acceleration),
and to receive mandatory sinking fund payments thereon when due, if any, (iv)
rights, obligations, duties and immunities of the Trustee, (v) rights of
holders of Debt Securities of such series as beneficiaries with respect to
property so deposited with the Trustee payable to all or any of them and (vi)
obligations of the Company to maintain an office or agency in respect of Debt
Securities of such series (Section 10.1).
The Company may exercise its defeasance option with respect to any series
of Debt Securities notwithstanding its prior exercise of its covenant
defeasance option with respect to any series of Debt Securities. If the Company
exercises its defeasance option with respect to any series of Debt Securities,
payment of such series of Debt Securities may not be accelerated because of an
Event of Default with respect to such series of Debt Securities. If the Company
exercises its covenant defeasance option with respect to any series of Debt
Securities, payment of such series of Debt Securities may not be accelerated by
reason of an Event of Default with respect to the covenants to which such
covenant defeasance is applicable. However, if such acceleration were to occur
by reason of another Event of Default, the realizable value at the acceleration
date of the cash and U.S. Government Obligations in the defeasance trust could
be less than the principal of, premium, if any, and interest, if any, and any
mandatory sinking fund payments, if any, then due on such series of Debt
Securities, in that the required deposit in the defeasance trust is based upon
scheduled cash flow rather than market value, which will vary depending upon
interest rates and other factors.
Modification of the Indenture. Each Indenture provides that the Company
and the Trustee may enter into supplemental indentures without the consent of
the holders of the Debt Securities to (a) evidence the assumption by a
successor entity of the obligations of the Company under such Indenture, (b)
add covenants or new events of default for the protection of the holders of
such Debt Securities, (c) cure any ambiguity or correct any inconsistency in
the Indenture, (d) establish the form and terms of Debt Securities of any
series, (e) evidence the acceptance of appointment by a successor trustee, (f)
in the case of Senior Debt Securities, secure such Debt Securities, (g)
designate a bank or trust company other than Chemical Bank to act as Trustee
for a series of Senior Debt Securities, United States Trust Company of New York
to act as Trustee for a series of Senior Subordinated Debt Securities and the
<PAGE>
Subordinated Debt Trustee to act as Trustee for a series of Subordinated Debt
Securities and (h) modify the existing covenants and events of default solely
in respect of, or add new covenants and events of default that apply solely to,
Debt Securities not yet issued and outstanding on the date of such supplemental
indenture (Section 8.1).
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of each series then outstanding
and affected, to add any provisions to, or change in any manner or eliminate
any of the provisions of, such Indenture or of any supplemental indenture or
modify in any manner the rights of the holders of the Debt Securities of such
series; provided that the Company and the Trustee may not, without the consent
of the holder of each outstanding Debt Security affected thereby, (a) extend
the stated final maturity of any Debt Security, reduce the principal amount
thereof, reduce the rate or extend the time of payment of interest, if any,
thereon, reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Company, change the coin or currency
in which principal, premium, if any, and interest, if any, are payable, reduce
the amount of the principal of any original issue discount security payable
upon acceleration or provable in bankruptcy, impair or affect the right to
institute suit for the enforcement of any payment or repayment thereof or, if
applicable, adversely affect any right of prepayment at the option of the
holder or (b) reduce the aforesaid percentage in aggregate principal amount of
Debt Securities of any series issued under such Indenture, the consent of the
holders of which is required for any such modification (Section 8.2).
Consolidation, Merger, Sale or Conveyance. Except as otherwise provided in
the applicable Prospectus Supplement, the Company may, without the consent of
the holders of Debt Securities, consolidate with, merge into or transfer,
exchange or dispose of all of its properties to, any other corporation
organized under the laws of the United States or any political subdivision
thereof or therein, provided that (i) the successor corporation assumes all
obligations of the Company under the Indentures and the Debt Securities, (ii)
after giving effect to such consolidation, merger, exchange or other
disposition, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing and (iii) certain other conditions are met.
Certain Definitions. Except as otherwise provided in the applicable
Prospectus Supplement, the following definitions are applicable to the
discussions of the Indentures (Article One).
"Consolidated Net Tangible Assets" means the aggregate amount of
assets included on the most recent consolidated balance sheet of the
Company and its Restricted Subsidiaries, less applicable reserves and
other properly deductible items and after deducting therefrom (a) all
current liabilities and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles,
all in accordance with generally accepted accounting principles
consistently applied.
"Indebtedness," with respect to any person, means, without
duplication:
<PAGE>
(a)(i) the principal of, premium, if any, and interest, if any,
on indebtedness for money borrowed of such person, indebtedness of
such person evidenced by bonds, notes, debentures or similar
obligations, and any guaranty by such person of any indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures
or similar obligations of any other person, whether any such
indebtedness or guaranty is outstanding on the date of the Indenture
or is thereafter created, assumed or incurred, (ii) the principal of
and premium and interest, if any, on indebtedness incurred, assumed
or guaranteed by such person in connection with the acquisition by it
or any of its subsidiaries of any other businesses, properties or
other assets and (iii) lease obligations that such person capitalizes
in accordance with Statement of Financial Accounting Standards No. 13
promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time
in effect;
(b) any other indebtedness of such person, including any
indebtedness representing the balance deferred and unpaid of the
purchase price of any property or interest therein and any guaranty,
endorsement or other contingent obligation of such person in respect
of any indebtedness of another that is outstanding on the date of the
Indenture or is thereafter created, assumed or incurred by such
person;
(c) obligations of such person under interest rate, commodity
or currency swaps, caps, collars, options and similar arrangements;
(d) obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar
credit transaction; or
(e) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clauses (a) through (d) above.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary, and (b) any Subsidiary which was an Unrestricted
Subsidiary but which, subsequent to the date of the Indentures, is
designated by the Board of Directors of the Company to be a Restricted
Subsidiary; provided, however, that the Company may not designate any such
Subsidiary to be a Restricted Subsidiary if the Company would thereby
breach any covenant or agreement contained in the Indentures (on the
assumptions that any outstanding Indebtedness of such Subsidiary was
incurred at the time of such designation).
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own voting securities entitling any one or more of
the Company and its Subsidiaries to elect a majority of the directors,
either at all times, or so long as there is no default or contingency
which permits the holders of any other class or classes of securities to
vote for the election of one or more directors.
<PAGE>
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date of the Indentures, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to any
Restricted Subsidiary and (b) any Subsidiary substantially all the assets
of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the character described in clause (a) above, unless and
until such Subsidiary shall have been designated to be a Restricted
Subsidiary.
Provisions Applicable Solely to Senior Debt Securities
General. Senior Debt Securities will be issued under the Senior Debt
Indenture and will rank pari passu with all other unsecured and unsubordinated
debt of the Company.
Limitations on Liens. The Senior Debt Indenture provides that, so long as
any Senior Debt Securities are outstanding, the Company will not, and will not
permit any Restricted Subsidiary to, pledge, mortgage, hypothecate or grant a
security interest in, or permit any mortgage, pledge, security interest or
other lien upon, any property or assets owned by the Company or any Restricted
Subsidiary to secure any Indebtedness, without making effective provision
whereby outstanding Senior Debt Securities shall be equally and ratably
secured.
Under the terms of the Senior Debt Indenture, the foregoing limitation
does not apply to (a) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets created at the time of the acquisition
of such property or assets by the Company or any Restricted Subsidiary or
within one year after such time to secure all or a portion of the purchase
price for such property or assets; (b) any mortgage, pledge, security interest,
lien or encumbrance upon any property or assets existing thereon at the time of
the acquisition thereof by the Company or any Restricted Subsidiary (whether or
not the obligations secured thereby are assumed by the Company or any
Restricted Subsidiary); (c) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets, whenever acquired, of any corporation
or other entity that becomes a Restricted Subsidiary after the date of the
Senior Debt Indenture, provided that (i) the instrument creating such mortgage,
pledge, security interest, lien or encumbrance shall be in effect prior to the
time such corporation or other entity becomes a Restricted Subsidiary and (ii)
such mortgage, pledge, security interest, lien or encumbrance shall only apply
to properties or assets owned by such corporation or other entity at the time
it becomes a Restricted Subsidiary or thereafter acquired by it from sources
other than the Company or another Restricted Subsidiary; (d) any mortgage,
pledge, security interest, lien or encumbrance arising from or in connection
with a conveyance by the Company or a Restricted Subsidiary of any production
payment with respect to oil, gas, natural gas, carbon dioxide, sulphur, helium,
coal, metals, minerals, steam, timber or other natural resources; (e) any
mortgage, pledge, security interest, lien or encumbrance in favor of the
Company or any wholly-owned subsidiary; (f) any mortgage, pledge, security
interest, lien or encumbrance created or assumed by the Company or a Restricted
Subsidiary in connection with the issuance of debt securities the interest on
which is excludable from gross income of the holder of such security pursuant
to the Internal Revenue Code of 1986, as amended, for the purpose of financing,
<PAGE>
in whole or in part, the acquisition or construction of property or assets to
be used by the Company or a Subsidiary; (g) any extension, renewal or refunding
of any mortgage, pledge, security interest, lien or encumbrance described in
the foregoing subparagraphs (a) through (f) on substantially the same property
or assets theretofore subject thereto; or (h) any mortgage, pledge, security
interest, lien or encumbrance securing any Indebtedness in an amount which,
together with all other Indebtedness secured by a mortgage, pledge, security
interest, lien or encumbrance that is not otherwise permitted by the foregoing
provisions, does not at the time of the incurrence of the Indebtedness so
secured exceed 20% of Consolidated Net Tangible Assets. For the purpose of this
provision, "security interest" will include the interest of the lessor under a
lease with a term of three years or more that should be, in accordance with
generally accepted accounting principles, recorded as a capital lease, and any
such lease of property or assets not acquired from the Company or any
Restricted Subsidiary in contemplation of such lease shall be treated as though
the lessee had purchased such property or assets from the lessor. (Section 3.6
of the Senior Debt Indenture).
Provisions Applicable Solely to Senior Subordinated and Subordinated Debt
Securities
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness of the Company. "Senior Indebtedness" is
defined in the Subordinated Debt Indenture as indebtedness incurred by the
Company for money borrowed whether outstanding on the date hereof or incurred
in the future, all deferrals, renewals or extensions of any such indebtedness
and all evidences of indebtedness issued in exchange for any such indebtedness
and guarantees by the Company of the foregoing items of indebtedness for money
borrowed by persons other than the Company, unless, in any such case, such
indebtedness or guarantee provides by its terms that it shall not constitute
Senior Indebtedness.
The Senior Subordinated Debt Securities will be subordinate and junior in
right of payment, to the extent set forth in the Senior Subordinated Debt
Indenture, to all Senior Indebtedness of the Company. The Senior Subordinated
Debt Securities will rank senior to all existing and future Indebtedness of the
Company that is neither Senior Indebtedness nor Senior Subordinated
Indebtedness, and only Indebtedness of the Company that is Senior Indebtedness
will rank senior to the Senior Subordinated Debt Securities in accordance with
the subordination provisions of the Senior Subordinated Debt Indenture. "Senior
Indebtedness" is defined in the Senior Subordinated Debt Indenture as
Indebtedness of the Company outstanding at any time except (a) any Indebtedness
as to which, by the terms of the instrument creating or evidencing the same, it
is provided that such Indebtedness is not senior in right of payment to the
Senior Subordinated Debt Securities, (b) the Senior Subordinated Debt
Securities, (c) any Indebtedness of the Company to a wholly-owned Subsidiary of
the Company, (d) interest accruing after the filing of a petition initiating
certain events of bankruptcy or insolvency unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (e) trade payables. "Senior Subordinated Indebtedness"
means the Senior Subordinated Debt Securities and any other Indebtedness of the
<PAGE>
Company that ranks pari passu with the Senior Subordinated Debt Securities
(including the 1997 Notes and the 2000 Notes). Any Indebtedness of the Company
that is subordinate or junior by its terms in right of payment to any other
Indebtedness of the Company shall be subordinate to Senior Subordinated
Indebtedness unless the instrument creating or evidencing the same or pursuant
to which the same is outstanding specifically provides that such Indebtedness
(i) is to rank pari passu with other Senior Subordinated Indebtedness and (ii)
is not subordinated by its terms to any Indebtedness of the Company which is
not Senior Indebtedness. "Subordinated Indebtedness" means the Senior
Subordinated Debt Securities, any other Senior Subordinated Indebtedness and
any other Indebtedness that is subordinate or junior in right of payment to
Senior Indebtedness.
If (i) the Company should default in the payment of any principal of,
premium, if any, or interest, if any, on any Senior Indebtedness (as defined in
the Senior Subordinated Debt Indenture or Subordinated Debt Indenture, as
applicable) when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise or
(ii) any other default with respect to Senior Indebtedness shall occur and the
maturity of such Senior Indebtedness has been accelerated in accordance with
its terms, then, upon written notice of such default to the Company by the
holders of such Senior Indebtedness or any trustee therefor, unless and until
such default shall have been cured or waived or shall have ceased to exist or
such acceleration shall have been rescinded, no direct or indirect payment (in
cash, property, securities, by set-off or otherwise) will be made or agreed to
be made for principal of, premium, if any, or interest, if any, on any of the
Senior Subordinated Debt Securities or the Subordinated Debt Securities, or in
respect of any redemption, retirement, purchase or other acquisition of the
Senior Subordinated Debt Securities or the Subordinated Debt Securities other
than those made in capital stock of the Company (or cash in lieu of fractional
shares thereof) (Sections 13.1 and 13.4 of the Senior Subordinated Debt
Indenture and Sections 13.1 and 13.4 of the Subordinated Debt Indenture).
If any default (other than a default described in the preceding paragraph)
under the Senior Indebtedness, pursuant to which the maturity thereof may be
accelerated immediately or the expiration of any applicable grace periods
occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the Company
and the Trustee of written notice thereof (a "Payment Notice") from or on
behalf of holders of such Senior Indebtedness specifying an election to
prohibit such payment and other action by the Company in accordance with the
following provisions of this paragraph, the Company may not make any payment or
take any other action that would be prohibited by the immediately preceding
paragraph during the period (the "Payment Blockage Period") commencing on the
date of receipt of such Payment Notice and ending on the earlier of (i) the
date, if any, on which the holders of such Senior Indebtedness or their
representative notify the Trustee that such Senior Nonmonetary Default is cured
or waived or ceases to exist or the Senior Indebtedness to which such Senior
Nonmonetary Default relates is discharged or (ii) the 179th day after the date
of receipt of such Payment Notice. Notwithstanding the provisions described in
the immediately preceding sentence, the Company may resume payments on the
Senior Subordinated Debt Securities and the Subordinated Debt Securities after
such Payment Blockage Period.
<PAGE>
If (i) (A) without the consent of the Company, a receiver, conservator,
liquidator or trustee of the Company or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (B) the Company is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for
more than 60 days or (D) a petition is filed against the Company under any
state or federal bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or receivership law of any
jurisdiction whether now or hereafter in effect, and is not dismissed within 60
days after such filing; (ii) the Company (A) commences a voluntary case or
other proceeding seeking liquidation, reorganization, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or other relief with respect to
itself or its debt or other liabilities under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or (B) consents to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or (C) fails generally to, or cannot,
pay its debts generally as they become due or (D) takes any corporate action to
authorize or effect any of the foregoing; or (iii) any Subsidiary of the
Company takes, suffers or permits to exist any of the events or conditions
referred to in the foregoing clause (i) or (ii), then all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will first be paid in full before any payment or distribution,
whether in cash, securities or other property, is made to any holder of Senior
Subordinated Debt Securities or Subordinated Debt Securities on account of the
principal of, premium, if any, or interest, if any, on such Senior Subordinated
Debt Securities or Subordinated Debt Securities, as the case may be. Any
payment or distribution, whether in cash, securities or other property (other
than securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in the subordination provisions with respect to the
indebtedness evidenced by the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment) that would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the Senior
Subordinated Debt Securities or the Subordinated Debt Securities of any series
will be paid or delivered directly to the holders of Senior Indebtedness in
accordance with the priorities then existing among such holders until all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) has been paid in full. In the event of
any such proceeding, after payment in full of all sums owing with respect to
Senior Indebtedness, the holders of Senior Subordinated Debt Securities,
together with the holders of any obligations of the Company ranking on a parity
with the Senior Subordinated Debt Securities, will be entitled to be repaid
from the remaining assets of the Company the amounts at that time due and owing
on account of unpaid principal of, premium, if any, or interest, if any, on the
Senior Subordinated Debt Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or obligations of the Company ranking
<PAGE>
junior to the Senior Subordinated Debt Securities (including the Subordinated
Debt Securities) and such other obligations (Section 13.1 of the Senior
Subordinated Debt Indenture and Section 13.1 of the Subordinated Debt
Indenture).
If any payment or distribution of any character, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Senior Subordinated Debt
Securities or Subordinated Debt Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by
the Trustee, or any holder of any Senior Subordinated Debt Securities or
Subordinated Debt Securities in contravention of any of the terms of the Senior
Subordinated Debt Indenture or the Subordinated Debt Indenture, as the case may
be, such payment or distribution of securities will be received in trust for
the benefit of, and will be paid over or delivered and transferred to, the
holders of the Senior Indebtedness then outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to pay all
such Senior Indebtedness in full (Section 13.1 of the Senior Subordinated Debt
Indenture and Section 13.1 of the Subordinated Debt Indenture).
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Senior Subordinated Debt Securities or Subordinated Debt Securities.
Such subordination will not prevent the occurrence of any Event of Default (as
defined in the Indentures) or limit the right of acceleration in respect of the
Senior Subordinated Debt Securities or Subordinated Debt Securities.
Conversion
The terms and conditions, if any, upon which Debt Securities being offered
are convertible into Common Stock will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the conversion price, the
conversion period, provisions as to whether conversion will be at the option of
the holder or the Company, the event requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Debt Securities.
Concerning the Trustee
Chemical Bank, the Trustee under the Senior Indenture, may make loans to
the Company in the normal course of business. United States Trust Company of
New York, the Trustee under the Senior Subordinated Debt Indenture, serves as
trustee with respect to the Company's 9-3/4% Senior Subordinated Discount Notes
due 2000. If a bank or trust company other than Chemical Bank or United States
Trust Company of New York is to act as Trustee for a series of Debt Securities,
information concerning such other Trustee will be set forth in the Prospectus
Supplement relating to such series of Debt Securities.
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the Company's capital stock are
subject to the detailed provisions of the Company's Restated Articles of
Incorporation, as amended (the "Articles"), its Bylaws, as amended, the
Statement of Resolution Establishing and Designating the 5% convertible
preferred stock, no par value (the "Designation"), and the Preferred Stock
Preference Rights created pursuant to the Rights Agreement dated as of June 26,
1990, between the Company and NationsBank of Texas, N.A., as Rights Agent.
These statements do not purport to be complete and, while the Company believes
the descriptions of the material provisions of the Articles, Bylaws and
Designation contained in this Prospectus are accurate statements with respect
to such material provisions, such statements are subject to the detailed
provisions in the Articles, Bylaws and Designation to which reference is hereby
made for a full description of such provisions.
Preferred Stock
Under the Articles, the Company has authority to issue 5,000,000 shares of
preferred stock without par value. There were 522,460 shares of 5% convertible
preferred stock (the "Convertible Preferred Stock") outstanding at August 18,
1994. No other shares of preferred stock are currently outstanding.
The Preferred Stock may be issued by resolutions of the Company's Board of
Directors from time to time without any action of the shareholders. Such
resolutions may authorize issuances in one or more classes or series of the
preferred stock and may fix and determine dividend and liquidation preferences,
voting rights, conversion privileges, redemption terms, and other privileges
and rights of the shareholders of each class or series so authorized.
The specific terms of a particular series of Preferred Stock offered
hereby will be described in a Prospectus Supplement relating to such series and
will include the following:
(i) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of the series, the
date or dates from which dividends will begin to accrue or accumulate and
the dates upon which such dividends shall be payable and whether dividends
will be cumulative;
(iii) Whether the shares of the series will be redeemable and, if so,
the price at and the terms and conditions on which the shares of the
series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(iv) The liquidation preference, if any, applicable to shares of the
series;
<PAGE>
(v) Whether the shares of the series will be subject to operation of
a retirement or sinking fund and, if so, the extent and manner in which
any such fund shall be applied to the purchase or redemption of the shares
of the series for retirement or for other corporate purposes, and the
terms and provisions relating to the operation of such fund;
(vi) The terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of any other
class or series of capital stock of Triton or another corporation or any
series of any other class or classes, or of any other series of the same
class, including the price or prices or the rates of conversion or
exchange and the method, if any, of adjusting the same;
(vii) The voting rights, if any, on the shares of the series; and
(viii) Any other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
Outstanding Preferred Stock
In March, 1994, the Company issued 522,460 shares of its Convertible
Preferred Stock in connection with its acquisition of the minority interest in
Triton Europe plc.
Dividends. Holders of shares of Convertible Preferred Stock will be
entitled to receive, when, as, and if declared by the Board of Directors out of
funds of the Company legally available for payment, cumulative cash dividends
at the annual rate per share equal to 5 per cent of the Redemption Price
(defined below) of the shares payable semi-annually on September 30 and March
30 in each year, beginning September 30, 1994, except that if any such date is
a Saturday, Sunday, or legal holiday, then such dividend shall be payable on
the next day that is not a Saturday, Sunday, or legal holiday. Dividends will
accrue from the date on which the Convertible Preferred Stock was issued and
will be payable to holders of record as they appear on the stock books of the
Company on such record dates as are fixed by the Board of Directors. The amount
of dividends payable per share of Convertible Preferred Stock for each semi-
annual dividend period will be computed by dividing the annual dividend amount
by two. The amount of dividends payable for the initial dividend period and for
any period other than a full semi-annual dividend period will be computed on
the basis of a 360-day year of twelve 30-day months. No interest will be
payable in respect of any dividend payment on the Convertible Preferred Stock
which may be in arrears.
If dividends on the Convertible Preferred Stock shall not have been
declared and paid in full, or funds set aside for payment, by a date 15 days
after a dividend payment date (a "Calculation Date"), dividends payable on the
Convertible Preferred Stock shall be increased by an amount equal to the prime
rate of Morgan Guaranty Trust Company of New York plus 1 per cent as in effect
on each Calculation Date applied against the amount of dividends so due and
unpaid until such dividends shall be paid (the "Penalty Dividend").
The Convertible Preferred Stock will have priority as to dividends over
the Common Stock and any other series or class of the Company's stock hereafter
<PAGE>
issued which ranks junior as to dividends to the Convertible Preferred Stock
("junior dividend stock"), and no dividend (other than dividends payable solely
in junior dividend stock) may be paid on, and no purchase, redemption, or other
acquisition may be made by the Company of, any junior dividend stock unless all
accrued and unpaid dividends on the Convertible Preferred Stock have been paid
or declared and set apart for payment. The Company may not pay dividends on any
class or series of its stock having parity with the Convertible Preferred Stock
as to dividends ("parity dividend stock"), unless it has paid or declared and
set apart for payment or contemporaneously pays or declares and sets apart for
payment all accrued and unpaid dividends for all prior periods on the
Convertible Preferred Stock and may not pay dividends on the Convertible
Preferred Stock unless it has paid or declared and set apart for payment or
contemporaneously pays or declares and sets apart for payment all accrued and
unpaid dividends for all prior periods on the parity dividend stock. Whenever
all accrued dividends are not paid in full on the Convertible Preferred Stock
or any parity dividend stock, all dividends declared on the Convertible
Preferred Stock and such parity dividend stock will be declared or made pro
rata so that the amount of dividends declared per share on the Convertible
Preferred Stock and such parity dividend stock will bear the same ratio that
accrued and unpaid dividends per share on the Convertible Preferred Stock and
such parity dividend stock bear to each other. The Convertible Preferred Stock
will be junior as to dividends to any series or class of the Company's stock
hereafter issued which ranks senior as to dividends to the Convertible
Preferred Stock ("senior dividend stock"), and if at any time the Company has
failed to pay or declare and set apart for payment accrued and unpaid dividends
on any senior dividend stock, the Company may not pay any dividend on the
Convertible Preferred Stock.
Liquidation Rights. In case of the voluntary or involuntary liquidation,
dissolution, or winding up of the Company, holders of shares of Convertible
Preferred Stock are entitled to receive an amount per share equal to the
Redemption Price to the payment date (the "Liquidation Price"), before any
payment or distribution is made to the holders of Common Stock or any other
series or class of the Company's stock hereafter issued which ranks junior as
to liquidation rights to the Convertible Preferred Stock, but the holders of
the shares of the Convertible Preferred Stock will not be entitled to receive
the Liquidation Price of such shares until the liquidation price of any other
series or class of the Company's stock hereafter issued which ranks senior as
to liquidation rights to the Convertible Preferred Stock ("senior liquidation
stock") has been paid in full. The holders of Convertible Preferred Stock and
all series or classes of the Company's stock hereafter issued which rank on a
parity as to liquidation rights with the Convertible Preferred Stock are
entitled to share ratably, in accordance with the respective preferential
amounts payable on such stock, in any distribution (after payment of the
liquidation price of the senior liquidation stock) which is not sufficient to
pay in full the aggregate of the amounts payable thereon. After payment in full
of the Liquidation Price of the shares of the Convertible Preferred Stock, the
holders of such shares will not be entitled to any further participation in any
distribution of assets by the Company. Neither a consolidation or merger of the
Company with another corporation nor a sale or transfer of all or part of the
Company's assets for cash, securities, or other property will be considered a
liquidation, dissolution, or winding up of the Company.
<PAGE>
Redemption. The Company may, at its option, redeem the Convertible
Preferred Stock, in whole or in part, at any time on or after March 30, 1998 or
such earlier date after which at least 75 per cent of the shares of Convertible
Preferred Stock initially issued shall have been converted into shares of
Common Stock. The redemption price payable upon such optional redemption shall
be the Redemption Price to the redemption date. Such redemption price shall be
payable in cash.
The Convertible Preferred Stock shall be subject to mandatory redemption
by the Company on March 30, 2004. At the option of the Company, such redemption
may be for (i) cash at the Redemption Price on the redemption date; (ii) such
number of shares of Common Stock whose aggregate value (based on the then
current market price determined as set forth in the Designation) equals the
Redemption Price; or (iii) a combination of cash and shares of Common Stock
equal to the Redemption Price. The Redemption Price equals $34.41 per share
plus any accumulated and unpaid dividends thereon (including Penalty
Dividends).
Voting and Other Rights. The holders of Convertible Preferred Stock will
have no voting rights except as described below or as required by Texas law. In
exercising any such vote, each outstanding share of Convertible Preferred Stock
will be entitled to one vote.
So long as any shares of Convertible Preferred Stock are outstanding, the
Company will not, without the affirmative vote or consent of the holders of at
least two-thirds of the outstanding shares of Convertible Preferred Stock,
voting or consenting separately as a class with holders of any other class of
the Company's preferred stock similarly affected, issue other than wholly for
cash consideration, any shares of any class of senior dividend stock or senior
liquidation stock, or amend the Articles in a manner adversely affecting the
rights of such shareholders.
The Articles may be amended to increase the number of authorized shares of
the Company's preferred stock without the vote of the holders of the
outstanding Convertible Preferred Stock.
The holders of the shares of the Convertible Preferred Stock have no pre-
emptive rights with respect to any shares of capital stock of the Company or
any other securities of the Company convertible into or carrying rights or
options to purchase any such shares.
Conversion Rights. Commencing on October 1, 1994, the holders of
Convertible Preferred Stock will be entitled to convert their shares of
Convertible Preferred Stock into Common Stock subject to the qualifications
described below, except that, with respect to shares of Convertible Preferred
Stock called for redemption, conversion rights will expire at the close of
business on the fifth day prior to the redemption date (unless the Company
defaults in the payment of the redemption price). No payment or adjustment will
be made in respect of dividends on the Common Stock or Convertible Preferred
Stock that may be accrued or unpaid or in arrears upon conversion of shares of
Convertible Preferred Stock except as set forth below. No fractional shares
will be issued and, in lieu of any fractional share, the Company will pay a
cash adjustment based on the then current market price (determined as set forth
in the Designation) of the Common Stock.
<PAGE>
Each share of Convertible Preferred Stock shall be convertible initially
into one share of Common Stock; however, the number of shares of Common Stock
issuable on conversion of each share of Convertible Preferred Stock (the
"Conversion Rate") shall be subject to adjustment as described below.
The Conversion Rate is subject to adjustment in certain circumstances,
including in respect of any dividends not declared and paid in full in respect
of any dividend payment date occurring prior to the date of conversion and any
Penalty Dividends payable thereon, upon the issuance of shares of Common Stock
as a stock dividend, in connection with combinations and subdivisions of the
Common Stock, upon certain reclassifications of the Common Stock, upon the
issuance to the Company's stockholders of rights or warrants to subscribe for
or purchase shares of Common Stock at a price per share less than the then
current market price of the Common Stock (as determined in the Designation),
and in connection with certain distributions to the Company's stockholders of
evidences of indebtedness or assets. Except in the case of the adjustment in
respect of dividends, no adjustment in the Conversion Price will be required
unless it would result in at least a 1 percent increase or decrease in the
Conversion Price; however, any adjustment not made will be carried forward.
In case of any consolidation or merger of the Company with any other
corporation, or in the case of any merger of another corporation into the
Company (other than a merger with a corporation in which merger the Company is
the continuing corporation and which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock), or
in the case of a sale or conveyance of all or substantially all of the assets
of the Company to another corporation, the Company will be required to make
proper provisions so that the holder of each share of Convertible Preferred
Stock then outstanding will have the right thereafter to convert such share of
Convertible Preferred Stock into the kind or amount of shares of stock and
other securities and property receivable upon such consolidation, merger, sale
or conveyance by a holder of the number of shares of Common Stock into which
such share of Convertible Preferred Stock might have been converted immediately
prior to such consolidation, merger, sale or conveyance.
Preferred Stock Purchase Rights
In June 1990, the Board of Directors of the Company adopted a Shareholder
Rights Plan pursuant to which preferred stock purchase rights attach to all
shares of Common Stock at the rate of one right for each share of Common Stock.
Chemical Bank is the Rights Agent for the Preferred Stock Purchase Rights.
Generally, the rights only become distributable ten days following public
announcement that a person has acquired beneficial ownership of 15% or more of
the Common Stock or ten days following commencement of a tender offer for 15%
or more of the outstanding Common Stock. If, among other events, any person
becomes the beneficial owner of 15% or more of Common Stock, each right not
owned by such person generally becomes the right to purchase such number of
shares of Common Stock that is equal to the amount obtained by dividing the
right's exercise price (currently $40) by 50% of the market price of the Common
Stock on the date of the first occurrence. In addition, if the Company is
subsequently merged or certain other extraordinary business transactions are
consummated, each right generally becomes a right to purchase such number of
<PAGE>
shares of common stock of the acquiring person that is equal to the amount
obtained by dividing the right's exercise price by 50% of the market price of
such common stock on the date of the first occurrence. Under certain
circumstances, the Company's directors may determine that a tender offer or
merger is fair to all shareholders and prevent the rights from being exercised.
Any shares of preferred stock issued pursuant to the Shareholders Rights
Plan will rank junior as to dividends and liquidation to the Convertible
Preferred Stock.
The Company will be entitled to redeem the rights at $0.01 a right at any
time until the tenth day following the public announcement that a 15% position
has been acquired or a tender offer has been commenced. The rights will expire
on June 26, 2000.
Common Stock
General. The Articles authorize the Company to issue up to 200,000,000
shares of Common Stock, par value $1.00 per share, of which 35,487,874 shares
were outstanding (excluding 54,345 treasury shares) at August 18, 1994.
Any authorized but unissued shares of Common Stock (along with any
authorized but unissued shares of preferred stock) could be used to make more
difficult a change in control of the Company. Under certain circumstances, such
shares could be used to dilute voting stock ownership (including voting power)
or otherwise to inhibit persons seeking to effect a takeover or otherwise to
gain control of the Company. See "Preferred Stock Purchase Rights" above.
The Transfer Agent and Registrar for the Common Stock is Chemical Bank.
Voting and Other Rights. Each shareholder is entitled to one vote for each
share of Common Stock held by such holder. Because shareholders are not
entitled to cumulate their votes, shareholders holding a majority of the
outstanding shares of Common Stock and any shares of voting preferred stock
that may be issued are able to elect all members of the Board of Directors. The
Company's Bylaws provide that the directors are to be elected in three classes
of as nearly equal a number as possible and for a term of three years. Holders
of Common Stock have no preemptive rights, and shares of Common Stock have no
redemption, sinking fund or conversion privileges.
In the event of any liquidation, dissolution or winding up of the
Company's affairs, subject to the rights of holders of any preferred stock
issued, the holders of Common Stock are entitled to receive pro rata any assets
of the Company after the satisfaction of corporate liabilities.
Dividend Rights. Subject to the rights of holders of any preferred stock,
all shares of Common Stock are entitled to share equally in dividends from
sources legally available therefor when, as and if declared by the Board of
Directors. Under Texas law, the Company may declare and pay dividends on its
shares of capital stock out of its surplus (which totalled approximately $228
million as of May 31, 1994). The payment of cash dividends is also restricted
by covenants in loan documents and indentures to which the Company is a party.
<PAGE>
Convertible Debentures
The Company has a convertible debenture plan under which key management
personnel may purchase debentures that are convertible into shares of Common
Stock. The aggregate number of additional shares of Common Stock issuable upon
the conversion of the debentures cannot exceed 500,000 shares, subject to
adjustment in certain events.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities or Warrants to purchase Common Stock or Preferred Stock. Warrants
may be issued independently of or together with any other Securities and may be
attached to or separate from such Securities. Each series of Warrants will be
issued under a separate Warrant Agreement (each a "Warrant Agreement") to be
entered into between the Company and a Warrant Agent ("Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection with the
Warrant of such series and will not assume any obligation or relationship of
agency or trust for or with holders or beneficial owners of Warrants. The
following sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable Warrant
Agreement will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Warrants in respect of which this Prospectus is being
delivered: (i) the title of such Warrants; (ii) the aggregate number of such
Warrants; (iii) the price or prices at which such Warrants will be issued; (iv)
the designation, aggregate principal amount and terms of the securities
purchasable upon exercise of such Warrants; (v) the designation and terms of
the Securities with which such Warrants are issued and the number of such
Warrants issued with each such security; (vi) if applicable, the date on and
after which such Warrants and the related securities will be separately
transferable; (vii) the price at which the securities purchasable upon exercise
of such Warrants may be purchased; (viii) the date on which the right to
exercise such Warrants shall commence and the date on which such right shall
expire; (ix) the minimum or maximum amount of such Warrants which may be
exercised at any one time; (x) information with respect to book-entry
procedures, if any; (xi) a discussion of certain Federal income tax
considerations; and (xii) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities to or through underwriters or dealers,
and also may sell the Securities directly to one or more other purchasers or
through agents. The applicable Prospectus Supplement will set forth the names
of any underwriters or agents involved in the sale of the Offered Securities
and any applicable commissions or discounts.
Underwriters, dealers or agents may offer and sell the Offered Securities
at a fixed price or prices, which may be changed, or from time to time at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. In connection with the sale
<PAGE>
of the Securities, underwriters or agents may be deemed to have received
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters or agents may sell the Securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agent.
The Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Securities are sold by
the Company for public offering and sale may make a market in such Securities,
but such underwriters or agents will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Any underwriters, dealers or agents participating in the distribution of
the Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the "1933 Act"). Underwriters, dealers or
agents may be entitled, under agreements entered into with the Company, to
indemnification against or contribution toward certain civil liabilities,
including liabilities under the 1933 Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases will be subject to the
condition that the purchase of the Securities shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such agents will not have any responsibility in
respect of the validity or performance of such contracts.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Securities will
be passed upon for the Company by Simpson Thacher & Bartlett (a partnership
which includes professional corporations), 425 Lexington Avenue, New York,
New York. Simpson Thacher & Bartlett will rely upon Jackson & Walker, L.L.P.,
with respect to matters of Texas law.
EXPERTS
The consolidated financial statements of Triton Energy Corporation
for the years ended May 31, 1994 and 1993, incorporated herein
by reference to the Company's Annual Report on Form 10-K for the year ended
May 31, 1994, have been so incorporated in reliance upon the report (which
included an audit of the adjustments that were applied to restate the 1992
<PAGE>
financial statements for discontinued wholesale fuel products operations as
described in Notes 1 and 3 of the financial statements) of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts
in auditing and accounting.
The consolidated statements of operations, shareholders' equity and cash
flows of Triton Energy Corporation for the year ended May 31, 1992 (before
restatement for discontinued wholesale fuel products operations), incorporated
herein by reference to the Company's Annual Report on Form 10-K for the year
ended May 31, 1994, have been so incorporated in reliance upon the report of
KPMG Peat Marwick LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
The consolidated statements of earnings, shareholders' equity and cash
flows of Crusader Limited for the year ended May 31, 1992, incorporated herein
by reference to the Company's Annual Report on Form 10-K for the year ended May
31, 1994, have been so incorporated in reliance upon the report of KPMG Peat
Marwick, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
Certain information with respect to the gas and oil reserves of Triton and
its subsidiaries derived from the report of DeGolyer and MacNaughton,
independent petroleum engineers, has been incorporated by reference herein in
reliance upon such firm as experts with respect to the matters contained
therein.
Certain information with respect to the gas and oil reserves of Triton and
its subsidiaries derived from the report of McDaniel & Associates Consultants,
Ltd., independent petroleum engineers, has been incorporated by reference
herein in reliance upon such firm as experts with respect to the matters
contained therein.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses payable by the Company in connection with the
offering described in this Registration Statement are as follows:
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . . . . . . $ 44,069
Legal fees and expenses . . . . . . . . . . . . . . . . . . <F1>
Blue Sky fees and expenses . . . . . . . . . . . . . . . . . <F1>
Accounting fees and expenses . . . . . . . . . . . . . . . . 20,000
Printing and duplicating expenses . . . . . . . . . . . . . <F1>
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . <F1>
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $ <F1>
____________________
<FN>
<F1> To be filed by amendment.
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act provides that any
director or officer of a Texas corporation may be indemnified against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to
any proceeding arising from actions taken in his official capacity, as a
director or officer, he may be indemnified so long as it shall be determined
that he conducted himself in good faith and that he reasonably believed that
such conduct was in the corporation's best interest. In cases not concerning
conduct in his official capacity as a director or officer, a director or
officer may be indemnified so long as it shall be determined that he conducted
himself in good faith and that he reasonably believed that his conduct was not
opposed to the corporation's best interest. In the case of any criminal
proceeding, a director or officer may be indemnified if he had no reasonable
cause to believe his conduct was unlawful. If a director or officer is wholly
successful, on the merits or otherwise, in connection with such a proceeding,
such indemnification is mandatory.
Article III of the Company's Bylaws requires the indemnification of
officers and directors to the fullest extent permitted by the Texas Business
<PAGE>
Corporation Act. The Company also has policies insuring its officers and
directors against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act of 1933, as amended.
Article VIII of the Company's Certificate of Restated Articles of
Incorporation requires the indemnification of directors to the fullest extent
permitted by the Texas Miscellaneous Corporation Laws Act and the Texas
Business Corporation Act.
Effective as of August 28, 1989, Article 7.06.B of the Texas Miscellaneous
Corporation Laws Act was amended to read in its entirety as follows:
"B. The articles of incorporation of a corporation may provide
that a director of the corporation shall not be liable, or shall be
liable only to the extent provided in the articles of incorporation,
to the corporation or its shareholders or members for monetary
damages for an act or omission in the director's capacity as a
director, except that this article does not authorize the elimination
or limitation of the liability of a director to the extent the
director is found liable for:
(1) a breach of the director's duty of loyalty to the
corporation or its shareholders or members;
(2) an act or omission not in good faith that
constitutes a breach of duty of the director to the
corporation or an act or omission that involves intentional
misconduct or a knowing violation of the law;
(3) a transaction from which the director received an
improper benefit, whether or not the benefit resulted from
an action taken within the scope of the director's office;
or
(4) an act or omission for which the liability of a
director is expressly provided for by an applicable
statute."
Item 16. Exhibits.
1.1 - Form of Underwriting Agreement (Debt Securities and
Warrants to Purchase Debt Securities).<F1>
1.2 - Form of Underwriting Agreement (Equity Securities and
Warrants to Purchase Equity Securities).<F1>
4.1 - Form of Debt Securities (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form
S-3 (Registration No. 33-69230) (the "S-3 Registration
Statement")).
<PAGE>
4.2 - Form of Senior Indenture by and between the Company and
Chemical Bank, as Trustee (incorporated by reference to
Exhibit 4.2 of the S-3 Registration Statement).
4.3 - Senior Subordinated Indenture by and between the Company
and United States Trust Company of New York, dated as of
December 15, 1993 (incorporated by reference to Exhibit 4.9
of the Company's Quarterly Report on Form 10-Q for the
quarterly period ended November 30, 1993 (File No. 1-
7864)).
4.4 - Form of Subordinated Indenture by and between the Company
and ___________, as Trustee.<F1>
4.5 - Form of Warrant Agreement for Preferred Stock and Common
Stock (including form of Warrant Certificate).<F1>
4.6 - Form of Warrant Agreement for Debt Securities (including
form of Warrant Certificate).<F1>
5.1 - Opinion of Jackson & Walker, L.L.P., as to the validity of
the Debt Securities, Preferred Stock and Common Stock.<F1>
12.1 - Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred
Dividends.<F1>
23.1 - Consent of Price Waterhouse LLP.
23.2 - Consent of KPMG Peat Marwick LLP, Dallas, Texas.
23.3 - Consent of KPMG Peat Marwick, Brisbane, Australia.
23.4 - Consent of Jackson & Walker, L.L.P. (included in Exhibit
5.1).<F1>
23.5 - Consent of DeGolyer and MacNaughton, independent petroleum
engineers.
23.6 - Consent of McDaniel & Associates Consultants Ltd.,
independent petroleum engineers.
24.1 - Powers of Attorney (included in the signature page part of
this Part II).
25.1 - Statements of eligibility of Chemical Bank as Trustee.<F1>
25.2 - Statements of eligibility of United States Trust Company of
New York as Trustee.<F1>
____________________
[FN]
<F1> To be filed by amendment.
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(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 paragraph (1)(i) and (1)(ii) above do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
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 the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 provisions set forth in response to Item 15, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
<PAGE>
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Dallas, State of Texas, on September 1, 1994.
TRITON ENERGY CORPORATION
By:/s/ Thomas G. Finck
President and Chief Executive Officer
POWER OF ATTORNEY
Triton Energy Corporation, a Texas corporation (the "Company"), and each
of the undersigned officers and directors of the Company hereby constitute and
appoint Robert B. Holland, III and Thomas G. Finck, jointly and severally, with
full power of substitution and revocation, their true and lawful attorneys-in-
fact and agents, for them and on their behalf and in their respective names,
places and steads, in any and all capacities, to sign, execute, and file any
documents which may be required relating to this Registration Statement,
including any and all amendments, exhibits and supplements thereto, granting
unto said attorneys, and each of them full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully to all intents and
purposes as they might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement and Power of Attorney have been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Thomas G. Finck President, Chief Executive September 1, 1994
(Thomas G. Finck) Officer, Director
/s/ Peter Rugg Senior Vice President and September 1, 1994
(Peter Rugg) Chief Financial Officer
(Principal Financial and
Accounting Officer)
<PAGE>
Director
(Herbert L. Brewer)
/s/ Ernest E. Cook Director September 1, 1994
(Ernest E. Cook)
/s/ Ray H. Eubank Director September 1, 1994
(Ray H. Eubank)
/s/ Jesse E. Hendricks Director September 1, 1994
(Jesse E. Hendricks)
Director
(William I. Lee)
/s/ John P. Lewis Director September 1, 1994
(John P. Lewis)
Director
(Michael E. McMahon)
Director
(Graeme O. Morris)
Director
(Wellslake D. Morse, Jr.)
Director
(J.G.A. Tucker)
/s/ Fitzgerald S. Hudson Director September 1, 1994
(Fitzgerald S. Hudson)
/s/ J. Otis Winters Director September 1, 1994
(J. Otis Winters)
<PAGE>
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
Sequentially
Numbered
Exhibit Pages
Number Description of Exhibits
- ---------- ----------------------------------------------------- -------------
<C> <C> <C>
23.1 - Consent of Price Waterhouse LLP.
23.2 - Consent of KPMG Peat Marwick LLP, Dallas, Texas.
23.3 - Consent of KPMG Peat Marwick, Brisbane, Australia.
23.5 - Consent of DeGolyer and MacNaughton, independent
petroleum engineers.
23.6 - Consent of McDaniel & Associates Consultants Ltd.,
independent petroleum engineers.
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated July 19, 1994 appearing on page F-2 of Triton Energy Corporation's Annual
Report on Form 10-K for the year ended May 31, 1994. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Dallas, Texas
September 2, 1994
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated August 14, 1992 appearing on page F-3 of Triton Energy Corporation's
Annual Report on Form 10-K for the year ended May 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
KPMG Peat Marwick LLP
Dallas, Texas
September 2, 1994
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated August 14, 1992 appearing on page F-53 of Triton Energy Corporation's
Annual Report on Form 10-K for the year ended May 31, 1994. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
KPMG Peat Marwick
Brisbane, Australia
September 2, 1994
EXHIBIT 23.5
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
September 1, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
Gentlemen:
We hereby consent to (i) the incorporation by reference from Triton Energy
Corporation's (the Company) Annual Report on Form 10-K for the fiscal year
ended May 31, 1994, and inclusion in the Company's Registration Statement on
Form S-3 (the Form S-3) relating to an offering of the Company's Securities of
certain data from our report dated July 11, 1994, entitled "Appraisal Report on
Certain Properties in Columbia owned by Triton Colombia Incorporated as of May
31, 1994-SEC Case" and (ii) the specific references to our firm in "Experts" in
Form 10-K and Form S-3.
Very truly yours,
DeGOLYER and MacNAUGHTON
EXHIBIT 23.6
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
September 1, 1994
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
RE: Consent of Independent Petroleum Engineers
Dear Gentlemen:
We hereby consent to the incorporation by reference from Triton Energy
Corporation's (the "Company") Annual Report on Form 10-K for the fiscal year
ended May 31, 1994, and inclusion in the Company's Registration Statement on
Form S-3 (the "Form S-3") relating to an offering of the Company's securities,
of the estimates of the net proved reserves and future net cash inflows of the
Company prepared by our firm and our related calculations. We also hereby
consent to the specific references to our firm as "experts".
Sincerely,
McDANIEL & ASSOCIATES CONSULTANTS LTD.
/s/ B.H. Emslie
B.H. Emslie, Vice President
Calgary, Alberta, Canada
Dated: September 1, 1994
