<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 14, 1996.
REGISTRATION NO. 333-
333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TRITON ENERGY LIMITED TRITON ENERGY CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
CAYMAN ISLANDS DELAWARE
</TABLE>
(State or other jurisdiction of incorporation)
<TABLE>
<S> <C>
NONE 75-1151855
</TABLE>
(I.R.S. Employer Identification No.)
1311
(Primary Standard Industrial Classification Code Number)
<TABLE>
<S> <C>
CALEDONIAN HOUSE, 6688 NORTH CENTRAL EXPRESSWAY
MARY STREET, P.O. BOX 1043 SUITE 1400
GEORGE TOWN DALLAS, TEXAS 75206-9926
GRAND CAYMAN, CAYMAN ISLANDS (214) 691-5200
(809) 949-0050
</TABLE>
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
------------------------------
ROBERT B. HOLLAND, III, ESQ.
TRITON ENERGY CORPORATION
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.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3909
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
------------------------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF NUMBER OF SHARES AGGREGATE OFFERING AGGREGATE OFFERING
SECURITIES TO BE REGISTERED TO BE REGISTERED PRICE PER SHARE PRICE
<S> <C> <C> <C>
Class A Ordinary Shares, par value $.01 per share, of
Triton Energy Limited(1)............................... 36,233,372(2) Not Applicable Not Applicable
Class B Ordinary Shares, par value $.01 per share, of
Triton Energy Limited(1)............................... 9,058,343(3) -- --
Participating Preferred Stock, par value $.01 per share,
of Triton Energy Corporation........................... 905,835(3) -- --
Unit Depositary Shares, Each Representing One Equity
Unit Consisting of One Class B Ordinary Share, par
value $.01 per share, of Triton Energy Limited, and
1/10 of a Share of Participating Preferred Stock of
Triton Energy Corporation.............................. 9,058,343(3) -- --
<CAPTION>
AMOUNT OF
TITLE OF EACH CLASS OF REGISTRATION
SECURITIES TO BE REGISTERED FEE
<S> <C>
Class A Ordinary Shares, par value $.01 per share, of
Triton Energy Limited(1)............................... $670,817.15(4)
Class B Ordinary Shares, par value $.01 per share, of
Triton Energy Limited(1)............................... None
Participating Preferred Stock, par value $.01 per share,
of Triton Energy Corporation........................... None
Unit Depositary Shares, Each Representing One Equity
Unit Consisting of One Class B Ordinary Share, par
value $.01 per share, of Triton Energy Limited, and
1/10 of a Share of Participating Preferred Stock of
Triton Energy Corporation.............................. None
</TABLE>
(1) Includes Preference Share Purchase Rights (the "Rights"). The Rights are
associated with and trade with the Class A ordinary shares and Class B
ordinary shares contained in the Unit Depositary Shares. The value, if any,
attributable to the Rights is reflected in the market price of the Class A
ordinary shares and the Unit Depositary Shares containing the Class B
ordinary shares.
(2) The maximum number of Class A ordinary shares of Triton Energy Limited that
may be offered to the holders of common stock of Triton Energy Corporation
in the transaction.
(3) The maximum number of Class B ordinary shares of Triton Energy Limited,
Participating Preferred Stock of Triton Energy Corporation and Unit
Depositary Shares that may be offered to the holders of common stock of
Triton Energy Corporation in the transaction has been determined by assuming
that the maximum number of holders of the outstanding shares of Triton
Energy Corporation common stock elect to receive Unit Depositary Shares in
the Merger.
(4) The registration fee was calculated pursuant to Rule 457(f) as one
twenty-ninth of one percent of $53.69, the average of the high and low
prices per share of Triton Delaware Common Stock as quoted on the New York
Stock Exchange Composite Tape on February 12, 1996 multiplied by 36,233,372,
the maximum number of shares of Triton Delaware Common Stock which may be
exchanged for Class A Shares and Unit Depositary Shares in the Merger.
Pursuant to Rule 457(b), the required fee of $670,817.15 is reduced by the
fee of $383,684.39 previously paid under Rule 0-11 in connection with the
filing of preliminary proxy materials in connection with this transaction on
December 22, 1995, resulting in a net payment of $287,132.76.
----------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TRITON ENERGY LIMITED
TRITON ENERGY CORPORATION
CROSS REFERENCE SHEET
(FURNISHED PURSUANT TO ITEM 501(B) OF REGULATION S-K)
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION PROXY STATEMENT/PROSPECTUS
- ---------------------------------------------------------------- -----------------------------------------------------
<C> <S> <C>
A. INFORMATION ABOUT THE TRANSACTION
1. Forepart of Registration Statement and Outside Front
Cover Page of Prospectus............................ Cross Reference Sheet; and Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus.......................................... Inside Front Cover Page; Table of Contents; Available
Information; Incorporation of Certain Documents by
Reference
3. Risk Factors, Ratio of Earnings to Fixed Charges and
Other Information................................... Summary of Securities to be Received in Connection
with the Reorganization; Summary; Selected
Historical Financial and Oil and Gas Data; Summary
Pro Forma Financial Information; Risk Factors
4. Terms of the Transaction............................. Summary of Securities to be Received in Connection
with the Reorganization; Summary; The Special
Meeting; The Reorganization; Certain Tax
Considerations; Description of Authorized Shares of
Triton Cayman; Description of Triton Delaware
Preferred Stock; Comparison of Rights of
Stockholders
5. Pro Forma Financial Information...................... Pro Forma Financial Information
6. Material Contracts with the Company Being Acquired... The Reorganization
7. Additional Information Required for Reoffering by
Persons and Parties Deemed to Be Underwriters....... Not Applicable
8. Interests of Named Experts and Counsel............... Legal Opinions; Experts
9. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities...................... Not Applicable
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to S-3 Registrants.......... Available Information, Incorporation of Certain
Documents by Reference; Summary; The Special
Meeting; The Reorganization
11. Incorporation of Certain Information by Reference.... Incorporation of Certain Documents by Reference
12. Information with Respect to S-2 or S-3 Registrants... Not Applicable
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION PROXY STATEMENT/PROSPECTUS
- ---------------------------------------------------------------- -----------------------------------------------------
13. Incorporation of Certain Information by Reference.... Not Applicable
<C> <S> <C>
14. Information with Respect to Registrants Other Than
S-2 or S-3 Registrants.............................. Not Applicable
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to S-3 Companies............ Available Information; Incorporation of Certain
Documents by Reference; Summary; The Special
Meeting; The Reorganization
16. Information with Respect to S-2 or S-3 Companies..... Not Applicable
17. Information with Respect to Companies Other than S-3
or S-2 Companies.................................... Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents, or Authorizations
are to be Solicited................................. Outside Front Cover Page; Available Information;
Incorporation of Certain Documents by Reference;
Summary; Risk Factors; The Special Meeting; The
Reorganization
19. Information if Proxies, Consents, or Authorizations
are not to be Solicited or in an Exchange Offer..... Not Applicable
</TABLE>
<PAGE>
, 1996
Dear Stockholder:
The Board of Directors of Triton Energy Corporation ("Triton Delaware") is
calling a Special Meeting of Stockholders to be held on March 25, 1996 at 10:00
a.m., Dallas time, at which you will have the opportunity to consider the
reorganization of Triton Delaware. The Board of Directors is proposing that
Triton Energy Limited, a newly formed Cayman Islands company and a wholly owned
subsidiary of Triton Delaware ("Triton Cayman"), become the parent company of
Triton Delaware. As a result of the reorganization, Triton Cayman will carry on
the operations currently conducted by Triton Delaware.
Accompanying this letter is a Notice of Special Meeting of Stockholders
relating to the Special Meeting and a Proxy Statement/Joint Prospectus
describing in more detail the reorganization and related matters.
The Board of Directors believes that the reorganization will enable Triton
Delaware to create better returns for our stockholders. The establishment of a
Cayman Islands holding company will allow us to organize our international
business activities so that we will be able to benefit from more favorable
business, tax and financing environments than would be available to us if the
parent were a United States corporation. The creation of a Cayman Islands parent
corporation will minimize corporate income taxes because the Cayman Islands
generally imposes no corporate income taxes on foreign income. By contrast, the
U.S. tax system imposes corporate income tax on the worldwide income of United
States corporations. The U.S. system imposes significant unnecessary costs for
companies such as Triton Delaware that conduct substantially all of their
operations outside the United States. These costs will be minimized to the
extent that our operations -- for example, in the Malaysia-Thailand Joint
Development Area, which is subject to no local income tax for eight years -- are
conducted after the reorganization by Triton Cayman or its foreign subsidiaries.
Subject to the limited election described below, at the effective time of
the reorganization the holders of Triton Delaware Common Stock will become
holders of Triton Cayman's Class A ordinary shares. The Class A ordinary shares
will have substantially the same attributes as Triton Delaware's Common Stock
and will be listed on the New York Stock Exchange under the symbol "OIL." The
exchange of Triton Delaware Common Stock for Class A ordinary shares will be a
taxable transaction in which gain, if any (but not loss), will be recognized by
exchanging stockholders.
The Board has also provided an alternative under which stockholders may wish
to elect to receive an "Equity Unit." The Equity Unit will consist of one-tenth
of one share of Triton Delaware Preferred Stock and one Triton Cayman Class B
ordinary share. The Triton Delaware Preferred Stock will allow stockholders to
retain a direct interest in Triton Delaware that provides certain preferences.
The transaction has been structured with the intention that the receipt of the
Triton Delaware Preferred Stock component of the Equity Unit will not be
taxable. Consequently, stockholders electing to receive an Equity Unit will have
the opportunity to defer a substantial portion of any taxable gain that they
would otherwise recognize as a result of the reorganization by retaining a
direct interest in Triton Delaware. All stockholders are urged, however, to read
the accompanying Proxy Statement/Joint Prospectus and to consult with their own
tax and other advisors about their decision to accept Class A ordinary shares or
to elect to receive Equity Units and the reorganization generally.
Triton Delaware, based on advice from its financial advisors, believes that
the inherent value of each Equity Unit will be substantially equivalent to the
inherent value of one Class A ordinary share on the date of the Reorganization.
The Equity Units have been approved for trading on the New York Stock Exchange
under the symbol "OIL.B". The Equity Units will only be issued for up to 25% of
Triton Delaware's Common Stock, however, and therefore are expected to be less
liquid than the Class A ordinary shares. If the holders of less than 15% of
Triton Delaware's Common Stock elect to receive Equity Units, none will be
issued in order to avoid the expense and complication of creating and
maintaining the Equity Units.
<PAGE>
Triton Delaware's executive officers generally intend to elect to receive
Class A ordinary shares in the reorganization, except with respect to shares of
Triton Delaware Common Stock that have not been held long enough to qualify for
long-term capital gains tax treatment.
Please carefully read the accompanying Notice of Special Meeting of
Stockholders and Proxy Statement/Joint Prospectus for details of the
reorganization and related information.
It is important that your shares be represented regardless of whether you
plan to be present at the Special Meeting. Approval of the reorganization
requires the favorable vote of a majority of the outstanding shares. Please
complete, date and sign the enclosed proxy card and mail it promptly in the
enclosed return envelope. (No postage is required if mailed in the United
States.)
The Board of Directors of Triton Delaware unanimously has approved the
proposed reorganization and recommends that stockholders vote for the adoption
of the Agreement and Plan of Merger.
Thank you for your cooperation.
Sincerely,
Thomas G. Finck
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
<PAGE>
TRITON ENERGY CORPORATION
6688 NORTH CENTRAL EXPRESSWAY
SUITE 1400
DALLAS, TEXAS 75206-9926
------------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON MARCH 25, 1996
------------------------
To the Stockholders of
TRITON ENERGY CORPORATION
Notice is hereby given that a special meeting of stockholders of Triton
Energy Corporation, a Delaware corporation ("Triton Delaware"), will be held at
10:00 a.m., Dallas time, on March 25, 1996, at Triton Energy Corporation, 6688
North Central Expressway, 12th Floor, Dallas, Texas 75206 (or at any
adjournments or postponements thereof). The special meeting is being held to
consider and vote on a proposal to adopt the Agreement and Plan of Merger, a
copy of which is attached as Annex I to the accompanying Proxy Statement/Joint
Prospectus, pursuant to which Triton Energy Limited, a newly formed Cayman
Islands company and a wholly-owned subsidiary of Triton Delaware ("Triton
Cayman"), will become the parent holding company of Triton Delaware, as more
fully described in the accompanying Proxy Statement/Joint Prospectus. The
stockholders of Triton Delaware may also transact such other business as may be
properly brought before the special meeting or any adjournments or postponements
thereof.
Only holders of record of Triton Delaware Common Stock at the close of
business on February 20, 1996 are entitled to receive notice of, and to vote (or
to grant proxies to vote) at, the special meeting, or any adjournments or
postponements thereof. The special meeting may be adjourned from time to time
without notice other than announcement at the special meeting.
IT IS IMPORTANT THAT YOUR SHARES BE REPRESENTED REGARDLESS OF THE NUMBER OF
SHARES YOU MAY HOLD. WHETHER OR NOT YOU PLAN TO BE PRESENT AT THE SPECIAL
MEETING IN PERSON, PLEASE COMPLETE, DATE AND SIGN THE ENCLOSED PROXY CARD AND
MAIL IT PROMPTLY TO TRITON DELAWARE IN THE ENCLOSED RETURN ENVELOPE. NO POSTAGE
IS REQUIRED IF MAILED IN THE UNITED STATES. IF YOU RECEIVE MORE THAN ONE PROXY
CARD BECAUSE YOUR SHARES ARE REGISTERED IN DIFFERENT NAMES OR AT DIFFERENT
ADDRESSES, EACH SUCH PROXY CARD SHOULD BE SIGNED AND RETURNED TO ENSURE THAT ALL
OF YOUR SHARES WILL BE VOTED. THE PROXY CARD SHOULD BE SIGNED BY ALL REGISTERED
HOLDERS EXACTLY AS THE STOCK IS REGISTERED. IF YOU ATTEND THE SPECIAL MEETING
AND WISH TO VOTE IN PERSON, YOUR PROXY WILL NOT BE USED. PLEASE DO NOT SEND
CERTIFICATES FOR YOUR SHARES OF TRITON DELAWARE COMMON STOCK WITH YOUR PROXY
CARD.
This notice, the Proxy Statement/Joint Prospectus and the other materials
that are enclosed herewith are sent to you by order of the Board of Directors of
Triton Delaware.
By Order of the Board of Directors
Robert B. Holland, III
SECRETARY
Dallas, Texas
, 1996
<PAGE>
TRITON ENERGY CORPORATION
------------------
PROXY STATEMENT FOR SPECIAL MEETING OF STOCKHOLDERS
------------------------
TRITON ENERGY LIMITED
TRITON ENERGY CORPORATION
PROSPECTUS FOR
UP TO 36,233,372 CLASS A ORDINARY SHARES OF TRITON ENERGY LIMITED
UP TO 9,058,343 UNIT DEPOSITARY SHARES, EACH REPRESENTING
ONE EQUITY UNIT CONSISTING OF ONE CLASS B ORDINARY SHARE
OF TRITON ENERGY LIMITED AND 1/10 OF A SHARE OF
PARTICIPATING PREFERRED STOCK OF TRITON ENERGY CORPORATION
This Proxy Statement/Joint Prospectus ("Proxy Statement/Prospectus") is
being furnished to stockholders of Triton Energy Corporation, a Delaware
corporation ("Triton Delaware"), in connection with the solicitation of proxies
by the Board of Directors of Triton Delaware for use at the special meeting of
Triton Delaware stockholders (the "Special Meeting") to be held at Triton Energy
Corporation, 6688 North Central Expressway, 12th Floor, Dallas, Texas 75206 on
March 25, 1996 at 10:00 a.m., Dallas time (or at any adjournments or
postponements thereof). This Proxy Statement/Prospectus relates to the proposed
reorganization (the "Reorganization") pursuant to which Triton Energy Limited, a
newly formed Cayman Islands company and a wholly-owned subsidiary of Triton
Delaware ("Triton Cayman"), will become the parent holding company of Triton
Delaware through the merger (the "Merger") of TEL Merger Corp., a Delaware
corporation and a newly formed, wholly-owned subsidiary of Triton Cayman
("Sub"), with and into Triton Delaware. The Reorganization will be effected
pursuant to the Agreement and Plan of Merger, dated as of February 8, 1996 (the
"Merger Agreement"), among Triton Delaware, Triton Cayman and Sub. Upon
consummation of the Merger, each outstanding share of common stock, par value
$1.00 per share, of Triton Delaware ("Triton Delaware Common Stock") (other than
those shares held by Triton Delaware in its treasury and those shares with
respect to which an Equity Unit Election (as hereinafter defined) has been
properly made and not withdrawn, subject to the Equity Unit Limitation (as
hereinafter defined)) will be automatically converted into one class A ordinary
share, par value $.01 per share ("Class A Share"), of Triton Cayman.
In connection with the Merger, holders of not less than 15% but not more
than 25% of the outstanding shares of Triton Delaware Common Stock (the "Equity
Unit Limitation"), in the aggregate, may make an unconditional election (the
"Equity Unit Election") to receive an equity unit ("Equity Unit") consisting of
(i) one class B ordinary share, par value $.01 per share ("Class B Share"), of
Triton Cayman and (ii) one-tenth of one share of participating preferred stock,
par value $.01 per share, of Triton Delaware ("Triton Delaware Preferred
Stock"), for each share of Triton Delaware Common Stock owned of record by such
stockholder in lieu of such shares being automatically converted into Class A
Shares. Each such Class B Share and fraction of a share of Triton Delaware
Preferred Stock will be paired and after such pairing, such securities may only
be traded together as a unit and will not be separately transferable. The Equity
Units will be deposited with Chemical Mellon Shareholder Services, L.L.C. as
depositary (the "Depositary") in exchange for the issuance of Depositary Shares
(the "Unit Depositary Shares"), each representing one Equity Unit, receipts for
which ("Receipts") will be distributed to stockholders. See "Description of
Authorized Shares of Triton Cayman ," "Description of Receipts" and "Comparison
of Rights of Stockholders."
Triton Delaware Common Stock is currently listed on the New York Stock
Exchange (the "NYSE") under the symbol "OIL" and, immediately following the
Reorganization, the Class A Shares will be listed on the NYSE under the same
symbol. The last reported sale price for the Triton Delaware Common Stock on the
New York Stock Exchange Composite Transactions Tape on February 13, 1996 was
$52.50. Currently, there is no established public trading market for the Class A
Shares or the Unit Depositary Shares. The Unit Depositary Shares have been
approved for listing, subject to notice of issuance, on the NYSE.
FOR A DISCUSSION OF CERTAIN RISK FACTORS THAT SHOULD BE CONSIDERED IN
CONNECTION WITH THE REORGANIZATION, SEE "RISKS FACTORS," BEGINNING ON PAGE 24.
------------------------
This Proxy Statement/Prospectus and the form of proxy are first being mailed
to the stockholders of Triton Delaware on or about February 23, 1996.
--------------------------
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 PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROXY STATEMENT/PROSPECTUS IS FEBRUARY 14, 1996.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
AVAILABLE INFORMATION................................ 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...... 3
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN
PERSONS............................................. 4
SUMMARY OF SECURITIES TO BE RECEIVED IN CONNECTION
WITH THE REORGANIZATION............................. 5
SUMMARY.............................................. 10
Special Meeting.................................... 10
Triton Delaware.................................... 10
Triton Cayman...................................... 10
The Reorganization................................. 11
Recommendation of the Board of Directors........... 15
Vote Required for Adoption......................... 16
Comparison of Rights of Stockholders............... 17
Odd Lot Shares..................................... 17
Tax Considerations................................. 17
Rights of Dissenting Stockholders.................. 20
Accounting Treatment of the Reorganization......... 20
Risk Factors....................................... 20
Stock Exchange Listing............................. 20
Depositary and Exchange Agent...................... 20
SELECTED HISTORICAL FINANCIAL AND OIL AND GAS DATA... 21
SUMMARY PRO FORMA FINANCIAL INFORMATION.............. 23
RISK FACTORS......................................... 24
Certain Tax Consequences........................... 24
Absence of Prior Market............................ 24
No Assurance as to Trading Value................... 25
The Oil and Gas Industry Generally................. 25
Financial Position................................. 25
Environmental Matters.............................. 26
Risks of Foreign Operations........................ 26
Certain Factors Relating to Colombia............... 26
Regulatory Matter.................................. 27
THE SPECIAL MEETING.................................. 27
Special Meeting.................................... 27
Record Date........................................ 27
Vote Required for Adoption......................... 27
Proxies............................................ 28
Solicitation of Proxies............................ 28
Proposals of Stockholders.......................... 29
TRITON DELAWARE AND TRITON CAYMAN.................... 29
THE REORGANIZATION................................... 30
General............................................ 30
Background and Reasons for the Reorganization...... 30
The Merger Agreement............................... 31
Conditions to Consummation of the Reorganization... 32
Equity Unit Election............................... 32
Effective Time..................................... 33
Rights of Dissenting Stockholders.................. 33
Exchange of Share Certificates..................... 33
Odd-Lot Program.................................... 34
Stock Compensation Plans........................... 34
Shareholder Rights Plan............................ 34
Stock Exchange Listing............................. 35
Accounting Treatment of the Reorganization......... 35
Transfer of Assets................................. 35
CERTAIN TAX CONSIDERATIONS........................... 35
DESCRIPTION OF AUTHORIZED SHARES OF TRITON CAYMAN.... 43
Ordinary Shares; General........................... 43
<CAPTION>
PAGE
-----
<S> <C>
Voting and Other Rights............................ 44
Special Rights Upon the Occurrence of Certain
Events............................................ 45
Dividend Rights.................................... 46
Purchase of Equity Units........................... 47
Liquidation of Triton Delaware..................... 47
Liquidation of Triton Cayman....................... 48
Changes in Capitalization.......................... 49
Distributions...................................... 49
Stock Dividends.................................... 50
Reduction of Capital and Purchase of Shares........ 50
Transfer of Shares................................. 50
Preference Shares.................................. 51
DESCRIPTION OF TRITON DELAWARE PREFERRED STOCK....... 55
General............................................ 55
Dividends.......................................... 55
Liquidation Rights................................. 56
Purchase of Equity Units........................... 56
Voting Rights...................................... 58
Preemptive Rights.................................. 58
DESCRIPTION OF RECEIPTS.............................. 58
Receipts........................................... 58
Deposit and Withdrawal of Deposited Securities..... 59
Dividends, Other Distributions and Rights.......... 59
Record Dates....................................... 60
Voting of the Underlying Deposited Securities...... 60
Inspection of Transfer Books....................... 61
Reports and Notices................................ 61
Changes Affecting Deposited Class B Shares......... 61
Purchase of Equity Units........................... 62
Exchange of Receipts upon Conversion of Class B
Shares or Class C Shares.......................... 62
Resignation and Removal of Depositary.............. 62
Amendment and Termination of the Deposit
Agreement......................................... 62
Charges of Depositary.............................. 63
General............................................ 63
COMPARISON OF RIGHTS OF STOCKHOLDERS................. 64
Stockholder Approval of Business Combinations...... 64
Absence of Required Vote for Certain Mergers....... 65
Appraisal Rights................................... 65
Stockholder Consent to Action Without Meeting...... 66
Special Meetings of Stockholders................... 66
Distributions and Dividends; Repurchases and
Redemptions....................................... 66
Vacancies on Board of Directors.................... 66
Removal of Directors; Staggered Term of
Directors......................................... 66
Inspection of Books and Records.................... 67
Amendment of Charter............................... 67
Amendment of Bylaws................................ 67
Indemnification of Directors and Officers.......... 67
Limited Liability of Directors..................... 68
Stockholders' Suits................................ 68
MANAGEMENT OF TRITON CAYMAN.......................... 68
Committees of the Board of Directors............... 68
Executive Compensation............................. 69
LEGAL MATTERS........................................ 69
EXPERTS.............................................. 69
GLOSSARY OF DEFINED TERMS............................ 71
INDEX TO FINANCIAL STATEMENTS........................ F-1
AGREEMENT AND PLAN OF MERGER...............................Annex I
</TABLE>
2
<PAGE>
AVAILABLE INFORMATION
Triton Delaware 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 Triton Delaware 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 Citicorp 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. The Triton Delaware Common Stock is
listed on the NYSE. Reports, proxy statements and other information concerning
Triton Delaware may also be inspected and copied at the offices of such exchange
at 20 Broad Street, New York, New York 10005. In addition, reports, proxy
statements and other information concerning Triton Delaware can be inspected at
the offices of Triton Delaware, 6688 North Central Expressway, Suite 1400,
Dallas, Texas 75206-9926. Following the Reorganization, both Triton Delaware and
Triton Cayman will file such reports and other information under the Exchange
Act.
Triton Delaware and Triton Cayman have filed with the Commission a
Registration Statement on Form S-4 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Triton Delaware Preferred Stock, the Unit Depositary Shares, the Class A Shares
and the Class B Shares offered hereby. This Proxy Statement/Prospectus, which
constitutes a part of that Registration Statement, does not contain all the
information set forth in that Registration Statement and the exhibits relating
thereto. Statements made in this Proxy Statement/ Prospectus as to the contents
of any contract, agreement or other document are not necessarily complete; and
while Triton Delaware and Triton Cayman believe the descriptions of the material
provisions of such contracts, agreements and other documents contained in this
Proxy Statement/ 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.
Triton Cayman and Triton Delaware will also furnish the Depositary for the
Unit Depositary Shares with all notices of shareholder meetings and other
reports and communications that are made generally available to shareholders of
Triton Cayman and Triton Delaware. Such Depositary will, to the extent permitted
by law, arrange for the prompt transmittal to the holders of Unit Depositary
Shares of all notices, reports and communications provided by Triton Cayman and
Triton Delaware and will make such notices, reports and communications, together
with the governing instruments affecting the Class B Shares and the Triton
Delaware Preferred Stock and amendments thereto, available for inspection by
holders of Unit Depositary Shares at such Depositary's office, presently located
at Chemical Mellon Shareholder Services, L.L.C., Reorganization Department, 120
Broadway, 13th Floor, New York, New York 10271.
Upon completion of the Reorganization, the Class A Shares and the Unit
Depositary Shares will be listed on the NYSE. At the time of such listing, the
Triton Delaware Common Stock will be delisted and will no longer be registered
pursuant to Section 12 of the Exchange Act.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Triton Delaware hereby incorporates by reference in this Proxy
Statement/Prospectus the following documents previously filed by Triton Delaware
with the Commission pursuant to the Exchange Act: (i) Triton Delaware's Current
Report on Form 8-K dated August 24, 1995 that includes the restated consolidated
financial statements to reflect the aviation sales and services segment as
discontinued operations, (ii) Triton Delaware's Transition Report on Form 10-K
for the transition period
3
<PAGE>
from June 1, 1994 to December 31, 1994, (iii) Triton Delaware's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1995, June 30, 1995 and
September 30, 1995, and (iv) Triton Delaware's Current Reports on Form 8-K filed
June 2, 1995, June 8, 1995 and February 9, 1996.
Each document filed by Triton Delaware pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Proxy
Statement/Prospectus and prior to the termination of the offering of the
securities pursuant hereto shall be deemed to be incorporated by reference in
this Proxy Statement/Prospectus and to be a part of this Proxy
Statement/Prospectus from the date of filing of such document. Any statement
contained in this Proxy Statement/Prospectus or in a document incorporated or
deemed to be incorporated by reference in this Proxy Statement/Prospectus shall
be deemed to be modified or superseded for purposes of the Registration
Statement and this Proxy Statement/Prospectus to the extent that a statement
contained in this Proxy Statement/ Prospectus or in any subsequently filed
document that also is or is deemed to be incorporated by reference in this Proxy
Statement/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 Proxy
Statement/Prospectus.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. COPIES OF THE INCORPORATED
DOCUMENTS (OTHER THAN EXHIBITS TO SUCH DOCUMENTS, UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE THEREIN) WILL BE FURNISHED UPON REQUEST
WITHOUT CHARGE TO EACH PERSON TO WHOM THIS PROXY STATEMENT/PROSPECTUS IS
DELIVERED. WRITTEN OR TELEPHONE REQUESTS SHOULD BE DIRECTED TO TRITON ENERGY
CORPORATION, 6688 NORTH CENTRAL EXPRESSWAY, SUITE 1400, DALLAS, TEXAS
75206-9926, ATTENTION: INVESTOR RELATIONS, TELEPHONE (214) 691-5200. IN ORDER TO
ENSURE TIMELY DELIVERY OF THE INCORPORATED DOCUMENTS, ANY REQUEST SHOULD BE MADE
BY MARCH 18, 1996.
------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROXY STATEMENT/PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THIS PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION.
Neither delivery of this Proxy Statement/Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of Triton Delaware and Triton Cayman since the
date of this Proxy Statement/Prospectus.
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS
Triton Cayman is a Cayman Islands company, certain of its officers and
directors may be residents of various jurisdictions outside the United States
and its Cayman Islands counsel, W.S. Walker & Company, are residents of the
Cayman Islands. All or a substantial portion of the assets of Triton Cayman and
of such persons may be located outside the United States. As a result, it may be
difficult for investors to effect service of process within the United States
upon such persons or to enforce in United States courts judgments obtained
against such persons in United States courts and predicated upon the civil
liability provisions of the Securities Act. Notwithstanding the foregoing,
Triton Cayman has irrevocably agreed that it may be served with process with
respect to actions based on offers and sales of securities made hereby in the
United States by serving Robert B. Holland, III, c/o Triton Energy Corporation,
6688 North Central Expressway, Suite 1400, Dallas, Texas 75206-9926, its United
States agent appointed for that purpose. Triton Cayman has been advised by its
Cayman Islands counsel, W.S. Walker & Company, that there is doubt as to whether
Cayman Islands courts would enforce (a) judgments of United States courts
obtained in actions against such persons or Triton Cayman that are predicated
upon the civil liability provisions of the Securities Act or (b) in original
actions brought against Triton Cayman or such persons predicated upon the
Securities Act. There is no treaty in effect between the United States and the
Cayman Islands providing for such enforcement, and there are grounds upon which
Cayman Islands courts may not enforce judgments of United States courts. Certain
remedies available under the United States federal securities laws would not be
allowed in Cayman Islands courts as contrary to that nation's policy.
4
<PAGE>
SUMMARY OF SECURITIES TO BE RECEIVED
IN CONNECTION WITH THE REORGANIZATION
THE FOLLOWING IS A SUMMARY OF THE SECURITIES TO BE RECEIVED IN THE
REORGANIZATION BY HOLDERS OF TRITON DELAWARE COMMON STOCK (I) WHO DO NOT MAKE AN
EQUITY UNIT ELECTION AND (II) WHO MAKE AN EQUITY UNIT ELECTION. THIS SUMMARY IS
QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED INFORMATION CONTAINED IN THIS
PROXY STATEMENT/PROSPECTUS AND THE ANNEX HERETO. UNLESS OTHERWISE DEFINED
HEREIN, CAPITALIZED TERMS USED IN THIS SUMMARY HAVE THE RESPECTIVE MEANINGS
ASCRIBED TO THEM ELSEWHERE IN THIS PROXY STATEMENT/PROSPECTUS. SEE "GLOSSARY OF
DEFINED TERMS." STOCKHOLDERS ARE URGED TO READ CAREFULLY THIS PROXY
STATEMENT/PROSPECTUS AND THE ANNEX HERETO IN THEIR ENTIRETY.
<TABLE>
<CAPTION>
NO ELECTION BY ELECTION BY TRITON DELAWARE
TRITON DELAWARE STOCKHOLDER STOCKHOLDER TO RECEIVE EQUITY UNITS
----------------------------------------- -----------------------------------------
<S> <C> <C>
SECURITY RECEIVED IN Each share of Triton Delaware Common Each share of Triton Delaware Common
EXCHANGE FOR TRITON Stock will be automatically converted Stock will be exchanged for an Equity
DELAWARE COMMON into one Class A Share of Triton Cayman. Unit comprised of (i) one Class B Share
STOCK IN THE MERGER of Triton Cayman and (ii) one-tenth of
one share of Triton Delaware Preferred
Stock, which securities will be paired
and after such pairing may only be trad-
ed together as a unit and will not be
separately transferable.
TAX CONSEQUENCES The receipt of Class A Shares in ex- Special tax counsel to Triton Delaware
change for shares of Triton Delaware are of the opinion that it is more likely
Common Stock will be a taxable than not that the shares of Triton
transaction to the stockholder in which Delaware Preferred Stock will be treated
gain, if any (but not loss), will be as stock of Triton Delaware and that the
recognized. See "Certain Tax receipt of shares of Triton Delaware Pre-
Considerations." ferred Stock will not be a taxable
transaction. However, in view of the
absence of any authority dealing with
transactions similar to the Re-
organization or securities of a type
similar to the Equity Units, no as-
surance can be given that the Internal
Revenue Service (the "IRS") or the courts
will agree. In any event, the receipt of
Class B Shares in exchange for shares of
Triton Delaware Common Stock will be a
taxable transaction to the stockholder in
which gain, if any (but not loss), will
be recognized. See "Certain Tax
Considerations."
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
NO ELECTION BY ELECTION BY TRITON DELAWARE
TRITON DELAWARE STOCKHOLDER STOCKHOLDER TO RECEIVE EQUITY UNITS
----------------------------------------- -----------------------------------------
ELECTION PROCEDURE As of the Effective Time of the Merger, Properly complete and sign the Form of
stockholders who do not make an Equity Election accompanying this Proxy
Unit Election will automatically become Statement/Prospectus. Such form, together
owners of the Class A Shares without with certificates for the shares of
taking any action. Triton Delaware Common Stock to which
such form relates, duly endorsed in blank
or otherwise acceptable for transfer on
the books of Triton Delaware must be
received by the Exchange Agent by 5:00
p.m., New York City time, on the business
day next preceding the date of the
Special Meeting.
<S> <C> <C>
PRORATION; MINIMUM ELECTION Not applicable. If the number of Electing Shares exceeds
NUMBER 25% of the number of shares of Triton
Delaware Common Stock outstanding
immediately prior to the effective time
of the Merger (the "Maximum Election
Number"), then the aggregate number of
Electing Shares to be exchanged for Eq-
uity Units in the Merger in connection
with any Equity Unit Election will be
reduced by multiplying the number of
Electing Shares covered by such Equity
Unit Election by a proration factor (the
"Proration Factor") determined by
dividing the Maximum Election Number by
the total number of Electing Shares. The
number of Electing Shares covered by each
Equity Unit Election which will be
exchanged for Equity Units will be that
number which results from multiplying the
number of such Electing Shares by the
Proration Factor. Electing Shares not
exchanged for Equity Units as a result of
proration will instead be automatically
converted into Class A Shares. In the
event that the number of Electing Shares
is less than 15% of the number of shares
of Triton Delaware Common Stock out-
standing immediately prior to the Merger,
no Equity Units will be issued and
Electing Shares will be automatically
converted into Class A Shares.
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
NO ELECTION BY ELECTION BY TRITON DELAWARE
TRITON DELAWARE STOCKHOLDER STOCKHOLDER TO RECEIVE EQUITY UNITS
----------------------------------------- -----------------------------------------
DIVIDENDS Holders of Class A Shares will be Holders of Equity Units will be entitled
entitled to receive, at any time, such to receive, if declared by the Board of
dividends as are declared by the Board of Directors of Triton Delaware or Triton
Directors of Triton Cayman. Aggregate Cayman, as the case may be, (a) dividends
dividends declared on one Class A Share on the Triton Delaware Preferred Stock
are expected to be equivalent to the when the Board of Directors declares a
aggregate dividends, if any, declared and dividend on Triton Delaware's common
paid on the securities included in an Eq- stock outstanding after the Merger, such
uity Unit, considered as a whole. that the aggregate amount of the
dividends declared with respect to the
Triton Delaware Preferred Stock shall be
a portion of the aggregate amount of the
dividends declared with respect to the
Triton Delaware Preferred Stock and the
common stock equal to the percentage of
shares of Triton Delaware Common Stock
that receive Equity Units in the Merger,
subject to certain adjustments and (b)
dividends on the Class B Shares in such
amounts as the Board of Directors of
Triton Cayman may determine, subject to
certain preferential rights of the
holders of the Class A Shares.
<S> <C> <C>
REDEMPTION The Class A Shares are not subject to The shares of Triton Delaware Preferred
redemption. Stock are not subject to redemption
except pursuant to the purchase right
described below.
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
NO ELECTION BY ELECTION BY TRITON DELAWARE
TRITON DELAWARE STOCKHOLDER STOCKHOLDER TO RECEIVE EQUITY UNITS
----------------------------------------- -----------------------------------------
PURCHASE RIGHT Not applicable. The Equity Units are subject to purchase
by Triton Cayman or Triton Delaware, in
whole or in part, at any time on or after
the third anniversary of the Effective
Date or by Triton Cayman at any time
immediately prior to the date on which a
sale or other disposition of the stock of
Triton Delaware is consummated. The
purchase price for the Equity Units will
generally be equal to the greater of .95
of a Class A Share and the fair market
value of an Equity Unit, payable in cash
or, in the case of a purchase by Triton
Cayman, in ordinary shares. Neither
Triton Cayman nor Triton Delaware can
exercise its option to purchase the
Equity Units in certain circumstances,
including in the event of the bankruptcy
or insolvency of Triton Delaware.
<S> <C> <C>
LIQUIDATION Upon the liquidation of Triton Cayman, Upon the liquidation of Triton Delaware,
holders of Class A Shares are entitled to a holder of one-tenth of one share of
receive an amount per share equal to Triton Delaware Preferred Stock is
certain payments made with respect to entitled to receive a liquidation
one-tenth of one share of Triton Delaware preference equal to the fair market value
Preferred Stock and will thereafter par- of one-tenth of one share of Triton
ticipate in the assets of Triton Cayman Delaware Preferred Stock at the Effective
pari passu with the holders of any other Time, which will be determined by Triton
class of Ordinary Shares outstanding. Delaware upon the advice of its financial
advisors at the Effective Time, and will
share thereafter in any other
distribution of assets by Triton Del-
aware with the holders of the common
stock of Triton Delaware. Upon the
liquidation of Triton Cayman, after
payment to holders of Class A Shares of
amounts equal to certain payments made
with respect to the Triton Delaware
Preferred Stock, holders of Class B
Shares are entitled to participate in the
assets of Triton Cayman pari passu with
the holders of any other class of or-
dinary shares outstanding.
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
NO ELECTION BY ELECTION BY TRITON DELAWARE
TRITON DELAWARE STOCKHOLDER STOCKHOLDER TO RECEIVE EQUITY UNITS
----------------------------------------- -----------------------------------------
VOTING RIGHTS One vote per Class A Share with respect One vote per Class B Share with respect
to matters submitted to the shareholders to matters submitted to the shareholders
of Triton Cayman. of Triton Cayman, subject to certain
special voting rights under certain
circumstances. In addition, each share of
Triton Delaware Preferred Stock will be
entitled to two votes per share (and each
holder of an Equity Unit will therefore
be entitled to 1/5 of one vote per unit)
and certain other voting rights with
respect to matters submitted to the
stockholders of Triton Delaware.
<S> <C> <C>
STOCK EXCHANGE LISTING; NYSE The Equity Units will be listed on the
LIQUIDITY NYSE. Triton Delaware expects that
because the number of Equity Units will
be, at most, one-third the number of
Class A Shares issued upon consummation
of the Merger, the trading market for the
Equity Units will be less liquid.
</TABLE>
9
<PAGE>
SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE DETAILED
INFORMATION APPEARING ELSEWHERE IN THIS PROXY STATEMENT/PROSPECTUS, INCLUDING
THE ANNEX, AND IN THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE. CERTAIN
CAPITALIZED TERMS USED IN THIS SUMMARY ARE DEFINED ELSEWHERE IN THIS PROXY
STATEMENT/PROSPECTUS. SEE "GLOSSARY OF DEFINED TERMS."
<TABLE>
<S> <C>
SPECIAL MEETING
TIME, DATE, PLACE A Special Meeting of the Triton Delaware stockholders
AND PURPOSE........ will be held at 10:00 a.m., Dallas time, on March 25,
1996, at Triton Energy Corporation, 6688 North Central
Expressway, 12th Floor, Dallas, Texas 75206 (or any
adjournments or postponements thereof) to consider and
vote on the proposal to adopt the Merger Agreement and
any other matters that may properly come before such
meeting. The presence, in person or by proxy, of the
stockholders holding a majority of the outstanding
shares of Triton Delaware Common Stock entitled to vote
at the Special Meeting will constitute a quorum. See
"The Special Meeting."
RECORD DATE......... Only Triton Delaware stockholders of record at the close
of business on February 20, 1996, as shown on Triton
Delaware's records, will be entitled to vote, or to
grant proxies to vote, at the Special Meeting. See "The
Special Meeting -- Record Date."
TRITON DELAWARE....... Triton Delaware is an international oil and gas
exploration company primarily engaged in exploration and
production through subsidiaries and affiliates. Triton
Delaware's principal properties and operations are
located in Colombia and Malaysia-Thailand. Triton
Delaware also has oil and gas interests in other Latin
American and Asian countries, Europe, Australia and
North America. Triton Delaware's principal offices are
located at 6688 North Central Expressway, Suite 1400,
Dallas, Texas 75206-9926. Triton Delaware's telephone
number is (214) 691-5200. See "Triton Delaware and
Triton Cayman."
TRITON CAYMAN......... Triton Cayman is a newly formed Cayman Islands company
and a wholly-owned subsidiary of Triton Delaware. Triton
Cayman was formed to become the parent holding company
of Triton Delaware. All of the capital stock of Triton
Cayman is currently held by Triton Delaware. After the
consummation of the Reorganization, Triton Delaware will
become a subsidiary of Triton Cayman, and Triton Cayman
will continue to conduct the businesses (through
subsidiaries and affiliates) in which Triton Delaware is
now engaged. Triton Cayman's principal offices are
located at Caledonian House, Mary Street, P.O. Box 1043,
George Town, Grand Cayman, Cayman Islands. Triton
Cayman's telephone number is (809) 949-0050. Triton
Cayman has a newly formed, wholly-owned subsidiary, Sub,
specifically to effect the Reorganization. See "Triton
Delaware and Triton Cayman."
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
THE REORGANIZATION
GENERAL............. The Board of Directors of Triton Delaware has
unanimously approved, and recommends that the
stockholders of Triton Delaware adopt, a proposed
corporate reorganization pursuant to which Triton
Cayman, a Cayman Islands company, will become the parent
holding company of Triton Delaware. It is proposed that
the Reorganization be effected pursuant to the Merger
Agreement, a copy of which is attached hereto as Annex I
and the terms of which are incorporated herein by
reference. After the consummation of the Reorganization,
Triton Cayman will continue to conduct the businesses
(through subsidiaries and affiliates) in which Triton
Delaware is now engaged and substantially all of the
businesses or subsidiaries of Triton Delaware located
outside of the United States, other than Triton
Delaware's interests in the Cusiana and Cupiagua fields
in Colombia and interests in Argentina, will be
transferred to Triton Cayman. The relative voting rights
of Triton Delaware stockholders as shareholders of
Triton Cayman will not change as a result of the
Reorganization. See "The Reorganization," "Description
of Authorized Shares of Triton Cayman -- Voting and
Other Rights," "-- Special Rights Upon the Occurrence of
Certain Events", "Comparison of Rights of Stockholders"
and the Pro Forma Consolidated Condensed Financial
Statements, included elsewhere herein.
REASONS FOR THE
REORGANIZATION..... The Board of Directors of Triton Delaware believes that
the establishment of a Cayman Islands holding company
for Triton Delaware and its subsidiaries will allow
Triton Delaware to organize its international and United
States business activities to take maximum advantage of
business, tax and financing environments which are more
favorable than those available domestically. In
particular, the Board of Directors of Triton Delaware is
recommending the Reorganization for the following
reasons: (a) the creation of a Cayman Islands parent
corporation will reduce corporate income taxes because,
unlike the U.S. tax system which imposes corporate
income tax on the worldwide income of United States
corporations, the Cayman Islands generally imposes no
corporate income taxes on foreign income. Income taxes
will therefore be reduced to the extent operations, for
example, in the Malaysia-Thailand Joint Development
Area, are conducted after the Reorganization by Triton
Cayman or its foreign subsidiaries; (b) the
Reorganization may, in certain circumstances, have a
favorable effect on Triton Cayman's ability to sell
assets or raise additional capital in the future; and
(c) a holding company structure in the form proposed by
the Reorganization will provide greater management
flexibility and control, as well as a more suitable
corporate structure for expansion of its current
business and future acquisitions and diversification op-
portunities.
</TABLE>
11
<PAGE>
<TABLE>
<S> <C>
In determining to recommend the Reorganization, the
Board consulted with Triton Delaware's management, its
financial advisors, Lehman Brothers Inc. ("Lehman") and
J.P. Morgan Securities Inc. ("J.P. Morgan"), and its
legal advisors and considered a number of factors,
including the opinions of its financial advisors that,
on the date of such opinions, the inherent values of a
Class A Share and an Equity Unit are substantially
equivalent, as well as the Board's desire to afford
stockholders electing to receive Equity Units the oppor-
tunity to defer a substantial portion of their taxable
gain. As described in "Certain Tax Considerations," in
the opinion of special tax counsel, while no assurance
can be given, it is more likely than not that the
receipt of the shares of Triton Delaware Preferred Stock
by stockholders who elect to receive Equity Units will
not be a taxable transaction. See "The Reorganization --
Background and Reasons for the Reorganization" and
"Certain Tax Considerations."
THE MERGER.......... The Reorganization will be accomplished through the
merger of Sub with and into Triton Delaware, which will
be the surviving corporation in the Merger, at which
time each outstanding share of Triton Delaware Common
Stock (other than shares of Triton Delaware Common Stock
held by Triton Delaware in its treasury and other than
Electing Shares (as hereinafter defined), subject to the
Equity Unit Limitation) will be automatically converted
into one Class A Share. As is further described in
"Equity Unit Election" below, each share of Triton
Delaware Common Stock (an "Electing Share") with respect
to which an election to receive one Equity Unit has been
properly made by the holder thereof and not withdrawn
will be exchanged for one Equity Unit; provided that the
maximum number (the "Maximum Election Number") of shares
of Triton Delaware Common Stock with respect to which
Equity Unit Elections can be made shall be 25% of the
number of shares of Triton Delaware Common Stock
outstanding immediately prior to the Effective Time;
provided further that the minimum number (the "Minimum
Election Number") of shares of Triton Delaware Common
Stock with respect to which Equity Unit Elections can be
made shall be 15% of the number of shares of Triton
Delaware Common Stock outstanding immediately prior to
the Effective Time (such limitations, the "Equity Unit
Limitation"). In connection with the Merger, each
outstanding share of 5% convertible preferred stock of
Triton Delaware (the "Convertible Preferred Stock") will
be automatically converted into one 5% convertible
preference share of Triton Cayman (the "Convertible
Preference Shares"), subject to dissenters' appraisal
rights. See "The Reorganization -- The Merger
Agreement," "The Reorganization -- Equity Unit Election"
and "Description of Authorized Shares of Triton Cayman."
</TABLE>
12
<PAGE>
<TABLE>
<S> <C>
EFFECTIVE TIME...... If the Merger Agreement is adopted by the stockholders
of Triton Delaware and not terminated by the Board of
Directors of Triton Cayman, the Reorganization will
become effective (the "Effective Time") at the close of
business on the date that an appropriate certificate of
merger is filed with the Delaware Secretary of State as
required by Delaware law or at such later time as is
specified in such certificate of merger. Triton Delaware
anticipates that the Reorganization will become
effective promptly following the Special Meeting. See
"The Reorganization -- Effective Time."
EQUITY UNIT Subject to the Equity Unit Limitation, record holders of
ELECTION........... Triton Delaware Common Stock will be entitled to make an
unconditional election (an "Equity Unit Election") on or
prior to the Election Date (as defined below) to receive
Equity Units in exchange for any or all shares of Triton
Delaware Common Stock owned of record by such holders in
lieu of such shares being automatically converted into
Class A Shares upon consummation of the Reorganization.
If the number of Electing Shares exceeds the Maximum
Election Number, then the aggregate number of Electing
Shares to be exchanged for Equity Units in the Merger in
connection with any Equity Unit Election will be reduced
by multiplying the number of Electing Shares covered by
such Equity Unit Election by a proration factor (the
"Proration Factor") determined by dividing the Maximum
Election Number by the total number of Electing Shares.
The number of Electing Shares covered by each Equity
Unit Election which will be exchanged for Equity Units
will be that number which results from multiplying the
number of such Electing Shares by the Proration Factor.
Electing Shares not exchanged for Equity Units as a
result of proration will instead be automatically
converted into Class A Shares on the basis described
above under "The Merger." In the event that the number
of Electing Shares is less than the Minimum Election
Number, no Equity Units will be issued and Electing
Shares will be automatically converted into Class A
Shares on the basis described above under "The Merger."
Holders of Triton Delaware Common Stock electing to
receive Equity Units in exchange for all or a portion of
their Triton Delaware Common Stock must properly
complete and sign the Form of Election ("Form of
Election") accompanying this Proxy Statement/Prospectus,
and such form, together with certificates for the shares
of Triton Delaware Common Stock to which such form
relates, duly endorsed in blank or otherwise in form
acceptable for transfer on the books of Triton Delaware,
must be received by the Exchange Agent, by 5:00 p.m.,
New York City time, on the business day next preceding
the date of the Special Meeting (the "Election Date").
See "The Reorganization -- Equity Unit Election."
</TABLE>
13
<PAGE>
DIVIDENDS........... Aggregate dividends declared and paid on one Class A
Share are expected to be equivalent to the aggregate
dividends declared and paid on the securities included
in one Equity Unit. Holders of Equity Units will be
entitled to receive, if declared by the Board of
Directors of Triton Delaware or Triton Cayman, as the
case may be, (a) dividends on the shares of Triton
Delaware Preferred Stock when the Board of Directors de-
clares a dividend on the common stock of Triton Delaware
outstanding after the Merger, such that the aggregate
amount of the dividends declared with respect to the
Triton Delaware Preferred Stock shall be a portion of
the aggregate amount of the dividends declared with
respect to the Triton Delaware Preferred Stock and the
common stock equal to the percentage of shares of Triton
Delaware Common Stock that receive Equity Units in the
Merger, subject to certain adjustments and (b) dividends
on the Class B Ordinary Shares in such amounts as the
Board of Directors of Triton Cayman may determine,
subject to certain preferences of the holders of the
Class A Shares contained in the Articles of Association.
Holders of Class A Shares will be entitled to receive,
at any time, such dividends as are declared by the Board
of Directors of Triton Cayman. At the time of the
Reorganization, Triton Cayman and Triton Delaware will
be parties to certain indentures which contain covenants
that will restrict the ability of Triton Cayman and
Triton Delaware to pay dividends. Triton Cayman and
Triton Delaware currently intend to retain earnings for
use in their respective businesses and the financing of
their respective capital requirements. The payment of
any future cash dividends on the Triton Delaware
Preferred Stock and the Class A Shares and Class B
Shares (collectively, the "Ordinary Shares") is
necessarily dependent upon the earnings and financial
needs of Triton Delaware and Triton Cayman,
respectively, along with applicable legal and contrac-
tual restrictions. See "Description of Authorized Shares
of Triton Cayman -- Dividend Rights" and "Description of
Triton Delaware Preferred Stock -- Dividends."
14
<PAGE>
<TABLE>
<S> <C>
PURCHASE RIGHT...... The Equity Units are subject to purchase by Triton
Cayman or Triton Delaware, in whole or in part, at any
time on or after the third anniversary of the Effective
Time, or by Triton Cayman at any time immediately prior
to the date on which a sale or other disposition of the
stock of Triton Delaware is consummated. The purchase
price for the Equity Units will generally be equal to
the greater of .95 of a Class A Share and the fair
market value of an Equity Unit, payable in cash or, in
the case of a purchase by Triton Cayman, Ordinary
Shares. Neither Triton Cayman nor Triton Delaware can
exercise its option to purchase the Equity Units in
certain circumstances, including in the event of the
bankruptcy or insolvency of Triton Delaware. See
"Description of Triton Delaware Preferred Stock --
Purchase of Equity Units." For a discussion of the
consequences to the holders of Ordinary Shares of the
purchase of the Equity Units, see "Description of
Authorized Shares of Triton Cayman -- Purchase of Equity
Units."
LIQUIDATION......... Upon the liquidation of Triton Cayman, holders of Class
A Shares are entitled to receive an amount per share
equal to certain payments made with respect to one-tenth
of one share of Triton Delaware Preferred Stock and
thereafter the holders of Class A Shares and Class B
Shares will participate in the assets of Triton Cayman
pari passu with the holders of any other class of
ordinary shares outstanding. Upon the liquidation of
Triton Delaware, a holder of one-tenth of one share of
Triton Delaware Preferred Stock is entitled to receive a
liquidation preference equal to the fair market value of
one-tenth of one share of Triton Delaware Preferred
Stock at the Effective Time, which will be determined by
Triton Delaware upon the advice of its financial
advisors at the Effective Time, and will share
thereafter in any other distribution of assets by Triton
Delaware with the holders of the common stock of Triton
Delaware.
VOTING RIGHTS....... Each Ordinary Share will be entitled to one vote in the
affairs of Triton Cayman, subject to certain special
voting rights of the Class B Shares under certain
circumstances. In addition, each share of Triton
Delaware Preferred Stock will be entitled to two votes
per share in all matters submitted to a vote of
stockholders of Triton Delaware (and each holder of an
Equity Unit will therefore be entitled to 1/5 of one
vote per unit) and certain other voting rights. See
"Description of Authorized Shares of Triton Cayman --
Voting and Other Rights" and "-- Special Rights Upon the
Occurrence of Certain Events" and "Description of Triton
Delaware Preferred Stock -- Voting Rights."
RECOMMENDATION OF THE
BOARD OF
DIRECTORS............ THE BOARD OF DIRECTORS OF TRITON DELAWARE HAS
UNANIMOUSLY APPROVED THE PROPOSED REORGANIZATION AND THE
MERGER AGREEMENT AND RECOMMENDS THAT STOCKHOLDERS VOTE
FOR THE PROPOSAL TO ADOPT THE MERGER AGREEMENT.
</TABLE>
15
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<TABLE>
<S> <C>
VOTE REQUIRED FOR Adoption of the Merger Agreement requires the
ADOPTION............. affirmative vote of the stockholders of Triton Delaware
who hold a majority of the outstanding shares of Triton
Delaware Common Stock. Abstentions and broker
"non-votes" will be treated as votes against the
proposal to adopt the Merger Agreement. As of February
9, 1996, the most recent practicable date prior to the
date of this Proxy Statement/Prospectus, there were
35,933,372 shares of Triton Delaware Common Stock out-
standing and entitled to vote. In addition, as of
January 31, 1996, the directors and executive officers
of Triton Delaware and affiliates of such persons
directly owned, in the aggregate, approximately 200,000
shares (less than 1%) of the total number of shares of
Triton Delaware Common Stock outstanding and have
indicated their intention to vote such shares in favor
of the proposal to adopt the Merger Agreement. See "The
Special Meeting -- Vote Required for Adoption."
PROXIES............. Each Triton Delaware stockholder as of the record date
will receive a Proxy Card (the "Proxy Card"). A
stockholder of Triton Delaware may grant a proxy to vote
for or against, or to abstain from voting on, the
proposal to adopt the Merger Agreement by marking the
Proxy Card appropriately, executing it in the space
provided, and, in the case of holders of Triton Delaware
Common Stock appearing on the stock records of Triton
Delaware, returning it to Triton Delaware. Triton
Delaware stockholders who hold their Triton Delaware
Common Stock in the name of a bank, broker or other
nominee should follow the instructions provided by their
bank, broker or nominee on voting their shares.
To be effective, a Proxy Card must be received at or
prior to the Special Meeting. Any properly executed
proxy will be voted in accordance with the specification
indicated on such Proxy Card. A properly executed and
returned Proxy Card in which no specification is made
will be voted FOR the proposal to adopt the Merger
Agreement.
If any other matters are properly presented at the
Special Meeting for consideration, including
consideration of a motion to adjourn the Special Meeting
to another time and/or place (including adjournments for
the purpose of soliciting additional proxies), the
persons named in the Proxy Card and acting thereunder
will have the discretion to vote on such matters in
accordance with their best judgment. See "The Special
Meeting -- Proxies."
</TABLE>
16
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<TABLE>
<S> <C>
REVOCATION.......... In the case of holders of Triton Delaware Common Stock
appearing on the stock records of Triton Delaware, a
Proxy Card may be revoked at any time prior to its
exercise by (a) giving written notice of such revocation
to Triton Delaware, (b) appearing and voting in person
at the Special Meeting, or (c) properly completing and
executing a later-dated proxy and delivering it to
Triton Delaware at or before the Special Meeting.
Presence without voting at the Special Meeting will not
automatically revoke a proxy, and any revocation during
the meeting will not affect votes previously taken.
Triton Delaware stockholders who hold their Triton Dela-
ware Common Stock in the name of a bank, broker or other
nominee should follow the instructions provided by their
bank, broker or nominee in revoking their previously
voted shares. See "The Special Meeting -- Proxies --
Revocation."
COMPARISON OF RIGHTS
OF
STOCKHOLDERS......... The principal attributes of the Triton Delaware Common
Stock and the Ordinary Shares will be similar. However,
there are certain differences between the rights of
stockholders under Delaware law and Cayman Islands law.
In addition, there are differences between Triton
Delaware's Certificate of Incorporation and Bylaws and
Triton Cayman's Articles of Association and Memorandum
of Association. See "Comparison of Rights of
Stockholders."
ODD LOT SHARES........ Each holder of Triton Delaware Common Stock who holds
fewer than 100 shares thereof prior to the Merger may
elect to participate in the Odd-Lot Program pursuant to
which such holder may have Chemical Mellon Shareholder
Services, L.L.C. (the "Exchange Agent") sell all, but
not less than all, of such holder's shares of Triton
Delaware Common Stock. See "The Reorganization --
Odd-Lot Program." Triton Delaware expects that the
proceeds of such sales will be distributed shortly after
such sales. The Odd Lot Program is not contingent on
adoption of the Merger Agreement or consummation of the
Merger.
TAX CONSIDERATIONS.... The following is a brief summary of the United States
federal income tax consequences of the Reorganization
and is not intended to be, nor should it be construed to
be, advice to any particular stockholder of Triton
Delaware. Stockholders of Triton Delaware should consult
their own tax advisors with respect to their particular
circumstances. A more detailed summary of certain tax
consequences of the Reorganization is set out under
"Certain Tax Considerations."
The discussion contained in this Proxy
Statement/Prospectus is based on the law in effect as of
the date of this Proxy Statement/Prospectus. Triton
Delaware will receive opinions at the Effective Time
from Special Tax Counsel reaffirming as of such date
certain conclusions reached in this Proxy State-
ment/Prospectus.
</TABLE>
17
<PAGE>
<TABLE>
<S> <C>
There are no regulations, published rulings or judicial
decisions directly on point with respect to certain
aspects of the Reorganization and the securities to be
issued pursuant thereto. Accordingly, Special Tax
Counsel are unable to reach an unqualified conclusion on
certain matters as indicated below. Opinions of counsel
are not binding upon either the IRS or the courts.
Triton Delaware does not intend to request a ruling from
the IRS with respect to the Reorganization. Stockholders
are urged to consult their own tax advisors as to the
particular tax consequences to them of the Reorganiza-
tion.
The receipt of Class A Shares by U.S. stockholders in
exchange for Triton Delaware Common Stock will be a
taxable transaction. Stockholders will recognize gain,
if any (but not loss), in an amount equal to the excess
of the fair market value of the Class A Shares received
in the Reorganization over their tax basis in the Triton
Delaware Common Stock exchanged therefor.
Special Tax Counsel are of the opinion that it is more
likely than not that the shares of Triton Delaware
Preferred Stock will be treated as stock of Triton
Delaware and that the receipt of such shares of Triton
Delaware Preferred Stock in exchange for Triton Delaware
Common Stock will not be a taxable transaction. In such
case, the basis of the shares of Triton Delaware
Preferred Stock will be the same as the Triton Delaware
Common Stock treated as exchanged therefor. However, in
view of the absence of any authority dealing with
transactions similar to the Reorganization or securities
of a type similar to the Equity Units, there is
significant uncertainty with respect to such conclusion
and no assurance can be given that the IRS or the courts
will agree. In any event, the receipt of Class B Shares
by U.S. stockholders in exchange for Triton Delaware
Common Stock will be a taxable transaction. Stockholders
will recognize gain, if any (but not loss), in an amount
equal to the excess of the fair market value of the
Class B Shares received in the Reorganization over their
tax basis in the Triton Delaware Common Stock treated as
exchanged therefor. Triton Delaware believes, based upon
the advice of Lehman and J.P. Morgan, that, as of
February 14, 1996, the fair market value of a Class B
Share would be approximately $3.50 and the fair market
value of one-tenth of a share of Triton Delaware
Preferred Stock would be approximately $49.00 based upon
the closing price of the Triton Delaware Common Stock on
the NYSE Composite Transactions Tape on February 13,
1996 of $52.50. Triton Delaware will provide
stockholders making an Equity Unit Election with
confirmation of its estimate (after consultation with
Lehman and J.P. Morgan) of the fair market value of
one-tenth of one share of Triton Delaware Preferred
Stock and the Class B Share as of the Effective Time of
the Reorganization. However, the IRS is not bound by
such valuations and no assurance can be given that the
IRS will agree with such valuations.
</TABLE>
18
<PAGE>
<TABLE>
<S> <C>
The Merger Agreement provides (and by making an Equity
Unit Election such stockholders will agree with Triton
Delaware and Triton Cayman) that, with respect to
stockholders making an Equity Unit Election, a portion
of each such stockholder's Triton Delaware Common Stock
so exchanged in the Reorganization will be transferred
to Triton Delaware as consideration for the issuance of
the Triton Delaware Preferred Stock and the remaining
portion of the Triton Delaware Common Stock so exchanged
by each such stockholder in the Reorganization will be
transferred to Triton Cayman as consideration for the
issuance by Triton Cayman of the Class B Shares. The
allocation of such consideration shall be determined
based on the respective fair market values of the Tri-
ton Delaware Preferred Stock and the Class B Shares as
estimated by Triton Delaware as of the Effective Time of
the Reorganization. No assurance can be given that such
allocation will be respected by the IRS.
The IRS may assert that the shares of Triton Delaware
Preferred Stock were received as taxable consideration
in the Reorganization, in which case the entire fair
market value of each Equity Unit received (rather than
the portion of such fair market value attributable to
the Class B Share) would have to be taken into account
in determining the amount of gain, if any, required to
be recognized on the Reorganization by stockholders who
make the Equity Unit Election. Consequently, each Triton
Delaware stockholder making an Equity Unit Election
would recognize gain to the extent the fair market value
of the Equity Units received in exchange for Triton
Delaware Common Stock exceeds such stockholder's basis
in its Triton Delaware Common Stock. No loss would be
recognized as a result of the Reorganization.
The receipt of cash by stockholders of Triton Delaware
selling their shares pursuant to the odd-lot program
will be a taxable transaction for U.S. Holders in which
gain or loss will be recognized in an amount equal to
the difference between the cash received and the tax
basis in the shares of Triton Delaware Common Stock
exchanged therefor.
The receipt of Convertible Preference Shares in exchange
for Convertible Preferred Stock in the Reorganization by
U.S. holders will be a taxable transaction. U.S. holders
of Convertible Preferred Stock will recognize gain, if
any (but not loss), in an amount equal to the excess of
the fair market value of the Convertible Preference
Shares received in the Reorganization over their tax
basis in the Convertible Preferred Stock exchanged
therefor. The receipt of cash by holders of Convertible
Preferred Stock exercising dissenters' rights will be a
taxable transaction for U.S. Holders in which gain or
loss will be recognized in an amount equal to the
difference between the cash received and the tax basis
in the shares of Convertible Preferred Stock exchanged
therefor.
For United States federal income tax purposes, exercise
of
</TABLE>
19
<PAGE>
<TABLE>
<S> <C>
Triton Delaware's or Triton Cayman's right to purchase
the Equity Units for cash will be a taxable transaction.
Exercise of Triton Cayman's right to exchange Ordinary
Shares for Equity Units will be a partially taxable
transaction except possibly as described further herein.
STOCKHOLDERS ARE ADVISED TO READ THE MORE DETAILED
SUMMARY OF THE TAX CONSEQUENCES OF THE REORGANIZATION,
AS SET FORTH UNDER "CERTAIN TAX CONSIDERATIONS."
RIGHTS OF DISSENTING
STOCKHOLDERS......... Under applicable Delaware law, the holders of Triton
Delaware Common Stock will not have dissenters'
appraisal rights in connection with the Reorganization.
Holders of Convertible Preferred Stock are entitled to
dissenters' appraisal rights, subject to compliance with
the procedures set forth in Section 262 of the Delaware
General Corporation Law (the "DGCL"), in connection with
the Merger. See "Rights of Dissenting Stockholders."
ACCOUNTING TREATMENT
OF THE
REORGANIZATION....... The acquisition by Triton Cayman of Triton Delaware in
connection with the Reorganization will be accounted for
as a combination of entities under common control (as if
it were a pooling of interests). See "The Reorganization
-- Accounting Treatment of the Reorganization."
RISK FACTORS.......... See "Risk Factors" for a discussion of certain risk
factors to be considered in connection with the
Reorganization, including with respect to stockholders
who receive Unit Depositary Shares, the absence of any
prior market for the Unit Depositary Shares and Triton
Delaware's expectation that the trading market for the
Unit Depositary Shares will be less liquid.
STOCK EXCHANGE There is currently no established public trading market
LISTING.............. for the Class A Shares or the Unit Depositary Shares.
Immediately following the Reorganization, the Class A
Shares will be listed on the NYSE under the symbol
"OIL," the same symbol under which the Triton Delaware
Common Stock is currently listed. The Unit Depositary
Shares have been approved for listing, subject to notice
of issuance, on the NYSE. See "The Reorganization --
Stock Exchange Listing."
DEPOSITARY AND
EXCHANGE AGENT....... Chemical Mellon Shareholder Services, L.L.C. will act as
Depositary for the Unit Depositary Shares and as
Exchange Agent in connection with the Merger.
</TABLE>
20
<PAGE>
SELECTED HISTORICAL FINANCIAL AND OIL AND GAS DATA
The selected historical financial data presented below for the nine month
periods ended September 30, 1995 and 1994, the seven month transition period
ended December 31, 1994 and each of the years in the five-year period ended May
31, 1994, are derived from the Consolidated Financial Statements of Triton
Delaware and its subsidiaries (see note 1 in the table below). The Consolidated
Financial Statements as of and for the seven month transition period ended
December 31, 1994 and years ended May 31, 1994 and 1993 and the adjustments that
were applied to restate the 1992 consolidated financial statements for
discontinued aviation sales and services operations and wholesale fuel products
operations were audited by Price Waterhouse LLP, independent accountants. The
Consolidated Financial Statements as of and for the three years ended May 31,
1992 (before restatements for discontinued aviation sales and services
operations and wholesale fuel products operations) were audited by KPMG Peat
Marwick LLP, independent accountants. The Consolidated Financial Statements as
of December 31, 1994, May 31, 1994 and 1993, and for the seven month transition
period ended December 31, 1994 and each of the years in the three year period
ended May 31, 1994, and the reports of such accountants thereon, are included in
Triton Delaware's Current Report on Form 8-K dated August 24, 1995 incorporated
by reference herein.
The selected unaudited financial data presented below under the captions
"Operating Data" and "Balance Sheet Data" for the nine month periods ended
September 30, 1995 and 1994, and as of September 30, 1995, are derived from the
unaudited consolidated condensed financial statements of Triton Delaware and its
subsidiaries. With respect to such unaudited consolidated financial information
for the nine month periods ended September 30, 1995 and 1994, Price Waterhouse
LLP reported that they have applied limited procedures in accordance with
professional standards for a review of such information. The unaudited
consolidated condensed financial statements as of September 30, 1995, and for
the nine month periods ended September 30, 1995 and 1994, and the review report
on the nine month periods ended September 30, 1995 and 1994, are included in
Triton Delaware's Quarterly Report on Form 10-Q incorporated by reference
herein. The information as of September 30, 1995 and 1994, and for the nine
month periods then ended is unaudited, but includes all adjustments of a normal
recurring nature which Triton Delaware considers necessary for a fair
presentation of the financial position and results of operations at those dates
and for those periods. The results of operations for the nine months ended
September 30, 1995, are not necessarily indicative of the results to be expected
for the full year.
The selected financial data reflect revenues and earnings (loss) since the
date of acquisition of various companies or assets, or to the date of
disposition in the case of divestitures, which materially affect comparability
with prior years. The information below should be read in conjunction with the
Pro Forma Consolidated Condensed Financial Statements, included elsewhere herein
and the Consolidated Financial Statements of Triton Delaware and related notes
included in the Form 8-K dated August 24, 1995 incorporated herein by reference
and "Management's Discussion and Analysis of
21
<PAGE>
Financial Condition and Results of Operations" included in Triton Delaware's
Transition Report on Form 10-K and Triton Delaware's Quarterly Report on Form
10-Q for the nine month period ended September 30, 1995 incorporated herein by
reference.
<TABLE>
<CAPTION>
AS OF OR FOR AS OF OR FOR AS OF OR FOR
NINE MONTHS NINE MONTHS SEVEN MONTHS
ENDED ENDED ENDED AS OF OR FOR YEAR ENDED MAY 31,
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, ------------------------------------------------
1995 1994 1994 1994 1993 1992 1991 1990
------------- ------------- ------------ -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA (in thousands,
except per share data):
Sales and other operating
revenues(1)...................... $ 80,841 $ 24,510 $20,736 $ 43,208 $ 84,414 $ 90,724 $118,667 $117,793
Total revenues(1)................. 98,096 33,584 25,321 107,394 90,362 97,203 150,849 127,354
Earnings (loss) from continuing
operations(1)(2)................. 5,933 (33,421) (26,630) (4,597) (76,509) (81,333) (7,390) (50,162)
Earnings (loss) before
extraordinary items and
cumulative effect of accounting
change........................... 2,112 (35,754) (27,708) (9,341) (93,552) (94,037) 4,745 (54,769)
Net earnings (loss)(2)............ 2,112 (35,754) (27,708) (9,341) (89,535) (94,037) 6,185 (54,176)
Weighted average number of common
shares outstanding............... 35,088 34,901 34,944 34,775 34,241 29,898 20,368 20,346
EARNINGS (LOSS) PER COMMON SHARE:
Continuing operations(1)(2)..... $ 0.15 $ (0.97) $ (0.78) $ (0.13) $ (2.23) $ (2.77) $ (0.64) $ (2.73)
Before extraordinary item and
cumulative effect of accounting
change......................... $ 0.04 $ (1.04) $ (0.81) $ (0.27) $ (2.73) $ (3.19) $ (0.04) $ (2.96)
Net earnings (loss)............. $ 0.04 $ (1.04) $ (0.81) $ (0.27) $ (2.61) $ (3.19) $ 0.03 $ (2.93)
Cash dividends per common share... -- -- -- -- -- -- -- 0.10
Ratio of earnings to combined
fixed charges and preferred
dividends(3)..................... 1.1x (3) (3) (3) (3) (3) 1.1x (3)
BALANCE SHEET DATA (in thousands):
Net property and equipment........ $465,816 $365,320 $399,658 $308,498 $330,151 $385,979 $391,862 $424,850
Total assets...................... 827,155 611,826 619,201 616,101 561,931 571,169 553,809 646,128
Long-term debt.................... 404,944 305,218 315,258 294,441 159,147 27,587 160,667 233,134
Redeemable preferred stock of
subsidiaries..................... -- -- -- -- 11,399 12,972 13,608 22,615
Stockholders' equity.............. 243,212 253,408 237,195 263,422 255,432 336,013 186,503 173,796
CERTAIN OIL AND GAS DATA(4)
Sales price realized per BOE...... $ 15.79 $ 13.51 $ 14.26 $ 12.91 $ 13.18 $ 13.05 $ 15.52 $ 12.87
BOE produced (in thousands)....... 5,741 2,597 2,059 4,399 7,351 7,838 8,302 8,821
</TABLE>
- ------------------------------
(1) Operating data for the nine months ended September 30, 1994, the seven
months ended December 31, 1994 and the years ended May 31, 1994, 1993,
1992, 1991, and 1990 are restated to reflect the aviation sales and
services segment and the wholesale fuel product segment as discontinued
operations in 1995 and 1993, respectively.
(2) Gives effect to the writedown of assets and loss provisions of $14.7
million, $1.0 million, $45.8 million, $99.9 million, $48.8 million, $2.7
million, and $29.2 million for the nine months ended September 30, 1994,
the seven months ended December 31, 1994 and the years ended May 31, 1994,
1993, 1992, 1991 and 1990, respectively.
(3) For purposes of computing the ratio of 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 changes, 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 Triton Delaware. Earnings were inadequate to cover fixed
charges and preferred dividends for the nine months ended September 30,
1994 by $54,078,000, for the seven months ended December 31, 1994 by
$31,014,000 and for the years ended May 31, 1994, 1993, 1992 and 1990 by
$40,976,000, $152,391,000, $94,261,000 and $59,603,000, respectively.
Without nonrecurring items, earnings would have been inadequate to cover
fixed charges and preferred dividends for the nine months ended September
30, 1995 and 1994 by $7,062,000 and $40,212,000, respectively, for the
seven months ended December 31, 1994 by $30,030,000, and for the years
ended May 31, 1994, 1993, 1992, 1991 and 1990 by $51,415,000, $45,183,000,
$33,687,000, $17,452,000 and $28,864,000, respectively.
(4) Includes Triton Delaware's interest in the net production attributable to
minority interests in consolidated subsidiaries, but includes only Triton
Delaware's proportionate interest in a non-consolidated affiliate. Includes
production only since or up to the effective dates of their respective
acquisitions or sales, as the case may be.
22
<PAGE>
SUMMARY PRO FORMA FINANCIAL INFORMATION
The following summary pro forma combined financial information of Triton
Cayman and Triton Delaware gives effect to (i) the acquisition of Triton
Delaware in connection with the proposed Reorganization, whereby Triton Cayman
will become the parent holding company of Triton Delaware and (ii) subsequent to
the Reorganization, the transfer to Triton Cayman of substantially all of the
businesses or subsidiaries of Triton Delaware located outside of the United
States, other than Triton Delaware's interests in the Cusiana and Cupiagua
fields in Colombia and interests in Argentina. The following summary pro forma
combined financial information of Triton Cayman and Triton Delaware should be
read in conjunction with the Pro Forma Consolidated Condensed Financial
Information included elsewhere herein and the separate historical financial
statements of Triton Delaware and notes thereto incorporated by reference in
this Proxy Statement/Prospectus. The pro forma combined financial data of Triton
Delaware are not necessarily indicative of the operating results that would have
been achieved had the transfers described in note (1) below been effected during
the periods presented or the results that may be obtained in the future.
SUMMARY PRO FORMA COMBINED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
--------------------------------------------
SEVEN MONTHS
NINE MONTHS ENDED
ENDED DEC. 31, YEAR ENDED
TRITON DELAWARE SEPT. 30, 1995 1994 MAY 31, 1994
- ----------------------------------- -------------- ------------ ------------
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA (1):
Total revenue...................... $101,572 $ 28,319 $ 110,982
Earnings (loss) from continuing
operations before income taxes and
minority interest................. 23,872 (12,485) 46,709
Earnings (loss) from continuing
operations........................ 15,753 (14,892) 40,162
Earnings (loss) from continuing
operations per common share....... $ 0.43 $ (0.44) $ 1.15
Weighted average number of shares
outstanding....................... 35,088 34,944 34,775
<CAPTION>
SEPTEMBER 30, 1995
--------------------------------------------
PRO FORMA
TRITON DELAWARE HISTORICAL ADJUSTMENTS PRO FORMA
- ----------------------------------- -------------- ------------ ------------
<S> <C> <C> <C>
BALANCE SHEET DATA (1):
Working capital.................... $135,790 $ 7,319 $ 143,109
Total assets....................... 827,155 116,209 943,364
Long-term debt, less current
portion........................... 404,944 -- 404,944
Total stockholders' equity......... 243,212 130,552 373,764
<CAPTION>
SEPTEMBER 30, 1995
--------------------------------------------
PRO FORMA
TRITON CAYMAN HISTORICAL ADJUSTMENTS PRO FORMA
- ----------------------------------- -------------- ------------ ------------
<S> <C> <C> <C>
BALANCE SHEET DATA (2):
Working capital.................... -- $ 135,790 $ 135,790
Total assets....................... -- 827,155 827,155
Long-term debt, less current
portion........................... -- 404,944 404,944
Preferred stock of a subsidiary
(3)............................... -- 439,086 439,086
Total stockholders' equity
(deficit) (3)..................... -- (195,874) (195,874)
</TABLE>
- ------------------------------
(1) Following the Reorganization, Triton Cayman intends to acquire
substantially all of the businesses or subsidiaries of Triton Delaware
located outside of the United States, other than Triton Delaware's
interests in the Cusiana and Cupiagua fields in Colombia and interests in
Argentina. The aggregate consideration to be received by Triton Delaware,
estimated to be approximately $233 million, will consist of preferred stock
of Triton Oil Company of Thailand JDA Ltd., through which Triton Cayman
will hold its interest in Block A-18 of the Malaysia-Thailand Joint
Development Area, and certain other subsidiaries to be sold, with an
aggregate stated value expected to approximate the aggregate value of the
businesses and subsidiaries, and a promissory note of Triton Cayman for any
remainder. The excess of the consideration over Triton Delaware's net book
value of the assets to be sold, estimated to be approximately $131 million,
has been reported as an increase to stockholders' equity in the unaudited
Pro Forma Consolidated Condensed Balance Sheet of Triton Delaware. The
consideration for the contemplated transfers will be determined at the time
of such transfers by Triton Delaware and will be based on independent third
party appraisals.
(2) Pro forma consolidated condensed statements of operations for Triton Cayman
are not presented herewith because the pro forma consolidated condensed
statements of operations of Triton Cayman for the nine months ended
September 30, 1995, the seven month transition period ended December 31,
1994 and the three years in the period ended May 31, 1994 would be
identical to the historical Consolidated Condensed Statements of Operations
of Triton Delaware as reported in Triton Delaware's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1995, and historical
Consolidated Statements of Operations of Triton Delaware as reported in
Triton Delaware's Current Report on Form 8-K dated August 24, 1995,
respectively, which are incorporated herein by reference.
(3) This pro forma presentation assumes that .9 million shares of Triton
Delaware Preferred Stock are issued, that holders of 25% of Triton Delaware
Common Stock make an Equity Unit Election and that one-tenth of a share of
Triton Delaware Preferred Stock is valued at $49. If holders of 15% of
Triton Delaware Common Stock make an Equity Unit Election, the amount shown
for preferred stock of subsidiary would be $263 million and total
stockholder's equity (deficit) would be ($20 million).
23
<PAGE>
RISK FACTORS
Certain statements included or incorporated by reference in this Proxy
Statement/Prospectus, such as proven oil reserves, the value of the assets to be
transferred to Triton Cayman and the amount of net operating loss carryforwards
available to offset the anticipated gain thereon, the tax treatment of the
Triton Delaware Preferred Stock, the value of an Equity Unit in relation to a
Class A Share and the allocation of fair market value to the Equity Units, are
forward-looking statements (as such term is used in the Private Securities
Litigation Reform Act of 1995), and the factors discussed hereunder could cause
actual results and developments to be materially different from those expressed
in or implied by such statements. Accordingly, before voting on the proposal to
adopt the Merger Agreement, Triton Delaware stockholders should carefully read
this entire Proxy Statement/Prospectus and should give particular attention to
the following risks factors:
CERTAIN TAX CONSEQUENCES. Triton Delaware will receive opinions of Special
Tax Counsel to the effect that it is more likely than not that the Triton
Delaware Preferred Stock will be treated as stock of Triton Delaware and that
the receipt of such Triton Delaware Preferred Stock will not be a taxable
transaction. In such case, stockholders electing to receive Equity Units will be
subject to U.S. federal income tax only with respect to that portion of the fair
market value (on the date of the Reorganization) of such Equity Unit
attributable to the Class B Share. However, in view of the absence of authority
dealing with transactions similar to the Reorganization or securities of a type
similar to the Equity Units, Special Tax Counsel believe there is significant
uncertainty and no assurance can be given that the IRS or the courts will agree.
As of February 14, 1996, Triton Delaware believes, based upon the advice of
Lehman and J.P. Morgan, that the fair market value of a Class B Share would be
approximately $3.50 and the fair market value of one-tenth of one share of
Triton Delaware Preferred Stock would be approximately $49.00, based upon the
closing price of the Triton Delaware Common Stock on the NYSE Composite
Transactions Tape on February 13, 1996 of $52.50. Triton Delaware will provide
stockholders making an Equity Unit Election with confirmation of its estimate
(after consultation with Lehman and J.P. Morgan) of the fair market value of the
Triton Delaware Preferred Stock and the Class B Shares as of the Effective Time
of the Reorganization. No assurance can be given that the IRS will not take the
position that Class B Shares have a higher fair market value than that estimated
by Triton Delaware. Moreover, the IRS may argue that the entire fair market
value of the Equity Units should be treated as taxable consideration in the
Reorganization. See "Certain Tax Considerations -- United States Federal Income
Tax Consequences -- The Reorganization -- Equity Unit Election."
Following the Reorganization, Triton Delaware intends to transfer
substantially all the common stock of its subsidiaries engaged in business
outside the United States, other than Triton Delaware's interests in the Cusiana
and Cupiagua fields in Colombia and interests in Argentina, to Triton Cayman
Triton Delaware will retain preferred stock interests in a number of the
subsidiaries so transferred to Triton Cayman. It is expected that the transfers
will not result in significant gain for U.S. federal income tax purposes. The
actual purchase price of the common stock to be transferred will be determined
by Triton Delaware based on independent third party appraisals on the dates of
the transfers. The appraisals will not be binding on the IRS, which may argue
that the taxable gain on the transfer is larger, perhaps exceeding Triton
Delaware's available net operating loss carryforwards of approximately $220
million.
ABSENCE OF PRIOR MARKET. Currently, there is no established trading market
for the Class A Shares or the Unit Depositary Shares. Although application has
been granted to list the Unit Depositary Shares for trading on the New York
Stock Exchange, there can be no assurance that an active public market for the
Unit Depositary Shares will develop or be sustained. In addition, although
Receipts must be issued, if at all, in respect of at least the Minimum Election
Number, it is not possible to determine how many Unit Depositary Shares will be
issued upon the consummation of the Reorganization and therefore the extent to
which a trading market in the Unit Depository Shares will
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develop. Triton Delaware expects that because the number of Unit Depositary
Shares will be, at most, one-third the number of Class A Shares issued upon
consummation of the Merger, the trading market for the Unit Depositary Shares
will be less liquid.
NO ASSURANCE AS TO TRADING VALUE. Triton Delaware believes that the
inherent value of a Class A Share is substantially equivalent to the inherent
value of an Equity Unit. There can be no assurance, however, that the market
price of a Class A Share will equal the market price of an Equity Unit upon
consummation of the Reorganization or at any time thereafter.
THE OIL AND GAS INDUSTRY GENERALLY. Oil prices have been subject to
significant fluctuations over the past two decades. Levels of production
maintained by the Organization of Petroleum Exporting Countries member nations
and other major oil producing countries, and the actions of oil traders, are
expected to continue to be major determinants of petroleum price movements in
the near term. It is impossible to predict future petroleum price movements with
any certainty. Triton Delaware and Triton Cayman may from time to time enter
into contracts to hedge risk against changing oil prices.
Triton Delaware's oil and gas business is, and Triton Cayman's oil and gas
business will be, subject to all of the operating risks normally associated with
the exploration for and production of oil and gas, including blowouts,
cratering, pollution, earthquakes, labor disruptions 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 accordance with
customary industry practices, Triton Delaware maintains, and Triton Cayman will
maintain, insurance coverage limiting financial loss resulting from certain of
these operating hazards. Losses and liabilities arising from uninsured or
underinsured events would reduce revenues and increase costs to Triton Delaware
and Triton Cayman.
Triton Delaware's oil and gas business is, and Triton Cayman's oil and gas
business will be, also subject to laws, rules and regulations in the countries
in which they operate, which generally pertain to production control, taxation,
environmental and pricing concerns and other matters relating to the petroleum
industry.
Moreover, because Triton Delaware or Triton Cayman 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 inability of Triton Delaware or Triton Cayman to meet its
obligations in these and other contract areas could have a material adverse
effect on its interests in these contract areas.
FINANCIAL POSITION. Triton Delaware reported income from continuing
operations of $1.3 million and $5.9 million for the three and nine months ended
September 30, 1995, respectively, but losses from continuing operations for the
seven month transition period ended December 31, 1994 ($26.6 million) and for
each of the last five fiscal years in the period ended May 31, 1994 ($4.6
million, $76.5 million, $81.3 million, $7.4 million and $50.2 million for 1994,
1993, 1992, 1991 and 1990, respectively). To date, working capital (amounting to
$135.8 million as of September 30, 1995, excluding $3.9 million of long-term
marketable securities), external sources of funding, asset sales and net cash
flow from operations have been sufficient to service Triton Delaware's existing
debt obligations, even though Triton Delaware has experienced losses. Triton
Delaware 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, Malaysia-Thailand and
elsewhere. There can be no assurance as to the ability of Triton Delaware and,
following the Reorganization, Triton Cayman, to effect sales of assets or to
access public or private markets for such financings, the timing of such sales
or financings or the proceeds, if any, that Triton Delaware or Triton Cayman
could realize therefrom. Moreover, Triton Delaware's ability to pursue
additional debt financing is, and Triton Cayman's ability to pursue debt
financings will be, limited by covenants in the indenture pursuant to which $240
million principal amount of its
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12% 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.
For information regarding Triton Delaware's financial position and results
of operations and Triton Delaware's deficits of earnings to combined fixed
charges and preferred dividends, see "Summary -- Selected Historical Financial
and Oil and Gas Data" herein and Triton Delaware's Consolidated Statements of
Operations, Consolidated Balance Sheets and Consolidated Statements of Cash
Flows in Triton Delaware's annual and periodic reports and other documents
incorporated herein by reference. For information regarding the pro forma
financial position and results of operations of Triton Delaware and Triton
Cayman, see the Pro Forma Consolidated Condensed Financial Statements, included
elsewhere herein.
ENVIRONMENTAL MATTERS. Triton Delaware 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 Triton Delaware to
remove or mitigate the environmental effects of the disposal or release of such
materials at various sites. Triton Delaware 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
Triton Delaware's or Triton Cayman's results of operations, cash flows or
financial position. Pollution and similar environmental risks generally are not
fully insurable.
RISKS OF FOREIGN OPERATIONS. Triton Delaware derives a significant portion
of, and Triton Cayman will derive substantially all 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 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 Triton Delaware's or Triton Cayman's ability to freely repatriate its
earnings under existing exchange control laws.
CERTAIN FACTORS RELATING TO COLOMBIA. Triton Delaware is a participant in
significant oil and gas discoveries located in the Llanos Basin in the foothills
of the Andes Mountains, approximately 160 kilometers (100 miles) northeast of
Bogota, Colombia. Triton Delaware owns interests in three contiguous areas known
as the Rio Chitamena, Santiago de las Atalayas ("SDLA") and Tauramena contract
areas. Test results for the initial exploratory and subsequent delineation wells
indicate that significant oil and gas deposits lie across the Rio Chitamena,
SDLA and Tauramena contract areas (the "Cusiana Field"), and within the SDLA
contract area (the "Cupiagua Field").
Largely due to complex geology, drilling of wells in the Cusiana and
Cupiagua fields has been comparatively difficult, lengthy in duration and
expensive. Triton Delaware believes that considerable progress has been achieved
in reducing the time and expenditures required to drill and complete wells in
the Cusiana and Cupiagua fields based on experience gained from initial wells
drilled. Although there can be no assurance, Triton Delaware believes that the
experience gained in the area to date will allow the operator to continue to
reduce the time and expenditures required to drill and complete wells in the
area. However, because Triton Delaware is not the operator of these contract
areas, Triton Delaware does not control the timing or manner of these
operations.
Full development of reserves in the Cusiana and Cupiagua fields will take
several years and require additional drilling and extensive production
facilities, which in turn will require significant additional capital
expenditures, the ultimate amount of which cannot be predicted. Pipelines
connect the major producing fields in Colombia to export facilities and to
refineries. These pipelines are in the process of being upgraded to accommodate
production from the Cusiana and Cupiagua fields.
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Guerilla activity in Colombia has from time to time disrupted the operation
of oil and gas projects and increased costs. Although the Colombian government,
Triton Delaware and its partners have taken steps to improve security and
improve relations with the local population, there can be no assurance that
attempts to reduce or prevent guerrilla activity will be successful or that such
activity will not disrupt operations in the future.
REGULATORY MATTER. On July 28, 1992, the Commission requested that Triton
Delaware provide to the Commission, on a voluntary basis, information and
documents regarding certain of Triton Delaware's employees and former employees,
Triton Delaware's operations in Indonesia, Triton Delaware's dealings with
Indonesian officials, and Triton Delaware's internal accounting controls. The
staff of the Commission has advised Triton Delaware that Triton Delaware 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, Triton Delaware has been advised that the Justice Department is
conducting a similar inquiry. Triton Delaware continues to cooperate with both
agencies. Based upon the information available to Triton Delaware to date,
Triton Delaware believes that it will be able to resolve any issues that either
agency ultimately might raise concerning these matters in a manner that would
not have a material adverse effect on Triton Delaware's consolidated financial
position.
THE SPECIAL MEETING
SPECIAL MEETING
A Special Meeting of the Triton Delaware stockholders will be held at 10:00
a.m., Dallas time, on March 25, 1996, at Triton Energy Corporation, 6688 North
Central Expressway, 12th Floor, Dallas, Texas 75206 (or any adjournments or
postponements thereof) to consider and vote on the proposal to adopt the Merger
Agreement and any other matters that may properly come before such meeting. The
presence, in person or by proxy, of stockholders holding a majority of the
outstanding Triton Delaware Common Stock entitled to vote at the Special Meeting
will constitute a quorum.
Management of Triton Delaware knows of no matters other than as described in
the accompanying Notice of Special Meeting which are likely to be brought before
the Special Meeting. However, if any other matters, not now known, properly come
before such meeting, the persons named in the enclosed proxy will vote the proxy
in accordance with their best judgment on such matters.
THE BOARD OF DIRECTORS OF TRITON DELAWARE HAS UNANIMOUSLY APPROVED THE
PROPOSED REORGANIZATION AND THE MERGER AGREEMENT AND RECOMMENDS THAT
STOCKHOLDERS VOTE FOR THE PROPOSAL TO ADOPT THE MERGER AGREEMENT.
RECORD DATE
Only Triton Delaware stockholders of record at the close of business on
February 20, 1996, as shown on Triton Delaware's records, will be entitled to
vote, or to grant proxies to vote, at the Special Meeting.
The vote of any Triton Delaware stockholder who is represented at the
Special Meeting by proxy will be cast as specified in the proxy or, if no vote
is specified in the proxy, such vote will be cast FOR the proposal. Any Triton
Delaware stockholder of record who is present at the Special Meeting in person
will be entitled to vote at the meeting regardless of whether such stockholder
has previously granted a proxy with respect thereto.
VOTE REQUIRED FOR ADOPTION
Adoption of the Merger Agreement requires the affirmative vote of the
stockholders of Triton Delaware who hold a majority of the outstanding shares of
Triton Delaware Common Stock. Abstentions and broker "non-votes" will be treated
as votes against the proposal to adopt the Merger Agreement. As of February 9,
1996, the most recent practicable date prior to the date of this Proxy
Statement/Prospectus, there were 35,933,372 shares of Triton Delaware Common
Stock outstanding and entitled to vote. In addition, as of January 31, 1996, the
directors and executive officers of Triton
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Delaware and affiliates of such persons directly owned, in the aggregate,
approximately 200,000 shares (less than 1%) of the total number of shares of
Triton Delaware Common Stock outstanding and have indicated their intention to
vote such shares in favor of the proposal to adopt the Merger Agreement.
PROXIES
GENERAL
Each Triton Delaware stockholder as of the record date will receive a Proxy
Card. A stockholder of Triton Delaware may grant a proxy to vote for or against,
or to abstain from voting on, the proposal to adopt the Merger Agreement by
marking his/her Proxy Card appropriately, executing it in the space provided,
and, in the case of holders of Triton Delaware Common Stock appearing on the
stock records of Triton Delaware, returning it to Triton Delaware. Triton
Delaware stockholders who hold their Triton Delaware Common Stock in the name of
a bank, broker or other nominee should follow the instructions provided by their
bank, broker or nominee on voting their shares.
To be effective, a Proxy Card must be received prior to the Special Meeting.
Any properly executed proxy will be voted in accordance with the specification
indicated on such Proxy Card. A properly executed and returned Proxy Card in
which no specification is made will be voted FOR the proposal to adopt the
Merger Agreement.
If any other matters are properly presented at the Special Meeting for
consideration, including consideration of a motion to adjourn the meeting to
another time and/or place (including adjournments for the purpose of soliciting
additional proxies), the persons named in the Proxy Card and acting thereunder
will have the discretion to vote on such matters in accordance with their best
judgment.
REVOCATION
In the case of holders of Triton Delaware Common Stock appearing on the
stock records of Triton Delaware, a Proxy Card may be revoked at any time prior
to its exercise by (a) giving written notice of such revocation to Triton
Delaware, (b) appearing and voting in person at the Special Meeting, or (c)
properly completing and executing a later-dated proxy and delivering it to
Triton Delaware at or before the Special Meeting. Presence without voting at the
Special Meeting will not automatically revoke a proxy, and any revocation during
the meeting will not affect votes previously taken. Triton Delaware stockholders
who hold their Triton Delaware Common Stock in the name of a bank, broker or
other nominee should follow the instructions provided by their bank, broker or
nominee in revoking their previously voted shares.
VALIDITY
All questions as to the validity, form, eligibility (including time of
receipt), and acceptance of Proxy Cards will be determined by the inspectors of
election. Any such determination will be final and binding. The Board of
Directors of Triton Delaware will have the right to waive any irregularities or
conditions as to the manner of voting. Triton Delaware may accept proxies by any
reasonable form of communication so long as it can reasonably be assured that
the communication is authorized by the Triton Delaware stockholder.
SOLICITATION OF PROXIES
The accompanying proxy is being solicited on behalf of the Board of
Directors of Triton Delaware. The expenses of preparing, printing and mailing
the proxy and the materials used in the solicitation thereof will be borne by
Triton Delaware.
Georgeson & Company Inc. has been retained by Triton Delaware to aid in the
solicitation of proxies, for a fee of $50,000 and the reimbursement of
out-of-pocket expenses. Proxies may also be solicited by personal interview,
telephone and telegram by directors, officers and employees of Triton Delaware
who will not receive additional compensation for such services. Arrangements
also may be made with brokerage houses and other custodians, nominees and
fiduciaries for the forwarding of
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solicitation materials to the beneficial owners of Triton Delaware Common Stock
held by such persons, and Triton Delaware will reimburse them for reasonable
expenses incurred by them in connection therewith.
PROPOSALS OF STOCKHOLDERS
Any stockholder who desired to present proposals to Triton Delaware's (or,
if the Reorganization is consummated, Triton Cayman's) 1996 Annual Meeting of
Stockholders and to have such proposals set forth in the proxy statement mailed
in conjunction with such Annual Meeting was required to have submitted such
proposals to Triton Delaware by December 5, 1995. All stockholder proposals are
required to comply with Rule 14a-8 promulgated by the Commission pursuant to the
Exchange Act.
TRITON DELAWARE AND TRITON CAYMAN
Triton Delaware is an international oil and gas exploration company
primarily engaged in exploration and production through subsidiaries and
affiliates. Triton Delaware's principal properties and operations are located in
Colombia and Malaysia-Thailand. Triton Delaware also has oil and gas interests
in other Latin American and Asian countries, Europe, Australia and North
America.
Triton Cayman is a newly formed Cayman Islands company and a wholly-owned
subsidiary of Triton Delaware. Triton Cayman was formed to become the parent
holding company of Triton Delaware. All of the capital stock of Triton Cayman is
currently held by Triton Delaware. After the consummation of the Reorganization,
Triton Delaware will become a subsidiary of Triton Cayman and substantially all
of Triton Delaware's businesses or subsidiaries located outside of the United
States, other than Triton Delaware's interests in the Cusiana and Cupiagua
fields in Colombia and interests in Argentina, will be transferred to Triton
Cayman. See the Pro Forma Consolidated Condensed Financial Statements, included
elsewhere herein. Triton Cayman has formed a wholly-owned subsidiary, Sub,
specifically to effect the Reorganization. Neither Triton Cayman nor Sub has any
significant assets or capitalization nor has engaged in any business or prior
activities other than in connection with the Reorganization.
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THE REORGANIZATION
GENERAL
The Board of Directors of Triton Delaware has unanimously approved, and
recommends that the stockholders of Triton Delaware adopt, a proposed corporate
reorganization pursuant to which Triton Cayman, a Cayman Islands company, will
become the parent holding company of Triton Delaware. It is proposed that the
Reorganization be effected pursuant to the Merger Agreement. After the
consummation of the Reorganization, Triton Cayman will continue to conduct the
businesses in which Triton Delaware is now engaged and substantially all of the
businesses or subsidiaries of Triton Delaware located outside of the United
States, other than Triton Delaware's interests in the Cusiana and Cupiagua
fields in Colombia and interests in Argentina, will be transferred to Triton
Cayman. The relative voting rights of Triton Delaware stockholders as
shareholders of Triton Cayman will not change as a result of the Reorganization.
See " -- Transfer of Assets," "Description of Authorized Shares of Triton
Cayman-Voting and Other Rights," " -- Special Rights Upon the Occurrence of
Certain Events" and "Comparison of Rights of Stockholders."
BACKGROUND AND REASONS FOR THE REORGANIZATION
International activities of Triton Delaware and its subsidiaries are a
significant part of Triton Delaware's business activities. Triton Delaware's
income is now, and is expected to continue to be, primarily derived from
activities outside of the United States.
The Board of Directors of Triton Delaware believes that the establishment of
a Cayman Islands holding company for Triton Delaware and its subsidiaries will
allow Triton Delaware to organize its international business activities to
benefit from more favorable business, tax and financing environments than would
be available to it if the parent corporation were a U.S. corporation.
Accordingly, the Board of Directors of Triton Delaware believes the
Reorganization should have a favorable impact on the conduct of Triton
Delaware's future business operations. In particular, the Board of Directors of
Triton Delaware is recommending the Reorganization for the following reasons:
(a)
The Board believes that the creation of a Cayman Islands parent
corporation will reduce corporate income taxes because, unlike the
U.S. tax system which imposes corporate income tax on the worldwide income
of United States corporations, the Cayman Islands generally imposes no
corporate income taxes on foreign income. Income taxes will therefore be
reduced to the extent operations, for example, in the Malaysia-Thailand
Joint Development Area, are conducted after the Reorganization by Triton
Cayman or its foreign subsidiaries.
(b)
The Board believes that the change of domicile may have a favorable
effect on its ability to sell assets or raise additional capital in
the future. The Code currently provides for the payment of certain estate
taxes in respect of the value of shares in a U.S. corporation owned by a
non-U.S. investor. In addition, the distributions with respect to stock in a
U.S. corporation to non-resident aliens could be subject to certain
withholding taxes under the Code. The Code currently does not generally
provide for estate or withholding taxes on distributions for non-resident
aliens in respect of stock of a non-U.S. corporation.
(c)
The Board believes that a holding company structure in the form
proposed by the Reorganization will provide greater management
flexibility and control, as well as a more suitable corporate structure for
expansion of its current business and future acquisitions and
diversification opportunities. Triton Delaware currently has no plans for
specific acquisitions or to diversify its business from the business it is
currently conducting.
In determining to recommend the Reorganization, the Board consulted with
Triton Delaware's management and its financial and legal advisors, and
considered a number of factors, including the opinions of its financial advisors
that, as of the date of such opinions, the inherent value of a Class A Share and
the inherent value of an Equity Unit are substantially equivalent, as well as
the Board's desire to afford stockholders electing to receive Equity Units the
opportunity to be able to defer a substantial portion of their taxable gain.
Special Tax Counsel are of the opinion that it is more likely
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than not that the Triton Delaware Preferred Stock will be treated as stock of
Triton Delaware and that the receipt of shares of the Triton Delaware Preferred
Stock by stockholders who elect to receive Equity Units will not be a taxable
transaction. See "Certain Tax Considerations."
FINANCIAL ADVISORS
The Board of Directors of Triton Delaware has received opinions, each dated
February 14, 1996, from Lehman and J.P. Morgan that, as of the date of such
opinions, (i) the inherent value of a Class A Share is substantially equivalent
to the inherent value of an Equity Unit and (ii) an allocation of the fair
market value of the components of an Equity Unit of $3.50 for a Class B Share
and $49.00 for one-tenth of one share of Triton Delaware Preferred Stock, based
on a closing trading price of $52.50 per share of Triton Delaware Common Stock
on February 13, 1996, is reasonable. The full text of each of the opinions has
been filed as an exhibit to the Registration Statement of which this Proxy
Statement/ Prospectus is a part.
In connection with rendering their opinions, Lehman and J.P. Morgan (a)
reviewed and analyzed the Merger Agreement, this Proxy Statement/Prospectus, the
specific terms of the Reorganization and certain publicly available information
concerning Triton Delaware; (b) reviewed and analyzed financial and operating
information and projections of Triton Delaware and Triton Cayman provided by
Triton Delaware; (c) reviewed and analyzed reserve reports and projected
economics relating to Triton Delaware's oil and gas assets provided by Triton
Delaware; (d) compared the trading history of Triton Delaware Common Stock with
that of the securities of certain other publicly-traded companies; and (f)
compared the historical financial results and present financial condition of
Triton Delaware with those of certain other companies. In addition, both Lehman
and J.P. Morgan discussed with management of Triton Delaware the business,
operations, assets, financial conditions and prospects of Triton Delaware and
undertook such other analyses and examinations and considered such other factors
as such financial advisors deemed appropriate.
In rendering their opinions, Lehman and J.P. Morgan assumed and relied upon
the accuracy and completeness of the financial and other information used by
them without assuming any responsibility for independent verification of such
information and further relied upon the assurances of management of Triton
Delaware that they are not aware of any facts that would make such information
inaccurate or misleading. With respect to the financial projections referred to
in clause (b) above, Lehman and J.P. Morgan assumed that such projections were
reasonably prepared on a basis reflecting the best currently available estimates
and judgments of the management of Triton Delaware as to the future financial
performance of Triton Delaware and Triton Cayman and that Triton Delaware and
Triton Cayman will perform substantially in accordance with such projections.
Neither Lehman nor J.P. Morgan conducted a physical inspection of the properties
and facilities of Triton Cayman or Triton Delaware. In addition, each opinion
states that it is necessarily based on the economic, market and other conditions
as in effect on, and the information made available to such financial advisor as
of, the date of such opinion.
THE BOARD OF DIRECTORS OF TRITON DELAWARE HAS UNANIMOUSLY APPROVED THE
PROPOSED REORGANIZATION AND RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE ADOPTION
OF THE MERGER AGREEMENT.
THE MERGER AGREEMENT
GENERAL
It is proposed that the Reorganization be effected pursuant to the Merger
Agreement. Pursuant to the Merger Agreement:
(i)
Sub will be merged with and into Triton Delaware, with Triton
Delaware being the surviving corporation.
(ii)
Except as set forth below in paragraph (iv) and under "Equity Unit
Election," each outstanding share of Triton Delaware Common Stock
will be automatically converted into one Class A Share.
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(iii)
The outstanding shares of common stock of Sub will be automatically
converted into a number of shares of common stock of Triton Delaware
equal to the number of shares of Triton Delaware Common Stock outstanding
immediately prior to the Effective Time of the Merger.
(iv)
The outstanding ordinary shares of Triton Cayman and the Triton
Delaware Common Stock held by Triton Delaware prior to the time the
Reorganization is effected will be cancelled.
As a result of the foregoing, upon effectiveness of the Merger, Triton
Delaware, as the surviving corporation in the Merger, will become a subsidiary
of Triton Cayman, and all the Class A Shares of Triton Cayman outstanding
immediately after the Merger will be owned by former common stockholders of
Triton Delaware.
The certificate of incorporation of Triton Delaware shall be the Certificate
of Incorporation of the surviving corporation of the Merger and will be amended
as set forth in Exhibit A to the Merger Agreement.
Also in connection with the Merger, each outstanding share of Convertible
Preferred Stock of Triton Delaware will be automatically converted into one
Convertible Preference Share of Triton Cayman, subject to dissenters' appraisal
rights. See " -- Rights of Dissenting Stockholders" and "Description of
Authorized Shares of Triton Cayman -- Preference Shares -- Convertible
Preference Shares."
AMENDMENT OR TERMINATION
Triton Delaware, Triton Cayman and Sub, by action of their respective Boards
of Directors, may amend, modify or supplement the Merger Agreement at any time
before or after its adoption by the stockholders of Triton Delaware. After such
approval, no amendment, modification or supplement may be made or effected that
by law requires further approval by such stockholders without the further
approval of such stockholders.
The Merger Agreement provides that it may be terminated, and the
Reorganization abandoned, at any time, whether before or after stockholder
approval of the Merger Agreement is obtained, by action of the Board of
Directors of Triton Cayman.
CONDITIONS TO CONSUMMATION OF THE REORGANIZATION
The Reorganization will not be consummated unless the Merger Agreement is
adopted by the requisite vote of stockholders of Triton Delaware.
EQUITY UNIT ELECTION
Subject to the Equity Unit Limitation, record holders of Triton Delaware
Common Stock will be entitled to make an unconditional election (an "Equity Unit
Election") on or prior to the Election Date to receive one Equity Unit in
exchange for each share of Triton Delaware Common Stock held by such holders in
lieu of such shares being automatically converted into Class A Shares upon
consummation of the Reorganization. If the number of Electing Shares exceeds the
Maximum Election Number, then the aggregate number of Electing Shares to be
exchanged for Equity Units in the Merger in connection with any Equity Unit
Election will be reduced by multiplying the number of Electing Shares covered by
such Equity Unit Election by a proration factor (the "Proration Factor")
determined by dividing the Maximum Election Number by the total number of
Electing Shares. The number of Electing Shares covered by each Equity Unit
Election which will be exchanged for Equity Units will be that number which
results from multiplying the number of such Electing Shares by the Proration
Factor. Electing Shares not exchanged for Equity Units as a result of proration
will instead be automatically converted into Class A Shares on the basis
described above under "The Merger Agreement." In the event that the number of
Electing Shares is less than the Minimum Election Number, no Equity Units will
be issued and Electing Shares will be automatically converted into Class A
Shares on the basis described above under "The Merger Agreement."
Each Equity Unit issued in connection with the Merger will consist of one
Class B Share and one-tenth of one share of Triton Delaware Preferred Stock,
which securities will be paired and after such
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pairing may only be traded together as an Equity Unit and will not be separately
transferable. In lieu of distributing the Equity Units to holders who make an
Equity Unit Election, such Equity Units will be deposited with the Depositary in
exchange for the issuance of Unit Depositary Shares, each representing one
Equity Unit, Receipts for which will be distributed to stockholders. To the
extent required, the Exchange Agent will requisition from the Depositary such
number of Receipts as are issuable in respect of shares of Triton Delaware
Common Stock properly delivered to the Exchange Agent along with the Form of
Election up to the Maximum Election Number.
EQUITY UNIT ELECTION PROCEDURE
The form for making an Equity Unit Election (the "Form of Election") is
being mailed to holders of Triton Delaware Common Stock with this Proxy
Statement/Prospectus. FOR A FORM OF ELECTION TO BE EFFECTIVE, HOLDERS OF TRITON
DELAWARE COMMON STOCK MUST PROPERLY COMPLETE SUCH FORM OF ELECTION, AND SUCH
FORM, TOGETHER WITH CERTIFICATES FOR THE SHARES OF TRITON DELAWARE COMMON STOCK
TO WHICH SUCH FORM RELATES, DULY ENDORSED IN BLANK OR OTHERWISE IN FORM
ACCEPTABLE FOR TRANSFER ON THE BOOKS OF TRITON DELAWARE, MUST BE RECEIVED BY
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C. (THE "EXCHANGE AGENT"), AT THE
ADDRESS SET FORTH IN THE FORM OF ELECTION AND NOT WITHDRAWN, BY 5:00 P.M., NEW
YORK CITY TIME ON THE BUSINESS DAY NEXT PRECEDING THE DATE OF THE SPECIAL
MEETING (THE "ELECTION DATE").
The determinations of the Exchange Agent as to whether or not Equity Unit
Elections have been properly made or revoked and when such elections or
revocations were received will be binding.
For a description of the Class B Shares and the Triton Delaware Preferred
Stock contained in an Equity Unit, see "Description of Authorized Shares of
Triton Cayman" and "Description of Triton Delaware Preferred Stock." For a
description of the Receipts, see "Description of the Receipts."
EFFECTIVE TIME
If the Merger Agreement is adopted by the stockholders of Triton Delaware
and not terminated by the Board of Directors of Triton Cayman, the
Reorganization will become effective (the "Effective Time") at the close of
business on the date that an appropriate certificate of merger is filed with the
Delaware Secretary of State as required by Delaware law or at such later time as
is specified in such certificate of merger. Triton Delaware anticipates that the
Reorganization will become effective promptly following the Special Meeting.
Immediately following the Effective Time of the Reorganization, Triton
Cayman will have the same subsidiaries and affiliates and the same directors and
executive officers as Triton Delaware had immediately prior to such date. See
the Pro Forma Consolidated Condensed Financial Statements, included elsewhere
herein.
RIGHTS OF DISSENTING STOCKHOLDERS
Pursuant to Section 262 of the DGCL, the holders of Triton Delaware Common
Stock do not have "dissenters appraisal rights" in connection with the
Reorganization because, among other reasons, such shares are listed on a
national securities exchange. Record holders of Convertible Preferred Stock of
Triton Delaware, although not entitled to vote in connection with the Merger
under Delaware law, are entitled to appraisal rights under Section 262 of the
DGCL in connection with the Merger subject to compliance with the procedures set
forth in Section 262 of the DGCL in connection with the Merger.
EXCHANGE OF SHARE CERTIFICATES
As of the Effective Time of the Reorganization, the stockholders of Triton
Delaware prior to the Effective Time (other than those stockholders who receive
Equity Units) will automatically become the owners of Class A Shares and, as of
the Effective Time, will cease to be owners of Triton Delaware Common Stock.
Stock certificates representing Triton Delaware Common Stock will, at the
Effective
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Time, automatically represent Class A Shares. Stockholders of Triton Delaware
Common Stock will not be required to exchange their stock certificates as a
result of the Reorganization. Should a stockholder desire to sell some or all of
his Class A Shares after the Effective Time, delivery of the stock certificate
or certificates which previously represented shares of Triton Delaware Common
Stock will be sufficient.
Following the Reorganization, certificates bearing the name of Triton Cayman
will be issued in the normal course upon surrender of outstanding Triton
Delaware Common Stock certificates for transfer or exchange. If any stockholder
surrenders a certificate representing shares of Triton Delaware Common Stock for
exchange or transfer and the new certificate to be issued is to be issued in a
name other than that appearing on the surrendered certificate theretofore
representing the Triton Delaware Common Stock, it will be a condition to such
exchange or transfer that the surrendered certificate be properly endorsed and
otherwise be in proper form for transfer and that the person requesting such
exchange or transfer either (i) pay Triton Cayman or its agents any taxes or
other governmental charges required by reason of the issuance of a certificate
registered in a name other than that appearing on the surrendered certificate or
(ii) establish to the satisfaction of Triton Cayman or its agents that such
taxes or other governmental charges have been paid.
ODD-LOT PROGRAM
On a date as soon as practicable after this Proxy Statement/Prospectus is
mailed to stockholders (the "Mailing Date"), Triton Delaware will mail to each
stockholder who holds fewer than 100 shares of Triton Delaware Common Stock
information with respect to, and a form for use in connection with, the Odd-Lot
Program. Pursuant to the terms of the Odd-Lot Program, each holder of Triton
Delaware Common Stock who holds fewer than 100 shares thereof and elects to
participate in the Odd-Lot Program may instruct the Exchange Agent, acting as
the agent for such stockholder, to sell all, but not less than all, of such
stockholder's shares of Triton Delaware Common Stock on the NYSE for its account
for cash.
The Odd-Lot Program will commence shortly after the Mailing Date and remain
open until the business day prior to the Special Meeting. A stockholder selling
shares of Triton Delaware Common Stock under the Odd-Lot Program will receive
the weighted average price for all shares of Triton Delaware Common Stock sold
under the Odd-Lot Program in open market transactions on the day the
participant's sale occurs, less a small fee to cover administrative fees and
brokerage transactions. Triton Delaware will not solicit or make any
recommendations to stockholders to sell shares of Triton Delaware Common Stock
in the Odd-Lot Program. See "Certain Tax Considerations" for a discussion of the
federal income tax treatment of the sale of shares in the Odd-Lot Program.
STOCK COMPENSATION PLANS
If the Reorganization is consummated, Triton Delaware's stock option plans
(including the Amended and Restated 1992 Stock Option Plan) will be amended to
provide that Class A Shares will thereafter be issued by Triton Cayman upon
exercise of any options issued thereunder. The retirement, restricted stock,
convertible debenture and other employee benefit plans of Triton Delaware will
be similarly revised or amended, as necessary.
Stockholder approval of the Merger Agreement will also constitute
stockholder approval of amendments to the stock option, restricted stock,
convertible debenture and other employee benefit plans providing for future use
of Class A Shares in lieu of Triton Delaware Common Stock thereunder.
SHAREHOLDER RIGHTS PLAN
Under the Shareholder Rights Plan of Triton Delaware, dated as of May 22,
1995 (the "Shareholders Rights Plan"), between Triton Delaware and Chemical
Bank, as Rights Agent, preferred stock purchase rights were issued to holders of
Triton Delaware's Common Stock at the rate of one right for each share of Triton
Delaware Common Stock. The Shareholder Rights Plan will be amended to provide
that the existing rights will expire immediately prior to the Effective Time.
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Triton Cayman will adopt a Shareholder Rights Plan pursuant to which
preference share purchase rights will be issued to holders of Class A Shares and
Class B Shares at the rate of one right for each share issued in connection with
the Merger. See "Description of Authorized Shares of Triton Cayman -- Preference
Shares -- Preference Share Purchase Rights."
STOCK EXCHANGE LISTING
There is currently no established public trading market for the Class A
Shares or the Unit Depositary Shares. Immediately following the Reorganization,
the Class A Shares will be listed on the NYSE under the symbol "OIL," the same
symbol under which the Triton Delaware Common Stock is currently listed. The
Unit Depositary Shares have been approved for listing, subject to notice of
issuance, on the NYSE under the symbol "OIL.B".
ACCOUNTING TREATMENT OF THE REORGANIZATION
The acquisition by Triton Cayman of Triton Delaware in connection with the
Reorganization will be accounted for as a combination of entities under common
control (as if it were a pooling of interests).
TRANSFER OF ASSETS
Following the Reorganization, subject to the retention of certain preferred
stock interests, Triton Delaware intends to transfer to Triton Cayman
substantially all of its businesses and subsidiaries located outside of the
United States, other than Triton Delaware's interests in the Cusiana and
Cupiagua fields in Colombia and interests in Argentina. Such actions will not
require the approval of the stockholders of Triton Delaware. See the Pro Forma
Consolidated Condensed Financial Statements, included elsewhere herein.
CERTAIN TAX CONSIDERATIONS
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material U.S. federal income tax
consequences generally applicable to holders of Triton Delaware Common Stock and
Convertible Preferred Stock of the Reorganization, and of the ownership of
Triton Delaware Preferred Stock, Class B Shares, Class A Shares and Convertible
Preference Shares. The discussion contained in this Proxy Statement/Prospectus
is based on the law in effect as of the date of this Proxy Statement/Prospectus.
Triton Delaware will receive opinions at the Effective Time from Simpson Thacher
& Bartlett and Weil, Gotshal & Manges LLP ("Special Tax Counsel") reaffirming as
of such date certain opinions set forth in this Proxy Statement/Prospectus. In
delivering their opinions Special Tax Counsel will receive and rely upon certain
representations from Triton Delaware, and certain other information, data,
documentation and other materials as Special Tax Counsel deem necessary. There
are no regulations, published rulings or judicial decisions directly on point
with respect to certain aspects of the Reorganization and the securities to be
issued pursuant thereto. Accordingly, Special Tax Counsel are unable to reach an
unqualified conclusion on certain matters as indicated below. Opinions of
counsel are not binding upon either the IRS or the courts. Triton Delaware does
not intend to request a ruling from the IRS with respect to the Reorganization.
This summary does not address the tax treatment of the Reorganization under
applicable state, local, foreign or other tax laws and generally does not take
account of rules that may apply to holders that are subject to special
treatment, including, without limitation, insurance companies, dealers in
securities, certain retirement plans, financial institutions, tax exempt
organizations or stockholders who acquired shares pursuant to the exercise of an
employee stock option or otherwise as compensation. Stockholders are urged to
consult their own tax advisors as to the particular tax consequences to them of
the Reorganization. For purposes of this discussion, a "U.S. Holder" is any
stockholder that is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust the
income of which is subject to U.S. federal income
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taxation regardless of its source. A Non-U.S. Holder is any stockholder other
than a U.S. Holder. The discussion below assumes that the Triton Delaware Common
Stock, Triton Delaware Preferred Stock and Convertible Preferred Stock exchanged
in the Reorganization are held as capital assets.
THE REORGANIZATION
RECEIPT OF CLASS A SHARES
Pursuant to Section 367(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), and recently issued temporary Treasury Regulations promulgated
thereunder, U.S. Holders exchanging their Triton Delaware Common Stock for Class
A Shares will recognize gain, if any (but not loss) on the transaction. In
general, for U.S. federal income tax purposes, a U.S. Holder will recognize gain
equal to the excess of the fair market value of the Class A Shares received by
the holder pursuant to the Reorganization over the holder's aggregate adjusted
basis in the Triton Delaware Common Stock exchanged therefor. Any such gain will
be capital gain and will be long-term if, as of the date of the Reorganization,
the Triton Delaware Common Stock was held for more than one year. In such event
(i) the basis of the Class A Shares will be equal to their fair market value on
the date of the Reorganization (except in the case of holders realizing a loss
on the exchange whose basis will be the same as the basis of their Triton
Delaware Common Stock exchanged therefor) and (ii) the holding period of the
Class A Shares will commence on the day after the date of the Reorganization
(except in the case of holders realizing a loss on the exchange whose holding
period will include the period such holders held their Triton Delaware Common
Stock). Subject to certain exceptions, Non-U.S. Holders will be subject to U.S.
federal income tax on gain realized, if any, on the exchange of Triton Delaware
Common Stock for Class A Shares only if such gain is effectively connected with
the conduct of a trade or business in the United States or, in the case of a
Non-U.S. Holder that is an individual who holds the Triton Delaware Common Stock
as a capital asset, such holder is present in the United States for 183 or more
days in the taxable year and certain other conditions apply.
EQUITY UNIT ELECTION
The tax consequences of the Reorganization to U.S. Holders who make an
Equity Unit Election will depend in part upon whether the Triton Delaware
Preferred Stock received from Triton Delaware in the Reorganization is treated
as stock of Triton Delaware for U.S. tax purposes. Special Tax Counsel are of
the opinion that it is more likely than not that the Triton Delaware Preferred
Stock will be treated as stock of Triton Delaware. However, in view of the
absence of any authority dealing with transactions similar to the Reorganization
or securities of a type similar to the Equity Units, there is significant
uncertainty regarding this conclusion and no assurance can be given that the IRS
or the courts will agree. Special Tax Counsel have reached this conclusion
based, among other things, on the liquidation preference, the right to share in
dividends and the voting rights attached to the Triton Delaware Preferred Stock.
Assuming the Triton Delaware Preferred Stock is treated as stock of Triton
Delaware issued by Triton Delaware in exchange for Triton Delaware Common Stock
then (A)(i) no gain or loss would be recognized by exchanging stockholders with
respect to the receipt of the Triton Delaware Preferred Stock, (ii) the basis of
the Triton Delaware Preferred Stock will be the same as the basis of the Triton
Delaware Common Stock treated as exchanged therefor, and (iii) the holding
period of the Triton Delaware Preferred Stock will include the holding period of
the shares of Triton Delaware Common Stock treated as exchanged therefor and (B)
pursuant to Section 367(a) of the Code and applicable Treasury Regulations, U.S.
Holders will recognize gain, if any (but not loss), in an amount equal to the
excess of the fair market value of the Class B Shares received by the holder
pursuant to the Reorganization over the holder's aggregate adjusted tax basis in
the Triton Delaware Common Stock treated as exchanged therefor. Any such gain
will be capital gain and will be long-term if, as of the date of the
Reorganization, the Triton Delaware Common Stock was held for more than one
year. In such event, (i) the basis of such Class B Shares will be equal to their
fair market value on the date of the Reorganization (except in the case of
holders realizing a loss on the exchange whose basis will be the same as the
basis of their Triton Delaware Common Stock treated as exchanged therefor) and
(ii) the holding period of the Class B Shares will commence on the day after the
date of the Reorganization (except in the case of holders realizing a loss on
the exchange whose holding period
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will include the period such holders held their Triton Delaware Common Stock).
Non-U.S. Holders receiving Equity Units will not generally be subject to U.S.
federal income tax on gain realized as a result of the Reorganization except in
the circumstances described above for non-U.S. Holders receiving Class A Shares.
See "Receipt of Class A Shares".
Based upon the advice of Lehman and J.P. Morgan, Triton Delaware believes
that, on February 14, 1996, the fair market value of a Class B Share would be
approximately $3.50 and the fair market value of one-tenth of one share of
Triton Delaware Preferred Stock would be approximately $49.00 based upon the
closing price of the Triton Delaware Common Stock on the NYSE Composite
Transactions Tape on February 13, 1996 of $52.50. Triton Delaware will provide
stockholders making an Equity Unit Election with confirmation of its estimate
(after consulatation with Lehman and J.P. Morgan) of the fair market value of
one-tenth of one share of Triton Delaware Preferred Stock and the Class B Share
as of the date of the Reorganization. However, the IRS is not bound by such
valuations and no assurance can be given that the IRS will agree with them. If
the IRS were to successfully assert, for example, that the fair market value of
the Class B Shares was greater than the confirmed valuation, stockholders making
the Equity Unit Election and filing their tax return on the basis of such
valuation would be subject to tax based on the higher valuation of the Class B
Shares.
The Merger Agreement provides (and by making an Equity Unit Election such
stockholders will agree with Triton Delaware and Triton Cayman) that, with
respect to stockholders exchanging Triton Delaware Common Stock for Equity
Units, a portion of each such stockholder's Triton Delaware Common Stock so
exchanged in the Reorganization will be transferred to Triton Delaware as
consideration for the issuance of the Triton Delaware Preferred Stock and the
remaining portion of the Triton Delaware Common Stock so exchanged by each such
stockholder in the Reorganization will be transferred to Triton Cayman as
consideration for the issuance by Triton Cayman of the Class B Shares. Such
allocation shall be determined based on the respective fair market values of the
Triton Delaware Preferred Stock and the Class B Shares as estimated by Triton
Delaware on the date of the Reorganization. No assurance can be given that such
allocation will be respected by the IRS.
The IRS may assert that the Triton Delaware Preferred Stock should be
treated as stock of Triton Cayman and was received as taxable consideration in
the Reorganization. In that case, (i) the entire fair market value of the Equity
Units would be taken into account in determining the gain recognized (rather
than just the portion of such value attributable to the Class B Share), if any,
in the Reorganization, (ii) the basis of the Equity Units would equal their fair
market value on the date of the Reorganization (except in the case of holders
realizing a loss on the exchange whose basis will be the same as their basis in
the Triton Delaware Common Stock treated as exchanged therefor) and (iii) the
holding period of the Equity Units would commence on the day after the date of
the Reorganization (except in the case of holders realizing a loss in the
Reorganization whose holding period would include the period such holders held
their Triton Delaware Common Stock). As discussed above, Special Tax Counsel are
of the opinion that it is more likely than not that the Triton Delaware
Preferred Stock will be treated as stock of Triton Delaware. Nonetheless Special
Tax Counsel have advised Triton Delaware that there is significant uncertainty
concerning this conclusion and in view of the lack of authority on transactions
of this nature no assurance can be given that the IRS will not seek to treat the
Triton Delaware Preferred Stock as stock of Triton Cayman or to recharacterize
the transaction in some other manner which would result in additional income or
gain being realized by U.S. Holders making the Equity Unit Election. U.S.
Holders are urged to consult with their own tax advisors concerning the
consequences of making an Equity Unit Election.
Owners of the Unit Depositary Shares will be treated for U.S. federal income
tax purposes as if they were owners of the Triton Delaware Preferred Stock and
Class B Shares represented by such Unit Depositary Shares. Accordingly, such
owners will be entitled to take into account for U.S. federal income tax
purposes income and deductions to which they would be entitled if they were
direct holders of such Triton Delaware Preferred Stock and Class B Shares.
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FORM 926 REPORTING REQUIREMENTS
Pursuant to Section 6038B of the Code, a U.S. Holder is required to file an
information return on IRS Form 926 along with certain additional information
which must be attached thereto. Form 926 and its required attachments must be
filed with such holder's U.S. federal income tax return for the taxable year
that includes the Reorganization. The information which must be included with
Form 926 is described in temporary Treasury Regulation Section 1.6038B-1T.
Triton Delaware intends to provide such information to each U.S. Holder so as to
enable each such holder to timely file Form 926.
A U.S. Holder's failure to provide the information required by Section 6038B
of the Code will result in, among other things, such holder being subject to a
penalty equal to 25 percent of the amount of gain realized by the holder
pursuant to the Reorganization.
CERTAIN PROPOSED LEGISLATION
Legislation has recently been proposed which could affect the tax treatment
of the Reorganization. In particular, holders who make an Equity Unit Election
should note that the President has proposed that certain "disqualified preferred
stock" will generally no longer be permitted to be received as tax free
consideration in corporate reorganizations occurring after December 7, 1995.
Although the Triton Delaware Preferred Stock does not appear to constitute
"disqualified preferred stock" within the meaning of the President's proposal
because (among other things) of its participation rights, no assurance can be
given that the proposal will not be altered so as to become applicable to the
Triton Delaware Preferred Stock. In such case, holders who make an Equity Unit
Election would be subject to tax with respect to the entire value of the Equity
Units and not just the value attributable to the Class B Shares.
Moreover the President's Budget proposal also contains provisions treating
certain transactions as giving rise to constructive sales of appreciated
securities for U.S. federal income tax purposes. Under this provision, taxpayers
are generally deemed to have sold appreciated securities held by them if they
have substantially eliminated both risk of loss and opportunity for gain on the
appreciated securities. For these purposes, the granting of a call option with
respect to appreciated securities may be treated as a deemed exchange on the
date such option is granted but only if there is "substantial certainty" that
such call will be exercised. Triton Delaware believes that neither the right of
Triton Delaware or Triton Cayman to purchase the Equity Units is an option with
respect to which there is "substantial certainty" of exercise. Nonetheless, it
is uncertain how the term substantial certainty is to be interpreted for these
purposes and in any event no assurance can be given that the provision will not
be amended (or interpreted) so as to apply to the Triton Delaware Preferred
Stock. In such case, holders who make an Equity Unit Election would be subject
to tax with respect to the entire value of the Equity Units and not just the
value attributable to the Class B Shares.
RECEIPT OF CONVERTIBLE PREFERENCE SHARES
The receipt of Convertible Preference Shares in exchange for Convertible
Preferred Stock in the Reorganization by U.S. Holders will be a taxable
transaction in which U.S. Holders of Convertible Preferred Stock will recognize
gain, if any, (but not loss) in an amount equal to the excess of the fair market
value of the Convertible Preference Shares received in the Reorganization over
their tax basis in the Convertible Preferred Stock exchanged therefor. Such gain
will be capital gain and will be long term if as of the date of the
Reorganization the Convertible Preferred Stock was held for more than one year.
In such event (i) the basis of the Convertible Preference Shares will equal
their fair market value on the date of the Reorganization (except in the case of
holders realizing a loss on the exchange whose basis will be the same as the
basis of their Convertible Preferred Stock) and (ii) the holding period of the
Convertible Preference Shares will begin on the day after the date of the
Reorganization (except in the case of holders realizing a loss in the
Reorganization whose holding period would include the period such holders held
their Convertible Preferred Stock). U.S. Holders of Convertible Preferred Stock
who exercise their dissenters rights and receive cash in exchange for their
Convertible Preferred Stock will recognize gain or loss equal to the difference
between the basis of the Convertible
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Preferred Stock and the cash received in exchange therefor. Such gain or loss
will be capital gain or loss and will be long term if as of the date of the
Reorganization the Convertible Preferred Stock was held for more than one year.
Non-U.S. Holders of Convertible Preferred Stock will not generally be
subject to U.S. federal income tax upon the receipt of Convertible Preference
Shares or upon the exercise of dissenters rights except in the circumstances
described above for Non-U.S. Holders receiving Class A Shares. See "Receipt of
Class A Shares."
Holders of Convertible Preferred Stock that also hold Triton Delaware Common
Stock may be subject to special rules and should consult with their own tax
advisors regarding the treatment to them of the receipt of Convertible
Preference Shares.
ODD LOT PROGRAM
U.S. Holders who exchange all of their Triton Delaware Common Stock for cash
pursuant to the Odd Lot program will recognize gain or loss equal to the
difference between the basis of the Triton Delaware Common Stock and the cash
received in exchange therefor. Such gain or loss will be capital gain or loss
and will be long term if, as of the date of the disposition, the Triton Delaware
Common Stock was held for more than one year. Non-U.S. Holders will not
generally be subject to U.S. federal income tax on gain realized, if any, on the
exchange of Triton Delaware Common Stock for cash except under the circumstances
described above for Non-U.S. Holders receiving Class A Shares. See "The
Reorganization -- Receipt of Class A Shares."
TRITON DELAWARE PREFERRED STOCK
UNITED STATES FEDERAL INCOME TAXATION OF DIVIDENDS
Assuming the Triton Delaware Preferred Stock is treated as stock of Triton
Delaware, dividends paid on the Triton Delaware Preferred Stock should be
taxable as ordinary income for U.S. federal income tax purposes to the extent of
Triton Delaware's earnings and profits for the year in which the dividends are
paid or Triton Delaware's earnings and profits accumulated in prior years. To
the extent amounts paid as dividends to a holder of shares of Triton Delaware
Preferred Stock are not paid out of Triton Delaware's current or accumulated
earnings and profits, such amounts will first be applied to reduce the holder's
tax basis in the shares of Triton Delaware Preferred Stock, and any amount in
excess of tax basis will be treated as gain from the sale or exchange of the
shares of Triton Delaware Preferred Stock.
In the case of corporate holders of shares of Triton Delaware Preferred
Stock the portion of the dividends paid from current or accumulated earnings and
profits should qualify, subject to the limitations under Sections 246(c) and
246A of the Code, for the 70% dividends received deduction. In addition, under
Section 1059 of the Code, a corporate holder of Triton Delaware Preferred Stock
may be required to reduce its tax basis in its shares of Triton Delaware
Preferred Stock by the portion of any dividend paid on the Triton Delaware
Preferred Stock that was not taxed because of the dividends received deduction
if such dividend constitutes an "extraordinary dividend".
UNITED STATES TAXATION OF NON-U.S. HOLDERS
Under present U.S. federal income and estate tax law, and subject to the
discussion below concerning backup withholding:
(a) Withholding of U.S. federal income tax will be required with respect
to the payment by Triton Delaware of dividends on Triton Delaware
Preferred Stock owned by a Non-U.S. Holder at a rate of 30%, or such lower
rate as may be specified by an applicable tax treaty. However, dividends
received by a Non-U.S. Holder which are effectively connected with the
conduct of a U.S. trade or business by the Non-U.S. Holder are exempt from
such withholding, in which case, such dividends will be subject to U.S.
regular federal income tax.
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(b) No U.S. federal income tax will be payable with respect to any gain
or income realized by a Non-U.S. Holder upon the sale or exchange of
Triton Delaware Preferred Stock unless (i) such gain is effectively
connected with the conduct of a U.S. trade or business by the Non-U.S.
Holder or (ii) the Non-U.S. Holder is an individual who is present in the
U.S. for a period aggregating 183 days or more during the calendar year in
which such sale occurs and certain other conditions are met. Moreover, no
withholding of U.S. federal income taxation will be required unless Triton
Delaware is or has been a "United States real property holding corporation"
for federal income tax purposes (Triton Delaware believes it is not and has
not been a "United States real property holding corporation"); and
(c) Triton Delaware Preferred Stock owned by an individual who at the
time of death is a Non-U.S. Holder will be included in such Non-U.S.
Holder's gross estate for U.S. federal estate tax purposes, unless an
applicable estate tax treaty provides otherwise.
Under current U.S. Treasury Regulations, dividends paid to an address
outside the United States are presumed to be paid to a resident of such country
for purposes of the withholding discussed above and, under the current
interpretation of U.S. Treasury Regulations, for purposes of determining the
applicability of a tax treaty rate. However, under proposed U.S. Treasury
Regulations not currently in effect, a Non-U.S. Holder who wishes to claim a
reduced rate of (or exemption from) withholding would be required to provide
Triton Delaware with a properly executed (1) Internal Revenue Service Form 1001
(or successor form) claiming a reduced rate of withholding under the benefit of
a tax treaty or (2) Internal Revenue Form 4224 (or successor form) stating that
dividends paid on the Triton Delaware Preferred Stock are not subject to
withholding tax because it is effectively connected with the Non-U.S. Holder's
conduct of a trade or business in the United States.
CLASS A AND CLASS B SHARES AND CONVERTIBLE PREFERENCE SHARES
UNITED STATES FEDERAL INCOME TAXATION OF DIVIDENDS
For U.S. federal income tax purposes, the gross amount of dividends paid by
Triton Cayman to U.S. Holders will be treated as foreign source dividend income
to the extent paid out of Triton Cayman's current or accumulated earnings and
profits. These dividends will not be eligible for the dividends received
deduction generally allowed to U.S. corporate shareholders on dividends from
U.S. domestic corporations. To the extent that an amount received by a U.S.
Holder exceeds the allocable share of Triton Cayman's current and accumulated
earnings and profits, such excess will be applied first to reduce such U.S.
Holder's tax basis in its shares and then, to the extent in excess of such U.S.
Holder's tax basis, such excess will constitute gain from a deemed sale or
exchange of such shares. For U.S. foreign tax credit purposes, dividends on the
shares will generally constitute "passive income", or, in the case of certain
U.S. Holders, "financial services income."
Certain adjustments (or failures to make adjustments) of the conversion rate
of Convertible Preference Shares, based on Triton Cayman's issuance of certain
rights, warrants, indebtedness, securities or other assets to holders of
Ordinary Shares, may result in constructive distributions taxable as dividends
to holders of Convertible Preference Shares or to holders of Ordinary Shares.
Moreover, depending upon the circumstances, the payment of certain stock
dividends to U.S. Holders of Ordinary Shares may be treated as taxable
dividends.
CONVERSION OF CLASS B SHARES
If Triton Delaware liquidates, is dissolved or wound up, the Board of
Directors of Triton Cayman may cause the Class B Shares to be converted into
Class A Shares. Such conversion should not result in gain or loss to the holders
of the Class B Shares.
UNITED STATES TAXATION OF NON-U.S. HOLDERS
Subject to certain exceptions, Non-U.S. Holders will be subject to U.S.
federal income tax on dividend distributions with respect to, and gain realized
from the sale or exchange of, Class A Shares, Class B Shares or Convertible
Preference Shares only if such dividends or gains are effectively connected with
the conduct of a trade or business within the United States or in the case of
gains
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realized by Non-U.S. Holders that are individuals, such holders are present in
the United States for 183 days or more during the taxable year of the sale and
certain other conditions exist. Except as discussed below with respect to backup
withholding, dividends paid by Triton Cayman will not be subject to U.S.
withholding tax. Nonresident alien individuals will not be subject to U.S.
estate tax with respect to shares of Triton Cayman.
EXCHANGE OF EQUITY UNITS
An exchange of Equity Units with Triton Cayman or Triton Delaware for cash
will be a taxable transaction for U.S. federal income tax purposes.
Consequently, U.S. Holders will be required to recognize gain or loss in an
amount equal to the difference between the cash proceeds received in the
exchange and the holder's adjusted tax basis in its Equity Units so exchanged.
Such gain or loss will be capital gain or loss and will be long term, if as of
the date of the disposition, the Equity Units were held for more than one year.
U.S. Holders exchanging Equity Units for Ordinary Shares of Triton Cayman will
be treated as though they had received such Ordinary Shares of Triton Cayman in
exchange for an allocable portion of the Triton Delaware Preferred Stock and
Class B Shares. Except possibly as described below, the part of the exchange
attributable to the Triton Delaware Preferred Stock will be treated as a taxable
transaction. U.S. Holders will recognize gain or loss equal to the difference
between the fair market value of the Ordinary Shares of Triton Cayman treated as
received in exchange for the Triton Delaware Preferred Stock and the basis of
such Triton Delaware Preferred Stock. In such event (i) the basis of such
Ordinary Shares of Triton Cayman will be equal to their fair market value and
(ii) the holding period for such Ordinary Shares of Triton Cayman will commence
on the day after the date of the exchange.
No gain or loss will be recognized by U.S. Holders with respect to Ordinary
Shares of Triton Cayman treated as exchanged for Class B Shares. As a result,
U.S. Holders will have (i) a basis in such Ordinary Shares of Triton Cayman
equal to the basis of the Class B Shares treated as exchanged therefor and (ii)
the holding period of such Ordinary Shares of Triton Cayman will include the
holding period of such Class B Shares.
It is possible that the exercise by Triton Cayman of its right to purchase
the Equity Units in exchange for Ordinary Shares of Triton Cayman could qualify
as a tax-free reorganization (in whole, rather than in part) notwithstanding the
provisions of Section 367(a) of the Code and applicable Treasury Regulations. In
such case, (i) no gain or loss would be recognized by U.S. Holders exchanging
Equity Units solely for Ordinary Shares of Triton Cayman, (ii) the tax basis of
Ordinary Shares of Triton Cayman received in the exchange will be the same as
the Equity Units exchanged therefor and (iii) the holding period of the Ordinary
Shares of Triton Cayman received in the exchange will include the holding period
of the Equity Units exchanged therefor.
The foregoing discussion describes the tax consequences relating to a
purchase of all of a U.S. Holder's Equity Units. In the event either Triton
Delaware or Triton Cayman exercises its purchase right with respect to some (but
not all) of a U.S. Holder's Equity Units a portion of the consideration received
may, depending on the particular circumstances, be treated as a dividend for
U.S. federal income tax purposes. U.S. Holders are advised to consult their own
tax advisors concerning the tax consequences to them of a transfer of some but
not all of their Equity Units to Triton Delaware or Triton Cayman.
CLASSIFICATION OF TRITON CAYMAN AS A CONTROLLED FOREIGN CORPORATION
Under Section 951(a) of the Code, each "United States shareholder" of a
"controlled foreign corporation" ("CFC") must include in its gross income for
U.S. federal income tax purposes its pro rata share of the CFC's "subpart F
income," even if the subpart F income is not distributed. In addition, gain on
the sale of stock in a CFC realized by a United States shareholder is treated as
ordinary income to the extent of the CFC's accumulated undistributed earnings
and profits. Section 951(b) of the Code defines a United States shareholder
("U.S. Shareholder") as any U.S. corporation, citizen, resident or other U.S.
person who owns (directly or through certain deemed ownership rules) 10% or more
of the total combined voting power of all classes of stock of a foreign
corporation. In
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general, a foreign corporation is treated as a CFC only if such U.S.
Shareholders collectively own more than 50% of the total combined voting power
or total value of the corporation's stock. Under these rules Triton Cayman does
not expect to be a CFC. While it is possible that Triton Cayman could in the
future be treated as a CFC, so long as a shareholder of Triton Cayman is not a
U.S. Shareholder, Triton Cayman's status as a CFC should have no adverse effect
on such holder.
PASSIVE FOREIGN INVESTMENT COMPANIES
Sections 1291 through 1297 of the Code contain special rules applicable with
respect to foreign corporations that are "passive foreign investment companies"
("PFICs"). In general, a foreign corporation will be a PFIC if 75% or more of
its income constitutes "passive income" or 50% or more of its assets produce
passive income. If Triton Cayman were to be characterized as a PFIC, a U.S.
Holder would be subject to a penalty tax at the time of its sale of (or receipt
of an "excess distribution" with respect to) its shares. Moreover any such gain
on the sale of shares would be taxable as ordinary income. In general, a
shareholder receives an "excess distribution" if the amount of the distribution
is more than 125% of the average distribution with respect to the stock during
the three preceding taxable years (or the taxpayer's holding period if it is
less than three years). In general, the penalty tax is equivalent to an interest
charge on taxes that are deemed due during the taxpayer's holding period but not
paid, computed by assuming that the excess distribution or gain (in the case of
a sale) with respect to the shares was realized ratably over the holder's
holding period. The interest charge is equal to the applicable rate imposed on
underpayments of U.S. federal income tax for such period.
The PFIC statutory provisions contain a look-through rule that states that,
for purposes of determining whether a foreign corporation is a PFIC, such
foreign corporation shall be treated as if it "received directly its
proportionate share of the income" and as if it "held its proportionate share of
the assets" of any other corporation in which it owns at least 25% of the stock.
Under the look-through rule Triton Cayman would be deemed to own the assets and
to have received the income of its subsidiaries directly for the purposes of
determining whether Triton Cayman will be treated as a PFIC. As a result, Triton
Cayman does not expect to be treated as a PFIC.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements may apply to payments made
with respect to, or cash proceeds of a sale or exchange of, the Triton Delaware
Preferred Stock and Ordinary Shares. In addition, a holder may be subject to
backup withholding under Section 3406 of the Code at a rate of 31% on such
payments. Backup withholding will apply only if the holder (i) fails to furnish
its Taxpayer Identification Number ("TIN"), which for an individual would be his
or her social security number, (ii) furnishes an incorrect TIN, (iii) is
notified by the IRS that it has failed to properly report payments of interest
and dividends or (iv) under certain circumstances, fails to certify, under
penalties of perjury, that it has furnished a correct TIN and has not been
notified by the IRS that it is subject to backup withholding for failure to
report interest and dividend payments. Backup withholding will not apply with
resect to payments made to certain exempt recipients, such as corporations,
tax-exempt organizations and foreign persons receiving payments that are subject
to withholding under Section 1441 or Section 1442 of the Code or that would be
subject to such withholding but for the provisions of a treaty or certain other
exceptions.
The amount of any backup withholding from a payment to a holder are allowed
as a credit against such holder's federal income tax liability and may entitle
such holder to a refund, provided that the required information is furnished to
the IRS.
POST-REORGANIZATION TAXATION OF TRITON CAYMAN AND TRITON DELAWARE
All of Triton Delaware's foreign subsidiaries are presently CFCs. As
discussed above, under subpart F of the Code, a CFC is a foreign corporation
that is owned (directly, indirectly or by attribution) more than fifty percent
(50%), by vote or by value, by U.S. Shareholders. In the event that a foreign
corporation is a CFC, a U.S. Shareholder of the CFC must include in income in
its taxable year in which or with which the taxable year of the CFC ends, the
total of, among other things, (i) its
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pro rata share of the CFC's subpart F income for such taxable year, (ii) its pro
rata share of the CFC's increase in earnings invested in United States property
for such year and (iii) its pro rata share of the lesser of the CFC's earnings
and profits accumulated in taxable years beginning after September 30, 1993 or
the amount of the CFC's passive assets in excess of twenty-five percent (25%) of
total assets, computed on the basis of treating all CFC's commonly owned,
directly or indirectly, by a more than fifty percent (50%) CFC parent as a
single CFC. Thus, immediately prior to the Reorganization, Triton Delaware is,
and has been, subject to the deemed income inclusion provisions described above
as the only United States shareholder of Triton Delaware's foreign subsidiaries.
After the Reorganization, Triton Delaware will continue to be subject to the
deemed inclusion provisions with respect to any foreign subsidiaries that
continue to be owned by Triton Delaware and Triton Cayman will not be subject to
any deemed income inclusion with respect to its other direct or indirect
subsidiaries.
CAYMAN ISLANDS TAX CONSEQUENCES
According to Cayman Islands counsel, W.S. Walker & Company, at the present
time there is no Cayman Islands income or profits tax, withholding tax, capital
gains tax, capital transfer tax, estate duty or inheritance tax payable by a
Cayman Islands company or its shareholders, other than shareholders resident in
the Cayman Islands. Triton Cayman has obtained an assurance from the Minister of
Finance of the Cayman Islands under the Tax Concessions Law (Revised) that, in
the event that any legislation is enacted in the Cayman Islands imposing tax
computed on profits or income, or computed on any capital assets, gain or
appreciation, or any tax in the nature of estate duty or inheritance tax, such
tax shall not until October 31, 2015 be applicable to Triton Cayman or to any of
its operations or to the shares, debentures or other obligations of Triton
Cayman except insofar as such tax applies to persons ordinarily resident in the
Cayman Islands and holding such shares, debentures or other obligations of
Triton Cayman or any land leased or let to Triton Cayman. Therefore, there will
be no Cayman Islands tax consequences with respect to the Reorganization or with
respect to subsequent distributions in respect of the Shares.
DESCRIPTION OF AUTHORIZED SHARES OF TRITON CAYMAN
The following statements with respect to Triton Cayman's capital stock are
subject to the detailed provisions of Triton Cayman's Articles of Association
(the "Articles of Association"), its Memorandum of Association (the "Memorandum
of Association"), the resolutions with respect to the Preference Shares (the
"Resolutions"), and the Preference Share Purchase Rights created pursuant to the
Rights Agreement to be entered into between Triton Cayman and Chemical Bank, as
Rights Agent (the "Rights Agreement"). These statements do not purport to be
complete and, while Triton Cayman believes the descriptions of the material
provisions of the Articles of Association, Memorandum of Association,
Resolutions and Rights Agreement contained in this Proxy Statement/Prospectus
are accurate statements with respect to such material provisions, such
statements are subject to the detailed provisions in the Articles of
Association, Memorandum of Association, Resolutions and Rights Agreement to
which reference is hereby made for a full description of such provisions.
ORDINARY SHARES; GENERAL
The Articles of Association provide that the authorized share capital of
Triton Cayman is divided into 200,000,000 Class A Shares, 10,000,000 Class B
Shares, 10,000,000 class C ordinary shares, par value $.01 per share (the "Class
C Shares"), and 20,000,000 preference shares. The Class A Shares, the Class B
Shares and the Class C Shares rank pari passu in all respects and have equal
voting and other rights, except as set forth in the Articles of Association. For
purposes of the discussion under "Description of Authorized Shares of Triton
Cayman," the term "Ordinary Shares" includes Class A Shares, Class B Shares and
Class C Shares.
As described under "The Reorganization -- Equity Unit Election," at the
Effective Time, subject to the Equity Unit Limitation, each Equity Unit
exchanged for an Electing Share will be comprised of one Class B Share and
one-tenth of one share of Triton Delaware Preferred Stock, which securities will
be paired and will not be separately transferable. The aggregate number of Class
B Shares
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issuable will be the aggregate number of Equity Units for which shares of Triton
Delaware Common Stock are exchanged in the Merger. As described below, one Class
A Share is designed to generally have economic rights substantially equivalent
to the rights of the securities included in an Equity Unit, considered as a
whole, except that, among other things, the holders of Equity Units, as a result
of their ownership of the Triton Delaware Preferred Stock component of the
Equity Units, are entitled to certain liquidation preferences and dividend and
voting and other rights with respect to Triton Delaware (see "Description of
Triton Delaware Preferred Stock") and the holders of Class A Shares are entitled
to certain additional rights over the holders of Class B Shares with respect to
Triton Cayman. See "Dividend Rights," "Purchase of Equity Units," "Liquidation
of Triton Delaware" and "Liquidation of Triton Cayman" below.
The rights of holders of Class B Shares have been specifically designed to
permit such shares to be paired with and only transferable with one-tenth of one
share of Triton Delaware Preferred Stock in the form of an Equity Unit that is
to be distributed only in connection with the Merger to holders electing to
receive such consideration. Accordingly, it is not intended that there be, and
the Articles of Association do not permit, any further issuances of Class B
Shares, or any security convertible into or exchangeable for any Class B Shares
or any option or right of subscription to acquire any Class B Shares, except in
connection with a stock dividend or stock split of Class B Shares. It is
intended that Class A Shares will be available for future issuances of equity
securities, if any, required by Triton Cayman to raise capital, in connection
with acquisitions or otherwise. Accordingly, the Articles of Association provide
for a greater number of Class A Shares to be authorized than Class B Shares.
Moreover, because there will be no separate trading market for the Class B
Shares and because the Class B Shares are not intended to be transferable
independently of the shares of Triton Delaware Preferred Stock, any stock
dividend of Class B Shares or any Class B Shares resulting from a consolidation
or subdivision of the capital of Triton Cayman will be included in an Equity
Unit. Pursuant to the Articles of Association, the number of Class B Shares
included in an Equity Unit may be adjusted from time to time to take account of
such events; PROVIDED, HOWEVER, that the number of Class B Shares included in an
Equity Unit is required to be a whole number. One-tenth of one share of Triton
Delaware Preferred Stock will be included in an Equity Unit. The number of Class
B Shares included in an Equity Unit is hereinafter referred to as the "Pairing
Ratio." As of the Effective Time, the Pairing Ratio will be one.
It is intended that the Class C Shares will only be issued if (i) Triton
Cayman exercises its right to purchase the Equity Units as described under
"Description of Triton Delaware Preferred Stock - Purchase of Equity Units,"
(ii) Triton Cayman chooses to use Ordinary Shares rather than cash in connection
with such purchase and (iii) the Cumulative Dividend Amount (as hereinafter
defined) is a positive number. See "Purchase of Equity Units." The holders of
the Class C Shares will be entitled to the same dividend rights, liquidation
preferences and voting and other rights as the holders of the Class A Shares
described below, except that they will be subject to certain preferential rights
of the holders of the Class A Shares. See "Dividend Rights" and "Liquidation of
Triton Cayman" below.
VOTING AND OTHER RIGHTS
Under the Articles of Association, the holders of Ordinary Shares will be
entitled to one vote for each share held on all matters submitted to
shareholders' meetings, including the election and removal of directors, and
will vote together as a single class with any voting preference shares unless
the terms of any voting preference shares otherwise provide. The Articles of
Association of Triton Cayman provide that the quorum required for a general
meeting of the shareholders is a majority of the outstanding Ordinary Shares
entitled to vote at such meeting. All matters voted upon at any duly held
shareholders' meeting shall be carried by a majority of the votes cast at the
meeting by shareholders represented in person or by proxy, except (i) election
of directors, who are elected by plurality vote, (ii) approval of a merger or a
similar arrangement, which, pursuant to Cayman Islands law, requires the
approval by 75% of the votes cast (but, in any event, under the Articles of
Association, at least a majority of the outstanding shares), and (iii) approval
of a Special Resolution (as defined below). See "Comparison of Rights of
Stockholders -- Stockholder Approval of Business Combinations." A
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change of corporate name, the voluntary dissolution, liquidation or winding-up
of the affairs of Triton Cayman, a reduction of paid-up share capital, and any
amendment to Triton Cayman's Articles of Association or Memorandum of
Association require approval by a Special Resolution by the shareholders of
Triton Cayman. A Special Resolution requires the approval of at least two-thirds
of the votes cast by the shareholders represented in person or by proxy at a
duly convened meeting. The Board of Directors or the President may at any time
proceed to convene a general meeting of Triton Cayman. Triton Cayman must
provide at least 10 days' notice of a general meeting.
Because holders are not entitled to cumulate their votes, shareholders
holding a majority of the outstanding Ordinary Shares, voting together as a
class with the holders of any voting preference shares which may be issued, are
able to elect all members of the board of directors of Triton Cayman. The
Articles of Association of Triton Cayman provide that the directors are to be
elected in three classes of approximately equal number and for a term of three
years, with the result that shareholders will not vote for the election of a
majority of directors in any single year. Holders of Ordinary Shares have no
preemptive rights.
As the registered holder of the Class B Shares contained in the Equity
Units, pursuant to the Articles of Association, the Depositary will be entitled
to appoint one or more persons (who may be one or more holders of the Unit
Depositary Shares) to act as its representative at any general meeting of Triton
Cayman. Any person so authorized may attend, vote and speak at such meeting as
if he were an individual shareholder of Triton Cayman in respect of the number
of Class B Shares that he is authorized to represent. It is presently expected
that the Depositary will authorize each holder of a Unit Depositary Share to act
as its representative with respect to the number of Class B Shares included in
Equity Units represented by the Receipt of that holder. The Articles of
Association provide that whenever the share capital of Triton Cayman is divided
into different classes of shares, the rights attached to any class may (unless
otherwise provided by the terms of issue of the shares of that class) be varied
only with the consent in writing of all holders of such class or pursuant to a
Special Resolution adopted at a meeting with such holders voting separately as a
class.
The Articles of Association further provide that, unless otherwise provided
by the rights attached to any shares, such rights will not be deemed to be
varied by the allotment of further shares which confer on the holders voting
rights more favorable than those conferred by such shares. Such rights will not
otherwise be deemed to be varied by the creation or issuance of further shares,
including any additional Class A Shares, Class B Shares or Class C Shares or
different classes of shares with preferential rights as to dividends or capital.
There are no limitations on the right of nonresident shareholders to hold or
vote their Ordinary Shares imposed by Cayman Islands law or Triton Cayman's
Articles of Association.
SPECIAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS
The Articles of Association provide that as long as the Class B Shares (or
Class C Shares) are outstanding, Triton Cayman shall not enter into any
agreement with another entity providing for the consolidation, merger,
amalgamation or other similar transaction of Triton Cayman and such other entity
if the holders of Ordinary Shares receive consideration in respect of such
transaction and the consideration to be received by holders of the Equity Units
per Equity Unit or per share by holders of Class B Shares (or Class C Shares)
(in each case, less the amount due per Class A Share in respect of the
Cumulative Dividend Amount (as defined below) or the Liquidation Available
Amount (as defined below), as the case may be) is less than the consideration to
be received by holders of the Class A Shares per share in connection with such
consolidation, merger, amalgamation or other similar transaction, unless such
agreement shall have been approved by the holders of a majority of the Class B
Shares (or Class C Shares), voting separately as a class.
In addition, the Rights Agreement provides that at any time after any person
or group of persons (an "Offeror") makes an offer to acquire all or part of the
Class A Shares, unless at the same time such offeror makes an offer to acquire
the Equity Units or Class B Shares (or Class C Shares) for the same
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consideration (as determined in good faith by the Board of Directors) and upon
the same conditions per unit or per share as that offered in respect of a Class
A Share (less the amount due per Class A Share in respect of the Cumulative
Dividend Amount or the Liquidation Available Amount, as the case may be), then
the Board of Directors of Triton Cayman shall not be permitted to redeem the
rights issued pursuant to the Rights Agreement during the pendency of such
offer. See "-- Preference Shares -- Preference Share Purchase Rights."
DIVIDEND RIGHTS
The holders of Ordinary Shares will be entitled at any time to receive such
dividends as are declared by the Board of Directors. The ability of Triton
Cayman to pay dividends on capital stock is restricted by covenants in
indentures to which Triton Cayman will be a party upon the consummation of the
Reorganization. Triton Cayman currently intends to retain earnings for use in
Triton Cayman's business and the financing of its capital requirements. The
payment of any future cash dividends is necessarily dependent upon the earnings
and financial needs of Triton Cayman, along with applicable legal and
contractual restrictions.
Aggregate dividends declared and paid on one Class A Share, if any, are
expected to be equivalent to the aggregate dividends declared and paid on
one-tenth of one share of Triton Delaware Preferred Stock and one Class B Share
included in one Equity Unit if any. The holders of the Equity Units, in their
capacity as holders of shares of Triton Delaware Preferred Stock, may receive
dividends at a time or times when no dividends are being declared or paid on the
Class A Shares or the Class B Shares. See "Description of Triton Delaware
Preferred Stock." Accordingly, the Articles of Association contain certain
provisions which regulate the relative amounts of any dividends which may be
declared or paid on the Class A Shares and the Class B Shares as described
below.
The holders of Class A Shares will be entitled, on the declaration of a
dividend, at any time, to a dividend on each Class A Share of an amount which
exceeds the amount of the dividend (if any) declared at the same time on a Class
B Share (or Class C Share), by an amount equal to (i) the Cumulative Dividend
Amount (as defined below) at such time divided by (ii) the Pairing Ratio at such
time, and to the extent of any such excess, a dividend may be declared at any
time on the Class A Shares even if no dividend is declared at the same time on
the Class B Shares (or Class C Shares). (Such provision is referred to
hereinafter as the "Dividend Provision".) The term "Cumulative Dividend Amount"
at any time is defined to mean the amount by which the aggregate of all
dividends declared on one-tenth of one share of Triton Delaware Preferred Stock
from the date of adoption of the Articles of Association up to and including the
time of determination exceeds the amount (if any) by which (x) the sum of the
products of the amount of each dividend declared on one Class A Share from the
date of adoption of the Articles of Association until immediately prior to the
time of determination and the Pairing Ratio in effect as of the date of its
declaration, exceeds (y) the sum of the products of the amount of each dividend
declared on one Class B Share from the date of adoption of the Articles of
Association until immediately prior to the time of determination and the Pairing
Ratio in effect as of the date of its declaration. For purposes of the Dividend
Provision, dividends on shares of Triton Delaware Preferred Stock are deemed to
be declared when resolved to be declared on the Triton Delaware Preferred Stock
by Triton Delaware's Board of Directors. Dividends on Class A Shares and Class B
Shares are deemed to be declared when the Board of Directors of Triton Cayman
resolves to declare any dividend.
As a result of the Dividend Provision, for so long as the authorized capital
stock of Triton Cayman is divided into Class A Shares and Class B or Class C
Shares, if the Board of Directors of Triton Cayman determines to pay dividends
on the share capital of Triton Cayman and dividends have been paid in prior
periods by Triton Delaware on the Triton Delaware Preferred Stock when no
corresponding dividend was paid on the Class A Shares, Triton Cayman may be
required to pay dividends on the Class A Shares when no or a lesser dividend is
being paid on the Class B Shares or Class C Shares or the shares of Triton
Delaware Preferred Stock included in an Equity Unit. The Dividend Provision does
not impute any interest component on dividends paid in earlier periods when
determining the appropriate allocation of dividends in any given subsequent
period.
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PURCHASE OF EQUITY UNITS
In the event Triton Cayman or Triton Delaware purchases the Equity Units,
holders of Class A Shares are not entitled to any payment in respect of any
amounts paid in cash or Class A Shares or Class C Shares, as the case may be, as
the purchase price for the Equity Units. See "Description of Triton Delaware
Preferred Stock -- Purchase of Equity Units."
The Articles of Association provide that if all of the Equity Units are
purchased by Triton Cayman or Triton Delaware, the Pairing Ratio will thereafter
be deemed to be the Pairing Ratio in effect on the date of the last such
purchase, adjusted in relation to any time thereafter in the case of a stock
split, stock combination or stock dividend by the Company after such time as if
such purchase had not occurred.
In the event that the Equity Units are purchased at a time when the
Cumulative Dividend Amount is positive, and Class C Shares are issued as part of
the Purchase Price, at such time as the Cumulative Dividend Amount has been
reduced to zero, whether by means of cash or stock dividends to the holders of
Class A Shares, the Board may resolve that each Class C Share then outstanding
will be converted into one Class A Share and thereafter there shall be one class
of ordinary shares.
LIQUIDATION OF TRITON DELAWARE
At any time after the liquidation, dissolution or winding-up of Triton
Delaware has been completed, the Board of Directors of Triton Cayman may in its
discretion determine (which determination shall be final and binding) that the
Class B Shares included in the Equity Units should be allowed to be transferred
separately. In addition, at any time after such liquidation, dissolution or
winding-up has been completed, the Board of Directors of Triton Cayman may
ascertain the product of (a) the sum of (i) the amount of the Liquidation
Preference, if any, paid in respect of one-tenth of one share of Triton Delaware
Preferred Stock plus the amount of any other distribution to the holders of
one-tenth of one share of Triton Delaware Preferred Stock in connection with the
liquidation, dissolution or winding-up and (ii) the Cumulative Dividend Amount
immediately preceding the time of such determination times (b) the number of
Class A Shares outstanding at such time divided by the Pairing Ratio at such
time. Such product at any time is referred to as the "Liquidation Available
Amount" at such time.
In any such event, the Board of Directors of Triton Cayman may, in its
discretion, at any time and from time to time, apply all or any part of any
Liquidation Available Amount to declare dividends in cash to the holders of the
Class A Shares and/or to pay stock dividends on the Class A Shares in each case
in accordance with the provisions described below. Any such cash or stock
dividend will reduce the then applicable Liquidation Available Amount by the
amount so applied (determined in accordance with the terms of the Articles of
Association) and the Cumulative Dividend Amount will be reduced correspondingly.
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If the Board of Directors of Triton Cayman determines at any time to utilize
all or any part of the then applicable Liquidation Available Amount for the
declaration of a stock dividend payable in Class A Shares to the holders of the
Class A Shares (any amount to be so utilized, the "Specified Amount"), the
aggregate number of additional Class A Shares to be so distributed will be
calculated by dividing the then applicable Specified Amount by the average of
the Closing Prices (as defined under "Description of Triton Delaware Preferred
Stock -- Purchase of Equity Units") for the Class A Shares on the five
consecutive trading days ending five days prior to the date on which the Board
of Directors of Triton Cayman announces its intention to declare such stock
dividend. Such stock dividend may only be made if the amount by which the
Liquidation Available Amount will be reduced as a result of such stock dividend
divided by the number of Class A Shares entitled to such stock dividend and
multiplied by the Pairing Ratio at that time, equals or exceeds the amount of
the Cumulative Dividend Amount (if any) at the time of the payment. Such stock
dividend will be made to the holders of record of the Class A Shares, on the
date determined for such purpose by the Board, in the proportions to which they
would have been entitled had such sum been distributed in cash.
The Board is not required to make any such distribution, but, to the extent
that it does, distributions in cash or stock dividends of additional Class A
Shares will be made to the holders of Class A Shares and not to the holders of
Class B Shares. In the event of any liquidation, dissolution or winding-up of
Triton Delaware, holders of the Equity Units, by virtue of holding one-tenth of
one share of Triton Delaware Preferred Stock included in each Equity Unit, will
be entitled to receive out of the assets of Triton Delaware available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any distribution is made to holders of the common stock of Triton
Delaware or other junior stock, the Liquidation Preference.
The Articles of Association provide that if Triton Delaware is dissolved,
liquidated or wound up, the Pairing Ratio will thereafter be deemed to be the
Pairing Ratio in effect as of the date of completion of such liquidation,
dissolution or winding-up, as the case may be, adjusted in relation to any time
thereafter in the case of a stock split, stock combination or stock dividend
after such time as if such liquidation, dissolution or winding-up had not
occurred.
If Triton Delaware has been liquidated, dissolved or wound up and the
Liquidation Available Amount has been reduced to zero, whether by means of cash
or stock dividends to the holders of Class A Shares, the Board may resolve that
each Class B Share then outstanding will be converted into one Class A Share and
thereafter there shall be one class of ordinary shares.
LIQUIDATION OF TRITON CAYMAN
The Articles of Association provide that before any amount is paid to the
holders of Class B Shares (or Class C Shares, if any) on a winding-up of Triton
Cayman, the holder of each Class A Share will be entitled to receive an amount
in respect of each Class A Share held by him equal to the sum of (a) the amount
of the Liquidation Preference paid, if any, in respect of one-tenth of one share
of Triton Delaware Preferred Stock plus the amount of any other distribution to
the holders of one-tenth of one share of Triton Delaware Preferred Stock in
connection with the liquidation dissolution or winding-up of Triton Delaware,
plus (b) the Cumulative Dividend Amount as at the commencement of the winding-up
of Triton Cayman, divided by the Pairing Ratio at such date. The holder of a
Class B Share (or Class C Share) will thereafter have the right to participate
in any assets of Triton Cayman PARI PASSU with the holder of a Class A Share.
The Articles of Association provide for an adjustment to the foregoing in the
event that the whole or any part of the Liquidation Available Amount has been
applied to the declaration of cash dividends on, or stock dividends in, Class A
Shares in the event of the prior liquidation of Triton Delaware (see
"Liquidation of Triton Delaware" above).
If, at the time of any such liquidation, the holder of Class A Shares or
Class B Shares has any outstanding debts, liabilities or engagements to or with
Triton Cayman (whether presently payable or not), either alone or jointly with
any other person, whether a shareholder or not (including, without limitation,
any liability associated with the unpaid purchase price of such Ordinary
Shares), the liquidator appointed to oversee the liquidation of Triton Cayman
may deduct from the amount
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payable in respect of such Ordinary Shares the aggregate amount of such debts,
liabilities and engagements and apply such amount to any of such holder's debts,
liabilities or engagements to or with Triton Cayman (whether presently payable
or not). The liquidator may distribute, in kind, to the holders of the Ordinary
Shares remaining assets of Triton Cayman or may sell, transfer or otherwise
dispose of all or any part of such remaining assets to any other company, trust
or entity and receive payment therefor in cash, shares or obligations of such
other company, trust or entity or any combination thereof, and may sell all or
any part of the consideration so received, and may distribute the consideration
received or any balance or proceeds thereof to holders of the Ordinary Shares in
accordance with the procedures set forth above. The liquidator may, with the
like sanction, vest the whole or any part of such assets in trustees upon such
trusts for the benefit of the contributories as the liquidator, with the like
sanction shall think fit, but so that no shareholder shall be compelled to
accept any shares or other securities whereon there is any liability.
CHANGES IN CAPITALIZATION
Triton Cayman may by Special Resolution (i) increase its share capital by
new shares of such amounts as the resolution prescribes; (ii) consolidate all or
any of its share capital into shares of larger amount than its existing shares
(similar to a stock combination); (iii) subject to the provisions of the
Companies Law, sub-divide its shares or any of them, into shares of smaller
amount than is fixed by its Articles of Association and the resolution may
determine that, as between the shares resulting from the sub-division (similar
to a stock split); and (iv) cancel shares which, at the date of the passing of
the resolution, have not been taken or agreed to be taken by any person and
diminish the amount of its share capital by the amount of the shares so
cancelled provided that, for as long as Triton Cayman's share capital is divided
into Class A Shares, Class B Shares and Class C Shares, no consolidation or
sub-division may be effected by Triton Cayman unless (a) immediately following
any consolidation or sub-division, the ratio of the number of Class A Shares
then outstanding to the number of Class B Shares and Class C Shares then
outstanding is equal to such ratio immediately preceding such consolidation or
sub-division and (b) the effect thereof will result in an Equity Unit comprising
a whole number of Class B Shares and one-tenth of one share of Triton Delaware
Preferred Stock. All Class B Shares resulting from such consolidation or
sub-division will be thereafter included in Equity Units, resulting in a
corresponding adjustment in the Pairing Ratio.
DISTRIBUTIONS
The Articles of Association provide that, for as long as the share capital
of Triton Cayman is divided into Class A Shares, Class B Shares and Class C
Shares, Triton Cayman will not (except for certain distributions provided for in
the Articles of Association) make any offer or distribution of any share capital
of Triton Cayman or any option, right or warrant to subscribe for or purchase
any share capital of Triton Cayman, or any other security convertible into or
exchangeable for share capital of Triton Cayman to the holders of any class of
Ordinary Shares unless an offer or distribution on the same basis (in all
material respects) is made to the holders of any other class of Ordinary Shares
outstanding, subject to the Board of Directors of Triton Cayman having certain
rights to deal with shareholders in any territory (other than the Cayman Islands
or the United States) and fractional entitlements. Dividends to be satisfied by
distributions of property other than cash will be made or paid (as the case may
be) on the same basis (in all material respects) to holders of Ordinary Shares,
but no such distribution may be made unless at the time of declaration the
Cumulative Dividend Amount is zero.
No Class B Shares or Class C Shares, or any security convertible into or
exchangeable for any Class B Shares or Class C Shares, may be issued and no
option or right of subscription to acquire any Class B Shares or Class C Shares
may be granted, except in connection with a stock dividend of Class B Shares or
Class C Shares or, with respect to Class B Shares only, in connection with the
Merger or, with respect to Class C Shares only, in connection with the purchase
of the Equity Units.
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STOCK DIVIDENDS
The Articles of Association provide that the Board of Directors of Triton
Cayman may declare and pay stock dividends to the extent permitted by Cayman
Islands law (without the need for shareholder approval), provided that (a) stock
dividends of Class B Shares (or Class C Shares) may be declared only on the
Class B Shares (or Class C Shares) and only if the Board of Directors
simultaneously declares a stock dividend on each Class A Share of a number of
Class A Shares equal to the number of Class B Shares (and Class C Shares) being
so issued on each Class B Share (or Class C Shares) and (b) except with respect
to stock dividends applied to the Liquidation Available Amount after Triton
Delaware has been liquidated, dissolved or wound-up, stock dividends of Class A
Shares may be declared only if the Board simultaneously declares either (i) a
stock dividend on each Class B Share (or Class C Share) of a number of Class B
Shares (or Class C Shares) equal to the number of Class A Shares then being
issued on each Class A Share or (ii) a stock dividend of an equal number of
Class A Shares on each Class A Share and each Class B Share (and Class C Share).
No Class A Shares, Class B Shares or Class C Shares Shares may be issued as
stock dividends unless the effect would be to result in an Equity Unit
containing a whole number of Class B Shares and one-tenth of one share of Triton
Delaware Preferred Stock. All Class B Shares issued in connection with any stock
dividend will be thereafter included in Equity Units resulting in a
corresponding adjustment in the Pairing Ratio.
REDUCTION OF CAPITAL AND PURCHASE OF SHARES
Subject to the provisions of the Companies Law, Triton Cayman may by Special
Resolution reduce its share capital in any way provided that no such reduction
may be made if as a result all of the Class B Shares contained in Equity Units
will be cancelled unless prior to such reduction becoming effective the Board of
Directors of Triton Cayman is satisfied that the fraction of a share of Triton
Delaware Preferred Stock contained in such Equity Units will be cancelled and
any determination by the Board that it is so satisfied shall be conclusive and
binding.
Subject to the provisions of the Companies Law, any issued and outstanding
Ordinary Shares may be redeemed by Triton Cayman in such circumstances and on
such terms as shall be agreed by Triton Cayman and the holder thereof, and
Triton Cayman may deduct from the purchase price therefor the aggregate amount
of any outstanding debts, liabilities and engagements to or with Triton Cayman
by the holder of such shares. Triton Cayman may purchase all or part of the
Ordinary Shares of any holder upon the agreement of such holder whether or not
it has made a similar offer to all or any other holders. Notwithstanding the
foregoing, no purchase may be made of any Class B Shares contained in any Equity
Units unless Triton Cayman (or if Triton Delaware purchases the Equity Unit,
Triton Delaware) purchases the entire Equity Unit as set forth under "Purchase
of Equity Units."
TRANSFER OF SHARES
Upon surrender to Triton Cayman or the transfer agent of Triton Cayman of a
certificate for Ordinary Shares duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, and otherwise meeting all
legal requirements for transfer, Triton Cayman shall issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction on its books. Triton Cayman may refuse to register the transfer of
shares of any holder which have been called for redemption unless otherwise
provided by the terms of such shares or the Board of Directors in connection
with the call of such shares.
The Board of Directors of Triton Cayman shall refuse to register the
transfer of any Class B Share contained in an Equity Unit unless there is
produced to the Board of Directors of Triton Cayman such evidence as it may in
its discretion require to ensure that on the same occasion there is being
transferred to the same person the fraction of a share of Triton Delaware
Preferred Stock and any other Class B Shares contained in the same Equity Unit.
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PREFERENCE SHARES
GENERAL
Under the Articles of Association, Triton Cayman has authority to issue
20,000,000 preference shares. There are currently no preference shares
outstanding; however, Triton Cayman has authorized the issuance of up to 420,000
preference shares to be designated the 5% convertible preference shares (the
"Convertible Preference Shares"). Upon consummation of the Reorganization, each
share of Convertible Preferred Stock of Triton Delaware will be automatically
converted into one Convertible Preference Share, subject to dissenters' rights.
As of February 9, 1996, there were 410,017 shares of Convertible Preferred Stock
outstanding. Under the Articles of Association of Triton Cayman, the Board of
Directors of Triton Cayman may establish one or more additional classes or
series of preference shares having the number of shares, designations, relative
voting rights, dividend rates, liquidation and other rights, preferences, and
limitations that the Board of Directors fixes without any shareholder approval.
Such provisions could hinder an attempt to acquire control of Triton Cayman.
CONVERTIBLE PREFERENCE SHARES
DIVIDENDS. Holders of Convertible Preference Shares will be entitled to
receive, when, as, and if declared by the Board of Directors of Triton Cayman
out of funds of Triton Cayman legally available for payment, cumulative cash
dividends at the annual rate per share equal to 5 percent of the Redemption
Price (defined below) of the shares payable semi-annually on September 30 and
March 30 in each year commencing March 30, 1996, 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 Preference Shares are issued and will be
payable to holders of record as they appear on the stock books of Triton Cayman
on such record dates as are fixed by the Board of Directors of Triton Cayman.
The amount of dividends payable 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 shall be an amount equal to the dividend
accumulated and unpaid with respect to the Convertible Preferred Stock of Triton
Delaware through the Effective Time plus an amount equal to the dividend
accumulated with respect to the Convertible Preference Shares from the Effective
Time through such dividend payment date. The amount of dividends payable 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 Preference Shares which may
be in arrears.
If dividends on the Convertible Preference Shares 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 Preference Shares shall be increased by an amount equal to the prime
rate of Morgan Guaranty Trust Company of New York as in effect on each
Calculation Date plus 1 percent applied against the amount of dividends so due
and unpaid until such dividends shall be paid (the "Penalty Dividend").
The Convertible Preference Shares will have priority as to dividends over
Ordinary Shares and any other series or class of Triton Cayman's shares
hereafter issued which ranks junior as to dividends to the Convertible
Preference Shares ("Junior Dividend Shares"), and no dividend (other than
dividends payable solely in Junior Dividend Shares) may be paid on, and no
purchase, redemption, or other acquisition may be made by Triton Cayman of, any
Junior Dividend Shares unless all accrued and unpaid dividends on the
Convertible Preference Shares have been paid or declared and set apart for
payment. Triton Cayman may not pay dividends on any class or series of its
shares having parity with the Convertible Preference Shares as to dividends
("Parity Dividend Shares"), 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 Preference
Shares and may not pay dividends on the Convertible Preference Shares 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 Shares. Notwithstanding the preceding
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sentence, whenever all accrued dividends are not paid in full on the Convertible
Preference Shares or any Parity Dividend Shares, all dividends declared on the
Convertible Preference Shares and such Parity Dividend Shares will be declared
or made pro rata so that the amount of dividends declared per share on the
Convertible Preference Shares and such Parity Dividend Shares will bear the same
ratio that accrued and unpaid dividends per share on the Convertible Preference
Shares and such Parity Dividend Shares bear to each other. The Convertible
Preference Shares will be junior as to dividends to any series or class of
Triton Cayman's stock hereafter issued which ranks senior as to dividends to the
Convertible Preference Shares ("Senior Dividend Shares"), and if at any time
Triton Cayman has failed to pay or declare and set apart for payment accrued and
unpaid dividends on any senior dividend stock, Triton Cayman may not pay any
dividend on the Convertible Preference Shares.
LIQUIDATION RIGHTS. In case of the voluntary or involuntary liquidation,
dissolution, or winding up of Triton Cayman, holders of Convertible Preference
Shares are entitled to receive an amount per share equal to the Redemption
Price, plus any accrued and unpaid dividends (including Penalty Dividends) to
the payment date (the "Liquidation Price"), before any payment or distribution
is made to the holders of Ordinary Shares or any other series or class of Triton
Cayman's shares hereafter issued which ranks junior as to liquidation rights to
the Convertible Preference Shares, but the holders of Convertible Preference
Shares will not be entitled to receive the Liquidation Price of such shares
until the liquidation price of any other series or class of Triton Cayman's
shares hereafter issued which ranks senior as to liquidation rights to the
Convertible Preference Shares ("Senior Liquidation Shares") has been paid in
full; provided, if, at such time, any holder of Convertible Preference Shares
has any outstanding debts, liabilities or engagements to or with Triton Cayman
(whether presently payable or not), either alone or jointly with any other
person, whether a shareholder or not, (including, without any limitation, any
liability associated with the unpaid purchase price of such Convertible
Preference Shares), the liquidator appointed to oversee the liquidation of
Triton Cayman shall deduct from the fixed liquidation amount payable in respect
of such Convertible Preference Shares the aggregate amount of such debts,
liabilities and engagements and apply such amount to any of such debts,
liabilities or engagements. The holders of Convertible Preference Shares and all
series or classes of Triton Cayman's shares hereafter issued which rank on a
parity as to liquidation rights with the Convertible Preference Shares 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 Shares) 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 Convertible Preference Shares, the holders of
such shares will not be entitled to any further participation in any
distribution of assets by Triton Cayman. Neither a consolidation or merger of
Triton Cayman with another company nor a sale or transfer of all or part of
Triton Cayman's assets for cash, securities, or other property will be
considered a liquidation, dissolution, or winding up of Triton Cayman.
REDEMPTION. Triton Cayman may, at its option, redeem the Convertible
Preference Shares, in whole or in part, at any time on or after March 30, 1998
or such earlier date after such time as there are fewer than 133,005 Convertible
Preference Shares outstanding. The redemption price payable upon such optional
redemption shall be the Redemption Price plus any accrued and unpaid dividends
(including Penalty Dividends) to the redemption date. Such Redemption Price
shall be payable in cash.
The Convertible Preference Shares shall be subject to mandatory redemption
by Triton Cayman on March 30, 2004. At the option of Triton Cayman, such
redemption may be for (i) cash at the Redemption Price plus any accrued and
unpaid dividends (including Penalty Dividends) to the redemption date; (ii) such
number of Class A Shares whose aggregate value (based on the then current market
price determined as set forth in the resolution of the Board of Directors
designating the Convertible Preference Shares) equals the Redemption Price plus
any accrued and unpaid dividends
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(including Penalty Dividends) to the redemption date; or (iii) a combination of
cash and Class A Shares equal to the Redemption Price plus any accrued and
unpaid dividends (including Penalty Dividends) to the redemption date. The
Redemption Price equals $34.41 per share.
VOTING RIGHTS. The holders of Convertible Preference Shares will have no
voting rights except as described below or as required by Cayman Islands law. In
exercising any such vote each outstanding Convertible Preference Share will be
entitled to one vote.
So long as any Convertible Preference Shares are outstanding, Triton Cayman
will not, without the affirmative vote or consent of the holders of at least
two-thirds of the outstanding Convertible Preference Shares, voting or
consenting separately as a class with holders of any other class of Triton
Cayman's preference shares similarly affected, issue other than wholly for cash
consideration, any shares of any class of Senior Dividend Shares or Senior
Liquidation Shares, or amend the Articles of Association in a manner adversely
affecting the rights of such shareholders.
The Articles of Association may be amended to increase the number of
authorized shares of Triton Cayman's preference shares without the vote of the
holders of the outstanding Convertible Preference Shares.
The holders of the Convertible Preference Shares have no pre-emptive rights
with respect to any shares of capital stock of Triton Cayman or any other
securities of Triton Cayman convertible into or carrying rights or options to
purchase any such shares.
CONVERSION RIGHTS. The holders of Convertible Preference Shares will be
entitled to convert their Convertible Preference Shares into Class A Shares
subject to the qualifications described below, except that, with respect to
Convertible Preference Shares called for redemption, conversion rights will
expire at the close of business on the fifth day prior to the redemption date
(unless Triton Cayman defaults in the payment of the Redemption Price). No
payment or adjustment will be made in respect of dividends on the Convertible
Preference Shares that may be accrued or unpaid or in arrears upon conversion of
shares of Convertible Preference Shares except as set forth below. No fractional
shares will be issued and, in lieu of any fractional share, Triton Cayman will
pay a cash adjustment based on the then current market price (determined as set
forth in the resolutions of the Board of Directors designating the Convertible
Preference Shares) of the Class A Shares.
Each Convertible Preference Share shall be convertible initially into one
Class A Share. However, the number of Class A Shares issuable on conversion of
each Convertible Preference Share (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 Class A Shares as a
stock dividend, in connection with combinations and subdivisions of Class A
Shares, upon certain reclassifications of Class A Shares, upon the issuance to
Triton Cayman's shareholders of rights or warrants to subscribe for or purchase
Class A Shares at a price per share less than the then current market price of
Class A Shares, and in connection with certain distributions to Triton Cayman's
shareholders 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 per cent increase or decrease
in the Conversion Price; however, any adjustment not made will be carried
forward.
In case of any consolidation or merger of Triton Cayman with any other
company, or in the case of any merger of another company into Triton Cayman
(other than a merger with a company in which merger Triton Cayman is the
continuing company and which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Triton Cayman), or
in the case of a sale or conveyance of all or substantially all of the assets of
Triton Cayman to another company, Triton Cayman will be required to make proper
provisions so that the holder of each Convertible Preference Share then
outstanding will have the right thereafter to convert such Convertible
Preference Share
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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 Class A Shares into which such Convertible Preference Share might
have been converted immediately prior to such consolidation, merger, sale or
conveyance.
PREFERENCE SHARE PURCHASE RIGHTS
The Board of Directors of Triton Cayman has adopted a Shareholder Rights
Plan pursuant to which preference share purchase rights attach to all Ordinary
Shares at the rate of one right for each Ordinary Share. Chemical Bank is the
Rights Agent for the Preference Share Purchase Rights. Each right entitles the
registered holder to purchase from Triton Cayman one one-thousandth of a Series
A Junior Participating Preference Share, par value $.01 per share (the "Junior
Preference Shares"), of Triton Cayman at a price of $120 per one one-thousandth
of a share of such Junior Preference Shares, subject to adjustment.
Generally, the rights only become distributable ten days following public
announcement that a person has acquired beneficial ownership of 15% or more of
the Ordinary Shares or ten business days following commencement of a tender or
exchange offer for 15% or more of the outstanding Ordinary Shares. If, among
other events, any person becomes the beneficial owner of 15% or more of the
Ordinary Shares, each right not owned by such person generally becomes the right
to purchase such number of Class A Shares that is equal to the amount obtained
by dividing the right's exercise price (currently $120) by 50% of the market
price of the Class A Shares on the date of the first occurrence. In addition, if
Triton Cayman is subsequently merged or certain other extraordinary business
transactions are consummated, each right generally becomes a right to purchase
such number of 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 Ordinary Shares on the date of the first occurrence.
Under certain circumstances, Triton Cayman's directors may determine that a
tender offer or merger is fair to all shareholders and prevent the rights from
being exercised. At any time after any person or group acquires 15% or more of
the Ordinary Shares outstanding and prior to the acquisition by such person or
group of 50% or more of the outstanding Ordinary Shares or the occurrence of an
event described in the prior paragraph, the Board of Directors of Triton Cayman
may exchange the rights (other than rights owned by such person or group which
will have become void), in whole or in part, at an exchange ratio of one
Ordinary Share, or one one-thousandth of a Junior Preference Share per right
(subject to adjustment). Triton Cayman has the ability to amend the rights
(except the redemption price) in any manner prior to the public announcement
that a 15% position has been acquired or a tender offer has been commenced.
Any Junior Preference Shares issued pursuant to the Shareholders Rights Plan
will rank junior as to dividends and liquidation to the Convertible Preference
Shares. Junior Preference Shares purchasable upon exercise of the rights will
not be redeemable. Each Junior Preference Share will be entitled, when, as and
if declared, to a minimum preferential quarterly dividend payment of $1 per
share but will be entitled to an aggregate dividend of 1,000 times the dividend
declared per Class A Share. In the event of liquidation, the holders of the
Junior Preference Shares will be entitled to a minimum preferential liquidation
payment of $1000 per share (plus any accrued but unpaid dividends) but will be
entitled to an aggregate payment of 1,000 times the payment made per Class A
Share. Each Junior Preference Share will have 1,000 votes, voting together with
Ordinary Shares. Finally, in the event of any merger, consolidation or other
transaction in which Ordinary Shares are converted or exchanged, each Junior
Preference Share will be entitled to receive 1,000 times the amount received per
Class A Share. These rights are protected by customary antidilution provisions.
Triton Cayman will be entitled to redeem the rights at $0.01 a right at any
time prior to the time that a 15% position has been acquired; provided that the
Board of Directors will not be permitted to redeem the rights at any time after
any person shall have made an offer to acquire all or part of the Class A
Shares, during the pendency of such offer, unless at the same time such person
shall have made an offer to acquire the Equity Units or the Class B Shares (or
the Class C Shares) for the same
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consideration (as determined in good faith by the Board of Directors) and upon
the same conditions per unit or per share as that offered in respect of a Class
A Share (less certain amounts due to the holders of a Class A Share in respect
of the Cumulative Dividend Amount or the Liquidation Available Amount, as the
case may be). The rights will expire on May 22, 2005.
DESCRIPTION OF TRITON DELAWARE PREFERRED STOCK
GENERAL
Pursuant to the Merger Agreement, each one-tenth of one share of Triton
Delaware Preferred Stock issued will be paired with, and will not trade
separately from, each Class B Share issued to stockholders who make an Equity
Unit Election, subject to the Equity Unit Limitation. See "The Reorganization"
and "Description of Receipts."
Under the Certificate of Incorporation, Triton Delaware has authority to
issue 5,000,000 shares of preferred stock. As of February 9, 1996, there were
410,017 shares of Convertible Preferred Stock outstanding which will be
automatically converted on a share for share basis into Convertible Preference
Shares of Triton Cayman upon the consummation of the Merger. See "Description of
Authorized Shares of Triton Cayman -- Preference Shares -- Convertible
Preference Shares." In connection with the Merger, the certificate of
incorporation of Triton Delaware will be the certificate of incorporation (the
"Certificate of Incorporation") of the surviving corporation and will be amended
and restated as set forth in Exhibit A to the Merger Agreement. The Certificate
of Incorporation contains the same terms and provisions as Triton Delaware's
existing certificate of incorporation except that it provides that (i) the par
value of any capital stock issued by Triton Delaware shall be $.01 per share, as
opposed to $1.00 par value in the case of Triton Delaware Common Stock and no
par value in the case of Triton Delaware's preferred stock, (ii) stockholders
having a sufficient number of votes to approve a corporate act may act without a
meeting by written consent and (iii) directors will be elected annually.
Pursuant to the Certificate of Incorporation, the Board of Directors of
Triton Delaware will be authorized, without further stockholder action, except
as described below under "Voting Rights", to provide for the issuance of one or
more additional series of preferred stock, par value $.01 per share, with such
voting rights, designations, preferences, limitations and special rights as may
be set forth in
resolutions providing for the issuance thereof adopted by the Board of Directors
of Triton Delaware.
The following description of certain provisions of the Triton Delaware
Preferred Stock is intended as a summary only and does not purport to be
complete. While Triton Delaware believes the descriptions of the material
provisions of the Certificate of Incorporation of Triton Delaware (the
"Charter") and the Certificate of Designation for the Triton Delaware Preferred
Stock (the "Designation") are accurate statements with respect to such material
provisions, such statements are subject to the detailed provisions in the
Charter and the Designation and are qualified in their entirety by reference to
the complete text of the Charter and the Designation.
Transfers of Shares of Triton Delaware Preferred Stock will not be
registered unless a number of Class B Shares equal to the Pairing Ratio is
transferred simultaneously to the same transferee.
DIVIDENDS
The Board of Directors of Triton Delaware shall declare a dividend on the
Triton Delaware Preferred Stock at any time the Board of Directors declares a
dividend on the common stock of Triton Delaware outstanding after the Merger.
When, as and if the Board of Directors declares a dividend on the common stock,
the Board of Directors shall simultaneously declare a dividend on the Triton
Delaware Preferred Stock out of funds of Triton Delaware legally available
therefor, such that the aggregate amount of the dividend declared with respect
to the shares of Triton Delaware Preferred Stock shall be a portion of the
aggregate distribition on the Triton Delaware Preferred Stock and the common
stock (and any other series or class that participates in dividends with holders
of the common
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stock) equal to (x) ten times the number of shares of Triton Delaware Preferred
Stock outstanding at the time such distribution is made divided by (y) the total
number of shares of Triton Delaware Common Stock outstanding immediately prior
to the Effective Time.
Under Delaware law, Triton Delaware may declare and pay dividends on its
shares of capital stock out of its surplus and, if there is no surplus, out of
net profits for the current and for the preceding fiscal year, unless the net
assets of Triton Delaware are less than the capital represented by issued and
outstanding stock having a preference on asset distributions. Triton Delaware
currently intends is to retain earnings for use in Triton Delaware's business
and the financing of its capital requirements. The payment of any future cash
dividends is necessarily dependent upon the earnings and financial needs of
Triton Delaware, along with applicable legal and contractual restrictions.
LIQUIDATION RIGHTS
In case of the voluntary or involuntary liquidation, dissolution, or
winding-up of Triton Delaware, a holder of one-tenth of one share of Triton
Delaware Preferred Stock is entitled to receive out of the assets of Triton
Delaware available for distribution to its stockholders an amount equal to the
fair market value of one-tenth of one share of Triton Delaware Preferred Stock
at the Effective Time, which will be determined by Triton Delaware upon the
advice of its financial advisors at the Effective Time (the "Liquidation
Preference"), before any payment or distribution is made to the holders of any
series or class of Triton Delaware's stock which ranks junior as to liquidation
rights to the Triton Delaware Preferred Stock, but the holders of the shares of
the Triton Delaware Preferred Stock will not be entitled to receive the
Liquidation Preference until the liquidation price of any other series or class
of Triton Delaware's stock hereafter issued which ranks senior as to liquidation
rights to the Triton Delaware Preferred Stock ("Senior Liquidation Stock") has
been paid in full. The holders of Triton Delaware Preferred Stock and all series
or classes of Triton Delaware's stock hereafter issued which rank on a parity as
to liquidation rights with the Triton Delaware 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
Preference, the holders of such shares of Triton Delaware Preferred Stock will
be entitled to share with the holders of common stock of Triton Delaware (and
any other class or series of capital stock of Triton Delaware entitled to share
in any such distribution with the holders of the common stock) in any
distribution of assets otherwise made by Triton Delaware to the holders of the
common stock. In connection with any such distribution, the holders of shares of
Triton Delaware Preferred Stock shall be entitled to receive, ratably per
one-tenth of one share of Participating Preferred Stock a portion of such
distribution equal to (x) the product of (i) the number of shares of Triton
Delaware Preferred Stock outstanding at such time multiplied by (ii) ten,
divided by (y) by the total number of shares of Triton Delaware Common Stock
outstanding immediately prior to the Effective Time, and the holders of common
stock of Triton Delaware shall receive the remainder of such distribution.
Neither a consolidation or merger of Triton Delaware with another corporation
nor a sale or transfer of all or part of Triton Delaware's assets for cash,
securities, or other property will be considered a liquidation, dissolution, or
winding-up of Triton Delaware.
PURCHASE OF EQUITY UNITS
Triton Cayman or Triton Delaware may, at its option, purchase Equity Units,
in whole or in part, at any time on or after the third anniversary of the
Effective Time. Triton Cayman may also, at its option, purchase Equity Units, in
whole or in part, at any time immediately prior to the date on which a sale or
other disposition of the stock of Triton Delaware is consummated (including by
merger, consolidation, amalgamation or similar transaction pursuant to which all
of the common stock outstanding prior to such transaction is converted into
cash, securities or other property). The purchase price (the "Purchase Price")
per Equity Unit may be paid in cash or, in the case of a purchase by Triton
Cayman, in Ordinary Shares or a combination thereof. To the extent that the
Purchase Price is paid in cash, the Purchase Price per Equity Unit payable upon
such purchase shall be the greater of (i) 95% of the Fair Market Value (as
defined below) of one Class A Share (less the amount
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due per Class A Share in respect of the Liquidation Available Amount) and (ii)
the Fair Market Value of the Equity Unit. To the extent that the Purchase Price
is paid in Ordinary Shares, the Purchase Price per Equity Unit payable upon such
purchase shall be the greater of (i) .95 of a Class A Share and (ii) the number
of Class A Shares obtained by dividing the Fair Market Value of an Equity Unit
by the Fair Market Value of a Class A Share; provided that, if at the time of
such purchase, the Cumulative Dividend Amount is positive, the same number of
Class C Shares shall be issued in lieu of Class A Shares.
The "Fair Market Value" of a Class A Share or an Equity Unit shall equal the
average of the daily Closing Prices for the 20 consecutive Trading Days (as
defined below) ending 15 days prior to the date of such purchase (the "Purchase
Date"). The Closing Price for each day shall be the last reported sale price of
the Class A Share or the Equity Unit, as the case may be, on the principal
national securities exchange on which such security may be listed or if such
security is not then so listed, the closing price of such security as shown by
the National Association of Securities Dealers, Inc. National Market or, if no
such closing price is available, at the average of the representative last bid
and asked prices of such security in the over-the-counter market, as shown by
the National Association of Securities Dealers, Inc, Automated Quotation System
Level I (or comparable system) or in the absence of any of the foregoing, the
fair market value as determined by an investment banking firm of recognized
national standing chosen by the Board of Directors, whose determination shall be
conclusive. "Trading Day" shall mean each day on which the Class A Shares or the
Equity Units, as the case may be, are traded on any national securities exchange
or quoted in the Nasdaq National Market or in the over-the-counter market.
Notice of an optional purchase of the Equity Unit by Triton Cayman or Triton
Delaware will be mailed at least 30 days but not more than 60 days before the
Purchase Date to each holder of record of the Equity Unit to be purchased at the
address shown on the books of the Depositary. If less than all of the
outstanding Equity Units are to be purchased, Triton Cayman or Triton Delaware,
as the case may be, will select those Equity Units to be purchased pro rata or
by lot or in such other manner as its Board of Directors determines. Shares of
Triton Delaware Preferred Stock included in Equity Units purchased by Triton
Cayman will be restored to the status of authorized but unissued shares of
preferred stock, without designation as to class, and may thereafter be issued,
but not as shares of Triton Delaware Preferred Stock.
Provided that Triton Cayman or Triton Delaware has made available at the
office of the Transfer Agent a sufficient amount of cash or, in the case of
Triton Cayman, Class A Shares (or Class C Shares), as the case may be, to effect
the purchase, on and after the Purchase Date, dividends will not accrue on the
Triton Delaware Preferred Stock included in such Equity Units, such shares of
Triton Delaware Preferred Stock shall no longer be deemed to be outstanding, and
all rights of the holders of such shares of Triton Delaware Preferred Stock will
cease, other than the right to receive any cash or Class A Shares (or Class C
Shares) payable upon such purchase, without interest.
Neither Triton Cayman nor Triton Delaware can exercise its option to
purchase the Equity Units (i) in the event of the bankruptcy or insolvency of
Triton Delaware, (ii) an event of default has occurred and is continuing with
respect to any indebtedness of Triton Delaware with an aggregate principal
amount outstanding in excess of $50 million or (iii) the fair market value of
Triton Delaware's net assets (as determined in good faith by its Board of
Directors) is less than 110% of the product of (i) the Liquidation Preference
times (ii) ten times the number of shares of Triton Delaware Preferred Stock
outstanding at such time.
For a description of the rights of holders of Class A Shares and Class B
Shares of Triton Cayman upon any purchase by Triton Cayman or Triton Delaware of
the Equity Units, see "Description of Authorized Shares of Triton Cayman --
Purchase of Equity Units."
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VOTING RIGHTS
The holder of each share of Triton Delaware Preferred Stock will be entitled
to two votes per share, voting together with holders of common stock of Triton
Delaware on any matter submitted to a vote of the stockholders of Triton
Delaware, except matters on which holders of Triton Delaware Preferred Stock are
entitled to a class vote under Delaware law. Each holder of an Equity Unit shall
therefore be entitled to 1/5 of one vote per unit.
The holders of the Triton Delaware Preferred Stock will have the right,
voting separately as a class, to elect one director to the Board of Directors of
Triton Delaware at the annual meeting of the stockholders of Triton Delaware
held in 1997 and each annual meeting of the stockholders of Triton Delaware
thereafter; provided that holders of not less than a majority of the shares of
Triton Delaware Preferred Stock then outstanding are present at such meeting in
person or by proxy. Such director will be elected from candidates nominated by a
majority of the Board of Directors of Triton Delaware or by any one or more
holders of Triton Delaware Preferred Stock holding at least 10% of the
outstanding shares; provided that in order for any nomination by any holder to
be valid, any holder desiring to make any such nomination is required to give
written notice specifying certain information including the name of any such
nominee to Triton Delaware within the time period set forth in Triton Delaware's
By-Laws for nominations of directors by stockholders which is presently 90 days
prior to an annual meeting of stockholders and seven days following the date
notice of any special meeting is given to stockholders.
Except to the extent a class vote is required under Delaware law, each share
of Triton Delaware Preferred Stock will entitle the holder thereof to two votes
per share, voting with the holders of the Triton Delaware common stock on any
matter submitted to a vote of the stockholders of Triton Delaware in connection
with certain mergers, consolidations, combinations or similar transactions
involving Triton Delaware (other than transactions contemplated by the Merger
Agreement). Immediately after the Effective Time, Triton Cayman, as the holder
of all of the Triton Delaware common stock, will be able to approve or reject
all matters submitted for the vote or consent of stockholders of Triton
Delaware, without the affirmative vote or consent of any holder of Triton
Delaware Preferred Stock, except on matters on which the holders of the Triton
Delaware Preferred Stock are entitled to vote as a class.
PREEMPTIVE RIGHTS
The holders of the Triton Delaware Preferred Stock will have no preemptive
rights.
DESCRIPTION OF RECEIPTS
The following is a summary of certain provisions of the Deposit Agreement
(the "Unit Deposit Agreement") pursuant to which Receipts representing Unit
Depositary Shares are to be issued. The Unit Deposit Agreement will be among
Triton Cayman, Triton Delaware, Chemical Mellon Shareholder Services, L.L.C., as
Depositary (the "Depositary"), and all holders from time to time of Receipts.
While Triton Delaware believes the descriptions of the material provisions of
the Unit Deposit Agreement are accurate statements with respect to such material
provisions, such statements are qualified in their entirety by reference to the
Unit Deposit Agreement, a copy of which has been filed as an Exhibit to the
Registration Statement of which this Proxy Statement/Prospectus is a part. For
further information as to how this and other Exhibits to the Registration
Statement may be obtained, see "Available Information."
RECEIPTS
Receipts evidencing Unit Depositary Shares are issuable by the Depositary
pursuant to the Unit Deposit Agreement. See "The Reorganization -- Equity Unit
Election." Each Unit Depositary Share evidenced by a Receipt will represent one
Equity Unit, initially consisting of one Class B Share of Triton Cayman and
one-tenth of one share of Triton Delaware Preferred Stock, each deposited with
the Depositary. A Receipt may evidence any number of Unit Depositary Shares.
Unit Depositary Shares evidenced by the Receipts represent proportional rights
to the Equity Units deposited with the
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Depositary pursuant to the terms of the Unit Deposit Agreement and any and all
Class B Shares, other securities, property and cash received at any time by the
Depositary in respect or in lieu of any Equity Units, other securities, property
or cash which have previously been deposited with the Depositary (collectively,
the "Deposited Securities").
DEPOSIT AND WITHDRAWAL OF DEPOSITED SECURITIES
Upon deposit of Equity Units with the Depositary, subject to the terms of
the Unit Deposit Agreement, the Depositary will execute and deliver at its
office, which is presently located at 120 Broadway, 13th Floor, New York, New
York 10271, to the person or persons specified by the depositor upon payment of
the fees, charges and taxes provided in the Unit Deposit Agreement, a Receipt or
Receipts registered in the name of such person or persons for the number of Unit
Depositary Shares issuable in respect of such deposit.
Receipt holders will not be entitled to delivery of the Deposited Securities
represented by Receipts unless Triton Cayman or Triton Delaware otherwise
notifies the Depositary.
The initial deposit of Equity Units in connection with the Reorganization
will be made in the manner described under "The Reorganization -- Equity Unit
Election."
DIVIDENDS, OTHER DISTRIBUTIONS AND RIGHTS
The Depositary is required to distribute any amounts received as cash
dividends or other distributions, as described in the following paragraphs, in
respect of Class B Shares, Triton Delaware Preferred Stock or other Deposited
Securities to holders of Receipts in proportion to the number of Unit Depositary
Shares representing such Deposited Securities held by each of them. The amounts
distributed will be reduced by any amounts required to be withheld on account of
taxes or otherwise.
If a distribution by Triton Cayman consists of a dividend in or free
distribution of Class B Shares, each Unit Depositary Share shall thenceforth
also represent its proportionate interest in the additional Class B Shares so
distributed.
If Triton Cayman offers or causes to be offered to the holders of any of its
securities constituting a part of the Deposited Securities any rights to
subscribe for or acquire additional Class A Shares or any other securities of
Triton Cayman or any other rights of any nature which it is required to offer or
cause to be offered to the holders of such securities pursuant to the Articles
of Association of Triton Cayman or the Companies Act, the Depositary will, after
consultation with Triton Cayman, either (a) distribute the warrants or other
instruments evidencing such rights to holders of Receipts or (b) employ such
other method (after consultation with Triton Cayman) as it may deem feasible to
facilitate the exercise, sale or transfer of such rights by holders of Receipts.
If such rights or warrants are not exercised and appear to be about to lapse,
the Depositary may, in its discretion, sell such rights or warrants at public or
private sale, at such place or places and upon such terms as the Depositary may
deem proper, allocate the proceeds of such sales for the account of the holders
of Unit Depositary Shares otherwise entitled thereto upon an averaged or other
practicable basis without regard to any distinctions among such holders because
of exchange restrictions, or the date of delivery of any Receipt or Receipts, or
otherwise and distribute the net proceeds so allocated to such holders as in the
case of a distribution received in cash.
If Triton Cayman makes a distribution other than cash, Class B Shares or
rights of any nature to holders of any of its securities constituting a part of
the Deposited Securities, Triton Cayman will make such distribution to the
Depositary and the Depositary will cause the securities or other property it
receives as a result of such distribution to be distributed to the holders of
Unit Depositary Shares in proportion to the number of Unit Depositary Shares
representing Deposited Securities held by each of them respectively. If such
distribution consists of securities, the Depositary may, with the consent of
Triton Cayman, deposit such securities in a depositary facility and distribute
depositary shares for such securities in lieu of the securities so deposited to
the holders of Receipts. If the Depositary determines (after consultation with
Triton Cayman) that any such distribution (other than a distribution of
securities having an aggregate fair market value of $5 million or more) cannot
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be made proportionately among the holders of the Unit Depositary Shares entitled
thereto, or if for any other reason (including any tax withholding requirement)
the Depositary deems such distribution not to be feasible, the Depositary may
(after consultation with Triton Cayman) adopt such method as it may deem
equitable for the purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received, or any part
thereof, and the distribution of the net proceeds of any such sale as in the
case of a distribution received in cash.
Triton Cayman has agreed to take all necessary action and to comply in all
material respects with all applicable United States and Cayman Islands laws and
regulations in order to permit the rights and other property referred to in the
three preceding paragraphs to be offered or distributed to the holders of Unit
Depositary Shares except in circumstances where such offer or distribution is of
rights and property (other than Class B Shares) having an aggregate fair market
value of less than $5 million in which case Triton Cayman will not be required
to so comply and the Depositary (after consultation with Triton Cayman) will in
lieu of making such rights or property available to the holders of Unit
Depositary Shares, sell or otherwise dispose of such rights or property and
distribute the net proceeds thereof as in the case of a cash distribution
described above.
If the Depositary determines that any distribution in property other than
cash (including rights) on Deposited Securities is subject to any tax that the
Depositary is obligated to withhold, the Depositary may (after consultation with
Triton Cayman if practicable) dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto.
RECORD DATES
Whenever any distribution shall be made upon Class B Shares, Triton Delaware
Preferred Stock or any other Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Class B Shares, Triton
Delaware Preferred Stock or any other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation or any consent or any other matter, the Depositary
will fix a record date for the determination of the holders of Unit Depositary
Shares who are entitled to receive such distribution or net proceeds of the sale
thereof, to give instructions for the exercise of voting rights at any such
meeting, to receive such notice or solicitation, or to act in respect of such
other matter, subject to the provisions of the Unit Deposit Agreement. Such
record date shall be identical to that fixed by Triton Cayman or Triton Delaware
with respect to Class B Shares, Triton Delaware Preferred Stock or any other
Deposited Securities, unless otherwise agreed by Triton Cayman or Triton
Delaware, as the case may be.
VOTING OF THE UNDERLYING DEPOSITED SECURITIES
As soon as practicable after receipt of notice of any meeting or
solicitation of consents or proxies of holders of Class B Shares, Triton
Delaware Preferred Stock or any other Deposited Securities, the Depositary will
mail to the record holders of Unit Depositary Shares a notice which shall
include such information as is contained in such notice of meeting or
solicitation and, if applicable, will inform such holders of the procedures to
be followed to permit such holders to attend the meeting in person as permitted
under Triton Cayman's Articles of Association or Triton Delaware's Certificate
of Incorporation. See "Description of Authorized Shares of Triton Cayman --
Voting and Other Rights." The record holders of Unit Depositary Shares at the
close of business on the date specified by the Depositary will be entitled,
subject to any applicable provisions of law and the provisions of or governing
the Deposited Securities, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to such Class B Shares, Triton Delaware
Preferred Stock or other Deposited Securities represented by their respective
Unit Depositary Shares. The Depositary has agreed that it will endeavor, insofar
as practicable and permitted by applicable provisions of law and the provisions
of or governing the Class B Shares, Triton Delaware Preferred Stock or other
Deposited Securities, to vote
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the Deposited Securities so represented in accordance with any such written
instructions of record holders of Unit Depositary Shares. The Depositary will
not vote such Class B Shares, Triton Delaware Preferred Stock or other Deposited
Securities, except in accordance with nondiscretionary instructions from such
record holder.
INSPECTION OF TRANSFER BOOKS
The Depositary will keep, at its transfer office in New York City, a
register for the registration of Receipts and their transfer that at all
reasonable times will be open for inspection by the holders of Unit Depositary
Shares, Triton Cayman and Triton Delaware, provided that such inspection shall
not be for the purpose of communicating with holders of Unit Depositary Shares
in the interest of a business or object other than the business of Triton Cayman
and Triton Delaware or a matter related to the Unit Deposit Agreement or the
Unit Depositary Shares.
REPORTS AND NOTICES
The Depositary will make available for inspection by Unit Depositary Share
holders at its office any reports and communications received from Triton Cayman
or Triton Delaware that are both (a) received by the Depositary as the holder of
Class B Shares or Triton Delaware Preferred Stock or any other Deposited
Securities which are a part of the Equity Units and (b) made generally available
to the holders of such Class B Shares or Triton Delaware Preferred Stock or
other Deposited Securities which are a part of the Equity Units by Triton Cayman
or Triton Delaware, as the case may be. The Depositary will also send to Unit
Depositary Share holders copies of such reports when furnished by Triton Cayman
or Triton Delaware as provided in the Deposit Agreement. See "Available
Information" for a description of the reports to be furnished.
On or before the first date on which Triton Cayman or Triton Delaware gives
notice, by publication or otherwise, of any meeting of holders of Class B Shares
or Triton Delaware Preferred Stock which are a part of the Equity Units or other
Deposited Securities or of any adjourned meeting of such holders, or of the
taking of any action by such holders other than at a meeting, Triton Cayman or
Triton Delaware, as the case may be, shall transmit to the Custodian a copy of
the notice thereof in the form given or to be given to holders of Deposited
Securities. The Depositary will, at the expense of Triton Cayman or Triton
Delaware, as the case may be, arrange for the prompt mailing of copies thereof
to all Unit Depositary Share holders and will make such notices available to
holders of Unit Depositary Shares on a basis similar to that for holders of
Deposited Securities.
CHANGES AFFECTING DEPOSITED CLASS B SHARES
Upon any split-up, division, subdivision, consolidation, cancellation or any
other reclassification of Class B Shares or any other Deposited Securities, or
upon any recapitalization, reorganization, merger or consolidation or sale of
assets affecting Triton Cayman or to which it is a party, any securities that
shall be received by the Depositary in exchange for, or in conversion,
replacement, or otherwise in respect of, Class B Shares or any other Deposited
Securities shall be treated as Deposited Securities under the Unit Deposit
Agreement, and the Unit Depositary Shares shall thenceforth represent the right
to receive the Deposited Securities including the securities so received. In any
such case the Depositary may with Triton Cayman's approval, and shall if Triton
Cayman shall so request, subject to the Unit Deposit Agreement, call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such newly received Deposited Securities.
Upon any consolidation, cancellation or any other reclassification of Triton
Delaware Preferred Stock, or upon any recapitalization, reorganization, merger
or consolidation or sale of assets affecting Triton Delaware or to which it is a
party, or in connection with the liquidation, dissolution or winding up of
Triton Delaware, any securities that shall be received by the Depositary in
exchange for or in conversion, replacement, or otherwise in respect of, Triton
Delaware Preferred Stock shall be distributed to the holders of Unit Depositary
Shares as in the case of a distribution received in cash, and thereafter an
Equity Unit shall consist only of Class B Shares.
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PURCHASE OF EQUITY UNITS
As soon as practicable after receipt of notice that Triton Cayman or Triton
Delaware is purchasing all or part of the Equity Units, the Depositary shall
mail to the holders of Unit Depositary Shares a notice containing (a) such
information as is contained in such notice of purchase and (b) a statement that,
on and after a date specified by the Depositary in such notice, each holder of
the Equity Units to be purchased shall be entitled to receive upon presentation
of the Receipts held by such holder the purchase price for such Equity Units
represented by Unit Depositary Shares less any amount required to be withheld by
Triton Cayman, Triton Delaware or the Depositary from any such payment in
respect of taxes. Upon payment of such purchase price in cash, Class A Shares or
Class C Shares, the Receipts evidencing the Unit Depositary Shares which are so
purchased will thereafter represent the right to receive all Deposited
Securities other than the Class B Shares and the shares of Triton Delaware
Preferred Stock. If the purchase price is paid in Class C Shares, at Triton
Cayman's request, the Depositary will distribute the cash portion of the
purchase price, if any, as in the case of a
distribution received in cash and the Unit Depositary Shares which are so
purchased will thereafter represent the right to receive such Class C Shares and
all Deposited Securities other than the Class B Shares and the shares of Triton
Delaware Preferred Stock. In any such case, the Depositary may with Triton
Cayman's approval, and shall if Triton Cayman shall so request, subject to the
Unit Deposit Agreement, call for the presentation of outstanding Receipts and
distribute Class C Shares, if applicable, and the remaining Deposited
Securities, if any, to the holders of the Unit Depositary Shares in proportion
to the number of Unit Depositary Shares representing Deposited Securities held
by each of them respectively.
To the extent that Equity Units are purchased for Class A Shares (or Class C
Shares) and all of such Class A Shares (or Class C Shares) cannot be distributed
to the record holders of Receipts without creating fractional interests in such
Class A Shares (or Class C Shares), the Depositary may, with the consent of
Triton Cayman, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the public or private sale of
such Class A Shares (or Class C Shares), the proceeds which shall be distributed
or made available for distribution to such record holders of Receipts, net of
any taxes required to be withheld.
EXCHANGE OF RECEIPTS UPON CONVERSION OF CLASS B SHARES OR CLASS C SHARES
In the event that the Board of Directors of Triton Cayman determines
pursuant to the Articles of Association (whether as a result of the redemption
of Triton Delaware Preferred Stock, the liquidation, dissolution or winding up
of Triton Delaware or otherwise) to cause the Class B Shares (or Class C Shares)
to be converted into Class A Shares, then, if so directed by Triton Cayman, the
Depositary is required to call for the surrender of outstanding Receipts for
exchange into Class A Shares.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may at any time resign as Depositary under the Unit Deposit
Agreement by written notice of its election so to do delivered to Triton Cayman
and Triton Delaware or be removed as Depositary by the joint action of Triton
Cayman and Triton Delaware by written notice of such removal delivered to the
Depositary, such resignation or removal to take effect upon the appointment of
and acceptance by a successor depositary. If the Depositary resigns or is
removed, Triton Cayman and Triton Delaware are required, within 45 days after
delivery of the notice of resignation or removal, as the case may be, to use
their best efforts to appoint a successor depositary. If a successor depositary
shall not have been appointed in 45 days, the resigning Depositary may petition
a court of competent jurisdiction to appoint a successor depositary.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The Receipts and the Unit Deposit Agreement may at any time be amended by
agreement among Triton Cayman, Triton Delaware and the Depositary. Any amendment
that imposes or increases any fees, taxes or charges (other than charges
referred to in clauses (i) through (ii) under "Charges of Depositary" below), or
that otherwise prejudices any substantial existing right of Unit Depositary
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Share holders, will not take effect as to outstanding Receipts until the
expiration of thirty days after notice of such amendment has been given to the
record holders of outstanding Unit Depositary Shares. Every holder of a Unit
Depositary Share at the expiration of such thirty day period will be deemed by
continuing to hold such Unit Depositary Share to consent and agree to such
amendment and to be bound by the Unit Deposit Agreement or the Unit Depositary
Share as amended thereby. In no event may any amendment impair the right of any
Unit Depositary Share holder to surrender his Receipt and receive therefor the
Deposited Securities represented thereby.
Whenever so directed by Triton Cayman and Triton Delaware, the Depositary
will terminate the Unit Deposit Agreement by mailing notice of such termination
to the record holders of all Unit Depositary Shares then outstanding at least 30
days prior to the date fixed in such notice for such termination. After the date
of termination, the Depositary will perform no further acts under the Unit
Deposit Agreement, except to advise holders of Receipts of such termination, to
receive and hold distributions on Deposited Securities (or sell property or
rights or convert Deposited Securities into cash) and, subject to the Unit
Deposit Agreement, deliver Deposited Securities being withdrawn in exchange for
Receipts. As soon as practicable after the expiration of six months from the
date of termination, the Depositary shall sell the Deposited Securities and may
thereafter hold the net proceeds, together with any other cash then held,
without liability for interest, for the pro rata benefit of the holders of
Receipts that have not theretofore been surrendered.
CHARGES OF DEPOSITARY
Triton Cayman and Triton Delaware will pay all charges and expenses of the
Depositary and those of any registrar or co-registrar under the Unit Deposit
Agreement in accordance with agreements between the Depositary, Triton Cayman
and Triton Delaware from time to time, but will not pay (i) stock transfer or
other taxes and other governmental charges (which are payable by holders of
Receipts or persons depositing Equity Units) or (ii) any applicable share
transfer or registration fees on deposits or withdrawals of Equity Units.
GENERAL
Neither the Depositary, its agents, Triton Cayman nor Triton Delaware will
incur any liability if they do not perform their obligations under the Unit
Deposit Agreement by reason of any present or future law, the provisions of or
governing any Deposited Securities or circumstances beyond their control. The
obligations of each of Triton Cayman, Triton Delaware and the Depositary under
the Unit Deposit Agreement are expressly limited to performing without
negligence or bad faith their respective duties specifically set forth and
undertaken by it to perform in the Unit Deposit Agreement.
If any Unit Depositary Shares are listed on one or more stock exchanges in
the United States, the Depositary will act as registrar or, with the approval of
Triton Cayman, appoint a registrar or one or more co-registrars, for registry of
the Receipts evidencing such Unit Depositary Shares in accordance with any
requirements of such exchanges. Such registrars or co-registrars may be removed
and a substitute or substitutes appointed by the Depositary upon the request or
with the approval of Triton Cayman.
The Receipts are transferrable on the register maintained by the Depositary;
provided, however, that the Depositary may close the register at any time or
from time to time when deemed expedient by it in connection with the performance
of its duties or at the request of Triton Cayman or Triton Delaware. As a
condition precedent to the execution and delivery, registration, registration of
transfer, split-up or combination of any Receipt, the delivery of any
distribution thereon (including any distributions on Class B Shares or Triton
Delaware Preferred Stock) or the withdrawal of Deposited Securities, the
Depositary, Triton Cayman or Triton Delaware may require (a) payment of (i) any
stock transfer or other tax or other governmental charge with respect to Class B
Shares, Triton Delaware Preferred Stock or other Deposited Securities and (ii)
any stock transfer or registration fee with respect thereto; (b) the production
of proof satisfactory to it of the identity and genuineness of any signature and
of such other information (including, without limitation, information as to
citizenship, residence, exchange control approval, legal or beneficial
ownership) as it may deem necessary or
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proper or as Triton Cayman or Triton Delaware may require; and (c) compliance
with such additional regulations as the Depositary may establish. The delivery
of Receipts against deposits of Equity Units may be suspended, deposits of
Equity Units may be refused, or the registration of transfer of Receipts, their
split-up or combination or the withdrawal of Deposited Securities may be
suspended during any period, generally or in any particular case, when the
transfer books of the Depositary are closed, or when any such action is deemed
necessary or advisable by the Depositary, Triton Cayman or Triton Delaware for
any reason.
Holders of Receipts are subject to certain provisions of Triton Cayman's
Articles of Association relating to the exercise of voting rights in connection
with Class B Shares. See "Description of Authorized Shares of Triton Cayman --
Voting and Other Rights."
COMPARISON OF RIGHTS OF STOCKHOLDERS
The rights of stockholders of Triton Delaware are governed by Delaware law
and Triton Delaware's Certificate of Incorporation and By-Laws. After the
Reorganization, the stockholders of Triton Delaware will become shareholders of
Triton Cayman, a Cayman Islands company, and their rights will be governed by
the Companies Law (1995 Revision) of the Cayman Islands (the "Companies Law"),
Triton Cayman's Articles of Association and Triton Cayman's Memorandum of
Association.
The principal attributes of the Triton Delaware Common Stock and the
Ordinary Shares will be similar; however, there are certain differences between
the rights of stockholders under Delaware law and Cayman Islands law, which is
modeled after that of the United Kingdom. In addition, there are certain
differences between Triton Delaware's Certificate of Incorporation and By-laws
and Triton Cayman's Articles of Association and Memorandum of Association. The
following discussion is a summary of certain changes in the rights of
stockholders resulting from the Reorganization described in this Proxy
Statement/Prospectus. This summary does not purport to be complete or to cover
all of the respects in which Cayman Islands law may differ from laws generally
applicable to Delaware corporations and their stockholders and, while Triton
Cayman and Triton Delaware believe that this summary is accurate, this summary
is subject to the complete text of the relevant provisions of the Companies Law,
the Delaware General Corporation Law ("DGCL"), Triton Delaware's Certificate of
Incorporation and By-Laws and Triton Cayman's Articles of Association and
Memorandum of Association.
STOCKHOLDER APPROVAL OF BUSINESS COMBINATIONS
Under the DGCL, there is no statutory restriction on a Delaware
corporation's ability to acquire the business of another corporation. However, a
merger or consolidation, sale, lease, exchange or other disposition of all or
substantially all of the property of the corporation (a "Disposition") not in
the usual and regular course of the corporation's business, or a dissolution of
the corporation, is required under the DGCL to be approved by the holders of a
majority of the shares entitled to vote thereon unless the charter provides
otherwise. In addition, under the DGCL, class voting rights exist with respect
to amendments to the charter that adversely affect the terms of the shares of a
class. See "Amendment of Charter" below. Such class voting rights do not exist
as to other extraordinary matters, unless the charter provides otherwise; the
Certificate of Incorporation of Triton Delaware does not provide otherwise. In
addition, the Certificate of Incorporation of Triton Delaware provides that
Delaware's statute providing for a supermajority vote in connection with certain
"business combinations" does not apply to Triton Delaware.
The Companies Law requires the approval of the holders of at least 75
percent of the votes cast at a general meeting called for such purpose for
Triton Cayman to (i) merge, consolidate or amalgamate with another company or
(ii) reorganize or reconstruct itself pursuant to a plan sanctioned by the
Cayman Islands courts. In addition, the Articles of Association of Triton Cayman
provide that, subject to any approval required by the Companies Law or any other
law of the Cayman Islands, the approval of the holders of at least a majority of
the outstanding shares is required for Triton Cayman to
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(i) merge, consolidate or amalgamate with another company, (ii) reorganize or
reconstruct itself pursuant to a plan sanctioned by the Cayman Islands courts or
(iii) sell, lease or exchange all or substantially all of its assets. An
"amalgamation" is substantially equivalent to a consolidation.
ABSENCE OF REQUIRED VOTE FOR CERTAIN MERGERS
Under the DGCL, no vote of the stockholders of a corporation surviving a
merger is required to approve a merger if (i) the agreement of merger does not
amend the charter of such corporation, (ii) each share of stock of such
corporation outstanding immediately before the merger is to be an identical
outstanding or treasury share of the surviving corporation thereafter and (iii)
the number of shares of common stock of such corporation to be issued in the
merger, if any, does not exceed 20 percent of the number of shares outstanding
immediately before the merger.
There is no equivalent provision in the Companies Law and therefore the
shareholders of the surviving company in such a situation would be entitled to
vote on the merger as described above. See "Stockholder Approval of Business
Combinations" above.
APPRAISAL RIGHTS
Under the DGCL, a stockholder of a corporation does not have appraisal
rights in connection with a merger or consolidation or, in the case of a
Disposition, if (i) the shares of such corporation are listed on a national
securities exchange or held of record by more than 2,000 stockholders, as is
presently the case with Triton Delaware, or (ii) such corporation will be the
surviving corporation of the merger and no vote of the stockholders of the
surviving corporation is required to approve such merger, provided, however,
that a stockholder is entitled to appraisal rights in the case of a merger or
consolidation if such stockholder is required by the terms of an agreement of
merger or consolidation to accept in exchange for the shares of such stockholder
anything other than (a) shares of stock of the corporation surviving or
resulting from such merger or consolidation, (b) shares of any other corporation
that on the effective date of the merger on consolidation will be either listed
on a national securities exchange or held of record by more than 2,000
stockholders, (c) cash in lieu of fractional shares of the corporation described
in the foregoing clauses (a) and (b), or (d) any combination of the foregoing.
Triton Delaware's Common Stock is presently listed on the NYSE and Triton
Cayman's Ordinary Shares will be listed or authorized for listing upon official
notice of issuance by the NYSE.
The Companies Law does not provide for appraisal rights. However, in the
case of a court sanctioned reorganization of a Cayman Islands company as
described in "Stockholder Approval of Business Combinations" above, a dissenting
shareholder has the right to express to the court such shareholder's view that
the transaction sought to be approved would not provide the shareholders with
the fair value of their shares but (i) Triton Cayman believes the court
ordinarily would not disapprove the transaction on that ground absent other
evidence of fraud or bad faith, and (ii) if the transaction were approved and
consummated, the dissenting shareholder would have no rights comparable to the
appraisal rights (as here defined, rights to receive payments in cash for the
judicially determined value of their shares) available to dissenting
stockholders of Delaware corporations.
In addition, the Companies Law provides that where an offer is made by a
Cayman Islands company for shares of another Cayman Islands company and, within
four months of the offer, the holders of not less than 90 percent of the shares
which are the subject of the offer accept, the offeror may by notice require the
dissenting shareholders to transfer their shares on the terms of the offer. A
dissenting shareholder may apply to the court within one month of the notice
objecting to the transfer. The burden is on the dissenting shareholders to show
that the court should exercise its discretion to prevent the requirement of such
transfer, which it will be unlikely to do unless there is evidence of fraud or
bad faith or collusion as between the offeror and the holders of the shares who
have accepted the offer as a means of unfairly forcing out minority
stockholders.
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STOCKHOLDER CONSENT TO ACTION WITHOUT MEETING
Under the DGCL, unless otherwise provided in the charter, any action that
can be taken at a meeting of the stockholders may be taken without a meeting if
written consent thereto is signed by the holders of outstanding stock having the
minimum number of votes necessary to authorize or take such action at a meeting
of the stockholders. Triton Delaware's Certificate of Incorporation provides
that stockholders cannot, by less than unanimous written consent, take action
without a meeting of stockholders, although after the Merger this provision will
be deleted.
The Companies Law provides that shareholders may take action requiring a
Special Resolution without a meeting only by unanimous written consent. The
Articles of Association provide that shareholders cannot, by less than unanimous
written consent, take action without a meeting of shareholders.
SPECIAL MEETINGS OF STOCKHOLDERS
Under the DGCL, a special meeting of stockholders may be called only by the
Board of Directors or by persons authorized in the charter or the bylaws. The
Bylaws of Triton Delaware provide for the call of a special meeting of
stockholders only by the President or the Secretary at the request in writing of
the majority of the Board of Directors of Triton Delaware.
Under the Articles of Association, an extraordinary meeting may be called
only by the President or the Board of Directors of Triton Cayman.
DISTRIBUTIONS AND DIVIDENDS; REPURCHASES AND REDEMPTIONS
Under the DGCL, a corporation may pay dividends out of surplus and, if there
is no surplus, out of net profits for the current and/or the preceding fiscal
year, unless the net assets of the corporation are less than the capital
represented by issued and outstanding stock having a preference on asset
distributions. Surplus is defined in the DGCL as the excess of the net assets
over capital, as such capital may be adjusted by the board. A Delaware
corporation may purchase or redeem shares of any class except when its capital
is impaired or would be impaired by such purchase or redemption. A corporation
may, however, purchase or redeem out of capital shares that are entitled upon
any distribution of its assets to a preference over another class or series of
its stock if such shares are to be retired and the capital reduced.
Under the Companies Law, the directors may pay to the shareholders such
dividends as appear to the directors to be justified by the profits of Triton
Cayman out of the "share premium account" (similar to the concept of additional
paid in capital) if Triton Cayman has the ability to pay its debts as they
become due.
VACANCIES ON BOARD OF DIRECTORS
Under the DGCL, a vacancy and a newly created directorship may be filled by
a majority of the remaining directors, although less than a quorum, unless
otherwise provided in the charter or bylaws. Neither the Certificate of
Incorporation nor the Bylaws of Triton Delaware otherwise so provides.
The Articles of Association of Triton Cayman provide that a vacancy and a
newly created directorship may be filled by a majority of the remaining
directors, although less than a quorum.
REMOVAL OF DIRECTORS; STAGGERED TERM OF DIRECTORS
Under the DGCL, except in the case of a corporation with a classified board,
any director or the entire board may be removed, with or without cause, by the
holders of a majority of the shares entitled to vote at an election of
directors. The Certificate of Incorporation of Triton Delaware provides that the
Board of Directors will consist of three classes of directors, with each class
to consist of as nearly an equal number of directors as possible and with each
class of directors coming up for election by the stockholders every three years.
Under the DGCL, because Triton Delaware has a classified board, directors of
Triton Delaware may only be removed for cause. The Certificate of Incorporation
does not
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provide for a supermajority vote for removal of directors, but provides that the
provision for the staggered board may not be amended except by a two-thirds vote
of the stockholders. After the Merger, the Board of Directors will no longer be
divided into classes.
The Companies Law does not provide for classified boards of directors.
However, the Articles of Association of Triton Cayman provide that the Board of
Directors of Triton Cayman consists of three classes of directors, with each
class to consist of approximately equal numbers of directors and with each class
coming up for election by the shareholders of Triton Cayman every three years.
In addition, the Articles of Association of Triton Cayman provide that directors
may be removed only for cause by the affirmative vote of the holders of at least
a majority of the outstanding shares entitled to vote.
INSPECTION OF BOOKS AND RECORDS
Under the DGCL, any stockholder may inspect the corporation's books and
records for a proper purpose.
Shareholders of a Cayman Islands company have no general rights to inspect
or obtain copies of the list of shareholders or corporate records of a company.
However, Triton Cayman's Articles of Association provide that any shareholder
may inspect Triton Cayman's books and records for a proper purpose.
AMENDMENT OF CHARTER
Under the DGCL, the certificate of incorporation may be amended if (i) the
board of directors sets forth the proposed amendment in a resolution, declares
the advisability of the amendment and directs that it be submitted to a vote at
the meeting of stockholders and (ii) the holders of at least a majority of
shares of stock entitled to vote thereon approve the amendment, unless the
charter requires the vote of a greater number of shares. If the holders of the
outstanding shares of a class are entitled to vote as a class upon a proposed
amendment, the holders of a majority of the outstanding shares of such class
must also vote in favor of the amendment.
Under the Companies Law, the Memorandum of Association may only be amended
by a Special Resolution of the shareholders.
AMENDMENT OF BYLAWS
Under the DGCL, the board of directors may amend bylaws if so authorized in
the charter. The stockholders of a Delaware corporation also have the power to
amend bylaws. The Certificate of Incorporation of Triton Delaware authorizes the
Board of Directors to alter, amend, repeal or adopt its bylaws.
Under the Companies Law, the Articles of Association may only be amended by
a Special Resolution of the shareholders.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Companies Law and the DGCL have different provisions and limitations
regarding indemnification by a corporation of its officers, directors, employees
and agents. If the Reorganization is approved, the Companies Law indemnification
provisions will not apply to any act or omission that occurs before the
Effective Time. The following is a summary comparison of Companies Law and DGCL
indemnification provisions:
Under the DGCL, indemnification rights are expressly non-exclusive. A
corporation is permitted to provide indemnification or advancement of expenses,
by bylaw provision, agreement or otherwise, against judgments, fines, expenses
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation.
The Certificate of Incorporation of Triton Delaware makes indemnification
mandatory on the part of Triton Delaware to the fullest extent permitted by law.
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Cayman Islands law does not limit the extent to which a company's Articles
of Association may provide for the indemnification of officers and directors,
except to the extent that such provision may be held by the Cayman Islands
courts to be contrary to public policy (for instance, for purporting to provide
indemnification against the consequences of committing a crime). In addition, an
officer or director may not be indemnified for his own dishonesty or wilful
neglect or default.
The Articles of Association of Triton Cayman contain provisions providing
for the indemnity by Triton Cayman of an officer, director, employee or agent of
Triton Cayman to the same extent as permitted under the Certificate of
Incorporation of Triton Delaware.
LIMITED LIABILITY OF DIRECTORS
Section 102(b)(7) ("Section 102") of the DGCL permits the adoption of a
charter provision limiting or eliminating the monetary liability of a director
to a corporation or its stockholders by reason of a director's breach of the
fiduciary duty of care. Section 102 does not permit any limitation of the
liability of a director for (i) breaching the duty of loyalty to the corporation
or its stockholders, (ii) failing to act in good faith, (iii) engaging in
intentional misconduct or a known violation of law, (iv) obtaining an improper
personal benefit from the corporation or (v) paying a dividend or approving a
stock repurchase that was illegal under the DGCL. The Certificate of
Incorporation of Triton Delaware eliminates the monetary liability of a director
to the fullest extent permitted by the DGCL.
There is no equivalent provision under the Companies Law. However, the
Articles of Association of Triton Cayman state that the directors of Triton
Cayman shall have no personal liability to Triton Cayman or its shareholders for
monetary damages for breach of fiduciary or other duties as a director, except
(i) for any breach of a director's duty of loyalty to Triton Cayman or its
shareholders, (ii) for acts or omissions not in good faith which involve
intentional misconduct or a knowing violation of law, or (iii) for any
transaction from which a director derived an improper personal benefit.
STOCKHOLDERS' SUITS
Section 327 of the DGCL requires only that the stockholder bringing a
derivative suit must have been a stockholder at the time of the wrong complained
of or that the stock devolved to him by operation of law from a person who was
such a stockholder. In addition, the stockholder must remain a stockholder
throughout the litigation.
The Cayman Islands courts have recognized derivative suits by shareholders;
however, the consideration of such suits has been limited. In this regard, the
Cayman Islands courts ordinarily would be expected to follow English precedent,
which would permit a minority stockholder to commence an action against or a
derivative action in the name of the company only (i) where the act complained
of is alleged to be beyond the corporate power of the company or illegal, (ii)
where the act complained of is alleged to constitute a fraud against the
minority perpetrated by those in control of the company, (iii) where the act
requires approval by a greater percentage of the company's shareholders than
actually approved it or (iv) where there is a an absolute necessity to waive the
general rule that a stockholder may not bring such an action in order that there
not be a denial of justice or a violation of the company's memorandum of
association.
MANAGEMENT OF TRITON CAYMAN
The Board of Directors of Triton Cayman, upon the effectiveness of the
Reorganization, is to consist of those persons who, at the Effective Time, are
serving as directors of Triton Delaware, each to have the term of office for
which he or she was elected or appointed. Triton Cayman's executive officers are
now, and upon the effectiveness of the Reorganization are expected to be, the
same as those persons who are presently employed as executive officers of Triton
Delaware.
COMMITTEES OF THE BOARD OF DIRECTORS
Triton Cayman has established committees of the Board of Directors which
committees have identical members and functions as the committees of the Board
of Directors of Triton Delaware immediately prior to the Effective Time.
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EXECUTIVE COMPENSATION
Triton Cayman has not paid compensation to any person before the date of
this Proxy Statement/ Prospectus and is not expected to do so prior to the
Effective Time.
LEGAL MATTERS
Certain legal matters in connection with Class A Shares and Class B Shares
to be issued in the Reorganization have been passed upon for Triton Cayman by
W.S. Walker & Company, Cayman Islands. W.S. Walker & Company has also rendered
an opinion regarding the Cayman Islands tax consequences of the Reorganization
referred to in "Certain Tax Considerations." Certain legal matters in connection
with the Triton Delaware Preferred Stock to be issued in the Reorganization have
been passed upon for Triton Delaware by Simpson Thacher & Bartlett (a
partnership which includes professional corporations) New York, New York. The
opinions regarding the United States federal tax consequences of the
Reorganization referred to in "Certain Tax Considerations" were rendered by
Simpson Thacher & Bartlett and Weil, Gotshal & Manges LLP (a partnership which
includes professional corporations), New York, New York.
EXPERTS
The financial statement of Triton Energy Limited ("Triton Cayman") as of
December 31, 1995 and the pro forma consolidated condensed statements of
operations of Triton Energy Corporation ("Triton Delaware") for the seven months
ended December 31, 1994 and for the year ended May 31, 1994 included in this
Proxy Statement/Prospectus has been so included in reliance on the respective
reports of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts, with respect to the balance sheet of Triton Cayman, in
auditing and accounting and, with respect to the pro forma financial information
of Triton Delaware, in performing examinations of pro forma financial
information in accordance with standards established by the American Institute
of Certified Public Accountants.
The restated consolidated financial statements of Triton Delaware as of and
for the seven months ended December 31, 1994 and the years ended May 31, 1994
and 1993, incorporated herein by reference to Triton Delaware's Current Report
on Form 8-K dated August 24, 1995 appearing on pages F-1 through F-54, have been
so incorporated in reliance upon the reports (which included an audit of the
adjustments that were applied to restate the 1992 financial statements for
discontinued aviation sales and services operations and wholesale fuel products
operations as described in Notes 1 and 4 of the financial statements) of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
With respect to the unaudited pro forma consolidated condensed balance sheet
of Triton Cayman as of September 30, 1995, and with respect to the unaudited
consolidated condensed financial information of Triton Delaware and its
subsidiaries (i) for the three month periods ended March 31, 1995 and 1994,
which include financial statements that have not been restated to reflect the
aviation sales and services segment as discontinued operations, (ii) for the
three and six month periods ended June 30, 1995 and 1994, (iii) for the three
and nine month periods ended September 30, 1995 and 1994 incorporated by
reference in this Proxy Statement/Prospectus, and (iv) for the unaudited pro
forma consolidated condensed balance sheet as of September 30, 1995 and the pro
forma consolidated condensed statement of operations for the nine month period
then ended included in this Proxy Statement/Prospectus, Price Waterhouse LLP
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, the report
dated February 14, 1996 with respect to the pro forma consolidated condensed
balance sheet of Triton Cayman included in this Proxy Statement/Prospectus, and
their separate reports dated May 2, 1995, August 1, 1995 and October 31, 1995
included in Triton Delaware's quarterly reports on Form 10-Q for the quarters
ended March 31, 1995, June 30, 1995, and September 30, 1995, respectively, and
incorporated by reference herein, and their report on the pro forma consolidated
condensed balance
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sheet of Triton Delaware as of September 30, 1995 and the pro forma consolidated
condensed statement of operations for the nine month period then ended dated
February 14, 1996 included in this Proxy Statement/Prospectus, state that they
did not audit and they did not express an opinion on the referenced unaudited
consolidated condensed financial information and unaudited pro forma
consolidated condensed financial information. Price Waterhouse LLP did not carry
out any significant or additional tests beyond those which would have been
necessary if their reports had not been included. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of their review procedures applied. Price Waterhouse LLP is
not subject to the liability provisions of section 11 of the Securities Act of
1933, as amended, for their reports on the unaudited consolidated historical and
pro forma condensed financial information because such reports are not a
"report" or a "part" of the Registration Statement prepared or certified by
Price Waterhouse LLP within the meaning of sections 7 and 11 of the 1933 Act.
The consolidated statements of operations, shareholders' equity and cash
flows of Triton Delaware for the year ended May 31, 1992 (before restatement for
discontinued aviation sales and services operations and wholesale fuel products
operations), incorporated herein by reference to Triton Delaware's Current
Report on Form 8-K dated August 24, 1995, 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 Triton Delaware's Transition Report on Form 10-K for the seven
months ended December 31, 1994, have been so incorporated in reliance upon the
report of KPMG, 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
Delaware 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
Delaware 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.
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GLOSSARY OF DEFINED TERMS
<TABLE>
<CAPTION>
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<S> <C>
Articles of Association................................................................................... 43
CFC....................................................................................................... 41
Calculation Date.......................................................................................... 51
Certificate of Incorporation.............................................................................. 55
Charter................................................................................................... 55
Class A Shares............................................................................................ 1
Class B Shares............................................................................................ 1
Class C Shares............................................................................................ 42
Closing Price............................................................................................. 57
Code...................................................................................................... 36
Commission................................................................................................ 3
Companies Law............................................................................................. 64
Conversion Rate........................................................................................... 53
Convertible Preference Shares............................................................................. 12
Convertible Preferred Stock............................................................................... 12
Cumulative Dividend Amount................................................................................ 46
Depositary................................................................................................ 1
Deposited Securities...................................................................................... 59
Designation............................................................................................... 55
Disposition............................................................................................... 64
Dividend Provision........................................................................................ 46
DGCL...................................................................................................... 20
Effective Time............................................................................................ 13
Electing Shares........................................................................................... 12
Election Date............................................................................................. 13
Equity Unit............................................................................................... 1
Equity Unit Election...................................................................................... 1
Equity Unit Limitation.................................................................................... 1
Exchange Act.............................................................................................. 3
Exchange Agent............................................................................................ 17
Fair Market Value......................................................................................... 57
Form of Election.......................................................................................... 13
J.P. Morgan............................................................................................... 12
Junior Dividend Shares.................................................................................... 51
Junior Preference Shares.................................................................................. 54
IRS....................................................................................................... 5
Lehman.................................................................................................... 12
Liquidation Available Amount.............................................................................. 47
Liquidation Preference.................................................................................... 56
Liquidation Price......................................................................................... 52
Mailing Date.............................................................................................. 34
Maximum Election Number................................................................................... 6
Memorandum of Association................................................................................. 43
Merger.................................................................................................... 1
Merger Agreement.......................................................................................... 1
Minimum Election Number................................................................................... 12
1997 Notes................................................................................................ 26
NYSE...................................................................................................... 1
Offerer................................................................................................... 45
</TABLE>
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<TABLE>
<CAPTION>
PAGE
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<S> <C>
Ordinary Shares........................................................................................... 14
PFICs..................................................................................................... 42
Pairing Ratio............................................................................................. 44
Parity Dividend Shares.................................................................................... 51
Penalty Dividend.......................................................................................... 51
Proration Factor.......................................................................................... 6
Proxy Card................................................................................................ 16
Proxy Statement/Prospectus................................................................................ 1
Purchase Date............................................................................................. 57
Purchase Price............................................................................................ 56
Receipts.................................................................................................. 1
Registration Statement.................................................................................... 3
Receipts.................................................................................................. 1
Reorganization............................................................................................ 1
Resolutions............................................................................................... 42
Rights Agreement.......................................................................................... 43
SDLA...................................................................................................... 26
Section 102............................................................................................... 68
Securities Act............................................................................................ 3
Senior Dividend Shares.................................................................................... 52
Senior Liquidation Shares................................................................................. 52
Senior Liquidation Stock.................................................................................. 56
Shareholders Rights Plan.................................................................................. 34
Special Meeting........................................................................................... 1
Special Tax Counsel....................................................................................... 35
Specified Amount.......................................................................................... 48
Sub....................................................................................................... 1
TIN....................................................................................................... 42
Trading Day............................................................................................... 57
Triton Cayman............................................................................................. 1
Triton Delaware........................................................................................... 1
Triton Delaware Common Stock.............................................................................. 1
Triton Delaware Preferred Stock........................................................................... 1
2000 Notes................................................................................................ 26
Unit Deposit Agreement.................................................................................... 58
Unit Depositary Shares.................................................................................... 1
U.S. Holder............................................................................................... 35
U.S. Shareholder.......................................................................................... 41
</TABLE>
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TRITON ENERGY LIMITED
TRITON ENERGY CORPORATION
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Triton Energy Limited:
Review Report of Independent Accountants on Pro Forma Consolidated Condensed Financial Information....... F-2
Basis of Presentation.................................................................................... F-3
Pro Forma Consolidated Condensed Balance Sheet -- September 30, 1995..................................... F-4
Notes to Pro Forma Consolidated Condensed Financial Statement............................................ F-5
Report of Independent Accountants........................................................................ F-8
Balance Sheet as of December 31, 1995.................................................................... F-9
Notes to Balance Sheet................................................................................... F-10
Triton Energy Corporation:
Review Report of Independent Accountants on Pro Forma Consolidated Condensed Financial Information....... F-11
Report of Independent Accountants on Pro Forma Consolidated Condensed Financial Information.............. F-12
Basis of Presentation.................................................................................... F-13
Pro Forma Consolidated Condensed Balance Sheet -- September 30, 1995..................................... F-14
Pro Forma Consolidated Condensed Statement of Operations -- Nine Months ended September 30, 1995......... F-15
Pro Forma Consolidated Condensed Statement of Operations -- Seven Months ended December 31, 1994......... F-16
Pro Forma Consolidated Condensed Statement of Operations -- Year ended May 31, 1994...................... F-17
Notes to Pro Forma Consolidated Condensed Financial Statements........................................... F-18
</TABLE>
F-1
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REVIEW REPORT OF INDEPENDENT ACCOUNTANTS
ON PRO FORMA CONSOLIDATED CONDENSED FINANCIAL INFORMATION
To the Board of Directors
of Triton Energy Limited
We have reviewed the pro forma adjustments reflecting the transaction
described in Note 1 and the application of those adjustments to the historical
amounts in the accompanying pro forma consolidated condensed balance sheet of
Triton Energy Limited and subsidiaries as of September 30, 1995. The historical
consolidated condensed balance sheets of Triton Energy Limited and Triton Energy
Corporation are derived from the historical unaudited financial statements of
Triton Energy Limited and Triton Energy Corporation, which were reviewed by us.
The historical unaudited consolidated condensed financial statements of Triton
Energy Corporation as of and for the nine months ended September 30, 1995 are
incorporated by reference in the accompanying Proxy Statement/ Prospectus. Such
pro forma adjustments are based on management's assumptions as described in Note
1. Our review was conducted in accordance with standards established by the
American Institute of Certified Public Accountants.
A review is substantially less in scope than an examination, the objective
of which is the expression of an opinion on management's assumptions, the pro
forma adjustments and the application of those adjustments to historical
financial information. Accordingly, we do not express such an opinion.
The objective of this pro forma financial information is to show what the
significant effects on the historical information might have been had the
transaction occurred at an earlier date. However, the pro forma consolidated
condensed balance sheet is not necessarily indicative of the related effects on
financial position that would have been attained had the above-mentioned
transaction actually occurred earlier.
Based on our review, nothing came to our attention that caused us to believe
that management's assumptions do not provide a reasonable basis for presenting
the significant effects directly attributable to the above-mentioned transaction
described in Note 1, that the related pro forma adjustments do not give
appropriate effect to those assumptions, or that the pro forma column does not
reflect the proper application of those adjustments to the historical balance
sheet amounts in the pro forma consolidated condensed balance sheet as of
September 30, 1995.
PRICE WATERHOUSE LLP
Dallas, Texas
February 14, 1996
F-2
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
PRO FORMA FINANCIAL INFORMATION
(NOT COVERED BY INDEPENDENT ACCOUNTANTS' REPORT)
BASIS OF PRESENTATION
The accompanying unaudited Pro Forma Consolidated Condensed Balance Sheet of
Triton Energy Limited ("Triton Cayman"), a Cayman Islands company and
wholly-owned subsidiary of Triton Energy Corporation ("Triton Delaware"), gives
effect to (i) the acquisition of Triton Delaware in connection with the proposed
Reorganization, whereby Triton Cayman will become the parent holding company of
Triton Delaware and (ii) subsequent to the Reorganization, the acquisition by
Triton Cayman of substantially all of the businesses or subsidiaries of Triton
Delaware located outside of the United States, other than Triton Delaware's
interests in the Cusiana and Cupiagua fields in Colombia and interests in
Argentina. The unaudited Pro Forma Consolidated Condensed Balance Sheet presents
the combined financial position of Triton Cayman and Triton Delaware as of
September 30, 1995 assuming the proposed Reorganization and purchase of assets
had occurred as of September 30, 1995. The consolidated condensed balance sheet
of Triton Delaware was derived from Triton Delaware's Quarterly Report on Form
10-Q for the quarter ended September 30, 1995, incorporated herein by reference.
The Reorganization will be accounted for as a combination of entities under
common control (as if it were a pooling of interests). Unaudited pro forma
consolidated condensed statements of operations for Triton Cayman are not
presented herewith because the unaudited pro forma consolidated condensed
statements of operations of Triton Cayman for the nine months ended September
30, 1995, the seven month transition period ended December 31, 1994 and the
three years in the period ended May 31, 1994 would be identical to the
Consolidated Condensed Statement of Operations of Triton Delaware as reported in
Triton Delaware's Quarterly Report on Form 10-Q for the quarter ended September
30, 1995, and the historical Consolidated Statements of Operations of Triton
Delaware as reported in Triton Delaware's Current Report on Form 8-K dated
August 24, 1995, respectively, which are incorporated herein by reference.
The Pro Forma Consolidated Condensed Balance Sheet of Triton Cayman should
be read in conjunction with the restated consolidated financial statements and
the related notes included in Triton Delaware's Current Report on Form 8-K dated
August 24, 1995 and Triton Delaware's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1995. The pro forma financial information is not
indicative of Triton Cayman's financial position that might have occurred had
such transaction actually occurred on the date indicated above.
F-3
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
SEPTEMBER 30, 1995
<TABLE>
<CAPTION>
TRITON ENERGY ISSUANCE OF
HISTORICAL CORPORATION (A) EQUITY UNITS (B) PRO FORMA
----------- -------------- ---------------- ------------
<S> <C> <C> <C> <C>
(IN THOUSANDS)
(UNAUDITED)
ASSETS
Current assets:
Cash and equivalents.............................. $ -- $ 75,989 $ -- $ 75,989
Short-term marketable securities.................. -- 57,338 -- 57,338
Receivables....................................... -- 33,122 -- 33,122
Inventories, prepaid expenses and other........... -- 5,927 -- 5,927
----------- -------------- ---------------- ------------
Total current assets.......................... -- 172,376 -- 172,376
Long-term marketable securities..................... -- 3,930 -- 3,930
Property and equipment, at cost, less accumulated
depreciation and depletion of $261,504............. -- 465,816 -- 465,816
Investments and other assets........................ -- 185,033 -- 185,033
----------- -------------- ---------------- ------------
$ -- $ 827,155 $ -- $ 827,155
----------- -------------- ---------------- ------------
----------- -------------- ---------------- ------------
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C> <C> <C>
Current liabilities:
Current installments of long-term debt............ $ -- $ 1,313 $ -- $ 1,313
Accounts payable and accrued liabilities.......... -- 35,273 -- 35,273
----------- -------------- ---------------- ------------
Total current liabilities..................... -- 36,586 -- 36,586
----------- -------------- ---------------- ------------
Long-term debt, excluding current installments...... -- 404,944 -- 404,944
Deferred income taxes............................... -- 26,137 -- 26,137
Deferred income and other........................... -- 116,276 -- 116,276
Convertible debentures due to employees............. -- -- -- --
Preferred stock of a subsidiary..................... -- -- 439,086(f) 439,086
Stockholders' equity:
5% Convertible preference shares.................. -- -- 14,119(c) 14,119
5% Convertible preferred stock.................... 14,119(c) (14,119)(c) --
Ordinary shares:
Class A......................................... 1 35,871 (35,603)(d) 269
Subscription receivable....................... (1) -- 1 --
Class B......................................... -- -- 90(d) 90
Class C......................................... -- -- -- --
Additional paid-in capital........................ -- 514,266 (403,574)(e) 110,692
Accumulated deficit............................... -- (311,902) -- (311,902)
Foreign currency translation adjustment........... -- (8,519) -- (8,519)
Other............................................. -- (281) -- (281)
----------- -------------- ---------------- ------------
-- 243,554 (439,086) (195,532)
Less cost of common stock in treasury............. -- 342 -- 342
----------- -------------- ---------------- ------------
Total stockholders' equity.................... -- 243,212 (439,086) (195,874)
Commitments and contingencies....................... -- -- -- --
----------- -------------- ---------------- ------------
$ -- $ 827,155 $ -- $ 827,155
----------- -------------- ---------------- ------------
----------- -------------- ---------------- ------------
</TABLE>
Triton Energy Limited uses the full cost method to account for its oil and gas
producing activities.
See accompanying notes to pro forma consolidated condensed financial statements.
F-4
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. PLAN OF REORGANIZATION
Triton Energy Corporation ("Triton Delaware") has proposed a reorganization
pursuant to which Triton Energy Limited ("Triton Cayman"), a Cayman Islands
company and a wholly-owned subsidiary of Triton Delaware, will become the parent
holding company of Triton Delaware. The Reorganization will be effected pursuant
to the Agreement and Plan of Merger among Triton Cayman, Triton Delaware and TEL
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Triton
Cayman ("Sub").
In connection with the Reorganization, holders, in the aggregate, of not
less than 15% but not more than 25% of the outstanding shares of Triton Delaware
Common Stock may make an unconditional election (the "Equity Unit Election") to
receive one Equity Unit ("Equity Unit") comprised of (i) one Class B ordinary
share of Triton Cayman, par value $.01 per share ("Class B Share"), and (ii)
one-tenth of one share of participating preferred stock, par value $.01 per
share, of Triton Delaware ("Triton Delaware Preferred Stock"), which securities
shall be paired and after such pairing may only be traded together as a unit and
will not be separately transferable. Each outstanding share of Triton Delaware
Common Stock, other than those with respect to which an Equity Unit Election has
been made, will be automatically converted into one Class A ordinary share, par
value of $.01 per share ("Class A Share") of Triton Cayman. Each outstanding
share of 5% convertible preferred stock of Triton Delaware will be automatically
converted into one 5% convertible preference share of Triton Cayman.
Pro forma adjustments are made to reflect:
(a) the acquisition of Triton Delaware and subsidiaries as if the
acquisition occurred on September 30, 1995 and will be accounted for
as a combination of entities under common control (as if it were a pooling
of interests);
(b) the issuance of 9 million Equity Units, each consisting of one Class
B Share of Triton Cayman and one-tenth of one share of Triton
Delaware Preferred Stock, assuming holders of 25% of Triton Delaware Common
Stock make an Equity Unit Election and that each one-tenth of one share of
Triton Delaware Preferred Stock is valued at $49 as determined by Triton
Delaware based upon the advice of its financial advisors. If holders of 15%
of Triton Delaware's Common Stock make an Equity Unit Election, the amount
shown for preferred stock of a subsidiary would be $263 million as
determined by Triton Delaware based upon the advice of its financial
advisors. At the Effective Time, the value of one-tenth of one share of
Triton Delaware Preferred Stock will be determined by Triton Delaware based
upon the advice of its financial advisors at such time.
(c) the conversion, pursuant to the Reorganization, of .4 million shares
of Triton Delaware's 5% convertible preferred stock into .4 million
5% convertible preference shares of Triton Cayman;
(d) the reduction of the par value of 35.9 million shares of Triton
Delaware Common Stock from $1.00 per share to $.01 per share, in
connection with the issuance of Ordinary Shares. Following the
Reorganization, Triton Cayman will have 26.9 million Class A Shares and 9
million Class B Shares outstanding, assuming holders of 25% of the
outstanding shares of Triton Delaware Common Stock make an Equity Unit
Election;
(e) the net reduction to additional paid-in capital resulting from the
issuance of Class A Shares and Equity Units pursuant to the
Reorganization. If holders of 15% of Triton Delaware's Common Stock make an
Equity Unit Election, the net reduction in additional paid-in capital would
be $228 million; and
(f) the issuance of the Triton Delaware Preferred Stock pursuant to the
Reorganization.
F-5
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (CONTINUED)
2. FORMATION OF TRITON CAYMAN
Triton Cayman was incorporated on August 23, 1995 to become the parent
holding company of Triton Delaware. The balances of Triton Cayman reported in
the unaudited Pro Forma Consolidated Condensed Balance Sheet as of September 30,
1995 reflect the initial capitalization of Triton Cayman.
3. TRANSFER OF ASSETS
Following the Reorganization, Triton Delaware intends to transfer
substantially all of its businesses or subsidiaries located outside of the
United States, other than Triton Delaware's interests in the Cusiana and
Cupiagua fields in Colombia and interests in Argentina, to Triton Cayman. The
aggregate consideration to be received by Triton Delaware, estimated to be
approximately $233 million, will consist of preferred stock of Triton Oil
Company of Thailand JDA Ltd., through which Triton Cayman will hold its interest
in Block A-18 of the Malaysia-Thailand Joint Development Area and other
subsidiaries to be sold, with an aggregate stated value expected to approximate
the aggregate value of the businesses and subsidiaries being transferred, and a
promisary note of Triton Cayman for any remainder. No book gain or loss will be
recognized by Triton Cayman on a consolidated basis. The consideration for the
contemplated transfers will be determined by Triton Delaware at the time of such
transfers and will be based on independent third party appraisals. The
appraisals will not be binding on the IRS, which may argue that the
consideration on the transfer is larger.
4. TRITON DELAWARE PREFERRED STOCK
When, as and if the Board of Directors of Triton Delaware declares a
dividend on the common stock of Triton Delaware outstanding after the
Reorganization, the Board of Directors shall simultaneously declare a dividend
on the Triton Delaware Preferred Stock out of funds of Triton Delaware legally
available therefor, such that the aggregate amount of the dividend declared with
respect to the shares of Triton Delaware Preferred Stock shall be a portion of
the aggregate distribution on the Triton Delaware Preferred Stock and the common
stock (and any other series or class that participates in dividends with holders
of the common stock) equal to (x) ten times the number of shares of Triton
Delaware Preferred Stock outstanding at the time such distribution is made
divided by (y) the total number of shares of Triton Delaware Common Stock
outstanding immediately prior to the Effective Time. In case of the voluntary or
involuntary liquidation, dissolution, or winding-up of Triton Delaware, a holder
of one-tenth of one share of Triton Delaware Preferred Stock is entitled to
receive out of the assets of Triton Delaware available for distribution to its
stockholders an amount equal to the fair market value of one-tenth of one share
of Triton Delaware Preferred Stock at the Effective Time, which will be
determined by Triton Delaware upon the advice of its financial advisors at the
Effective Time (the "Liquidation Preference"), before any payment or
distribution is made to the holders of any series or class of Triton Delaware's
stock which ranks junior as to liquidation rights to the Triton Delaware
Preferred Stock. After payment in full of the Liquidation Preference, the
holders of such shares of Triton Delaware Preferred Stock will be entitled to
share with the holders of common stock of Triton Delaware in any distribution of
assets by Triton Delaware. In connection with any such distribution, the holders
of the shares of Triton Delaware Preferred Stock shall receive a portion of such
distribution equal to the product of the aggregate distribution and the
percentage of shares of Triton Delaware Common Stock that receive Equity Units
in the Merger, and the holders of common stock of Triton Delaware shall receive
the remainder of such distribution. In the event that the number of outstanding
shares of Triton Delaware Preferred Stock decreases, such percentage shall be
decreased in proportion to such decrease in number of shares of Triton Delaware
Preferred Stock. Neither a consolidation or merger of Triton Delaware with
another corporation nor a sale or transfer of all or part of Triton Delaware's
assets will be considered a liquidation, dissolution or winding-up of Triton
Delaware.
F-6
<PAGE>
TRITON ENERGY LIMITED AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (CONTINUED)
4. TRITON DELAWARE PREFERRED STOCK (CONTINUED)
Either Triton Cayman or Triton Delaware may, at its option, purchase Equity
Units, in whole or in part, at any time on or after the third anniversary of the
Effective Time. Triton Cayman may also, at its option, purchase Equity Units, in
whole or in part, at any time immediately prior to the date on which a sale or
other disposition of the stock of Triton Delaware is consummated. The purchase
price of one Equity Unit payable upon such purchase will generally be equal to
the greater of .95 of one Class A Share and the fair market value of an Equity
Unit, payable in cash or, by Triton Cayman, in Ordinary Shares. Neither Triton
Cayman nor Triton Delaware can exercise its option to purchase the Equity Units
in certain circumstances, including in the event of the bankruptcy or insolvency
of Triton Delaware.
5. ORDINARY SHARES
The authorized capital stock of Triton Cayman is divided into 200,000,000
Class A Shares, 10,000,000 Class B Shares, 10,000,000 class C ordinary shares,
par value $.01 per share (the "Class C Shares"), and 20,000,000 preference
shares. The Class A Shares, the Class B Shares and the Class C Shares rank pari
passu in all respects and have equal voting and other rights, except as set
forth in the Articles of Association.
The rights of holders of Triton Cayman's Class B Shares have been
specifically designed to permit a Class B Share to be paired with and only
transferable with one-tenth of one share of Triton Delaware Preferred Stock in
the form of an Equity Unit which is to be distributed only in connection with
the Reorganization to holders electing to receive such consideration. It is
intended that Class A Shares will be available for future issuances of equity
securities, if any, required by Triton Cayman to raise capital, in connection
with acquisitions or otherwise. It is intended that the Class C Shares will only
be issued in certain circumstances. The holders of the Class C Shares will be
entitled to the same dividend rights, liquidation preferences and voting and
other rights as the holders of the Class A Shares, except that they will be
subject to certain preferential rights of the holders of the Class A Shares.
The holders of Ordinary Shares will be entitled at any time to receive such
dividends as are declared by the Board of Directors of Triton Cayman. The
ability of Triton Cayman to pay dividends on capital stock is restricted by
covenants in indentures to which Triton Cayman will be a party upon the
consummation of the Reorganization.
Aggregate dividends declared and paid on one Class A Share are expected to
be equivalent to the aggregate dividends, if any, declared and paid on one-tenth
of one share of Triton Delaware Preferred Stock and one Class B Share included
in one Equity Unit. The holders of the Equity Units, in their capacity as
holders of shares of Triton Delaware Preferred Stock, may receive dividends at a
time or times when no dividends are being declared or paid on the Class A Shares
or the Class B Shares.
F-7
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and
Shareholder of Triton Energy Limited
In our opinion, the accompanying balance sheet presents fairly, in all material
respects, the financial position of Triton Energy Limited at December 31, 1995
in conformity with generally accepted accounting principles. This financial
statement is the responsibility of the Company's management; our responsibility
is to express an opinion on this financial statement based on our audit. We
conducted our audit of this statement in accordance with generally accepted
auditing standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statement is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statement, assessing the accounting
principles used and significant estimates made by management, and evaluating the
overall financial statement presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
PRICE WATERHOUSE LLP
Dallas, Texas
February 8, 1996
F-8
<PAGE>
TRITON ENERGY LIMITED
BALANCE SHEET
DECEMBER 31, 1995
(EXPRESSED IN UNITED STATES DOLLARS)
<TABLE>
<S> <C>
SHAREHOLDER'S EQUITY
Preferred stock, par value $1, authorized 5,000,000 shares......................... $ --
Common stock, par value $1, authorized 200,000,000 shares; issued 1,000............ 1,000
Subscription receivable.......................................................... (1,000)
---------
Total shareholder's equity..................................................... $ --
---------
---------
</TABLE>
See accompanying notes to balance sheet.
F-9
<PAGE>
TRITON ENERGY LIMITED
NOTES TO BALANCE SHEET
1. GENERAL
Triton Energy Limited (formerly named TC Holdings Limited, "Triton Cayman"),
a wholly-owned subsidiary of Triton Energy Corporation ("Triton Delaware"), a
Delaware Corporation, was incorporated on August 23, 1995 under the laws of the
Cayman Islands. Triton Cayman was formed to become the ultimate holding company
of Triton Delaware if the Board of Directors of Triton Delaware and the
stockholders of Triton Delaware approve such transaction. Triton Delaware is an
international oil and gas exploration company primarily engaged in exploration
and production through subsidiaries and affiliates. Triton Delaware's principal
properties and operations are located in Colombia and Malaysia-Thailand. Triton
Delaware also has oil and gas interests in other Latin American and Asian
countries, Europe, Australia and North America.
Triton Cayman had no operations from the date of incorporation on August 23,
1995 to December 31, 1995.
2. TAXATION
Under current Cayman Islands law, Triton Cayman is not required to pay any
Cayman Islands taxes on either income or capital gains. Triton Cayman has
applied for and expects to receive an Undertaking as to Tax Concessions
Certificate to be issued by the Governor-in-Council pursuant to the provisions
of the Tax Concessions Law which would provide that Triton Cayman would not be
subject to any future income or capital gains taxes which may be imposed for a
period of twenty years beginning on the date of the Undertaking.
F-10
<PAGE>
REVIEW REPORT OF INDEPENDENT ACCOUNTANTS
ON PRO FORMA CONSOLIDATED CONDENSED FINANCIAL INFORMATION
To the Board of Directors
of Triton Energy Corporation
We have reviewed the pro forma adjustments reflecting the transaction
described in Note 1 and the application of those adjustments to the historical
amounts in the accompanying pro forma consolidated condensed balance sheet of
Triton Energy Corporation as of September 30, 1995, and the pro forma
consolidated condensed statement of operations for the nine months then ended.
The historical consolidated condensed financial statements are derived from the
historical unaudited financial statements of Triton Energy Corporation, which
were reviewed by us, appearing in Triton Energy Corporation's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1995, and are incorporated by
reference in the accompanying Proxy Statement/Prospectus. Such pro forma
adjustments are based upon management's assumptions described in Notes 1 and 2.
Our review was conducted in accordance with standards established by the
American Institute of Certified Public Accountants.
A review is substantially less in scope than an examination, the objective
of which is the expression of an opinion on management's assumptions, the pro
forma adjustments and the application of those adjustments to historical
financial information. Accordingly, we do not express such an opinion.
The objective of this pro forma financial information is to show what the
significant effects on the historical information might have been had the
transaction occurred at an earlier date. However, the pro forma consolidated
condensed financial statements are not necessarily indicative of the results of
operations or related effects on financial position that would have been
attained had the above-mentioned transaction actually occurred earlier.
Based on our review, nothing came to our attention that caused us to believe
that management's assumptions do not provide a reasonable basis for presenting
the significant effects directly attributable to the above-mentioned transaction
described in Note 1, that the related pro forma adjustments do not give
appropriate effect to those assumptions, or that the pro forma column does not
reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma consolidated condensed balance sheet as of
September 30, 1995, and the pro forma consolidated condensed statement of
operations for the nine months then ended.
PRICE WATERHOUSE LLP
Dallas, Texas
February 14, 1996
F-11
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
ON PRO FORMA CONSOLIDATED CONDENSED FINANCIAL INFORMATION
To the Board of Directors
of Triton Energy Corporation
We have examined the pro forma adjustments reflecting the transaction
described in Note 1 and the application of those adjustments to the historical
amounts in the accompanying pro forma consolidated condensed statement of
operations for the seven months ended December 31, 1994 and the year ended May
31, 1994 of Triton Energy Corporation. The historical consolidated condensed
financial statements are derived from the historical financial statements of
Triton Energy Corporation, which were audited by us, appearing in Triton Energy
Corporation's Current Report on Form 8-K, dated August 24, 1995, and are
incorporated by reference in the accompanying Proxy Statement/ Prospectus. Such
pro forma adjustments are based upon management's assumptions described in Notes
1 and 2. Our examination was made in accordance with standards established by
the American Institute of Certified Public Accountants and, accordingly,
included such procedures as we considered necessary in the circumstances.
The objective of this pro forma financial information is to show what the
significant effects on the historical financial information might have been had
the transaction occurred at an earlier date. However, the pro forma consolidated
condensed financial statements are not necessarily indicative of the results of
operations that would have been attained had the above-mentioned transaction
actually occurred earlier.
In our opinion, management's assumptions provide a reasonable basis for
presenting the significant effects directly attributable to the above-mentioned
transaction described in Note 1, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma column reflects the
proper application of those adjustments to the historical financial statement
amounts in the pro forma consolidated condensed statement of operations for the
seven months ended December 31, 1994 and the year ended May 31, 1994.
PRICE WATERHOUSE LLP
Dallas, Texas
February 14, 1996
F-12
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
PRO FORMA FINANCIAL INFORMATION
(NOT COVERED BY INDEPENDENT ACCOUNTANTS' REPORT)
BASIS OF PRESENTATION
The accompanying pro forma consolidated condensed financial statements of
Triton Energy Corporation ("Triton Delaware") give effect to the transfer of
substantially all of its businesses or subsidiaries located outside of the
United States, other than Triton Delaware's interests in the Cusiana and
Cupiagua fields in Colombia and interests in Argentina, to Triton Energy Limited
("Triton Cayman"), a Cayman Islands company and wholly-owned subsidiary of
Triton Delaware, following the proposed Reorganization, whereby Triton Cayman
will become the parent holding company of Triton Delaware. The Pro Forma
Consolidated Condensed Balance Sheet adjusts the September 30, 1995 consolidated
condensed balance sheet as though such transactions occurred on September 30,
1995. The Pro Forma Consolidated Condensed Statements of Operations adjusts the
consolidated condensed statements of operations for the nine months ended
September 30, 1995, the seven month transition period ended December 31, 1994
and the year ended May 31, 1994 as though such transactions occurred on June 1,
1993. The pro forma results exclude any nonrecurring charges or credits directly
attributable to the transaction. The Triton Delaware historical unaudited
consolidated condensed balance sheet at September 30, 1995 and the historical
unaudited consolidated condensed statement of operations for the nine months
then ended are derived from the Triton Delaware Quarterly Report on Form 10-Q
for the quarter ended September 30, 1995, incorporated herein by reference. The
historical consolidated condensed statements of operations for the seven months
ended December 31, 1994 and the year ended May 31, 1994 are derived from Triton
Delaware's Current Report on Form 8-K dated August 24, 1995, incorporated herein
by reference.
The pro forma consolidated condensed financial statements should be read in
conjunction with the restated consolidated financial statements and the related
notes included in Triton Delaware's Current Report on Form 8-K dated August 24,
1995 and Quarterly Report on Form 10-Q for the quarter ended September 30, 1995.
The pro forma financial information is not indicative of the Triton Delaware's
financial position or the results of operations that might have occurred had
such transaction actually occurred on the dates indicated above.
F-13
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
SEPTEMBER 30, 1995
<TABLE>
<CAPTION>
DISPOSITION OF ISSUANCE OF
DESIGNATED PREFERRED
ASSETS HISTORICAL SUBSIDIARIES STOCK PRO FORMA
---------- --------------- --------------- ----------
(IN THOUSANDS)
(UNAUDITED)
Current assets:
<S> <C> <C> <C> <C>
Cash and equivalents............. $ 75,989 $ (1,020)(a) $ -- $ 74,969
Short-term marketable
securities...................... 57,338 -- (a) -- 57,338
Receivables...................... 33,122 (1,022)(a) -- 32,100
Inventories, prepaid expenses and
other........................... 5,927 (2,045)(a) -- 3,882
---------- --------------- --------------- ----------
Total current assets........... 172,376 (4,087) -- 168,289
Long-term marketable securities.... 3,930 -- -- 3,930
Property and equipment, at cost,
less depreciation and depletion... 465,816 (91,611)(a) -- 374,205
Investments and other assets....... 185,033 (21,093)(a) -- 163,940
Investments in affiliates.......... -- 233,000(b) -- 233,000
---------- --------------- --------------- ----------
$ 827,155 $ 116,209 $ -- $ 943,364
---------- --------------- --------------- ----------
---------- --------------- --------------- ----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current installments of long-term
debt............................ $ 1,313 $ -- $ -- $ 1,313
Accounts payable and accrued
liabilities..................... 35,273 (11,406)(a) -- 23,867
---------- --------------- --------------- ----------
Total current liabilities...... 36,586 (11,406) -- 25,180
---------- --------------- --------------- ----------
Long-term debt, excluding
current........................... 404,944 -- -- 404,944
Deferred income taxes.............. 26,137 (2,937)(a) -- 23,200
Deferred income and other.......... 116,276 -- -- 116,276
Convertible debentures due to
employees......................... -- -- -- --
Stockholders' equity:
5% Convertible preferred stock... 14,119 -- (14,119)(d) --
Participating preferred stock.... -- -- 439,086(c) 439,086
Common stock..................... 35,871 -- (35,512)(e) 359
Additional paid-in capital....... 514,266 130,411(b) (403,574)(f) 255,222
14,119(d)
Accumulated deficit.............. (311,902) -- -- (311,902)
Foreign currency translation
adjustment...................... (8,519) 141(a) -- (8,378)
Other............................ (281) -- -- (281)
---------- --------------- --------------- ----------
243,554 130,552 -- 374,106
Less cost of common stock in
treasury........................ 342 -- -- 342
---------- --------------- --------------- ----------
Total stockholders' equity..... 243,212 130,552 -- 373,764
Commitments and contingencies...... -- -- -- --
---------- --------------- --------------- ----------
$ 827,155 $ 116,209 $ -- $ 943,364
---------- --------------- --------------- ----------
---------- --------------- --------------- ----------
</TABLE>
Triton Energy Corporation uses the full cost method to account for its oil and
gas producing activities.
See accompanying notes to pro forma consolidated condensed financial statements.
F-14
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1995
<TABLE>
<CAPTION>
DISPOSITION OF DISPOSITION OF
TRITON FRANCE DESIGNATED
HISTORICAL (2) SUBSIDIARIES (H) PRO FORMA
--------------- ---------------- --------------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<S> <C> <C> <C> <C>
Revenues:
Sales and other operating revenues......... $ 80,841 $ (9,257) $ -- $ 71,584
Other income............................... 17,255 (3,516) 521 14,260
Investment income from affiliates.......... -- -- 15,728(g) 15,728
--------------- -------- --------------- -----------
98,096 (12,773) 16,249 101,572
--------------- -------- --------------- -----------
Costs and expenses:
Operating.................................. 27,210 (5,460) -- 21,750
General and administrative................. 18,982 (764) (1,506) 16,712
Depreciation, depletion and amortization... 17,597 (1,720) (41) 15,836
Writedown of assets........................ -- -- -- --
Interest................................... 18,210 (12) 4,735 22,933
Equity in (earnings) loss of affiliates,
net....................................... 1,014 -- -- 1,014
Foreign exchange (gain) loss............... (773) (78) 306 (545)
--------------- -------- --------------- -----------
82,240 (8,034) 3,494 77,700
--------------- -------- --------------- -----------
Earnings (loss) from continuing operations
before income taxes and minority
interest.................................. 15,856 (4,739) 12,755 23,872
Income tax provision (benefit):
Current.................................... 921 -- -- 921
Deferred................................... 9,002 (129) (1,675) 7,198
--------------- -------- --------------- -----------
5,933 (4,610) 14,430 15,753
Minority interest in loss of subsidiaries.... -- -- -- --
--------------- -------- --------------- -----------
Earnings (loss) from continuing
operations................................ $ 5,933 $ (4,610) $ 14,430 $ 15,753
--------------- -------- --------------- -----------
--------------- -------- --------------- -----------
Weighted average number of shares
outstanding................................. 35,088 35,088
--------------- -----------
--------------- -----------
Earnings (loss) from continuing operations
per common share............................ $ 0.15 $ 0.43
--------------- -----------
--------------- -----------
</TABLE>
See accompanying notes to pro forma consolidated condensed financial statements
F-15
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
SEVEN MONTHS ENDED DECEMBER 31, 1994
<TABLE>
<CAPTION>
DISPOSITION OF DISPOSITION OF
TRITON FRANCE DESIGNATED
HISTORICAL (2) SUBSIDIARIES (H) PRO FORMA
--------------- ---------------- --------------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues:
Sales and other operating revenues......... $ 20,736 $ (9,179) $ -- $ 11,557
Other income............................... 4,585 (218) 162 4,529
Investment income from affiliates.......... -- -- 12,233(g) 12,233
--------------- ------- --------------- -----------
25,321 (9,397) 12,395 28,319
--------------- ------- --------------- -----------
Costs and expenses:
Operating.................................. 12,362 (5,784) -- 6,578
General and administrative................. 15,997 (480) (1,044) 14,473
Depreciation, depletion and amortization... 7,339 (2,363) (26) 4,950
Writedown of assets........................ 984 -- -- 984
Interest................................... 7,754 (47) 2,187 9,894
Equity in (earnings) loss of affiliates,
net....................................... 4,102 -- -- 4,102
Foreign exchange (gain) loss............... (383) 21 185 (177)
--------------- ------- --------------- -----------
48,155 (8,653) 1,302 40,804
--------------- ------- --------------- -----------
Earnings (loss) from continuing operations
before income taxes and minority
interest.................................. (22,834) (744) 11,093 (12,485)
Income tax provision (benefit):
Current.................................... (773) -- -- (773)
Deferred................................... 4,569 -- (1,389) 3,180
--------------- ------- --------------- -----------
(26,630) (744) 12,482 (14,892)
Minority interest in loss of subsidiaries.... -- -- -- --
--------------- ------- --------------- -----------
Earnings (loss) from continuing
operations................................ $ (26,630) $ (744) $ 12,482 $(14,892)
--------------- ------- --------------- -----------
--------------- ------- --------------- -----------
Weighted average number of shares
outstanding................................. 34,944 34,944
--------------- -----------
--------------- -----------
Earnings (loss) from continuing operations
per common share............................ $ (0.78) $ (0.44)
--------------- -----------
--------------- -----------
</TABLE>
See accompanying notes to pro forma consolidated condensed financial statements
F-16
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
YEAR ENDED MAY 31, 1994
<TABLE>
<CAPTION>
DISPOSITION OF DISPOSITION OF
TRITON FRANCE DESIGNATED
HISTORICAL (2) SUBSIDIARIES (H) PRO FORMA
--------------- ---------------- --------------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues:
Sales and other operating revenues......... $ 43,208 $ (17,494) $ -- $ 25,714
Gain on sale of Triton Canada common
stock..................................... 47,865 -- -- 47,865
Other income............................... 16,321 (396) 508 16,433
Investment income from affiliates.......... -- -- 20,970(g) 20,970
--------------- -------- --------------- -----------
107,394 (17,890) 21,478 110,982
--------------- -------- --------------- -----------
Costs and expenses:
Operating.................................. 27,887 (10,347) -- 17,540
General and administrative................. 30,429 (3,535) (446) 26,448
Depreciation, depletion and amortization... 19,821 (9,878) (20) 9,923
Writedown of assets........................ 45,754 (43,201) (168) 2,385
Interest................................... 7,504 (132) 1,410 8,782
Equity in (earnings) loss of affiliates,
net....................................... (645) -- -- (645)
Foreign exchange (gain) loss............... (252) 83 9 (160)
--------------- -------- --------------- -----------
130,498 (67,010) 785 64,273
--------------- -------- --------------- -----------
Earnings (loss) from continuing operations
before income taxes and minority
interest.................................. (23,104) 49,120 20,693 46,709
Income tax provision (benefit):
Current.................................... 3,688 2,045 -- 5,733
Deferred................................... (10,224) 10,661 -- 437
--------------- -------- --------------- -----------
(16,568) 36,414 20,693 40,539
Minority interest in (earnings) loss of
subsidiaries................................ 11,971 (12,027) (321) (377)
--------------- -------- --------------- -----------
Earnings (loss) from continuing
operations................................ $ (4,597) $ 24,387 $ 20,372 $ 40,162
--------------- -------- --------------- -----------
--------------- -------- --------------- -----------
Weighted average number of shares
outstanding................................. 34,775 34,775
--------------- -----------
--------------- -----------
Earnings (loss) from continuing operations
per common share............................ $ (0.13) $ 1.15
--------------- -----------
--------------- -----------
</TABLE>
See accompanying notes to pro forma consolidated condensed financial statements
F-17
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. PLAN OF REORGANIZATION
Triton Energy Corporation ("Triton Delaware") has proposed a reorganization
pursuant to which Triton Energy Limited ("Triton Cayman"), a Cayman Islands
company and a wholly-owned subsidiary of Triton Delaware, will become the parent
holding company of Triton Delaware. The Reorganization will be effected pursuant
to the Agreement and Plan of Merger among Triton Cayman, Triton Delaware and TEL
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Triton
Cayman ("Sub").
In connection with the Reorganization, holders in the aggregate of not less
than 15% but not more than 25% of the outstanding shares of Triton Delaware
Common Stock may make an unconditional election (the "Equity Unit Election") to
receive one equity unit ("Equity Unit") comprised of (i) one Class B ordinary
share of Triton Cayman, par value $.01 per share ("Class B Share"), and (ii)
one-tenth of one share of participating preferred stock, par value $.01 per
share, of Triton Delaware ("Triton Delaware Preferred Stock"), which securities
will be paired and after such pairing may only be traded together as a unit and
will not be separately transferable. Each outstanding share of Triton Delaware
Common Stock, other than those shares with respect to which an Equity Unit
Election has been made, will be automatically converted into one Class A
ordinary share, par value of $.01 per share ("Class A Shares"), of Triton
Cayman. Each outstanding share of 5% convertible preferred stock of Triton
Delaware will be automatically converted into one 5% convertible preference
share of Triton Cayman.
Following the Reorganization, Triton Delaware intends to transfer
substantially all of its businesses or subsidiaries located outside of the
United States, other than Triton Delaware's interests in the Cusiana and
Cupiagua fields in Colombia and interests in Argentina, to Triton Cayman. The
aggregate consideration to be received by Triton Delaware, estimated to be
approximately $233 million, will consist of preferred stock of Triton Oil
Company of Thailand JDA Ltd., through which Triton Cayman will hold its interest
in Block A-18 of the Malaysia-Thailand Joint Development Area, and other
subsidiaries to be sold, with an aggregate stated value expected to approximate
the aggregate value of the businesses and subsidiaries being transferred, and a
promissory note of Triton Cayman for any remainder. The excess of the
consideration over the net book value of the assets to be sold, estimated to be
approximately $131 million, has been reported as an increase to stockholders'
equity in the unaudited Pro Forma Consolidated Condensed Balance Sheet of Triton
Delaware. The consideration for the contemplated transfers will be determined by
Triton Delaware at the time of such transfers and will be based on independent
third party appraisals. The appraisals will not be binding on the IRS, which may
argue that the consideration on the transfer is larger.
Pro forma adjustments are made to reflect:
(a) the disposition of assets, liabilities and intercompany accounts of
the designated subsidiaries as if the sales occurred on September 30,
1995;
(b) the consideration received by Triton Delaware and resulting gain, net
of taxes, from the sale of the designated subsidiaries;
(c) the issuance of .9 million shares of Triton Delaware Preferred Stock,
assuming holders of 25% of Triton Delaware Common Stock make an
Equity Unit Election and that each one-tenth of one share of Triton Delaware
Preferred Stock is valued at $49, as determined by Triton Delaware based
upon the advice of its financial advisors. If holders of 15% of Triton
Delaware's Common Stock make an Equity Unit Election, the amount shown for
participating preferred stock would be $263 million, as determined by Triton
Delaware based upon the advice of its financial advisors. At the Effective
Time, the value of one-tenth of one share of Triton Delaware Preferred Stock
will be determined by Triton Delaware based upon the advice of its financial
advisors at such time;
F-18
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (CONTINUED)
1. PLAN OF REORGANIZATION (CONTINUED)
(d) the conversion, pursuant to the Reorganization, of .4 million shares
of Triton Delaware's 5% convertible preferred stock into .4 million
5% convertible preference shares of Triton Cayman;
(e) the reduction of the par value of Triton Delaware Common Stock (35.9
million shares outstanding on a historical and pro forma basis) from
$1.00 per share to $.01 per share, in connection with the Merger;
(f) the net reduction in additional paid-in capital resulting from the
issuance of Class A shares of Triton Cayman and Triton Delaware
Preferred Stock pursuant to the Reorganization. If holders of 15% of Triton
Delaware's Common Stock make an Equity Unit Election, the net reduction to
additional paid-in capital would be $228 million;
(g) interest charged at a rate of 9% per annum on the promissory note
from Triton Cayman due after a period of ten years with interest
payable on the maturity date, and accrued dividends at a rate of 9% per
annum on the preferred stock of Triton Oil Company of Thailand JDA Ltd. and
the other subsidiaries to be sold; and
(h) the elimination of the results of operations related to the
designated subsidiaries as if the acquisition occurred on June 1,
1993. The designated subsidiaries primarily represent Triton Delaware's
exploration operations. Interest expense increased on a pro forma basis due
to decreased capitalized interest.
2. SALE OF TRITON FRANCE S.A.
On August 18, 1995, Triton Delaware sold Triton France S.A. ("Triton
France") through which it held its interest in the Villeperdue field. The pro
forma adjustments are made to reflect the sale of Triton France as if it
occurred on June 1, 1993.
3. TRITON DELAWARE PREFERRED STOCK
When, as and if the Board of Directors of Triton Delaware declares a
dividend on the common stock of Triton Delaware outstanding after the
Reorganization, the Board of Directors shall simultaneously declare a dividend
on the Triton Delaware Preferred Stock out of funds of Triton Delaware legally
available therefor, such that the aggregate amount of the dividend declared with
respect to the shares of Triton Delaware Preferred Stock shall be a portion of
the aggregate distribution on the Triton Delaware Preferred Stock and the common
stock (and any other series or class that participates in dividends with holders
of the common stock) equal to (x) ten times the number of shares of Triton
Delaware Preferred Stock outstanding at the time such distribution is made
divided by (y) the total number of shares of Triton Delaware Common Stock
outstanding immediately prior to the Effective Time. In case of the voluntary or
involuntary liquidation, dissolution, or winding-up of Triton Delaware, a holder
of one-tenth of one share of Triton Delaware Preferred Stock is entitled to
receive out of the assets of Triton Delaware available for distribution to its
stockholders an amount equal to the fair market value of one-tenth of one share
of Triton Delaware Preferred Stock at the Effective Time, which will be
determined by Triton Delaware upon the advice of its financial advisors at the
Effective Time (the "Liquidation Preference"), before any payment or
distribution is made to the holders of any series or class of Triton Delaware's
stock which ranks junior as to liquidation rights to the Triton Delaware
Preferred Stock. After payment in full of the Liquidation Preference, the
holders of such shares of Triton Delaware Preferred Stock will be entitled to
share with the holders of common stock of Triton Delaware in any distribution of
assets by Triton Delaware. In connection with any such distribution, the holders
of shares of Triton Delaware Preferred Stock shall receive a portion of such
distribution equal to the product of the aggregate distribution and the
percentage of shares of Triton Delaware Common Stock that receive Equity Units
in the Merger, and the holders of common stock of Triton Delaware shall receive
the remainder of such distribution. In the event that the
F-19
<PAGE>
TRITON ENERGY CORPORATION AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS (CONTINUED)
3. TRITON DELAWARE PREFERRED STOCK (CONTINUED)
number of outstanding shares of Triton Delaware Preferred Stock decreases, such
percentage shall be decreased in proportion to such decrease in number of shares
of Triton Delaware Preferred Stock. Neither a consolidation or merger of Triton
Delaware with another corporation nor a sale or transfer of all or part of
Triton Delaware's assets will be considered a liquidation, dissolution, or
winding-up of Triton Delaware.
Either Triton Cayman or Triton Delaware may, at its option, purchase Equity
Units, in whole or in part at any time on or after the third anniversary of the
Effective Time. Triton Cayman may also, at its option, purchase Equity Units, in
whole or in part, at any time immediately prior to the date on which a sale or
other disposition of the stock of Triton Delaware is consummated. The purchase
price of one Equity Unit payable upon such purchase will generally be the
greater of .95 of one Class A Share and the fair market value of an Equity Unit,
payable in cash or, in the case of Triton Cayman, Ordinary Shares. Neither
Triton Cayman nor Triton Delaware can exercise its option to purchase the Equity
Units in certain circumstances, including in the event of the bankruptcy or
insolvency of Triton Delaware.
4. TRITON DELAWARE COMMON STOCK
Upon consummation of the Reorganization, Triton Cayman will own all
outstanding shares of Triton Delaware Common Stock.
F-20
<PAGE>
ANNEX I
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of February 8, 1996 among TRITON
ENERGY CORPORATION, a Delaware corporation ("Triton Delaware"), TRITON ENERGY
LIMITED, a Cayman Islands company and a wholly-owned subsidiary of Triton
Delaware ("Triton Cayman"), and TEL MERGER CORP., a Delaware corporation and a
newly formed, wholly-owned subsidiary of Triton Cayman ("Sub").
WHEREAS, the respective Boards of Directors of Triton Delaware, Triton
Cayman and Sub have determined that it is in the best interests of their
respective stockholders to reorganize (the "Reorganization") so that Triton
Cayman becomes the parent holding company for Triton Delaware;
WHEREAS, the respective Boards of Directors of Triton Delaware, Sub and
Triton Cayman have approved the merger of Sub with and into Triton Delaware (the
"Merger"), upon the terms and subject to the conditions set forth in this
Agreement, whereby each outstanding share of common stock, par value $1.00 per
share ("Triton Delaware Common Stock"), of Triton Delaware (other than those
shares held by Triton Delaware in its treasury and those outstanding shares of
Triton Delaware Common Stock ("Electing Shares") with respect to which an Equity
Unit Election (as hereinafter defined) has been properly made and not withdrawn,
subject to the Equity Unit Limitation (as hereinafter defined)), will be
automatically converted into one class A ordinary share, par value $.01 per
share (the "Class A Share"), of Triton Cayman;
WHEREAS, the Board of Directors of Triton Delaware has determined that
holders of an aggregate of not less than 15% but not more than 25% (the "Equity
Unit Limitation") of the outstanding shares of Triton Delaware Common Stock in
the aggregate, may make an unconditional election (the "Equity Unit Election")
to receive an equity unit ("Equity Unit") consisting of (i) one Class B ordinary
share, par value $.01 per share (the "Class B Share" and, together with the
Class A Shares, the "Ordinary Shares"), and (ii) 1/10th of one share of Triton
Delaware's Participating Preferred Stock, par value $.01 per share ("Triton
Delaware Preferred Stock"), which securities will be paired and after such
pairing may only be traded together as a unit and will not be separately
transferable, for each share of Triton Delaware Common Stock owned of record by
such stockholder in lieu of such shares being automatically converted into Class
A Shares;
WHEREAS, the Merger requires the approval of the holders of a majority of
the outstanding shares of the Triton Delaware Common Stock entitled to vote
thereon at the meeting of holders of Triton Delaware Common Stock to be called
therefor (the "Triton Delaware Stockholder Approval");
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
MERGER
1.1 MERGER
Upon the terms and subject to the conditions set forth in this Agreement,
and in accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), Sub shall be merged with and into Triton Delaware at the Effective Time
of the Merger (as defined in Section 1.2). Following the Effective Time of the
Merger, the separate corporate existence of Sub shall cease and Triton Delaware
shall continue as the surviving corporation (the "Surviving Corporation") and
shall succeed to and assume all the rights and obligations of Sub in accordance
with the DGCL.
I-1
<PAGE>
1.2 EFFECTIVE TIME
Subject to the provisions of this Agreement, as soon as practicable
following the satisfaction or waiver of the conditions set forth in Section 5.1,
the parties shall file a certificate of merger or other appropriate documents
(in any case, the "Certificate of Merger") executed in accordance with the
relevant provisions of the DGCL and shall make all other filings or recordings
required under the DGCL. The Merger shall become effective at the close of
business on the date that an appropriate Certificate of Merger is duly filed
with the Secretary of State of the State of Delaware, or at such later time as
Sub and Triton Delaware shall agree should be specified in the Certificate of
Merger (the time the Merger becomes effective being hereinafter referred to as
the "Effective Time of the Merger").
1.3 EFFECTS OF THE MERGER
The Merger shall have the effects set forth in Section 259 of the DGCL.
ARTICLE II
NAME, CERTIFICATE OF INCORPORATION,
BY-LAWS, DIRECTORS AND OFFICERS OF
THE SURVIVING CORPORATION
2.1 NAME OF SURVIVING CORPORATION
The name of the surviving corporation shall be "Triton Energy Corporation".
2.2 CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of Triton Delaware shall be the Certificate
of Incorporation of the Surviving Corporation after the Effective Time of the
Merger until amended thereafter as provided therein or by law except that the
certificate of incorporation of Triton Delaware shall be amended in its entirety
by virtue of the Merger to read in full as set forth in Exhibit A hereto.
2.3 BY-LAWS
The by-laws of Triton Delaware as in effect at the Effective Time of the
Merger shall be the by-laws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
2.4 DIRECTORS
The directors of Triton Delaware at the Effective Time of the Merger shall
be the directors of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
2.5 OFFICERS
The officers of Triton Delaware at the Effective Time of the Merger shall be
the officers of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
ARTICLE III
CONVERSION, ELECTION AND EXCHANGE OF STOCK
3.1 CONVERSION
At the Effective Time of the Merger, by virtue of the Merger and without any
action on the part of the holder of any shares:
(a) COMMON STOCK OF SUB. The issued and outstanding shares of common stock
of Sub shall be converted into and become such number of fully paid and
nonassessable shares of Triton Delaware Common Stock, par value $.01 per share,
equal to the number of shares of Triton Delaware Common Stock outstanding
immediately prior to the Effective Time of the Merger.
I-2
<PAGE>
(b) CANCELLATION OF TRITON DELAWARE-OWNED STOCK. Each outstanding Class A
Share and each share of Triton Delaware Common Stock that is owned by Triton
Delaware prior to the Effective Time of the Merger shall automatically be
cancelled and retired and shall cease to exist, and no Ordinary Shares or other
consideration shall be delivered or deliverable in exchange for such Class A
Shares or shares of Triton Delaware Common Stock.
(c) CONVERSION OF TRITON DELAWARE COMMON STOCK. (i) Each issued and
outstanding share of Triton Delaware Common Stock (other than shares to be
cancelled in accordance with Section 3.1(b) and other than Electing Shares which
shall be converted as described in (ii) below) shall be automatically converted
into and shall become one validly issued, fully paid and non-assessable Class A
Share and (ii) each share of Triton Delaware Common Stock with respect to which
an Equity Unit Election has been effectively made and not revoked or lost,
pursuant to Section 3.2(c), (d) and (e), subject to the limitation contained in
Section 3.2(f), shall be automatically converted into a one Depositary Share
(which will be evidenced by a receipt) consisting of one Class B Share and
1/10th of one share of Triton Delaware Preferred Stock which will trade together
as an Equity Unit and not be separately transferable.
(d) CONVERSION OF CONVERTIBLE PREFERRED STOCK. At the Effective Time of the
Merger, each outstanding share of 5% convertible preferred stock, no par value
("Triton Delaware Convertible Preferred Stock"), of Triton Delaware (other than
Dissenting Shares (as defined below)) shall be automatically converted into and
shall become one 5% convertible preference share, par value $.01 per share
("Convertible Preference Shares"), of Triton Cayman. Notwithstanding anything in
this Agreement to the contrary, shares of Triton Delaware Convertible Preferred
Stock issued and outstanding immediately prior to the Effective Time of the
Merger held by a holder who demands an appraisal of such shares in accordance
with Section 262 of the DGCL (or any successor provision) ("Dissenting Shares")
shall not be converted into Convertible Preference Shares unless such holder
fails to perfect or otherwise loses such holder's right to such an appraisal.
If, after the Effective Time of the Merger, such holder fails to perfect or
loses any such right to an appraisal, each such share of such holder shall be
treated as a share that had been converted as of the Effective Time of the
Merger into one Convertible Preference Share in accordance with the first
sentence of this subsection.
(e) STOCK OPTION PLANS. Triton Cayman shall assume all the rights and
obligations of Triton Delaware under the 1981 Employee Non-Qualified Stock
Option Plan, 1985 Stock Option Plan, Amended and Restated 1986 Convertible
Debenture Plan, 1988 Stock Appreciation Rights Plan, 1989 Stock Option Plan,
Amended and Restated 1992 Stock Option Plan and Amended and Restated Restricted
Stock Plan, as each such plan has been or may be amended to the Effective Time
of the Merger (collectively, the "Plans"). The outstanding options or debentures
assumed by Triton Cayman shall be exercisable or convertible upon the same terms
and conditions as under the Plans and the agreements relating thereto
immediately prior to the Effective Time of the Merger, except that upon the
exercise of such options or the conversion of such debentures, Class A Shares
shall be issuable in lieu of shares of Triton Delaware Common Stock. The number
of Class A Shares issuable upon the exercise of an option or the conversion of a
debenture immediately prior to the Effective Time of the Merger and the option
price of each such option and the conversion price of each such debenture shall
be the option price and the conversion price in effect immediately prior to the
Effective Time of the Merger. All options or debentures issued pursuant to the
Plans after the Effective Time of the Merger shall entitle the holder thereof to
purchase, or convert into, Class A Shares in accordance with the terms of the
Plans.
3.2 EQUITY UNIT ELECTION
(a) Each person who, on or prior to the Election Date referred to in
subsection (c) below, is a record holder of shares of Triton Delaware Common
Stock shall be entitled to make an Equity Unit Election with respect to any or
all of such person's shares (such shares thereby becoming Electing Shares,
subject to the provisions of this Section 3.2) on or prior to such Election Date
to receive a Receipt representing an Equity Unit consisting of one Class B Share
and 1/10th of one share of Triton
I-3
<PAGE>
Delaware Preferred Stock for each Electing Share in lieu of such shares being
automatically converted into Class A Shares. The Class B Share and 1/10th of one
share of Triton Delaware Preferred Stock contained in an Equity Unit may only be
traded together as an Equity Unit and will not be separately transferable.
(b) Prior to the mailing to the record holders of Triton Delaware Common
Stock as of the record date for the special meeting of stockholders of Triton
Delaware (the "Stockholders Meeting") of the Proxy Statement/Joint Prospectus
relating to the Stockholders Meeting (the "Proxy Statement"), Triton Delaware
shall appoint a bank or trust company to act as exchange agent (the "Exchange
Agent") for the Equity Units.
(c) Triton Delaware shall prepare and mail a form of election (the "Form of
Election") with the Proxy Statement to the record holders of Triton Delaware
Common Stock as of the record date for the Stockholders Meeting, which Form of
Election shall be used by each record holder of shares of Triton Delaware Common
Stock who wishes to make an Equity Unit Election. Triton Delaware will use
reasonable efforts to make the Form of Election and the Proxy Statement
available to all persons who become holders of Triton Delaware Common Stock
during the period between such record date and the Election Date referred to
below. Any such holder's election to receive Equity Units shall have been
properly made only if the Exchange Agent shall have received at its designated
office, by 5:00 p.m., New York City time, on the third business day (the
"Election Date") next preceding the date of the Stockholders Meeting, a Form of
Election properly completed and signed and accompanied by the stock certificates
representing such Electing Shares to which such Form of Election relates, duly
endorsed in blank or otherwise in a form acceptable for transfer on the books of
Triton Delaware (or by an appropriate guarantee of delivery of such certificates
as set forth in such Form of Election from a firm which is a member of a
registered national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an office
or correspondent in the United States, provided such certificates are in fact
delivered to the Exchange Agent within five New York Stock Exchange trading days
after the date of execution of such guarantee of delivery).
(d) Any Form of Election may be revoked by the stockholder submitting it to
the Exchange Agent only by written notice received by the Exchange Agent (i)
prior to 5:00 p.m., New York City time, on the Election Date or (ii) after the
date of the Proxy Statement, if (and to the extent that) the Exchange Agent is
legally required to permit revocations and the Effective Time of the Merger
shall not have occurred prior to such date. In addition, all Forms of Election
shall automatically be revoked if the Exchange Agent is notified in writing by
Triton Delaware that the Merger has been abandoned. If a Form of Election is
revoked, the certificate or certificates (or guarantees of delivery, as
appropriate) representing the Electing Shares to which such Form of Election
relates shall be promptly returned to the stockholder submitting the same to the
Exchange Agent.
(e) The determination of the Exchange Agent as to whether or not the Equity
Unit Election has been properly made or revoked pursuant to this Section 3.2
with respect to Electing Shares and when elections and revocations were received
by it shall be binding. If the Exchange Agent determines that any Equity Unit
Election was not properly made with respect to shares of Triton Delaware Common
Stock, such shares shall be treated by the Exchange Agent as shares which were
not Electing Shares at the Effective Time of the Merger, and such shares will be
automatically converted into Class A Shares pursuant to subsection (g) below.
The Exchange Agent shall also make all computations as to the allocation and the
proration contemplated by Section 3.2(f), and any such computation shall be
conclusive and binding on the holders of Electing Shares. The Exchange Agent
may, with the agreement of Triton Delaware, make such rules as are consistent
with this Section 3.2 for the implementation of the elections provided for
herein as shall be necessary or desirable fully to effect such elections.
(f) (i) The maximum number (the "Maximum Election Number") of shares of
Triton Delaware Common Stock with respect to which Equity Unit Elections can be
made shall be 25% of the number of shares of Triton Delaware Common Stock
outstanding immediately prior to the Effective Time of the Merger and the
minimum number (the "Minimum Election Number") of shares of Triton Delaware
I-4
<PAGE>
Common Stock with respect to which Equity Unit Elections can be made shall be
15% of the number of shares of Triton Delaware Common Stock outstanding
immediately prior to the Effective Time of the Merger (such limitations, the
"Equity Unit Limitation"). (ii) If the number of Electing Shares exceeds the
Maximum Election Number, then such Electing Shares shall be automatically
converted into Equity Units and Class A Shares in accordance with the terms of
subsection (g) below in the following manner:
(I)A proration factor (the "Proration Factor") shall be determined by
dividing the Maximum Election Number by the total number of Electing
Shares.
(II)
The number of Electing Shares covered by each Equity Unit Election to be
converted into Equity Units shall be determined by multiplying the
Proration Factor by the total number of Electing Shares covered by such
Equity Unit Election.
(III)
All Electing Shares, other than those shares converted into Equity Units
in accordance with Section (f)(ii)(ii), shall be converted into Class A
Shares as if such shares were not Electing Shares in accordance with the
terms of subsection (g) below.
(iii) If the number of Electing Shares is less than the Minimum Election
Number, no Class B Shares or Triton Delaware Preferred Stock will be issued and
all Electing Shares shall be converted into Class A Shares as if such shares
were not Electing Shares in accordance with the terms of subsection (g) below.
(iv) If the number of Electing Shares is less than or equal to the Maximum
Election Number and greater than or equal to the Minimum Election Number, then
all Electing Shares shall be converted into Equity Units in accordance with the
terms of Section 3.1(c)(ii), and all shares of Triton Delaware Common Stock
other than Electing Shares shall be converted into Class A Shares in accordance
with the terms of Section 3.1(c)(i).
(g) If (i) the number of Electing Shares is less than the Minimum Election
Number, (ii) the Exchange Agent determines that any Equity Unit Election was not
properly made with respect to shares of Triton Delaware Common Stock or (iii)
the Electing Shares are prorated and only a portion of the Electing Shares are
converted into Equity Units, each such Electing Share that is not automatically
converted into Equity Units shall be treated by the Exchange Agent as a share
which was not an Electing Share at the Effective Time of the Merger and shall be
converted into one Class A Share.
(h) A portion of each stockholder's Triton Delaware Common Stock exchanged
for Equity Units in the Reorganization will be transferred to Triton Delaware as
consideration for the issuance of the Triton Delaware Preferred Stock and the
remaining portion of such Triton Delaware Common Stock so exchanged will be
transferred to Triton Cayman as consideration for the issuance by Triton Cayman
of the Class B Shares. Allocation of the value of the exchanged Triton Delaware
Common Stock between the Triton Delaware Preferred Stock and Class B Shares
issued in exchange for such Triton Delaware Common Stock shall be determined
based on the respective fair market values of the Triton Delaware Preferred
Stock and the Class B Shares at the date of the Reorganization.
3.3 EXCHANGE OF STOCK
(a) Exchange Procedures. Following the Effective Time of the Merger, each
holder of an outstanding certificate or certificates theretofore representing
shares of Triton Delaware Common Stock (other than those stockholders who elect
to receive Equity Units in the Merger) may, but shall not be required to,
surrender the same to Triton Cayman for cancellation or transfer, and each such
holder or transferee will be entitled to receive certificates representing the
same number of Class A Shares as the shares of Triton Delaware Common Stock
previously represented by the stock certificates surrendered. Following the
Effective Time of the Merger, receipts evidencing depositary shares representing
the Equity Units will be issued to holders of Electing Shares, subject to
Section 3.2, and certificates representing Class A Shares will be issued to
holders of Electing Shares to the extent that such Electing Shares are not
converted into Equity Units as provided in Section 3.2. If any certificate
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representing Class A Shares is to be issued in a name other than that in which
the certificate theretofore representing Triton Delaware Common Stock
surrendered is registered, it shall be a condition to such issuance that the
certificate surrendered shall be properly endorsed and otherwise in proper form
for transfer and that the person requesting such issuance shall either: (i) pay
Triton Cayman or its agents any taxes or other governmental charges required by
reason of the issuance of certificates representing Class A Shares in a name
other than that of the registered holder of the certificate so surrendered; or
(ii) establish to the satisfaction of Triton Cayman or its agents that such
taxes or governmental charges have been paid. Until so surrendered or presented
for transfer each outstanding certificate which, prior to the Effective Time of
the Merger, represented Triton Delaware Common Stock shall be deemed and treated
for all corporate purposes to represent the ownership of the same number of
Class A Shares as though such surrender or transfer and exchange had taken
place.
(b) No Further Ownership Rights in Triton Delaware Common Stock. All Class
A Shares or Equity Units issued upon the surrender for exchange of certificates
in accordance with the terms of this Article III shall be deemed to have been
issued (and paid) in full satisfaction of all rights pertaining to the shares of
Triton Delaware Common Stock theretofore represented by such certificates,
subject, however, to the Surviving Corporation's obligation to pay any dividends
or make any other distributions with a record date prior to the Effective Time
of the Merger which may have been declared or made by Triton Delaware on such
shares of Triton Delaware Common Stock in accordance with the terms of this
Agreement or prior to the date of this Agreement and which remain unpaid at the
Effective Time of the Merger, and there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation of the shares
of Triton Delaware Common Stock which were outstanding immediately prior to the
Effective Time of the Merger. If, after the Effective Time of the Merger,
certificates are presented to the Surviving Corporation they shall be cancelled
and exchanged as provided in this Article III, except as otherwise provided by
law.
ARTICLE IV
EMPLOYEE BENEFIT AND COMPENSATION PLANS
At the Effective Time of the Merger, each employee benefit plan and
incentive compensation plan to which Triton Delaware is then a party shall be
assumed by, and continue to be the plan of, the Surviving Corporation. To the
extent any employee benefit or incentive compensation plan of Triton Delaware
provides for the issuance or purchase of, or otherwise relates to, Triton
Delaware Common Stock, after the Effective Time of the Merger, such plan shall
be deemed to provide for the issuance or purchase of, or otherwise relate to,
Class A Shares.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER
The respective obligation of each party to effect the Merger is subject to
the satisfaction or waiver of the following conditions:
(a)
Stockholder Approval. The Triton Delaware Stockholder Approval shall have
been obtained.
(b)
Form S-4. The registration statement on Form S-4 filed with the Securities
and Exchange Commission by Triton Delaware and Triton Cayman in connection
with the issuance of the Class A Shares, Equity Units consisting of the
Class B Shares and the Triton Delaware Preferred Stock in the Merger shall
have become effective under the Securities Act of 1933, as amended, and
shall not be the subject of any stop order or proceedings seeking a stop
order.
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ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
6.1 TERMINATION
This Agreement may be terminated at any time prior to the Effective Time of
the Merger, whether before or after approval by the stockholders of Triton of
matters presented in connection with the Merger, by action of the Board of
Directors of Triton Cayman.
6.2 EFFECT OF TERMINATION
In the event of termination of this Agreement as provided in Section 6.1,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Triton Delaware, Sub or Triton Cayman,
other than the provisions of this Section 6.2 and Article VII.
6.3 AMENDMENT
This Agreement may be amended by the parties at any time before or after any
required approval of matters presented in connection with the Merger by the
stockholders of Triton Delaware provided, however, that after any such approval,
there shall be made no amendment that by law requires further approval by such
stockholders without the further approval of such stockholders. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties.
6.4 WAIVER
At any time prior to the Effective Time of the Merger, the parties may waive
compliance by the other parties with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party to any such
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party of this Agreement to assert any
of its rights under this Agreement or otherwise shall not constitute a waiver of
such rights.
6.5 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER
A termination of this Agreement pursuant to Section 6.1, an amendment of
this Agreement pursuant to Section 6.3 or a waiver pursuant to Section 6.4
shall, in order to be effective, require in the case of Triton Delaware, Sub or
Triton Cayman, action by its Board of Directors or the duly authorized designee
of its Board of Directors.
ARTICLE VII
GENERAL PROVISIONS
7.1 NOTICES
All notices, requests, claims, demands and other communications under this
Agreement shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to Triton Delaware,
Triton Energy Corporation
6688 North Central Expressway, Suite 1400
Dallas, Texas 75206-9926
(b) if to Triton Cayman, to
Triton Energy Limited
Caledonian House
Mary Street
Post Office Box 1043, George Town
Grand Cayman, Cayman Islands
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(c) if to Sub, to
c/o Triton Energy Corporation
6688 North Central Expressway, Suite 1400
Dallas, Texas 75206-9926
7.2 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES
This Agreement (including the documents and instruments referred to herein)
(a) constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and (b) except for the provisions of Article
III, are not intended to confer upon any person other than the parties any
rights or remedies.
7.3 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
IN WITNESS WHEREOF, Triton Delaware, Sub and Triton Cayman have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
TRITON ENERGY CORPORATION
By: /s/_ROBERT B. HOLLAND, III________
Name: Robert B. Holland, III
Title: Senior Vice President, General
Counsel and Secretary
TEL MERGER CORP.
By: /s/_ROBERT B. HOLLAND, III________
Name: Robert B. Holand, III
Title: Vice President
TRITON ENERGY LIMITED
By: /s/_ROBERT B. HOLLAND, III________
Name: Robert B. Holland, III
Title: Senior Vice President
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EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
TRITON ENERGY CORPORATION
ARTICLE I.
The name of the corporation is Triton Energy Corporation.
ARTICLE II.
The period of its duration is perpetual.
ARTICLE III.
The purposes of the corporation are to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV.
The aggregate number of shares which this corporation shall have authority
to issue is Two Hundred Five Million (205,000,000) shares consisting of Two
Hundred Million (200,000,000) shares of Common Stock of the par value of $0.01
per share and Five Million (5,000,000) shares of Preferred Stock of the par
value of $0.01 per share.
The Preferred Stock may be divided into and issued into series. If the
shares of any such class are to be issued in series, then each series shall be
so designated as to distinguish the shares thereof from the shares of any such
class and variations and the relative rights and preferences as between
different series can be fixed and determined by the Board of Directors. The
authority of the Board of Directors with respect to each series shall include,
without limitation thereto, the determination of any or all of the following and
the shares of each series may vary from the shares of any other series in the
following respects:
The Board of Directors of this corporation is hereby authorized to issue the
Preferred Stock at any time and from time to time, in one (1) or more series and
for such consideration as may be fixed from time to time by the Board of
Directors, but not less than the par value thereof. The number of shares to
comprise each such series, which number may be increased (but not above the
total number of authorized shares of the class except where otherwise provided
by the Board of Directors in creating such series) or decreased (but not below
the number of shares thereof then outstanding), shall be determined from time to
time by the Board of Directors. The Board of Directors is hereby expressly
authorized, before issuance of any shares of a particular series, to determine
any and all rights, preferences and limitations pertaining to such series
including but not limited to:
(1)Voting rights, if any, including without limitation, the authority to
confer multiple votes per share, voting rights as to specified matters or
issues such as mergers, consolidations or sales of assets, or voting
rights to be exercised either together with holders of common stock as a
single class, or independently as a separate class;
(2)Rights, if any, permitting the conversion or exchange of any such shares,
at the option of the holder into any other class or series of shares of
this corporation and the price or prices or the rates of exchange and any
adjustment thereto at which such shares will be convertible or
exchangeable;
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(3)The rate (or method of determining the rate) of dividends, if any,
payable on shares of such series, the conditions and the dates upon which
such dividends shall be payable and whether such dividends shall be
cumulative or non-cumulative;
(4)The amount payable on shares of such series in the event of any
liquidation, dissolution or winding up of the affairs of this
corporation;
(5)Redemption, repurchase, retirement and sinking fund rights, preferences
and limitations, if any, the amount payable on shares of such series in
the event of such redemption, repurchase or retirement, the terms and
conditions of any sinking fund, the manner of creating such fund or funds
and whether any of the foregoing shall be cumulative or non-cumulative;
and
(6)Any other preference and relative, participating, optional or other
special rights and qualifications, limitations or restrictions of shares
of such series not fixed and determined herein, to the extent permitted
to do so by law.
All shares of Preferred Stock shall be of equal rank and shall be identical,
except with respect to the particulars that may be fixed by the Board of
Directors as above provided and as to the date from which dividends thereon, if
any, shall be cumulative if made cumulative by the Board of Directors.
No stockholder of the corporation will, solely by reason of holding shares
of any class, have any preemptive or preferential right to purchase or subscribe
for any shares of the corporation, now or hereafter to be authorized, or any
notes, debentures, bonds or other securities convertible into or carrying
warrants, rights or options to purchase shares of any class, now or hereafter to
be authorized, whether or not the issuance of any such shares or such notes,
debentures, bonds or other securities would adversely affect the dividend,
voting or any other rights of such stockholder. The Board of Directors may
authorize the issuance of, and the corporation may issue, shares of any class of
the corporation, or any notes, debentures, bonds or other securities convertible
into or carrying warrants, rights or options to purchase any such shares,
without offering any shares of any class to the existing holders of any class of
stock of the corporation. Any such securities or additional shares of stock may
be issued or disposed of by the Board of Directors to such persons and on such
terms as in its discretion may be deemed advisable.
At each election for directors every stockholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected and
for whose election he has a right to vote. Cumulative voting, for the election
of directors or otherwise, is expressly prohibited. Election of directors need
not be by ballot. On all matters coming before the stockholders, other than the
election of directors, each share of issued and outstanding Common Stock shall
be entitled to one (1) vote.
ARTICLE V.
The post office address of the corporation's registered office is c/o
Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801, and the name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE VI.
Subject to the rights of any series of Preferred Stock designated pursuant
to Article IV, the number of directors will be determined in accordance with the
Bylaws of the corporation.
ARTICLE VII.
To the fullest extent permitted by the laws of the State of Delaware as the
same exist or may hereafter be amended, a director of the corporation will not
be liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. Any repeal or modification of this Article will
not increase the personal liability of any director of the corporation for any
act
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or occurrence taking place before such repeal or modification, or adversely
affect any right or protection of a director of the corporation existing at the
time of such repeal or modification. The provisions of this Article shall not be
deemed to limit or preclude indemnification of a director by the corporation for
any liability of a director that has not been eliminated by the provisions of
this Article.
ARTICLE VIII.
The corporation will, to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended, indemnify and advance expenses to any and all persons it has power to
indemnify and advance expenses to under such law from and against any and all of
the expenses, liabilities or other matters referred to in or covered by such
law. Such indemnification and advancement of expenses may be provided pursuant
to any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his director or officer capacity and as to
action in another capacity while holding such office, will continue as to a
person who has ceased to be a director, officer, employee or agent, and will
inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE IX.
The corporation expressly elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
ARTICLE X.
The Board of Directors is expressly authorized to alter, amend or repeal the
Bylaws of the corporation or to adopt new Bylaws.
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of February 8, 1996 among
TRITON ENERGY CORPORATION, a Delaware corporation ("Triton Delaware"), TRITON
ENERGY LIMITED, a Cayman Islands company and a wholly-owned subsidiary of Triton
Delaware ("Triton Cayman"), and TEL MERGER CORP., a Delaware corporation and a
newly formed, wholly-owned subsidiary of Triton Cayman ("Sub").
WHEREAS, the respective Boards of Directors of Triton Delaware,
Triton Cayman and Sub have determined that it is in the best interests of their
respective stockholders to reorganize (the "Reorganization") so that Triton
Cayman becomes the parent holding company for Triton Delaware;
WHEREAS, the respective Boards of Directors of Triton Delaware, Sub
and Triton Cayman have approved the merger of Sub with and into Triton Delaware
(the "Merger"), upon the terms and subject to the conditions set forth in this
Agreement, whereby each outstanding share of common stock, par value $1.00 per
share ("Triton Delaware Common Stock"), of Triton Delaware (other than those
shares held by Triton Delaware in its treasury and those outstanding shares of
Triton Delaware Common Stock ("Electing Shares") with respect to which an Equity
Unit Election (as hereinafter defined) has been properly made and not withdrawn,
subject to the Equity Unit Limitation (as hereinafter defined)), will be
automatically converted into one class A ordinary share, par value $.01 per
share (the "Class A Share"), of Triton Cayman;
WHEREAS, the Board of Directors of Triton Delaware has determined
that holders of an aggregate of not less than 15% but not more than 25% (the
"Equity Unit Limitation") of the outstanding shares of Triton Delaware Common
Stock in the aggregate, may make an unconditional election (the "Equity Unit
Election") to receive an equity unit ("Equity Unit") consisting of (i) one Class
B ordinary share, par value $.01 per share (the "Class B Share" and, together
with the Class A Shares, the "Ordinary Shares"), and (ii) 1/10th of one share of
Triton Delaware's Participating Preferred Stock, par value $.01 per share
("Triton Delaware Preferred Stock"), which securities will be paired and after
such pairing may only be traded together as a unit and will not be separately
transferable, for each share of Triton Delaware Common Stock owned of record by
such stockholder in lieu of such shares being automatically converted into Class
A Shares;
WHEREAS, the Merger requires the approval of the holders of a
majority of the outstanding shares of the Triton Delaware Common Stock entitled
to vote thereon at the meeting of holders of Triton Delaware Common Stock to be
called therefor (the "Triton Delaware Stockholder Approval");
NOW, THEREFORE, the parties agree as follows:
<PAGE>
2
ARTICLE I
MERGER
1.1 MERGER
Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the General Corporation Law of the State of
Delaware (the "DGCL"), Sub shall be merged with and into Triton Delaware at the
Effective Time of the Merger (as defined in Section 1.2). Following the
Effective Time of the Merger, the separate corporate existence of Sub shall
cease and Triton Delaware shall continue as the surviving corporation (the
"Surviving Corporation") and shall succeed to and assume all the rights and
obligations of Sub in accordance with the DGCL.
1.2 EFFECTIVE TIME
Subject to the provisions of this Agreement, as soon as practicable
following the satisfaction or waiver of the conditions set forth in Section 5.1,
the parties shall file a certificate of merger or other appropriate documents
(in any case, the "Certificate of Merger") executed in accordance with the
relevant provisions of the DGCL and shall make all other filings or recordings
required under the DGCL. The Merger shall become effective at the close of
business on the date that an appropriate Certificate of Merger is duly filed
with the Secretary of State of the State of Delaware, or at such later time as
Sub and Triton Delaware shall agree should be specified in the Certificate of
Merger (the time the Merger becomes effective being hereinafter referred to as
the "Effective Time of the Merger").
1.3 EFFECTS OF THE MERGER
The Merger shall have the effects set forth in Section 259 of the
DGCL.
ARTICLE II
NAME, CERTIFICATE OF INCORPORATION,
BY-LAWS, DIRECTORS AND OFFICERS OF
THE SURVIVING CORPORATION
2.1 NAME OF SURVIVING CORPORATION
The name of the surviving corporation shall be "Triton Energy
Corporation".
<PAGE>
3
2.2 CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of Triton Delaware shall be the
Certificate of Incorporation of the Surviving Corporation after the Effective
Time of the Merger until amended thereafter as provided therein or by law except
that the certificate of incorporation of Triton Delaware shall be amended in its
entirety by virtue of the Merger to read in full as set forth in Exhibit A
hereto.
2.3 BY-LAWS
The by-laws of Triton Delaware as in effect at the Effective Time of
the Merger shall be the by-laws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
2.4 DIRECTORS
The directors of Triton Delaware at the Effective Time of the Merger
shall be the directors of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
2.5 OFFICERS
The officers of Triton Delaware at the Effective Time of the Merger
shall be the officers of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
ARTICLE III
CONVERSION, ELECTION AND EXCHANGE OF STOCK
3.1 CONVERSION
At the Effective Time of the Merger, by virtue of the Merger and
without any action on the part of the holder of any shares:
(a) COMMON STOCK OF SUB. The issued and outstanding shares of
common stock of Sub shall be converted into and become such number of
fully paid and nonassessable shares of Triton Delaware Common Stock, par
value $.01 per share, equal to the number of shares of Triton Delaware
Common Stock outstanding immediately prior to the Effective Time of the
Merger.
(b) CANCELLATION OF TRITON DELAWARE-OWNED STOCK. Each
outstanding Class A Share and each share of Triton Delaware
<PAGE>
4
Common Stock that is owned by Triton Delaware prior to the Effective Time
of the Merger shall automatically be cancelled and retired and shall cease
to exist, and no Ordinary Shares or other consideration shall be delivered
or deliverable in exchange for such Class A Shares or shares of Triton
Delaware Common Stock.
(c) CONVERSION OF TRITON DELAWARE COMMON STOCK. (i) Each issued
and outstanding share of Triton Delaware Common Stock (other than shares
to be cancelled in accordance with Section 3.1(b) and other than Electing
Shares which shall be converted as described in (ii) below) shall be
automatically converted into and shall become one validly issued, fully
paid and non-assessable Class A Share and (ii) each share of Triton
Delaware Common Stock with respect to which an Equity Unit Election has
been effectively made and not revoked or lost, pursuant to Section 3.2(c),
(d) and (e), subject to the limitation contained in Section 3.2(f), shall
be automatically converted into a one Depositary Share (which will be
evidenced by a receipt) consisting of one Class B Share and 1/10th of one
share of Triton Delaware Preferred Stock which will trade together as an
Equity Unit and not be separately transferable.
(d) CONVERSION OF CONVERTIBLE PREFERRED STOCK. At the Effective
Time of the Merger, each outstanding share of 5% convertible preferred
stock, no par value ("Triton Delaware Convertible Preferred Stock"), of
Triton Delaware (other than Dissenting Shares (as defined below)) shall be
automatically converted into and shall become one 5% convertible
preference share, par value $.01 per share ("Convertible Preference
Shares"), of Triton Cayman. Notwithstanding anything in this Agreement to
the contrary, shares of Triton Delaware Convertible Preferred Stock issued
and outstanding immediately prior to the Effective Time of the Merger held
by a holder who demands an appraisal of such shares in accordance with
Section 262 of the DGCL (or any successor provision) ("Dissenting Shares")
shall not be converted into Convertible Preference Shares unless such
holder fails to perfect or otherwise loses such holder's right to such an
appraisal. If, after the Effective Time of the Merger, such holder fails
to perfect or loses any such right to an appraisal, each such share of
such holder shall be treated as a share that had been converted as of the
Effective Time of the Merger into one Convertible Preference Share in
accordance with the first sentence of this subsection.
(e) STOCK OPTION PLANS. Triton Cayman shall assume all the
rights and obligations of Triton Delaware under the 1981 Employee
Non-Qualified Stock Option Plan, 1985 Stock Option Plan, Amended and
Restated 1986 Convertible Debenture Plan, 1988 Stock Appreciation Rights
Plan, 1989 Stock Option Plan, Amended and Restated 1992 Stock Option Plan
and
<PAGE>
5
Amended and Restated Restricted Stock Plan, as each such plan has been or
may be amended to the Effective Time of the Merger (collectively, the
"Plans"). The outstanding options or debentures assumed by Triton Cayman
shall be exercisable or convertible upon the same terms and conditions as
under the Plans and the agreements relating thereto immediately prior to
the Effective Time of the Merger, except that upon the exercise of such
options or the conversion of such debentures, Class A Shares shall be
issuable in lieu of shares of Triton Delaware Common Stock. The number of
Class A Shares issuable upon the exercise of an option or the conversion
of a debenture immediately prior to the Effective Time of the Merger and
the option price of each such option and the conversion price of each such
debenture shall be the option price and the conversion price in effect
immediately prior to the Effective Time of the Merger. All options or
debentures issued pursuant to the Plans after the Effective Time of the
Merger shall entitle the holder thereof to purchase, or convert into,
Class A Shares in accordance with the terms of the Plans.
3.2 EQUITY UNIT ELECTION
(a) Each person who, on or prior to the Election Date referred to
in subsection (c) below, is a record holder of shares of Triton Delaware
Common Stock shall be entitled to make an Equity Unit Election with
respect to any or all of such person's shares (such shares thereby
becoming Electing Shares, subject to the provisions of this Section 3.2)
on or prior to such Election Date to receive a Receipt representing an
Equity Unit consisting of one Class B Share and 1/10th of one share of
Triton Delaware Preferred Stock for each Electing Share in lieu of such
shares being automatically converted into Class A Shares. The Class B
Share and 1/10th of one share of Triton Delaware Preferred Stock contained
in an Equity Unit may only be traded together as an Equity Unit and will
not be separately transferable.
(b) Prior to the mailing to the record holders of Triton Delaware
Common Stock as of the record date for the special meeting of stockholders
of Triton Delaware (the "Stockholders Meeting") of the Proxy
Statement/Joint Prospectus relating to the Stockholders Meeting (the
"Proxy Statement"), Triton Delaware shall appoint a bank or trust company
to act as exchange agent (the "Exchange Agent") for the Equity Units.
(c) Triton Delaware shall prepare and mail a form of election (the
"Form of Election") with the Proxy Statement to the record holders of
Triton Delaware Common Stock as of the record date for the Stockholders
Meeting, which Form of Election shall be used by each record holder of
shares of Triton Delaware Common Stock who wishes to make an Equity
<PAGE>
6
Unit Election. Triton Delaware will use reasonable efforts to make the
Form of Election and the Proxy Statement available to all persons who
become holders of Triton Delaware Common Stock during the period between
such record date and the Election Date referred to below. Any such
holder's election to receive Equity Units shall have been properly made
only if the Exchange Agent shall have received at its designated office,
by 5:00 p.m., New York City time, on the third business day (the "Election
Date") next preceding the date of the Stockholders Meeting, a Form of
Election properly completed and signed and accompanied by the stock
certificates representing such Electing Shares to which such Form of
Election relates, duly endorsed in blank or otherwise in a form acceptable
for transfer on the books of Triton Delaware (or by an appropriate
guarantee of delivery of such certificates as set forth in such Form of
Election from a firm which is a member of a registered national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or correspondent in the
United States, provided such certificates are in fact delivered to the
Exchange Agent within five New York Stock Exchange trading days after the
date of execution of such guarantee of delivery).
(d) Any Form of Election may be revoked by the stockholder
submitting it to the Exchange Agent only by written notice received by the
Exchange Agent (i) prior to 5:00 p.m., New York City time, on the Election
Date or (ii) after the date of the Proxy Statement, if (and to the extent
that) the Exchange Agent is legally required to permit revocations and the
Effective Time of the Merger shall not have occurred prior to such date.
In addition, all Forms of Election shall automatically be revoked if the
Exchange Agent is notified in writing by Triton Delaware that the Merger
has been abandoned. If a Form of Election is revoked, the certificate or
certificates (or guarantees of delivery, as appropriate) representing the
Electing Shares to which such Form of Election relates shall be promptly
returned to the stockholder submitting the same to the Exchange Agent.
(e) The determination of the Exchange Agent as to whether or not
the Equity Unit Election has been properly made or revoked pursuant to
this Section 3.2 with respect to Electing Shares and when elections and
revocations were received by it shall be binding. If the Exchange Agent
determines that any Equity Unit Election was not properly made with
respect to shares of Triton Delaware Common Stock, such shares shall be
treated by the Exchange Agent as shares which were not Electing Shares at
the Effective Time of the Merger, and such shares will be automatically
converted into Class A Shares pursuant to subsection (g) below. The
Exchange Agent shall also make all computations as to the
<PAGE>
7
allocation and the proration contemplated by Section 3.2(f), and any such
computation shall be conclusive and binding on the holders of Electing
Shares. The Exchange Agent may, with the agreement of Triton Delaware,
make such rules as are consistent with this Section 3.2 for the
implementation of the elections provided for herein as shall be necessary
or desirable fully to effect such elections.
(f) (i) The maximum number (the "Maximum Election Number") of
shares of Triton Delaware Common Stock with respect to which Equity Unit
Elections can be made shall be 25% of the number of shares of Triton
Delaware Common Stock outstanding immediately prior to the Effective Time
of the Merger and the minimum number (the "Minimum Election Number") of
shares of Triton Delaware Common Stock with respect to which Equity Unit
Elections can be made shall be 15% of the number of shares of Triton
Delaware Common Stock outstanding immediately prior to the Effective Time
of the Merger (such limitations, the "Equity Unit Limitation").
(ii) If the number of Electing Shares exceeds the Maximum Election
Number, then such Electing Shares shall be automatically converted into
Equity Units and Class A Shares in accordance with the terms of subsection
(g) below in the following manner:
(I) A proration factor (the "Proration Factor") shall be determined
by dividing the Maximum Election Number by the total number of
Electing Shares.
(II) The number of Electing Shares covered by each Equity Unit
Election to be converted into Equity Units shall be determined by
multiplying the Proration Factor by the total number of Electing
Shares covered by such Equity Unit Election.
(III) All Electing Shares, other than those shares converted into
Equity Units in accordance with Section (f)(ii)(ii), shall be
converted into Class A Shares as if such shares were not Electing
Shares in accordance with the terms of subsection (g) below.
(iii) If the number of Electing Shares is less than the Minimum
Election Number, no Class B Shares or Triton Delaware Preferred Stock will
be issued and all Electing Shares shall be converted into Class A Shares
as if such shares were not Electing Shares in accordance with the terms of
subsection (g) below.
(iv) If the number of Electing Shares is less than or equal to the
Maximum Election Number and greater than or equal to the Minimum Election
Number, then all Electing Shares shall be converted into Equity Units in
accordance with the terms of Section 3.1(c)(ii), and all shares of
<PAGE>
8
Triton Delaware Common Stock other than Electing Shares shall be converted
into Class A Shares in accordance with the terms of Section 3.1(c)(i).
(g) If (i) the number of Electing Shares is less than the Minimum
Election Number, (ii) the Exchange Agent determines that any Equity Unit
Election was not properly made with respect to shares of Triton Delaware
Common Stock or (iii) the Electing Shares are prorated and only a portion
of the Electing Shares are converted into Equity Units, each such Electing
Share that is not automatically converted into Equity Units shall be
treated by the Exchange Agent as a share which was not an Electing Share
at the Effective Time of the Merger and shall be converted into one Class
A Share.
(h) A portion of each stockholder's Triton Delaware Common Stock
exchanged for Equity Units in the Reorganization will be transferred to
Triton Delaware as consideration for the issuance of the Triton Delaware
Preferred Stock and the remaining portion of such Triton Delaware Common
Stock so exchanged will be transferred to Triton Cayman as consideration
for the issuance by Triton Cayman of the Class B Shares. Allocation of
the value of the exchanged Triton Delaware Common Stock between the Triton
Delaware Preferred Stock and Class B Shares issued in exchange for such
Triton Delaware Common Stock shall be determined based on the respective
fair market values of the Triton Delaware Preferred Stock and the Class B
Shares at the date of the Reorganization.
<PAGE>
9
3.3 EXCHANGE OF STOCK
(a) Exchange Procedures. Following the Effective Time of the
Merger, each holder of an outstanding certificate or certificates
theretofore representing shares of Triton Delaware Common Stock (other
than those stockholders who elect to receive Equity Units in the Merger)
may, but shall not be required to, surrender the same to Triton Cayman for
cancellation or transfer, and each such holder or transferee will be
entitled to receive certificates representing the same number of Class A
Shares as the shares of Triton Delaware Common Stock previously
represented by the stock certificates surrendered. Following the
Effective Time of the Merger, receipts evidencing depositary shares
representing the Equity Units will be issued to holders of Electing
Shares, subject to Section 3.2, and certificates representing Class A
Shares will be issued to holders of Electing Shares to the extent that
such Electing Shares are not converted into Equity Units as provided in
Section 3.2. If any certificate representing Class A Shares is to be
issued in a name other than that in which the certificate theretofore
representing Triton Delaware Common Stock surrendered is registered, it
shall be a condition to such issuance that the certificate surrendered
shall be properly endorsed and otherwise in proper form for transfer and
that the person requesting such issuance shall either: (i) pay Triton
Cayman or its agents any taxes or other governmental charges required by
reason of the issuance of certificates representing Class A Shares in a
name other than that of the registered holder of the certificate so
surrendered; or (ii) establish to the satisfaction of Triton Cayman or its
agents that such taxes or governmental charges have been paid. Until so
surrendered or presented for transfer each outstanding certificate which,
prior to the Effective Time of the Merger, represented Triton Delaware
Common Stock shall be deemed and treated for all corporate purposes to
represent the ownership of the same number of Class A Shares as though
such surrender or transfer and exchange had taken place.
(b) No Further Ownership Rights in Triton Delaware Common Stock.
All Class A Shares or Equity Units issued upon the surrender for exchange
of certificates in accordance with the terms of this Article III shall be
deemed to have been issued (and paid) in full satisfaction of all rights
pertaining to the shares of Triton Delaware Common Stock theretofore
represented by such certificates, subject, however, to the Surviving
Corporation's obligation to pay any dividends or make any other
distributions with a record date prior to the Effective Time of the Merger
which may have been declared or made by Triton Delaware on such shares of
Triton Delaware Common Stock in accordance with the terms of this
Agreement or prior to the date of this Agreement and which remain unpaid
at the Effective Time of
<PAGE>
10
the Merger, and there shall be no further registration of transfers on the
stock transfer books of the Surviving Corporation of the shares of Triton
Delaware Common Stock which were outstanding immediately prior to the
Effective Time of the Merger. If, after the Effective Time of the Merger,
certificates are presented to the Surviving Corporation they shall be
cancelled and exchanged as provided in this Article III, except as
otherwise provided by law.
ARTICLE IV
EMPLOYEE BENEFIT AND COMPENSATION PLANS
At the Effective Time of the Merger, each employee benefit plan and
incentive compensation plan to which Triton Delaware is then a party shall be
assumed by, and continue to be the plan of, the Surviving Corporation. To the
extent any employee benefit or incentive compensation plan of Triton Delaware
provides for the issuance or purchase of, or otherwise relates to, Triton
Delaware Common Stock, after the Effective Time of the Merger, such plan shall
be deemed to provide for the issuance or purchase of, or otherwise relate to,
Class A Shares.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER
The respective obligation of each party to effect the Merger is
subject to the satisfaction or waiver of the following conditions:
(a) Stockholder Approval. The Triton Delaware Stockholder
Approval shall have been obtained.
(b) Form S-4. The registration statement on Form S-4 filed with
the Securities and Exchange Commission by Triton Delaware and Triton
Cayman in connection with the issuance of the Class A Shares, Equity Units
consisting of the Class B Shares and the Triton Delaware Preferred Stock
in the Merger shall have become effective under the Securities Act of
1933, as amended, and shall not be the subject of any stop order or
proceedings seeking a stop order.
<PAGE>
11
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
6.1 TERMINATION
This Agreement may be terminated at any time prior to the Effective
Time of the Merger, whether before or after approval by the stockholders of
Triton of matters presented in connection with the Merger, by action of the
Board of Directors of Triton Cayman.
6.2 EFFECT OF TERMINATION
In the event of termination of this Agreement as provided in Section
6.1, this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Triton Delaware, Sub or Triton Cayman,
other than the provisions of this Section 6.2 and Article VII.
6.3 AMENDMENT
This Agreement may be amended by the parties at any time before or
after any required approval of matters presented in connection with the Merger
by the stockholders of Triton Delaware provided, however, that after any such
approval, there shall be made no amendment that by law requires further approval
by such stockholders without the further approval of such stockholders. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties.
6.4 WAIVER
At any time prior to the Effective Time of the Merger, the parties
may waive compliance by the other parties with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party of this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
6.5 PROCEDURE FOR TERMINATION, AMENDMENT,
EXTENSION OR WAIVER
A termination of this Agreement pursuant to Section 6.1, an
amendment of this Agreement pursuant to Section 6.3 or a waiver pursuant to
Section 6.4 shall, in order to be effective, require in the case of Triton
Delaware, Sub or Triton Cayman, action by its Board of Directors or the duly
authorized designee of its Board of Directors.
<PAGE>
12
ARTICLE VII
GENERAL PROVISIONS
7.1 NOTICES
All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Triton Delaware,
Triton Energy Corporation
6688 North Central Expressway, Suite 1400
Dallas, Texas 75206-9926
(b) if to Triton Cayman, to
Triton Energy Limited
Caledonian House
Mary Street
Post Office Box 1043, George Town
Grand Cayman, Cayman Islands
(c) if to Sub, to
c/o Triton Energy Corporation
6688 North Central Expressway, Suite 1400
Dallas, Texas 75206-9926
7.2 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES
This Agreement (including the documents and instruments referred to
herein) (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement and (b) except for the
provisions of Article III, are not intended to confer upon any person other than
the parties any rights or remedies.
7.3 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
<PAGE>
13
IN WITNESS WHEREOF, Triton Delaware, Sub and Triton Cayman have
caused this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
TRITON ENERGY CORPORATION
By:
-------------------------
Name:
Title:
TEL MERGER CORP.
By:
-------------------------
Name:
Title:
TRITON ENERGY LIMITED
By:
-------------------------
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRITON ENERGY CORPORATION
Triton Energy Corporation, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Triton Energy Corporation. The date
of filing of its original Certificate of Incorporation with the Secretary of
State was May 2, 1995.
2. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby to read as herein
set forth in full:
ARTICLE I.
The name of the corporation is Triton Energy Corporation.
ARTICLE II.
The period of its duration is perpetual.
ARTICLE III.
The purposes of the corporation are to engage in any lawful act or
activity for which corporations may be organized under the General Corporate Law
of the State of Delaware.
ARTICLE IV.
The aggregate number of shares which this corporation shall have
authority to issue is Two Hundred Five Million (205,000,000) shares consisting
of Two Hundred Million (200,000,000) shares of Common Stock of the par value of
$0.01 per share and Five Million (5,000,000) shares of Preferred Stock of the
par value of $0.01 per share.
The Preferred Stock may be divided into and issued into series. If
the shares of any such class are to be issued in series, then each series shall
be so designated as to distinguish the shares thereof from the shares of any
such class and variations and the relative rights and preferences as between
different series can be fixed and determined by the Board of Directors. The
authority of the Board of Directors with respect to each series shall include,
without limitation thereto, the
<PAGE>
2
determination of any or all of the following and the shares of each series may
vary from the shares of any other series in the following respects:
The Board of Directors of this corporation is hereby authorized to
issue the Preferred Stock at any time and from time to time, in one (1) or more
series and for such consideration as may be fixed from time to time by the Board
of Directors, but not less than the par value thereof. The number of shares to
comprise each such series, which number may be increased (but not above the
total number of authorized shares of the class except where otherwise provided
by the Board of Directors in creating such series) or decreased (but not below
the number of shares thereof then outstanding), shall be determined from time to
time by the Board of Directors. The Board of Directors is hereby expressly
authorized, before issuance of any shares of a particular series, to determine
any and all rights, preferences and limitations pertaining to such series
including but not limited to:
(1) Voting rights, if any, including without limitation, the
authority to confer multiple votes per share, voting rights as to
specified matters or issues such as mergers, consolidations or sales of
assets, or voting rights to be exercised either together with holders of
common stock as a single class, or independently as a separate class;
(2) Rights, if any, permitting the conversion or exchange of any
such shares, at the option of the holder into any other class or series of
shares of this corporation and the price or prices or the rates of
exchange and any adjustment thereto at which such shares will be
convertible or exchangeable;
(3) The rate (or method of determining the rate) of dividends, if
any, payable on shares of such series, the conditions and the dates upon
which such dividends shall be payable and whether such dividends shall be
cumulative or non-cumulative;
(4) The amount payable on shares of such series in the event of
any liquidation, dissolution or winding up of the affairs of this
corporation;
(5) Redemption, repurchase, retirement and sinking fund rights,
preferences and limitations, if any, the amount payable on shares of such
series in the event of such redemption, repurchase or retirement, the
terms and conditions of any sinking fund, the manner of creating such fund
or funds and whether any of the foregoing shall be cumulative or
non-cumulative; and
<PAGE>
3
(6) Any other preference and relative, participating, optional or
other special rights and qualifications, limitations or restrictions of
shares of such series not fixed and determined herein, to the extent
permitted to do so by law.
All shares of Preferred Stock shall be of equal rank and shall be
identical, except with respect to the particulars that may be fixed by the Board
of Directors as above provided and as to the date from which dividends thereon,
if any, shall be cumulative if made cumulative by the Board of Directors.
No stockholder of the corporation will, solely by reason of holding
shares of any class, have any preemptive or preferential right to purchase or
subscribe for any shares of the corporation, now or hereafter to be authorized,
or any notes, debentures, bonds or other securities convertible into or carrying
warrants, rights or options to purchase shares of any class, now or hereafter to
be authorized, whether or not the issuance of any such shares or such notes,
debentures, bonds or other securities would adversely affect the dividend,
voting or any other rights of such stockholder. The Board of Directors may
authorize the issuance of, and the corporation may issue, shares of any class of
the corporation, or any notes, debentures, bonds or other securities convertible
into or carrying warrants, rights or options to purchase any such shares,
without offering any shares of any class to the existing holders of any class of
stock of the corporation. Any such securities or additional shares of stock may
be issued or disposed of by the Board of Directors to such persons and on such
terms as in its discretion may be deemed advisable.
At each election for directors every stockholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected and
for whose election he has a right to vote. Cumulative voting, for the election
of directors or otherwise, is expressly prohibited. Election of directors need
not be by ballot. On all matters coming before the stockholders, other than the
election of directors, each share of issued and outstanding Common Stock shall
be entitled to one (1) vote.
ARTICLE V.
The post office address of the corporation's initial registered
office is c/o Corporation Trust Company, 1209 Orange Street, Wilmington, County
of New Castle, Delaware 19801, and the name of its initial registered agent at
such address is The Corporation Trust Company.
<PAGE>
4
ARTICLE VI.
Subject to the rights of any series of Preferred Stock designated
pursuant to Article IV, the number of directors will be determined in accordance
with the Bylaws of the corporation.
ARTICLE VII.
To the fullest extent permitted by the laws of the State of Delaware
as the same exist or may hereafter be amended, a director of the corporation
will not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. Any repeal or modification of this
Article will not increase the personal liability of any director of the
corporation for any act or occurrence taking place before such repeal or
modification, or adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification. The provisions
of this Article shall not be deemed to limit or preclude indemnification of a
director by the corporation for any liability of a director that has not been
eliminated by the provisions of this Article.
ARTICLE VIII.
The corporation will, to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended, indemnify and advance expenses to any and all persons it has power to
indemnify and advance expenses to under such law from and against any and all of
the expenses, liabilities or other matters referred to in or covered by such
law. Such indemnification and advancement of expenses may be provided pursuant
to any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his director or officer capacity and as to
action in another capacity while holding such office, will continue as to a
person who has ceased to be a director, officer, employee or agent, and will
inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE IX.
The corporation expressly elects not to be governed by Section 203
of the General Corporation Law of the State of Delaware.
ARTICLE X.
The Board of Directors is expressly authorized to alter, amend or
repeal the Bylaws of the corporation or to adopt new Bylaws.
<PAGE>
5
4. This Amended and Restated Certificate of Incorporation was duly adopted by
vote of the stockholders in accordance with Section 242 and 245 of the General
Corporation Law of the State of Delaware.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROXY STATEMENT/PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Triton Cayman is a Cayman Islands company. Article XXXIV of Triton Cayman's
Articles of Association, filed as Exhibit 3.1 to this Registration Statement,
contains provisions with respect to indemnification of Triton Cayman's officers
and directors. Such provisions provide that Triton Cayman shall indemnify, in
accordance with and to the full extent now or hereafter permitted by law, any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, an
action by or in the right of Triton Cayman), by reason of his acting as a
director, officer, employee or agent of, or his acting in any other capacity for
or on behalf of, Triton Cayman, against any liability or expense actually and
reasonably incurred by such person in respect thereof. Triton Cayman shall also
advance the expenses of defending any such act, suit or proceeding in accordance
with and to the full extent now or hereafter permitted by law. Such
indemnification and advancement of expenses are not exclusive of any other right
to indemnification or advancement of expenses provided by law or otherwise. The
Articles of Association also provide that except under certain circumstances,
directors of Triton Cayman shall not be personally liable to Triton Cayman or
its shareholders for monetary damages for breach of fiduciary duties as a
director.
The Companies Law (1995 Revision) of the Cayman Islands does not set out any
specific restrictions on the ability of a company to indemnify officers or
directors. However, the application of basic principles and certain Commonwealth
case law which is likely to be persuasive in the Cayman Islands, would indicate
that indemnification is generally permissible except in the event that there had
been fraud or wilful default on the part of the officer or director or reckless
disregard of his duties and obligations to Triton Cayman.
Directors and officers of Triton Cayman are also provided with
indemnification against certain liabilities pursuant to a directors and officers
liability insurance policy. Coverage is afforded for any loss that the insureds
become legally obligated to pay by reason of any claim or claims first made
against the insureds or any of them during the policy period from any wrongful
acts that are actually or allegedly caused, committed or attempted by the
insureds prior to the end of the policy period. Wrongful acts are defined as any
actual or alleged error, misstatement, misleading statement or act, omission,
neglect or breach of duty by the insureds while acting in their individual or
collective capacities as directors or officers of Triton Cayman.
Triton Delaware is a Delaware corporation. Reference is made to Section
102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Reference also is made to Section 145 of the DGCL, which provides that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer, director,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee or agent acted in good
faith
II-1
<PAGE>
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, for criminal proceedings, had no reasonable
cause to believe that his conduct was unlawful. A Delaware corporation may
indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
The Certificate of Incorporation of Triton Delaware provides that except
under certain circumstances, directors of Triton Delaware shall not be
personally liable to Triton Delaware or its stockholders for monetary damages
for breach of fiduciary duties as a director. Article III of the By-laws of
Triton Delaware provides for indemnification of the officers and directors of
Triton Delaware to the full extent permitted by applicable law.
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
2.1 -- Agreement and Plan of Merger, dated as of February 8, 1996, by and among Triton
Delaware, Triton Cayman and Sub (included as Annex I to the Proxy Statement/
Prospectus).
<C> <C> <S>
3.1 -- Form of Articles of Association of Triton Cayman.
3.2 -- Form of Memorandum of Association of Triton Cayman.
3.3 -- Certificate of Incorporation of Triton Delaware, as amended (incorporated by
reference to Triton Delaware's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995 (the "March 10-Q")
3.4 -- By-Laws of Triton Delaware (incorporated by reference to the March 10-Q).
3.5 -- Form of Certificate of Incorporation of Triton Delaware (included as Exhibit A
to Annex I to the Proxy Statement/Prospectus).
4.1 -- Form of Deposit Agreement among Triton Delaware, Triton Cayman and Chemical
Mellon Shareholder Services, L.L.C. and holders of receipts pursuant thereto.
4.2 -- Form of Certificate of Designation for Triton Delaware Preferred Stock.
4.3 -- Form of Resolutions Authorizing the Convertible Preference Shares.
4.4 -- Form of Rights Agreement, between Triton Cayman and Chemical Bank
4.5 -- Form of Resolutions Authorizing the Junior Preference Shares (included as
Exhibit A to Exhibit 4.4 hereof).
4.6 -- Form of Certificate for the Class A Shares of Triton Cayman.
4.7 -- Form of Certificate for the Class B Shares of Triton Cayman.
4.8 -- Form of Certificate for the Convertible Preference Shares.
4.9 -- Form of Certificate for the Triton Delaware Preferred Stock.
4.10 -- Form of Receipt evidencing the Unit Depositary Shares (included as Exhibit A to
Exhibit 4.1 hereto).
4.11 -- Form of Right Certificate (included as Exhibit B to Exhibit 4.4 hereto).
5.1 -- Opinion of W.S. Walker & Company, as to the validity of the Class A Shares and
the Class B Shares.
5.2 -- Opinion of Simpson Thacher & Bartlett, as to the validity of the Triton Delaware
Preferred Stock and the Unit Depositary Shares.
8.1 -- Opinion of Simpson Thacher & Bartlett as to certain tax matters.
8.2 -- Opinion of Weil, Gotshal & Manges LLP as to certain tax matters.
8.3 -- Opinion of W.S. Walker & Company as to certain tax matters.
12.1 -- Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <C> <S>
15.1 -- Letter of Price Waterhouse LLP acknowledging awareness of the use of their
review reports.
23.1 -- Consent of Price Waterhouse LLP (relating to Triton Delaware and Triton Cayman).
23.2 -- Consent of KPMG Peat Marwick LLP, Dallas, Texas.
23.3 -- Consent of KPMG, Brisbane, Australia.
23.4 -- Consent of W.S. Walker & Company (included in Exhibits 5.1 and 8.3).
23.5 -- Consent of Simpson Thacher & Bartlett (included in Exhibit 5.2).
23.6 -- Consent of Simpson Thacher & Bartlett (included in Exhibit 8.1).
23.7 -- Consent of Weil, Gotshal & Manges LLP (included in Exhibit 8.2).
23.8 -- Consent of DeGolyer and MacNaughton, independent petroleum engineers.
23.9 -- Consent of McDaniel & Associates Consultants Ltd., independent petroleum
engineers.
23.10 -- Consent of J.P. Morgan & Co. Incorporated.
23.11 -- Consent of Lehman Brothers Inc.
24.1 -- Powers of Attorney (included on the signature pages of this Registration
Statement).
99.1 -- Opinion of J.P. Morgan Securities Inc.
99.2 -- Opinion of Lehman Brothers Inc.
99.3 -- Form of Proxy
99.4 -- Equity Unit Election Form.
</TABLE>
ITEM 22. 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(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;
(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
II-3
<PAGE>
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.
There undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through the use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
The registrant undertakes that every prospectus: (i) that is filed pursuant
to the immediately preceding paragraph or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, 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.
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 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 respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-4
<PAGE>
SIGNATURES OF TRITON ENERGY CORPORATION
Pursuant to the requirements of the Securities Act of 1933, as amended,
Triton Energy Corporation 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 February 8, 1996.
TRITON ENERGY CORPORATION
By: /s/ ROBERT B. HOLLAND, III
-----------------------------------
Senior Vice President, General
Counsel
and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas G. Finck, Peter Rugg and Robert B.
Holland, III, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement with respect to Triton Energy Corporation, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, 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 has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ --------------------------------- ----------------------
<C> <S> <C>
/s/ THOMAS G. FINCK President, Chief Executive
------------------------------------------- Officer, Director (Principal February 8, 1996
Thomas G. Finck Executive Officer)
Senior Vice President and Chief
/s/ PETER RUGG Financial Officer (Principal
------------------------------------------- Financial and Accounting February 8, 1996
Peter Rugg Officer)
/s/ HERBERT L. BREWER
------------------------------------------- Director February 8, 1996
Herbert L. Brewer
/s/ ERNEST E. COOK
------------------------------------------- Director February 8, 1996
Ernest E. Cook
/s/ SHELDON R. ERIKSON
------------------------------------------- Director February 8, 1996
Sheldon R. Erikson
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ --------------------------------- ----------------------
<C> <S> <C>
/s/ RAY H. EUBANK
------------------------------------------- Director February 8, 1996
Ray H. Eubank
/s/ JESSE E. HENDRICKS
------------------------------------------- Director February 8, 1996
Jesse E. Hendricks
/s/ FITZGERALD S. HUDSON
------------------------------------------- Director February 8, 1996
Fitzgerald S. Hudson
/s/ JOHN R. HUFF
------------------------------------------- Director February 8, 1996
John R. Huff
/s/ JOHN P. LEWIS
------------------------------------------- Director February 8, 1996
John P. Lewis
/s/ MICHAEL E. MCMAHON
------------------------------------------- Director February 8, 1996
Michael E. McMahon
/s/ WELLSLAKE D. MORSE, JR.
------------------------------------------- Director February 8, 1996
Wellslake D. Morse, Jr.
/s/ EDWIN D. WILLIAMSON
------------------------------------------- Director February 8, 1996
Edwin D. Williamson
/s/ J. OTIS WINTERS
------------------------------------------- Director February 8, 1996
J. Otis Winters
</TABLE>
II-6
<PAGE>
SIGNATURES OF TRITON ENERGY LIMITED
Pursuant to the requirements of the Securities Act of 1933, as amended,
Triton Energy Limited 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 February 8, 1996.
TRITON ENERGY LIMITED
By: /s/ THOMAS G. FINCK
-----------------------------------
Chairman of the Board, Chief
Executive
Officer and President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas G. Finck, Peter Rugg and Robert B.
Holland, III, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement with respect to Triton Energy Limited, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, 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 has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ -------------------------------- -----------------------
<C> <S> <C>
/s/ THOMAS G. FINCK President, Chief Executive
------------------------------------------- Officer and Director (Principal February 8, 1996
Thomas G. Finck Executive Officer)
Senior Vice President, Chief
/s/ PETER RUGG Financial Officer and Director
------------------------------------------- (Principal Financial and February 8, 1996
Peter Rugg Accounting Officer)
/s/ ROBERT B. HOLLAND, III
------------------------------------------- Director February 8, 1996
Robert B. Holland, III
</TABLE>
II-7
<PAGE>
Exhibit 3.1
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
FORM OF
ARTICLES OF ASSOCIATION
OF
TRITON ENERGY LIMITED
(Adopted by Special Resolution of the
Members effective ________, 1996)
I. INTERPRETATION
1.1 The Regulations or Articles contained or incorporated in Table
'A' in the First Schedule to the Statute shall not apply to this Company and the
following Articles shall comprise the Articles of Association of the Company.
Unless there be something in the subject or context inconsistent therewith,
"Articles" means these Articles of Association as originally framed or
as from time to time altered by Special Resolution.
"Board of Directors" means the full board, comprised of Directors
holding office from time to time.
"Class A Ordinary Share" has the meaning ascribed to it in Article
III.
"Class B Ordinary Share" has the meaning ascribed to it in Article
III.
"Class C Ordinary Share" has the meaning ascribed to it in Article
III.
"Closing Price" means, for each day, the last reported sale price of
the Class A Ordinary Share or the Equity Unit, as the case may be, on the
principal national securities exchange on which such security may be listed
or if such security is not then so listed, the closing price of such
security as shown by the National Association of Securities Dealers, Inc.
National Market or, if no such closing price is available, at the average
of the representative last bid and asked prices of such security in the
over-the-counter market, as shown by the National Association of Securities
Dealers, Inc., Automated Quotation System Level I (or comparable system) or
in the absence of any of the foregoing, the fair market value as determined
by an investment banking firm of recognized national standing
<PAGE>
2
chosen by the Board of Directors, whose determination shall be conclusive.
"The Company" means Triton Energy Limited.
"Cumulative Dividend Amount" means the amount, at any given time, by
which the aggregate of all dividends on one-tenth of one share of TEC
Preferred Stock from the date of adoption of the Articles up to and
including the time of determination exceeds the amount (if any) by which
(x) the sum of the products of the amount of each dividend declared on one
Class A Ordinary Share from the date of adoption of the Articles until
immediately prior to the time of determination and the Pairing Ratio in
effect as of the date of its declaration, exceeds (y) the sum of the
products of the amount of each dividend declared on one Class B Ordinary
Share from the date of adoption of the Articles until immediately prior to
the time of determination and the Pairing Ratio in effect as of the date of
its declaration. For the purpose of the determination of Cumulative
Dividend Amount, dividends on the TEC Preferred Stock are deemed to be
declared when so resolved by TEC's Board of Directors and dividends on
Ordinary Shares are deemed to be declared when so resolved by the Company's
Board of Directors.
"Depositary" means Chemical Mellon Shareholder Services, L.L.C., as
depositary for the Equity Units under the Deposit Agreement, dated as of
_______, 1996, with TEC and the Company, or any successor depositary
appointed pursuant to the terms of such agreement.
"Directors" means the directors for the time being of the Company.
"Dividend" includes bonus.
"Equity Unit" means the unit consisting, at the effective date of the
adoption of the Articles, of one-tenth of one share of TEC Preferred Stock
and one Class B Ordinary Share, as the same may be adjusted from time to
time.
"Fair Market Value" means the average of the daily Closing Prices for
the 20 consecutive Trading Days ending 15 days prior to the date of
purchase of the Equity Units provided for in Article VII hereof.
"holder" in relation to any shares means the member whose name is
entered in the Register as the holder of such shares.
"Liquidation Available Amount" has the meaning ascribed to it in
Section 4.2(a).
<PAGE>
3
"Liquidation Preference" means the liquidation preference of the TEC
Preferred Stock as set forth in the Certificate of Designation creating
such series of preferred stock.
"Market Price" means the average of the daily Closing Prices for the
Class A Ordinary Shares for the 5 consecutive Trading Days ending 5 days
prior to the date the Board of Directors announces its intention to declare
a stock dividend.
"Member" shall bear the meaning ascribed to it in Section 37 of the
Statute.
"Memorandum" means the memorandum of association of the Company, as
the same may be amended from time to time.
"Month" means calendar month.
"Ordinary Resolution" has the same meaning as in the Statute.
"Ordinary Shares" means, collectively, the Class A Ordinary Shares,
the Class B Ordinary Shares and the Class C Ordinary Shares.
"Paid-up" means paid-up and/or credited as paid-up.
"Pairing Ratio" means the number of Class B Ordinary Shares included
in an Equity Unit; provided, however, if TEC is liquidated, dissolved or
wound-up, the Pairing Ratio will thereafter be deemed to be the Pairing
Ratio in effect as of the date of commencement of such liquidation,
dissolution or winding up, as the case may be, adjusted at any time
thereafter in the case of a stock split, stock combination or stock
dividend by the Company after such time as if such dissolution, liquidation
or winding up had not occurred; PROVIDED, FURTHER, that in the event that
all of the Equity Units are purchased by the Company or TEC, the Pairing
Ratio will thereafter be deemed to be the Pairing Ratio in effect on the
date of the last such purchase, adjusted at any time thereafter in the case
of a stock split, stock combination or stock dividend by the Company after
such time as if such purchase had not occurred.
"Register" means the Register of Members of the Company as maintained
in accordance with Section 39 of the Statute.
"Registered Office" means the registered office for the time being of
the Company.
"Reorganization" means the transactions whereby the Company has or
will become the parent holding company for
<PAGE>
4
TEC pursuant to the merger of a Delaware subsidiary of the Company with and
into TEC.
"Seal" means the common seal of the Company and includes every
official seal.
"Secretary" means the secretary of the Company and includes an
Assistant Secretary and any person appointed to perform the duties of
Secretary of the Company.
"Shares" means any Ordinary Shares or other Shares issued in the
capital of the Company.
"Special Resolution" has the same meaning as in the Statute.
"Statute" means the Companies Law (1995 Revision) of the Cayman
Islands as amended and every statutory modification or re-enactment thereof
for the time being in force.
"stock dividend" means a distribution of shares in lieu of payment of
a dividend in cash.
"TEC" means Triton Energy Corporation, a Delaware corporation.
"TEC Preferred Stock" means the Participating Preferred Stock, par
value US $.01 per share, of TEC.
"Trading Day" means each day on which the Class A Ordinary Shares or
the Equity Units, as the case may be, are traded on any national securities
exchange or quoted in the Nasdaq National Market or in the over-the-counter
market.
"Written" and "in writing" includes all modes of representing or
reproducing words in visible form.
Words importing the singular number shall also include the plural
number and vice-versa.
Words importing the masculine gender shall also include the feminine
gender.
Words importing persons shall also include corporations, partnerships,
trusts and other entities.
II. CERTIFICATES FOR SHARES
2.1 Certificates representing shares of the Company shall be in such
form and may bear such legends (reflecting or referring to the terms of issue of
the shares thereby represented, or any of these Articles or other relevant
matters)
<PAGE>
5
as shall be determined by the Board of Directors. Such certificates shall be
under seal signed by the Chairman of the Board, the President or any Vice
President of the Company and countersigned by the Secretary or another
authorized person. Where a certificate is signed (1) by a transfer agent or (2)
by a transfer clerk acting on behalf of the Company and a registrar, the
signatures of any such Chairman of the Board, President, Vice President or
Secretary may be facsimiles. In case any officer or officers who have signed,
or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Company, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the Company, such certificate
or certificates may nevertheless be adopted by the Company and be validly issued
and delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the Company. Certificates for
shares shall be in such form as shall be in conformity to law or as may be
prescribed from time to time by the Board of Directors. All certificates for
shares shall be consecutively numbered or otherwise identified and shall specify
the shares to which they relate. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date of
issue and whether fully paid, or deemed fully paid or partly paid, shall be
entered in the register of Members of the Company. All certificates surrendered
to the Company for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares has been
surrendered and cancelled. Certificates may be issued with the seal and
authorized signatures affixed by some method or system of mechanical process.
2.2 Every certificate in respect of one or more Class B Ordinary
Shares shall upon the initial issue of Equity Units be issued in conjunction
with the stock certificate issued by or on behalf of TEC in respect of the
number of shares of TEC Preferred Stock comprised in the same Equity Units.
Every certificate in respect of one or more Class B Ordinary Shares issued after
the initial issue of Equity Units shall be issued under arrangements which the
Board of Directors is satisfied will secure that such certificates are held and
dealt with in conjunction with the certificates for the Class B Ordinary Shares
and the fraction of a share of TEC Preferred Stock comprised in the Equity Unit
of which it forms a part.
2.3 The Company shall maintain a register of its Members and every
person whose name is entered as a Member in the register of Members shall be
entitled without payment to receive within two (2) months after allotment or
lodgment of transfer (or within such other period as the conditions of issue
shall provide) one certificate for all his shares or several certificates each
for one or more of his shares provided that in
6
<PAGE>
respect of a share or shares held jointly by several persons the Company shall
not be bound to issue more than one certificate and delivery of a certificate
for a share to one of the several joint holders shall be sufficient delivery to
all such holders.
2.4 Notwithstanding Section 2.1 of these Articles, if a share
certificate be defaced, lost or destroyed, it may be renewed on such terms (if
any) as to evidence and indemnity and the payment of the expenses incurred by
the Company in investigating evidence, as the Board of Directors or any officer
of the Company may prescribe.
III. ISSUE OF SHARES
3.1 The authorized share capital of the Company shall be U.S.
$2,400,000 represented by (i) 200,000,000 Class A Ordinary Shares, par value
US$.01 per share (the "Class A Ordinary Shares"), 10,000,000 Class B Ordinary
Shares, par value US$.01 per share (the "Class B Ordinary Shares"), and
10,000,000 Class C Ordinary Shares, par value US$.01 per share (the "Class C
Ordinary Shares"), with the respective rights as set forth in Article IV below,
and (ii) other classes or series of Shares with the respective rights to be
determined upon the creation thereof by action of the Board of Directors from
time to time as set forth in Article V below.
3.2 In the event that the Board of Directors shall have resolved
that each issued and outstanding Class B Ordinary Share and Class C Ordinary
Share shall be converted into one Class A Ordinary Share pursuant to Section 4.3
hereof, from and after the effectiveness of such conversion, the share capital
of the Company shall be U.S. $2,200,000, divided into 200,000,000 ordinary
shares, par value of U.S. $.01 per share and 20,000,000 other Shares, par value
of U.S. $0.01 per share and references herein to "Class A Ordinary Shares" shall
thereafter be deemed to be references to "Ordinary Shares".
IV. ORDINARY SHARES
4.1 The Class A Ordinary Shares, Class B Ordinary Shares and Class C
Ordinary Shares shall rank pari passu in all respects as if they were one
uniform class of shares except as otherwise set out in the Articles and that:
(a) The holders of Class A Ordinary Shares will be entitled, on the
declaration of a dividend, at any time, to a dividend on each Class A
Ordinary Share of an amount which exceeds the amount of the dividend (if
any) declared at the same time on a Class B Ordinary Share or Class C
Ordinary Share, by an amount equal to (i) the Cumulative Dividend Amount at
such time divided by (ii) the Pairing Ratio at such time, and to the extent
any such excess exists, a
<PAGE>
7
dividend may be declared at any time on Class A Ordinary Shares even if no
dividend is declared at the same time on Class B Ordinary Shares or Class C
Ordinary Shares.
(b) On a return of assets of the Company on a winding-up of the
Company, the holders of the Class A Ordinary Shares will be entitled to
have the assets of the Company available for distribution among the Members
applied in the first place in paying to them in respect of each Class A
Ordinary Share an amount equal to (x) the sum of the Liquidation
Preference, if any, paid in respect of one-tenth of one share of TEC
Preferred Stock plus the amount of any other distribution to the holders of
one-tenth of one share of TEC Preferred Stock in connection with the
dissolution, liquidation or winding up of TEC as of the date of the
commencement of the winding-up of the Company, plus (y) an amount equal to
the Cumulative Dividend Amount at the date of the commencement of the
winding-up of the Company, divided by the Pairing Ratio at such date and
thereafter to participate in any assets of the Company pari passu with the
holders Class B Ordinary Shares or Class C Ordinary Shares; PROVIDED,
HOWEVER, that if and to the extent that the Liquidation Available Amount
has been reduced pursuant to Section 4.2 as a result of the declaration of
cash dividends on, or stock dividends in, Class A Ordinary Shares, the
entitlement of the holder of each Class A Ordinary Share hereunder shall be
reduced by an amount corresponding to such reduction of the Liquidation
Available Amount divided by the number of Class A Ordinary Shares entitled
to such dividend in cash or stock dividend pursuant to Section 4.2.
4.2 (a) The Board of Directors of the Company may at any time after
a liquidation, dissolution or winding-up of TEC has been completed,
ascertain the product of (i) the sum of (x) the amount of the Liquidation
Preference, if any, paid in respect of one-tenth of one share of TEC
Preferred Stock plus the amount of any other distribution to the holders of
one-tenth of one share of TEC Preferred Stock in connection with the
dissolution, liquidation or winding up of TEC (the amount referred to in
this clause (x) being hereinafter called the "TEC Preferred Liquidation
Amount") plus (y) the Cumulative Dividend Amount immediately preceding the
time of such determination times (ii) the number of Class A Ordinary Shares
outstanding at such time divided by the Pairing Ratio at such time. Such
product at any time is referred to in these Articles as the "Liquidation
Available Amount" at such time.
(b) Subject as hereinafter provided the Board of Directors may, in
its discretion, at any time and from time to time for so long as there is
any Liquidation Available Amount, apply all or any part of such Liquidation
Available Amount to declare dividends payable in cash to the holders of
Class A Ordinary Shares in accordance with (c) below
<PAGE>
8
and/or to pay stock dividends in additional Class A Ordinary Shares to the
holders of Class A Ordinary Shares in accordance with (d) and (e) below;
PROVIDED that
(i) any such cash or stock dividends will for the purposes of
subsection (a) be applied first in reducing the amount
attributable to the Cumulative Dividend Amount, if any, and
thereafter in reducing the TEC Preferred Liquidation Amount;
(ii) if any part of the Liquidation Available Amount is so
applied to a stock dividend, then the Cumulative Dividend Amount
shall be reduced until extinguished by the relevant amount
referable to such stock dividend. The "relevant amount" means the
product of (I) (x) divided by (y) times (II) (z), where (x) is
the amount by which the Liquidation Available Amount is to be
reduced in accordance with Section 4.2(d) below, (y) is the
number of Class A Ordinary Shares entitled to the relevant stock
dividend, and (z) is the Pairing Ratio at that time; and
(iii) any part of the Liquidation Available Amount may only be
so applied to a stock dividend if the relevant amount (as defined
above) referable to such stock dividend equals or exceeds the
amount attributable to the Cumulative Dividend Amount, if any,
for the purposes of (a) above at the time of the issue.
(c) If the Board of Directors of the Company determines to apply all
or any part of the then applicable Liquidation Available Amount for the
declaration of cash dividends, the amount by which the Liquidation
Available Amount (including, if applicable, TEC Preferred Liquidation
Amount) shall be reduced by declaration of any such cash dividend shall be
the amount of such cash dividend.
(d) If the Board of Directors of the Company determines to apply all
or any part of the then applicable Liquidation Available Amount in making a
stock dividend, the amount by which the Liquidation Available Amount
(including, if applicable, the TEC Preferred Liquidation Amount) shall be
reduced by the making of such stock dividend shall be the amount so applied
(the "Specified Liquidation Amount").
(e) If the Board of Directors of the Company determines to apply the
whole or any part of the then applicable Liquidation Available Amount so
applied in making a stock dividend payable in Class A Ordinary Shares to
the holders of Class A Ordinary Shares, the aggregate number of additional
Class A Ordinary Shares to be so distributed will be calculated by dividing
the then applicable Specified
<PAGE>
9
Liquidation Amount by the Market Price of the Class A Ordinary Shares
immediately preceding the date on which the Board of Directors of the
Company announces its intention to declare such stock dividend.
4.3 Subject to the liquidation, dissolution or winding-up of TEC
having been completed and the Liquidation Available Amount having been reduced
to zero as provided in Section 4.2, and the Board of Directors resolving that
this shall have effect, each issued and outstanding Class B Ordinary Share shall
be converted into one Class A Ordinary Share. In the event that the Equity
Units are purchased by the Company in accordance with Section 7.2, at a time
when the Cumulative Dividend Amount is positive, and Class C Ordinary Shares are
issued as all or part of the purchase price for the Equity Units, the Cumulative
Dividend Amount having been reduced to zero, and the Board of Directors
resolving that this shall have effect, each issued and outstanding Class C
Ordinary Share shall be converted into one Class A Ordinary Share.
4.4 Subject to the provisions of these Articles, all unissued shares
for the time being in the capital of the Company shall be at the disposal of the
Board of Directors, and the Board of Directors may (subject as aforesaid) allot,
grant options over, or otherwise dispose of them to such persons, on such terms
and conditions, and at such times as they deem proper except that for so long as
the capital of the Company is divided into Class A Ordinary Shares, Class B
Ordinary Shares and Class C Ordinary Shares,
(a) no Class B Ordinary Share may be allotted or otherwise disposed
of, other than the allotment of a Class B Ordinary Share to be comprised in
an Equity Unit in connection with the original issuance of Class B Ordinary
Shares to be comprised in the Equity Units in connection with the
Reorganization or in accordance with Article XV, Article XXX and Article
XXXI;
(b) no Class C Ordinary Share may be allotted or otherwise disposed
of, other than in connection with the exercise by the Company of its right
to purchase the Equity Units, where the Company elects to use Ordinary
Shares in lieu of cash in connection with such purchase and the Cumulative
Dividend Amount is positive or in accordance with Article XV, Article XXX
and Article XXXI; and
(c) no option may be granted thereover and no right of subscription
for, conversion into or exchange for Class B Ordinary Shares or Class C
Ordinary Shares may be created.
4.5 Subject to Section 4.1, 4.2, Article XXX and Article XXXI, for as
long as any Class B Ordinary Shares or Class C Ordinary Shares are outstanding,
the Company will not make any offer or distribution of any share capital of the
Company or any
<PAGE>
10
option, right or warrant to subscribe for or purchase any share capital of the
Company, or any other security convertible into or exchangeable for share
capital of the Company to the holders of any class of Ordinary Shares unless an
offer or distribution on the same basis (in all material respects) is made to
the holders of any other class of Ordinary Shares outstanding, subject further
to the Board of Directors having the right to (i) sell, for the benefit of those
Members who are citizens or resident in any overseas territory (other than the
United States of America) where in the opinion of the Board of Directors it
would at the time of the distribution be illegal, impracticable or unduly costly
for the Company to make or for those Members to receive any distribution of the
shares, options, rights, warrants or other securities or property to which they
would otherwise be entitled; and (ii) to aggregate and sell for the benefit of
the Company fractions which may arise in apportioning the shares, options,
rights, warrants or other securities or property among the Members.
4.6 Dividends to be satisfied by distributions of property other than
cash will be made or paid (as the case may be) on the same basis (in all
material respects) to holders of Ordinary Shares, but no such distribution may
be made (except as provided in Section 4.2) unless at the time of declaration of
such dividend the Cumulative Dividend Amount is zero.
4.7 No holder of Ordinary Shares or any other shares of the Company
(unless otherwise expressly agreed to by the Company) shall, by reason of such
holding, have any preemptive or preferential right to subscribe to or purchase
any shares of any class or series of any shares of the Company, now or hereafter
to be authorized, or any notes, debentures, bonds or other securities, whether
or not the issuance of any such shares, notes, debentures, bonds or other
securities would adversely affect the dividend, voting or any other rights of
such holder.
4.8 In the event of any conflict, the provisions of this Article IV
shall override the provisions of any other Article of these presents.
4.9 Subject as aforesaid, the Board of Directors may allot, issue or
grant any option, right, warrant or other security exercisable for, convertible
into, or exchangeable for, or otherwise dispose of, any shares or securities of
the Company at such times and on such terms as it deems proper. Upon approval
of the Board of Directors, such number of Ordinary Shares, or other shares or
securities of the Company, as may be required for such purpose shall be reserved
for issuance in connection with any option, right, warrant or other security of
the Company or any other person that is exercisable for, convertible into,
exchangeable for or otherwise issuable in respect of such Ordinary Shares or
other shares or securities of the Company. Notwithstanding the generality of the
foregoing, the Board of Directors is expressly authorized and empowered to
<PAGE>
11
implement or effect at its sole discretion the issuance of a preferred share
purchase right to be attached to each outstanding Ordinary Share with such terms
and for such purposes, including the influencing of takeovers, as may be
described in a rights agreement between the Company and a rights agent.
4.10 Unless otherwise specified by the Board of Directors, any shares
which have been called, redeemed or otherwise repurchased by the Company shall
have the status of authorized but unissued shares and may be subsequently issued
in accordance with the Memorandum and these Articles.
4.11 The Board of Directors shall have the fullest powers permitted
by law to pay all or any redemption monies in respect of any shares out of the
Company's share capital and share premium account.
V. OTHER CLASSES OR SERIES OF SHARES
5.1 The Board of Directors is authorized without obtaining any vote
or consent of the holders of any class or series of shares of the Company unless
expressly provided by the terms of issue of such class or series, subject to any
limitations prescribed by law, to provide from time to time for the issuance of
other classes or series of Shares, and in accordance with applicable procedures
of the Statute, to establish the characteristics of each class or series
including, without limitation, the following:
(a) the number of shares of that class or series, which may
subsequently be increased or decreased (but not below the number of shares
of that class or series then outstanding) by resolution of the Board of
Directors, and the distinctive designation thereof,
(b) the voting powers, full or limited, if any, of the shares of that
class or series, including without limitation, the authority to confer
multiple votes per share, voting rights as to specified matters or issues
such as mergers, consolidations or sales of assets, or voting rights to be
exercised either together with holders of Ordinary Shares as a single
class, or independently as a separate class;
(c) the rights in respect of dividends, if any, on the shares of that
class or series; the rate at which such dividends shall be payable and/or
cumulate, which rate may be determined on factors external to the Company
and which dividends may be payable in cash, shares of capital or other
securities or property of the Company; whether dividends shall be
cumulative and, if so, from which date or dates; the relative rights or
priority, if any, of payment of dividends on shares of that class or
series; and any
<PAGE>
12
limitation, restrictions or conditions on the payment of dividends;
(d) the relative amounts, and the relative rights or priority, if
any, of payment in respect of shares of that class or series, which the
holder of the shares of that class or series shall be entitled to receive
upon any liquidation, dissolution or winding up of the Company;
(e) any redemption, repurchase, retirement and sinking fund rights,
preferences and limitations of that class or series, the amount payable on
shares of that class or series in the event of such redemption, repurchase
or retirement, the terms and conditions of any sinking fund, the manner of
creating such fund or funds and whether any of the foregoing shall be
cumulative or non-cumulative;
(f) the terms, if any, upon which the shares of that class or series
shall be convertible into or exchangeable for shares of any other classes,
or series, or other securities, whether or not issued by the Company;
(g) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness of the Company so long as any shares of that class
or series are outstanding; and
(h) any other preferences and relative, participating, optional or
other rights and limitations not inconsistent with applicable law or the
provisions of this Article V.
VI. VARIATION OF RIGHTS OF SHARES
6.1 (a) If at any time the share capital of the Company is divided
into different classes or series of shares, the rights attached to any class or
series (unless otherwise provided by the terms of issue of the shares of that
class) may, whether or not the Company is being wound-up, be varied with the
consent in writing of the holders of all of the issued shares of that class or
series, or with the sanction of a Special Resolution passed at a general meeting
with the holders of the shares of that class or series voting separately as a
class.
(b) The provisions of these Articles relating to separate general
meetings shall apply to every such general meeting of the holders of one class
or series of shares.
(c) Class or series meetings and class or series votes may only be
called at the direction of the Board of Directors or the President (unless
otherwise expressly provided by the terms of issue of the shares of that class
or series). Nothing in this Article VI gives any Member or group of Members the
right to call a class or series meeting or demand a class or series vote.
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13
6.2 The rights conferred upon the holders of the shares of any class
or series issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that class or series,
be deemed to be varied by the creation or issue of further shares ranking in any
respect prior to or pari passu therewith. The rights of the holders of Ordinary
Shares shall not be deemed to be varied by the creation or issue of shares with
preferred or other rights, which may be effected by the Board of Directors as
provided in these Articles without any vote or consent of the holders of
Ordinary Shares.
VII. REDEMPTION
7.1 Except as provided in this Article VII, the Class A Ordinary
Shares, the Class B Ordinary Shares and the Class C Ordinary Shares are not
redeemable by the Company. Subject as set out herein, any issued and
outstanding Ordinary Shares shall be redeemable in such circumstances and on
such terms as shall be agreed by the Company and the holder thereof, subject
always to the laws of the Cayman Islands, and the Company may deduct from the
redemption price for such shares the aggregate amount of any outstanding debts,
liabilities and engagements to or with the Company (whether presently payable or
not) by the holder of such shares, either alone or jointly with any other
person, whether a Member or not. Without limiting the foregoing, the Company
may, from time to time, upon the agreement of a Member, purchase or redeem all
or part of the Ordinary Shares of any such Member, whether or not the Company
has made a similar offer to all or any of the other Members. Notwithstanding
the foregoing, no redemption of the Class B Ordinary Shares comprised in an
Equity Unit may be made unless the Company purchases or redeems, or (if TEC
purchases the Equity Units) TEC purchases or redeems the one-tenth of one share
of TEC Preferred Stock and any other Class B Ordinary Shares comprised in such
Equity Units at the same time. For the purpose of compliance with the Statute,
in any case where the Company or TEC purchases any Equity Unit, the
apportionment of the consideration payable by the Company or TEC between the
Class B Ordinary Shares and the one-tenth of a share of TEC Preferred Stock
shall be determined by the Company, in the case of a purchase by the Company,
and TEC, in the case of a purchase by TEC, and shall be conclusive and binding.
7.2 In connection with the purchase of Equity Units, the Class B
Ordinary Shares are subject to redemption by the Company or purchase by TEC, in
whole or in part, at any time on or after ____________, 1999. In addition, the
Company may redeem the Class B Ordinary Shares in connection with the purchase
of the Equity Units, in whole or in part, at any time immediately prior to the
consummation of a disposition of the stock of TEC (including by merger,
consolidation, amalgamation or similar transaction pursuant to which all of the
common stock of TEC outstanding prior to such transaction is converted into
cash, securities or other property). The purchase price per Equity
<PAGE>
13
Unit may be paid in cash, or, in the case of the Company, Class A Ordinary
Shares or some combination thereof. To the extent that the purchase price is
paid in cash, the purchase price per Equity Unit shall be the greater of (i) 95%
of the Fair Market Value of one Class A Ordinary Share (less the amount due per
Class A Ordinary Share in respect of the Cumulative Dividend Amount or the
Liquidation Available Amount) and (ii) the Fair Market Value of the Equity Unit.
To the extent that the purchase price is paid in Class A Ordinary Shares, the
purchase price per Equity Unit shall be the greater of (i) .95 of a Class A
Ordinary Share and (ii) the number of Class A Ordinary Shares obtained by
dividing the Fair Market Value of an Equity Unit by the Fair Market Value of a
Class A Share; provided that, if at the time of such purchase, the Cumulative
Dividend Amount is positive, the same number of Class C Ordinary Shares shall be
issued in lieu of Class A Ordinary Shares. The Company will mail notice of an
optional purchase of Equity Units to each holder of record thereof at least 30
days but not more than 60 days before the date for such purchase at the address
shown on the books of the Depositary for the Equity Units.
VIII. SPECIAL TRANSACTIONS
8.1 Subject to any additional requirements of the Statute, for so
long as there are outstanding Class B Ordinary Shares or Class C Ordinary
Shares, the Company shall not enter into any agreement with any other entity
providing for the consolidation, merger, amalgamation or other similar
transaction of the Company and such other entity if the holders of Ordinary
Shares receive consideration in respect of such transaction and the
consideration to be received by holders of Equity Units per Equity Unit in such
transaction (or in combination with a related transaction involving TEC) or, if
Class B Ordinary Shares are no longer including in an Equity Unit, holders of
Class B Ordinary Shares per share or Class C Ordinary Shares per share (less the
amount due per Class A Ordinary Shares in respect of the Cumulative Dividend
Amount or the Liquidation Available Amount, as the case may be) is less than the
consideration to be received per share by holders of the Class A Ordinary Shares
in connection with such consolidation, merger, amalgamation or other similar
transaction, unless such agreement shall have been approved by the holders of a
majority of the Class B Ordinary Shares or Class C Ordinary Shares, as
applicable, voting separately as a class.
IX. TRANSFER OF SHARES
9.1 Upon surrender to the Company or the transfer agent of the
Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and otherwise
meeting all legal requirements for transfer, it shall be the duty of the Company
to issue a new certificate to the person entitled thereto, cancel
<PAGE>
15
the old certificate and record the transaction upon its books. Transfers of
shares shall be made only on the books of the Company by the registered holder
thereof, or by such holders attorney thereunto authorized by power of attorney
and filed with the Secretary of the Company or the transfer agent. The Company
shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote as such owner,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
9.2 The holder of any redeemable shares for which the Company has
issued a notice of redemption in accordance with these Articles may not transfer
such shares, whether or not the Company has yet paid the redemption price to the
Member unless otherwise provided (i) by the terms of such shares or (ii) the
Board of Directors in connection with the redemption of such shares.
9.3 The Board of Directors shall refuse to register the transfer of
any Class B Ordinary Share comprised in any Equity Unit, unless there is
produced to the Board of Directors such evidence as it may in its discretion
require to ensure that on the same occasion there is being transferred to the
same person the one-tenth of one share of TEC Preferred Stock and any other
Class B Ordinary Shares comprised in the same Equity Unit. Notwithstanding the
foregoing, in the event of a liquidation, dissolution or winding up of TEC, then
after such liquidation, dissolution or winding up has been completed, the Board
of Directors of the Company may in its discretion determine (which determination
shall be final and binding) that the Class B Ordinary Shares included in the
Equity Units should cease to be paired and should be capable of being
transferred separately.
X. NON-RECOGNITION OF TRUSTS
10.1 The Company shall not be required to recognize any person as
holding any share upon any trust and the Company shall not be bound by or be
compelled in any way to recognize (even when having notice thereof) any
equitable, contingent, future, or partial interest in any share, or any interest
in any fractional part of a share, or (except only as is otherwise provided by
these Articles or the Statute) any other rights in respect of any share except
an absolute right to the entirety thereof in the registered holder.
XI. LIEN ON SHARES
11.1 The Company shall have a first and paramount lien and charge on
all shares (not being a fully paid share) registered in the name of a Member
(whether solely or jointly
<PAGE>
16
with others) for all debts, liabilities or engagements to or with the Company
(whether presently payable or not) by such Member or his estate, either alone or
jointly with any other person, whether a Member or not, but the Board of
Directors may at any time declare any share to be wholly or in part exempt from
the provisions of this Article XI. The registration of a transfer of any such
share shall operate as a waiver of the Company's lien (if any) thereon. The
Company's lien (if any) on a share shall extend to all dividends, redemptions or
other monies payable in respect thereof.
11.2 The Company may, subject to the restrictions in these Articles
on the sale and transfer of Class B Ordinary Shares comprised in Equity Units,
sell, in such manner as the Board of Directors deems fit, any shares on which
the Company has a lien, except as set forth in this Article XI. Unless
otherwise permitted in the instrument creating such lien, no such sale shall be
made unless a sum in respect of which the lien exists is presently payable.
Unless otherwise permitted in the instrument creating such lien, no such sale
shall be made until the expiration of fourteen (14) days after a notice in
writing stating and demanding payment of such part of the amount in respect of
which the lien exists as is presently payable, has been given to the registered
holder or holders for the time being of the shares, or the person, of which the
Company has notice, entitled thereto by reason of his death or bankruptcy.
11.3 To give effect to any such sale the Board of Directors may
authorize some person to transfer the shares sold to the purchaser thereof. The
purchaser shall be registered as the holder of the shares comprised in any such
transfer, and he shall not be bound to see to the application of the purchase
money, nor shall his title to the shares be affected by any irregularity or
invalidity in the proceedings in reference to the sale.
11.4 The proceeds of such share shall be received by the Company and
applied in payment of such part of the amount in respect of which the lien
exists as is presently payable and the residue, if any, shall (subject to a like
lien for sums not presently payable as existed upon the shares before the sale)
be paid to the person entitled to the shares at the date of the sale.
XII. CALL ON SHARES
12.1 (a) The Board of Directors may from time to time make calls
upon the Members in respect of any monies unpaid on their shares (whether on
account of the nominal value of the shares or by way of premium or otherwise)
and not by the conditions of allotment thereof made payable at fixed terms; and
each Member shall, subject to receiving at least fourteen (14) days notice (or
some shorter period of notice as may have been authorized by the terms on issue
of the shares) specifying the
<PAGE>
17
time or times of payment, pay to the Company at the time or times so specified
the amount called on the shares. A call may be revoked or postponed as the
Board of Directors may determine. A call may be made payable by installments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Board of Directors authorizing such call was passed unless
otherwise provided by the Board of Directors.
(c) The joint holders of a share shall be jointly and severally
liable to pay all calls in respect thereof
12.2 If a sum called in respect of a share is not paid before or on a
day appointed for payment thereof, the persons from whom the sum is due shall
pay interest on the sum from the day appointed for payment thereof to the time
of actual payment at such rate not exceeding ten percent (10%) per annum as the
Board of Directors may determine, but the Board of Directors shall be at liberty
to waive payment of such interest either wholly or in part.
12.3 Any sum which by the terms of a share becomes payable on
allotment or at any fixed date, whether on account of the non-final value of the
share or by way of premium or otherwise, shall for the purposes of these
Articles be deemed to be a call duly made, notified and payable on the date on
which by the terms of issue the same becomes payable, and in the case of
non-payment all the relevant provisions of these Articles as to payment of
interest, forfeiture or otherwise shall apply as if such sum had become payable
by virtue of a call duly made and notified.
12.4 The Board of Directors may, on the issue of shares,
differentiate between the holders as to the amount of calls or interest to be
paid and the times of payment.
12.5 (a) The Board of Directors may, if it thinks fit, receive from
any Member willing to advance the same, all or any part of the monies uncalled
and unpaid upon any shares held by him, and upon all or any of the monies so
advanced may (until the same would but for such advances, become payable) pay
interest at such rate as may be agreed upon between the Company and the Member
paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member
paying such sum to any portion of a dividend declared in respect of any period
prior to the date upon which such sum would, but for such payment, become
presently payable.
XIII. FORFEITURE OF SHARES
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18
13.1 (a) If a Member fails to pay any call or installment of a call
or to make any payment required by the terms of issue on the day appointed for
payment thereof, the Board of Directors may, at any time thereafter during such
time as any part of the call, installment or payment remains unpaid, give notice
requiring of so much of the call, installment or payment as is unpaid, together
with any interest which may have accrued and all expenses that have been
incurred by the Company by reason of such non-payment. Such notice shall name a
day (not earlier than the expiration of fourteen (14) days from the date of
giving of the notice) on or before which the payment required by the notice is
to be made, and shall state that, in the event of non-payment at or before the
time appointed the shares in respect of which such notice was given will be
liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been given may at
any time thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the Board of Directors to that effect. Such
forfeiture shall include all dividends declared in respect of the forfeited
share and not actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such
terms and in such manner as the Board of Directors deems fit and at any time
before a sale or disposition the forfeiture may be cancelled on such terms as
the Board of Directors thinks fit.
13.2 A person whose shares have been forfeited shall cease to be a
Member in respect of the forfeited shares, but shall, notwithstanding, remain
liable to pay to the Company all monies which, at the date of forfeiture were
payable by him to the Company in respect of the shares together with interest
thereon, but his liability shall cease if and when the Company shall have
received payment in full of all monies whenever payable in respect of the
shares.
13.3 A certificate in writing under the hand of the President or any
Vice President and the Secretary of the Company that a share in the Company has
been duly forfeited on a date stated in the declaration shall be conclusive
evidence of the fact therein stated as against all persons claiming to be
entitled to the share. The Company may receive the consideration given for the
share on any sale or disposition thereof and may execute a transfer of the share
in favor of the person to whom the share is sold or disposed of and he shall
thereupon be registered as the holder of the share and shall not be bound to see
to the application of the purchase money, if any, nor shall his title to the
share be affected by any irregularity or invalidity in the proceedings in
reference to the forfeiture, sale or disposal of the share.
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19
13.4 The provisions of these Articles as to forfeiture shall apply in
the case of non-payment of any sum which, by the terms of issue of a share,
becomes payable at a fixed time, whether on account of the nominal value of the
share or by way of premium as if the same had been payable by virtue of a call
duly made and notified.
XIV. TRANSMISSION OF SHARES
14.1 In case of the death of a Member who is a natural person, the
survivor or survivors where the deceased was a joint holder, and the legal
personal representatives of the deceased where he was a sole holder, shall be
the only persons recognized by the Company as having any title to his interest
in the shares, but nothing herein contained shall release the estate of any such
deceased holder from any liability in respect of any shares which had been held
by him solely or jointly with other persons.
14.2 (a) Any person becoming entitled to a share in consequence of
the death or bankruptcy of a Member (or in any other way than by transfer) may,
upon such evidence being produced as may from time to time be required by the
Board of Directors and subject as hereinafter provided, elect either to be
registered himself as holder of the share or to make such transfer of the share
to such other person nominated by him as the deceased or bankrupt person could
have made and to have such person registered as the transferee thereof, but the
Board of Directors shall, in either case, have the same right to decline or
suspend registration as they would have had in the case of a transfer of the
share by that Member before his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered
himself as holder he shall deliver or send to the Company a notice in writing
signed by him stating that he so elects.
14.3 A person becoming entitled to a share by reason of the death or
bankruptcy of the holder (or in any other case than by transfer) shall be
entitled to the same dividends and other advantages to which he would be
entitled if he were the registered holder of the share, except that he shall
not, before being registered as a Member in respect of the share, be entitled in
respect of it to exercise any right conferred by membership in relation to
meetings of the Company; provided, however, that the Board of Directors may at
any time give notice requiring any such person to elect either to be registered
himself or to transfer the share and if the notice is not complied with within
ninety (90) days the Board of Directors may thereafter withhold payment of all
dividends, bonuses or other monies payable in respect of the share until the
requirements of the notice have been complied with.
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20
XV. AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OR REGISTERED OFFICE & ALTERATION OF CAPITAL
15.1 (a) Subject to and insofar as permitted by the provisions of
the Statute, the Company may from time to time by Special Resolution alter or
amend the Memorandum and may, without restricting the generality of the
foregoing:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution shall
prescribe;
(ii) consolidate all or any of its share capital into shares of larger
amount than its existing shares;
(iii) by subdivision for its existing shares or any of them divide the
whole or any part of its share capital into shares of smaller amount than
is fixed by the Memorandum;
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any person;
provided that for so long as the capital of the Company is divided into Class A
Ordinary Shares, Class B Ordinary Shares and Class C Ordinary Shares, none of
the matters contemplated by paragraphs (ii) or (iii) of this Article shall be
effected by the Company unless (i) immediately following any such consolidation
or subdivision, as the case may be, the ratio of the number of Class A Shares
then outstanding to the number of Class B Shares then outstanding is equal to
such ratio immediately preceding such consolidation or subdivision, as the case
may be, and (ii) the effect thereof will result in an Equity Unit comprising a
whole number of Class B Ordinary Shares and one-tenth of one share of TEC
Preferred Stock. The number of Class B Ordinary Shares comprised in an Equity
Unit immediately prior to such consolidation or subdivision shall be increased
or decreased, as the case may be, to reflect such consolidation or subdivision
immediately thereafter.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the shares in the original share
capital.
(c) Subject to the provisions of the Statute, the Company may by
Special Resolution reduce its share capital or any capital redemption reserve
fund, provided that no such reduction may be made if as a result all of the
Class B Ordinary Shares comprised in Equity Units will be cancelled unless prior
to such reduction becoming effective the Board of Directors is satisfied that
the shares of TEC Preferred Stock comprised in such Equity Units will be
cancelled and any determination by the Board of
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21
Directors that it is so satisfied shall be conclusive and binding.
15.2 Subject to the provisions of the Statute, the Company may by
Special Resolution change its name or alter its objects.
15.3 Subject to the provisions of the Statute, the Company may by
resolution of the Board of Directors change the location of its registered
office.
XVI. CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
16.1 For the purpose of determining Members entitled to notice of or
to vote at any meeting of Members or any adjournment thereof, or Members
entitled to receive payment of any dividend, or in order to make the
determination of Members for any other proper purpose, the Board of Directors of
the Company may provide that the register of Members shall be closed for
transfers for a stated period but not to exceed in any case forty (40) days. If
the register of Members shall be so closed for the purpose of determining
Members entitled to notice of or to vote at a meeting of Members such register
shall be so closed for at least ten (10) days immediately preceding such meeting
and the record date for such determination shall be the date of the closure of
the register of Members.
16.2 In lieu of or apart from closing the register of Members, the
Board of Directors may fix in advance a date as the record date for any such
determination of Members entitled to notice of or to vote at a meeting of the
Members, and for the purpose of determining the Members entitled to receive
payment of any dividend, the Board of Directors may, at or within ninety (90)
days prior to the date of declaration of such dividend, fix a subsequent date no
later than the date of declaration as the record date for such determination.
16.3 If the register of Members is not so closed and no record date
is fixed for the determination of Members entitled to notice of or to vote at a
meeting of Members or Members entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of Members. When a
determination for Members entitled to vote at any meeting of Members has been
made as provided in this section, such determination shall apply to any
adjournment thereof.
XVII. VOTING.
17.1 Subject to the remaining provisions of these Articles, at each
election for Directors at a General Meeting,
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22
each holder of an Ordinary Share entitled to vote at such election shall have
the right to vote, in person or by proxy, the number of shares owned by him for
as many persons as there are Directors to be elected and for whose election he
has a right to vote. Cumulative voting, for the election of Directors or
otherwise, is expressly prohibited. Election of Directors need not be by
ballot. On all matters coming before the Members, other than the election of
Directors, each issued and outstanding Ordinary Share shall be entitled to one
(1) vote.
XVIII. GENERAL MEETING
18.1 (a) The Company shall in each year of its existence hold a
general meeting as its annual general meeting. The annual general meeting shall
be held at such time and place as the Board of Directors shall appoint.
(b) At each annual general meeting, the Directors to be elected at
that meeting shall be elected for the applicable term or until their respective
successors have been elected and have qualified.
18.2 (a) Except as otherwise required by law, and subject to the
terms for any class or series of shares issued by the Company having a
preference over the Ordinary Shares as to dividends or upon liquidation to elect
directors in specified circumstances, extraordinary general meetings of the
Members of the Company may be called only by (i) the President of the Company or
(ii) the Board of Directors.
(b) Any action required or permitted to be taken by the Members of
the Company must be taken at a duly called annual or extraordinary general
meeting of the Members of the Company and may not be taken by consent in writing
or otherwise except by consent in writing signed by all Members having a right
to vote with respect to such action.
(c) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares generally entitled to
vote, voting together as a single class, shall be required to amend or repeal,
or adopt any provision inconsistent with, this Section 18.2.
XIX. NOTICE OF GENERAL MEETINGS
19.1 Written notice of each meeting of the Members stating the place,
date and time of the meeting shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting, to each Member entitled to vote
at such meeting. The notice of any extraordinary meeting of Members shall state
the purpose or purposes for which the meeting is
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called. Business transacted at any extraordinary meeting shall be limited to
the purposes stated in the notice.
19.2 The accidental omission to give notice of a general meeting to,
or the non-receipt of notice of a meeting by, any person entitled to receive
notice shall not invalidate the proceedings of that meeting.
XX. PROCEEDINGS AT GENERAL MEETINGS
20.1 (a) No business shall be transacted at any general meeting
unless a quorum of Members is present at the time when the meeting proceeds to
business. One or more Members present in person or by proxy holding at least a
majority of the issued and outstanding shares of the Company entitled to vote at
such meeting shall be a quorum. The Members present at a duly constituted
general meeting may continue to transact business until adjournment, despite the
withdrawal of enough stockholders to leave less than a quorum.
(b) An Ordinary Resolution shall require the vote of a majority of
such shares as, being entitled to do so, vote in person or by proxy at any
general meeting at which the required quorum is present in person or by proxy,
voting together as a single class; provided that whenever Directors are to be
elected at a general meeting, they shall be elected by a plurality of the votes
cast in person or by proxy at the general meeting by the holders of shares
entitled to vote.
20.2 (a) Subject to the rights of holders of any class or series
having a preference over the Ordinary Shares as to dividends or upon
liquidation, if a Member desires to nominate persons for election as Directors
at any general meeting duly called for the election of Directors, written notice
of such Member's intent to make such a nomination must be given and received by
the Secretary of the Company at the principal executive offices of the Company
not later than (i) with respect to an annual general meeting of Members, ninety
(90) days in advance of such annual general meeting, and (ii) with respect to an
extraordinary general meeting, the close of business on the seventh (7th) day
following the date on which notice of such meeting is first sent or given to
Members. Each notice shall set forth (i) the name and address, as it appears on
the books of the Company, of the Member who intends to make the nomination and
of the person or persons to be nominated; (ii) a representation that the Member
is a holder of record of shares of the Company entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iii) the class and number of shares
of the Company which are beneficially owned by the Member; (iv) a description of
all arrangements or understandings between the Member and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or
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24
nominations are to be made by the Member; (v) such other information regarding
each nominee proposed by such Member as would be required to be included in a
proxy statement filed pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended from time to time, of the United States of America,
whether or not the Company is then subject to such Regulation; and (vi) the
consent of each nominee to serve as a Director of the Company, if so elected.
The Chairman of the annual general meeting or extraordinary general meeting
shall, if the facts warrant, refuse to acknowledge a nomination not made in
compliance with the foregoing procedure, and any such nomination not properly
brought before the meeting shall not be considered.
(b) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares entitled to vote, voting
together as a single class, shall be required to amend or repeal, or adopt any
provision inconsistent with, this Section 20.2.
20.3 The Chairman, if any, of the Board of Directors, or any Director
designated by him, shall preside as Chairman at every general meeting of the
Company, or if there is no such Chairman, or if he or such designee shall not be
present within one (1) hour after the time appointed for the holding of the
meeting, or is unwilling to act, the Directors present shall elect one of their
number to be Chairman of the meeting.
20.4 If at any general meeting no Director is willing to act as
Chairman or if no Director is present within one (1) hour after the time
appointed for holding the meeting, the Members present shall choose one of their
number to be Chairman of the meeting.
20.5 The Chairman may, with the consent of any general meeting duly
constituted hereunder, adjourn the meeting from time to time and from place to
place, but no business shall be transacted at any adjourned meeting other than
the business left unfinished at the meeting from which the adjournment took
place. When a general meeting is adjourned for thirty (30) days or more, notice
of the adjourned meeting shall be given as in the case of an original meeting;
save as aforesaid it shall not be necessary to give any notice of an adjournment
or of the business to be transacted at an adjourned general meeting.
20.6 At any general meeting a resolution put to the vote at the
meeting shall be decided on a poll taken in such manner as the Chairman directs.
20.7 Subject to the rights of holders of any class or series having a
preference over the Ordinary Shares, every Member of record present in person or
by proxy shall have one vote for each issued and outstanding Ordinary Share
registered in his name in the Register.
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25
20.8 In the case of joint holders of record the vote of the senior
who tenders a vote, whether in person or by proxy, shall be accepted to the
exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
register of Members.
20.9 A Member of unsound mind, or in respect of whom an order has
been made by any court, having jurisdiction in lunacy, may vote, whether on a
show of hands or on a poll, by his committee, receiver, curator bonis, or other
person in the nature of a committee, receiver or curator bonis appointed by that
court, and any such committee, receiver, curator bonis or other persons may vote
by proxy.
20.10 No Member shall be entitled to vote at any general meeting
unless he is registered as a Member of the Company on the record date for such
meeting or holds a valid proxy of such a Member or unless all calls or other
sums presently payable in respect of the shares to be voted have been paid.
20.11 Votes may be given either personally or by proxy.
XXI. PROXIES
21.1 The instrument appointing a proxy shall be in writing and shall
be executed under the hand of the appointor or of his attorney duly authorized
in writing, or, if the appointor is a corporation under the hand of an officer
or attorney duly authorized in that behalf. A proxy need not be a Member of the
Company.
21.2 The instrument appointing a proxy shall be deposited at the
Registered Office of the Company or at such other place as is specified for that
purpose in the notice convening the meeting no later than the time for holding
the meeting, or adjourned meeting provided that the Chairman of the meeting may
at his discretion direct that an instrument of proxy shall be deemed to have
been duly deposited upon receipt of facsimile transmission of the signed proxy
or upon receipt of telex or cable confirmation from the appointor that the
instrument of proxy duly signed is in the course of transmission to the Company.
21.3 The instrument appointing a proxy may be in any usual or common
form and may be expressed to be for a particular meeting or any adjournment
thereof or generally revoked.
21.4 A vote given in accordance with the term of an instrument of
proxy shall be valid notwithstanding the previous death or insanity of the
principal or revocation of the proxy or of the authority under which the proxy
was executed, or the
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26
transfer of the share in respect of which the proxy is given provided that no
intimation in writing of such death, insanity, revocation or transfer as
aforesaid shall have been received by the Company at the office before the
commencement of the general meeting, or adjourned meeting at which it is sought
to use the proxy.
21.5 Any corporation which is a Member of record of the Company may
in accordance with its Articles or other governing documents or in the absence
of such provision by resolution of its board of directors or other governing
body authorize such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of Members of the Company, and the person
so authorized shall be entitled to exercise the same powers on behalf of the
corporation which he represents as the corporation could exercise if it were an
individual Member of record of the Company.
XXII. DIRECTORS
22.1 (a) There shall be a Board of Directors appointed by a
plurality of the Members consisting of not less than three (3) nor more than
fifteen (15) persons. The Board of Directors shall have the exclusive power and
right to set the exact number of Directors within that range from time to time
by resolution adopted by the vote of a majority of the whole Board of Directors.
(b) The Directors shall be divided into three classes, designated by
Class I, Class II and Class III. At the 1996 annual general meeting of Members,
Class I Directors shall be elected for a term expiring at the 1999 annual
general meeting of Members, at the 1997 annual general meeting of Members, Class
II Directors shall be elected for a term expiring at the 2000 annual general
meeting and at the 1998 annual general meeting of Members, Class III Directors
shall be elected for a term expiring at the 2001 annual general meeting of
Members. At each succeeding annual general meeting of Members, successors to
Directors whose terms expire at that annual general meeting shall be of the same
class as the Directors they succeed and shall be elected for three-year terms.
(c) If the number of Directors is decreased by resolution of the
Board of Directors pursuant to this Section 22.1, in no case shall that decrease
shorten the term of any incumbent Director.
(d) A Director shall hold office until the annual general meeting for
the year in which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement or
removal from office. Any newly created directorship resulting from an increase
in the number of Directors and any other vacancy on the
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27
Board of Directors, however caused, may be filled by a majority of the Directors
then in office, although less than a quorum, or by a sole remaining Director.
Any Director elected by the Board of Directors to fill a vacancy shall hold
office until the annual general meeting of Members for the year in which the
term of the Director vacating office expires and until his successor shall have
been elected and qualified. Any newly created directorship resulting from an
increase in the number of Directors may be created in any Class of Directors
that the Board of Directors may determine, and any Director elected to fill the
newly created vacancy shall hold office until the term of office of such Class
expires.
(e) One or more or all of the Directors of the Company may be removed
only for cause by the affirmative vote of the holders of at least a majority of
the outstanding shares generally entitled to vote, voting together as a single
class, at a meeting of Members for which proper notice of the proposed removal
has been given.
(f) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of shares issued by the Company shall have the right,
voting separately by class or series, to elect Directors at an annual general
meeting or extraordinary general meeting of Members, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the provisions of these Articles. Directors so elected shall not be
divided into classes and shall be elected by such holders annually unless
expressly provided otherwise by those provisions or resolutions. The aforesaid
Directors and the Directors appointed under Section 23.1 shall together
constitute the Board of Directors from time to time.
(g) Notwithstanding anything contained in these Articles to the
contrary, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding shares generally entitled to
vote, voting together as a single class, shall be required to amend or repeal or
adopt any provision inconsistent with this Section 22.1.
22.2 The Board of Directors shall have the authority to fix the
compensation of Directors, which may include their expenses, if any, of
attendance at each meeting of the Directors or of a committee.
22.3 A Director may hold any other office or place of profit under
the Company in conjunction with his office of Director for such period and on
such terms as to remuneration and otherwise as the Board of Directors may
determine.
22.4 A Director may act by himself or his firm in a professional
capacity for the Company and he or his firm shall be
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entitled to remuneration for professional services as if he were not a Director.
22.5 No membership qualification for Directors shall be required.
22.6 A Director of the Company may be or become a Director or other
officer of or otherwise interested in any company promoted by the Company or in
which the Company may be interested as shareholder, member or otherwise and no
such Director shall be accountable to the Company for any remuneration or other
benefits received by him as a Director or officer of, or from his interest in,
such other company.
22.7 No person shall be disqualified from the office of Director or
prevented by such office from contracting with the Company, either as vendor,
purchaser or otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which any Director
shall be in any way interested or be liable to be avoided, nor shall any
Director so contracting or being so interested be liable to account to the
Company for any profit realized by any such contract or transaction by reason of
such Director holding office or of the fiduciary relation thereby established.
A Director shall be at liberty to vote in respect of any contract or transaction
in which he is so interested as aforesaid; provided, however, that the nature of
the interest of any Director in any such contract or transaction shall be
disclosed by him at or prior to its consideration and any vote thereon.
22.8 A general notice that a Director is a member of any specified
firm or company and is to be regarded as interested in any transaction with such
firm or company shall be sufficient disclosure under Section 22.7 and after such
general notice it shall not be necessary to give special notice relating to any
particular transaction.
XXIII. POWERS AND DUTIES OF DIRECTORS
23.1 The business and affairs of the Company shall be managed by the
Board of Directors who may exercise all such powers of the Company and do all
such lawful acts and things as are not, from time to time by the Statute or by
these Articles required to be exercised or done by the Company in general
meeting.
23.2 The Board of Directors may from time to time and at any time by
powers of attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Board of Directors, to be the attorney
or attorneys of the Company for such purpose and with such powers, authorities
and discretions (not exceeding those vested in or exercisable by the Board of
Directors under these Articles) and
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29
for such period and subject to such conditions as it may think fit, and any such
powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorneys as the Board of Directors
may deem fit and may also authorize any such attorney to delegate all or any of
the powers, authorities and discretions vested in him.
23.3 All cheques, promissory notes, drafts, bills of exchange and
other negotiable instruments and all receipts for monies paid to the Company
shall be signed, drawn, accepted, endorsed or otherwise executed as the case may
be by such officer or officers or such other person or persons as the Board of
Directors shall from time to time designate.
23.4 The Board of Directors shall cause Minutes to be made for the
purpose of recording the proceedings at all meetings of the Company and the
Directors and of Committees of the Board of Directors.
23.5 The Board of Directors on behalf of the Company may direct the
payment of a gratuity or pension or allowance on retirement to any Director who
has held any other salaried office or place of profit with the Company or to his
widow or dependents and may make contributions to any fund and pay premiums for
the purchase or provision of any such gratuity, pension or allowance.
23.6 The Board of Directors may exercise all the powers of the
Company to borrow money and to mortgage or charge its undertaking, property and
uncalled capital or any part thereof and to issue debentures, debenture stock
and other securities whether outright or as security for any debt, liability or
obligation of the Company or of any third party.
23.7 The Board of Directors may authorize any officer, officers,
agent or agents to enter into any contract or agreement of any nature
whatsoever, including, without limitation, any contract, deed, bond, mortgage,
guaranty, deed of trust, security agreement, pledge agreement, act of pledge,
collateral mortgage, collateral chattel mortgage or any other document or
instrument of any nature whatsoever, and to execute and deliver any such
contract, agreement, document or other instrument of any nature whatsoever for
and in the name of and on behalf of the Company, and such authority may be
general or confined to specific instances.
XXIV. COMMITTEES
24.1 The Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more Directors. Except as limited by the Statute, the Memorandum,
these Articles of Association or the resolution establishing such committee,
each committee shall have and may exercise all of the authority
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30
of the Board of Directors as the Board of Directors may determine and specify in
the respective resolutions appointing each such committee. A majority of all of
the members of any such committee may elect the Chairman of such committee and
may fix the time and place of its meetings, unless the Board of Directors shall
otherwise provide, and meetings of any committee may be held upon such notice,
or without notice, as shall from time to time be determined by the members of
any such committee. At all meetings of any committee a majority of its members
(or the member, if only one) shall constitute a quorum for the transaction of
business, and the act of a majority of the members present shall be the act of
any such committee, unless otherwise specifically provided by the Statute, the
Memorandum, these Articles or the resolution establishing such committee. The
committees shall keep regular minutes of their proceedings and report the same
to the Board of Directors when required. The Board of Directors shall have
power at any time to change the number, subject as aforesaid, and members of any
such committee, to fill vacancies and to discharge any such committee. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
XXV. PROCEEDINGS OF DIRECTORS
25.1 Except as otherwise provided by these Articles, the Board of
Directors shall meet together for the dispatch of business, convening,
adjourning and otherwise regulating its meetings as it thinks fit. Questions
arising at any meeting shall be decided by a majority of the Directors present
at a meeting at which there is a quorum.
25.2 Regularly scheduled meetings of the Board of Directors may be
held at such time and at such place as shall from time to time be determined by
the Board of Directors. Special meetings of the Board of Directors may be
called by the President of the Company on twenty-four (24) hours' notice to each
Director, either personally, by mail, telefax or by telegram; special meetings
shall be called by the President or Secretary in like manner and on like notice
on the written request of two (2) Directors. Unless otherwise required by the
Statute, the Memorandum, or these Articles, neither the business to be
transacted at, nor the purpose of, any special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting. Attendance
of a Director at any meeting shall constitute a waiver of notice of such
meeting, except when a Director attends for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully
called or convened.
25.3 The quorum necessary for the transaction of the business of the
Board of Directors shall be a majority of the Board.
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25.4 All acts done by any meeting of the Board of Directors or of a
committee of the Board of Directors shall, notwithstanding that it be afterwards
discovered that there was some defect in the appointment of any Director, or
that they or any of them were disqualified, be as valid as if every such person
had been duly appointed and qualified to be a Director.
25.5 Members of the Board of Directors or of any committee thereof
may participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
25.6 A resolution in writing (in one or more counterparts) signed by
all the Directors for the time being or all the members of a committee of
Directors shall be as valid and effectual as if it had been passed at a meeting
of the Board of Directors or committee as the case may be duly convened and
held.
XXVI. VACATION OF OFFICE OF DIRECTOR
26.1 The office of a Director shall be vacated:
(a) If he gives notice in writing to the Company that he resigns the
office of Director;
(b) If he dies;
(c) If he is found to be or becomes of unsound mind; or
(d) If removed pursuant to Section 22.1.
XXVII. CERTAIN BUSINESS COMBINATIONS
27.1 In addition to any approval by Members required by the Statute
or any other law of the Cayman Islands, the approval of the holders of at least
a majority of the outstanding shares entitled to vote, voting together as a
single class, at a meeting called for such purpose, shall be required in order
for the Company:
(i) to merge, consolidate or amalgamate with another company;
(ii) to reorganize or reconstruct itself pursuant to a plan
sanctioned by the Cayman Islands courts; or
(iii) to sell, lease or exchange all or substantially all of the
assets of the Company;
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32
provided that the foregoing approval by Members shall not apply to any such
transaction of the Company with any entity which the Company, directly or
indirectly, controls, as defined in Rule 405 under the Securities Act of 1933,
as amended from time to time, of the United States of America.
XXVIII. SEAL
28.1 The Company may have a seal, and the seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Any officer of the Company will have the authority to affix the seal to any
document requiring it.
XXIX. OFFICERS
29.1 The officers of the Company shall be appointed by the Board of
Directors and may include a Chairman of the Board, a Chief Executive Officer, a
President, Senior and Executive Vice Presidents and Vice Presidents, a
Secretary, a Treasurer and one or more Assistant Secretaries and Assistant
Treasurers. The Board of Directors may also choose such other officers and
agents as it shall deem necessary or desirable and such persons shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined by the Board of Directors from time to time. Two or more
offices may be held by the same person. None of the officers need be a Director
or a Member of the Company. The compensation of all officers and agents of the
Company shall be fixed from time to time by the Board of Directors or pursuant
to its direction. No officer shall be prevented from receiving such
compensation by reason of his also being a Director. The officers of the
Company shall hold office until their successors are elected or appointed and
qualified, or until their earlier death, resignation, retirement,
disqualification or removal. Any officer or agent elected or appointed by the
Board of Directors may be removed at any time with or without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the Company shall be served thereby, but any
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the Company. Any such resignation shall take effect at the date of
the receipt of such notice or at such other time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Election or appointment of an officer or agent
shall not of itself create contract rights. Any vacancy occurring in any office
of the Company may be filled by the Board of Directors for the unexpired portion
of the term.
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33
29.2 A provision of the Statute or these Articles requiring or
authorizing a thing to be done by a Director and an officer shall not be
satisfied by its being done by the one person acting in the dual capacity of
Director and officer.
XXX. DIVIDENDS AND RESERVES
30.1 Subject to the Statute, the Board of Directors may from time to
time declare dividends on shares of the Company outstanding and authorize
payment of the same out of the profits of the Company (realized or unrealized),
share premium account, or any other account permitted by the Statute, and may
from time to time pay to the Members such interim dividends, as appears to the
Board of Directors to be permitted by the Statute.
30.2 The Board of Directors may deduct from any dividend payable to
any Member all sums of money (if any) presently payable by him to the Company on
account of calls or otherwise.
30.3 The Board of Directors may declare that any dividend be paid
wholly or partly by the distribution of shares or other securities of the
Company and/or specific assets and in particular of paid up shares, debentures,
or debenture stock of any other company or in any one or more of such ways and
where any difficulty arises in regard to such distribution, the Board of
Directors may settle the same as it deems expedient and in particular may issue
fractional shares and fix the value for distribution of such specific assets or
any part thereof and may determine that cash payments shall be made to any
Members upon the footing of the value so fixed in order to adjust the rights of
all Members and may vest any such specific assets in trustees as may seem
expedient to the Board of Directors.
30.4 The Board of Directors of the Company may declare and pay stock
dividends to the extent permitted by the law (without the need for Member
approval), provided that (a) stock dividends of Class B Ordinary Shares or Class
C Ordinary Shares may be declared only on the Class B Ordinary Shares or Class C
Ordinary Shares, respectively, and only if the Board of Directors simultaneously
declares a stock dividend on each Class A Ordinary Share of a number of Class A
Ordinary Shares equal to the number of Class B Ordinary Shares and Class C
Ordinary Shares being so issued on each Class B Ordinary Shares and Class C
Ordinary Share and (b) except as provided in Section 4.2, stock dividends of
Class A Ordinary Shares may be declared only if the Board simultaneously
declares either (i) a stock dividend on each Class B Ordinary Shares or Class C
Ordinary Share of a number of Class B Ordinary Shares or Class C Ordinary Shares
equal to the number of Class A Ordinary Shares then being issued on each Class A
Ordinary Share or (ii) a stock dividend of an equal number of Class A Ordinary
Shares on each Class A Ordinary Share and Class B Ordinary Shares or Class C
Ordinary Share. No Class A Ordinary
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Shares, Class B Ordinary Shares or Class C Ordinary Shares may be issued as
stock dividends unless the effect would be to result in an Equity Unit
containing a whole number of Class B Ordinary Shares and one-tenth of one share
of TEC Preferred Stock. All Class B Ordinary Shares issued in connection with
any stock dividend will be thereafter included in Equity Units.
30.5 No dividend shall bear interest against the Company unless
expressly authorized by the Board of Directors.
XXXI. CAPITALIZATION
31.1 The Company may upon the recommendation of the Board of
Directors capitalise any sum standing to the credit of any of the Company's
reserve accounts (including share premium account and capital redemption reserve
fund) or any sum standing to the credit of profit and loss account or otherwise
available for distribution and to appropriate such sum to Members in the
proportions in which such sum would have been divisible amongst them had the
same been a distribution of profits by way of dividend and to apply such sum on
their behalf in paying up in full unissued shares (not being redeemable shares)
for allotment and distribution credited as fully paid up to and amongst them in
the proportion aforesaid. In such event the Board of Directors shall do all
acts and things required to give effect to such capitalization, with full power
to the Board of Directors to make such provisions as it thinks fit for the case
of shares becoming distributable in fractions (including provisions whereby the
benefit of fractional entitlements accrue to the Company rather than to the
Members concerned). The Board of Directors may authorize any person to enter on
behalf of all of the Members interested into an agreement with the Company
providing for such capitalization and matters incidental thereto and any
agreement made under such authority shall be effective and binding on all
concerned.
XXXII. AUDIT
32.1 The accounts relating to the Company's affairs shall be audited
in such manner, if at all, as may be determined from time to time by the Board
of Directors.
XXXIII. NOTICES
33.1 Notices shall be in writing and may be given by the Company to
any Member either personally or by sending it by post, air courier, cable,
facsimile transmission or telex to him or to his address as shown in the
register of Members, such notice, if mailed, to be forwarded airmail where
practicable. Any such notice shall be deemed to have been effected on the date
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35
the letter containing the same is posted as aforesaid, or sent by air courier,
cable, facsimile transmission or telex.
33.2 A notice may be given by the Company to the joint holders of
record of a share by giving the notice to the joining holder first named on the
register of Members in respect of the share.
33.3 A notice may be given by the Company to the person or persons
which the Company has been advised are entitled to a share or shares in
consequence of the death or bankruptcy of a Member by sending it through the
post as aforesaid in a prepaid letter addressed to them by name, or by the title
of representatives of the deceased, or trustee of the bankruptcy, or by any like
description at the address supplied for that purpose by the persons claiming to
be so entitled, or at the option of the Company by giving the notice in any
manner in which the same might have been given if the death or bankruptcy had
not occurred.
33.4 Notice of every general meeting shall be given in any manner
hereinbefore authorized to:
(a) every holder of voting shares as shown in the register of Members
as of the record date for such meeting except that in the case of joint
holder the notice shall be sufficient if given to the joint holder first
named in the register of Members;
(b) every person upon whom the ownership of a voting share devolves
by reason of his being a legal personal representative or a trustee in
bankruptcy of a holder of voting shares of record where such holder but for
his death or bankruptcy would be entitled to receive notice of the meeting;
and
except as otherwise required by law or these Articles, no other person shall be
entitled to receive notice of general meetings.
XXXIV. INDEMNITY AND LIMITATION OF LIABILITY
34.1 (a) The Company shall indemnify, to the full extent now or
hereafter permitted by law, any person (including his heirs, executors and
administrators) who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, an
action by or in the right of the Company), by reason of his acting as, or having
in the past acted as, a Director, officer, employee or agent of, or his acting
in any other capacity for or on behalf of, the Company, (including his serving
for, on behalf of or at the request of the Company as a Director, officer
employee or agent of another company, partnership, joint venture,
<PAGE>
36
trust or other enterprise, or in a fiduciary or other capacity with respect to
any employee benefit plan maintained by the Company) against any expense
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person (or his heirs, executors and
administrators) in respect thereof. The Company shall advance the expenses of
defending any such action, suit or proceeding (including appeals) in accordance
with and to the full extent now or hereafter permitted by law.
(b) The Board of Directors may, notwithstanding any interest of the
directors in such action, authorize the Company to purchase and maintain
insurance on behalf of any person described in Section 34.1(a), against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the provisions of this
Article XXXIV.
(c) Directors of the Company shall have no personal liability to the
Company or its Members for monetary damages for breach of fiduciary or other
duties as a director, except (i) for any breach of a director's duty of loyalty
to the Company or its Members, or (ii) for act or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
any transaction from which a director derived an improper personal benefit.
(d) The provisions of this Article XXXIV shall be applicable to all
actions, claims, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or after
its adoption. The provisions of this Article XXXIV shall be deemed to be a
contract between the Company and each director, officer, employee or agent who
serves in such capacity at any time while this Article and the relevant
provisions of the law, if any, are in effect, and any repeal or modification
thereof shall not affect any rights or obligations then existing with respect to
any state of facts or any action, suit or proceeding then or theretofore
existing, or any action, suit or proceeding thereafter brought or threatened
based in whole or in part on any such state of facts. If any provision of this
Article XXXIV shall be found to be invalid or limited in application by reason
of any law or regulation, it shall not affect any other application of such
provision or the validity of the remaining provisions hereof. The rights of
indemnification and advancement of expenses provided in this Article shall
neither be exclusive of, nor be deemed in limitation of, any rights to which any
such officer, director, employee or agent may otherwise be entitled or permitted
by contract, vote of Members or directors or otherwise, or as a matter of law,
both as to actions in his official capacity and actions in any other capacity
while holding such office, it being the policy of the Company that
indemnification of the specified individuals shall be made to the fullest extent
permitted by law.
<PAGE>
37
XXXV. BOOKS AND RECORDS
35.1 In addition to any rights which may be conferred on Members by
Statute, upon written demand under oath stating the purpose thereof, any Member
may review for any proper purpose, during usual hours for business, the books
and records of the Company, including without limitation, the Register. A
proper purpose shall mean a purpose reasonably related to such person's interest
as a Member.
XXXVI. WINDING UP
36.1 In the event of any dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary, after there shall have been paid
or set aside for payment to the holders of any outstanding shares ranking senior
to the Ordinary Shares as to distribution on liquidation, distribution or
winding up, the full amounts to which they shall be entitled, and subject to
Article IV, the holders of the then outstanding Ordinary Shares shall be
entitled to receive, pro rata according to the number of Ordinary Shares
registered in the names of such Members, any remaining assets of the Company
available for distribution to its Members; provided, if, at such time, the
holder of Ordinary Shares has any outstanding debts, liabilities or engagements
to or with the Company (whether presently payable or not), either alone or
jointly with any other person, whether a Member or not (including, without
limitation, any liability associated with the unpaid purchase price of such
Ordinary Shares), the liquidator appointed to oversee the liquidation of the
Company may deduct from the amount payable in respect of such Ordinary Shares
the aggregate amount of such debts, liabilities and engagements and apply such
amount to any of such holders debts, liabilities or engagements to or with the
Company (whether presently payable or not). The liquidator may distribute, in
kind, to the holders of the Ordinary Shares remaining assets of the Company or
may sell, transfer or otherwise dispose of all or any part of such remaining
assets to any other person, corporation, trust or entity and receive payment
therefor in cash, shares or obligations of such other person, corporation, trust
or entity or any combination thereof, and may sell all or any part of the
consideration so received, and may distribute the consideration received or any
balance or proceeds thereof to holders of the Ordinary Shares. The liquidator
may, with the like sanction, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the contributories as the
liquidator, with the like sanction shall think fit, but so that no Member shall
be compelled to accept any shares or other securities whereon there is any
liability.
XXXVII. DEREGISTRATION
<PAGE>
38
37.1 (a) The Company may by Special Resolution resolve to be
registered by way of continuation in a jurisdiction outside the Cayman
Islands or such other jurisdiction in which it is for the time being
incorporated, registered or existing; and
(b) In furtherance of a resolution adopted pursuant to (a) above
of this Regulation, the Directors may cause an application to be made to
the Registrar of Companies to deregister the Company in the Cayman Islands
or such other jurisdiction in which it is for the time being incorporated,
registered or existing and may cause all such further steps as they
consider appropriate to be taken to effect the transfer by way of
continuation of the Company.
XXXVIII. FISCAL YEAR
38.1 Each Fiscal Year shall commence on such date as may be specified
by the Board of Directors.
XXXIX. AMENDMENTS OF ARTICLES
39.1 Subject to the Statute, except as otherwise provided in these
Articles, the Company may at anytime and from time to time by Special Resolution
alter or amend these Articles in whole or in part.
<PAGE>
EXHIBIT 3.2
-----------
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
FORM OF
MEMORANDUM OF ASSOCIATION
OF
TRITON ENERGY LIMITED
(ADOPTED BY SPECIAL RESOLUTION OF
THE MEMBERS EFFECTIVE _____________, 1996)
1. The name of the company is Triton Energy Limited (the
"Company").
2. The Registered Office of the Company shall be situated at the
offices of Caledonian Bank & Trust Limited, Ground Floor, Caledonian House, Mary
Street, P. 0. Box 1043, George Town, Grand Cayman, Cayman Islands, or at such
other place as the Board of Directors may from time to time determine.
3. The objects for which the Company is established are
unrestricted and the Company shall have full power and authority to carry out
any objective not prohibited by any law as provided by Section 6(4) of the
Companies Act (1995 Revision).
4. Except as prohibited or limited by the Companies Law (1995
Revision), the Company shall have full power and authority to carry out any
object and shall have and be capable of from time to time and at all times
exercising any and all of the powers at any time or from time to time
exercisable by a natural person or body corporate in doing in any part of the
world whether as principal, agent, contractor, or otherwise whatever may be
considered by it necessary or desirable for the attainment of its objects and
whatever else may be considered by
<PAGE>
2
it as incidental or conducive thereto or consequential thereof, including, but
without in any way restricting the generality of the foregoing, the power to
make any alterations or amendments to this Memorandum of Association and the
Articles of Association of the Company considered necessary or convenient in the
manner set out in the Articles of Association of the Company all irrespective of
any question of corporate benefit, and the power to do any of the following acts
or things, viz: to pay all expenses of and incidental to the promotion,
formation and incorporation of the Company; to sell, lease or dispose of any
property of the Company; to draw, make, accept, endorse, discount, execute and
issue promissory notes, debentures, bills of exchange, bills of lading, warrants
and other negotiable or transferable instruments; to lend money or other assets
and to act as guarantors; to borrow or raise money on the security of the
undertaking or on all or any of the assets of the Company including uncalled
capital or without security; to invest monies of the Company; to sell the
undertaking of the Company for cash or any other consideration; to distribute
assets in specie to members of the Company; to carry on any trade or business
and generally to do all acts and things which may be conveniently or profitably
or usefully acquired and dealt with, carried on, executed or done by the
Company.
5. The liability of each member is limited to the amount from time
to time unpaid on such member's shares.
6. The share capital of the Company is U.S. $2,400,000, divided
into 200,000,000 Class A Ordinary Shares, par
<PAGE>
3
value of U.S. $0.01 per share, 10,000,000 Class B Ordinary Shares, par value of
$0.01 per share, 10,000,000 Class C Ordinary Shares, par value of $0.01 per
share, and 20,000,000 other Shares, par value of U.S. $0.01 per share, which may
be issued in series, all of such shares with power for the Company insofar as is
permitted by law, to redeem, call or purchase any of its shares and to increase
or reduce the said capital subject to the provisions of the Companies Law (1995
Revision) and the Articles of Association and to issue any part of its capital,
whether original, redeemed, called or increased with or without any preference,
priority or special privilege or subject to any postponement of rights or to any
conditions or restrictions and so that unless the conditions of issue shall
otherwise expressly declare every issue of shares whether declared to be
ordinary, preference or otherwise shall be subject to the powers hereinabove
contained. In the event that the Board of Directors shall have resolved that
each issued and outstanding Class B Ordinary Share and Class C Ordinary Share
shall be converted into one Class A Ordinary Share pursuant to the Articles of
Association, from and after the effectiveness of such conversion, the share
capital of the Company shall be U.S. $2,200,000, divided into 200,000,000
ordinary shares, par value of $0.01 per share, and 20,000,000 other shares, par
value of U.S. $0.01 per share.
7. The Company may exercise the power contained in Section 223 of
The Companies Law (1995 Revision) to deregister in the Cayman Islands and be
registered by way of continuation in some other jurisdiction.
<PAGE>
4
8. Nothing in the preceding sections shall be deemed to permit the
Company to carry on the business of a Bank or Trust Company without being
licensed in that behalf under the provisions of the Banks & Trust Companies Law
(1995 Revision), or to carry on Insurance Business from within the Cayman
Islands or the business of an Insurance Manager, Agent, Sub-agent or Broker
without being licensed in that behalf under the provisions of the Insurance Law
(1995 Revision), or to carry on the business of Company Management without being
licensed in that behalf under the provisions of the Companies Management Law
(1996 Revision).
9. The Company will not trade in the Cayman Islands with any
person, firm or company except in furtherance of the business of the Company
carried on outside the Cayman Islands; provided that nothing in this section
shall be construed as to prevent the Company effecting and concluding contracts
in the Cayman Islands, and exercising in the Cayman Islands all of its powers
necessary for the carrying on of its business outside the Cayman Islands.
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
TRITON ENERGY LIMITED
TRITON ENERGY CORPORATION
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.
as Depositary
AND
HOLDERS OF RECEIPTS
Form of
Deposit Agreement
Dated as of _______________, 1996
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions.............................. 1
ARTICLE II
Form of Receipts, Deposit of Shares,
Execution and Transfer of Receipts and
Withdrawal of Deposited Securities................... 3
SECTION 2.01. Form and Transferability of Receipts..................3
SECTION 2.02. Deposit of Shares.....................................4
SECTION 2.03. Execution and Delivery of Receipts....................5
SECTION 2.04. Transfer, Combination and Split-up of Receipts........5
SECTION 2.05. Withdrawal of Deposited Securities....................6
SECTION 2.06. Limitations on Execution and Delivery and Transfer of
Receipts and Withdrawal of Deposited Securities....7
SECTION 2.07. Substitution of Receipts..............................8
SECTION 2.08. Cancellation and Destruction of Receipts..............8
ARTICLE III
Certain Obligations of Holders.......................8
SECTION 3.01. Information...........................................8
SECTION 3.02. Liability of Holder for Taxes.........................8
SECTION 3.03. Warranties on Deposit of Shares.......................9
ARTICLE IV
Deposited Securities............................9
SECTION 4.01. Cash Distributions....................................9
SECTION 4.02. Distributions of Class B Shares..................... 10
SECTION 4.03. Rights Distributions................................ 10
SECTION 4.04. Other Distributions................................. 11
SECTION 4.05. Fixing of Record Date............................... 12
SECTION 4.06. Voting of Deposited Securities...................... 13
i
<PAGE>
Page
----
SECTION 4.07. Changes Affecting Deposited Securities.............. 13
SECTION 4.08. Purchase of Shares by Triton
Cayman or Triton Delaware........................ 14
SECTION 4.09. Exchange of Receipts................................ 16
SECTION 4.10. Withholding......................................... 16
ARTICLE V
The Depositary and the Issuers..................... 17
SECTION 5.01. Maintenance of Depositary's
Office and Register; Certain
Agents of the Depositary;
Lists of Holders................................. 17
(a) Depositary's Office...................................... 17
(b) The Register............................................. 17
(c) Receipt Registrars and Co-Transfer Agents................ 17
(d) Lists of Holders......................................... 18
(e) Depositary's Agent....................................... 18
SECTION 5.02. Prevention or Delay in Performance.................. 18
SECTION 5.03. Obligations Limited................................. 19
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary............................. 19
SECTION 5.05. Notices and Reports to Holders...................... 20
SECTION 5.06. Issuance of Additional Shares, etc.................. 20
SECTION 5.07. Indemnification..................................... 21
SECTION 5.08. Charges of Depositary............................... 22
SECTION 5.09. Statutory Reports................................... 22
ARTICLE VI
Amendment and Termination.......................... 22
SECTION 6.01. Amendment........................................... 22
SECTION 6.02. Termination......................................... 23
ARTICLE VII
Miscellaneous............................. 23
SECTION 7.01. Counterparts........................................ 23
SECTION 7.02. No Third Party Beneficiaries........................ 23
SECTION 7.03. Severability........................................ 23
SECTION 7.04. Holders Parties; Binding Effect..................... 24
SECTION 7.05. Notices............................................. 24
(a) To Triton Cayman........................................... 24
(b) To Triton Delaware....................................... 24
(c) To the Depositary........................................ 24
ii
<PAGE>
(d) To the Holders........................................... 24
(e) General.................................................. 24
SECTION 7.06. Governing Law....................................... 25
EXHIBIT
Exhibit A Depositary Receipt
iii
<PAGE>
FORM OF
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ___________, 1996 among TRITON ENERGY
LIMITED, a Cayman Islands company (and its successors, "Triton Cayman"), TRITON
ENERGY CORPORATION, a Delaware corporation (and its successors, "Triton
Delaware" and, together with Triton Cayman, the "Issuers"), CHEMICAL MELLON
SHAREHOLDER SERVICES, L.L.C., a New York corporation, as depositary (and any
successor depositary hereunder, the "Depositary"), and all holders from time to
time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Issuers desire to provide for the deposit of Shares
from time to time with the Depositary and for the execution and delivery of
Receipts evidencing the Depositary Shares representing the Shares as deposited;
and
WHEREAS, the Receipts are to be substantially in the form of Exhibit
A annexed hereto;
NOW THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I
Definitions
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit Agreement and
the Receipts:
"ARTICLES OF ASSOCIATION" means the Articles of Association of
Triton Cayman as from time to time amended.
"CERTIFICATE OF DESIGNATION" shall mean the Certificate of
Designation, as amended from time to time, establishing and setting forth the
rights, preferences, privileges and limitations of the Triton Delaware Preferred
Stock.
"CLASS A SHARES" shall mean Class A Ordinary Shares, par value
$.01 per share, of Triton Cayman.
"CLASS B SHARES" shall mean Class B Ordinary Shares, par value
$.01 per share, of Triton Cayman.
<PAGE>
2
"COMMISSION" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency.
"DEPOSIT AGREEMENT" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
"DEPOSITARY'S OFFICE" shall mean the office of the Depositary for
the administration of depositary receipts.
"DEPOSITARY SHARES" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests in the
Deposited Securities granted to the holders of Receipts pursuant to the terms
and conditions of this Deposit Agreement. Each Depositary Share shall represent
the right to receive one Share unless there shall occur (i) a distribution upon
Class B Shares referred to in Section 4.02 or (ii) a change in Deposited
Securities referred to in Section 4.07, in which case each Depositary Share
shall represent the right to receive the Deposited Securities specified in the
applicable Section.
"DEPOSITED SECURITIES" as of any time shall mean all Shares at
such time deposited under this Deposit Agreement and any and all Class B Shares,
securities, property and cash received at any time by the Depositary in respect
or in lieu of such deposited Shares, Class B Shares, securities, property and
cash at such time held hereunder.
"HOLDER" shall mean the person or persons in whose name a Receipt
is registered on the register maintained by the Depositary for such purpose.
"RECEIPTS" shall mean the Depositary Receipts executed and
delivered hereunder, in substantially the form of Exhibit A hereto, evidencing
Depositary Shares.
"SECURITIES ACT OF 1933" shall mean the United States Securities
Act of 1933, as from time to time amended. The term "SECURITIES EXCHANGE ACT
of 1934" shall mean the United States Securities Exchange Act of 1934, as from
time to time amended.
"SHARES" shall mean units (which shall be paired) or rights to
receive units, each consisting of one Class B Share (as adjusted from time to
time for distributions upon Class B Shares referred to in Section 4.02 or
changes in Class B Shares referred to in Section 4.07) and one-tenth of one
share of Triton Delaware Preferred Stock (except as otherwise provided in
Section 4.07).
"THE COMPANIES LAW" means the Companies Law (1995 Revision) as
amended from time to time.
<PAGE>
3
"TRITON DELAWARE PREFERRED STOCK" shall mean Participating
Preferred Stock, par value $.01 per share, of Triton Delaware.
ARTICLE II
Form of Receipts, Deposit of Shares,
Execution and Transfer of Receipts and
Withdrawal of Deposited Securities
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS. (a)FORM.
Receipts shall be engraved or printed or lithographed on steel-engraved borders
and underlying tint and shall be substantially in the form set forth in Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of Triton Cayman or Triton Delaware shall
execute and deliver temporary Receipts that are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, Triton Cayman, Triton Delaware and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the first paragraph of Section
2.03, without charge to the holder. Upon surrender for cancellation of any one
or more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Shares as
represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the expense of the Issuers and without any charge to the holder
thereof. Until so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Deposit Agreement, and with respect to
the Deposited Securities, as definitive Receipts.
Receipts may be issued in denominations of any number of Depositary
Shares. Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; PROVIDED that such signature may
be a facsimile if a Receipt registrar shall have been appointed pursuant to
Section 5.01 and such Receipts are countersigned by the manual signature of a
duly authorized officer of the Receipt registrar or any co-registrar. Unless so
executed, no Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose. The Depositary shall
maintain a register in which each Receipt so executed and
<PAGE>
4
delivered as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the facsimile signature of anyone who was at any
time a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such Receipts. The Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with this Deposit Agreement as may be required by the Depositary in
respect of its obligations hereunder or as may be required to comply with any
applicable law or regulations or with the rules and regulations of any
securities exchange upon which Receipts may be traded or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
(b) TRANSFERABILITY. Title to a Receipt (and to the Deposited
Securities represented by the Depositary Shares evidenced thereby), when
properly endorsed or accompanied by properly executed instruments of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; PROVIDED that until a Receipt shall be transferred on
the books of the Depositary as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the Holder thereof at such
time as the absolute owner thereof for the purpose of determining the person
entitled to any distribution or notice and for all other purposes.
SECTION 2.02. DEPOSIT OF SHARES. (a) DEPOSIT WITH DEPOSITARY.
Shares may be deposited under this Deposit Agreement by delivery thereof to the
Depositary, properly endorsed or accompanied by a duly executed instrument or
instruments of transfer in form satisfactory to the Depositary, together with
any other documents and payments required under this Deposit Agreement, and a
written order directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Shares.
(b) ASSIGNMENT AND PROXY. If required by the Depositary, Shares
presented for deposit at any time, whether or not any register of shareholders
of Triton Cayman or Triton Delaware are closed, shall also be accompanied by (1)
an agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary or its nominee of
any dividend on the Class B Shares or Triton Delaware Preferred Stock which are
a part of such Shares or right to subscribe for additional Class B Shares or to
receive other property which any person in whose name the Shares are or have
been recorded may thereafter receive upon or in respect of the Class B Shares or
Triton Delaware Preferred Stock which are a part of such deposited Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be
<PAGE>
5
satisfactory to the Depositary, and (2) if the Shares are registered in the name
of the person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Depositary to vote the Class B Shares or Triton Delaware Preferred
Stock which are a part of such deposited Shares for any and all purposes until
such Class B Shares and Triton Delaware Preferred Stock are registered in the
name of the Depositary or its nominee.
(c) REGISTRATION AND HOLDING. Upon each delivery to the
Depositary of a certificate or certificates for Shares (or other Deposited
Securities pursuant to Sections 4.02 through 4.04 and Section 4.07) in
registered form to be deposited hereunder, together with any other documents and
payments required under this Deposit Agreement, the Depositary shall, as soon as
practicable, present such certificate or certificates for registration of
transfer of the Class B Shares and Triton Delaware Preferred Stock which are a
part of the Shares, or other Deposited Securities, being deposited in the name
of the Depositary or its nominee at the cost and expense of the person making
such deposit (or for whose benefit such deposit is made) and shall obtain
evidence satisfactory to it of such registration. Deposited Securities shall be
held by the Depositary for the account and to the order of the Depositary in an
account to be established by the Depositary at the Depositary's Office.
SECTION 2.03. EXECUTION AND DELIVERY OF RECEIPTS. After the
deposit of any Shares pursuant to Section 2.02, the Depositary, subject to this
Deposit Agreement, shall execute and deliver at the Depositary's Office to or
upon the order of the person or persons named in the written order delivered to
the Depositary, a Receipt or Receipts, registered in the name or names requested
by such person or persons, and evidencing in the aggregate the number of
Depositary Shares to which such person or persons are entitled. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office,
except that, at the request, risk and expense of any person requesting such
delivery, such delivery may be made at such other place as may be designated by
such person. In each case, delivery will be made only upon payment by such
person to the Depositary of all taxes and other governmental charges and any
fees payable in connection with such deposit and the transfer of the Shares.
The Issuers shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may reasonably request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.04. TRANSFER, COMBINATION AND SPLIT-UP OF RECEIPTS.
The Depositary, subject to this Deposit Agreement, shall register transfers of
Receipts in the Receipt register from time to time upon any surrender of a
Receipt at any of its designated transfer offices by the Holder in person or by
duly
<PAGE>
6
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by applicable law. Thereupon the
Depositary shall execute a new Receipt or Receipts and deliver the same to or
upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipts surrendered. The
Depositary, subject to this Deposit Agreement, shall upon surrender at any of
its designated transfer offices of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of Depositary Shares
requested, evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. WITHDRAWAL OF DEPOSITED SECURITIES. Until such
time as the Issuers otherwise notify the Depositary, the Deposited Securities
represented by Depositary Shares evidenced by a Receipt may not be withdrawn.
If at any time the Issuers determine to permit such withdrawal, upon surrender
of a Receipt (properly endorsed in blank or accompanied by a proper instrument
or instruments of transfer in blank, to the extent required by the Depositary),
at the Depositary's Office or at such other offices as it may designate and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the Depositary Shares evidenced by such Receipt to be
withdrawn and delivered to or upon the written order of the person or persons
designated in such order, the Depositary shall deliver without unreasonable
delay, subject to this Deposit Agreement and to the provisions of or governing
Deposited Securities, to or upon the written order of the person or persons
designated in such order, the Deposited Securities at the time represented by
the Depositary Shares evidenced by such Receipt, and the Depositary shall so
deliver such Deposited Securities, at the office of the Depositary, except that
the Depositary may, in its discretion, at the request, risk and expense of the
Holder make delivery of such Deposited Securities without unreasonable delay to
such person or persons at any other place specified by the Holder in such order.
To the extent that fractional interests in Shares or other Deposited Securities
are not available for delivery, the Depositary may at its option deliver a
Receipt or cash proceeds thereof in lieu of any such fractional interest to
which any person would be entitled pursuant to the preceding sentence.
Directions shall be given by letter or, at the request, risk and expense of the
Holder, by cable, telex or facsimile transmission. Delivery of Deposited
Securities may be made by the delivery of certificates, to the extent such
Deposited Securities may be represented by certificates, which, if required by
law, shall be properly endorsed or accompanied by properly executed instruments
of transfer, and if such certificates may be so registered, registered in the
name of such Holder, or as ordered by such Holder or properly endorsed or
accompanied by proper instruments of transfer.
<PAGE>
7
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY AND TRANSFER
OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES. As a condition precedent
to the execution and delivery, registration, registration of transfer, split-up
or combination of any Receipt, the delivery of any distribution thereon
(including any distributions on Class B Shares and Triton Delaware Preferred
Stock) or the withdrawal of any Deposited Securities, the Depositary or the
Issuers may require of the Holder, the presenter of the Receipt or the depositor
of Shares: (a) payment of a sum sufficient to pay or reimburse it for payment
of (i) any stock transfer or other tax or other governmental charge with respect
thereto and (ii) any transfer or registration fees for the registration of
transfers of the Class B Shares or Triton Delaware Preferred Stock which are a
part of the Shares or other Deposited Securities upon any applicable register;
(b) the production of proof satisfactory to it as to the identity and
genuineness of any signature and as to any other matter contemplated by Section
3.01; and, (c) compliance with such reasonable regulations, if any, as the
Depositary may establish consistent with the provisions of this Deposit
Agreement. The delivery of Receipts against deposits of Shares may be
suspended, deposits of Shares may be refused, or the registration of transfer of
Receipts, their split-up or combination or the withdrawal of Deposited
Securities may be suspended, in particular instances or generally, when the
Receipt register or any register for the Class B Shares or the Triton Delaware
Preferred Stock which are a part of the Shares or other Deposited Securities is
closed, or any time or from time to time when any such action is deemed
necessary or advisable by the Depositary or either Issuer for any reason,
including without limitation any requirement of law or of any government or
governmental body or commission, any provision of this Deposit Agreement or the
provisions of or governing Deposited Securities, any meeting of holders of the
Class B Shares or the Triton Delaware Preferred Stock which are a part of the
Shares or any payment of dividends. The Depositary will not issue Receipts for
rights to receive Shares (except for evidence of rights to receive Shares from
Triton Cayman, or any registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares) unless
such rights are fully collateralized with cash or United States government
securities. Such collateral, but not the earnings thereon, shall be held for
the benefit of the Holders. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered pursuant to the provisions of the Securities Act of
1933, unless a registration statement under the Securities Act of 1933 is in
effect as to such Shares. The Depositary will comply with written instructions
of Triton Cayman not to accept for deposit hereunder any Shares identified in
such instructions at such times and under such circumstances as may reasonably
be specified in such instructions in order to facilitate Triton Cayman's
compliance with the securities laws in the United States.
<PAGE>
8
SECTION 2.07. SUBSTITUTION OF RECEIPTS. In case any Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and
deliver a new Receipt of like tenor, in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or in lieu of and in substitution
for such destroyed or lost or stolen Receipt, unless the Depositary has notice
that such Receipt has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary (a) a request for such execution and delivery
and (b) a sufficient indemnity bond and satisfying any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction or loss or theft of such
Receipt, the authenticity thereof and the Holder's ownership thereof.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF RECEIPTS. All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so cancelled.
ARTICLE III
Certain Obligations of Holders
SECTION 3.01. INFORMATION. Any person presenting Shares for
deposit or any Holder of a Receipt may be required from time to time to file
with the Depositary such proof as to citizenship, residence, exchange control
approval, legal or beneficial ownership of Receipts, Deposited Securities or
other securities, compliance with all applicable laws and regulations, all
applicable provisions of or governing Deposited Securities, and the terms of
this Deposit Agreement, or other information, and to execute and deliver to the
Depositary such certificates, including such representations and warranties, as
the Depositary may deem necessary or proper or as either Issuer may require by
written request to the Depositary. The Depositary may withhold the delivery or
registration of transfer or purchase of any Receipt or any distribution on or
withdrawal of any Deposited Securities represented by the Depositary Shares
evidenced by such Receipt until the foregoing is accomplished to such Issuer's
and the Depositary's satisfaction.
SECTION 3.02. LIABILITY OF HOLDER FOR TAXES. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to any Receipt or any Class B Shares or Triton Delaware Preferred Stock
which are a part of the Shares or any other Deposited Securities represented by
the Depositary Shares evidenced by such Receipt, such tax or other governmental
charge shall be payable by the Holder of such Receipt, who shall pay the amount
thereof to the Depositary. The Depositary may refuse to effect registration of
transfer of such Receipt or any split-up or combination thereof or any
withdrawal of such Deposited Securities until such payment is made, and may
<PAGE>
9
withhold or deduct from any distributions on the Class B Shares or Triton
Delaware Preferred Stock which are a part of such Shares or such Deposited
Securities or may sell for the account of the Holder thereof any part or all of
such Deposited Securities (after attempting by reasonable means to notify such
Holder prior to such sale), and may apply such cash or the proceeds of any such
sale in payment of such tax or other governmental charge, the Holder of such
Receipt remaining liable for any deficiency. The Depositary shall act as the
withholding agent for any payments, distributions and exchanges made with
respect to the Deposited Securities. The Depositary shall be responsible with
respect to the Deposited Securities for the timely (i) collection and deposit of
any required withholding or backup withholding tax and (ii) filing of any
information returns or other documents with federal (and other applicable)
taxing authorities. In the event the Depositary is required to pay any such
amounts, the Issuers shall reimburse the Depositary for payment thereof upon the
request of the Depositary and the Depositary shall, upon the Issuers' request
and as instructed by the Issuers, pursue its rights against such holder at the
Issuers' expense.
SECTION 3.03. WARRANTIES ON DEPOSIT OF SHARES. Every person
depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that the Class B Shares and Triton Delaware Preferred
Stock which are a part of such Shares and each certificate therefor are validly
issued and outstanding, fully paid, nonassessable and free of preemptive rights,
and that the person making such deposit is duly authorized so to do. Such
representations and warranties shall survive the deposit of Shares and the
execution and delivery of Receipts therefor.
ARTICLE IV
Deposited Securities
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution (other than a cash
distribution on a purchase of the Shares pursuant to Section 4.08) upon the
Class B Shares or Triton Delaware Preferred Stock which are a part of any Shares
or any other Deposited Securities, the Depositary shall, and after fixing a
record date in respect thereof pursuant to Section 4.05, subject to this Deposit
Agreement, distribute the amount thus received, by checks drawn on a bank in The
City of New York, to the Holders on such record date of Receipts evidencing
Depositary Shares representing such Deposited Securities, in proportion to the
number of Depositary Shares representing such Deposited Securities held by each
of them respectively; PROVIDED that the Depositary shall make appropriate
adjustments in the amounts so distributed in respect of (a) any of such
Deposited Securities being not entitled, by reason of its date of issuance or
<PAGE>
10
otherwise, to receive all or any portion of such distribution or (b) any amounts
required to be withheld by either of the Issuers or the Depositary from any such
distribution on account of taxes. Each such distribution shall be accompanied
or preceded by a notice from the Depositary to each Holder specifying the
portion of such dividend or distribution consisting of a dividend or
distribution on Class B Shares and the portion of such dividend or distribution
consisting of a dividend or distribution on Triton Delaware Preferred Stock.
The Depositary shall distribute only such amount as can be distributed without
distributing to any Holder a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OF CLASS B SHARES. If any
distribution upon any Class B Shares which are a part of the Shares consists of
a dividend in, or free distribution (through capitalization of profits or
otherwise) of, Class B Shares, each Depositary Share shall thenceforth also
represent its proportionate interest in the additional Class B Shares so
distributed and each Share shall thereupon include its proportionate interest in
such additional Class B Shares. Triton Cayman agrees that it will take all
necessary action, and comply in all material respects with all applicable United
States and Cayman Islands laws and regulations, in order to permit any such
distribution to be made to the Holders, including, without limitation, causing,
if necessary, a registration statement under the Securities Act of 1933 covering
such offering to be declared effective and to remain in effect; PROVIDED that
if the aggregate fair market value as determined by Triton Cayman of the Class B
Shares to be issued to the Depositary on behalf of the Holders is less than
$5,000,000, (i) Triton Cayman will not be required to so comply or take such
action and (ii) the Depositary (after consultation with Triton Cayman) shall, in
lieu making such rights available to the Holder, sell or otherwise dispose of
such Class B Shares and distribute the net proceeds as in the case of a
distribution received in cash pursuant to Section 4.01.
SECTION 4.03. RIGHTS DISTRIBUTIONS. If Triton Cayman shall offer
or cause to be offered to the holders of any of its securities constituting a
part of the Deposited Securities any rights to subscribe for or acquire
additional Class A Shares or any other securities of Triton Cayman or any other
rights of any nature which it is required to offer or cause to be offered to the
holders of such securities pursuant to the Articles of Association or the
Companies Act, the Depositary shall distribute the warrants or other instruments
representing such rights in such form as it may determine (after consultation
with Triton Cayman) to the Holders of Receipts evidencing Depositary Shares
representing Deposited Securities, on a record date fixed pursuant to Section
4.05 in proportion to the number of Depositary Shares representing Deposited
Securities held by each
<PAGE>
11
of them respectively, or employ such other method (after consultation with
Triton Cayman) as it may deem feasible in order to facilitate the exercise, sale
or transfer of such rights by such Holders. Triton Cayman agrees that it will
take all necessary actions, and comply in all material respects with all
applicable United States and Cayman Islands laws and regulations, in order to
permit such rights to be offered to the Holders, including without limitation,
causing a registration statement under the Securities Act of 1933 covering such
offering to be declared effective and remain in effect; PROVIDED that if the
aggregate fair market value as determined by Triton Cayman of the Class A Shares
or any other securities with respect to which such rights are issued to the
Depositary on behalf of the Holders is less than $5,000,000, (i) Triton Cayman
will not be required to so comply or take such action and (ii) the Depositary
(after consultation with Triton Cayman) shall, in lieu of making such rights
available to the Holders, sell or otherwise dispose of such rights and
distribute the net proceeds thereof as in the case of a distribution received in
cash pursuant to Section 4.01.
Notwithstanding the foregoing, if any rights represented by such
warrants or such other instruments are not exercised and appear to be about to
lapse, the Depositary in its sole discretion may sell such rights or such
warrants or other instruments at public or private sale, at such place or places
and upon such terms as it may deem proper, and may allocate the proceeds of such
sales for the account of the Holders otherwise entitled to such rights, warrants
or other instruments, upon an averaged or other practicable basis without regard
to any distinctions among such Holders because of exchange restrictions, or the
date of delivery of any Receipt or Receipts, or otherwise, and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.01.
SECTION 4.04. OTHER DISTRIBUTIONS. If Triton Cayman makes a
distribution of securities or other property (other than cash, Class B Shares or
a distribution of rights subject to Section 4.03) to the holders of any of its
securities constituting a part of the Deposited Securities which it is required
to offer or cause to be offered to the holders of such securities by the
Articles of Association or the Companies Act, the Depositary shall cause the
securities or property so distributable to be distributed to the Holders of
Receipts evidencing Depositary Shares representing Deposited Securities on a
record date fixed pursuant to Section 4.05, in proportion to the number of
Depositary Shares representing Deposited Securities held by each of them
respectively, in any manner that the Depositary may (after consultation with
Triton Cayman) deem equitable and practicable for accomplishing such
distribution, including, in the case of securities, with the consent of Triton
Cayman, depositing such securities in a depositary share facility for such
securities and distributing to the Holders depositary shares representing the
securities so deposited; PROVIDED that
<PAGE>
12
if, in the case of a distribution (other than a distribution in respect of
Deposited Securities of securities having an aggregate fair market value as
determined by Triton Cayman of $5,000,000 or more), in the opinion of the
Depositary (after consultation with Triton Cayman) such distribution cannot be
made proportionately among the Holders entitled thereto, or if for any other
reason (including any tax withholding requirement) the Depositary deems such
distribution not to be feasible, the Depositary may (after consultation with
Triton Cayman) adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
and the distribution by the Depositary to the Holders of the net proceeds of any
such sale as in the case of a distribution received in cash pursuant to Section
4.01.
Triton Cayman agrees that it will take all necessary action, and
comply in all material respects with all applicable United States and Cayman
Islands laws and regulations, in order to permit any such distribution to be
made to the Holders, including without limitation, causing, if necessary, a
registration statement under the Securities Act of 1933 covering such offering
to be declared effective and to remain in effect (other than a distribution in
respect of Deposited Securities of securities having an aggregate fair market
value as determined by Triton Cayman of $5,000,000 or less). Notwithstanding
the foregoing, in lieu of distributing fractions of such securities, the
Depositary may sell that number of such securities represented by the aggregate
of such fractions and distribute the net proceeds of such sale as in the case of
a distribution received in cash pursuant to Section 4.01.
No such distribution shall alter the composition of a Share.
SECTION 4.05. FIXING OF RECORD DATE. Whenever any distribution
is being made upon the Class B Shares or Triton Delaware Preferred Stock which
are a part of the Shares or any other Deposited Securities or any meeting of
holders of such Class B Shares, Triton Delaware Preferred Stock or other
Deposited Securities is being held or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date for the determination of the Holders of Receipts evidencing
Depositary Shares representing Deposited Securities who shall be entitled to
receive such distribution or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting, to receive
such notice or solicitation or to act in respect of such other matter. Subject
to this Deposit Agreement, only such Holders at the close of business on such
record date shall be entitled to receive any such distribution or proceeds, to
give such voting instructions, to receive such notice or solicitation or to act
in respect of any such other
<PAGE>
13
matter. Whenever a distribution (whether of cash, rights or otherwise) is made
on the Class B Shares or Triton Delaware Preferred Stock which are part of the
Shares or any other Deposited Securities, and a record date is fixed by Triton
Cayman or Triton Delaware for the purpose of determining the persons entitled to
receive such distribution or proceeds, to give such voting instructions, to
receive such notice or solicitation or to act in respect of any such other
matter, then unless Triton Cayman or Triton Delaware, as the case may be,
otherwise agrees, the Depositary shall choose the same record date.
SECTION 4.06. VOTING OF DEPOSITED SECURITIES. As soon as
practicable after receipt of notice of any meeting or solicitation of consents
or proxies of holders of the Class B Shares or Triton Delaware Preferred Stock
which are a part of the Shares or any other Deposited Securities, the Depositary
shall mail to the Holders a notice containing (a) such information as is
contained in such notice of meeting or solicitation, and (b) a statement that
each Holder at the close of business on a specified record date will be
entitled, subject to any of the provisions of law and the provisions of or
governing the Deposited Securities, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to such Class B Shares, Triton
Delaware Preferred Stock or other Deposited Securities represented by the
Depositary Shares evidenced by such Holders' Receipts, including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the applicable Issuer, (c) a
statement as to the manner in which such instructions may be given and (d) if
applicable, a statement of the procedures to be followed to permit the Holder to
attend any meeting in person and exercise voting and other powers available to
holders of such Class B Shares, Triton Delaware Preferred Stock or any other
Deposited Securities. Upon the written request of a Holder on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under any
applicable provisions of law and the provisions of or governing Deposited
Securities to vote or cause to be voted such Class B Shares, Triton Delaware
Preferred Stock or other Deposited Securities represented by the Depositary
Shares evidenced by such Holder's Receipts in accordance with any
nondiscretionary instructions set forth in such request. The Depositary shall
not vote any Class B Shares, Triton Delaware Preferred Stock or other Deposited
Securities except in accordance with written instructions from Holders entitled
hereunder to give such instructions.
SECTION 4.07. CHANGES AFFECTING DEPOSITED SECURITIES. Upon any
split-up, division, subdivision, consolidation, cancellation or any other
reclassification of Class B Shares or any other Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation or sale of assets
affecting Triton Cayman or to which it is a party, any securities
<PAGE>
14
that shall be received by the Depositary in exchange for, or in conversion,
replacement, or otherwise in respect of, Class B Shares or any other Deposited
Securities shall be treated as Deposited Securities under this Deposit
Agreement, and the Receipts shall thenceforth evidence Depositary Shares
representing the right to receive the Deposited Securities including the
securities so received. In any such case the Depositary may with Triton
Cayman's approval, and shall if Triton Cayman shall so request, subject to this
Deposit Agreement, call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such newly received Deposited
Securities.
Upon any split-up, consolidation, cancellation or any other
reclassification of Triton Delaware Preferred Stock, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting Triton Delaware or to which it is a party, or in connection with the
liquidation, dissolution or winding up of Triton Delaware, any securities that
shall be received by the Depositary in exchange for, or in conversion,
replacement, or otherwise in respect of, Triton Delaware Preferred Stock shall
be distributed to the Holders in the same manner as provided in Section 4.04
with respect to distributions for which Section 4.04 is applicable, and
thereafter (subject to Section 4.09) a Share shall consist only of Class B
Shares and all other Deposited Securities other than the Triton Delaware
Preferred Stock except where such securities are received in respect of Triton
Delaware Preferred Stock.
SECTION 4.08. PURCHASE OF SHARES BY TRITON CAYMAN OR TRITON
DELAWARE. As soon as practicable after receipt of notice that Triton Cayman
or Triton Delaware is purchasing all or part of the Shares, the Depositary shall
surrender the Shares pursuant to the terms as found in such notice and mail to
the Holders a notice containing (a) such information as is contained in such
notice of purchase and (b) a statement that, on and after a date specified by
the Depositary in such notice, each Holder shall be entitled to receive, upon
presentation of the Receipts held by such Holder at the Depositary's office, the
purchase price for the Shares being purchased represented by the Depositary
Shares evidenced by such Receipts less any amount required to be withheld by
Triton Cayman, Triton Delaware or the Depositary from any such payment in
respect of taxes.
The Depositary shall, as directed by Triton Cayman or Triton
Delaware, mail to each Holder, first class postage prepaid, the notice of the
purchase of Shares, not less than 30 and not more than 60 days prior to the date
fixed for purchase (the "purchase date") of such Shares. Neither failure to
mail any such notice to one or more such holders nor any defect in any notice
shall affect the sufficiency of the proceedings for purchase.
<PAGE>
15
In case fewer than all the outstanding Shares are to be purchased,
the Shares to be purchased shall be selected by lot or pro rata (as nearly as
practicable without creating fractional shares) or by any other equitable method
determined by the Board of Directors of Triton Cayman or Triton Delaware, as the
case may be.
Notice having been mailed by the Depositary as aforesaid, from and
after the purchase date (unless Triton Cayman or Triton Delaware, as the case
may be, shall have failed to purchase the Shares to be purchased by it as set
forth in its notice provided for above), the Shares called for purchase and the
Depositary Shares representing such Shares shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing the Depositary
Shares representing the Shares purchased (except the right to receive the Class
A Shares (or Class C Shares) or cash or combination thereof upon purchase)
shall, to the extent of such Shares purchased, cease and terminate.
Upon surrender in accordance with said notices of the Receipts
evidencing the Depositary Shares representing the Shares purchased (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Receipts shall entitle the Holder thereof to receive (as nearly as may be
practicable without creating fractional shares), the number of Class A Shares or
Class C Shares or amount of cash or combination thereof required to purchase the
Shares represented by the Depositary Shares evidenced by such Receipts and the
Receipts shall thereafter evidence the right to receive Deposited Securities
(other than the Shares); provided that, at Triton Cayman's request, if Class C
Shares are used to purchase the Shares, the Depositary shall distribute the cash
portion of the purchase price, if any, to the holders of the Receipts being
purchased as in the case of a distribution pursuant to Section 4.01 and such
Receipts shall thereafter represent the right to receive the number of Class C
Shares (as nearly may be practicable without creating fractional shares)
required to purchase the Shares represented by the Depositary Shares evidenced
by such Receipts (less the cash portion, if any, of the purchase price) and the
right to receive the Deposited Securities (other than the Shares), if any. In
any such case, the Depositary may, with Triton Cayman's approval, and shall if
Triton Cayman shall so request, at the time of the distribution of the cash,
Class A Shares or combination thereof in connection with the purchase of the
Shares, call for the presentation and surrender of the Receipts and distribute
the Class C Shares and the remaining Deposited Securities, if any, to the
Holders in proportion to the number of Depositary Shares representing Deposited
Securities held by each such Holder.
<PAGE>
16
To the extent any part of the purchase price for the Shares is paid
in cash, such amount shall be paid by checks drawn on a bank in The City of New
York.
If fewer than all of the Shares represented by Depositary Shares
evidenced by a Receipt are called for purchase, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for purchase, together with the Class A Shares or Class C Shares (if
distributed) or cash or combination thereof for the Shares called for purchase
and if Class C Shares are used and Triton Cayman requests that certificates for
Class C Shares not be distributed as provided above, a Receipt evidencing the
Class C Shares.
To the extent that Shares are purchased for Class A Shares (or Class
C Shares) and all of such Class A Shares (or Class C Shares) cannot be
distributed to the record holders of Receipts without creating fractional
interests in such Class A Shares (or Class C Shares), the Depositary may, with
the consent or Triton Cayman, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of such Class A Shares (or Class C Shares)
representing in the aggregate such fractional interests at such place or places
and upon such terms as it may deem proper, and the net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for
distribution to such record holders that would otherwise receive fractional
interests in such Class A Shares (or Class C Shares).
SECTION 4.09. EXCHANGE OF RECEIPTS. In the event that the Board
of Directors of Triton Cayman determines pursuant to the Articles of Association
(whether as a result of the redemption of Triton Delaware Preferred Stock, the
liquidation, dissolution or winding up of Triton Delaware or otherwise) to cause
the Class B Shares (or Class C Shares) to be converted into Class A Shares,
then, as soon as practicable upon the receipt of written notice from Triton
Cayman, the Depositary shall call for the surrender of outstanding Receipts to
be exchanged for Class A Shares.
SECTION 4.10. WITHHOLDING. In connection with any distribution
(which for this purpose shall include purchase of the Shares pursuant to Section
4.08) to Holders, each Issuer will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by such Issuer; and the Depositary will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary. The
Depositary will forward to the applicable Issuer such information from its
records as such Issuer may reasonably request to enable such Issuer to file
<PAGE>
17
necessary reports with governmental authorities or agencies, and either the
applicable Issuer or the Depositary may file any such reports necessary to
obtain benefits under any applicable tax treaties for Holders. Notwithstanding
anything contained herein to the contrary, if the Depositary determines that any
distribution in property other than cash (including rights) on Deposited
Securities is subject to any tax that the Depositary is obligated to withhold,
the Depositary may, (after consultation with Triton Cayman if practicable)
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale and/or the balance of any such property after deduction of such taxes
to the Holders entitled thereto as in the case of a distribution pursuant to
Sections 4.01 through 4.04.
ARTICLE V
The Depositary and the Issuers
SECTION 5.01. MAINTENANCE OF DEPOSITARY'S OFFICE AND REGISTER;
CERTAIN AGENTS OF THE DEPOSITARY; LISTS OF HOLDERS. (a)DEPOSITARY'S OFFICE.
The Depositary shall maintain at its transfer office in the Borough of
Manhattan, The City of New York, facilities for the delivery and surrender of
Shares, the execution and delivery, registration, registration of transfer,
combination, split-up and purchase of Receipts and the withdrawal of Deposited
Securities all in accordance with the provisions of this Deposit Agreement.
(b) THE REGISTER. The Depositary shall keep at its transfer
office in the Borough of Manhattan, The City of New York, a register for the
registration of Receipts and transfers of Receipts that at all reasonable times
shall be open for inspection by the Holders and the Issuers; PROVIDED that
such inspection shall not be for the purpose of communication with Holders in
the interest of a business or object other than the business of the Issuers or a
matter related to this Deposit Agreement or the Receipts. The Depositary may
close the register at any time or from time to time, when deemed expedient by it
in connection with the performance of its duties hereunder, or at the reasonable
request of either Issuer.
(c) RECEIPT REGISTRARS AND CO-TRANSFER AGENTS. If any Receipts
or the Depositary Shares evidenced thereby are listed on one or more stock
exchanges in the United States, the Depositary shall act as Receipt registrar
or, upon the written request or with the approval of the Issuers, appoint a
Receipt registrar or one or more co-registrars to register Receipts and
transfers, combinations, split-ups and purchases of Receipts and to countersign
Receipts in accordance with any requirements of such exchange or exchanges and
with the terms of any such appointment.
<PAGE>
18
Such Receipt registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the written request or with the
approval of the Issuers. The Depositary, upon the written request or with the
approval of the Issuers, may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary upon the
written request or with the approval of the Issuers. Each Receipt registrar,
co-registrar or co-transfer agent appointed under this Section 5.01 (other than
Chemical Mellon Shareholder Services, L.L.C.) shall give notice in writing to
each Issuer and the Depositary accepting such appointment and agreeing to be
bound by the applicable terms of this Deposit Agreement.
(d) LISTS OF HOLDERS. Each Issuer shall have the right, at its
own expense, (i) to inspect transfer and registration records of the Depositary
kept in connection with the Depositary's obligations pursuant to this Deposit
Agreement; and (ii) to take copies thereof and require the Depositary, the
Receipt registrar and any co-transfer agents or co-registrars to supply copies
of such portions of such records as such Issuer may request. The Depositary
shall furnish to each Issuer promptly upon the written request of such Issuer, a
list of the names, addresses and holdings of record of Depositary Shares by all
Holders as of a recent date.
(e) DEPOSITARY'S AGENT. The Depositary may perform its
obligations under this Section 5.01 through any agent appointed by it, provided
that the Depositary shall notify each Issuer of such appointment and shall
remain responsible for the performance of such obligations as if no agent were
appointed.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE. Neither the
Depositary, its agents nor either Issuer shall incur any liability if, by reason
of any present or future law, the provisions of or governing the Class B Shares
or Triton Delaware Preferred Stock which are a part of the Shares or any other
Deposited Securities, act of God, war or other circumstances beyond its control,
the Depositary, its agents or either Issuer shall be prevented or forbidden
from, or subjected to any civil or criminal penalty on account of, or delayed
in, doing or performing any act or thing which by the terms of this Deposit
Agreement it is provided shall be done or performed; nor shall the Depositary,
its agents or either Issuer incur any liability to any Holder or other person by
reason of any nonperformance or delay in performance, caused as aforesaid, of
any act or thing that by the terms of this Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement.
<PAGE>
19
SECTION 5.03. OBLIGATIONS LIMITED. Neither Issuer assumes any
obligation and shall not be subject to liability under this Deposit Agreement or
the Receipts to Holders or other persons, except to perform such obligations as
are specifically set forth and undertaken by it to perform in this Deposit
Agreement without negligence, bad faith or willful misconduct. Each of the
Depositary and its agents assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts to Holders or other
persons, except to perform such obligations as are specifically set forth and
undertaken by it to perform in this Deposit Agreement without negligence, bad
faith or willful misconduct. Without limitation of the preceding sentence, none
of the Depositary, its agents or the Issuers shall be (a) under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of the Class B Shares or Triton Delaware Preferred Stock which are a
part of the Shares or any other Deposited Securities or the Receipts that in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required,
or (b) liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person reasonably believed by it to be
competent to give such advice or information. The Depositary, its agents and
the Issuers may rely and shall be protected in acting upon any written notice,
request, direction or other documents believed by it to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its
agents shall not be responsible for any failure to carry out any instructions to
vote the Class B Shares or Triton Delaware Preferred Stock which are a part of
the Shares or any of the other Deposited Securities, for the manner in which any
such vote is cast or for the effect of any such vote, as long as such action or
non-action is in good faith or in accordance with this Deposit Agreement. The
Depositary and its agents may own and deal in any class of securities of the
Issuers and their respective affiliates and in Receipts. The Depositary shall
not lend the Shares. The Depositary agrees to comply with all information
reporting and withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision of this Deposit
Agreement.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to
each Issuer or be removed as Depositary by the joint action of each of the
Issuers by written notice of such removal delivered to the Depositary, such
resignation or removal to take effect upon the appointment of and acceptance by
a successor depositary as hereinafter provided. In case at any time the
Depositary acting hereunder shall resign or be removed, the Issuers shall,
within 45 days after delivery of the notice of resignation or removal, as the
case may be, use
<PAGE>
20
their best efforts to appoint a successor depositary, which shall be a bank or
trust company having an office in the United States of America and having a
combined capital and surplus of at least $50,000,000. Such requirement shall
not apply to the Depositary initially appointed hereunder. If a successor
depositary shall not have been appointed in 45 days, the resigning Depositary
may petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver to its
predecessor and to each Issuer an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor) but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Issuers shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, and such predecessor shall thereupon duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders. Any such successor depositary shall promptly mail notice of its
appointment to the Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary, without the execution or
filing of any document or any further act.
SECTION 5.05. NOTICES AND REPORTS TO HOLDERS. On or before the
first date on which either Issuer gives notice, by publication or otherwise, of
any meeting of Holders of the Class B Shares or Triton Delaware Preferred Stock
which are a part of the Shares or other Deposited Securities, as the case may
be, or of any adjourned meeting of such holders, or of the taking of any action
by such holders other than at a meeting, the applicable Issuer shall transmit to
the Depositary a copy of the notice thereof in the form given or to be given to
holders of such Class B Shares, Triton Delaware Preferred Stock or other
Deposited Securities. Triton Cayman and Triton Delaware have delivered to the
Depositary a copy of the provisions of or governing the Class B Shares and the
Triton Delaware Preferred Stock, respectively, and promptly upon any amendment
thereto or change therein, the applicable Issuer shall deliver to the Depositary
a copy of such provisions as so amended or changed. The Depositary may rely
upon such copy for all purposes of this Deposit Agreement. The Depositary will,
at the expense of the applicable Issuer, promptly after receipt of such copy,
transmit to the record holders of Depositary Shares, at the address recorded in
the Depositary's books and will make such copy and such notices, reports and
other communications available for inspection by Holders at the Depositary's
Office and at any other designated transfer offices.
SECTION 5.06. ISSUANCE OF ADDITIONAL SHARES, ETC. Each Issuer
agrees that it will, with respect to each action
<PAGE>
21
described below taken by it, take all steps reasonably necessary to ensure that
no violation by such Issuer or the Depositary of the Securities Act of 1933 will
result from any issuance to the Holders of (a) additional Class B Shares, (b)
additional Class A Shares, (c) rights to subscribe for Class A Shares or any
other securities or any other rights of any nature, (d) securities convertible
into or exchangeable for Class A Shares or Triton Delaware Preferred Stock or
(e) any securities issued as a distribution to the holders of its equity
securities.
Each Issuer agrees with the Depositary that neither such Issuer nor
any company or person controlling or controlled by or under common control with
such Issuer will at any time deposit any Class B Shares or Triton Delaware
Preferred Stock, either upon original issue or upon a sale of Class B Shares or
Triton Delaware Preferred Stock previously issued and reacquired by such Issuer
or by any company under its control, unless (i) a registration statement is in
effect as to such Class B Shares or Triton Delaware Preferred Stock under the
Securities Act of 1933, or (ii) the Issuer provides the Depositary with an
opinion of counsel reasonably satisfactory to the Depositary to the effect that
either the offering and sale of such Class B Shares or Triton Delaware Preferred
Stock is exempt from registration under the provision of such Act or the
transaction is exempt under such Act; or (iii) counsel satisfactory to the
Depositary shall have provided an opinion to the Depositary stating that such
registration is not required.
SECTION 5.07. INDEMNIFICATION. Each Issuer shall indemnify,
defend and hold harmless the Depositary, any Receipt registrar, co-transfer
agent, co-registrar or any other agent of the Depositary appointed hereunder
(the "indemnified persons") against any loss, liability or expense (including
reasonable fees and expenses of counsel) that may arise (a) out of acts
performed or omitted in connection with this Deposit Agreement and the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
any indemnified person, except to the extent such loss, liability or expense is
due to negligence, bad faith or willful misconduct of such indemnified person,
or (ii) by such Issuer or any of its agents, or (b) out of or in connection with
any offer or sale of Receipts, Depositary Shares, Class B Shares or Triton
Delaware Preferred Stock or other Deposited Securities or any registration
statement under the Securities Act of 1933 in respect thereof, except to the
extent such loss, liability or expense is due to information (or omissions from
such information) relating to such indemnified person and furnished in writing
to either of the Issuers by such indemnified person expressly for use in a
registration statement under the Securities Act of 1933. The obligations set
forth in this Section 5.07 shall survive the termination of this Deposit
Agreement and the succession or substitution of any indemnified person.
<PAGE>
22
SECTION 5.08. CHARGES OF DEPOSITARY. Triton Cayman and Triton
Delaware agree to pay all charges and expenses of the Depositary and those of
any Receipt registrar, co-transfer agent and co-registrar and any other agent of
the Depositary appointed under this Deposit Agreement to be payable by Triton
Cayman and Triton Delaware, notwithstanding the termination of this Deposit
Agreement or the succession or substitution of any such person. Any other
charges and expenses of the Depositary and its agents which are reasonably
related to their obligations hereunder and which are not otherwise provided for
herein will be paid by Triton Cayman and Triton Delaware after consultation and
agreement between the Depositary and Triton Cayman as to the amount and nature
of such charges and expenses. Such charges may at any time and from time to
time be changed by agreement between Triton Cayman and the Depositary.
SECTION 5.09. STATUTORY REPORTS. The Depositary shall make
available for inspection by Holders at the Depositary's Office and at any other
designated transfer offices any reports and communications received from either
Issuer which are both (a) received by the Depositary or the nominee of either as
the holder of Deposited Securities or Class B Shares or Triton Delaware
Preferred Stock which are a part of the Shares and (b) made generally available
to the holders of Class B Shares, Triton Delaware Preferred Stock or any other
Deposited Securities by such Issuer. The Depositary will, promptly after
receipt thereof from either Issuer, at the expense of such Issuer, transmit to
the record holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including financial
statements) required by law, by the rules of any national securities exchange
upon which the Shares, the Depositary Shares or the Receipts are listed or by
the Articles of Association or the Certificate of Designation to be furnished by
either Issuer to the holders of the Shares. In connection with any registration
statement relating to the Receipts, each Issuer and the Depositary shall furnish
to the other and to the Commission such information as shall be required to make
such filings or comply with such undertakings.
ARTICLE VI
Amendment and Termination
SECTION 6.01. AMENDMENT. The Receipts and any provisions of this
Deposit Agreement may at any time and from time to time be amended by agreement
among the Issuers and the Depositary in any respect. Any amendment that shall
impose any fees, taxes or charges (other than fees and charges provided for
herein or in the Receipts) or that shall otherwise prejudice any substantial
existing right of Holders, shall not, however, become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Holders. Every Holder at the expiration
of thirty days
<PAGE>
23
after such notice shall be deemed by holding such Receipt to consent and agree
to such amendment and to be bound by the Deposit Agreement or the Receipts as
amended thereby.
SECTION 6.02. TERMINATION. The Depositary shall at any time at
the direction of the Issuers terminate this Deposit Agreement by giving notice
of such termination to the Holders at least 30 days prior to the date fixed in
such notice for such termination. After the date so fixed for termination, the
Depositary and its agents shall perform no further acts under this Deposit
Agreement, except to advise Holders of such termination, to receive and hold
distributions on Deposited Securities (or sell property or rights or convert
Deposited Securities into cash as provided in this Deposit Agreement) and to
deliver Deposited Securities, subject to the terms hereof, in exchange for
Receipts surrendered to the Depositary. As soon as practicable after the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and may thereafter (so long as it may
lawfully do so) hold the net proceeds of any such sale, together with any other
cash then held by it hereunder, without liability for interest, for the PRO
RATA benefit of the Holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations in respect of the Receipts and this Deposit Agreement, except to
account for such net proceeds and other cash. After the date so fixed for
termination, the Issuers shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary and its agents
under Sections 5.07 and 5.08.
ARTICLE VII
Miscellaneous
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original and all of such counterparts shall constitute one and the same
instrument. Copies of this Deposit Agreement shall be filed with the Depositary
and shall be open to inspection by any Holder during business hours.
SECTION 7.02. NO THIRD PARTY BENEFICIARIES. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not give any legal
or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. SEVERABILITY. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
<PAGE>
24
SECTION 7.04. HOLDERS PARTIES; BINDING EFFECT. The Holders and
owners of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance thereof.
SECTION 7.05. NOTICES. (a) TO TRITON CAYMAN. Any and all
notices to be given to Triton Cayman shall be duly given if personally delivered
or sent by mail, first class postage prepaid, or by cable, telex or facsimile
transmission in each case confirmed by letter, addressed to Triton Energy
Limited, Caledonian House, Mary Street, P.O. Box 1043, George Town, Grand
Cayman, Cayman Islands, Attention: David Sargison, with a copy to Triton Energy
Corporation, at the address set forth in (b) below, or any other address which
Triton Cayman may specify in writing to the Depositary.
(b) TO TRITON DELAWARE. Any and all notices to be given to
Triton Delaware shall be duly given if personally delivered or sent by mail
first class postage prepaid, or by cable, telex or facsimile transmission in
each case confirmed by letter, addressed to Triton Energy Corporation, 6688
North Central Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention:
Legal Department; Facsimile no.: (214) 691-0198, or any other address which
Triton Delaware may specify in writing to the Depositary.
(c) TO THE DEPOSITARY. Any and all notices to be given to the
Depositary shall be duly given if personally delivered or sent by mail, first
class postage prepaid, or by cable, telex or facsimile transmission in each case
confirmed by letter, addressed to Chemical Mellon Shareholder Services, L.L.C.,
Reorganization Department, 120 Broadway, 13th Floor, New York, NY 10271, which
is the location of the Depositary's Office on the date of this Deposit
Agreement, or any other address which the Depositary may specify in writing to
the Issuers.
(d) TO THE HOLDERS. Any and all notices to be given to any
Holder shall be duly given if personally delivered or sent by mail, first class
postage prepaid, or by cable, telex or facsimile transmission in each case
confirmed by letter, addressed to such Holder at the address of such Holder as
it appears on the transfer books for Receipts of the Depositary, or, if such
Holder shall have filed with the Depositary a written request that notices
intended for such Holder be mailed to some other address, at the address
designated in such request.
(e) GENERAL. Notice given as aforesaid, (i) to the Issuers or
the Depositary, shall be deemed to be effected when received, and (ii) to a
Holder by mail or by cable, telex or facsimile transmission, shall be deemed to
be effected at the time when a duly addressed letter containing the same (or a
confirmation thereof in the case of a cable, telex or facsimile transmission) is
deposited, first class postage prepaid, in a post-office letter box. The
Depositary or either Issuer may act
<PAGE>
25
upon any cable, telex or facsimile transmission received by it from the other or
from any Holder, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed as aforesaid.
SECTION 7.06. GOVERNING LAW. This Deposit Agreement and the
Receipts shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the laws of the State of New
York, without regard for the choice of law doctrines of such state.
IN WITNESS WHEREOF, TRITON ENERGY LIMITED, TRITON ENERGY CORPORATION
and CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C. have duly executed this Deposit
Agreement as of the day and year first above set forth and all holders of
Receipts shall become parties hereto upon acceptance by them of Receipts issued
in accordance with the terms hereof.
TRITON ENERGY LIMITED
By:
------------------------------
Title:
TRITON ENERGY CORPORATION
By:
------------------------------
Title:
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C.
By:
------------------------------
Title:
<PAGE>
EXHIBIT A
TO
DEPOSIT AGREEMENT
[FORM OF FACE OF RECEIPT]
DEPOSITARY RECEIPT
evidencing
DEPOSITARY SHARES
representing
EQUITY UNITS
consisting of
CLASS B ORDINARY SHARES
of
TRITON ENERGY LIMITED
(Organized under the
laws of the Cayman Islands)
and
PARTICIPATING PREFERRED STOCK
of
TRITON ENERGY CORPORATION
(Organized under the
laws of Delaware)
No.
--------------------------
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C., incorporated under the
laws of the State of New York, as depositary (the "Depositary"), hereby
certifies that __________ is the owner of _________ Depositary Shares
("Depositary Shares"), representing deposited units (which shall be paired) or
rights to receive units ("Shares"), each consisting of one Class B Ordinary
Share, par value $.01 per share ("Class B Shares"), of TRITON ENERGY LIMITED, a
company organized under the laws of the Cayman Islands ("Triton Cayman"), (as
adjusted from time to time for distributions upon Class B Shares referred to in
Section 4.02 of the Deposit Agreement (hereinafter defined) or changes in Class
B Shares referred to in Section 4.07 of the Deposit Agreement) and one-tenth of
one share of Participating Preferred Stock, par value $.01 per share ("Triton
Delaware Preferred Stock"), of TRITON ENERGY CORPORATION, a corporation
organized under the laws of Delaware ("Triton Delaware" and, together with
Triton Cayman, the "Issuers") (except as otherwise provided in Sections 4.07 or
4.08 of the Deposit Agreement).
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<PAGE>
(1) THE DEPOSIT AGREEMENT. This Depositary Receipt is one of
the receipts (the "Receipts") executed and delivered pursuant to the Deposit
Agreement dated as of __________, 1996, (as amended from time to time, the
"Deposit Agreement") by and among the Issuers, the Depositary and all registered
holders ("Holders") from time to time of Receipts, each of whom by accepting a
Receipt becomes a party thereto, bound by all applicable terms and provisions
thereof and hereof. The Deposit Agreement sets forth the rights of Holders and
the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash, from time to
time received in respect of such Shares and held thereunder (such Shares,
securities, property and cash, collectively, the "Deposited Securities").
Copies of the Deposit Agreement and of each Issuer's provisions of or governing
Deposited Securities are on file at the Depositary's Office and at any other
designated transfer offices. The statements made on the face and the reverse of
this Receipt are summaries of certain provisions of the Deposit Agreement and
are qualified by and subject to the detailed provisions thereof. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities.
(2) WITHDRAWAL OF DEPOSITED SECURITIES. Until such time as the
Triton Cayman and Triton Delaware otherwise notify the Depositary, the Deposited
Securities represented by Depositary Shares may not be withdrawn. If at any
time Triton Cayman and Triton Delaware determine to permit such withdrawal, upon
surrender of this Receipt at the Depositary's Office or at such other offices as
it may designate, subject to the Deposit Agreement and to the provisions of or
governing Deposited Securities, the Holder hereof is entitled to the delivery
without unreasonable delay at the office of the Depositary to such Holder or
upon such Holder's order of the Deposited Securities at the time represented by
the Depositary Shares evidenced by this Receipt. To the extent that fractional
interests in Shares or other Deposited Securities are not available for
delivery, the Depositary may at its option deliver a Receipt or cash proceeds
thereof in lieu of any such fractional interest to which any person would be
entitled pursuant to the preceding sentence. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities at
such other place as may have been requested by the Holder. Delivery of
Deposited Securities may be made by the delivery of certificates to the extent
such Deposited Securities may be represented by certificates.
(3) TRANSFERS, SPLIT-UPS AND COMBINATIONS. This Receipt is
transferable on the register maintained by the Depositary by the Holder hereof
in person or by duly authorized attorney, upon surrender of this Receipt at any
designated transfer office properly endorsed or accompanied by proper
instruments of transfer and duly stamped as may be required by applicable law;
PROVIDED that the Depositary may close the Receipt register at any time or
from time to time when deemed
-2-
<PAGE>
expedient by it in connection with the performance of its duties under the
Deposit Agreement or at the reasonable request of either Issuer. This Receipt
may be split into other Receipts or may be combined with other Receipts into one
Receipt, evidencing the same aggregate number of Depositary Shares as those
evidenced by this Receipt when surrendered.
(4) CERTAIN LIMITATIONS. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up or
combination of any Receipt, the delivery of any distribution thereon (including
any distributions on Class B Shares and Triton Delaware Preferred Stock) or the
withdrawal of any Deposited Securities, the Depositary or the Issuers may
require of the Holder, the presenter of this Receipt or the depositor of Shares:
(a) payment of a sum sufficient to pay or reimburse it for payment of (i) any
stock transfer or other tax or other governmental charge with respect thereto
and (ii) any transfer or registration fees for the registration of transfers of
the Class B Shares or Triton Delaware Preferred Stock which are a part of the
Shares or other Deposited Securities upon any applicable register; (b) the
production of proof satisfactory to it as to the identity and genuineness of any
signature and as to any other matter contemplated by Section 3.01; and, (c)
compliance with such reasonable regulations, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement. The delivery
of Receipts against deposits of Shares may be suspended, deposits of Shares may
be refused, or the registration of transfer of Receipts, their split-up or
combination or the withdrawal of Deposited Securities may be suspended, in
particular instances or generally, when the Receipt register or any register for
the Class B Shares or the Triton Delaware Preferred Stock which are a part of
the Shares or other Deposited Securities is closed, or any time or from time to
time when any such action is deemed necessary or advisable by the Depositary or
either Issuer for any reason, including without limitation any requirement of
law or of any government or governmental body or commission, any provision of
the Deposit Agreement or the provisions of or governing Deposited Securities,
any meeting of holders of the Class B Shares or the Triton Delaware Preferred
Stock which are a part of the Shares or any payment of dividends. The
Depositary will not issue Receipts for rights to receive Shares (except for
evidence of rights to receive Shares from Triton Cayman, or any registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares) unless such rights are fully
collateralized with cash or United States government securities. Such
collateral, but not the earnings thereon, shall be held for the benefit of the
Holders. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under the Deposit Agreement any Shares required to
be registered pursuant to the provisions of the Securities Act of 1933, unless a
registration statement under the Securities Act of 1933 is in effect as to such
Shares. The Depositary will comply with written instructions of Triton Cayman
not to accept for deposit hereunder any Shares identified in such instructions
at
-3-
<PAGE>
such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate Triton Cayman's compliance with the
securities laws in the United States.
(5) LIABILITY OF HOLDER FOR TAXES. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to any Receipt or any Class B Shares or Triton Delaware Preferred Stock
which are a part of the Shares or any other Deposited Securities represented by
the Depositary Shares evidenced by such Receipt, such tax or other governmental
charge shall be payable by the Holder of such Receipt, who shall pay the amount
thereof to the Depositary. The Depositary may refuse to effect registration of
transfer of such Receipt or any split-up or combination thereof or any
withdrawal of such Deposited Securities until such payment is made, and may
withhold or deduct from any distributions on the Class B Shares or Triton
Delaware Preferred Stock which are a part of such Shares or such Deposited
Securities or may sell for the account of the Holder thereof any part or all of
such Deposited Securities (after attempting by reasonable means to notify such
Holder prior to such sale), and may apply such cash or the proceeds of any such
sale in payment of such tax or other governmental charge, the Holder of such
Receipt remaining liable for any deficiency.
(6) WARRANTIES BY DEPOSITOR. Every person depositing Shares
under the Deposit Agreement shall be deemed thereby to represent and warrant
that the Class B Shares and Triton Delaware Preferred Stock which are a part of
such Shares and each certificate therefor are validly issued and outstanding,
fully paid, nonassessable and free of preemptive rights, and that the person
making such deposit is duly authorized so to do. Such representations and
warranties shall survive the deposit of Shares and the execution and delivery of
Receipts therefor.
(7) CHARGES OF DEPOSITARY. Triton Cayman and Triton Delaware
will pay all charges and expenses of the Depositary and those of any Receipt
registrar, co-transfer agent, co-registrar and any other agent of the Depositary
incurred by the Depositary or any such person in the exercise of its duties and
obligations under the Deposit Agreement in accordance with agreements entered
into among the Depositary, Triton Delaware and Triton Cayman from time to time,
except Triton Cayman and Triton Delaware shall not pay or be liable for (i)
stock transfer or other taxes and other governmental charges (which are payable
by Holders or persons depositing Shares and (ii) any transfer or registration
fees for the registration of transfers of deposited Shares and other Deposited
Securities on any applicable register incurred at the request of Holders
delivering Shares, Receipts or Deposited Securities (which are payable by such
persons or Holders).
(8) TITLE TO RECEIPTS. Title to this Receipt (and to the
Deposited Securities represented by the Depositary Shares evidenced hereby),
when properly endorsed or accompanied by properly executed instruments of
transfer, is transferable by
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delivery with the same effect as in the case of a negotiable instrument;
PROVIDED that until a Receipt shall be transferred on the books of the
Depositary as provided in Section 2.04 of the Deposit Agreement, the Depositary
may, notwithstanding any notice to the contrary, treat the person in whose name
this Receipt is registered or shown in the register maintained by the Depositary
as the absolute owner hereof for the purpose of determining the person entitled
to any distribution or notice and for all other purposes.
(9) VALIDITY OF RECEIPT. This Receipt shall not be entitled to
any benefits under the Deposit Agreement or be valid or obligatory for any
purpose unless executed by the Depositary by the manual signature of a duly
authorized officer of the Depositary, provided that such signature may be a
facsimile if a Receipt registrar for the Receipts shall have been appointed, by
the manual signature of a duly authorized officer of such registrar or any
co-registrar.
Dated: CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C.
as Depositary
By:
-------------------------
(Title)
As of the date of the Deposit Agreement, the address of the
Depositary's Office is Chemical Mellon Shareholder Services, L.L.C.,
Reorganization Department, 120 Broadway, 13th Floor, New York, New York,
10271.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(10) DISTRIBUTIONS UPON DEPOSITED SECURITIES. Whenever the
Depositary shall receive any cash dividend or other cash distribution (other
than a cash distribution on a purchase of the Shares pursuant to Section 4.08 of
the Deposit Agreement) upon the Class B Shares or Triton Delaware Preferred
Stock which are a part of any Shares or any other Deposited Securities, the
Depositary shall, after fixing a record date in respect thereof pursuant to
Section 4.05 of the Deposit Agreement, subject to the Deposit Agreement,
distribute the amount thus received, by checks drawn on a bank in The City of
New York, to the Holders on such record date of Receipts evidencing Depositary
Shares representing such Deposited Securities, in proportion to the number of
Depositary Shares representing such Deposited Securities held by each of them
respectively; PROVIDED that the Depositary shall make appropriate adjustments
in the amounts so distributed in respect of (a) any of such Deposited Securities
being not entitled, by reason of its date of issuance or otherwise, to receive
all or any portion of such distribution or (b) any amounts required to be
withheld by either of the Issuers or the Depositary from any such distribution
on account of taxes. Each such distribution shall be accompanied or preceded by
a notice from the Depositary to each Holder specifying the portion of such
dividend or distribution consisting of a dividend or distribution on Class B
Shares and the portion of such dividend or distribution consisting of a dividend
or distribution on Triton Delaware Preferred Stock. The Depositary shall
distribute only such amount as can be distributed without distributing to any
Holder a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding.
If any distribution upon any Class B Shares which are a part of the
Shares consists of a dividend in, or free distribution (through capitalization
of profits or otherwise) of, Class B Shares, each Depositary Share shall
thenceforth also represent its proportionate interest in the additional Class B
Shares so distributed and each Share shall thereupon include its proportionate
interest in such additional Class B Shares. Triton Cayman agrees that it will
take all necessary action, and comply in all material respects with all
applicable United States and Cayman Islands laws and regulations, in order to
permit any such distribution to be made to the Holders, including, without
limitation, causing, if necessary, a registration statement under the Securities
Act of 1933 covering such offering to be declared effective and to remain in
effect; PROVIDED that if the aggregate fair market value as determined by
Triton Cayman of the Class B Shares to be issued to the Depositary on behalf of
the Holders is
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less than $5,000,000, (i) Triton Cayman will not be required to so comply or
take such action and (ii) the Depositary (after consultation with Triton Cayman)
shall, in lieu making such rights available to the Holders, sell or otherwise
dispose of such Class B Shares and distribute the net proceeds as in the case of
a distribution received in cash.
If Triton Cayman shall offer or cause to be offered to the holders
of any of its securities constituting a part of the Deposited Securities any
rights to subscribe for or acquire additional Class A Shares or any other
securities of Triton Cayman or any other rights of any nature which it is
required to offer or cause to be offered to the holders of such securities
pursuant to the Articles of Association or the Companies Act, the Depositary
shall distribute the warrants or other instruments representing such rights in
such form as it may determine (after consultation with Triton Cayman) to the
Holders of Receipts evidencing Depositary Shares representing Deposited
Securities, on a record date fixed pursuant to Section 4.05 of the Deposit
Agreement in proportion to the number of Depositary Shares representing
Deposited Securities held by each of them respectively, or employ such other
method (after consultation with Triton Cayman) as it may deem feasible in order
to facilitate the exercise, sale or transfer of such rights by such Holders.
Triton Cayman agrees that it will take all necessary actions, and comply in all
material respects with all applicable United States and Cayman Islands laws and
regulations, in order to permit such rights to be offered to the Holders,
including without limitation, causing a registration statement under the
Securities Act of 1933 covering such offering to be declared effective and
remain in effect; PROVIDED that if the aggregate fair market value as
determined by Triton Cayman of the Class A Shares or any other securities with
respect to which such rights are issued to the Depositary on behalf of the
Holders is less than $5,000,000, (i) Triton Cayman will not be required to so
comply or take such action and (ii) the Depositary (after consultation with
Triton Cayman) shall, in lieu of making such rights available to the Holders,
sell or otherwise dispose of such rights and distribute the net proceeds thereof
as in the case of a distribution received in cash.
Notwithstanding the foregoing, if any rights represented by such
warrants or such other instruments are not exercised and appear to be about to
lapse, the Depositary in its sole discretion may sell such rights or such
warrants or other instruments at public or private sale, at such place or places
and upon such terms as it may deem proper, and may allocate the proceeds of such
sales for the account of the Holders otherwise entitled to such rights, warrants
or other instruments, upon an averaged or other practicable basis without regard
to any distinctions among such Holders because of exchange restrictions, or the
date of delivery of any Receipt or Receipts, or otherwise, and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash.
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<PAGE>
If Triton Cayman makes a distribution of securities or other
property (other than cash, Class B Shares or a distribution of rights) to the
holders of any of its securities constituting a part of the Deposited Securities
which it is required to offer or cause to be offered to the holders of such
securities by the Articles of Association or the Companies Act, the Depositary
shall cause the securities or property so distributable to be distributed to the
Holders of Receipts evidencing Depositary Shares representing Deposited
Securities on a record date fixed pursuant to the Deposit Agreement, in
proportion to the number of Depositary Shares representing Deposited Securities
held by each of them respectively, in, any manner that the Depositary may (after
consultation with Triton Cayman) deem equitable and practicable for
accomplishing such distribution, including, in the case of securities, with the
consent of Triton Cayman, depositing such securities in a depositary share
facility for such securities and distributing to the Holders depositary shares
representing the securities so deposited; PROVIDED that if, in the case of a
distribution, (other than a distribution in respect of Deposited Securities of
securities having an aggregate fair market value as determined by Triton Cayman
of $5,000,000 or more), in the opinion of the Depositary (after consultation
with Triton Cayman) such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including any tax
withholding requirement) the Depositary deems such distribution not to be
feasible, the Depositary may (after consultation with Triton Cayman) adopt such
method as it may deem equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, and the distribution
by the Depositary to the Holders of the net proceeds of any such sale as in the
case of a distribution received in cash. Triton Cayman agrees that it will take
all necessary action, and comply in all material respects with all applicable
United States and Cayman Islands laws and regulations, in order to permit any
such distribution to be made to the Holders, including without limitation,
causing, if necessary, a registration statement under the Securities Act of 1933
covering such offering to be declared effective and to remain in effect (other
than a distribution in respect of Deposited Securities of securities having an
aggregate fair market value as determined by Triton Cayman of $5,000,000 or
less). Notwithstanding the foregoing, in lieu of distributing fractions of such
securities, the Depositary may sell that number of such securities represented
by the aggregate of such fractions and distribute the net proceeds of such sale
as in the case of a distribution received in cash.
No such distribution shall alter the composition of a Share.
(11) RECORD DATES. Whenever any distribution is being made upon
the Class B Shares or Triton Delaware Preferred Stock which are a part of the
Shares or any other Deposited Securities or any meeting of holders of such Class
B Shares, Triton Delaware
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Preferred Stock or other Deposited Securities is being held or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall fix a record date for the determination of the Holders of Receipts
evidencing Depositary Shares representing Deposited Securities who shall be
entitled to receive such distribution or the net proceeds of the sale thereof,
to give instructions for the exercise of voting rights at any such meeting, to
receive such notice or solicitation or to act in respect of such other matter.
Subject to the Deposit Agreement, only such Holders at the close of business on
such record date shall be entitled to receive any such distribution or proceeds,
to give such voting instructions, to receive such notice or solicitation or to
act in respect of any such other matter. Whenever a distribution (whether of
cash, rights or otherwise) is made on the Class B Shares or Triton Delaware
Preferred Stock which are part of the Shares or any other Deposited Securities,
and a record date is fixed by Triton Cayman or Triton Delaware for the purpose
of determining the persons entitled to receive such distribution, or proceeds,
to give such voting instructions, to receive such notice or solicitation or to
act in respect of any such other matter, then unless Triton Cayman or Triton
Delaware, as the case may be, otherwise agrees, the Depositary shall choose the
same record date.
(12) VOTING OF DEPOSITED SECURITIES. As soon as practicable
after receipt of notice of any meeting or solicitation of consents or proxies of
holders of the Class B Shares or Triton Delaware Preferred Stock which are a
part of the Shares or any other Deposited Securities, the Depositary shall mail
to the Holders a notice containing (a) such information as is contained in such
notice of meeting or solicitation, and (b) a statement that each Holder at the
close of business on a specified record date will be entitled, subject to any of
the provisions of law and the provisions of or governing Deposited Securities,
to instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to such Class B Shares, Triton Delaware Preferred Stock or other
Deposited Securities represented by the Depositary Shares evidenced by such
Holders' Receipts, including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person designated by
the applicable Issuer, (c) a statement as to the manner in which such
instructions may be given and (d) if applicable, a statement of the procedures
to be followed to permit the Holder to attend any meeting in person and exercise
voting and other powers available to holders of such Class B Shares, Triton
Delaware Preferred Stock or any other Deposited Securities. Upon the written
request of a Holder on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable and permitted under any applicable provisions of law and
the provisions of or governing Deposited Securities to vote or cause to be voted
such Class B Shares, Triton Delaware Preferred Stock or other Deposited
Securities
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<PAGE>
represented by the Depositary Shares evidenced by such Holder's Receipts in
accordance with any nondiscretionary instructions set forth in such request.
The Depositary shall not vote any Class B Shares, Triton Delaware Preferred
Stock or other Deposited Securities except in accordance with written
instructions from Holders entitled hereunder to give such instructions.
(13) CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in
par value, split-up, division, subdivision, consolidation, cancellation or any
other reclassification of Class B Shares or any other Deposited Securities, or
upon any recapitalization, reorganization, merger or consolidation or sale of
assets affecting Triton Cayman or to which it is a party, any securities that
shall be received by the Depositary in exchange for, or in conversion,
replacement, or otherwise in respect of, Class B Shares or any other Deposited
Securities shall be treated as Deposited Securities under the Deposit Agreement,
and this Receipt shall thenceforth evidence Depositary Share(s) representing the
right to receive the Deposited Securities including the securities so received.
In any such case the Depositary may with Triton Cayman's approval, and shall if
Triton Cayman shall so request, subject to the Deposit Agreement call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such newly received Deposited Securities.
Upon any change in par value, split-up, consolidation, cancellation
or any other reclassification of Triton Delaware Preferred Stock, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting Triton Delaware or to which it is a party, or in connection with the
liquidation, dissolution or winding up of Triton Delaware, any securities that
shall be received by the Depositary in exchange for, or in conversion,
replacement, or otherwise in respect of, Triton Delaware Preferred Stock shall
be distributed to the Holders in the same manner as provided in Section 4.04 of
the Deposit Agreement with respect to distributions for which Section 4.04 is
applicable, and thereafter (subject to Section 4.09 of the Deposit Agreement) a
Share shall consist only of Class B Shares and all other Deposited Securities
other than the Triton Delaware Preferred Stock except where such securities are
received in respect of Triton Delaware Preferred Stock.
(14) PURCHASE OF SHARES BY TRITON CAYMAN OR TRITON DELAWARE.
Whenever Triton Cayman or Triton Delaware shall elect to purchase all or part
of the Shares, the Depositary shall surrender the Shares pursuant to the terms
as found in such notice and mail to the Holders a notice containing (a) such
information as is contained in such notice of purchase and (b) a statement that,
on and after a date specified by the Depositary in such notice, the Holder of
this Receipt shall be entitled to receive, upon presentation of this Receipt at
the Depositary's office, the purchase price for the Shares being purchased
represented by the Depositary Shares evidenced by such Receipts less any amount
required to be withheld by Triton Cayman, Triton
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<PAGE>
Delaware or the Depositary from any such payment in respect of taxes.
The Depositary shall, as directed by Triton Cayman or Triton
Delaware, mail to each Holder, first class postage prepaid, the notice of the
purchase of Shares, not less than 30 and not more than 60 days prior to the date
fixed for purchase (the "purchase date") of such Shares. Neither failure to
mail any such notice to one or more such holders nor any defect in any notice
shall affect the sufficiency of the proceedings for purchase.
In case fewer than all the outstanding Shares are to be purchased,
the Shares to be purchased shall be selected by lot or pro rata (as nearly as
may be practicable without creating fractional shares) or by any other equitable
method determined by the Board of Directors of Triton Cayman or Triton Delaware,
as the case may be.
Notice having been mailed by the Depositary as aforesaid, from and
after the purchase date (unless Triton Cayman or Triton Delaware, as the case
may be, shall have failed to purchase the Shares to be purchased by it as set
forth in its notice provided for above), the Shares called for purchase and the
Depositary Shares representing such Shares shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing the Depositary
Shares representing the Shares (except the right to receive the Class A Shares
(or Class C Shares) or cash or a combination thereof upon purchase) shall, to
the extent of such Shares purchased, cease and terminate.
Upon surrender in accordance with said notices of the Receipts
evidencing the Depositary Shares representing the Shares purchased (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Receipts shall entitle the Holder thereof to receive (as nearly as may be
practicable without creating fractional shares), the number of Class A Shares or
Class C Shares or amount of cash or combination thereof required to purchase the
Shares represented by the Depositary Shares evidenced by such Receipts and the
Receipts shall thereafter evidence the right to receive Deposited Securities
(other than the Shares); provided that, at Triton Cayman's request, if Class C
Shares are used to purchase the Shares, the Depositary shall distribute the cash
portion of the purchase price, if any, to the holders of the Receipts being
purchased as in the case of a distribution pursuant to Section 4.01 and such
Receipts shall thereafter represent the number of Class C Shares (as nearly may
be practicable without creating fractional shares) required to purchase the
Shares represented by the Depositary Shares evidenced by such Receipts (less the
cash portion, if any, of the purchase price) and the right to receive the
Deposited Securities (other than the Shares), if any. In any such case, the
Depositary may, with Triton Cayman's approval, and shall if Triton Cayman shall
so request, at the time of the distribution of the cash, Class A Shares or
combination thereof in connection
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<PAGE>
with the purchase of the Shares, call for the presentation and surrender of this
Receipt and distribute the Class C Shares and the remaining Deposited
Securities, if any, to the Holders in proportion to the number of Depositary
Shares representing Deposited Securities held by each such Holder.
To the extent any part of the purchase price for the Shares is paid
in cash, such amount shall be paid by checks drawn on a bank in The City of New
York. From and after the purchase date unless Triton Cayman or Triton Delaware,
as the case may be, shall have failed.
If fewer than all of the Shares represented by Depositary Shares
evidenced by this Receipt are called for purchase, the Depositary will deliver
to the holder of this Receipt upon its surrender to the Depositary, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for purchase, together with the Class A Shares or Class C Shares (if
distributed) or cash or combination thereof for the Shares called for purchase
and if Class C Shares are used and Triton Cayman requests that certificates for
Class C Shares not be distributed as provided above, a Receipt evidencing the
Class C Shares.
To the extent that Shares are purchased for Class A Shares (or Class
C Shares) and all of such Class A Shares (or Class C Shares) cannot be
distributed to the record holders of Receipts without creating fractional
interests in such Class A Shares (or Class C Shares), the Depositary may, with
the consent or Triton Cayman, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of such Class A Shares (or Class C Shares)
representing in the aggregate such fractional interests at such place or places
and upon such terms as it may deem proper, and the net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for
distribution to such record holders that would otherwise receive fractional
interests in such Class A Shares (or Class C Shares).
(15) EXCHANGE OF RECEIPTS. In the event that the Board of
Directors of Triton Cayman determines pursuant to the Articles of Association
(whether as a result of the redemption of Triton Delaware Preferred Stock, the
liquidation, dissolution or winding up of Triton Delaware or otherwise) to cause
the Class B Shares (or Class C Shares) to be converted into Class A Shares then,
as soon as practicable upon the receipt of written notice from the Issuers, the
Depositary shall call for the surrender of outstanding Receipts to be exchanged
for Class A Shares.
(16) REPORTS, INSPECTION OF REGISTER. The Depositary shall make
available for inspection by Holders at the Depositary's Office and at any other
designated transfer offices any reports and communications received from either
Issuer which are both (a) received by the Depositary or the nominee of either
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as the holder of Deposited Securities or Class B Shares or Triton Delaware
Preferred Stock which are a part of the Shares and (b) made generally available
to the holders of Class B Shares, Triton Delaware Preferred Stock or any other
Deposited Securities by such Issuer. The Depositary will, promptly after
receipt thereof from either Issuer, at the expense of the applicable Issuer,
transmit to the record holders of Receipts copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Shares, the Depositary Shares or the Receipts
are listed or by the Articles of Association or Certificate of Designation to be
furnished by either Issuer to the holders of the Shares. The Depositary will
keep at its transfer office in the Borough of Manhattan, The City of New York, a
register for the registration of Receipts and their transfer that at all
reasonable times shall be open for inspection by the Holders and the Issuers;
PROVIDED that such inspection shall not be for the purpose of communication
with Holders in the interest of a business or object other than the business of
the Issuers or a matter related to the Deposit Agreement or the Receipts.
(17) WITHHOLDING. In connection with any distribution (which for
this purpose shall include redemption of the Triton Delaware Preferred Stock and
purchase of the Shares pursuant to the Deposit Agreement) to Holders, each
Issuer will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by such Issuer; and the Depositary will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary. Notwithstanding anything contained
herein to the contrary, if the Depositary determines that any distribution in
property other than cash (including rights) on Deposited Securities is subject
to any tax that the Depositary is obligated to withhold, the Depositary may
(after consultation with Triton Cayman if practicable) dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
(18) LIABILITY OF THE ISSUERS AND THE DEPOSITARY. Neither the
Depositary, its agents nor either Issuer shall incur any liability if, by reason
of any present or future law, the provisions of or governing the Class B Shares
or Triton Delaware Preferred Stock which are a part of the Shares or any other
Deposited Securities, act of God, war or other circumstances beyond its control,
the Depositary, its agents or either Issuer shall be prevented or forbidden
from, or subjected to any civil or criminal penalty on account of, or delayed
in, doing or performing any act or thing which by the terms of the Deposit
Agreement it is provided shall be done or performed; nor shall the Depositary,
its agents or either Issuer incur any liability to any Holder or either person
by reason of any nonperformance or
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delay in performance, caused as aforesaid, of any act or thing that by the terms
of the Deposit Agreement it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement. Neither Issuer assumes any obligation and shall not
be subject to liability under the Deposit Agreement or the Receipts to Holders
or other persons, except to perform such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement without
negligence, bad faith or willful misconduct. Each of the Depositary and its
agents assumes no obligation and shall be subject to no liability under the
Deposit Agreement or the Receipts to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in the Deposit Agreement without negligence, bad faith or willful misconduct.
Without limitation of the preceding sentence, none of the Depositary, its agents
or the Issuers shall be (a) under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of the Class B Shares or
Triton Delaware Preferred Stock which are a part of the Shares or any other
Deposited Securities or the Receipts that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required, or (b) liable for any
action or inaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, or any other person reasonably believed by it to be competent to give
such advice or information. The Depositary, its agents and the Issuers may rely
and shall be protected in acting upon any written notice, request, direction or
other documents believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents shall
not be responsible for any failure to carry out any instructions to vote the
Class B Shares or Triton Delaware Preferred Stock which are a part of the Shares
or any of the other Deposited Securities, for the manner in which any such vote
is cast or for the effect of any such vote, as long as such action or non-action
is in good faith or in accordance with the Deposit Agreement. The Depositary
and its agents may own and deal in any class of securities of the Issuers and
their respective affiliates and in Receipts. The Depositary shall not lend the
Shares. The Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or the Deposit Agreement in
its capacity as Depositary. No disclaimer of liability under the Securities Act
of 1933 is intended by any provision of the Deposit Agreement.
(19) RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may at
any time resign as Depositary under the Deposit Agreement by written notice of
its election so to do delivered to each Issuer or be removed by the joint action
of each of the Issuers by written notice of such removal delivered to the
Depositary, such resignation or removal to take effect upon the appointment of
and acceptance by a successor depositary as provided in the Deposit Agreement.
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(20) AMENDMENT OF DEPOSIT AGREEMENT AND RECEIPTS. The Receipts
and the Deposit Agreement may at any time and from time to time be amended by
agreement among the Issuers and the Depositary in any respect. Any amendment
that shall impose or increase any fees, taxes or charges (other than the fees
and charges referred to in clauses (i) and (ii) in paragraph (7) hereto) or that
shall otherwise prejudice any substantial existing right of Holders, shall not,
however, become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Holders.
Every Holder at the expiration of thirty days after such notice shall be deemed
by holding such Receipt to consent and agree to such amendment and to be bound
by the Deposit Agreement or the Receipts as amended thereby.
(21) TERMINATION OF DEPOSIT AGREEMENT. The Depositary shall at
any time at the direction of the Issuers terminate the Deposit Agreement by
giving notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents shall perform no further acts under
the Deposit Agreement, except to advise Holders of such termination, to receive
and hold distributions on Deposited Securities (or sell property or rights or
convert Deposited Securities into cash as provided in the Deposit Agreement) and
to deliver Deposited Securities, subject to the terms of the Deposit Agreement,
in exchange for Receipts surrendered to the Depositary. As soon as practicable
after the expiration of six months from the date so fixed for termination, the
Depositary shall sell the Deposited Securities and may thereafter (so long as it
may lawfully do so) hold the net proceeds of any such sale, together with any
other cash then held by it hereunder, without liability for interest, for the
PRO RATA benefit of the Holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations in respect of this Receipt and the Deposit Agreement, except to
account for such net proceeds and other cash. After the date so fixed for
termination, the Issuers shall be discharged from all obligations under the
Deposit Agreement except for their obligations to the Depositary and its agents
under the Deposit Agreement.
-15-
<PAGE>
Exhibit 4.2
FORM OF
CERTIFICATE OF DESIGNATION
PARTICIPATING PREFERRED STOCK
OF
TRITON ENERGY CORPORATION
Pursuant to the provisions of Section 151 of the General Corporation
Law of the State of Delaware, and pursuant to Article IV of its Certificate of
Incorporation, the undersigned, Triton Energy Corporation, a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies the following statement for the
purpose of establishing and designating a series of the Corporation's preferred
stock, par value $.01 per share, and fixing and determining the relative rights
and preferences thereof:
I. The name of the Corporation is Triton Energy Corporation.
II. The following resolution establishing and designating a series
of the Corporation's preferred stock, par value $.01 per share, and fixing and
determining the relative rights and preferences thereof was duly adopted by the
Board of Directors of the Corporation on or about February 8, 1996:
RESOLVED, that, pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of its
Certificate of Incorporation, the Board of Directors does hereby create,
authorize and provide for the issuance of a series of preferred stock of
the Corporation to be designated Participating Preferred Stock, initially
consisting of 1,000,000 shares, par value $.01 per share, and, to the
extent that the designations, powers, preferences and relative and other
special rights and the qualifications, limitations and restrictions on the
Participating Preferred Stock are not stated and expressed in the
Certificate of Incorporation, does hereby fix and state such designations,
powers, preferences and other special rights and the qualifications,
limitations, or restrictions thereof as follows:
1. DESIGNATION OF SERIES, NUMBER OF SHARES AND STATED VALUE.
The series of preferred stock created herein shall be designated as the
Participating Preferred Stock, par value $.01 per share (hereinafter the
"Participating Preferred Stock"), and the number of shares initially
constituting the Participating Preferred Stock shall be 1,000,000 shares. The
stated value shall be $_____ per share (the "Stated Value").
<PAGE>
2
2. VOTING RIGHTS. The holders of Participating Preferred Stock
shall not, by virtue of their ownership thereof, be entitled to vote upon any
matter except as provided by this Section 2 or as required by law. The holders
of Participating Preferred Stock shall have two votes for each share so held
voting together as a single class with the holders of Common Stock (as
hereinafter defined) on all matters submitted to a vote of the stockholders of
the Corporation.
In addition, the holders of the Participating Preferred Stock shall
have the right, voting separately as a class, to elect a director to the Board
of Directors of the Corporation at the annual meeting of the Corporation held in
1997 and at each annual meeting thereafter (the "Preferred Director").
To entitle the holders of Participating Preferred Stock to vote for
the election of a director hereunder at any meeting, there shall be present at
such meeting in person or by proxy the holders of not less than a majority of
the shares of Participating Preferred Stock then outstanding. The Preferred
Director shall be elected by a vote of at least a plurality of the shares of
Participating Preferred Stock then present at such meeting in person or by
proxy.
Whenever by reason of the resignation, death or removal of a
Preferred Director there shall be no Preferred Director in office, the vacancy
so resulting may be filled by vote of the Participating Preferred Stock at a
special meeting thereof which shall be called at any time at the request of the
holders of record of at least 10% of the outstanding shares of such class, for
which purpose such holders shall have access to the stock books of the
Corporation.
Nominations for the election of the Preferred Director may be made
by the Board of Directors or by any one or more holders of Participating
Preferred Stock who are holders of record at the time of the giving of the
notice of nomination provided for in this Section 2, who are entitled to vote
for the election of the Preferred Director and who hold, together with any other
stockholder joining in such nomination, at least 10% of the outstanding shares
of Participating Preferred Stock in the aggregate. Any such nomination by such
holder or holders of Participating Preferred Stock will be valid only if timely
written notice of such holder's or holders' intent to make such nomination is
given to the Secretary of the Corporation. To be timely, such holder's notice
must be addressed to the Secretary of the Corporation and delivered to or mailed
and received at the principal executive offices of the Corporation within the
time period set forth in Article III, Section 3 of the By-Laws of the
Corporation, or any successor section, for nominations of Directors by
stockholders of the Corporation. Each such notice shall set forth: (a) the
name and address of the holder(s) who intends to make the nomination and of the
person to be nominated; (b) a representation that the holder(s) is a holder(s)
of record
<PAGE>
3
of shares of Participating Preferred Stock entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person
specified in the notice; (c) a description of all arrangements or understandings
between the holder(s) and such nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination is to be made by the
holder(s); (d) such other information regarding the nominee proposed by such
holder(s) as would have been required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of the nominee to serve as a Director of the Corporation if
so elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
Only such persons who are nominated in accordance with the procedures set forth
in this Section 2 shall be eligible to serve as Directors of the Corporation and
any purported nomination or purported election not made in accordance with the
procedures set forth in this Section 2 shall be void.
3. LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of shares of Participating Preferred Stock shall be entitled to
receive out of assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made to holders of Common
Stock or any stock ranking junior to the Participating Preferred Stock as to
liquidation rights, liquidating distributions in an amount per share equal to
$_____ (the "Liquidation Preference"); provided, however, that such rights shall
accrue to the holders of the Participating Preferred Stock only in the event
that the Corporation's payments with respect to the liquidation preferences of
the holders of capital stock of the Corporation ranking senior as to liquidation
rights to the Participating Preferred Stock are fully met.
If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the
Participating Preferred Stock and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with the Participating Preferred
Stock are not paid in full, the holders of the Participating Preferred Stock and
of such other shares shall share ratably in any such distribution of assets of
the Corporation in proportion to the full respective preferential amounts to
which they are entitled (after the liquidation preferences of the holders of
capital stock of the Corporation ranking senior as to liquidation rights to the
Participating Preferred Stock are fully met).
After payment of the full amount of the Liquidation Preference to
which they are entitled, the holders of shares of Participating Preferred Stock
shall be entitled to share with the holders of the Common Stock (and any other
class or series of
<PAGE>
4
capital stock of the Corporation entitled to share in any such distribution with
the holders of the Common Stock) in any distribution of assets otherwise made by
the Corporation to the holders of the Common Stock and the holders of shares of
Participating Preferred Stock shall be entitled to receive, ratably per share of
Participating Preferred Stock, a portion of any such distribution equal to ten
times (x) the number of shares of Participating Preferred Stock outstanding at
the time such distribution is to be made divided by (y) the total number of
shares of Common Stock outstanding immediately prior to the Effective Time of
the merger (the "Merger") with TEL Merger Corp. ("Sub") (as defined in the
Agreement and Plan of Merger, dated as of February 8, 1996, among the
Corporation, Triton Cayman (as hereinafter defined) and Sub (such portion being
hereinafter referred to as the "Participating Preferred Share").
Neither the consolidation of nor the merger of the Corporation with
or into any other corporation or corporations, nor the sale or transfer of all
or substantially all of the assets of the Corporation for cash, securities or
other property shall be deemed to be a liquidation, dissolution or a winding up
of the Corporation within the meaning of any of the provisions of this Section
3.
4. DIVIDENDS. The Board of Directors of the Corporation shall
declare a dividend on the Participating Preferred Stock at any time the Board of
Directors declares a dividend on the Common Stock. When, as and if the Board of
Directors of the Corporation determines to declare a dividend on the Common
Stock, the Board of Directors shall simultaneously declare a dividend on the
shares of Participating Preferred Stock out of funds of the Corporation legally
available for payment, such that the aggregate amount of the dividend declared
with respect to the shares of Participating Preferred Stock shall be the
Participating Preferred Share of the aggregate amount of the dividends declared
on the Participating Preferred Stock and the Common Stock (and any other series
or class that participates in dividends with the holders of the Common Stock).
Dividends on Participating Preferred Stock shall not be cumulative and shall be
payable to holders thereof on the record date fixed for payment of dividends on
the Participating Preferred Stock by the Board of Directors of the Corporation
or a committee of such Board duly authorized to fix such date.
5. RESTRICTION ON TRANSFER; OPTIONAL PURCHASE OF EQUITY UNITS.
(A) For so long as each 1/10th of one share of Participating Preferred Stock
shall be paired with one or more Class B Ordinary Shares, par value $.01 per
share ("Class B Shares"), of Triton Energy Limited ("Triton Cayman"), and shall
be traded together as a unit (an "Equity Unit") with such Class B Share, the
Participating Preferred Stock may not be transferred except as set forth herein.
<PAGE>
5
(B) The Transfer Agent shall refuse to register the transfer of
any shares (or fractions of shares) of Participating Preferred Stock comprised
in any Equity Unit, unless there is produced to the Transfer Agent such evidence
as it may in its discretion require to ensure that on the same occasion there is
being transferred to the same person the Class B Share or Class B Shares
comprised in the same Equity Unit.
(C) Each holder of one-tenth of one share of Participating
Preferred Stock included in an Equity Unit shall be required to offer each such
fraction of a share of Participating Preferred Stock for sale to (i) the
Corporation or Triton Cayman at the option of the Corporation or Triton Cayman,
respectively, on any date set by the Board of Directors of Triton Cayman or the
Corporation, as the case may be, on or after ________ ___, 1999, at the Equity
Unit Purchase Price (as defined below) and (ii) Triton Cayman at the option of
Triton Cayman, on any date set by the Board of Directors of Triton Cayman that
is immediately prior to the sale or other disposition of all of the Common Stock
(including by merger, consolidation, amalgamation or similar transaction
pursuant to which all of the Common Stock outstanding prior to such transaction
is converted into cash, securities or other property).
(D) The purchase price of the Equity Units (the "Equity Unit
Purchase Price") may be paid in cash, ordinary shares of Triton Cayman or a
combination thereof, as follows. To the extent that the Corporation or
Triton Cayman shall elect to pay the Equity Unit Purchase Price in cash, the
Equity Unit Purchase Price shall be the greater of (i) 95% of the Fair Market
Value (as defined below) of one Class A Ordinary Share ("Class A Share"), par
value $.01 per share, of Triton Cayman (less any amount due per Class A Share
in respect of the Cumulative Dividend Amount or the Liquidation Available
Amount, each as defined in the Articles of Association of Triton Cayman) and
(ii) the Fair Market Value of the Equity Unit. To the extent that Triton
Cayman shall elect to pay the Equity Unit Purchase Price in Class A Shares,
the Equity Unit Purchase Price shall be the greater of (i) .95 of a Class A
Share and (ii) the number of Class A Shares obtained by dividing the Fair
Market Value of an Equity Unit by the Fair Market Value of a Class A Share;
PROVIDED that, if at the time of such purchase, the Cumulative Dividend
Amount, as defined in the Articles of Association of Triton Cayman, is
positive, the Equity Unit Purchase Price shall be payable in a number of
Class C Ordinary Shares, par value $.01 per share ("Class C Shares"), of
Triton Cayman equal to the number of Class A Shares that would be payable
hereunder.
The "Fair Market Value" of a Class A Share or an Equity Unit shall equal
the average of the daily Closing Prices (as defined below) for the 20
consecutive Trading Days (as defined below) ending 15 days prior to the date of
such purchase (the "Purchase Date"). The Closing Price for each day shall be the
last reported sale price of the Class A Share or the Equity Unit, as the case
<PAGE>
6
may be, on the principal national securities exchange on which such security may
be listed or if such security is not then so listed, the closing price of such
security as shown by the National Association of Securities Dealers, Inc.
National Market or, if no such closing price is available, at the average of the
representative last bid and asked prices of such security in the
over-the-counter market, as shown by the National Association of Securities
Dealers, Inc, Automated Quotation System Level I (or comparable system) or in
the absence of any of the foregoing, the fair market value as determined by an
investment banking firm of recognized national standing chosen by the Board of
Directors of the Corporation, whose determination shall be conclusive. "Trading
Day" shall mean each weekday other than any day on which the Class A Shares or
the Equity Units, as the case may be, are not traded on any national securities
exchange or quoted in the Nasdaq National Market or in the over-the-counter
market.
(E) Notwithstanding anything to the contrary set forth herein,
neither the Corporation nor Triton Cayman may exercise its rights pursuant to
paragraph (C) above to purchase the Equity Units if, at such time:
(i) an event of default shall have occurred and is
continuing under any mortgage, bond, indenture, loan agreement
or other document evidencing any issue of indebtedness
("Indebtedness") of the Corporation for money borrowed, which
issue has an aggregate outstanding principal amount of not
less than $50,000,000, and such default shall result in such
Indebtedness becoming, whether by declaration or otherwise,
due and payable prior to the date on which it would otherwise
become due and payable or a default in any payment when due at
final maturity of any such Indebtedness; or
(ii) the fair market value of the net assets of the
Corporation, as determined in good faith by the Board of
Directors, is less than 110% of (x) the product of the
Liquidation Preference times (y) the number of shares of
Participating Preferred Stock outstanding at such time; or
(iii) a decree or order has been entered by a court
having jurisdiction in the premises, and is then pending, (a)
for relief in respect of the Corporation in an involuntary
case or proceeding under the United States Bankruptcy Code, 11
United States Code Sections 101 et seq., or any successor
thereto (the "Bankruptcy Code") or any other federal or state
bankruptcy, insolvency, reorganization or similar law or (b)
adjudging the Corporation a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or
<PAGE>
7
composition of or in respect of the Corporation under the
Bankruptcy Code or any other applicable federal or state law;
or (c) appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of any of its
properties, or ordering the winding up or liquidation of any
of its affairs; or
(iv) the Corporation has instituted a voluntary case or
proceeding under the Bankruptcy Code or any other applicable
federal or state law or any other case or proceedings to be
adjudicated a bankrupt or insolvent, or has consented to the
entry of a decree or order for relief in respect the
Corporation in any involuntary case or proceeding under the
Bankruptcy Code or any other applicable federal or state law
or to the institution of bankruptcy or insolvency proceedings
against the Corporation or the Corporation has filed a
petition or answer or consent seeking reorganization or relief
under the Bankruptcy Code or any other applicable federal or
state law, or has consented to the filing of any such petition
or to the appointment of or the taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Corporation or
of any substantial part of its property, or the making of an
assignment for the benefit of creditors, or has admitted in
writing its inability to pay its debts generally as they
become due.
(F) If less than all of the outstanding Equity Units are to be
purchased, the Corporation or Triton Cayman, as the case may be, will select
those to be purchased pro rata or by lot or in such other manner as the Board of
Directors of the Corporation or Triton Cayman, as the case may be, may
determine.
(G) Notices of any purchase shall be mailed not less than thirty
(30) nor more than sixty (60) days prior to the Purchase Date to the holders of
record of Equity Units to be purchased at their respective addresses as the same
appear upon the books of the depositary for the Equity Units (the "Depositary");
PROVIDED, HOWEVER, that no defect in the publication of such notice shall
affect the validity of the proceedings for the purchase of any Equity Units.
Payment of the Equity Unit Purchase Price of the Equity Units purchased shall be
made at the office of the Depositary, as specified in the Deposit Agreement to
be entered into with Triton Cayman and the Depositary, or at such other place or
places of purchase as shall be determined by the Board of Directors of the
Corporation or Triton Cayman, as the case may be, and shall be specified in the
<PAGE>
8
notice of purchase and shall be made against the surrender for cancellation of
the receipts representing Depositary Shares for the Equity Units purchased.
If notice of purchase shall have been mailed as hereinbefore
provided and if on or before the Purchase Date specified in such notice all
funds or Class A Shares or Class C shares necessary for such purchase shall have
been set aside by the Corporation or Triton Cayman, as the case may be, so as to
be available for the benefit of the holders of the Equity Units so purchased,
then from and after the Purchase Date, notwithstanding that any receipts for the
Depositary Shares representing the Equity Units shall not have been surrendered
or cancelled, the Participating Preferred Stock included in such Equity Units
shall no longer be deemed outstanding and all rights with respect to such
Participating Preferred Stock (including the right to dividends) shall forthwith
on the Purchase Date cease and terminate, except only the right of the holders
thereof to receive upon surrender of receipts for the Depositary Shares
representing Equity Units, the amount payable upon purchase of the Equity Units,
but without interest.
(H) All shares of Participating Preferred Stock so purchased as
part of an Equity Unit pursuant to this Section 6 by Triton Delaware shall have
the status of authorized but unissued shares of preferred stock, but such shares
so purchased shall not be reissued as shares of the series of Participating
Preferred Stock created hereby. Except as otherwise provided herein, the Board
of Directors of the Corporation (in the case of a purchase by the Corporation)
or Triton Cayman (in the case of a purchase by Triton Cayman) shall have the
full power and authority to prescribe the manner in which, and terms and
conditions upon which, the Participating Preferred Stock may be purchased.
(I) Any purported transfer of shares (or fractions of shares) of
Participating Preferred Stock in violation of this Section 6 shall be null and
void, and shall not be recorded or otherwise reflected in the books of the
Corporation.
6. SPECIAL VOTING RIGHTS. Without the vote or consent of the
holders of at least a majority of the number of shares of Participating
Preferred Stock then outstanding, voting or consenting, as a class, together
with the holders of any other outstanding shares of Preferred Stock similarly
affected, the Corporation shall not amend, alter or repeal the Certificate of
Incorporation of the Corporation so as adversely to affect the preferences and
rights of the holders of the Participating Preferred Stock.
7. NO PREEMPTIVE RIGHTS. The holders of the Participating
Preferred Stock shall not have any preemptive rights.
<PAGE>
9
8. "COMMON STOCK" DEFINED. Whenever reference is made herein to
"Common Stock," "Common Stock" shall mean all shares now or hereafter authorized
of the class of capital stock authorized on the date of issuance of the
Participating Preferred Stock and designated as Common Stock, $.01 par value of
the Corporation, and stock of any other class or of any other par value into
which such shares may hereafter be changed.
9. LEGENDS. Each certificate for Participating Preferred Stock
shall bear a legend in substantially the following form:
"THE SHARES EVIDENCED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE TERMS OF SECTION 5 OF THE CERTIFICATE OF
DESIGNATION (THE "CERTIFICATE OF DESIGNATION") RELATING TO THE
SHARES EVIDENCED HEREBY, WHICH PROHIBITS TRANSFERS OTHER THAN
TRANSFERS (a) IN CONNECTION WITH A SIMULTANEOUS TRANSFER TO A
SUBSEQUENT HOLDER OF ANY CLASS B ORDINARY SHARES, PAR VALUE $.01 PER
SHARE, OF TRITON ENERGY LIMITED, COMPRISED IN THE SAME EQUITY UNIT
(AS DEFINED IN THE CERTIFICATE OF DESIGNATION), OR (b) TO THE
CORPORATION OR TRITON CAYMAN AT ANY TIME AFTER ________, 1999, AT
THE OPTION OF THE CORPORATION OR TRITON CAYMAN OR TO TRITON CAYMAN,
AT THE OPTION OF TRITON CAYMAN, IMMEDIATELY PRIOR TO THE SALE OR
OTHER DISPOSITION OF ALL OF THE COMMON STOCK OF THE CORPORATION, IN
EACH CASE ON THE TERMS AND CONDITIONS SPECIFIED IN THE CERTIFICATE
OF DESIGNATION. ANY PURPORTED TRANSFER OF THE SHARES (OR FRACTIONS
OF SHARES) REPRESENTED BY THIS CERTIFICATE IN VIOLATION OF THE
TRANSFER RESTRICTIONS CONTAINED IN SECTION 5 OF THE CERTIFICATE OF
DESIGNATION SHALL BE NULL AND VOID AND SHALL NOT BE RECORDED OR
OTHERWISE REFLECTED IN THE BOOKS OF THE CORPORATION."
<PAGE>
10
IN WITNESS WHEREOF, TRITON ENERGY CORPORATION has caused this
certificate to be signed by the officers indicated below this ___ day of
_________, 1996.
TRITON ENERGY CORPORATION
By:
--------------------------------
Name:
Title:
<PAGE>
EXHIBIT 4.3
FORM OF
UNANIMOUS WRITTEN CONSENT
OF
BOARD OF DIRECTORS
OF
TRITON ENERGY LIMITED
AUTHORIZING A SERIES OF PREFERENCE SHARES
The undersigned, constituting all of the directors of Triton Energy
Limited, a Cayman Islands company (the "Company"), hereby consent in writing to
the taking of the following actions and the adoption of the following
resolutions without the holding of, and waive any notices required for, a
meeting of directors for the purposes of considering the same:
WHEREAS, Triton Energy Corporation, a Delaware corporation ("TEC"), desires
to effect a reorganization pursuant to which the Company would become the parent
holding company of TEC through the merger (the "Merger") of TEL Merger Corp., a
Delaware corporation and wholly owned subsidiary of the Company ("Sub"), with
and into TEC; and
WHEREAS, in connection with the Merger, the Board of Directors and the sole
shareholder of the Company have resolved to amend and restate the Memorandum of
Association and Articles of Association (the "Restated Charter") to be effective
immediately prior to the effective time of the Merger; now therefore, be it
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Company in accordance with the provisions of its Memorandum of
Association and Articles of Association, as amended and restated as aforesaid
(collectively, the "Charter"), the Board of Directors, effective as of the
effective time of the Merger, does hereby create, authorize and provide for the
issuance of a series of preference shares consisting of ______ shares, par value
$.01 per share, with the following rights, terms, preferences and voting powers:
1. DESIGNATION OF SERIES, NUMBER OF SHARES AND STATED VALUE. The series
of preference shares created herein shall be designated as the 5% Convertible
Preference Shares, par value $.01 per share (hereinafter the "5% Preference
Shares"), and the number of shares initially constituting the 5% Preference
Shares shall be _____ shares. The stated value shall be $34.41 per share (the
"Stated Value").
2. VOTING RIGHTS. The holders of 5% Preference Shares shall not, by
virtue of their ownership thereof, be entitled to vote upon any matter except as
provided in Section 7 herein or as required by law. Whenever the holders of the
5% Preference Shares shall be entitled to exercise voting rights, each holder of
record thereof shall have one vote for each share so held.
<PAGE>
Page 2
3. LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the holders of 5%
Preference Shares shall be entitled to receive out of assets of the Company
available for distribution to shareholders, before any distribution of assets is
made to holders of Class A Ordinary Shares or any shares ranking junior to the
5% Preference Shares as to liquidation, liquidating distributions (including,
without limitation, any outstanding preference shares issuable under the
Company's Shareholder Rights Plan) an amount per share equal to the Stated Value
plus accumulated and unpaid dividends thereon including any Penalty Dividend as
defined in Section 4 hereof; provided, however, that such rights shall accrue to
the holders of the 5% Preference Shares only in the event that the Company's
payments with respect to the liquidation preferences of the holders of shares of
the Company ranking senior as to liquidation rights to the 5% Preference Shares
are fully met.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the Company, the amounts payable with respect to the 5% Preference Shares and
any other shares of the Company ranking as to any such distribution on a parity
with the 5% Preference Shares are not paid in full, the holders of the 5%
Preference Shares and of such other shares shall share ratably in any such
distribution of assets of the Company in proportion to the full respective
preferential amounts to which they are entitled. After payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of 5% Preference Shares shall not be entitled to any further participation in
and distribution of assets by the Company.
Neither the consolidation of nor merging of the Company with or into any
other corporation or corporations, nor the sale or lease of all or substantially
all of the assets of the Company shall be deemed to be a liquidation,
dissolution or a winding up of the Company within the meaning of any of the
provisions of this Section 3.
4. DIVIDENDS. Holders of 5% Preference Shares shall be entitled to
receive, when and as declared by the Board of Directors of the Company out of
assets of the Company legally available for payment, (i) a fixed cumulative cash
dividend of 5% per annum on the Stated Value, plus (ii) Penalty Dividends, if
any, as set forth below, and no more, payable in semi-annual installments on
September 30 and March 30 (unless such day is a non-business day, in which event
on the next business day), commencing March 30, 1996. Dividends on each 5%
Preference Share shall be cumulative from the date of original issue of such
share (the "Issue Date") and shall be payable to holders of such share on the
record date fixed for such payment by the Board of Directors of the Company or a
committee of such Board duly authorized to fix such date. Dividends (including
any Penalty Dividend) on account of arrears for any past dividend periods may be
declared and paid at any time without reference to any regular dividend payment
date to holders of record on a record date fixed for such payment by the Board
of Directors of the Company or by a committee of such Board fully authorized to
fix such date.
The dividend payable per 5% Preference Share as of March 30, 1996 shall be
an amount equal to (i) the dividend accumulated and unpaid with respect to one
share of 5% Convertible Preferred Stock of Triton Energy Corporation through the
effective date of the merger of TEL Merger Corp. with and into Triton Energy
Corporation plus (ii) an amount equal to the dividend accumulated with respect
to one 5% Convertible Preference Share from such effective date
<PAGE>
Page 3
through March 30, 1996. Dividends payable on the date of any redemption of the
5% Preference Shares not occurring on a regular dividend payment date shall be
calculated on the basis of a 360 day year consisting of twelve 30 day months.
If the dividends on the 5% Preference Shares shall not have been declared and
paid in full, or funds set aside for payment, by a date 15 days after each March
30 or September 30 dividend payment date, as the case may be (the "Calculation
Date"), dividends payable on the 5% Preference Shares shall be increased by an
amount equal to the Penalty Dividend Rate applied against the amount of
dividends so due and unpaid on the 5% Preference Shares, to accrue on a daily
basis for the period from the Calculation Date to the date the dividends in
respect of such dividend payment date shall be paid (the "Penalty Dividend").
The "Penalty Dividend Rate" on any date shall be the Prime Rate on such date
plus 1% per annum. "Prime Rate" on any day means the prime rate of Morgan
Guaranty Trust Company of New York in effect on such day. If for any reason
such bank shall not have a published prime rate on the date of determination
thereof, then "Prime Rate" shall be the rate set forth on such date in
"Statistical Release H.15(519), Selected Interest Rates," published by the Board
of Governors of the Federal Reserve System, under the heading "Bank Prime Loan."
The Penalty Dividend Rate shall be fixed on and as of the Calculation Date with
respect to any Penalty Dividend and shall continue at such rate for the
following six months and shall be adjusted each six months thereafter for the
succeeding six-month period.
No dividends shall be declared or paid or set apart for payment on any
shares ranking, as to dividends, junior to the 5% Preference Shares for any
period unless full cumulative dividends have been or contemporaneously are
declared and paid (or declared and a sum sufficient for the payment thereof set
apart for such payment) on the 5% Preference Shares for all dividend payment
periods terminating on or prior to the date of payment of dividends on such
junior shares. When dividends are not paid in full upon the 5% Preference
Shares and upon any other shares ranking on a parity as to dividends with the 5%
Preference Shares, all dividends declared upon 5% Preference Shares and any
other shares ranking on a parity as to dividends shall be declared pro rata so
that in all cases the amount of dividends declared per share on the 5%
Preference Shares and such other shares shall bear to each other the same ratio
that accumulated and unpaid dividends per share on the 5% Preference Shares and
such other shares bear to each other. Except as provided in the preceding
sentence, unless full cumulative dividends on the 5% Preference Shares have been
paid, no dividends shall be declared or paid or set aside for payment or other
distribution made upon any other shares of the Company ranking junior to or on a
parity with the 5% Preference Shares as to dividends, including the Ordinary
Shares of the Company and no repurchase or redemption of such Ordinary Shares
shall be permitted. As used in this paragraph, the term "dividend" includes any
Penalty Dividend.
5. MANDATORY REDEMPTION. The 5% Preference Shares shall be subject to
mandatory redemption by the Company on March 30, 2004 (the "Mandatory Redemption
Date") at a redemption price (the "Redemption Price") equal to the Stated Value
plus any accumulated and unpaid dividends thereon including any Penalty
Dividend. At the option of the Company, the Redemption Price may be paid in
cash or by issuing for each 5% Preference Share being redeemed such number of
Class A Ordinary Shares as are equal to the Redemption Price divided by the
Mandatory Redemption Date Market Price. "Mandatory Redemption Date Market
Price" shall mean the average of the Closing Prices of the Class A Ordinary
Shares, as defined in
<PAGE>
Page 4
Section 8(G), for the five consecutive trading days commencing with the twenty-
fifth day immediately preceding the Mandatory Redemption Date. Fractional
entitlements shall be satisfied in cash as provided in Section 8(H).
6. OPTIONAL REDEMPTION. (A) Except as set forth in this paragraph, the
5% Preference Shares are not redeemable prior to March 30, 1998. The Company,
at its option, may at any time on or after March 30, 1998 redeem for cash all or
part of the 5% Preference Shares on any date set by the Board of Directors of
the Company at the Redemption Price to the date fixed for redemption.
Notwithstanding the foregoing, the Company may redeem for cash all outstanding
shares of the 5% Preference Shares on or after such time as there are fewer than
133,005 Convertible Preference Shares outstanding.
(B) If less than all of the outstanding 5% Preference Shares are to be
redeemed, the Company will select those to be redeemed pro rata or by lot or in
such other manner as the Board of Directors of the Company may determine.
(C) Notices of any redemption shall be mailed not less than thirty (30)
nor more than sixty (60) days prior to the date fixed for redemption to the
holders of record of 5% Preference Shares to be redeemed at their respective
addresses as the same appear upon the books of the Company; PROVIDED, HOWEVER,
that no defect in the publication of such notice shall affect the validity of
the proceedings for the redemption of any 5% Preference Shares. Payment of the
Redemption Price of the shares redeemed shall be made at the office of the
Transfer Agent, as specified in Section 12 hereof, or at such other place or
places of redemption as shall be determined by the Board of Directors of the
Company and shall be specified in the notice of redemption and shall be made
against the surrender for cancellation of the certificates for the shares
redeemed. Any 5% Preference Shares so noticed for redemption may be converted
into Class A Ordinary Shares, as hereinafter provided, at any time prior to the
close of business on the fifth business day prior to the date fixed for the
redemption.
If notice of redemption shall have been mailed as hereinbefore provided and
if on or before the redemption date specified in such notice all funds necessary
for such redemption shall have been set aside by the Company so as to be
available for the benefit of the holders of the shares so called for redemption,
then from and after the date fixed for redemption the 5% Preference Shares so
called for redemption, notwithstanding that any certificate therefor shall not
have been surrendered or cancelled, shall no longer be deemed outstanding and
all rights with respect to such shares (including the right to accumulate
dividends) shall forthwith on the redemption date cease and terminate, except
only the right of the holders thereof to receive upon surrender of certificates
thereof the amount payable upon redemption thereof, but without interest.
(D) All 5% Preference Shares so redeemed pursuant to this Section 6 or
Section 5 shall have the status of authorized but unissued preference shares,
but such shares so redeemed shall not be reissued as shares of the series of 5%
Preference Shares created hereby. Except as otherwise provided herein, the
Board of Directors of the Company shall have the full power and
<PAGE>
Page 5
authority to prescribe the manner in which, and terms and conditions upon which,
the 5% Preference Shares may be redeemed.
7. SPECIAL VOTING RIGHTS. Without the vote or consent of the holders of
at least two-thirds of the number of 5% Preference Shares then outstanding,
voting or consenting, as a class, together with the holders of any other
outstanding preference shares similarly affected, the Company shall not amend,
alter or repeal the Memorandum of Association or Articles of Association of the
Company so as adversely to affect the preferences and rights of the holders of
the 5% Preference Shares, nor shall the Company issue for consideration other
than wholly for cash any shares of a class of shares ranking prior to the 5%
Preference Shares with respect to dividends or to the distribution of assets in
liquidation.
8. CONVERSION RIGHTS.
(A) CONVERSION PROVISIONS. The holders of any one or more 5% Preference
Shares may, at their option, convert such share or shares, on the terms and
conditions set forth in this Section 8, into fully paid and non-assessable Class
A Ordinary Shares except that, with respect to any 5% Preference Shares called
for redemption, the conversion right shall terminate at the close of business on
the fifth business day prior to the redemption date, unless default is made in
the payment of the Redemption Price. Each 5% Preference Share shall be
convertible into one Class A Ordinary Share (equivalent to a conversion price
equal to the Stated Value per 5% Preference Share); PROVIDED, HOWEVER, that the
number of Class A Ordinary Shares issuable on conversion of each 5% Preference
Share (the "Conversion Rate") shall be subject to adjustment as hereinafter
provided in this Section 8.
(B) ADJUSTMENT FOR UNPAID DIVIDENDS. If at the time of any conversion
there shall be any unpaid Penalty Dividends, then the Conversion Rate shall be
adjusted so that upon conversion the holder of a 5% Preference Share then
converted shall receive for each 5% Preference Share a number of Class A
Ordinary Shares equal to the Conversion Rate in effect immediately before such
adjustment multiplied by the quotient of (x) the sum of (1) the conversion price
in effect immediately prior to such adjustment plus (2) the amount of such
unpaid Penalty Dividends plus (3) the cumulative amount of any unpaid dividends
to the most recent dividend payment date divided by (y) the conversion price in
effect immediately prior to such adjustment.
(C) ADJUSTMENT FOR CHANGE IN SHARES. If the Company
(i) pays a dividend or makes a distribution on its Class A Ordinary
Shares, in shares of its Class A Ordinary Shares;
(ii) divides its outstanding Class A Ordinary Shares into a greater
number of shares;
(iii) combines its outstanding Class A Ordinary Shares into a smaller
number of shares;
<PAGE>
Page 6
(iv) makes a distribution on its Class A Ordinary Shares in shares
other than Class A Ordinary Shares; or
(v) issues by reclassification of its Class A Ordinary Shares any
shares;
then the conversion right and the conversion price in effect immediately before
such action shall be adjusted so that the holder of the 5% Preference Shares
thereafter converted may receive the number of shares of the Company which he
would have owned immediately following such action if he had converted the 5%
Preference Shares immediately before the record date (or, if no record date, the
effective date) for such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a holder of the 5% Preference Shares upon conversion
of it may receive shares of two or more classes of shares of the Company, the
Company shall determine the allocation of the adjusted conversion price between
the classes of shares. After such allocation, the conversion privilege and
conversion price of each class of shares shall thereafter be subject to
adjustment on terms comparable to those applicable to Class A Ordinary Shares
contained in this Section 8.
(D) ADJUSTMENT FOR RIGHTS ISSUE. If the Company distributes any rights or
warrants to all holders of its Class A Ordinary Shares entitling them for a
period expiring within sixty (60) days after the record date mentioned below to
purchase Class A Ordinary Shares at a price per share less than the current
market price per share on that record date, the conversion price shall be
adjusted in accordance with the formula:
(N X P)
C(1) = C x O + M
---------
O + N
where
C(1) = the adjusted conversion price.
C = the current conversion price.
O = the number of Class A Ordinary Shares outstanding on the record
date.
N = the number of additional Class A Ordinary Shares offered.
P = the offering price per share of the additional shares.
M = the current market price per Class A Ordinary Share on the record
date.
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the rights or warrants.
<PAGE>
Page 7
(E) ADJUSTMENT FOR OTHER DISTRIBUTIONS. If the Company distributes to all
holders of its Class A Ordinary Shares any of its assets or debt securities or
any rights or warrants to purchase securities of the Company, the conversion
price shall be adjusted in accordance with the formula:
C(1) = C x M - F
-----
M
where
C(1) = the adjusted conversion price.
C = the current conversion price.
M = the current market price per Class A Ordinary Share on the record
date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one Class A Ordinary
Share. The Board of Directors of the Company shall determine the
fair market value.
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the distribution.
This paragraph (E) does not apply to cash dividends or cash distributions
paid out of consolidated current or retained earnings as shown on the books of
the Company. Also, this paragraph (E) does not apply to rights or warrants
referred to in paragraph (D) above.
(F) ADJUSTMENT FOR REORGANIZATION. In case of any consolidation,
amalgamation or merger of the Company into another 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 Class A Ordinary Shares), or in case of any sale or
conveyance to another corporation of all or substantially all of the assets of
the Company, the holder of each 5% Preference Share then outstanding shall have
the right thereafter, subject to the terms and conditions of this Section 8, to
convert such share only into the kind and amount of shares and other securities
and property receivable upon such consolidation, amalgamation, merger, sale or
conveyance by a holder of the number of Class A Ordinary Shares into which such
5% Preference Share might have been converted immediately prior to such
consolidation, amalgamation, merger, sale or conveyance; and effective provision
shall be made in the Certificate of Incorporation, Articles of Association or
other charter document of the resulting or surviving corporation or otherwise so
that the provisions set forth in this Section 8 shall thereafter be applicable,
as nearly as practicable, to any such other shares and other securities and
property deliverable upon conversion of the 5% Preference Shares remaining
outstanding or other convertible preference shares received by the holders in
place thereof; and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon the exercise of the conversion privilege,
such shares, securities or property as the holders of the 5% Preference Shares
remaining outstanding, or other convertible preference shares received by the
holders in place thereof, may be entitled to and to make provisions for the
protection of the
<PAGE>
Page 8
conversion right as herein provided. In case securities or property other than
Class A Ordinary Shares shall be issuable or deliverable upon conversion as
aforesaid, then all reference in this paragraph (F) shall be deemed to apply, so
far as appropriate and as nearly as practicable, to such other securities or
property.
(G) CURRENT MARKET PRICE. For the purpose of any computation under this
Section 8, the current market price per Class A Ordinary Share at any date shall
be deemed to be the average of the daily closing prices for the five (5)
consecutive business days commencing ten (10) business days before the date in
question. The "Closing Price" for each day shall be the last reported sale of
Class A Ordinary Shares on the principal national securities exchange on which
the Class A Ordinary Shares may be listed or if such shares are not then so
listed, the closing price of the Class A Ordinary Shares as shown by the
National Association of Securities Dealers, Inc. National Market System or, if
no such closing price is available, at the average of the representative last
bid and asked prices of such Class A Ordinary Shares in the over-the-counter
market, as shown by the National Association of Securities Dealers, Inc.
Automated Quotation System Level I (or comparable system) or in the absence of
any of the foregoing, the fair market value as determined by the Board of
Directors (whose determination shall be conclusive).
(H) FRACTIONAL SHARES. No fractional Class A Ordinary Shares shall be
issued on any conversion or redemption, but in lieu thereof, the Company shall
pay therefor in cash an amount equal to the current market value of such
fractional interest computed on the basis of the average closing price as
determined in accordance with the provision of paragraph (G) above, on the five
(5) business days prior to the date upon which conversion is deemed to have been
effected. Any determination that the Company or the Board of Directors makes
regarding fractional shares is conclusive.
(I) WHEN NO ADJUSTMENT REQUIRED. Notwithstanding the provisions of
paragraphs (C), (D), (E) and (F) above, no adjustment of the Conversion Rate
shall be required upon the occurrence of any of the events described in
paragraphs (C), (D), (E) and (F), unless such adjustment would require an
increase or decrease of at least 1% in the Conversion Rate, but in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment. All calculations under this Section 8 shall be made and rounded to
the nearest one-hundredth of a share.
No payment or adjustment on account of dividends accumulated or in arrears
upon the 5% Preference Shares, any other series of preference shares, or Class A
Ordinary Shares, shall be made in connection with any conversion, except as
provided in paragraph 8(B) above or at the discretion of the Board of Directors.
Preference shares surrendered for conversion between the record date for payment
of dividends and the dividend payment date (except for 5% Preference Shares
called for redemption during such period) must be accompanied by a payment of an
amount equal to the dividend thereon which the holder is to receive.
<PAGE>
Page 9
No adjustment need be made for sales of Class A Ordinary Shares pursuant to
a plan for reinvestment of dividends or interest and no adjustment need be made
for a change in the par value of the Class A Ordinary Shares.
The Board of Directors may make such adjustments in the Conversion Rate, in
addition to those required by this Section 8, as shall be determined by the
Board, as evidenced by a Board resolution, to be advisable in order to avoid
taxation, so far as practicable, of any dividend of shares or share rights or
any event treated as such for Federal income tax purposes to the recipients.
The Board shall have the power to resolve any ambiguity or correct any error in
this Section 8 and its action in so doing, as evidenced by a Board resolution,
shall be final and conclusive, provided that such action shall not adversely
affect the holders of the 5% Preference Shares in any material respect.
The certificate of any independent firm of public accountants of recognized
standing selected by the Board of Directors shall be satisfactory evidence of
the correctness of any computation made in this Section 8.
(J) NOTICE OF ADJUSTMENT. Whenever there is an adjustment requiring a
change in the Conversion Rate, the Company shall file with the transfer agent,
or transfer agents, for the Class A Ordinary Shares, a statement signed by the
President or a Vice President and by the Treasurer or the Secretary of the
Company, describing specifically the event giving rise to such adjustment and
stating the adjustment which shall be made to the Conversion Rate. The
statement so filed shall be open to inspection by any holder of record of the 5%
Preference Shares. The Company shall at the time of filing any such statement
mail notice to the same effect to holders of the 5% Preference Shares at their
addresses appearing on the books of the Company or supplied by them to the
Company for the purpose of notice. In addition, the Company shall include a
notice of the Conversion Rate with each dividend payment on the 5% Preference
Shares or otherwise give notice thereof promptly after the due date for each
such dividend, whenever there has been a change in the Conversion Rate since the
last previous dividend due date.
(K) CONVERSION PROCEDURE. Upon surrender to the Company at the office of
the transfer agent, or transfer agents, for the Class A Ordinary Shares, or at
such other place or places, if any, as the Board of Directors of the Company may
determine, of certificates, duly endorsed to the Company or in blank, for 5%
Preference Shares to be converted, together with appropriate evidence of the
payment of any transfer or similar tax, if required, and instructions in writing
to the Company to convert such shares and specifying the name and address of the
person, corporation, firm or other entity to whom such shares are to be issued,
the Company will issue (i) the number of full Class A Ordinary Shares issuable
on conversion thereof as of the time of such surrender and as promptly as
practicable thereafter will deliver certificates for such Class A Ordinary
Shares, and (ii) cash for any remaining fraction of a share, as provided in
paragraph (H) above. The Company shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of Class A Ordinary Shares upon
conversion; PROVIDED, HOWEVER, that the holder shall pay any such tax which is
due because such shares are to be issued in a name other than that of such
holder.
<PAGE>
Page 10
The Company shall at all times after the Issue Date reserve for issuance
upon conversion of the 5% Preference Shares a sufficient number of full Class A
Ordinary Shares for the conversion of each outstanding 5% Preference Share at
the current Conversion Rate. The Class A Ordinary Shares issuable upon such
conversion shall have one vote per share.
(L) VOLUNTARY INCREASE IN CONVERSION RATE. The Company from time to time
may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) days and if the increase is irrevocable during
the period. Whenever the Conversion Rate is increased, the Company shall give
notice of the increase at least fifteen (15) days prior to the date the
increased Conversion Rate takes effect, in the manner set forth in paragraph (E)
of this Section 8, which notice shall state the increased Conversion Rate and
the period it will be in effect. An increase in the Conversion Rate pursuant to
this paragraph (L) shall not change or adjust the Conversion Rate otherwise in
effect for purposes of this Section 8.
(a) NOTICE OF CERTAIN TRANSACTIONS. If
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to paragraphs (C), (D), (E) or (F) of this Section
8; or
(2) there is a liquidation or dissolution of the Company;
the Company shall provide notice in the manner set forth in paragraph (J) of
this Section 8 of such action, stating therein the proposed record date for a
distribution or the effective date of a reclassification, consolidation; merger,
sale, conveyance, liquidation or dissolution, at least fifteen (15) days in
advance of such date. Failure to mail the notice or any defect therein shall
not affect the validity of the transaction.
9. SUBDIVISION OF SHARES. The Board of Directors may at any time
subdivide the 5% Preference Shares as of an effective date fixed by the Board of
Directors. Notice of the proposed subdivision and the effective date shall be
mailed to each holder of record of 5% Preference Shares not less than fifteen
(15) days before the effective date. The Stated Value, Conversion Rate and
liquidation rights of the 5% Preference Shares in effect immediately prior to
the close of business on the effective date of such subdivision shall be
proportionately reduced as of the close of business on the effective date of
such division.
10. "CLASS A ORDINARY SHARES" DEFINED. Whenever reference is made in
this resolution to "Ordinary Shares," or any class thereof, such term shall mean
all shares of the Company authorized at the Issue Date, or thereafter, and
designated as Ordinary Shares, or such class thereof, and shares of any other
class into which such shares may hereafter be changed.
11. NO PREEMPTIVE RIGHTS. The holders of the 5% Preference Shares shall
not have any preemptive rights.
12. AGENT. Chemical Bank is hereby appointed Transfer Agent, Registrar,
Conversion Agent and Dividend Disbursing Agent for the 5% Preference Shares.
<PAGE>
Page 11
AND BE IT FURTHER RESOLVED, that any documents heretofore executed or
lawful actions heretofore taken by any of the officers of the Company in
connection with the transactions herein described are hereby ratified, confirmed
and approved in all respects; and further
RESOLVED, that these resolutions may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
<PAGE>
Page 12
EXECUTED as of the ____ day of ___________________, 1996.
--------------------------------
Thomas G. Finck
--------------------------------
Robert B. Holland, III
--------------------------------
Peter Rugg
<PAGE>
EXHIBIT 4.4
- --------------------------------------------------------------------------------
TRITON ENERGY LIMITED
and
CHEMICAL BANK,
as Rights Agent
Rights Agreement
Dated as of ________ __, 1996
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
Section 1. Certain Definitions........................................ 2
Section 2. Appointment of Rights Agent................................ 9
Section 3. Issue of Right Certificates................................ 9
Section 4. Form of Right Certificates................................. 12
Section 5. Countersignature and Registration.......................... 13
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates............................................... 14
Section 7. Exercise of Rights, Purchase Price; Expiration Date of Rights 16
Section 8. Cancellation and Destruction of Right Certificates......... 19
Section 9. Availability of Shares of Preference Shares................ 19
Section 10. Preference Share Record Date............................... 22
Section 11. Adjustment of Purchase Price, Number of Shares and Number of
Rights..................................................... 23
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. 42
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earnings
Power...................................................... 42
Section 14. Fractional Rights and Fractional Shares.................... 50
Section 15. Rights of Action........................................... 52
Section 16. Agreement of Right Holders................................. 53
Section 17. Right Certificate Holder Not Deemed a Shareholder.......... 54
Section 18. Concerning the Rights Agent................................ 55
Section 19. Merger or Consolidation or Change of Name of Rights Agent.. 56
Section 20. Duties of Rights Agent..................................... 57
Section 21. Change of Rights Agent..................................... 61
- i -
<PAGE>
Section 22. Issuance of New Right Certificates......................... 63
Section 23. Redemption................................................. 64
Section 24. Exchange................................................... 65
Section 25. Notice of Certain Events................................... 68
Section 26. Notices.................................................... 69
Section 27. Supplements and Amendments................................. 70
Section 28. Successors................................................. 71
Section 29. Benefits of this Agreement................................. 72
Section 30. Severability............................................... 72
Section 31. Governing Law.............................................. 72
Section 32. Counterparts............................................... 72
Section 33. Descriptive Headings....................................... 73
Section 33. Descriptive Headings....................................... 73
- ii -
<PAGE>
RIGHTS AGREEMENT
Agreement, dated as of ________ __, 1996, between Triton Energy
Limited, a company organized under the laws of the Cayman Islands (the
"Company"), and Chemical Bank, a national banking association (the "Rights
Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one preferred share purchase right (a "Right") for each share of
Class A Common Stock, Class B Common Stock and Class C Common Stock (as such
terms are hereinafter defined) of the Company outstanding as of the close of
business (as defined below) on March __, 1996 (the "Record Date"), each Right
representing the right to purchase one one-thousandth (subject to adjustment) of
a Preference Share (as hereinafter defined), upon the terms and subject to the
conditions herein set forth, and has further authorized and directed the
issuance of one Right (subject to adjustment as provided herein) with respect to
each Ordinary Share (as defined below) that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date and
the Final Expiration Date (as such terms are hereinafter defined); PROVIDED,
HOWEVER, that Rights may be issued with respect to Ordinary Shares that
shall become outstanding after the Distribution Date and prior to the Redemption
Date and the Final Expiration Date in accordance with Section 22.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
<PAGE>
2
Section 1. CERTAIN DEFINITIONS. For purposes of this Agreement,
the following terms have the meaning indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as such
term is hereinafter defined) of a number of Ordinary Shares (as such term
is hereinafter defined) equal to 15% or more of the number of Ordinary
Shares (as such term is hereinafter defined) then outstanding, but shall
not include an Exempt Person (as such term is hereinafter defined);
PROVIDED, HOWEVER, that if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person" has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially owned
a number of Ordinary Shares that would otherwise cause such Person to be a
"Acquiring Person" or (ii) such Person was aware of the extent of its
Beneficial Ownership of Ordinary Shares but had no actual knowledge of the
consequences of such Beneficial Ownership under this Rights Agreement) and
without any intention of changing or influencing control of the Company,
and such Person, as promptly as practicable after being advised of such
determination, divests himself or itself of Beneficial Ownership of a
sufficient number of Ordinary Shares so that such Person would no longer
be an Acquiring Person, then such Person shall not be deemed to be or to
have become an "Acquiring Person" for any purposes of this Agreement.
<PAGE>
3
Notwithstanding the foregoing, (i) if a Person would be deemed an
Acquiring Person upon the adoption of this Agreement, such Person will not
be deemed an Acquiring Person for any purposes of this Agreement unless
and until such Person acquires Beneficial Ownership of any additional
Ordinary Shares after the adoption of this Agreement unless upon the
consummation of the acquisition of such additional Ordinary Shares such
Person does not beneficially own a number of Ordinary Shares equal to 15%
or more of the number of Ordinary Shares then outstanding and (ii) no
Person shall become an "Acquiring Person" as the result of an acquisition
of Ordinary Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of Ordinary Shares
beneficially owned by such Person to 15% or more of the number of Ordinary
Shares then outstanding, PROVIDED, HOWEVER, that if a Person shall
become the Beneficial Owner of a number of Ordinary Shares equal to 15% or
more of the number of Ordinary Shares then outstanding by reason of such
share acquisitions by the Company and thereafter become the Beneficial
Owner of any additional Ordinary Shares, then such Person shall be deemed
to be an "Acquiring Person" unless upon the consummation of the
acquisition of such additional Ordinary Shares such Person does not
beneficially own a number of Ordinary Shares equal to 15% or more of the
number of Ordinary Shares then outstanding. The phrase "then
outstanding", when used with reference to a Person's Beneficial Ownership
of securities
<PAGE>
4
of the Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to beneficially
own hereunder.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, shall be
deemed to have "Beneficial Ownership" of and shall be deemed to
"beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates is deemed to beneficially own, directly or indirectly
within the meaning of Rule 13d-3 of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement;
(ii) which such Person or any of such Person's Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights, warrants
or options, or otherwise; PROVIDED, HOWEVER, that a Person
<PAGE>
5
shall not be deemed the Beneficial Owner of, or to beneficially own,
(x) securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase,
(y) securities which such Person has a right to acquire on the
exercise of Rights at any time prior to the time a Person becomes an
Acquiring Person or (z) securities issuable upon exercise of Rights
from and after the time a Person becomes an Acquiring Person if such
Rights were acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or pursuant
to Section 3(a) or Section 22 hereof ("original Rights") or pursuant
to Section 11(i) or Section 11(n) with respect to an adjustment to
original Rights; or (b) the right to vote pursuant to any agreement,
arrangement or understanding; PROVIDED, HOWEVER, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own,
any security by reason of such agreement, arrangement or
understanding if the agreement, arrangement or understanding to vote
such security (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act
and (2) is not also
<PAGE>
6
then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to
Section 1(c)(ii)(b)) or disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in the State of New York,
U.S.A. or the State in the U.S.A. in which the principal office of the
Rights Agent is located, are authorized or obligated by law or executive
order to close.
(e) "Class A Ordinary Shares" shall mean the Class A Ordinary
Shares, par value $.01 per share, of the Company.
(f) "Class B Ordinary Shares" shall mean the Class B Ordinary
Shares, par value $.01 per share, of the Company.
(g) "Class C Ordinary Shares" shall mean the Class C Ordinary
Shares, par value $.01 per share, of the Company.
(h) "close of business" on any given date shall mean 5:00 P.M.,
New York City time, on such date; PROVIDED, HOWEVER, that if such date
is not a Business Day it shall
<PAGE>
7
mean 5:00 P.M., New York City time, on the next succeeding Business Day.
(i) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(i) "Equity Unit" shall mean the unit consisting, at the date of
the adoption of the Articles of Association of the Company, of one-tenth
of one share of Participating Preferred Stock, par value $.01 per share,
of Triton Energy Corporation and one Class B Ordinary Share, as the same
may be adjusted from time to time.
(j) "Exempt Person" shall mean the Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any entity or
trustee holding Ordinary Shares for or pursuant to the terms of any such
plan or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the
(k) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(l) "New York Stock Exchange" shall mean the stock market operated
by the New York Stock Exchange, Inc.
(m) "Ordinary Shares" when used with reference to the Company
shall mean the Class A Ordinary Shares, the Class B Ordinary Shares and
the Class C Ordinary Shares. "Ordinary Shares" when used with reference
to any Person other than the Company shall mean the share capital (or, in
the case of
<PAGE>
8
an unincorporated entity, the equivalent equity interest) with the
greatest voting power of such other Person or, if such other Person is a
subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(n) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
(o) "Preference Shares" shall mean the Series A Junior
Participating Preference Shares, par value $.01 per share, of the Company
having the rights and preferences set forth in the resolutions
establishing such class of Preference Shares attached hereto as Exhibit A.
(p) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
(q) "Securities Act" shall mean the U.S. Securities Act of 1933,
as amended.
(r) "Share Acquisition Date" shall mean the first date of public
announcement (which for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) of the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such or such earlier date as a majority of the Board of
Directors shall become aware of the existence of an Acquiring Person.
(s) "Subsidiary" of any Person shall mean any corporation or other
entity of which securities or other
<PAGE>
9
ownership interests having ordinary voting power sufficient to elect a
majority of the board of directors or other persons performing similar
functions are beneficially owned, directly or indirectly, by such Person,
and any corporation or other entity that is otherwise controlled by such
Person.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Ordinary Shares) in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Rights Agents as
it may deem necessary or desirable.
Section 3. ISSUE OF RIGHT CERTIFICATES. (a) Until the earlier of
(i) the tenth day after the Share Acquisition Date or (ii) the tenth business
day (or such later date as may be determined by action of the Board of Directors
prior to such time as any Person becomes an Acquiring Person) after the date of
the commencement by any Person (other than an Exempt Person) of, or of the first
public announcement of the intention of such Person (other than an Exempt
Person) to commence, a tender or exchange offer the consummation of which would
result in any Person becoming the Beneficial Owner of a number of Ordinary
Shares equal to 15% or more of the number of Ordinary Shares then outstanding
(including any such date which is after the date of this Agreement and prior to
the issuance of the Rights; the earlier of such dates being herein referred to
as the
<PAGE>
10
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Ordinary Shares
registered in the names of the holders thereof and not by separate Right
Certificates, and (y) the Rights will be transferable only in connection with
the transfer of the Ordinary Shares. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights Agent will
countersign, and the Company will send or cause to be sent (and the Rights Agent
will, if requested, send) by first-class, insured, postage-prepaid mail, to each
record holder of Ordinary Shares as of the close of business on the Distribution
Date (other than any Acquiring Person or any Associate or Affiliate of an
Acquiring Person), at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right (subject to adjustment as provided
herein) for each Ordinary Share so held. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Shares of Preferred
Stock, in substantially the form of Exhibit C hereto (the "Summary of Rights"),
by first-class, postage-prepaid mail, to each record holder of Ordinary Shares
as of the close of business on the Record Date (other than any Acquiring Person
or any Associate or Affiliate of any Acquiring Person), at the address of such
holder shown on the records of the Company. With respect to certificates for
Ordinary Shares
<PAGE>
11
outstanding as of the Record Date, until the Distribution Date, the Rights will
be evidenced by such certificates registered in the names of the holders thereof
together with the Summary of Rights. Until the Distribution Date (or the
earlier of the Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Ordinary Shares outstanding on the Record Date,
with or without a copy of the Summary of Rights, shall also constitute the
transfer of the Rights associated with the Ordinary Shares represented thereby;
PROVIDED, that prior to the Distribution Date, upon the conversion of Class B
Ordinary Shares or Class C Ordinary Shares into shares of Class A Ordinary
Shares all Rights attached to the Class B Ordinary Shares or Class C Ordinary
Shares shall be deemed cancelled and retired by the Company.
(c) Certificates issued for Ordinary Shares (including, without
limitation, upon conversion, disposition of Ordinary Shares out of treasury
stock or issuance or reissuance of Ordinary Shares out of authorized but
unissued shares) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Triton
Energy Limited and Chemical Bank, dated as of ________ __, 1996 as
the same may be amended from time to time (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of
Triton Energy Limited. Under certain
<PAGE>
12
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. Triton Energy Limited will mail to
the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. UNDER
certain circumstances, as set forth in the Rights Agreement, Rights
owned by or transferred to any Person who becomes an Acquiring
Person (as defined in the Rights Agreement) and certain transferees
thereof will become null and void and will no longer be
transferable.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Ordinary Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate, except as otherwise provided
herein, shall also constitute the transfer of the Rights associated with the
Ordinary Shares represented thereby. In the event that the Company purchases or
otherwise acquires any Ordinary Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Ordinary Shares shall be
deemed cancelled and retired so that the Company shall not be entitled to
exercise any Rights associated with the Ordinary Shares which are no longer
outstanding. After Distribution Date, Ordinary Shares issued upon the
conversion of another class of Common Stock shall not have Right Certificates
attached thereto.
Notwithstanding this paragraph (c), the omission of a legend shall
not affect the enforceability of any part of this Agreement or the rights of any
holder of the Rights.
<PAGE>
13
Section 4. FORM OF RIGHT CERTIFICATES. The Right Certificates
(and the forms of election to purchase shares and of assignment to be printed on
the reverse thereof) shall be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of the New York
Stock Exchange or of any other stock exchange or automated quotation system on
which the Rights may from time to time be listed, or to conform to usage.
Subject to the provisions of Sections 11, 13 and 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such number of one
one-thousandths of a share of Preferred Stock as shall be set forth therein at
the price per one one-thousandth of a share of Preferred Stock set forth therein
(the "Purchase Price"), but the number of such one one-thousandths of a share of
Preferred Stock and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. COUNTERSIGNATURE AND REGISTRATION. (a) The Right
Certificates shall be executed on behalf of the
Company by the President, any of the Vice Presidents, the Treasurer or the
Controller of the Company, either manually or by facsimile signature, shall have
affixed thereto the Company's seal or a facsimile thereof, and shall be attested
by the
<PAGE>
14
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually countersigned by
the Rights Agent and shall not be valid for any purpose unless countersigned.
In case any officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the Person who signed such Right Certificates had not ceased to be such officer
of the Company; and any Right Certificate may be signed on behalf of the Company
by any Person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Agreement any such
Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at an office or agency designated for such purpose, books for
registration and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR
<PAGE>
15
STOLEN RIGHT CERTIFICATES. (a) Subject to the provisions of Sections 7(e),
11(a)(ii) and 14 hereof, at any time after the close of business on the
Distribution Date, and prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the registered holder to
purchase a like number of one one-thousandths of a Preference Share as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right Certificate
or Right Certificates to be transferred, split up, combined or exchanged at the
office or agency of the Rights Agent designated for such purpose. Thereupon the
Rights Agent shall countersign and deliver to the Person entitled thereto a
Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates.
(b) Subject to the provisions of Section 11(a)(ii) hereof, at any
time after the Distribution Date and prior to the close of business on the
earlier of the Redemption Date or the Final Expiration Date, upon receipt by the
Company and the Rights
<PAGE>
16
Agent of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and, at
the Company's request, reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the Company will make
and deliver a new Right Certificate of like tenor to the Rights Agent for
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. EXERCISE OF RIGHTS, PURCHASE PRICE; EXPIRATION DATE OF
Rights. (a) Except as otherwise provided herein, the Rights shall become
exercisable on the Distribution Date, and thereafter the registered holder of
any Right Certificate may, subject to Section 11(a)(ii) hereof and except as
otherwise provided herein, exercise the Rights evidenced thereby in whole or in
part upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights Agent at the
office or agency of the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each one one-thousandth of a Preference Share
as to which the Rights are exercised, at any time which is both after the
Distribution Date and prior to the earliest of (i) the close of business on May
22, 2005 (the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date") or (iii)
<PAGE>
17
the time at which such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price shall be initially $120 for each one
one-thousandth of a Preference Share purchasable upon the exercise of a Right.
The Purchase Price and the number of one one-thousandths of a Preference Share
or other securities or property to be acquired upon exercise of a Right shall be
subject to adjustment from time to time as provided in Sections 11 and 13 hereof
and shall be payable in lawful money of the United States of America in
accordance with paragraph (c) of this Section 7.
(c) Except as otherwise provided herein, upon receipt of a Right
Certificate representing exercisable Rights, with the form of election to
purchase duly executed, accompanied by payment of the aggregate Purchase Price
for the shares of Preferred Stock to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof, in cash or by certified check,
cashier's check or money order payable to the order of the Company, the Rights
Agent shall thereupon promptly (i) (a) requisition from any transfer agent of
the Preference Shares certificates for the number of Preference Shares to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (b) requisition from the depositary agent
depositary receipts representing interests in such number of one one-thousandths
of a Preference Share as are to be purchased (in which case certificates for the
Preference Shares represented by such
<PAGE>
18
receipts shall be deposited by the transfer agent with the depositary agent) and
the Company hereby directs the depositary agent to comply with such request,
(ii) when appropriate, requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with Section 14
hereof, (iii) promptly after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt, promptly
deliver such cash to or upon the order of the registered holder of such Right
Certificate.
(d) Except as otherwise provided herein, in case the registered
holder of any Right Certificate shall exercise less than all the Rights
evidenced thereby, a new Right Certificate evidencing Rights equivalent to the
exercisable Rights remaining unexercised shall be issued by the Rights Agent to
the registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder of Rights upon the occurrence of any
purported transfer or exercise of Rights pursuant to Section 6 hereof or this
Section 7 unless such registered holder shall have (i) completed and signed the
certificate contained in the form of assignment or election to purchase set
forth on the reverse side of the Rights
<PAGE>
19
Certificate surrendered for such transfer or exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) thereof as the Company shall reasonably request.
Section 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
All Right Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any of
its agents, be delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no
Right Certificates shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
Section 9. AVAILABILITY OF SHARES OF PREFERENCE SHARES.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preference Shares
or any Preference Shares held in its treasury, the number of Preference Shares
that will be sufficient to permit the exercise in full of all outstanding
Rights.
<PAGE>
20
(b) So long as the Preference Shares (and, following the time that
a Person becomes an Acquiring Person, Class A Ordinary Shares and other
securities) issuable upon the exercise of Rights may be listed or admitted to
trading on the New York Stock Exchange or listed on any other national
securities exchange or quotation system, the Company shall use its best efforts
to cause, from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed or admitted to trading on the New York
Stock Exchange or listed on any other exchange or quotation system upon official
notice of issuance upon such exercise.
(c) From and after such time as the Rights become exercisable, the
Company shall use its best efforts, if then necessary to permit the issuance of
Preference Shares (and following the time that a Person first becomes an
Acquiring Person, Class A Ordinary Shares and other securities) upon the
exercise of Rights, to register and qualify such Preference Shares (and
following the time that a Person first becomes an Acquiring Person, Class A
Ordinary Shares and other securities) under the Securities Act and any
applicable state securities or "Blue Sky" laws (to the extent exemptions
therefrom are not available), cause such registration statement and
qualifications to become effective as soon as possible after such filing and
keep such registration and qualifications effective until the earlier of the
date as of which the Rights are no longer exercisable for such securities and
the Final Expiration Date. The Company may temporarily suspend, for a period of
time not to
<PAGE>
21
exceed 90 days, the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been obtained and until
a registration statement under the Securities Act (if required) shall have been
declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preference Shares (and, following
the time that a Person becomes an Acquiring Person, Class A Ordinary Shares and
other securities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates therefor (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right Certificates
or of any Preference Shares (or Class A Ordinary Shares or other securities)
upon the exercise of Rights. The Company shall not, however, be required to pay
any transfer tax which may be payable
<PAGE>
22
in respect of any transfer or delivery of Right Certificates to a Person other
than, or the issuance or delivery of certificates or depositary receipts for the
Preference Shares (or Class A Ordinary Shares or other securities) in a name
other than that of, the registered holder of the Right Certificate evidencing
Rights surrendered for exercise or to issue or deliver any certificates or
depositary receipts for Preference Shares (or Class A Ordinary Shares or other
securities) upon the exercise of any Rights until any such tax shall have been
paid (any such tax being payable by that holder of such Right Certificate at the
time of surrender) or until it has been established to the Company's reasonable
satisfaction that no such tax is due.
Section 10. PREFERENCE SHARE RECORD DATE. Each Person in whose
name any certificate for Preference Shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
Preference Shares represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; PROVIDED, HOWEVER, that if the date of such surrender and
payment is a date upon which the Preference Share transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Preference Share transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall
<PAGE>
23
not be entitled to any rights of a holder of Preference Shares for which the
Rights shall be exercisable, including, without limitation, the right to vote or
to receive dividends or other distributions, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES AND
NUMBER OF RIGHTS. The Purchase Price, the number of Preference Shares or other
securities or property purchasable upon exercise of each Right and the number of
Rights outstanding are subject to adjustment from time to time as provided in
this Section 11.
(a) (i) In the event the Company shall at any time after the date
of this Agreement (a) declare a dividend on the Preference Shares
payable in Preference Shares, (b) subdivide the outstanding
Preference Shares, (c) combine the outstanding Preference Shares
into a smaller number of Preference Shares or (d) issue any of its
share capital in a reclassification of the Preference Shares
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this Section
11(a), the Purchase Price in effect at the time of the record date
for such dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of share
capital issuable on such date, shall be proportionately
<PAGE>
24
adjusted so that the holder of any Right exercised after such time
shall be entitled to receive the aggregate number and kind of share
capital which, if such Right had been exercised immediately prior to
such date and at a time when the Preference Share transfer books of
the Company were open, the holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; PROVIDED, HOWEVER,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
share capital of the Company issuable upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement and except as
otherwise provided in this Section 11(a)(ii), in the event any
Person becomes an Acquiring Person, each holder of a Right shall
thereafter have the right to receive, upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the
number of one one-thousandths of a Preference Share for which a
Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preference Shares, such number of Class A
Ordinary Shares (or at the option of the Company, such number of one
one-thousandths of Preference Shares) as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the
number of one one-thousandths of
<PAGE>
25
a Preference Share for which a Right is then exercisable and
dividing that product by (y) 50% of the then current per share
market price of the Company's Class A Ordinary Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of
such event; PROVIDED, HOWEVER, that the Purchase Price and the
number of Class A Ordinary Shares so receivable upon exercise of a
Right shall thereafter be subject to further adjustment as
appropriate in accordance with Section 11(f) hereof.
Notwithstanding anything in this Agreement to the contrary, however,
from and after the time (the "invalidation time") when any Person
first becomes an Acquiring Person, any Rights that are beneficially
owned by (x) any Acquiring Person (or any Affiliate or Associate of
any Acquiring Person), (y) a transferee of any Acquiring Person (or
any such Affiliate or Associate) who becomes a transferee after the
invalidation time or (z) a transferee of any Acquiring Person (or
any such Affiliate or Associate) who became a transferee prior to or
concurrently with the invalidation time pursuant to either (i) a
transfer from the Acquiring Person to holders of its equity
securities or to any Person with whom it has any continuing
agreement, arrangement or understanding regarding the transferred
Rights or (ii) a transfer which the Board of Directors has
determined is part of a plan, arrangement or understanding which has
the
<PAGE>
26
purpose or effect of avoiding the provisions of this paragraph, and
subsequent transferees of such Persons, shall be void without any
further action and any holder of such Rights shall thereafter have
no rights whatsoever with respect to such Rights under any provision
of this Agreement. The Company shall use all reasonable efforts to
ensure that the provisions of this Section 11(a)(ii) are complied
with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. From and after the
invalidation time, no Right Certificate shall be issued pursuant to
Section 3 or Section 6 hereof that represents Rights that are or
have become void pursuant to the provisions of this paragraph, and
any Right Certificate delivered to the Rights Agent that represents
Rights that are or have become void pursuant to the provisions of
this paragraph shall be cancelled. From and after the occurrence of
an event specified in Section 13(a) hereof, any Rights that
theretofore have not been exercised pursuant to this Section
11(a)(ii) shall thereafter be exercisable only in accordance with
Section 13 and not pursuant to this Section 11(a)(ii).
(iii) The Company may at its option substitute for a Class A
Ordinary Share issuable upon the exercise
<PAGE>
27
of Rights in accordance with the foregoing subparagraph (ii) such
number or fractions of Preference Shares having an aggregate current
market value equal to the current per share market price of a Class
A Ordinary Share. In the event that there shall not be sufficient
Class A Ordinary Shares issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in accordance
with the foregoing subparagraph (ii), the Board of Directors shall,
to the extent permitted by applicable law and any material
agreements then in effect to which the Company is a party (a)
determine the excess of (1) the value of the Class A Ordinary Shares
issuable upon the exercise of a Right in accordance with the
foregoing subparagraph (ii) (the "Current Value") over (2) the then
current Purchase Price multiplied by the number of one
one-thousandths of Preference Shares for which a Right was
exercisable immediately prior to the time that the Acquiring Person
became such (such excess, the "Spread"), and (b) with respect to
each Right (other than Rights which have become void pursuant to
Section 11(a)(ii)), make adequate provision to substitute for the
Class A Ordinary Shares issuable in accordance with subparagraph
(ii) upon exercise of the Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3)
Preference Shares or other equity securities of the Company
<PAGE>
28
(including, without limitation, shares or fractions of preference
shares which, by virtue of having dividend, voting and liquidation
rights substantially comparable to those of the Class A Ordinary
Shares, are deemed in good faith by the Board of Directors to have
substantially the same value as the Class A Ordinary Shares (such
preference shares and shares or fractions of preference shares are
hereinafter referred to as "Class A Ordinary Share equivalents"),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having a value which, when added to
the value of the Class A Ordinary Shares actually issued upon
exercise of such Right, shall have an aggregate value equal to the
Current Value (less the amount of any reduction in the Purchase
Price), where such aggregate value has been determined by the Board
of Directors upon the advice of a nationally recognized investment
banking firm selected in good faith by the Board of Directors;
PROVIDED, HOWEVER, if the Company shall not make adequate
provision to deliver value pursuant to clause (b) above within
thirty (30) days following the date that the Acquiring Person became
such (the "Section 11(a)(ii) Trigger Date"), then the Company shall
be obligated to deliver, to the extent permitted by applicable law
and any material agreements then in effect to which the Company is a
party, upon the surrender for exercise of a Right and without
<PAGE>
29
requiring payment of the Purchase Price, Class A Ordinary Shares (to
the extent available), and then, if necessary, such number or
fractions of Preference Shares (to the extent available) and then,
if necessary, cash, which shares and/or cash have an aggregate value
equal to the Spread. If, upon the date any Person becomes an
Acquiring Person, the Board of Directors shall determine in good
faith that it is likely that sufficient additional Class A Ordinary
Shares could be authorized for issuance upon exercise in full of the
Rights, then, if the Board of Directors so elects, the thirty (30)
day period set forth above may be extended to the extent necessary,
but not more than ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may seek shareholder
approval for the authorization of such additional shares (such
thirty (30) day period, as it may be extended, is herein called the
"Substitution Period"). To the extent that the Company determines
that some action need be taken pursuant to the second and/or third
sentence of this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 11(a)(ii) hereof and the last sentence of this
Section 11(a)(iii) hereof, that such action shall apply uniformly to
all outstanding Rights and (y) may suspend the exercisability of the
Rights until the expiration of the Substitution Period in order to
seek any
<PAGE>
30
authorization of additional shares and/or to decide the appropriate
form of distribution to be made pursuant to such second sentence and
to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section
11(a)(iii), the value of the Class A Ordinary Shares shall be the
current per share market price (as determined pursuant to Section
11(d)(i)) on the Section 11(a)(ii) Trigger Date and the per share or
fractional value of any "Class A Ordinary Share equivalent" shall be
deemed to equal the current per share market price of the Class A
Ordinary Shares. The Board of Directors of the Company may, but
shall not be required to, establish procedures to allocate the right
to receive Class A Ordinary Shares upon the exercise of the Rights
among holders of Rights pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the issuance
of rights, options or warrants to all holders of Preference Shares
entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase Preference Shares (or shares
having the same rights, privileges and preferences as the Preference
Shares ("equivalent preference shares")) or securities convertible
<PAGE>
31
into Preference Shares or equivalent preference shares at a price per
Preference Share or equivalent preference shares (or having a conversion
price per share, if a security convertible into Preference Shares or
equivalent preference shares) less than the then current per share market
price of the Preference Shares (determined pursuant to Section 11(d)
hereof) on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator
of which shall be the number of Preference Shares and equivalent
preference shares outstanding on such record date plus the number of
Preference Shares and equivalent preference shares which the aggregate
offering price of the total number of Preference Shares and/or equivalent
preference shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would
purchase at such current market price, and the denominator of which shall
be the number of Preference Shares and equivalent preference shares
outstanding on such record date plus the number of additional Preference
Shares and/or equivalent preference shares to be offered for subscription
or purchase (or into which the convertible securities so to be offered are
initially convertible); PROVIDED, HOWEVER, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the share capital of the Company issuable upon
exercise of one
<PAGE>
32
Right. In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent. Preference Shares and equivalent
preference shares owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is
fixed; and in the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the Preference Shares (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preference Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price
to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share
market price of the
<PAGE>
33
Preference Shares (determined pursuant to Section 11(d) hereof) on such
record date, less the fair market value (as determined in good faith by
the Board of Directors of the Company whose determination shall be
described in a statement filed with the Rights Agent) of the portion of
the assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one Preference Share, and
the denominator of which shall be such current per share market price
(determined pursuant to Section 11(d) hereof) of the Preference Shares;
PROVIDED, HOWEVER, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of the
share capital of the Company to be issued upon exercise of one Right.
Such adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(d) (i) Except as otherwise provided herein, for the purpose of any
computation hereunder, the "current per share market price" of any
security (a "Security" for the purpose of this Section 11(d)(i)) on any
date shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date; PROVIDED,
HOWEVER, that in the event that the current per
<PAGE>
34
share market price of the Security is determined during a period following
the announcement by the issuer of such Security of (a) a dividend or
distribution on such Security payable in shares of such Security or
securities convertible into such shares, or (b) any subdivision,
combination or reclassification of such Security, and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share
market price shall be appropriately adjusted to reflect the current market
price per share equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported by the principal consolidated
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported
in the principal consolidated transaction reporting system with respect to
securities listed on the principal U.S. national securities exchange on
which the Security is listed or admitted to trading or, if the Security is
not listed or admitted to trading on any U.S. national securities
exchange, the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market or
<PAGE>
35
such other system then in use, or, if on any such date the Security is not
quoted by any organization in the over-the-counter market, the average of
the closing bid and asked prices as furnished by a professional market
maker making a market in the Security selected by the Board of Directors
of the Company. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the Security is listed or
admitted to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For the purpose of any computation hereunder, if the
Preference Shares are publicly traded, the "current per share market
price" of the Preference Shares shall be determined in accordance with the
method set forth in Section 11(d)(i). If the Preference Shares are not
publicly traded but the Class A Ordinary Shares are publicly traded, the
"current per share market price" of the Preference Shares shall be
conclusively deemed to be the current per share market price of the Class
A Ordinary Shares as determined pursuant to Section 11(d)(i) multiplied by
one hundred (appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof). If
neither the Class A Ordinary Shares nor the Preference Shares are publicly
traded, "current per share market price" shall mean the fair value per
share as determined in good faith by the Board of Directors of the
<PAGE>
36
Company, whose determination shall be described in a statement filed with
the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
the Purchase Price; PROVIDED, HOWEVER, that any adjustments which by
reason of this Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest cent or to
the nearest one ten-thousandth of a Preference Share or Class A Ordinary
Share or other share or security as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three years from
the date of the transaction which requires such adjustment or (ii) the
date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to receive any share capital of the Company other than the Preference
Shares, thereafter the Purchase Price and the number of such other shares
so receivable upon exercise of a Right shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preference Shares contained in
Sections 11(a), 11(b), 11(c), 11(e), 11(h), 11(i) and 11(m) and the
<PAGE>
37
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the
Preference Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right
to purchase, at the adjusted Purchase Price, the number of one
one-thousandths of a Preference Share purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment
as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-thousandths of a Preference Share (calculated to
the nearest one ten- thousandth of a Preference Share) obtained by (i)
multiplying (x) the number of one one-thousandths of a share covered by a
Right immediately prior to such adjustment by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of
<PAGE>
38
Rights, in substitution for any adjustment in the number of one
one-thousandths of a Preference Share purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the number
of Rights shall be exercisable for the number of one one-thousandths of a
Preference Share for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment of
the number of Rights shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates have been
issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Company may, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
<PAGE>
39
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-thousandths of a Preference Share issuable upon
the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the
number of one one-thousandths of a Preference Share which were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the
Preference Shares or other share capital issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable
<PAGE>
40
Preference Shares or other such shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such
record date of the Preference Shares and other share capital or securities
of the Company, if any, issuable upon such exercise over and above the
Preference Shares and other share capital or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; PROVIDED, HOWEVER, that the Company
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision of the
Preference Shares, issuance wholly for cash of any Preference Shares at
less than the current market price, issuance wholly for cash or Preference
Shares or securities which by their terms are convertible into or
exchangeable
<PAGE>
41
for Preference Shares, dividends on Preference Shares payable in
Preference Shares or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to holders of
its Preference Shares shall not be taxable to such shareholders.
(n) Anything in this Agreement to the contrary notwithstanding, in
the event that at any time after the date of this Agreement and prior to
the Distribution Date, the Company shall (i) declare or pay any dividend
on the Ordinary Shares payable in Ordinary Shares or (ii) effect a
subdivision, combination or consolidation of Ordinary Shares (by
reclassification or otherwise than by payment of a dividend payable in
Ordinary Shares) into a greater or lesser number of Ordinary Shares, then
in any such case, the number of Rights associated with each Ordinary Share
then outstanding, or issued or delivered thereafter, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each Ordinary Share following any such event shall equal
the result obtained by multiplying the number of Rights associated with
each Ordinary Share immediately prior to such event by a fraction the
numerator of which shall be the total number of Ordinary Shares
outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of Ordinary Shares
outstanding immediately following the occurrence of such event.
<PAGE>
42
(o) The Company agrees that, after the earlier of the Distribution
Date or the Stock Acquisition Date, it will not, except as permitted by
Sections 23, 24 or 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably foreseeable
that such action will diminish substantially or eliminate the benefits
intended to be afforded by the Rights.
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Section 11 or 13 hereof,
the Company shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent for the Ordinary
Shares or the Preference Shares a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate in accordance with Section
25 hereof (if so required under Section 25 hereof). The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNINGS POWER. (a) In the event, directly or indirectly, at any time after
any Person has become an Acquiring Person, (i) the Company shall merge with and
into any other Person, (ii) any Person shall consolidate with the Company, or
any Person shall merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger
<PAGE>
43
and, in connection with such merger, all or part of the Ordinary Shares shall be
changed into or exchanged for shares or other securities of any other Person (or
of the Company) or cash or any other property, or (iii) the Company shall sell
or otherwise transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other than the Company or
one or more of its wholly-owned Subsidiaries), then upon the first occurrence of
such event, proper provision shall be made so that: (a) each holder of record of
a Right (other than Rights which have become void pursuant to Section 11(a)(ii))
shall thereafter have the right to receive, upon the exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one
one-thousandths of a Preference Share for which a Right was exercisable (whether
or not such Right was then exercisable) immediately prior to the time that any
Person first became an Acquiring Person (each as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h), 11(i) and 11(m)),
in accordance with the terms of this Agreement and in lieu of Preference Shares,
such number of validly issued, fully paid and non-assessable and freely
tradeable Ordinary Shares of the Principal Party (as defined herein) not subject
to any liens, encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then current
Purchase Price by the number of one one-thousandths of a
<PAGE>
44
Preference Share for which a Right was exercisable immediately prior to the time
that any Person first became an Acquiring Person (as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h), 11(i) and 11(m))
and (2) dividing that product by 50% of the then current per share market price
of the Ordinary Shares of such Principal Party (determined pursuant to Section
11(d)(i) hereof) on the date of consummation of such consolidation, merger, sale
or transfer; PROVIDED that the Purchase Price and the number of Ordinary
Shares of such Principal Party issuable upon exercise of each Right shall be
further adjusted as provided in Section 11(f) of this Agreement to reflect any
events occurring in respect of such Principal Party after the date of the such
consolidation, merger, sale or transfer; (b) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company pursuant
to this Agreement; (c) the term "Company" shall thereafter be deemed to refer to
such Principal Party; and (d) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of its
Ordinary Shares in accordance with Section 9 hereof) in connection with such
consummation of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its Common Stock thereafter deliverable upon the exercise of
the Rights; provided that, upon the subsequent occurrence of any consolidation,
merger, sale or transfer of
<PAGE>
45
assets or other extraordinary transaction in respect of such Principal Party,
each holder of a Right shall thereupon be entitled to receive, upon exercise of
a Right and payment of the Purchase Price as provided in this Section 13(a),
such cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had such holder, at the time of such transaction,
owned the Ordinary Shares of the Principal Party receivable upon the exercise of
a Right pursuant to this Section 13(a), and such Principal Party shall take such
steps (including, but not limited to, reservation of shares of stock) as may be
necessary to permit the subsequent exercise of the Rights in accordance with the
terms hereof for such cash, shares, rights, warrants and other property.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (i) or (ii)
of the first sentence of Section 13(a) hereof: (a) the Person that is the
issuer of the securities into which the Ordinary Shares are converted in
such merger or consolidation, or, if there is more than one such issuer,
the issuer the Ordinary Shares of which have the greatest aggregate market
value of shares outstanding, or (b) if no securities are so issued, (x)
the Person that is the other party to the merger, if such Person survives
said merger, or, if there is more than one such Person, the Person the
Ordinary Shares of which have the greatest aggregate market value of
shares outstanding or (y) if the Person that is the other party to the
merger does not survive the merger, the
<PAGE>
46
Person that does survive the merger (including the Company if it survives)
or (z) the Person resulting from the consolidation; and
(ii) in the case of any transaction described in (iii) of the
first sentence in Section 13(a) hereof, the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions, or, if each Person that is a
party to such transaction or transactions receives the same portion of the
assets or earning power so transferred or if the Person receiving the
greatest portion of the assets or earning power cannot be determined,
whichever of such Persons as is the issuer of Ordinary Shares having the
greatest aggregate market value of shares outstanding;
provided, however, that in any such case described in the foregoing clause
(b)(i) or (b)(ii), if the Ordinary Shares of such Person is not at such time or
has not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Ordinary Shares of which is and has been so
registered, the term "Principal Party" shall refer to such other Person, or (2)
if such Person is a Subsidiary, directly or indirectly, of more than one Person
and the Ordinary Shares of all of such Persons have been so registered, the term
"Principal Party" shall refer to whichever of such Persons is the issuer of
Ordinary Shares having the greatest aggregate market value of shares
outstanding, or (3) if such Person is owned,
<PAGE>
47
directly or indirectly, by a joint venture formed by two or more Persons that
are not owned, directly or indirectly, by the same Person, the rules set forth
in clauses (1) and (2) above shall apply to each of the owners having an
interest in the venture as if the Person owned by the joint venture was a
Subsidiary of both or all of such joint venturers, and the Principal Party in
each such case shall bear the obligations set forth in this Section 13 in the
same ratio as its interest in such Person bears to the total of such interests.
(c) The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) hereof unless prior thereto the
Company and the Principal Party involved therein shall have executed and
delivered to the Rights Agent an agreement confirming that the requirements of
Sections 13(a) and (b) hereof shall promptly be performed in accordance with
their terms and that such consolidation, merger, sale or transfer of assets
shall not result in a default by the Principal Party under this Agreement as the
same shall have been assumed by the Principal Party pursuant to Sections 13(a)
and (b) hereof and providing that, as soon as practicable after executing such
agreement pursuant to this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act, if necessary, with respect to the Rights and the
securities purchasable upon exercise of the Rights on an appropriate form,
use its best efforts to cause such registration statement to become
effective as soon as
<PAGE>
48
practicable after such filing and use its best efforts to cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Final Expiration
Date, and similarly comply with applicable state securities laws;
(ii) use its best efforts, if the Ordinary Shares of the
Principal Party shall be listed or admitted to trading on the New York
Stock Exchange or on another national securities exchange, to list or
admit to trading (or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on the New York Stock
Exchange or such securities exchange, or, if the Ordinary Shares of the
Principal Party shall not be listed or admitted to trading on the New York
Stock Exchange or a national securities exchange, to cause the Rights and
the securities receivable upon exercise of the Rights to be reported by
such other system then in use;
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Ordinary Shares of the Principal Party
subject to purchase upon exercise of outstanding Rights.
(d) In case the Principal Party has provision in any of its
authorized securities or in its certificate of
<PAGE>
49
incorporation or by-laws or other instrument governing its corporate affairs,
which provision would have the effect of (i) causing such Principal Party to
issue (other than to holders of Rights pursuant to this Section 13), in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, Ordinary Shares of such Principal Party at less
than the then current market price per share thereof (determined pursuant to
Section 11(d) hereof) or securities exercisable for, or convertible into,
Ordinary Shares of such Principal Party at less than such then current market
price, or (ii) providing for any special payment, tax or similar provision in
connection with the issuance of the Ordinary Shares of such Principal Party
pursuant to the provisions of Section 13, then, in such event, the Company
hereby agrees with each holder of Rights that it shall not consummate any such
transaction unless prior thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental agreement providing
that the provision in question of such Principal Party shall have been
cancelled, waived or amended, or that the authorized securities shall be
redeemed, so that the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the proposed transaction.
(e) The Company covenants and agrees that it shall not, at any
time after a Person first becomes an Acquiring Person, enter into any
transaction of the type contemplated by (i) - (iii) of Section 13(a) hereof if
(x) at the time of or immediately after such consolidation, merger, sale,
transfer or
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50
other transaction there are any rights, warrants or other instruments or
securities outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the
Rights, (y) prior to, simultaneously with or immediately after such
consolidation, merger, sale, transfer of other transaction, the stockholders of
the Person who constitutes, or would constitute, the Principal Party for
purposes of Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates or Associates or (z)
the form or nature of organization of the Principal Party would preclude or
limit the exercisability of the Rights.
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a)The
Company shall not be required to issue fractions of Rights or to distribute
Right Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the
principal
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51
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal U.S. national securities exchange on which the Rights
are listed or admitted to trading or, if the Rights are not listed or admitted
to trading on any U.S. national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by any system then in use or, if on any
such date the Rights are not quoted by any organization in the over-the-counter
market, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Preference Shares (other than fractions which are integral multiples of one
one-thousandth of a Preference Share) upon exercise of the Rights or to
distribute certificates which evidence fractional Preference Shares (other than
fractions which are integral multiples of one one-thousandth of a Preference
Share). Interests in fractions of Preference Shares in integral multiples of
one one-thousandth of a Preference Share may, at the
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52
election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it;
PROVIDED, that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Preference Shares
represented by such depositary receipts. In lieu of fractional Preference
Shares that are not integral multiples of one one-thousandth of a Preference
Share, the Company shall pay to the registered holders of Right Certificates at
the time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one Preference Share. For the
purposes of this Section 14(b), the current market value of a Preference Share
shall be the closing price of a Preference Share (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
Section 15. RIGHTS OF ACTION. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Ordinary Shares); and any registered holder of any Right
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53
Certificate (or, prior to the Distribution Date, of the Ordinary Shares),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Ordinary Shares), on his
own behalf and for his own benefit, may enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise act
in respect of, his right to exercise the Rights evidenced by such Right
Certificate (or, prior to the Distribution Date, such Ordinary Shares) in the
manner provided in such Right Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of, the obligations of any Person subject to this
Agreement.
Section 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right,
by accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Ordinary Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office or agency of
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54
the Rights Agent designated for such purpose, duly endorsed or accompanied
by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person
in whose name the Right Certificate (or, prior to the Distribution Date,
the Ordinary Share certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the Ordinary Share
certificate made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER.
No holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preference Shares or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by
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55
such Right Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. CONCERNING THE RIGHTS AGENT. (a) The Company agrees
to pay to the Rights Agent reasonable compensation for all services rendered by
it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability or expense, incurred
without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability arising therefrom, directly
or indirectly.
(b) The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in reliance upon any Right
Certificate or certificate for the Preference Shares or Ordinary Shares or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the
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56
proper Person or Persons, or otherwise upon the advice of counsel as set forth
in Section 20 hereof.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the stock transfer or corporate trust powers of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto; PROVIDED, that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.
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57
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
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58
deemed to be conclusively proved and established by a certificate signed
by any one of the President, the Chief Financial Officer or the Secretary
of the Company and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own negligence, bad faith or wilful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in
the Right Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 11(a)(ii) hereof) or any adjustment in the terms
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59
of the Rights (including the manner, method or amount thereof) provided
for in Sections 3, 11, 13, 23 and 24, or the ascertaining of the existence
of facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
receipt of a certificate furnished pursuant to Section 12, describing such
change or adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of
any Preference Shares or other securities to be issued pursuant to this
Agreement or any Right Certificate or as to whether any Preference Shares
or other securities will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person reasonably believed by the Rights Agent to be one of the
President, the Chief Financial Officer or the Secretary of the Company,
and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for
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60
any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting
for those instructions. Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set
forth in writing any action proposed to be taken or omitted by the Rights
Agent under this Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, or omission of, the Rights
Agent in accordance with a proposal included in any such application on or
after the date specified in such application (which date shall not be less
than five Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or
the effective date in the case of an omission), the Rights Agent shall
have received written instructions in response to such application
specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement.
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61
Nothing herein shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate contained in the
form of assignment or the form of election to purchase set forth on the
reverse thereof, as the case may be, has not been completed to certify the
holder is not an Acquiring Person (or an Affiliate or Associate thereof),
the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Ordinary Shares or Preference Shares by registered or
certified mail, and,
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62
following the Distribution Date, to the holders of the Right Certificates by
first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Ordinary Shares or Preference Shares by registered or certified mail, and,
following the Distribution Date, to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
any State thereof, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least U.S. $50 million. After
appointment, the successor Rights Agent shall be vested with the
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63
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Ordinary Shares
or Preference Shares, and, following the Distribution Date, mail a notice
thereof in writing to the registered holders of the Right Certificates. Failure
to give any notice provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor Rights Agent, as the
case may be.
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such forms as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of Ordinary Shares following the
Distribution Date and prior to the earlier of the Redemption Date and the Final
Expiration Date,
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64
the Company may with respect to Ordinary Shares so issued or sold pursuant to
(i) the exercise of stock options, (ii) under any employee plan or arrangement,
(iii) upon the exercise, conversion or exchange of securities, notes or
debentures issued by the Company or (iv) a contractual obligation of the
Company in each case existing prior to the Distribution Date, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale.
Section 23. REDEMPTION. (a) Subject to the provisions of this
Section 23, the Board of Directors of the Company may, at any time prior to such
time as any Person first becomes an Acquiring Person, redeem all but not less
than all the then outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to reflect any subdivision, stock dividend or similar
transaction occurring after the date hereof (the redemption price being
hereinafter referred to as the "Redemption Price"). The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish. The
Company may, at its option, pay the Redemption Price in cash, Class A Ordinary
Shares (based on the current market price of the Class A Ordinary Shares at the
time of redemption) or any other form of consideration deemed appropriate by the
Board of Directors.
(b) Immediately upon the action of the Board of Directors ordering
the redemption of the Rights pursuant to paragraph (a) of this Section 23 (or at
such later time as the Board of Directors may establish for the effectiveness of
such
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65
redemption), and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price. The Company shall promptly
give public notice of any such redemption; PROVIDED, HOWEVER, that the
failure to give, or any defect in, any such notice shall not affect the validity
of such redemption. Within 10 days after such action of the Board of Directors
ordering the redemption of the Rights (or such later time as the Board of
Directors may establish for the effectiveness of such redemption), the Company
shall mail a notice of redemption to all the holders of the then outstanding
Rights at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Ordinary Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of redemption shall state the method by which the
payment of the Redemption Price will be made.
(c) Notwithstanding anything set forth in this Section 23 to the
contrary, the Board of Directors may not redeem the Rights at any time after any
Person shall have made an offer to acquire all or part of the Class A Ordinary
Shares, during the pendency of such offer, unless at the same time such Person
shall have made an offer to acquire the Equity Units or the Class B Ordinary
Shares (or the Class C Ordinary Shares) for the same consideration (as
determined in good faith by the Board of Directors) and upon the same
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66
conditions per unit or per share as that offered in respect of a Class A
Ordinary Share (less certain amounts due to the holders of a Class A Ordinary
Share in respect of the Cumulative Dividend Amount (as defined in the Articles
of Association of the Company) or the Liquidation Available Amount (as defined
in the Articles of Association of the Company, as the case may be).
Section 24. EXCHANGE. (a) The Board of Directors of the
Company, may, at its option, at any time after any Person first becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 11(a)(ii) hereof) for Class A Ordinary Shares at an
exchange ratio of one Class A Ordinary Share per Right, (such exchange ratio
being hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such exchange
at any time (1) after any Person (other than an Exempt Person), together with
all Affiliates and Associates of such Person, becomes the Beneficial Owner of a
number of Ordinary Shares equal to 50% or more of the number of Ordinary Shares
then outstanding or (2) after the occurrence of an event specified in Section
13(a) hereof.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (a) of this
Section 24 and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of Class A
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Ordinary Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public notice
of any such exchange; PROVIDED, HOWEVER, that the failure to give, or any
defect in, such notice shall not affect the validity of such exchange. The
Company shall promptly mail a notice of any such exchange to all of the holders
of the Rights so exchanged at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the
exchange of the Class A Ordinary Shares for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section
11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient Class A
Ordinary Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company may, in its discretion, take such action as may be necessary to
authorize additional Class A Ordinary Shares for issuance upon exchange of the
Rights. In the event that the Company shall determine not to take such action
or shall, after good faith effort, be unable to take such action as may be
necessary to authorize such additional Class A Ordinary Shares, the Company
shall substitute, to the
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extent of such insufficiency, for each Class A Ordinary Share that would
otherwise be issuable upon exchange of a Right, a number of Preference Shares or
fractions thereof (or equivalent preference shares as such term is defined in
Section 11(b)) having an aggregate current per share market price (determined
pursuant to Section 11(d) hereof) equal to the current per share market price of
one Class A Ordinary Share (determined pursuant to Section 11(d) hereof) as of
the date of issuance of such Preference Shares or fractions thereof (or
equivalent preference shares).
(d) The Company shall not, in connection with any exchange
pursuant to this Section 24, be required to issue fractions of Class A Ordinary
Shares or to distribute certificates which evidence fractional Class A Ordinary
Shares. In lieu of such fractional Class A Ordinary Shares, the Company shall
pay to the registered holders of the Right Certificates with regard to which
such fractional Class A Ordinary Shares would otherwise be issuable an amount in
cash equal to the same fraction of the current market value of a whole Class A
Ordinary Share. For the purposes of this paragraph (d), the current market
value of a whole Class A Ordinary Share shall be the closing price of a Class A
Ordinary Share (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. NOTICE OF CERTAIN EVENTS. (a) In case the Company
shall at any time after the earlier of the Distribution
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69
Date or the Stock Acquisition Date propose (i) to pay any dividend payable in
shares of any class to the holders of its Preference Shares or to make any other
distribution to the holders of its Preference Shares (other than a regular
quarterly cash dividend), (ii) to offer to the holders of its Preference Shares
rights or warrants to subscribe for or to purchase any additional Preference
Shares or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Preference Shares (other
than a reclassification involving only the subdivision of outstanding Preference
Shares), (iv) to effect the liquidation, dissolution or winding up of the
Company, or (v) to declare or pay any dividend on Ordinary Shares payable in
Ordinary Shares or to effect a subdivision, combination or consolidation of the
Ordinary Shares (by reclassification or otherwise than by payment of dividends
in Ordinary Shares), then, in each such case, the Company shall give to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the purposes of
such dividend of shares, or distribution of rights or warrants, or the date on
which such liquidation, dissolution or winding up is to take place and the date
of participation therein by the holders of the Ordinary Shares and/or Preference
Shares, if any such date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above at least 10 days
prior to the record date for determining holders of the Preference Shares for
purposes of such action, and in the
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case of any such other action, at least 10 days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
the Ordinary Shares and/or Preference Shares, whichever shall be the earlier.
(b) In case any event described in Section 11(a)(ii) or Section 13
shall occur then the Company shall as soon as practicable thereafter give to
each holder of a Right Certificate (or if occurring prior to the Distribution
Date, the holders of the Ordinary Shares) in accordance with Section 26 hereof,
a notice of the occurrence of such event, which notice shall describe such event
and the consequences of such event to holders of Rights under Section 11(a)(ii)
and Section 13 hereof.
Section 26. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Triton Energy Limited
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
<PAGE>
71
Chemical Bank
2323 Bryan Street, Suite 2300
Dallas, Texas 75201
Attention: Shareholder Services Group
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. SUPPLEMENTS AND AMENDMENTS. Except as otherwise
provided in this Section 27, for so long as the Rights are then redeemable, the
Company may in its sole and absolute discretion, and the Rights Agent shall if
the Company so directs, supplement or amend any provision of this Agreement in
any respect without the approval of any holders of the Rights. At any time when
the Rights are no longer redeemable, except as otherwise provided in this
Section 27, the Company may, and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any holders
of Rights Certificates in order to (i) cure any ambiguity, (ii) correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) shorten or lengthen any time period
hereunder, or (iv) change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable; PROVIDED that no such
supplement or amendment shall adversely affect the interests of the holders of
Rights as such (other than an Acquiring Person or an Affiliate or Associate of
an Acquiring Person), and no such
<PAGE>
72
amendment may cause the rights again to become redeemable or cause the Agreement
again to become amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the contrary, no
supplement or amendment shall be made that decreases the Redemption Price. Upon
the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
Company. of this Section 27, the Rights Agent shall execute such supplement or
Section 28. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Ordinary Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Ordinary
Shares).
Section 30. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement or applicable to this Agreement is held by a court
of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this
<PAGE>
73
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 31. GOVERNING LAW. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the Cayman Islands and for all purposes shall be governed by and
construed in accordance with the laws of such Country applicable to contracts to
be made and performed entirely within such Country except that the rights,
duties and obligations of the Rights Agent shall be governed by and construed in
accordance with the Laws of the State of New York, U.S.A..
Section 32. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
<PAGE>
74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested, all as of the day and year first above written.
Attest: TRITON ENERGY LIMITED
By By
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
CHEMICAL BANK
Attest:
By By
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
<PAGE>
EXHIBIT A
FORM OF
UNANIMOUS WRITTEN CONSENT
OF
BOARD OF DIRECTORS
OF
TRITON ENERGY LIMITED
AUTHORIZING A SERIES OF PREFERENCE SHARES
___________________
The undersigned, constituting all of the directors of Triton Energy
Limited, a Cayman Islands company (the "Company"), hereby consent in writing to
the taking of the following actions and the adoption of the following
resolutions without the holding of, and waive and notices required for, a
meeting of directors for the purposes of considering the same:
WHEREAS, Triton Energy Corporation, a Delaware corporation ("TEC"),
desires to effect a reorganization pursuant to which the Company would become
the parent holding company of TEC through the merger (the "Merger") of TEL
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of the
Company ("Sub"), with and into TEC; and
WHEREAS, in connection with the Merger, the board of Directors and
the sole shareholder of the Company have resolved to amend and restate the
Memorandum of Association and Articles of Association (the "Restated Charter")
to be effective immediately prior to the effective time of the Merger; now
therefore, be it
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its Restated
Charter, the Board of Directors, effective as of the effective time of the
Merger, does hereby create, authorize and provide for the issuance, upon the
exercise of the rights issued by the Company to its shareholders of record at
the close of business on the effective date of the Merger (the "Rights"), of a
series of preference shares of the Company, to be designated Series A Junior
Participating Preference Shares (hereinafter referred to as the "Series A
Preference Shares"), initially consisting of 200,000 shares and to the extent
that the designations, powers, preferences and relative and other special rights
and the qualifications, limitations and restrictions of the Series A Preference
Shares are not stated and expressed in the Restated Charter, does hereby fix and
state such designations, powers and preferences and relative and other
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special rights and the qualifications, limitations or restrictions thereof, as
follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series A Junior Participating Preference Shares" (the
"Series A Preference Shares"), and the number of shares constituting such series
shall be 200,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; PROVIDED, that no decrease shall reduce
the number of Series A Preference Shares to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into Series A
Preference Shares.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any
series of Preference Shares of the Company (the "Preference Shares") (or any
similar shares) ranking prior and superior to the Series A Preference Shares
with respect to dividends, the holders of Series A Preference Shares, in
preference to the holders of Class A Ordinary Shares ("Class A Shares"), Class B
Ordinary Shares and Class C Ordinary Shares, each having a par value of $.01 per
share, of the Company (the "Ordinary Shares") and of any other shares of the
Company ranking junior to the Series A Preference Shares, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day
of January, April, July, and October in each year (each such date being referred
to herein as a "Dividend Payment Date"), commencing on the first Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preference Shares, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in
Class A Shares, declared on the Class A Shares since the immediately preceding
Dividend Payment Date or, with respect to the first Dividend Payment Date, since
the first issuance of any share or fraction of a share of Series A Preference
Shares. In the event the Company shall at any time declare or pay any dividend
on the Class A Shares payable in shares of Class A Shares, or effect a
subdivision or combination or consolidation of the outstanding Class A Shares
(by reclassification or otherwise than by payment of a dividend in shares of
Class A Ordinary Shares) into a greater or lesser number of Class A Shares, then
in each such case the amount to which holders of Series A Preference Shares were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such
A-2
<PAGE>
amount by a fraction, the numerator of which is the number of Class A Shares
outstanding immediately after such event and the denominator of which is the
number of Class A Shares that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the
Series A Preference Shares as provided in paragraph (a) of this Section
immediately after it declares a dividend or distribution on the Ordinary Shares
(other than a dividend payable in shares of Ordinary Shares); provided that, in
the event no dividend or distribution shall have been declared on the Ordinary
Shares during the period between any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend of $1 per share on the Series A
Preference Shares shall nevertheless be payable, when, as and if declared, on
such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative, whether or
not earned or declared, on outstanding Series A Preference Shares from the
Dividend Payment Date next preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Dividend Payment Date or is a date after the record date for the determination
of holders of Series A Preference Shares entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the Series A Preference Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders of
Series A Preference Shares entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of Series A Preference
Shares shall have the following voting rights;
(A) Subject to the provision for adjustment hereinafter set forth,
each Series A Preference Share shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the shareholders of the
Company. In the event the Company shall at any time declare any dividend
on the Ordinary Shares payable in shares of Ordinary Shares, or effect a
subdivision or combination or consolidation of the outstanding Ordinary
Shares (by reclassification or otherwise than by payment of a dividend in
Ordinary Shares) into a greater or lesser number of Ordinary Shares, then
in each such case the number of votes per share to which
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<PAGE>
holders of Series A Preference Shares were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of Ordinary Shares outstanding
immediately after such event and the denominator of which is the number of
Ordinary Shares that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other resolution
of the Board of Directors creating a series of Preference Shares or any
similar shares, and except as otherwise required by law, the holders of
Series A Preference Shares and the holders of Ordinary Shares and any
other shares of the Company having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders
of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preference Shares shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Ordinary Shares as set forth herein) for
taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preference Shares as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not earned or declared, on Series
A Preference Shares outstanding shall have been paid in full, the Company
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares ranking junior (as to dividends) to the
Series A Preference Shares;
(ii) declare or pay dividends, or make any other distributions,
on any shares ranking on a parity (as to dividends) with the Series
A Preference Shares, except dividends paid ratably on the Series A
Preference Shares and all such parity shares on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preference Shares,
provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior shares in exchange for
shares of the Company ranking junior (as
A-4
<PAGE>
to dividends and upon dissolution, liquidation or winding up) to the
Series A Preference Shares or rights, warrants or options to acquire
such junior shares; or
(iv) redeem or purchase or otherwise acquire for consideration
any Series A Preference Shares, or any shares of shares ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preference Shares, except in
accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of the Company
unless the Company could, under paragraph (a) of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any Series A Preference Shares
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (a) to the holders of shares ranking junior (upon liquidation, dissolution
or winding up) to the Series A Preference Shares unless, prior thereto, the
holders of Series A Preference Shares shall have received $1,000 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not earned or declared, to the date of such payment, provided that
the holders of Series A Preference Shares shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 1,000 times the aggregate amount to be distributed per share
to holders of Class A Shares, or (b) to the holders of shares ranking on a
parity (upon liquidation, dissolution or winding up) with the Series A
Preference Shares, except distributions made ratably on the Series A Preference
Shares and all such parity shares in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Company shall at any time declare or pay any
dividend on the Ordinary Shares payable in Ordinary Shares, or effect a
subdivision or combination or consolidation of the outstanding Ordinary Shares
(by reclassification or otherwise than by payment
A-5
<PAGE>
of a dividend in Ordinary Shares) into a greater or lesser number of Ordinary
Shares, then in each such case the aggregate amount to which holders of Series A
Preference Shares were entitled immediately prior to such event under the
proviso in clause (a) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of Ordinary
Shares outstanding immediately after such event and the denominator of which is
the number of Ordinary Shares that were outstanding immediately prior to such
event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Company shall
enter into any consolidation, merger, combination or other transaction in which
the Ordinary Shares are converted into, exchanged for or changed into other
shares or securities, cash and/or any other property, then in any such case each
Series A Preference Share shall at the same time be similarly converted into,
exchanged for or changed into an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
shares, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each Class A Share is converted or
exchanged. In the event the Company shall at any time declare or pay any
dividend on the Ordinary Shares payable in Ordinary Shares, or effect a
subdivision or combination or consolidation of the outstanding Ordinary Shares
(by reclassification or otherwise than by payment of a dividend in Ordinary
Shares) into a greater or lesser number of Ordinary Shares, then in each such
case the amount set forth in the preceding sentence with respect to the
conversion, exchange or change of Series A Preference Shares shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of Ordinary Shares outstanding immediately after such event and the denominator
of which is the number of Ordinary Shares that were outstanding immediately
prior to such event.
Section 8. NO REDEMPTION. The Series A Preference Shares shall
not be redeemable from any holder thereof.
Section 9. RANK. The Series A Preference Shares shall rank, with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Company, junior to all other
series of Preference Shares and senior to the Ordinary Shares.
Section 10. AMENDMENT. The Restated Charter of the Company shall
not be further amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preference Shares so as to
affect them adversely without the affirmative vote of the holders of two-thirds
or more of the outstanding Series A Preference Shares, voting separately as a
class.
Section 11. FRACTIONAL SHARES. Series A Preference Shares may be
issued in fractions of a share which shall entitle
A-6
<PAGE>
the holder thereof, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all of the rights of holders of Series A Preference Shares.
AND BE IT FURTHER RESOLVED, that any documents heretofore executed
or lawful actions heretofore taken by any of the officers of the Company in
connection with the transactions herein described are hereby ratified, confirmed
and approved in all respects, and further
RESOLVED, that these resolutions may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
EXECUTED to be effective as of the _____ day of _____________, 1996.
----------------------------
Thomas G. Finck
----------------------------
Robert B. Holland, III
----------------------------
Peter Rugg
A-7
<PAGE>
EXHIBIT B
Form of Right Certificate
Certificate No. R- ____ ___ Rights
NOT EXERCISABLE AFTER MAY 22, 2005 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS OWNED BY OR
TRANSFERRED TO ANY PERSON WHO BECOMES AN ACQUIRING PERSON (AS DEFINED IN
THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND
VOID AND WILL NO LONGER BE TRANSFERABLE.
Right Certificate
Triton Energy Limited
This certifies that ___________ or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of ________ __, 1996, as the same may be amended from time
to time (the "Rights Agreement"), between Triton Energy Limited, a company
organized under the laws of the Cayman Islands (the "Company"), and Chemical
Bank (the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to
5:00 P.M., New York City time, on May 22, 2005 at the office or agency of the
Rights Agent designated for such purpose, or of its successor as Rights Agent,
one one-thousandth of a fully paid non-assessable Series A Junior Participating
Preference Share, par value $.01 per share (the "Preference Shares"), of the
Company, at a purchase price of $120 per one one-thousandth of a Preference
Share (the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The number of
Rights evidenced by this Rights Certificate (and the number of one
one-thousandths of a Preference Share which may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of ________ __, 1996, based on the Preference Shares as
constituted at such date. As provided in the Rights Agreement, the Purchase
Price, the number of one one-thousandths of a Preference Share (or other
securities or property) which may be purchased upon the exercise of the Rights
and the number of Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
B-1
<PAGE>
hereunder of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned office or agency of the
Rights Agent. The Company will mail to the holder of this Right Certificate a
copy of the Rights Agreement without charge after receipt of a written request
therefor.
This Right Certificate, with or without other Right Certificates,
upon surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preference Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a redemption
price of $.01 per Right or (ii) may be exchanged in whole or in part for
Preference Shares or the Company's Class A Ordinary Shares, par value $.01 per
share.
No fractional Preference Shares will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-thousandth of a Preference Share, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the
Preference Shares or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
B-2
<PAGE>
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of _____________.
ATTEST: TRITON ENERGY LIMITED
By __________________ By __________________
Countersigned:
_______________________,
as Rights Agent
By _________________________
Authorized Signature
B-3
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED _________________________ hereby
sells, assigns and transfer unto ___________________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
Rights represented by this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
___________________ Attorney, to transfer said Rights on the books of the
within-named Company, with full power of substitution.
Dated: _________________
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
------------------------------------------------------------
(To be completed)
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by, were not acquired by the
undersigned from, and are not being assigned to, an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
________________________
Signature
B-4
<PAGE>
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To Triton Energy Limited:
The undersigned hereby irrevocably elects to exercise
__________________ Rights represented by this Right Certificate to purchase the
Preference Shares (or other securities or property) issuable upon the exercise
of such Rights and requests that certificates for such Preference Shares (or
such other securities) be issued in the name of:
______________________________________________________________
(Please print name and address)
______________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivery to:
Please insert social security
or other identifying number
______________________________________________________________
(Please print name and address)
______________________________________________________________
Dated: ____________________
________________________
Signature
(Signature must conform to holder specified on Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a member of firm of a registered
U.S. national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in the United States.
B-5
<PAGE>
Form of Reverse Side of Right Certificate -- continued
_________________________________________________________________
(To be completed)
The undersigned certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by, and were not acquired by the
undersigned from, an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement)
______________________
Signature
_________________________________________________________________
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, such Assignment or Election to Purchase will not be honored.
B-6
<PAGE>
EXHIBIT C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
OWNED BY OR TRANSFERRED TO ANY PERSON WHO BECOMES AN ACQUIRING PERSON (AS
DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL
BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE
Preference Shares
On ________ __, 1996, the Board of Directors of Triton Energy
Limited (the "Company") declared a dividend of one preference share purchase
right (a "Right") for each outstanding Class A Ordinary Share, par value $.01
per share, of the Company (the "Class A Ordinary Shares"), Class B Ordinary
Share, par value $.01 per share, of the Company (the "Class B Ordinary Shares")
and Class C Ordinary Share, par value $.01 per share, of the Company ("Class C
Ordinary Shares" and together with the Class B Ordinary Shares and the Class A
Ordinary Shares, the "Ordinary Shares") . The dividend is payable on _______
__, 1996 (the "Record Date") to the shareholders of record on that date. Each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a Series A Junior Participating Preference Share, par value
$.01 per share (the "Preference Shares") of the Company at a price of $120 per
one one-thousandth of a Preference Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement dated as of ________ __, 1996, as the same may be amended from time to
time (the "Rights Agreement"), between the Company and Chemical Bank, as Rights
Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of a number of Ordinary
Shares equal to 15% or more of the number of outstanding Ordinary Shares;
PROVIDED, HOWEVER, that if a Person would be deemed an Acquiring Person upon
the adoption of the Rights Agreement, such Person will not be deemed an
"Acquiring Person" for any purposes of the Rights Agreement unless and until
such Person acquires Beneficial Ownership of any additional Class A Ordinary
Shares after the date of the adoption of the Rights Agreement or (ii) 10
business days (or such later date as may be determined by action of the Board of
Directors prior to such time as any person or group of affiliated persons
becomes an Acquiring Person) following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of a number of
Ordinary Shares equal to 15% or more of the number of outstanding Ordinary
Shares (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Ordinary Share certificates
outstanding as of the Record Date, by such Ordinary Share certificate together
with a copy of this Summary of Rights.
C-1
<PAGE>
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Ordinary Shares; PROVIDED, HOWEVER, that prior to the
Distribution Date, upon the conversion of any class of Ordinary Shares into
Ordinary Shares of a different class all Rights attached to the Ordinary Shares
being converted shall be deemed cancelled and retired by the Company. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Ordinary Shares certificates issued after the Record Date upon transfer or new
issuances of Ordinary Shares (including pursuant to the conversion) will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Ordinary Shares outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights,
will also constitute the transfer of the Rights associated with the Ordinary
Shares represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Ordinary Shares as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on May __, 2005 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of Preference Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a
dividend of shares on, or a subdivision, combination or reclassification of, the
Preference Shares, (ii) upon the grant to holders of the Preference Shares of
certain rights or warrants to subscribe for or purchase Preference Shares at a
price, or securities convertible into Preference Shares with a conversion price,
less than the then-current market price of the Preference Shares or (iii) upon
the distribution to holders of the Preference Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends or dividends
payable in Preference Shares) or of subscription rights or warrants (other than
those referred to above).
The number of outstanding Rights are also subject to adjustment in
the event of a stock split of the Ordinary Shares or a dividend on the Ordinary
Shares payable in Ordinary Shares or subdivisions, consolidations or
combinations of the Ordinary Shares occurring, in any such case, prior to the
Distribution Date.
C-2
<PAGE>
Preference Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preference Share will be entitled, when, as and if
declared, to a minimum preferential quarterly dividend payment of $1 per
share but will be entitled to an aggregate dividend of 1,000 times the
dividend declared per Class A Ordinary Share. In the event of liquidation, the
holders of the Preference Shares will be entitled to a minimum preferential
liquidation payment of $1,000 per share (plus any accrued but unpaid dividends)
but will be entitled to an aggregate payment of 1,000 times the payment made
per Class A Ordinary Share. Each Preference Share shall be entitled to 1,000
votes, voting together with the Ordinary Shares. Finally, in the event of any
merger, consolidation or other transaction in which Ordinary Shares are
converted or exchanged, each Preference Share will be entitled to receive 1,000
times the amount received per Class A Ordinary Share. These rights are
protected by customary antidilution provisions.
In the event that any person or group of affiliated or associated
persons becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereupon become void),
will thereafter have the right to receive upon exercise of a Right at the then
current exercise price of the Right, that number of Class A Ordinary Shares
having a market value of two times the exercise price of the Right.
In the event that, after a person or group has become an Acquiring
Person, the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold,
proper provision will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become void) will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of ordinary shares of the
person with whom the Company has engaged in the foregoing transaction (or its
parent), which number of shares at the time of such transaction will have a
market value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person
and prior to the acquisition by such person or group of beneficial ownership of
a number of Ordinary Shares equal to 50% or more of the number of outstanding
Ordinary Shares, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will have become void),
in whole or in part, at an exchange ratio of one Class A Ordinary Share, or one
one-thousandth of a Preference Share (or of a share of a class or series of the
Company's preference shares having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preference Shares will be issued (other than
fractions which are integral multiples of one one-thousandth of a Preference
Share, which may, at the election of the Company, be evidenced by
C-3
<PAGE>
depositary receipts) and in lieu thereof, an adjustment in cash will be made
based on the market price of the Preference Shares on the last trading day prior
to the date of exercise.
At any time prior to the time an Acquiring Person becomes such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (the "Redemption Price"); provided that under
certain cirumstances set forth in the Rights Agreement, after the after a tender
offer has been commenced, the Board of Directors may not be permitted to redeem
the Rights. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company may,
except with respect to the redemption price, amend the Rights in any manner.
After the Rights are no longer redeemable the Company may, except with respect
to the redemption price, amend the Rights in any manner that does not adversely
affect the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A.
A copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, as the same may
be amended from time to time, which is hereby incorporated herein by reference.
C-4
<PAGE>
EXHIBIT 4.6
INCORPORATED UNDER THE LAWS CLASS A ORDINARY SHARES
OF THE CAYMAN ISLANDS
NUMBER SHARES
DX
THIS CERTIFICATE IS TRANSFERABLE IN PAR VALUE
DALLAS AND NEW YORK ONE CENT (U.S.$0.01)
CUSIP 896750 10 6
SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS
TRITON ENERGY LIMITED
THIS CERTIFIES THAT:
S P E C I M E N
IS THE OWNER OF:
FULLY PAID AND NON-ASSESSABLE CLASS A ORDINARY SHARES OF
TRITON ENERGY LIMITED TRANSFERABLE ON THE BOOKS OF THE COMPANY BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNLESS
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS CERTIFICATE TO BE SIGNED BY
ITS DULY AUTHORIZED OFFICERS BY THE USE OF THEIR FACSIMILE SIGNATURES AND ITS
FACSIMILE SEAL TO BE HEREUNTO AFFIXED.
DATE
/s/ Thomas G. Finck COUNTERSIGNED AND REGISTERED
CHIEF EXECUTIVE OFFICER CHEMICAL MELLON SHAREHOLDER
SERVICES
/s/ ROBERT B. HOLLAND, III
SECRETARY (DALLAS, TEXAS)
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
TRITON
(ENERGY LIMITED)
The Company will furnish to any shareholder, upon request and without
charge, a full statement of the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of shares of the
Company authorized to be issued, or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights. Such request may
be made to the Company or to the Transfer Agent. Such statement is set forth in
the Articles of Association of the Company on file in the office of the Company.
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between the Company and Chemical Bank,
dated as of __________________, 1996 as the same may be amended from time to
time (the "Rights Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal executive offices
of the Company. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to the holder of
this certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circumstances, as set forth in the
Rights Agreement, Rights owned by or transferred to any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) and certain transferees
thereof will become null and void and will no longer be transferable.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT.....Custodian......
TEN ENT - as tenants by the (cust) (minor)
entireties Under uniform
JT TEN - as joint tenants with gifts to Minors
right of survivorship and Act..................
not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For value received _________ hereby sells, assigns and transfers under
Please insert Social Security or other
Identifying Number of Assignee
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
____________________________________________________________________________
_______________________________________________________________________ Shares
represented by the within Certificate, and he hereby irrevocably constitutes and
appoints ________________________ Attorney to transfer the said shares on the
books of the within named Company with full power of substitution on the
premises.
Dated
-----------------
NOTICE: The Signature(s) to
this assignment must correspond with
the name(s) as written upon the
face of the certificate in every ________________________________________
particular, without alteration or
enlargement or any change whatever. ________________________________________
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of major stock
exchange.
<PAGE>
EXHIBIT 4.7
INCORPORATED UNDER THE LAWS CLASS B ORDINARY SHARES
OF THE CAYMAN ISLANDS
NUMBER SHARES
DX
THIS CERTIFICATE IS TRANSFERABLE IN PAR VALUE
DALLAS AND NEW YORK ONE CENT (U.S.$0.01)
CUSIP ___________
SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS
TRITON ENERGY LIMITED
THIS CERTIFIES THAT:
S P E C I M E N
IS THE OWNER OF:
FULLY PAID AND NON-ASSESSABLE CLASS B ORDINARY SHARES OF
TRITON ENERGY LIMITED TRANSFERABLE ON THE BOOKS OF THE COMPANY BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNLESS
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
IN WITNESS WHEREOF, THE CORPORATION HAS CAUSED THIS CERTIFICATE TO BE
SIGNED BY ITS DULY AUTHORIZED OFFICERS BY THE USE OF THEIR FACSIMILE SIGNATURES
AND ITS FACSIMILE SEAL TO BE HEREUNTO AFFIXED.
DATE
/s/ Thomas G. Finck COUNTERSIGNED AND REGISTERED
CHIEF EXECUTIVE OFFICER CHEMICAL MELLON SHAREHOLDER
SERVICES
/s/ Robert B. Holland, III
SECRETARY (DALLAS, TEXAS)
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
TRITON
(ENERGY LIMITED)
The Corporation will furnish to any shareholder, upon request and without
charge, a full statement of the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of shares of the
Corporation authorized to be issued, or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights. Such request may
be made to the Corporation or to the Transfer Agent. Such statement is set
forth in the Articles of Association of the Corporation on file in the office of
the Corporation.
The shares evidenced hereby may not be transferred except in accordance
with the terms of the Articles of Association of the Company (the "Articles"),
which prohibit transfers other than transfers (A) in connection with a
simultaneous transfer to a subsequent holder of any Participating Preferred
Stock, par value $.01 per share, of Triton Energy Corporation ("Triton
Delaware"), comprised in the same equity unit (as defined in the Articles), or
(B) to the Company or Triton Delaware at any time after _________________, 1999,
at the option of the Company or Triton Delaware or to the Company, at the option
of the Company, immediately prior to the sale or other disposition of all of
the Common Stock of Triton Delaware, in each case on the terms and conditions
specified in the Articles. Any purported transfer of the shares represented by
this certificate in violation of the transfer restrictions contained in the
Articles shall be null and void and shall not be recorded or otherwise reflected
in the books of the Company.
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between the Company and Chemical Bank,
dated as of __________________, 1996 as the same may be amended from time to
time (the "Rights Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal executive offices
of the Company. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to the holder of
this certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circumstances, as set forth in the
Rights Agreement, Rights owned by or transferred to any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) and certain transferees
thereof will become null and void and will no longer be transferable.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT.......Custodian.......
TEN ENT - as tenants by the (cust) (minor)
entireties Under uniform gifts to
JT TEN - as joint tenants with Minors
right of Act................
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the above list.
For value received _________ hereby sells, assigns and transfers under
Please insert Social Security or other
Identifying Number of Assignee__________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________ Shares
represented by the within Certificate, and he hereby irrevocably constitutes and
appoints ________________________ Attorney to transfer the said shares on the
books of the within named Company with full power of substitution on the
premises.
Dated _________________
NOTICE: The Signature(s) to
this assignment must correspond with
<PAGE>
the name(s) as written upon the
face of the certificate in every ________________________________________
particular, without alteration or
enlargement or any change whatever. ________________________________________
Signature(s) must be guaranteed by a
by a commercial bank or trust company
or a member firm of major stock
exchange.
<PAGE>
EXHIBIT 4.8
INCORPORATED UNDER THE LAWS 5% CONVERTIBLE PREFERENCE SHARES
OF THE CAYMAN ISLANDS
NUMBER SHARES
NPU
THIS CERTIFICATE IS TRANSFERABLE IN PAR VALUE
DALLAS AND NEW YORK ONE CENT (U.S.$0.01)
CUSIP __________
SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS
TRITON ENERGY LIMITED
THIS CERTIFIES THAT:
S P E C I M E N
IS THE OWNER OF:
FULLY PAID AND NON-ASSESSABLE 5% CONVERTIBLE PREFERENCE SHARES, PAR VALUE $.01,
OF
TRITON ENERGY LIMITED TRANSFERABLE ON THE BOOKS OF THE COMPANY BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNLESS
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS CERTIFICATE TO BE SIGNED BY
ITS DULY AUTHORIZED OFFICERS BY THE USE OF THEIR FACSIMILE SIGNATURES AND ITS
FACSIMILE SEAL TO BE HEREUNTO AFFIXED.
DATE
/S/ Thomas G. Finck COUNTERSIGNED AND REGISTERED
CHIEF EXECUTIVE OFFICER CHEMICAL MELLON SHAREHOLDER
SERVICES
/S/ Robert B. Holland, III
SECRETARY (DALLAS, TEXAS)
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
TRITON
(ENERGY LIMITED)
The Company will furnish to any shareholder, upon request and without
charge, a full statement of the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of shares of the
Company authorized to be issued, or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights. Such request may
be made to the Company or to the Transfer Agent. Such statement is set forth in
the Articles of Association of the Company on file in the office of the Company.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT......Custodian......
TEN ENT - as tenants by the (cust) (minor)
entireties Under uniform gifts to
JT TEN - as joint tenants with right of Minors
survivorship and not as tenants Act...............
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received _________ hereby sells, assigns and transfers under
Please insert Social Security or other
Identifying Number of
Assignee________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________ Shares
represented by the within Certificate, and he hereby irrevocably constitutes and
appoints ________________________ Attorney to transfer the said shares on the
books of the within named Company with full power of substitution on the
premises.
Dated
-----------------
NOTICE: The Signature(s) to
this assignment must correspond with
the name(s) as written upon the
face of the certificate in every _____________________________________________
particular, without alteration or
enlargement or any change whatever._____________________________________________
Signature(s) must be guaranteed by a commercial bank or
trust company or a member firm of major stock exchange.
<PAGE>
EXHIBIT 4.9
INCORPORATED UNDER THE LAWS PARTICIPATING PREFERRED STOCK
OF THE STATE OF DELAWARE
NUMBER SHARES
THIS CERTIFICATE IS TRANSFERABLE IN PAR VALUE
DALLAS AND NEW YORK ONE CENT ($0.01)
CUSIP __________
SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS
TRITON ENERGY CORPORATION
THIS CERTIFIES THAT:
S P E C I M E N
IS THE OWNER OF:
FULLY PAID AND NON-ASSESSABLE SHARES OF PARTICIPATING PREFERRED STOCK OF
TRITON ENERGY CORPORATION TRANSFERABLE ON THE BOOKS OF THE COMPANY BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNLESS
COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
IN WITNESS WHEREOF, THE CORPORATION HAS CAUSED THIS CERTIFICATE TO BE
SIGNED BY ITS DULY AUTHORIZED OFFICERS BY THE USE OF THEIR FACSIMILE SIGNATURES
AND ITS FACSIMILE SEAL TO BE HEREUNTO AFFIXED.
DATE
/s/ Thomas G. Finck COUNTERSIGNED AND REGISTERED
CHIEF EXECUTIVE OFFICER CHEMICAL MELLON SHAREHOLDER
SERVICES
/s/ Robert B. Holland, III
SECRETARY (DALLAS, TEXAS)
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
TRITON
(ENERGY CORPORATION)
The Corporation will furnish to any stockholder, upon request and without
charge, a full statement of the powers, designations, preferences, and relative,
participating, optional or other special rights of the shares of each class of
stock of the Corporation authorized to be issued, or series thereof, and the
qualifications, limitations or restrictions of such preferences and/or rights.
Such request may be made to the Corporation or to the Transfer Agent. Such
statement is set forth in the Certificate of Incorporation of the Corporation on
file in the office of the Secretary of State of Delaware and the Corporation.
The shares evidenced hereby may not be transferred except in accordance
with the terms of Section 6 of the certificate of designation relating to the
shares evidenced hereby (the "Certificate of Designation"), which prohibits
transfers other than transfers (A) in connection with a simultaneous transfer to
a subsequent holder of any Class B Ordinary Shares, par value $.01 per share, of
Triton Energy Limited, comprised in the same equity unit (as defined in the
Certificate of Designation), or (B) to the Corporation or Triton Cayman at any
time after _________________, 1999, at the option of the Corporation or Triton
Cayman or to Triton Cayman, at the option of Triton Cayman, immediately prior to
the sale or other disposition of all of the Common Stock of the Corporation, in
each case on the terms and conditions specified in the Certificate of
Designation. Any purported transfer of the shares (or fractions of shares)
represented by this certificate in violation of the transfer restrictions
contained in Section 6 of the Certificate of Designation shall be null and void
and shall not be recorded or otherwise reflected in the books of the
Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT.....Custodian......
TEN ENT - as tenants by the (cust) (minor)
entireties Under uniform
JT TEN - as joint tenants with right of gifts to Minors
survivorship and not as tenants Act.................
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received _________ hereby sells, assigns and transfers under
Please insert Social Security or other
Identifying Number of
Assignee________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
____________________________________________________________________________
_______________________________________________________________________ Shares
represented by the within Certificate, and he hereby irrevocably constitutes and
appoints ________________________ Attorney to transfer the said shares on the
books of the within named Corporation with full power of substitution on the
premises.
Dated _________________
NOTICE: The Signature(s) to
this assignment must correspond with
the name(s) as written upon the
face of the certificate in every ________________________________________
particular, without alteration or
enlargement or any change whatever. ________________________________________
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of major stock exchange.
<PAGE>
EXHIBIT 5.1
[W.S. WALKER & COMPANY LETTERHEAD]
February 14, 1996
Triton Energy Limited
Caledonian House, Mary Street
P.O. Box 1043
George Town
Grand Cayman, Cayman Islands
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Dear Sirs,
This opinion is delivered in connection with the Registration
Statement on Form S-4 (the "Registration Statement") filed by Triton Energy
Limited, a Cayman Islands company ("Triton Cayman"), and Triton Energy
Corporation, a Delaware corporation ("Triton Delaware"), under the Securities
Act of 1933, as amended (the "Act"), relating to (i) 36,233,372 Class A Ordinary
Shares, par value $.01 per share (the "Class A Shares"), of Triton Cayman
(including the preference share purchase rights of Triton Cayman), (ii)
9,058,343 Class B Ordinary Shares, par value $.01 per share (the "Class B
Shares"), of Triton Cayman (including the preference share purchase rights of
Triton Cayman), (iii) 905,835 shares of Participating Preferred Stock, par
value $.01 per share (the "Triton Delaware Preferred Stock"), of Triton
Delaware, and (iv) 9,058,343 Unit Depositary Shares (the "Unit Depositary
Shares" and, together with the Class A Shares, the Class B Shares, the
Convertible Preference Shares and the Triton Delaware Preferred Stock, the
"Shares"), each consisting of one Class B Share and 1/10 of one share of Triton
Delaware Preferred Stock. The Shares will be issued in connection with the
merger of TEL Merger Corp., a Delaware corporation and a wholly-owned subsidiary
of Triton Cayman ("Sub"), with and into Triton Delaware.
<PAGE>
Triton Energy Limited -2- February 14, 1996
Triton Energy Corporation
For the purposes of giving this opinion, we have examined the
documents listed in Schedule 1 hereto.
In giving this opinion we have relied upon the assumptions set out in
Schedule 2 hereto, which we have not independently verified.
We are Attorneys-at-Law in the Cayman Islands and express no opinion
as to any laws other than the laws of the Cayman Islands in force and as
interpreted at the date hereof. Except as explicitly stated herein, we express
no opinion in relation to any representation or warranty contained in the
documents nor upon the commercial terms of the transactions contemplated by the
documents.
Based upon the foregoing examinations and assumptions and upon such
searches as we have conducted and having regard to legal considerations which we
deem relevant, we are of the opinion that under the law of the Cayman Islands:
1. The issuance of the Class A Shares in connection with the Merger
in the manner and on the terms described in the Registration Statement
when duly authorised will be in accordance with the provisions of the
Memorandum and Articles of Association of Triton Cayman and the same will
be deemed fully paid and non-assessable.
2. The issuance of the Class B Shares in connection with the Merger
in the manner and on the terms described in the Registration Statement
when duly authorised will be in accordance with the provisions of the
Memorandum and Articles of Association of Triton Cayman and the same will
be deemed fully paid and non-assessable.
This opinion is limited to the matters referred to herein and shall
not be construed as extending to any other matter or document not referred to
herein. This opinion is given solely for your benefit and the benefit of you
legal advisers acting in that capacity in relation to this transaction and may
not be relied upon by any other person without our prior written consent. This
opinion is governed by and shall be construed in accordance with the laws of the
Cayman Islands.
<PAGE>
Triton Energy Limited -3- February 14, 1996
Triton Energy Corporation
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and all references to our name in the Registration
Statement.
Yours faithfully,
/s/ W.S. Walker & Co.
W.S. Walker & Company
<PAGE>
Triton Energy Limited -4- February 14, 1996
Triton Energy Corporation
Schedule I
1. The Articles of Association of Triton Cayman.
2. The Memorandum of Association of Triton Cayman.
3. The Registration Statement.
4. The Agreement and Plan of Merger, dated as of February 8, 1996, among
Triton Delaware, Triton Cayman and Sub.
<PAGE>
Triton Energy Limited -5- February 14, 1996
Triton Energy Corporation
Schedule 2
1. The Articles of Association in the form attached to the Registration
Statement as Exhibit 3.1 will be adopted by Special Resolution of the
shareholders of Triton Cayman prior to the issue of the Class
A Shares and the Class B Shares.
2. Resolutions of the Board of Directors of Triton Cayman will be passed to
authorise the issue of the Class A Shares and the Class B Shares.
<PAGE>
EXHIBIT 5.2
[SIMPSON THACHER & BARTLETT LETTERHEAD]
February 14, 1996
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Triton Energy Limited
Caledonian House, Mary Street
P.O. Box 1043
George Town
Grand Cayman, Cayman Islands
Ladies and Gentlemen:
We have acted as special counsel to Triton Energy Corporation, a
Delaware corporation ("Triton Delaware"), in connection with the Registration
Statement on Form S-4 (the "Registration Statement") filed by Triton Delaware
and Triton Energy Limited, a Cayman Islands company ("Triton Cayman"), under the
Securities Act of 1933, as amended (the "Act"), relating to (i) 905,835 shares
of Participating Preferred Stock, par value $.01 per share (the "Triton Delaware
Preferred Stock"), of Triton Delaware, (ii) 36,233,372 Class A Ordinary Shares,
par value $.01 per share, of Triton Cayman, (iii) 9,058,343 Class B Ordinary
Shares, par value $.01 per share (the "Class B Shares"), of Triton Cayman and
(iv) 9,058,343 Unit Depositary Shares (the "Unit Depositary Shares" and,
together with the Triton Delaware Preferred Stock, the "Shares"), each
consisting of
<PAGE>
Triton Energy Corporation 2 February 14, 1996
Triton Energy Limited
one Class B Share and 1/10 of one share of Triton Delaware Preferred Stock. The
Shares will be issued in connection with transactions contemplated by the merger
of TEL Merger Corp., a Delaware corporation and a wholly-owned subsidiary of
Triton Cayman, with and into Triton Delaware (the "Merger").
We have examined (i) the Registration Statement, (ii) the Certificate
of Incorporation and By-Laws of Triton Delaware, (iii) the Merger Agreement,
dated as of February 8, 1996, among Triton Delaware, Triton Cayman and TEL
Merger Corp., (iv) the form of Certificate of Designation of the Triton Delaware
Preferred Stock (the "Certificate of Designation") and (v) the form of Deposit
Agreement (the "Deposit Agreement") among Triton Delaware, Triton Cayman,
Chemical Bank, as depositary (the "Depositary"), and the holders from time to
time of depositary receipts issued thereunder evidencing Unit Depositary Shares
(the "Depositary Receipts") and have examined, and have relied as to matters of
fact upon, originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials
and of officers and representatives of Triton Delaware, and have made such other
and further investigations as we have deemed relevant and necessary as a basis
for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as
<PAGE>
Triton Energy Corporation 3 February 14, 1996
Triton Energy Limited
certified or photostatic copies, and the authenticity of the originals of such
latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Triton Delaware Preferred Stock has been duly authorized by
Triton Delaware and, when the Certificate of Designation is filed with the
Secretary of State of the State of Delaware and certificates representing
such shares of Triton Delaware Preferred Stock have been duly executed,
countersigned, registered and delivered, and such shares have been issued
in connection with the Merger in the manner and on the terms described in
the Registration Statement, the Triton Delaware Preferred Stock will be
validly issued, fully paid and nonassessable.
2. The Deposit Agreement has been duly authorized by Triton
Delaware, and, assuming (i) due execution and delivery of the Deposit
Agreement by Triton Delaware and (ii) due authorization, execution and
delivery of the Deposit Agreement by Triton Cayman and the Depositary, each
Unit Depositary Share, when issued in accordance with the Deposit Agreement
against the deposit of validly issued, fully paid and nonassessable Class B
Shares and shares of Triton Delaware Preferred Stock, will represent an
interest, as described in the Registration Statement, in validly issued,
fully paid and nonassessable Class B Shares and shares of Triton Delaware
Preferred Stock and, assuming the due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the Deposit Agreement and
upon issuance of the Depositary Shares in connection with the Merger as
contemplated by the Registration Statement, the Depositary Receipts will
entitle the holders thereof to the benefits provided therein and in the
Deposit Agreement.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States of America and the Delaware
General Corporation Law. Concurrent with the delivery of this opinion, you are
receiving an opinion of W.S. Walker & Company with respect to matters of Cayman
Islands law.
<PAGE>
Triton Energy Corporation 4 February 14, 1996
Triton Energy Limited
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Registration Statement.
<PAGE>
Triton Energy Corporation 5 February 14, 1996
Triton Energy Limited
This opinion is rendered to you in connection with the above-described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE>
EXHIBIT 8.1
[SIMPSON THACHER & BARTLETT LETTERHEAD]
February 14, 1996
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Ladies and Gentlemen:
This opinion is delivered to you in connection with the Registration
Statement on Form S-4 filed with the Securities and Exchange Commission on
February 14, 1996 (the "Registration Statement"), under the Securities Act of
1933, as amended, by Triton Energy Corporation, a Delaware corporation
("Triton Delaware"), and Triton Energy Limited, a newly formed Cayman Islands
company ("Triton Cayman"), in connection with the proposed reorganization
pursuant to which Triton Cayman will become the parent holding company of
Triton Delaware pursuant to the merger of a wholly-owned subsidiary of Triton
Cayman with and into Triton Delaware.
We have examined the Registration Statement and such other
documents as we have deemed relevant and necessary as a basis for the opinion
hereinafter set forth.
<PAGE>
Triton Energy Corporation -2- February 14, 1996
In addition, we have made such other and further investigations as we have
deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion the
statements made in the Registration Statement under the caption "Certain Tax
Considerations -- United States Federal Income Tax Consequences", insofar as
they purport to constitute summaries of matters of United States federal tax
law and regulations or legal conclusions with respect thereto, constitute
accurate summaries of our opinion of the matters described therein in all
matters respects.
The foregoing opinion is based on current provisions of the
Internal Revenue Code of 1986, as amended, the Treasury Regulations
promulgated thereunder (including proposed Treasury Regulations), published
pronouncements of the Internal Revenue Service, and case law, any of which
may be changed at any time with retroactive effect. No opinion is expressed
on any matters other than those specifically referred to herein.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State
of New York and the federal law of the United States.
<PAGE>
Triton Energy Corporation -3- February 14, 1996
We consent to the filing of this opinion as Exhibit 8.1 to the
Registration Statement and to the use of our name under the caption "Certain
Tax Considerations -- United States Federal Income Tax Consequences."
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE>
Exhibit 8.2
[WEIL, GOTSHAL & MANGES LLP LETTERHEAD]
February 14, 1996
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Ladies and Gentlemen:
This opinion is delivered to you in connection with the Registration
Statement on Form S-4 filed with the Securities and Exchange Commission on
February 14, 1996 (the "Registration Statement"), under the Securities Act of
1933, as amended, by Triton Energy Corporation, a Delaware corporation ("Triton
Delaware"), and Triton Energy Limited, a newly formed Caymen Islands company
("Triton Cayman"), in connection with the proposed reorganization pursuant to
which Triton Cayman will become the parent holding company of Triton Delaware
pursuant to the merger of a wholly-owned subsidiary of Triton Caymen with and
into Triton Delaware.
In formulating our opinion as to the matters certified, we have
examined such documents as we have deemed appropriate, including the
Registration Statement. Also, we have obtained such additional information as
we have deemed relevant and necessary through consultation with various
officers and representatives of Triton Delaware.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion the
statements made in the Registration Statement under the caption "Certain Tax
<PAGE>
Triton Energy Corporation
February 14, 1996
Page 2
Considerations -- United States Federal Income Tax Consequences", insofar as
they purport to constitute summaries of matters of United States federal tax
law and regulations or legal conclusions with respect thereto, constitute
accurate summaries of our opinion of the matters described therein in all
material respects.
The foregoing opinion is based on current provisions of the Internal
Revenue Code of 1986, as amended, the Treasury Regulations promulgated
thereunder (including proposed Treasury Regulations), published pronouncements
of the Internal Revenue Service, and case law, any of which may be changed at
any time with retroactive effect. No opinion is expressed on any matters other
than those specifically referred to herein.
We hereby consent to your filing this opinion as Exhibit 8.2 to the
Registration Statement and to the reference to our firm therein.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
<PAGE>
Exhibit 8.3
[Letterhead of W.S. Walker & Company]
Triton Energy Limited
Caledonian House
Mary Street, P.O. Box 1043
Georgetown
Grand Cayman, Cayman Islands
Dear Sirs:
This opinion is delivered in connection with the Registration Statement on Form
S-4 (the "Registration Statement") filed by Triton Energy Limited, a Cayman
Islands company ("Triton Cayman"), and Triton Energy Corporation, a Delaware
corporation ("Triton Delaware"), under the Securities Act of 1933, as amended
(the "Act"), relating to (i) 36,233,372 Class A Ordinary Shares, par value $0.01
per share, of Triton Cayman (including the preference share purchase rights of
Triton Cayman), (ii) 9,058,343 Class B Ordinary Shares, par value $0.01 per
share (the "Class B Shares"), of Triton Cayman (including the preference share
purchase rights of Triton Cayman), (iii) 905,835 shares of Participating
Preferred Stock, par value $0.01 per share (the "Triton Delaware Preferred
Stock"), of Triton Delaware, and (iv) 9,058,343 Unit Depositary Shares
(the "Unit Depositary Shares" and, together with the Class A Shares, the
Class B Shares, and the Triton Delaware Preferred Stock, the "Shares"), each
consisting of one Class B Share and 1/10 of one share of Triton Delaware
Preferred Stock. The Shares will be issued in connection with the merger of TEL
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Triton
Cayman, with and into Triton Delaware.
For the purposes of giving this opinion, we have examined the Registration
Statement.
We are Attorneys-at-Law in the Cayman Islands and express no opinion as to any
laws other than the laws of the Cayman Islands in force and as interpreted at
the date hereof. Except as explicitly stated herein, we express no opinion in
relation to any representation or warranty contained in the documents nor upon
the commercial terms of the transations contemplated by the documents.
Based upon the foregoing examinations and assumptions and upon such searches as
we have conducted and having regard to legal considerations which we deem
relevant, we are of the opinion that the statements made in the Registration
Statement under the caption "Certain Tax Considerations--Cayman Island Tax
Consequences", insofar as they purport to constitute summaries of matters of
Cayman Islands tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of our opinions of the matters described
therein in all material respects.
This opinion is limited to the matters referred to herein and shall not be
construed as extending to any other matter or document not referred to herein.
This opinion is given solely for your benefit and the benefit of your legal
advisers acting in that capacity in relation to this transaction and may not be
<PAGE>
relied upon by any other persons without our prior written consent. This
opinion is governed by and shall be construed in accordance with the laws of the
Cayman Islands.
We hereby consent to the filing of this opinion as Exhibit 8.3 to the
Registration Statement and all references to our name in the Registration
Statement.
Yours faithfully,
/s/ W.S. Walker & Company
W.S. Walker & Company
<PAGE>
EXHIBIT 12.1
TRITON ENERGY CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS
(THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEVEN MONTHS
SEPTEMBER 30, ENDED YEARS ENDED MAY 31,
-------------------- DECEMBER 31, ------------------------------------------
1995 1994 1994 1994 1993 1992 1991
--------- --------- ------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges, as defined (1):
Interest charges................................ $ 30,509 $ 25,443 $ 20,285 $ 26,951 $ 16,336 $ 11,066 $ 28,056
Preferred dividend requirements of the Company.... 802 449 449 -- -- 1,386 5,546
Preferred dividend requirements of subsidiaries
adjusted to pre-tax basis........................ -- -- -- 364 1,551 1,780 2,330
--------- --------- ------------- --------- --------- --------- ---------
Total fixed charges............................. 31,311 25,892 20,734 27,315 17,887 14,232 35,932
--------- --------- ------------- --------- --------- --------- ---------
--------- --------- ------------- --------- --------- --------- ---------
Earnings, as defined (1)(3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change.............................. 15,856 (35,921) (22,834) (23,104) (147,445) (87,124) 21,054
Fixed charges, above............................ 31,311 25,892 20,734 27,315 17,887 14,232 35,932
Less interest capitalized....................... (11,522) (16,174) (11,833) (16,863) (6,407) (6,529) (5,879)
Plus undistributed (earnings) loss of
affiliates..................................... 1,014 (1,534) 4,102 (645) 3,012 2,558 (2,604)
Less preferred dividend requirements of the
Company and its subsidiaries adjusted to a pre-
tax basis...................................... (802) (449) (449) (364) (1,551) (3,166) (7,876)
--------- --------- ------------- --------- --------- --------- ---------
$ 35,857 $ (28,186) $ (10,280) $ (13,661) $(134,504) $ (80,029) $ 40,627
--------- --------- ------------- --------- --------- --------- ---------
--------- --------- ------------- --------- --------- --------- ---------
Ratio of earnings to combined fixed charges and
preferred stock dividends (2)(3)................. 1.1 -- -- -- -- -- 1.1
--------- --------- ------------- --------- --------- --------- ---------
--------- --------- ------------- --------- --------- --------- ---------
<CAPTION>
1990
---------
<S> <C>
Fixed charges, as defined (1):
Interest charges................................ $ 33,181
Preferred dividend requirements of the Company.... 5,398
Preferred dividend requirements of subsidiaries
adjusted to pre-tax basis........................ 2,498
---------
Total fixed charges............................. 41,077
---------
---------
Earnings, as defined (1)(3):
Earnings (loss) from continuing operations
before income taxes, minority interest,
extraordinary item and cumulative effect of
accounting change.............................. (44,281)
Fixed charges, above............................ 41,077
Less interest capitalized....................... (7,180)
Plus undistributed (earnings) loss of
affiliates..................................... (246)
Less preferred dividend requirements of the
Company and its subsidiaries adjusted to a pre-
tax basis...................................... (7,896)
---------
$ (18,526)
---------
---------
Ratio of earnings to combined fixed charges and
preferred stock dividends (2)(3)................. --
---------
---------
</TABLE>
- ------------------------------
(1) Earnings include the Company's equity in the losses of an affiliate whose
debt is guaranteed by the Company. Related interest charges for the years
ended May 31, 1992, 1991 and 1990 of $819,000, $802,000 and $240,000,
respectively, were excluded from fixed charges due to the improbability
that such guarantees would be honored.
(2) Earnings were inadequate to cover fixed charges and preferred dividends for
the nine months ended September 30, 1994 by $54,078,000, for the seven
months ended December 31, 1994 by $31,014,000 and for the years ended May
31, 1994, 1993, 1992 and 1990 by $40,976,000, $152,391,000, $94,261,000 and
$59,603,000, respectively.
(3) Earnings reflect nonrecurring writedowns and loss provisions of $1,963,000
and $15,366,000 for the nine months ended September 30, 1995 and 1994,
$984,000 for the seven months ended December 31, 1994 and $45,754,000,
$99,883,000, $48,805,000, $2,708,000 and $29,239,000 for the years ended
May 31, 1994, 1993, 1992, 1991 and 1990, respectively. Nonrecurring gains
from the sales of assets and other gains aggregated $13,571,000 and
$1,500,000 for the nine months ended September 30, 1995 and 1994,
respectively, and for the years ended May 31, 1994 and 1991 aggregated
$56,193,000 and $28,351,000, respectively. The ratio of earnings to
combined fixed charges and preferred dividends if adjusted to remove
nonrecurring items would have been 0.8 for the nine months ended September
30, 1995 and 0.5 and 0.3 for the years ended May 31, 1991 and 1990,
respectively. Without nonrecurring items, earnings would have been
inadequate to cover fixed charges and preferred dividends for the nine
months ended September 30, 1995 and 1994 by $7,062,000 and $40,212,000,
respectively, for the seven months ended December 31, 1994 by $30,030,000
and for the years ended May 31, 1994, 1993, 1992, 1991 and 1990 by
$51,415,000, $45,183,000, $33,687,000, $17,452,000 and $28,864,000,
respectively.
<PAGE>
EXHIBIT 15.1
February 14, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Triton Energy Corporation has included our reports dated
May 2, 1995, August 1, 1995 and October 31, 1995 included in Triton Energy
Corporation's quarterly report on Form 10-Q for the quarters ended March 31,
1995, June 30, 1995 and September 30, 1995, respectively, (issued pursuant to
the provisions of Statement on Auditing Standards No. 71) in the Registration
Statement on Form S-4 to be filed on or about February 14, 1996. In addition,
we are aware that Triton Energy Corporation has included our report dated
February 14, 1996 on the pro forma consolidated condensed balance sheet as of
September 30, 1995 and the pro forma consolidated condensed statement of
operations for the nine month period then ended for Triton Energy Corporation
dated February 13, 1996 and our report dated February 14, 1996 on the pro forma
consolidated condensed balance sheet as of September 30, 1995 for Triton Energy
Limited in the same Registration Statement on Form S-4. We are also aware of our
responsibilities under the Securities Act of 1933.
Yours very truly,
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Dallas, Texas
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Proxy
Statement/Prospectus constituting part of this Registration Statement on Form
S-4 of Triton Energy Corporation of our report dated February 14, 1995, except
as to Notes 1 and 4 which are dated as of August 24, 1995, appearing on page F-2
of the Company's Current Report on Form 8-K dated August 24, 1995 for the year
ended December 31, 1994. We also consent to the use in the Proxy
Statement/Prospectus of our report dated February 8, 1996 relating to the
balance sheet of Triton Energy Limited and of our report dated February 14, 1996
relating to the pro forma financial information of Triton Energy Corporation,
which appear in such Proxy Statement/Prospectus. We also consent to the
references to us under the heading "Experts" and "Selected Historical Financial
and Oil and Gas Data" in such Proxy Statement/Prospectus. However, it should be
noted that Price Waterhouse LLP has not prepared or certified such "Selected
Historical Financial and Oil and Gas Data".
PRICE WATERHOUSE LLP
Dallas, Texas
February 14, 1996
<PAGE>
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-4 of Triton Energy
Limited and Triton Energy Corporation of our report dated August 14, 1992,
relating to the consolidated statements of operations, shareholders' equity
and cash flows of Triton Energy Corporation and subsidiaries for the year
ended May 31, 1992 and related schedule (before restatement for discontinued
aviation sales and services operations and wholesale fuel products
operations) which report appears in the Current Report on From 8-K dated
August 24, 1995 of Triton Energy Corporation. We also consent to the
references to us under the headings "Experts" and "Selected Financial Data"
in such Prospectus.
/s/ KPMG Peat Marwick LLP
Dallas, Texas
February 12, 1996
<PAGE>
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-4 of Triton Energy
Limited and Triton Energy Corporation of our report dated August 14, 1992,
relating to the consolidated statements of earnings, shareholders' equity and
cash flows of Crusader Limited and subsidiaries for the year ended May 31,
1992 which report appears in the December 31, 1994 transition report on Form
10-K of Triton Energy Corporation. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
/s/ KPMG Peat Marwick LLP
Brisbane, Australia
February 12, 1996
<PAGE>
EXHIBIT 23.8
DeGolyer and MacNaughton
One Energy Square
Dallas, Texas 75206
February 12, 1996
Triton Energy Limited
George Town
Cayman Islands
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's) Transition Report on Form 10-K for the period from
June 1, 1994 to December 31, 1994, and inclusion in the Registration Statement
on Form S-4 of the Company and Triton Energy Limited, a Cayman Islands company
("TEL"), relating to an offering of the securities of the Company and TEL, of
certain data from our report dated January 30, 1995, entitled "Appraisal Report
as of December 31, 1994 on Certain Properties in Colombia owned by Triton
Colombia Incorporated" under the caption "Properties -- Reserves" in Item 2 of
said Form 10-K and (ii) the specific reference to our firm in "Experts" in Form
10-K and 'Experts" in Form S-4. We wish to point out, however, we now have
available our report dated February 12, 1996, entitled "Appraisal Report as of
December 31, 1995 on Certain Properties in Colombia owned by Triton Colombia
Incorporated," which shows a reserves increase, compared to the prior year, as a
result of additional delineation drilling.
Very truly yours,
/s/ Degolyer and MacNaughton
--------------------------------------
DEGOLYER AND MACNAUGHTON
<PAGE>
EXHIBIT 23.9
[Letterhead of McDaniel & Associates]
February 8, 1996
Triton Energy Limited
George Town
Cayman Islands
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206
REFERENCE: CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
Dear Gentlemen:
We hereby consent to the incorporation by reference from Triton Energy
Corporation's (the "Company") Transition Report on Form 10-K for the period from
June 1, 1994 to December 31, 1994, and inclusion in the Registration Statement
on Form S-4 (the "Form S-4") of the Company and Triton Energy Limited, a Cayman
Islands company ("TEL"), relating to an offering of the securities of the
Company and TEL, of the estimates of the net proved reserves and future net cash
inflows of the Company prepared by our firm in our evaluation of Ausquacan
Energy Ltd. as of December 31, 1994. 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: February 8, 1996
<PAGE>
EXHIBIT 23.10
CONSENT OF J.P. MORGAN & CO. INCORPORATED
We hereby consent to the use of our opinion to the Board of Directors of
Triton Energy Corporation, dated February 14, 1996, which is included as an
Exhibit to this Registration Statement and all references to our firm and such
opinion included in such Proxy Statement/Prospectus forming a part of this
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 and the rules and regulations promulgated thereunder (the
"Securities Act"), and we do not thereby admit that we are experts with respect
to any part of this Registration Statement under the meaning of the term
"expert" as used in the Securities Act.
J.P. MORGAN & CO. INCORPORATED
By: /s/ Adrian W. Doherty, Jr.
Its: Managing Director
New York, New York
February 14, 1996
<PAGE>
EXHIBIT 23.11
CONSENT OF LEHMAN BROTHERS INC.
We hereby consent to the use of our opinion to the Board of Directors of
Triton Energy Corporation, dated February 14, 1996, which is included as an
Exhibit to this Registration Statement and all references to our firm and such
opinion included in such Proxy Statement/Prospectus forming a part of this
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 and the rules and regulations promulgated thereunder (the
"Securities Act"), and we do not thereby admit that we are experts with respect
to any part of this Registration Statement under the meaning of the term
"expert" as used in the Securities Act.
LEHMAN BROTHERS INC.
By: /s/ H.E. Lentz
Managing Director
New York, New York
February 14, 1996
<PAGE>
[J.P. MORGAN SECURITIES INC.]
Exhibit 99.1
February 14, 1996
Board of Directors
Triton Energy Corporation
6688 North Central Expressway, 12th Floor
Dallas, TX 75206
Members of the Board:
We understand that Triton Energy Limited ("Triton Cayman"), a Cayman Islands
company and a wholly-owned subsidiary of Triton Energy Corporation ("Triton
Delaware" or the "Company"), a Delaware corporation, will become the parent
holding company of Triton Delaware through the merger (the "Merger") of TEL
Merger Corp. ("Sub"), a Delaware corporation and a wholly-owned subsidiary of
Triton Cayman, with and into Triton Delaware (the "Reorganization"). Upon
consummation of the Merger, each outstanding share of Common Stock, par value
$1.00 per share, of Triton Delaware ("Delaware Common Stock") (other than
those held by Triton Delaware) will either (a) be converted automatically
into one Class A ordinary share, par value $.01 per share ("Class A Shares"),
of Triton Cayman or (b) at the election of the holders of not less than 15%
but not more than 25% of the Delaware Common Stock (an "Equity Election
Unit"), be converted into the right to receive an equity unit ("Equity Unit")
consisting of (i) one class B ordinary share, par value $.01 per share
("Class B Shares"), of Triton Cayman, and (ii) one-tenth of one share of
participating preferred stock, par value $.01 per share, of Triton Delaware
("Triton Delaware Preferred Stock"). The Equity Units will be deposited with
Chemical Mellon Shareholder Services, L.L.C. as depositary (the
"Depositary"), in exchange for the issuance of Unit Depositary Shares,
receipts for which will be distributed to former holders of Delaware Common
Stock who make an Equity Unit Election. The terms and conditions of the
Reorganization are set forth in more detail in the Agreement and Plan of
Merger among Triton Delaware, Triton Cayman and Sub ("The Merger Agreement").
We have been requested by the Board of Directors of the Company to render our
opinion with respect to the relative values to the stockholders of Triton
Delaware of the consideration to be offered in the Reorganization. In that
regard, we have been asked to opine as to (i) whether the inherent value of a
Class A Share is substantially equivalent to the inherent value of an Equity
Unit and (ii) the approximate relative fair market values of a Class B Share
and one-tenth of one share of Triton Delaware Preferred Stock. We have not
been requested to opine as to, and our opinion does not in any manner
address, Triton Delaware's underlying business decision to effect the
Reorganization. In addition, we do not express any opinion as to the
potential effect on the market price of the Delaware Common Stock of the
announcement of the Reorganization or the prices at which the Class A Shares
or the Equity Units will actually trade following the commencement of
the Reorganization.
In arriving at our opinion, we reviewed and analyzed: (1) the Merger
Agreement and the specific terms of the Reorganization, (2) the proxy
statement/joint prospectus relating to the
<PAGE>
Page 2
Reorganization and such other publicly available information concerning
Triton Delaware that we believe to be relevant to our inquiry, (3) financial
and operating information and projections with respect to the business,
operations and prospects of Triton Delaware and Triton Cayman furnished to us
by Triton Delaware, (4) reserve reports and projected economics relating to
the Company's oil and gas assets furnished to us by Triton Delaware, (5) a
trading history of the Delaware Common Stock and a comparison of that trading
history with those of other companies that we deemed relevant, (6) a
comparison of the historical financial results and present financial
condition of Triton Delaware with those of other companies that we deemed
relevant. In addition, we have had discussions with the management of Triton
Delaware concerning the business, operations, assets, financial conditions
and prospects of Triton Delaware and Triton Cayman and undertook such other
studies, analyses and investigations as we deemed appropriate.
In arriving at our opinions, we have assumed and relied upon the accuracy and
completeness of the financial and other information used by us without
assuming any responsibility for independent verification of such information
and we have further relied upon the assurance of management of Triton
Delaware that they are not aware of any facts that would make such
information inaccurate or misleading. With respect to the financial
projections of Triton Delaware and Triton Cayman, upon advice of management
of Triton Delaware we have assumed that such projections have been reasonably
prepared on a basis reflecting the best currently available estimates and
judgments of the management of Triton Delaware as to the future financial
performance of Triton Delaware and Triton Cayman and that Triton Delaware and
Triton Cayman will perform substantially in accordance with such projections.
In arriving at our opinion, we have not conducted a physical inspection of
the properties and facilities of Triton Delaware or Triton Cayman. In
addition, you have not authorized us to solicit, and we have not solicited,
any indications of interest from any third party with respect to the purchase
of any of the securities to be distributed in the Reorganization. Our opinion
necessarily is based upon market, economic and other conditions as they exist
on, and can be evaluated as of, the date of this letter.
Based upon and subject to the foregoing, we are of the opinion as of the date
hereof that, (i) the inherent value of a Class A Share is substantially
equivalent to the inherent value of an Equity Unit and (ii) an allocation of
the fair market value of the components of an Equity Unit of $3.50 for
a Class B Share and $49.00 for one-tenth of one share of Triton
Delaware Preferred Stock, based on a closing trading price of $52.50
per share of Delaware Common Stock on February 13, 1996, is reasonable.
We have acted as financial advisor to Triton Delaware in connection with the
Reorganization and will receive a fee for our services which is contingent
upon the consummation of the Reorganization. In addition, Triton Delaware has
agreed to indemnify us for certain liabilities that may arise out of the
rendering of this opinion. We also have performed various investment banking
services for Triton Delaware and its affiliates in the past and have received
<PAGE>
Page 3
customary fees for such services. In the ordinary course of our business, we
actively trade in the debt and equity securities of Triton Delaware for our
own account and for the accounts of our customers and, accordingly, may at
any time hold a long or short position in such securities.
This opinion is for the use and benefit of the Board of Directors of Triton
Delaware and is rendered to the Board of Directors in connection with its
consideration of the Reorganization. This opinion is not intended to be and
does not constitute a recommendation to any stockholder of Triton Delaware as
to how such stockholder should vote with respect to the Reorganization.
Very truly yours,
J.P. MORGAN SECURITIES INC.
By: /s/ Adrian W. Doherty, Jr.
----------------------------
Name: Mr. Adrian Doherty
Title: Managing Director
<PAGE>
Exhibit 99.2
[LEHMAN BROTHERS LETTERHEAD]
February 14, 1996
Board of Directors
Triton Energy Corporation
6688 North Central Expressway, 12th Floor
Dallas, Texas 75206
Members of the Board:
We understand that Triton Energy Limited ("Triton Cayman"), a Cayman
Islands company and a wholly-owned subsidiary of Triton Energy Corporation
("Triton Delaware" or the "Company"), a Delaware corporation, will become
the parent holding company of Triton Delaware through the merger (the
"Merger") of TEL Merger Corp. ("Sub"), a Delaware corporation and a
wholly-owned subsidiary of Triton Cayman, with and into Triton Delaware (the
"Reorganization"). Upon consummation of the Merger, each outstanding share
of common stock, par value $1.00 per share, of Triton Delaware ("Delaware
Common Stock") (other than those held by Triton Delaware) will either (a)
be converted automatically into one Class A ordinary share, par value $.01
per share ("Class A Shares"), of Triton Cayman or (b) at the election of
the holders of not less than 15% but not more than 25% of the Delaware Common
Stock (an "Equity Unit Election"), be converted into the right to receive
an equity unit ("Equity Unit") consisting of (i) one Class B ordinary
share, par value $.01 per share ("Class B Shares"), of Triton Cayman and
one-tenth of one share of participating preferred stock, par value $.01 per
share, of Triton Delaware ("Triton Delaware Preferred Stock"). The Equity
Units will be deposited with Chemical Mellon Shareholder Services, L.L.C.,
as depositary in exchange for the issuance of Unit Depositary Shares,
receipts for which will be distributed to former holders of Delaware Common
Stock who make an Equity Unit Election. The terms and conditions of the
Reorganization are set forth in more detail in the Agreement and Plan of
Merger among Triton Delaware, Triton Cayman and Sub (the "Merger
Agreement").
We have been requested by the Board of Directors of the Company to render
our opinion with respect to the relative values to the stockholders of Triton
Delaware of the consideration to be offered in the Reorganization. In that
regard, we have been asked to opine as to (i) whether the inherent value of a
Class A Share is substantially equivalent to the inherent value of an Equity
Unit and (ii) the approximate relative fair market values of a Class B Share
and one-tenth of one share of Triton Delaware Preferred Stock. We have not
been requested to opine as to, and our opinion does not in any manner
address, Triton Delaware's underlying business decision to proceed with or
<PAGE>
effect the Reorganization. In addition, we do not express any opinion as to
the potential effect on the market price of the Delaware Common Stock of the
announcement of the Reorganization or the prices at which the Class A Shares
or the Equity Units will actually trade following the consummation of the
Reorganization.
In arriving at our opinion, we reviewed and analyzed: (1) the Merger
Agreement and the specific terms of the Reorganization, (2) the proxy
statement/joint prospectus relating to the Reorganization and such other
publicly available information concerning Triton Delaware that we believe to
be relevant to our inquiry, (3) financial and operating information and
projections with respect to the business, operations and prospects of Triton
Delaware and Triton Cayman furnished to us by Triton Delaware, (4) reserve
reports and projected economics relating to the Company's oil and gas assets
furnished to us by Triton Delaware, (5) a trading history of the Delaware
Common Stock and a comparison of that trading history with those of other
companies that we deemed relevant, (6) a comparison of the historical
financial results and present financial condition of Triton Delaware with
those of other companies that we deemed relevant. In addition, we have had
discussions with the management of Triton Delaware concerning the business,
operations, assets, financial condition and prospects of Triton Delaware and
Triton Cayman and undertook such other studies, analyses and investigations
as we deemed appropriate.
In arriving at our opinions, we have assumed and relied upon the accuracy
and completeness of the financial and other information used by us without
assuming any responsibility for independent verification of such information
and have further relied upon the assurances of management of Triton Delaware
that they are not aware of any facts that would make such information
inaccurate or misleading. With respect to the financial projections of Triton
Delaware and Triton Cayman, upon advice of management of Triton Delaware we
have assumed that such projections have been reasonably prepared on a basis
reflecting the best currently available estimates and judgments of the
management of Triton Delaware as to the future financial performance of
Triton Delaware and Triton Cayman and that Triton Delaware and Triton Cayman
will perform substantially in accordance with such projections. In arriving
at our opinion, we have not conducted a physical inspection of the properties
and facilities of Triton Delaware or Triton Cayman and have not made or
obtained any evaluations or appraisals of the assets or liabilities of Triton
Delaware or Triton Cayman. In addition, you have not authorized us to
solicit, and we have not solicited, any indications of interest from any
third party with respect to the purchase of any of the securities to be
distributed in the Reorganization. Our opinion necessarily is based upon
market, economic and other conditions as they exist on, and can be evaluated
as of, the date of this letter.
Based upon and subject to the foregoing, we are of the opinion as of the
date hereof that (i) the inherent value of a Class A Share is substantially
equivalent to the inherent value of an Equity Unit and (ii) an allocation
of the fair market value of the components of an Equity Unit of $3.50 for a
Class B Share and $49.00 for one-tenth of one share of Triton Delaware
Preferred Stock, based on a closing trading price of $52.50 per share of
Delaware Common Stock on February 13, 1996, is reasonable.
<PAGE>
We have acted as financial advisor to Triton Delaware in connection with
the Reorganization and will receive a fee for our services which is
contingent upon the consummation of the Reorganization. In addition, Triton
Delaware has agreed to indemnify us for certain liabilities that may arise
out of the rendering of this opinion. We also have performed various
investment banking services for Triton Delaware and its affiliates in the
past and have received customary fees for such services. In the ordinary
course of our business, we actively trade in the debt and equity securities
of Triton Delaware for our own account and for the accounts of our customers
and, accordingly, may at any time hold a long or short position in such
securities.
This opinion is for the use and benefit of the Board of Directors of
Triton Delaware and is rendered to the Board of Directors in connection with
its consideration of the Reorganization. This opinion is not intended to be
and does not constitute a recommendation to any stockholder of Triton
Delaware as to how such stockholder should vote with respect to the
Reorganization.
Very truly yours,
LEHMAN BROTHERS
/s/ H.E. Lentz
Managing Director
<PAGE>
PRELIMINARY COPY
TRITON ENERGY CORPORATION
PROXY -- SPECIAL MEETING OF STOCKHOLDERS
The undersigned hereby appoints Thomas G. Finck and Robert B. Holland,
III, each with power to act without the other and with full power of
substitution, as Proxies to represent and to vote, as designated on the
reverse side, all stock of Triton Energy Corporation owned by the
undersigned at the Special Meeting of Stockholders to be held at the offices
of Triton Energy Corporation, 6688 North Central Expressway, 12th Floor,
Dallas, Texas 75206, on Monday, March 25, 1996, 10:00 a.m., local time, upon
such business as may properly come before the meeting or any adjournment
thereof including the following as set forth on the reverse side.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER
DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO SPECIFIC DIRECTION IS
GIVEN, THIS PROXY WILL BE VOTED FOR THE ADOPTION OF THE AGREEMENT AND PLAN
OF MERGER (AS DESCRIBED ON THE REVERSE SIDE) AND AT THE DISCRETION OF THE
PROXY HOLDERS WITH REGARD TO ANY OTHER MATTER THAT MAY PROPERLY COME
BEFORE THE MEETING OR ANY ADJOURNMENT THEREOF.
(Continued, and to be signed and dated, on reverse side)
<PAGE>
<TABLE>
<S> <C>
Please mark
your copies
X like this.
</TABLE>
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
<TABLE>
<S> <C>
1. Adoption of the Agreement and Plan of 2. In their discretion on any other matter
Merger among Triton Energy Corporation that may properly come before the meeting or
("Triton"), Triton Energy Limited and any adjournment thereof.
TEL Merger Corp. ("Sub") providing for the
merger of Sub with and into Triton, as
more fully described in the accompanying
Proxy Statement/Joint Prospectus.
</TABLE>
FOR / / AGAINST / / ABSTAIN / /
Please date, sign exactly as shown
hereon and mail promptly this proxy in
the enclosed envelope. When there is
more than one owner, each should sign.
When signing as an attorney,
administrator, executor, guardian or
trustee, please add your title as such.
If executed by a corporation, the proxy
should be signed by a duly authorized
officer. If executed by a partnership,
please sign in the partnership name by
an authorized person.
Signature___________________ Date_______
Signature___________________ Date_______
<PAGE>
Exhibit 99.4
EQUITY UNIT ELECTION FORM
This Equity Unit Election Form (this "Form") is to accompany certificates
for shares of Common Stock, par value $1.00 per share ("Triton Delaware Common
Stock"), of Triton Energy Corporation ("Triton Delaware") when submitted
pursuant to an election (an "Equity Unit Election") to receive an equity unit
(an "Equity Unit") comprised of (i) one Class B Ordinary Share, par value $.01
per share (a "Class B Share"), of Triton Energy Limited ("Triton Cayman") and
(ii) one-tenth of one share of participating preferred stock, par value $.01 per
share ("Triton Delaware Preferred Stock"), of Triton Delaware for Triton
Delaware Common Stock in connection with the proposed merger (the "Merger") of
TEL Merger Corp., a wholly-owned subsidiary of Triton Cayman ("Sub"), with and
into Triton Delaware. HOLDERS OF TRITON DELAWARE COMMON STOCK WHO DO NOT WISH
to make the Equity Unit Election (any such holder a "Non-Electing Holder") need
not submit this Form. Each share of Triton Delaware Common Stock owned by any
such Non-Electing Holder will automatically be converted into one fully paid and
nonassessable Class A Ordinary Share, par value $.01 per share (a "Class A
Share"), of Triton Cayman.
TO: CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C., EXCHANGE AGENT
Attention: Reorganization Department
1-800-777-3674
BY MAIL:
Chemical Mellon
Shareholder Services, L.L.C.
Reorganization Department
P.O. Box 817
Midtown Station
New York, NY 10018
BY OVERNIGHT COURIER:
Chemical Mellon
Shareholder Services, L.L.C.
Reorganization Department
85 Challenger Road
Ridgefield Park, NJ 07660
BY HAND:
Chemical Mellon
Shareholder Services, L.L.C.
Reorganization Department
120 Broadway
13th Floor
New York, NY 10271
BY FACSIMILE: CONFIRM BY TELEPHONE TO:
(For Eligible Institutions Only)
(201) 296-4293 (201) 296-4209
Delivery of this Form to an address, or transmission of instructions via a
telecopy facsimile number, other than as set forth above, does not constitute a
valid delivery.
<PAGE>
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
Box I
- --------------------------------------------------------------------------------
SHARES SUBMITTED
NAME AND ADDRESS OF REGISTERED HOLDER* (Attach additional list if necessary)
- --------------------------------------------------------------------------------
Certificate Total Number Number of
Number(s) for of Shares Shares to be
Triton Delaware Represented by Converted to
Common Stock*** Certificate(s) Equity Units**
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
TOTAL SHARES
- --------------------------------------------------------------------------------
* Only certificates registered in a single form may be deposited with this
Form of Election. If certificates are registered in different forms
(e.g., John R. Doe and J.R. Doe), it will be necessary to fill in, sign
and submit as many separate Forms of Election as there are different
registrations of certificates.
** UNLESS OTHERWISE INDICATED, IT WILL BE ASSUMED THAT ALL SHARES
SUBMITTED ARE TO BE TREATED AS HAVING MADE AN EQUITY UNIT ELECTION.
*** In the event of proration, a holder may be unable to receive all of the
Equity Units requested pursuant to this Form and thus may choose to
indicate in the space following this sentence the number(s) of
certificate(s) deemed to represent any shares to be converted to Equity
Units in the Merger.___________________________________________
HOLDERS ARE NOT REQUIRED TO SO IDENTIFY CERTIFICATE NUMBERS IN THIS
SPACE. IN THE EVENT OF PRORATION, SHARES WILL BE CONVERTED TO EQUITY
UNITS FROM SUCH CERTIFICATES IN THE ORDER IN WHICH THEY HAVE BEEN
LISTED. THERE CAN BE NO ASSURANCE THAT ANY IDENTIFICATION OF SHARE
CERTIFICATE(S) WILL BE RECOGNIZED BY ANY GOVERNMENTAL AGENCY OR THIRD
PARTY. IN ADDITION, NO SUCH CERTIFICATE IDENTIFICATION WILL OPERATE TO
ALTER THE APPLICATION OF THE PRORATION PROCEDURES IN THE MERGER.
- --------------------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the merger (the "Merger") of TEL Merger Corp. ("Sub"), a
wholly-owned subsidiary of Triton Energy Limited ("Triton Cayman"), with and
into Triton Energy Corporation ("Triton Delaware") the undersigned hereby
submits the certificates for shares of Common Stock, par value $1.00 per share
("Triton Delaware Common Stock"), of Triton Delaware listed below and elects,
subject as set forth below, to have all or a portion of the shares of Triton
Delaware Common Stock represented by such certificates as set forth below
converted into one equity unit ("Equity Unit") comprised of (i) one Class B
Ordinary Share, par value $.01 per share ("Class B Share"), of Triton Cayman and
(ii) one-tenth of one share of participating preferred stock, par value $.01 per
share ("Triton Delaware Preferred Stock"), of Triton Delaware.
It is understood that the following election is subject to (i) the terms,
conditions and limitations set forth in the Proxy Statement/Joint Prospectus,
dated February , 1996, relating to the Merger (the "Proxy Statement"),
receipt of which is acknowledged by the undersigned, (ii) the terms of the
Agreement and Plan of Merger, dated as of February 8, 1996, as the same may be
amended from time to time (the "Merger Agreement"), a conformed copy of which
appears as Annex I to the Proxy Statement, and (iii) the accompanying
Instructions.
The undersigned authorizes and instructs you, as Exchange Agent, to deliver
such certificates of Triton Delaware Common Stock to Triton Cayman and Triton
Delaware and to receive on behalf of the undersigned, in exchange for the shares
of Triton Delaware Common Stock represented thereby, any receipt for Equity
Units or any certificate for Class A Shares issuable in the Merger pursuant to
the Merger Agreement.
Unless otherwise indicated under Special Payment Instructions below, please
issue any receipt for Equity Units or certificate for Class A Shares issuable in
exchange for the shares of Triton Delaware Common Stock represented
2
<PAGE>
by the certificates submitted hereby in the name of the registered holder(s) of
such Triton Delaware Common Stock. Similarly, unless otherwise indicated under
Special Delivery Instructions, please mail any receipt for Equity Units or
certificate for Class A Shares issuable in exchange for the shares of Triton
Delaware Common Stock represented by the certificates submitted hereby to the
registered holder(s) of the Triton Delaware Common Stock at the address or
addresses shown above.
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
BOX II BOX III
- ------------------------------------- ----------------------------------------
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS D(6) AND D(7)) (SEE INSTRUCTION D(8))
To be completed ONLY if the To be completed ONLY if the
receipts for Equity Units or receipts for Equity Units or
certificates for Class A Shares certificates for Class A Shares are
are to be registered in the name to be registered in the name of the
of someone other than the registered registered holder(s) of shares of
holder(s) of shares of Triton Triton Delaware Common Stock, but
Delaware Common Stock. are to be sent to someone other than
the registered holder(s) or to an
address other than the address of
the registered holder(s) set forth
above.
Name:
-------------------------------
(PLEASE PRINT) Name:
-------------------------------
(PLEASE PRINT)
- ------------------------------------
(PLEASE PRINT) ------------------------------------
(PLEASE PRINT)
Address: Address:
---------------------------- ----------------------------
- ------------------------------------ ------------------------------------
(INCLUDING ZIP CODE) (INCLUDING ZIP CODE)
- ------------------------------------
(TAX IDENTIFICATION OR SOCIAL
SECURITY NUMBER)
- ------------------------------------- ----------------------------------------
BOX IV
- --------------------------------------------------------------------------------
SIGN HERE AND HAVE SIGNATURES GUARANTEED
(See Instructions D(1) and D(7) concerning signature guarantee)
Name(s)
- ---------------------------------- ----------------------------
(PLEASE PRINT)
Name(s)
- ---------------------------------- ----------------------------
(PLEASE PRINT)
Name(s)
- ---------------------------------- ----------------------------
SIGNATURE(s) OF OWNER(s) (PLEASE PRINT)
Must be signed by registered holder(s)
exactly as name(s) appear(s) on stock -----------------------------------
certificate(s) or by person(s)
authorized to become registered -----------------------------------
holder(s) by certificates and documents (AREA CODE AND TELEPHONE NUMBER(s))
transmitted herewith. If signature is
by a trustee, executor, administrator, -----------------------------------
guardian, officer of a corporation,
attorney-in-fact or any other person -----------------------------------
acting in a fiduciary capacity, set (TAX IDENTIFICATION OR
forth full title in such capacity and SOCIAL SECURITY NUMBER(S))
see Instruction D(3).
SIGNATURE(s) Dated: ,1996
Guaranteed: -----------------------
----------------------------
(See Instruction D(7))
- --------------------------------------------------------------------------------
3
<PAGE>
<TABLE>
<CAPTION>
(DO NOT WRITE IN SPACES BELOW)
- ------------------------------------------------------------------------------------------------------
SHARES SHARES
CONVERTED CONVERTED
SHARES SHARES INTO EQUITY INTO CLASS A
SURRENDERED ACCEPTED UNITS RECEIPT NO. BLOCK NO. SHARES CERTIFICATE NO. BLOCK NO.
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------
Delivery Prepared By.............. CHECKED BY........................... DATE......................
- ------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
INSTRUCTIONS
A. SPECIAL CONDITIONS.
1. TIME IN WHICH TO ELECT. To be effective, an election pursuant to the
terms and conditions set forth herein (an "Election") on this Equity Unit
Election Form (this "Form") or a facsimile hereof, accompanied by the
above-described certificates representing shares of Triton Delaware Common Stock
or a proper guarantee of delivery thereof, must be received by the Exchange
Agent, at the address set forth above, no later than 5:00 P.M. New York City
time on March 22, 1996 (the "Election Date"). Each share of Triton Delaware
Common Stock outstanding at the Effective Time of the Merger with respect to
which the Exchange Agent shall have not received an effective Election prior to
the Election Date or with respect to which the proration procedures set forth in
the Proxy Statement pertain will be automatically converted into one fully paid
and nonassessable Class A Share. See Instruction B.
2. REVOCATION OF ELECTION. Any Election may be revoked by the person who
submitted this Form to the Exchange Agent and the certificate(s) for shares
withdrawn by written notice duly executed and received by the Exchange Agent
prior to the Election Date. Such notice must specify the person in whose name
the shares of Triton Delaware Common Stock to be withdrawn had been deposited,
the number of shares to be withdrawn, the name of the registered holder thereof,
and the serial numbers shown on the certificate(s) representing the shares to be
withdrawn. If an Election is revoked, and the certificate(s) for shares
withdrawn, the Triton Delaware Common Stock certificate(s) submitted therewith
will be promptly returned by the Exchange Agent to the person who submitted such
certificate(s).
3. TERMINATION OF RIGHT TO ELECT. If for any reason the Merger is not
consummated or is abandoned, all Forms will be void and of no effect.
Certificate(s) for Triton Delaware Common Stock previously received by the
Exchange Agent will be returned promptly by the Exchange Agent to the person who
submitted such stock certificate(s).
B. ELECTION AND PRORATION PROCEDURES.
A description of the election and proration procedures is set forth in the
Proxy Statement under "Equity Unit Election" and "Equity Unit Election
Procedure." A full statement of the election and proration procedures is
contained in the Merger Agreement and all Elections are subject to compliance
with such procedures. IN CONNECTION WITH MAKING ANY ELECTION, STOCKHOLDERS
should read carefully, among other matters, the aforesaid description and
statement and the information contained in the Proxy Statement under "Certain
Tax Considerations". By completing this Form and returning it to the Exchange
Agent, each stockholder agrees with Triton Cayman and Triton Delaware that a
portion of any Triton Delaware Common Stock exchanged for Equity Units pursuant
to an Election will be transferred to Triton Delaware as consideration for the
issuance of the Triton Delaware Preferred Stock and that the remaining portion
of the Triton Delaware Common Stock so exchanged will be transferred to Triton
Cayman as consideration for the issuance of the Class B Shares and that the
allocation of such consideration shall be determined based on the respective
fair market values of the Triton Delaware Preferred Stock and the Class B Shares
as estimated by Triton Delaware on the Effective Date (as defined in the Proxy
Statement) of the Merger.
AS A RESULT OF THE PRORATION PROCEDURES, HOLDERS OF TRITON DELAWARE COMMON
STOCK MAY RECEIVE EQUITY UNITS OR CLASS A SHARES IN AMOUNTS WHICH VARY FROM THE
AMOUNTS SUCH HOLDERS ELECT TO RECEIVE. SUCH HOLDERS WILL NOT BE ABLE TO CHANGE
THE NUMBER OF EQUITY UNITS OR CLASS A SHARES ALLOCATED TO THEM PURSUANT TO SUCH
PROCEDURES. IN ADDITION, AS DESCRIBED IN THE PROXY STATEMENT, IF THE HOLDERS OF
LESS THAN 15% OF THE OUTSTANDING SHARES OF TRITON DELAWARE COMMON STOCK ELECT TO
RECEIVE EQUITY UNITS, NO EQUITY UNITS WILL BE ISSUED AND EACH SUCH SHARE
5
<PAGE>
OF TRITON DELAWARE COMMON STOCK WILL BE AUTOMATICALLY CONVERTED INTO ONE FULLY
PAID AND NONASSESSABLE CLASS A SHARE AS IF NO ELECTION HAD BEEN MADE.
C. RECEIPT OF EQUITY UNITS OR CLASS A SHARES
As soon as practicable after the Effective Time of the Merger and after the
Election Date, the Exchange Agent will mail receipts for Equity Units and/or
certificate(s) for Class A Shares to the holders of Triton Delaware Common Stock
with respect to each share of Triton Delaware Common Stock which is included in
any effective Election. Shares of Triton Delaware Common Stock with respect to
which an Election is not made, or with respect to which an Election fails to be
effective, will be automatically converted into one fully paid and nonassessable
Class A Share in accordance with the Merger Agreement for each such share.
D. General.
1. EXECUTION AND DELIVERY. This Form or a facsimile hereof must be
properly filled in, dated and signed in Box IV, and must be delivered (together
with stock certificates representing the shares of Triton Delaware Common Stock
as to which the Election is made) to the Exchange Agent at either of the
addresses set forth above.
THE METHOD OF DELIVERY OF ALL DOCUMENTS IS AT THE OPTION AND RISK OF THE
stockholder, but if sent by mail, registered mail, return receipt requested,
properly insured, is suggested.
2. INADEQUATE SPACE. If there is insufficient space on this Form to list
all your stock certificates being submitted to the Exchange Agent, please attach
a separate list.
3. SIGNATURES. The signature (or signatures, in the case of certificates
owned by two or more joint holders) on this Form should correspond exactly with
the name(s) as written on the face of the certificate(s) submitted unless the
shares of Triton Delaware Common Stock described on this Form have been assigned
by the registered holder(s), in which event this Form should be signed in
exactly the same form as the name of the last transferee indicated on the
transfers attached to or endorsed on the certificates.
If this Form is signed by a person or persons other than the registered
owners of the certificates listed, the certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered owner(s) appear on the certificates.
If this Form or any stock certificate(s) or stock power(s) are signed by a
trustee, executor, administrator, guardian, officer of a corporation,
attorney-in-fact or any other person acting in a representative or fiduciary
capacity, the person signing must give such person's full title in such capacity
and appropriate evidence of authority to act in such capacity must be forwarded
with this Form.
4. PARTIAL EXCHANGES. If fewer than all the shares represented by any
certificate delivered to the Exchange Agent are to be submitted for exchange,
fill in the number of shares which are to be submitted in the box entitled
"Shares Submitted". In such case, a certificate for such number of Class A
Shares equal to the remainder of the shares represented by the old certificate
will be sent to the registered owners as soon as practicable following the
Election Date. ALL SHARES REPRESENTED BY CERTIFICATES SUBMITTED HEREUNDER WILL
be deemed to have been submitted unless otherwise indicated.
5. LOST OR DESTROYED CERTIFICATES. If your stock certificate(s) has been
either lost or destroyed, please make note of this fact on the front of this
Form opposite your name and address and the appropriate
6
<PAGE>
forms for replacement will be sent to you. You will then be instructed as to the
steps you must take in order to receive a receipt representing Equity Units
and/or stock certificate(s) representing Class A Shares in accordance with the
Merger Agreement.
6. NEW CERTIFICATES IN SAME NAME. If any receipt representing Equity Units
and/or stock certificate(s) representing Class A Shares in respect of an
Election are to be registered in, or payable to the order of, exactly the same
name(s) that appears on the certificate(s) representing shares of Triton
Delaware Common Stock submitted with this Form, no endorsement of certificate(s)
or separate stock power(s) is required.
7. NEW CERTIFICATES IN DIFFERENT NAME. If any receipt representing Equity
Units and/or stock certificate(s) representing Class A Shares in respect of an
Election are to be registered in, or payable to the order of, other than exactly
the name that appears on the certificate(s) representing shares of Triton
Delaware Common Stock submitted for exchange herewith, such exchange shall not
be made by the Exchange Agent unless the certificates submitted are endorsed,
BOX II is completed, and the signature is guaranteed in BOX IV by a member
of a national securities exchange, a member of the National Association of
Securities Dealers, Inc. or a commercial bank (not a savings bank or a savings &
loan association) or trust company in the United States.
8. SPECIAL DELIVERY INSTRUCTIONS. If the receipt representing Equity Units
and/or certificates for the Class A Shares are to be registered in the name of
the registered holder(s) of shares of Triton Delaware Common Stock, but are to
be sent to someone other than the registered holder(s) or to an address other
than the address of the registered holder, it will be necessary to indicate such
person or address in BOX III.
9. MISCELLANEOUS. A single receipt representing Equity Units and/or stock
certificate representing Class A Shares will be issued.
All questions with respect to this Form and the Elections (including,
without limitation, questions relating to the timeliness or effectiveness of
revocation of any Election and computations as to proration) will be determined
by the Exchange Act, which determination shall be conclusive and binding.
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