Exhibit 1.2
TRITON ENERGY CORPORATION
Equity Securities
Warrants to Purchase Equity Securities
Underwriting Agreement
___________, 19__
Triton Energy Corporation
6688 North Central Expressway
Suite 1400
Dallas, Texas 75206-9926
Dear Sirs:
1. Introductory. Triton Energy Corporation, a Texas corporation
(the "Company"), proposes to issue and sell from time to time certain of its
shares of preferred stock (the "Preferred Stock") or common Stock (the "Common
Stock") or warrants representing rights to purchase preferred stock or common
stock of the Company (the "Warrants") registered under the registration
statement referred to in Section 2(a) (the Preferred Stock, Common Stock and
Warrants collectively, the "Registered Securities"). The Preferred Stock may
be issued in one or more series, which series may vary as to voting rights,
dividends, optional and mandatory redemption provisions, liquidation
preference, conversion provisions and other terms, with all such terms for any
particular series being determined at the time of issue. The Warrants will be
evidenced by warrant certificates issued by one or more warrant agents
(collectively, the "Warrant Agent") under one or more warrant agreements
(collectively, the "Warrant Agreement") between the Company and the Warrant
Agent. The terms of the Registered Securities to be sold pursuant to this
Agreement (the "Firm Securities") are described in Annex I hereto. If
specified in Annex I, the Company proposes to grant to the Underwriters named
therein an option (the "Option") to purchase up to that amount of Registered
Securities as is specified therein (the "Option Securities").
The Firm Securities (together with the Option Securities) offered
hereby are hereinafter referred to as the "Securities". The firm or firms
which agree to purchase the Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in Annex I are hereinafter referred to as
the "Representatives"; provided, however, that if Annex I does not specify any
representative of the Underwriters, the term "Representatives", as used in this
Agreement (other than in Sections 2(b) and 5(c) and the first sentence of
Section 3(a)), shall mean the Underwriters. The Firm Securities are to be sold
to each Underwriter, acting severally and not jointly, in the respective
numbers as are set forth in Schedule A to Annex I opposite the name of such
Underwriter.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- __________), including a
combined prospectus, relating to certain of the debt securities, preferred
stock, common stock and warrants of the Company (including the Firm
Securities) has been filed with the Securities and Exchange Commission
("Commission") and has become effective. Such registration statement, as
amended at the date hereof, is hereinafter referred to as the
"Registration Statement", and the combined prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Securities and the terms of offering thereof, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the
"Act"), including all materials incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and on the date hereof, the
Registration Statement and the Prospectus conform in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. (a) Annex I specifies the
firm or firms which will be Underwriters, the names of any Representatives, the
Firm Securities to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and whether any of the Firm Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). Annex I also specifies the time and date of delivery and payment (such
time and date, or such other time not later than seven full business days
thereafter as the Representatives and the Company hereby agree as the time for
payment and delivery, being herein referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of
the Firm Securities. It is understood that the Underwriters propose to offer
the Firm Securities for sale as set forth in the Prospectus. The Firm
Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in such
names as the Underwriters may request.
(b) If specified in Annex I, the Company hereby grants the Option to the
Underwriters to purchase up to that amount of Option Securities as is specified
in Annex I, at the same purchase price as the Underwriters shall pay for the
Firm Securities, for the sole purpose of covering over-allotments in the sale
of the Firm Securities by the Underwriters. The Option may be exercised at any
time, in whole or in part, on or before the thirtieth day after the date of the
Prospectus, by written notice by the Representatives to the Company. Such
notice shall set forth the aggregate amount of Option Securities as to which
the Option is being exercised and the date and time, as reasonably determined
by the Representatives, when the Option Securities are to be delivered (such
date and time being herein sometimes referred to as the "Additional Closing
Date"); provided, however, that the Additional Closing Date shall not be
earlier than the Closing Date or earlier than the second full business day
after the date on which the Option shall have been exercised nor later than the
eighth full business day after the date on which the Option shall have been
exercised. The amount of Option Securities to be purchased by each Underwriter
shall be the same percentage of the total amount of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Firm Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares/units.
(c) If Annex I provides for sales of Firm Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers
to purchase Firm Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto (the "Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in Annex I in respect of the number of
shares of Firm Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If
the Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Firm Securities to be purchased by the
several Underwriters and the number of shares of Firm Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
number of shares of Firm Securities set forth opposite each Underwriter's name
in Annex I, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business day prior
to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to the Representatives and, counsel
for the Underwriters, one signed copy of the Registration Statement relating
to the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and
if consented to by the Representatives, subparagraph (5)).
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives' consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date hereof, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date hereof and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date hereof, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of three years after the date hereof, the
Company will furnish to the Representatives as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the Representatives (i) as
soon as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including, subject to the provisions of Section 8
hereof, reasonable fees and disbursements of counsel) incurred by them in
connection with qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives may designate and the printing
of memoranda relating thereto and for expenses incurred in distributing
the Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) During the period, if any, specified on Annex I, the Company
will not offer for sale, sell, or otherwise dispose of (or enter into any
transaction which is designed to, or could be expected to, result in the
disposition by any person of), directly or indirectly, any shares of
preferred stock or common stock (other than the Securities and shares
issued pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or pursuant
to currently outstanding options, warrants or rights), or sell or grant
options, rights or warrants with respect to any shares of common stock or
preferred stock (other than the grant of options pursuant to compensation
plans existing on the date hereof), without the prior written consent of
the Representatives.
(j) If and to the extent specified in Annex I, the Company will use
its best efforts to cause the Securities to be duly authorized for listing
on the New York Stock Exchange or any other exchange and to be registered
under the Exchange Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of the Company's independent public accountants, confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial information contained in
or incorporated by reference in the Prospectus.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, materially impairs the investment
quality of the Securities or the Registered Securities; (ii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market; or (iii) any outbreak or substantial escalation of
major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Jackson & Walker, L.L.P., counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus. All of the outstanding shares of capital stock of
the Company are duly and validly authorized and issued, are fully
paid and nonassessable and were not issued in violation of or subject
to any preemptive rights. The Securities have been duly authorized
by the Company and, upon issuance and delivery of such Securities and
payment therefor in accordance with the terms of this Agreement and
any Delayed Delivery Contracts, such Securities will be validly
issued, fully paid and non-assessable and will not have been issued
in violation of or subject to any preemptive rights; if the
Securities include Warrants, such Warrants have been duly authorized
by the Company and, upon due execution, countersignature and
delivery, the Warrants in definitive form will constitute valid and
legally binding obligations of the Company and the Warrants may be
exercised to purchase common stock or preferred stock of the Company
in accordance with their terms and the terms of the Warrant
Agreement; if any Securities are to be issued as convertible
securities, the shares of Common Stock into which such Securities are
convertible are duly and validly authorized, have been duly reserved
for issuance upon conversion of such Securities, and when issued upon
the conversion of such Securities will be duly and validly issued,
fully paid and nonassessable and not in violation of or subject to
any preemptive rights;
(iii) To the best of the knowledge of such counsel, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Securities by the Company, except such as may
be required under applicable state securities laws;
(iv) The execution, delivery and performance of this Agreement,
the Warrant Agreement and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties or the charter
or by-laws of the Company or any such subsidiary, or to the best of
the knowledge of such counsel, any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, and the Company has
full power and authority to authorize, issue and sell the Securities
as contemplated by the provisions of this Agreement;
(v) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time such documents were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable rules
and regulations of the Commission thereunder; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel does not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by
reference in the Registration Statement or the Prospectus; and
(vi) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America and the laws of the state of Texas and that such counsel is not
admitted in the State of New York and (ii) rely (to the extent such counsel
deems proper and specifies in their opinion), as to matters involving the
application of the laws of the State of New York upon the opinion of Simpson
Thacher & Bartlett furnished pursuant to Section 5(e) of this Agreement.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of Simpson Thacher & Bartlett, special counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) The Securities have been duly authorized by the Company
and, upon issuance and delivery of such Securities and payment
therefor in accordance with the terms of this Agreement and any
Delayed Delivery Contracts, such Securities will be validly issued,
fully paid and non-assessable; if the Securities include Warrants,
such Warrants have been duly authorized by the Company and, upon due
execution, countersignature and delivery, the Warrants in definitive
form will constitute valid and legally binding obligations of the
Company and the Warrants may be exercised to purchase common stock or
preferred stock of the Company in accordance with their terms and the
terms of the Warrant Agreement; if any Securities are to be issued as
convertible securities, the shares of Common Stock into which such
Securities are convertible are duly and validly authorized, have been
duly reserved for issuance upon conversion of such Securities, and
when issued upon the conversion of such Securities will be duly and
validly issued, fully paid and nonassessable;
(iii) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Act, and the registration statement relating to the
Registered Securities, as of its effective date, and the Prospectus,
as of its date, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Act and the applicable Rules and Regulations,
except that in each case it is understood that such counsel need
express no opinion with respect to the financial statements or other
financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement
thereto;
(iv) Such counsel has no reason to believe that such
registration statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus, as of the
date of this Agreement, or any such amendment or supplement, as of
its date, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that in each case such counsel need
express no opinion or belief with respect to the financial statements
or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement
thereto;
(v) The statements made in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Company's common stock and preferred
stock (including the Securities), constitute accurate summaries of
the terms of such common stock and preferred stock in all material
respects;
(vi) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company;
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America and the laws of the State of New York and that such counsel is not
admitted in the State of Texas and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion), as to matters involving the application
of the laws of the State of Texas upon the opinion of Jackson & Walker, L.L.P.,
furnished pursuant to Section 5(d) of this Agreement.
(f) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to
the incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company and its subsidiaries
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
(h) At the Closing Date, (i) if Annex I provides that any shares of
Common Stock are to be sold, such shares shall have been approved for listing
on the New York Stock Exchange upon notice of issuance and (ii) if Annex I
provides that any other Securities to be sold are to be listed on any
securities exchange or quoted on the National Association of Securities Dealers
Automated Quotation System, such Securities shall have been approved for
listing or quotation, as the case may be, upon notice of issuance.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless all indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under this Agreement and
the aggregate number of shares of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the aggregate number of shares of the Securities, the Representatives may
make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
under this Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate number of shares of the Securities with respect to
which such default or defaults occur exceeds 10% of the aggregate number of
shares of the Securities and arrangements satisfactory to the Representatives
and the Company for the purchase of such Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the number of shares of the Firm
Securities set forth opposite their names in Annex I as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters hereunder is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect.
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 6688 North Central
Expressway, Suite 1400, Dallas, Texas 75206-9926, Attention: General Counsel.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Annex I and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Please confirm your agreement with the foregoing by signing a copy of this
Agreement in the space set forth below.
Very truly yours,
[NAME OF REPRESENTATIVE OR UNDERWRITER]
[Insert name(s) of other Representatives or
Underwriters]
[On behalf of--themselves--itself--and as
Representative[s] of the Several][As]
Underwriter[s]
By [NAME OF REPRESENTATIVE OR UNDERWRITER]
By________________________________
[Insert Title]
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
TRITON ENERGY CORPORATION
By_________________________________
[Insert Title]
ANNEX I
Description of Securities
[In addition, the Company grants to the Underwriters an option,
exercisable by written notice given by the Representatives to the Company any
time on or before the 30th day after the date of the Prospectus to purchase up
to an additional ____ shares of [Preferred Stock] [Common Stock] [Warrants].]
Number of shares of [Preferred Stock] [Common Stock] [Warrants] to be
issued: _______
Initial public offering price per [share of Preferred Stock] [Common
Stock] [Warrants]: $_______, [plus accrued and unpaid dividends, if any,
from _________, 19__.]
Purchase price per [share of Preferred Stock] [Common Stock] [Warrant]:
$_______
(amount equal to the initial public offering price set forth above,
less $_______ per share of [Preferred Stock] [Common Stock]
[Warrant])
["Lock-up" period: _________________________]
Dividends:
Regular Record Dates:
Additional Representations, if any:
Liquidation Preference:
[Redemption Provisions]:
[Sinking Fund Provisions:]
[Form of Payment, if other than New York Clearinghouse (next day) funds:]
[Additional Jurisdictions pursuant to Section 4(f):]
[Other Terms and Conditions:]
Exchangeability or Convertibility Requirements, if any:
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
_______________. Underwriters' fee is ____% of the purchase price of the
Contract Securities.]
Closing: _____________, __:__ A.M., New York City time, on
______________, at _________________________, in New York Clearing
House (next day) funds.
[Name[s] and Address[es] of Representative[s]:]
The respective number of shares of the Firm Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The Firm Securities will be made available for checking and packaging at
the office of ______________ at least 24 hours prior to the Closing Date.
SCHEDULE A
Underwriter Number of Shares
____________
Total ============
ANNEX II
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than
9:00 A.M., New York time, on ............ ........., 19....)<F1>
Delayed Delivery Contract
[Insert date of initial public offering]
Triton Energy Corporation
c/o [NAME OF PURCHASER]
[ADDRESS]
Attention: ____________
Gentlemen:
The undersigned hereby agrees to purchase from Triton Energy
Corporation, a Texas corporation (the "Company"), and the Company agrees to
sell to the undersigned, _____________ shares of the Company's
_________________ (the "Securities"), offered by the Company's Prospectus dated
_____________, 199__ and a Prospectus Supplement dated __________, relating
thereto, receipt of copies of which is hereby acknowledged, at $______ per
share, plus accrued dividends, if any, and on the further terms and conditions
set forth in this Delayed Delivery Contract (the "Contract").
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the amount[s] set
forth below:
Number
Delivery Date of Shares
..................... ...................
..................... ...................
Each such delivery date is hereinafter referred to as a Delivery Date.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of _______________ at __:__ __.M. on such Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on each Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at such Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total number of shares of the Securities less
the number of shares thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
__________________________________________
(Name of Purchaser)
By_______________________________________
_______________________________________
(Title of Signatory)
_______________________________________
_______________________________________
(Address of Purchaser)
Accepted, as of the above date.
TRITON ENERGY CORPORATION
By_______________________________
[Insert Title]
____________________
[FN]
<F1> Insert date which is third full business day prior to Closing Date
specified in Annex I.