EXHIBIT 1.1
TRITON ENERGY CORPORATION
Debt Securities
Warrants to Purchase Debt 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 Delaware corporation ("TEC"), proposes to issue and sell from time to time
certain of its debt securities or warrants representing
rights to purchase such joint and several debt securities (the "Warrants")
registered under the registration statement referred to in Section 2(a) (the
"Registered TEC Securities"). The Registered TEC Securities will be fully
and unconditionally guaranteed (the "Guarantee" and, together with the
Registered TEC Securities, the "Registered Securities") by Triton Energy
Limited ("TEL", and together with TEC, the "Companies"), a Cayman Islands
company of which TEC is a wholly owned subsidiary. The Registered Securities
will be issued under an indenture dated as of ___________, 199_ (the
"Indenture") among the Companies and ____________, as Trustee, in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time
of sale. 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") among the
Companies and the Warrant Agent. The particular series of the Registered
Securities to be sold pursuant to this Agreement are described in Annex I
hereto.
The Registered 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), shall
mean the Underwriters.
2. Representations and Warranties of the Companies. The Companies
represent and warrant to, and agree with, each Underwriter that:
(a) The Companies have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of the Securities Act of 1933, as amended (the "Act"), the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"), and the rules
and regulations of the Commission ("Rules and Regulations"), a
registration statement on Form S-3 (File No. 333-_______), including a
combined prospectus, relating to certain of the debt securities,
preference shares of TEL, ordinary shares of TEL and warrants of the
Companies (including the Securities) 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 Act, including all
materials incorporated by reference therein, is hereinafter referred to
as the "Prospectus".
(b) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture 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, the Trust Indenture Act and the
Rules and Regulations, and, on the Closing Date (as hereinafter defined),
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 (in the case of the Prospectus,
in light of the circumstances under which they were made) not misleading,
except that the foregoing does not apply to (i) statements in or
omissions from any of such documents based upon written information
furnished to the Companies by any Underwriter through the
Representatives, if any, specifically for use therein and (ii) that part
of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act.
(c) Each of the Companies is duly incorporated and is validly
existing and in good standing as a company or corporation, as applicable,
under the laws of its jurisdiction of incorporation, with corporate power
and authority to own its respective properties and conduct its respective
business as described in the Prospectus; and each 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, except where the failure to
be so qualified or in good standing would not have a material adverse
effect on the business, properties, operations, financial condition or
results of operations of TEL and its subsidiaries taken as a whole.
(d) This Agreement has been duly authorized, executed and delivered
by the Companies and constitutes a valid and legally binding obligation
of the Companies enforceable against the Companies in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing and considerations of public
policy in respect of the indemnification provisions hereof.
(e) The Indenture has been duly authorized by the Companies and,
when executed and delivered by the Companies and the Trustee and
qualified under the Trust Indenture Act, will constitute a valid and
legally binding instrument of the Companies enforceable against the
Companies in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
The Indenture conforms in all material, respects to the description
thereof set forth in the Prospectus.
(f) The documents incorporated by reference in 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the applicable
rules and regulations of the Commission thereunder.
(g) Since the respective dates as of which information is given in
the Registration Statement, except as set forth in the Prospectus, there
has not been any material adverse change in the business, properties,
operations, financial condition or results of operations of TEL and its
subsidiaries taken as a whole, and since the date of the latest
consolidated balance sheet of TEL and its subsidiaries included in the
Registration Statement, neither TEL nor any of its subsidiaries has
incurred or undertaken any liabilities or obligations, direct or
contingent, that are material to the business, properties, operations,
financial condition or results of operations of TEL and its subsidiaries
taken as a whole, except for liabilities or obligations that were
incurred or undertaken in the ordinary course of business or that are
adequately reflected in the Registration Statement.
(h) The Securities have been duly authorized by the Companies and,
when authenticated by the Trustee and issued and sold by the Companies
pursuant to this Agreement against payment therefor, will constitute,
valid and legally binding obligations of the Companies enforceable
against the Companies in accordance with their terms and entitled to the
benefits of the Indenture, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing. The Securities, when issued,
will conform in all material respects to the description thereof set
forth in the Prospectus.
(i) The execution, delivery and performance of the Indenture, this
Agreement 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, or
conflict with any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Companies or any of their properties or the charter or by-laws of the
Companies, or any agreement or instrument to which either of the
Companies is a party or by which either of the Companies is bound or to
which any of the properties of either of the Companies is subject, and
will not result in the imposition or creation of any lien upon any
property of either of the Companies, in each case that has had or could
reasonably be expected to have a material adverse effect on the business,
properties, operations, financial condition or results of operations of
TEL and its subsidiaries taken as a whole; and the Companies have full
power and authority to authorize, issue and sell the Securities as
contemplated by the provisions of this Agreement.
(j) The consolidated financial statements of TEL and its
subsidiaries, together with the related schedules and notes, incorporated
by reference in the Registration Statement present fairly in all material
respects the consolidated financial position, results of operations, cash
flow and stockholder's equity of TEL and its consolidated subsidiaries in
conformity with generally accepted accounting principles on the basis
stated in the Registration Statement at the respective dates and for the
respective periods to which they apply; such financial statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other
financial and statistical information and data with respect to TEL and
its subsidiaries set forth in the Registration Statement present fairly
the information purported to be shown thereby at the respective dates or
for the respective periods to which they apply and have been prepared on
a basis consistent with such financial statements and the books and
records of TEL.
(k) Except as may be set forth in the Prospectus, there are no
legal or governmental proceedings pending or, to the knowledge of the
Companies, threatened to which either of the Companies is a party or of
which any of their respective properties or assets is the subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described. There is no statute, regulation,
contract or other document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not so described or filed as required.
(l) 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 Companies,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under applicable state
securities laws.
3. Purchase and Offering of Securities. Annex I specifies the
firm or firms which will be Underwriters, the names of any Representatives,
the principal amount to be purchased by each Underwriter, the purchase price
to be paid by the Underwriters and the terms of the Securities not already
specified in the applicable Indenture and whether any of the 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 Companies 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 Securities. It is understood that the Underwriters propose to
offer the Securities for sale as set forth in the Prospectus. The 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.
If Annex I provides for sales of Securities pursuant to delayed
delivery contracts, the Companies authorize the Underwriters to solicit offers
to purchase 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 Companies 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 Companies will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in Annex I in respect of the
principal amount of 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 Companies execute and deliver Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of 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 Companies. The Companies 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 Companies. The Companies agree with
the several Underwriters that they 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 Companies 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 Companies 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
Companies 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
Companies 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 Companies 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 TEL'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 Companies 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 Companies 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
Companies will furnish to the Representatives as soon as practicable
after the end of each fiscal year, a copy of TEL's annual report to
stockholders for such year and, so long as TEC is an obligor on the
Securities, any annual report of TEC prepared for such year; and the
Companies will furnish to the Representatives (i) as soon as available, a
copy of each report or definitive proxy statement of either of the
Companies 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 Companies
as the Representatives may reasonably request.
(h) The Companies 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, for any fees charged by
investment rating agencies for the rating of the Securities, and for
expenses incurred in distributing the Prospectus, any preliminary
prospectuses and any preliminary prospectus supplements to Underwriters.
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 Companies herein, to the accuracy of the statements of officers of
the Companies made pursuant to the provisions hereof, to the performance by
the Companies of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of TEL'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, such letter to be
in form and substance reasonably satisfactory to the Representatives and their
counsel.
(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 Companies 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 TEL 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 downgrading
in the rating of any of the Companies' joint debt securities or either of the
Companies' several debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under surveillance
or review its rating of any such debt securities (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) 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 TEL on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by Federal or New York authorities; or
(v) 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 W.S. Walker & Company, counsel for TEL, to the effect that:
(i) TEL has been duly incorporated and is validly existing and
in good standing as a company under the laws of the Cayman Islands,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The applicable Indenture has been duly authorized,
executed and delivered by TEL; and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid
and legally binding instrument of TEL enforceable against TEL in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by TEL; the
Securities other than any Contract Securities have been duly
executed and issued by TEL; assuming due authentication of the
Securities by the Trustee and upon payment and delivery in
accordance with this Agreement, the Securities other than any
Contract Securities will constitute, and any Contract Securities,
when duly executed and issued by TEL and delivered in the manner
provided in the applicable Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of TEL enforceable against TEL in accordance with their
terms and entitled to the benefits of the applicable Indenture,
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; if the Securities
include Warrants, upon due execution, countersignature and delivery,
the Warrants in definitive form will constitute valid and legally
binding obligations of TEL and the Warrants may be exercised to
purchase debt securities of TEL in accordance with their terms and
the terms of the Warrant Agreement; if any Securities are to be
issued as convertible securities, the Ordinary Shares 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; and
(iv) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by TEL.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the laws of the Cayman Islands 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) TEC has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) The applicable Indenture has been duly authorized,
executed and delivered by TEC and duly qualified under the Trust
Indenture Act; and, assuming due authorization, execution and
delivery thereof by TEL and the Trustee, constitutes a valid and
legally binding instrument of TEC and TEL enforceable against each
of them in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing;
(iii) The Securities have been duly authorized by TEC; the
Securities other than any Contract Securities have been duly
executed and issued by TEC; assuming due authentication of the
Securities by the Trustee and upon payment and delivery in
accordance with this Agreement, the Securities other than any
Contract Securities will constitute, and any Contract Securities,
when duly executed and issued by TEC and delivered in the manner
provided in the applicable Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of TEC and TEL (assuming the due authorization,
execution and delivery of such Securities or Contract Securities by
TEL) enforceable against each of them in accordance with their terms
and entitled to the benefits of the applicable Indenture, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; if the Securities include
Warrants, upon due execution, countersignature and delivery by TEC
and TEL, the Warrants in definitive form will constitute valid and
legally binding obligations of TEC and TEL and the Warrants may be
exercised to purchase debt securities of TEC in accordance with
their terms and the terms of the Warrant Agreement;
(iv) 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 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, the Trust Indenture 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;
(v) 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
Closing 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 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;
(vi) 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; 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;
(vii) The statements made in the Prospectus under the caption
"Description of Debt Securities", insofar as they purport to
constitute summaries of the terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects; and
(viii) This Agreement, the Warrant Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by TEC.
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, the laws of the State of New York and the Delaware General
Corporation Law 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 Cayman Islands upon the opinion of W.S. Walker & Company furnished
pursuant to Section 5(d) of this Agreement.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of Robert B. Holland, III, General Counsel of the Company, to
the effect that:
(i) To the best knowledge of such counsel, each of the
Companies 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, except where the failure to be so
qualified or in good standing would not have a material adverse
effect on the business, properties, operations, financial condition
or results of operations of TEL and its subsidiaries taken as a
whole;
(ii) To the best 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
Companies, except such as have been obtained and made under the Act
and the Trust Indenture Act and such as may be required under
applicable state securities laws;
(iii) To the best knowledge of such counsel, the execution,
delivery and performance of the applicable Indenture, 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 Companies or any of their properties or the charter or by-laws
of the Companies, or any agreement or instrument to which either of
the Companies is a party or by which either of the Companies is
bound or to which any of the properties of either of the Companies
is subject, and the Companies have full power and authority to
authorize, issue and sell the Securities as contemplated by the
provisions of this Agreement; and
(iv) 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.
In rendering such opinion, such counsel may (i) state that his
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 (ii) rely (to the
extent such counsel deems proper and specifies in his opinion), as to matters
involving the application of the laws of the Cayman Islands upon the opinion
of W.S. Walker & Company furnished pursuant to Section 5(d) of this Agreement.
(g) 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 Companies, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Companies shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(h) 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 each of the Companies in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of such Company in this
Agreement are true and correct, that such 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 TEL and its subsidiaries except as set forth in or contemplated by the
Prospectus or as described in such certificate.
The Companies 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 Companies 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 Companies 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 Companies by any Underwriter
specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Companies
against any losses, claims, damages or liabilities to which the Companies 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 Companies by
such Underwriter specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Companies 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 Companies 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 Companies 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
Companies 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 Companies 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 Companies 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 Companies under this Section shall be in
addition to any liability which the Companies 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 Companies, to each
officer of each of the Companies who has signed the Registration Statement and
to each person, if any, who controls the Companies 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 principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total amount of the Securities, the Representatives may make
arrangements satisfactory to the Companies 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 principal amount of the Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representatives and the Companies 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 Companies, 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 principal amounts of the Securities set forth opposite their names in
Annex I as a result of Delayed Delivery Contracts entered into by the
Companies.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Companies or their 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 Companies 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 Companies shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 4 and the respective obligations of the
Companies 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 Companies in writing for
the purpose of communications hereunder or, if sent to TEL, will be mailed,
delivered or telegraphed and confirmed to it at Caledonian House, Mary Street,
P.O. Box 1043, George Town, Grand Cayman, Cayman Islands, or, if sent to TEC,
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 Companies 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]
TRITON ENERGY LIMITED
By_________________________________
[Insert Title]
ANNEX I
Description of Securities
Title: [___%] [Floating Rate] [Notes] [Debentures] [Bonds] Due
____________.
Principal Amount: $_____________.
Interest: [___% per annum, from _________, payable semiannually on
_________ and _________, commencing _________, to holders of record on the
preceding ____________ or ___________, as the case may be.] [Zero coupon.]
Maturity: _______________.
Optional Redemption: [None.]
Sinking Fund: [None.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
____________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
Purchase Price: ___% of principal amount, plus accrued interest [, if
any,] from ______________.
Expected Reoffering Price: ___% of principal amount, subject to change
by the undersigned.
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 principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The 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 Principal Amount
____________
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 Delaware corporation ("TEC"), and TEC agrees to sell to the
undersigned, $_____________ principal amount of TEC's _________________
(the "Securities"), which Securities are i) fully and unconditionally
guaranteed by Triton Energy Limited ("TEL", and together with TEC, the
"Companies"), a Cayman Islands company of which TEC is a wholly owned
subsidiary and ii) offered by the Companies' Prospectus dated _________ __,
1996 and a Prospectus Supplement dated __________, relating thereto, receipt
of copies of which is hereby acknowledged, at __% of the principal amount
thereof plus accrued interest, if any, and on the further terms and conditions
set forth in this Delayed Delivery Contract (the "Contract").
The undersigned will purchase from TEC as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amount[s] set forth below:
Principal Amount
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 TEC 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 TEC 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 TEC 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) TEC
shall have sold to the Underwriters the total principal amount of the
Securities less the principal amount 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
TEC's sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If this Contract is acceptable to
TEC, it is requested that TEC 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 among the Companies
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.