EXHIBIT 1.2
TRITON ENERGY LIMITED
Debt Securities
Warrants to Purchase Debt Securities
Underwriting Agreement
___________, 19__
Triton Energy Limited
Caledonian House, Mary Street
P.O. Box 1043, George Town
Grand Cayman, Cayman Islands
Dear Sirs:
1. Introductory. Triton Energy Limited, a Cayman Islands company
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities or warrants representing rights to purchase such debt
securities (the "Warrants") registered under the registration statement
referred to in Section 2(a) (the "Registered Securities"). The Registered
Securities will be issued under an indenture dated as of ___________, 199_ (the
"Indenture") between the Company 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") between the Company
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 Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company and Triton Energy Corporation ("TEC"), its wholly
owned subsidiary, 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, ordinary shares and
warrants of the Company (including the Securities) and certain of the
joint several debt securities and warrants of the Company and TEC 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
Company 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) The Company is 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; and 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 the Company and its subsidiaries taken as a whole.
(d) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding obligation of
the Company enforceable against the Company 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 Company and, when
executed and delivered by the Company and the Trustee and qualified under
the Trust Indenture Act, will constitute a valid and legally binding
instrument of the Company enforceable against the Company 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 the Company
and its subsidiaries taken as a whole, and since the date of the latest
consolidated balance sheet of the Company and its subsidiaries included in
the Registration Statement, neither the Company 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 the Company
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 Company and,
when authenticated by the Trustee and issued and sold by the Company
pursuant to this Agreement against payment therefor, will constitute,
valid and legally binding obligations of the Company enforceable against
the Company 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
Company or any of its properties or the charter or by-laws of the Company,
or any agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company is
subject, and will not result in the imposition or creation of any lien
upon any property of the Company, 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
the Company and its subsidiaries taken as a whole; and the Company has
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 the Company 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 the Company 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
the Company 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 the Company.
(k) Except as may be set forth in the Prospectus, there are no legal
or governmental proceedings pending or, to the knowledge of the Company,
threatened to which the Company is a party or of which any of its
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 Company,
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 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 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 Company authorizes 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 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 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 Company
executes and delivers 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 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 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 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 the Company's 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, 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 Company herein, to the accuracy of the statements of officers of
the Company 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, 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 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 downgrading in
the rating of any of the Company's 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 the Company 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 the Company, 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) Assuming due authorization, execution and delivery of the
applicable Indenture by the Company and the Trustee, the applicable
Indenture constitutes a valid and legally binding instrument of the
Company enforceable against the Company 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;
(ii) Assuming due authorization, execution and delivery of the
Securities by the Company and 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 the Company 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 the Company,
enforceable against the Company 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 the Company, the Warrants
in definitive form will constitute valid and legally binding
obligations of the Company and the Warrants may be exercised to
purchase debt securities of the Company in accordance with their
terms and the terms of the Warrant Agreement;
(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 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;
(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
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;
(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; 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) 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
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, 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,
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 the
Company 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 Company, 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 of the 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 Company or any of
their properties or the charter or by-laws of the Company, or any
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the properties of the Company
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; 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 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.
(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 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.
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 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 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 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 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 principal amounts of the 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 its
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 them 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 Caledonian House, Mary
Street, P.O. Box 1043, George Town, Grand Cayman, Cayman Islands with a copy to
Triton Energy Corporation 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 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....)[FN]
Delayed Delivery Contract
[Insert date of initial public offering]
Triton Energy Limited
c/o [NAME OF PURCHASER]
[ADDRESS]
Attention: ____________
Gentlemen:
The undersigned hereby agrees to purchase from Triton Energy
Limited, a Cayman Islands company (the "Company"), and the Company agrees to
sell to the undersigned, $_______ principal amount of the Company's _________
(the "Securities"), offered by the Company's 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 the Company 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.
<F1> Insert date which is third full business day prior to Closing Date
specified in Annex I.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on each Delivery Date shall be made to the Company or
their 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 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
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 LIMITED
By_____________________________
[Insert Title]