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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 1-12554
COMPANIA BOLIVIANA DE ENERGIA ELECTRICA, S.A.--
BOLIVIAN POWER COMPANY LIMITED
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(Exact Name of the Registrant as Specified in its Charter)
NOVA SCOTIA 13-2691133
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Av. Hernando Siles 5635
Obrajes, La Paz-Bolivia
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(Address of principal executive offices)(zip code)
Registrant's telephone numbers, including area codes:
(Bolivia) 591-2-782474
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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which registered
None Not applicable
Securities registered pursuant to section 12(g) of the Act:
Common Shares, No Par Value
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(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. YES X NO
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The Registrant's Common Stock was delisted from the New York Stock Exchange on
December 19, 1996. At that time, the aggregate market value of the Registrant's
Common Stock held by non-affiliates was approximately $6,100,000. Since then,
there has been no established active trading market for the Registrant's Common
Stock. However, after adjusting the December 19, 1996 closing price by
deducting the special dividends paid by the Registrant in January 1997 and
January 1998, the Registrant estimates that the aggregate market value of the
Registrant's Common Stock held by non-affiliates on March 20, 1998 was
approximately $4,250,000.
As of March 20, 1998, there were 4,202,575 outstanding shares of the
Registrant's Common Stock, no par value.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's definitive proxy statement, to be filed with the
Commission for use in connection with the Company's June 4, 1998 Ordinary
General Meeting of Shareholders, are incorporated by reference into Part III of
this Form 10-K.
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COMPANIA BOLIVIANA DE ENERGIA ELECTRICA, S.A.--
BOLIVIAN POWER COMPANY LIMITED
(THE "COMPANY")
PART I
ITEM 1. BUSINESS
Introduction
The Company was incorporated in 1925 under the laws of Nova Scotia, Canada. The
Company generates electricity in Bolivia from 14 hydroelectric power stations
and one thermal facility. In 1997, electricity generated by the Company
represented approximately 28% of all electricity generated in Bolivia. As of
December 31, 1997, the Company's maximum generating capacity was 172.4 megawatts
("MW"). In February 1998, the Company's generation capacity increased by 12.7 MW
when the expansion of the Cuticucho plant (see Expansion and Modernization
Projects below) entered into service. The Company was also engaged in the
distribution of electricity in Bolivia until January 1996, when the Company sold
its distribution assets in order to comply with Bolivia's new Electricity Law.
Since that time, the Company has been engaged in the generation of electricity
and in the transmission and sale of its generated power primarily to
Electricidad de La Paz S.A. ("Electropaz") and Empresa de Luz y Fuerza Electrica
de Oruro, S.A. ("ELF"), two former subsidiaries of the Company which are now
independently owned. Electropaz distributes electricity to the cities of La Paz
and El Alto and surrounding areas and ELF distributes electricity to the City of
Oruro and to the customers of the Company's former Oruro division. According to
the 1992 census, the metropolitan areas of La Paz and El Alto had a population
of approximately 1.1. million and the metropolitan area of Oruro had a
population of approximately 180,000. In addition to its former distribution
activities, during 1995 the Company also was engaged in the manufacturing of
concrete utility poles through its former subsidiary, Compania Administradora de
Empresas ("CADE"), which was also sold in January 1996. See "Restructuring of
the Bolivian Electric Industry," "Continuing Operations," and "Former
Distribution Activities," below.
The Company intends to build new electric generating facilities in Bolivia. In
addition, the Company will consider developing, owning and operating electric
generation projects within Bolivia for the export of electricity to the
neighboring electricity markets of Argentina, Brazil, Chile and Peru. It also
will consider investments in electric generation projects or other energy-
related investment opportunities within those countries and throughout Latin
America.
As described below under "Expansion and Modernization Projects," the Company is
in the process of expanding by approximately 65 MW its major hydroelectric
facilities in the Zongo Valley. During 1997, the Company completed construction
of its 9.6 MW Tiquimani generation facility and completed the expansion of the
Zongo and Santa Rosa facilities by 6.7 MW and 3 MW respectively. In addition,
in February 1998 the Company completed the 12.7 MW expansion of the Cuticucho
plant. Upon the expected completion of the Zongo Project in mid 1999 the
Company's total generating capacity of 217 MW will represent approximately 27%
of all capacity owned by the four major generators in Bolivia, making the
Company the largest hydroelectric generator in Bolivia and the second largest
generator in Bolivia overall.
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CHANGE OF CONTROL
The Offer. On November 13, 1996, the Company entered into a Purchase Agreement
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with a wholly-owned subsidiary of NRG Energy, Inc. ("NRG"), pursuant to which
the subsidiary made a cash tender offer (the "Offer") for all of the outstanding
shares of the Company's Common Stock at $43.00 per share. Prior to the
expiration of the Offer, Tosli Investments B.V. succeeded to all of the
subsidiary's rights and obligations under the Purchase Agreement. The Offer
expired on December 18, 1996, and promptly thereafter Tosli purchased all of the
shares that had been validly tendered and not withdrawn. As a result, Tosli
acquired and now owns 4,060,732, or 96.6%, of the Company's outstanding shares,
and became entitled to designate all of the members of the Company's Board of
Directors. Tosli is a Netherlands limited liability company that is equally
owned, through subsidiaries, by NRG and Nordic Power Invest AB, a Swedish
corporation ("NPI").
NRG is one of the leading participants in the independent (i.e., non-utility)
power generation industry in the U.S. Established in 1989 and headquartered in
Minneapolis, Minnesota, NRG is principally engaged in the acquisition,
development and operation of independent power production and cogeneration
facilities, thermal energy production and transmission facilities and resource
recovery facilities. NRG is a Delaware corporation that is wholly owned by
Northern States Power Company. Northern States is a regional investor-owned
electricity and natural gas utility that provides services to the states of
Minnesota, North Dakota, South Dakota, Wisconsin and Michigan. Its shares are
listed on the New York Stock Exchange.
NPI is a wholly-owned subsidiary of Vattenfall AB, a Swedish Corporation
("Vattenfall") that is wholly owned by the State of Sweden. Vattenfall is the
largest energy company in the Nordic market. NPI is responsible for
Vattenfall's investments outside Europe. NPI and Vattenfall are headquartered
in Stockholm, Sweden.
While the Company's loan agreement (the "CAF Agreement") with Corporacion Andina
de Fomento ("CAF") is in effect, NRG and NPI are required to maintain a combined
ownership position of at least 50% of the Company unless the voting stock of the
Company is publicly traded and at least 20% of the voting power is held by
persons other than NRG, NPI and their affiliates. See "CAF Agreement" and
"Shareholder Maintenance Agreement" below.
Stockholders Agreement. Pursuant to a Stockholders Agreement, dated as of
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December 13, 1996, NRG and NPI have made various agreements relating to their
ownership of interests in Tosli and the Company.
Under the Stockholders Agreement, NRG and NPI agreed that they would observe the
following basic principles governing the ownership and management of the Company
and Tosli:
(i) NRG and NPI shall cooperate in a spirit of good faith and fair dealing in
an effort to develop a harmonious working relationship for the purpose of
maximizing the long-term value of their investments in the Company.
(ii) The Company shall be operated as an independent, self-sufficient entity.
Neither NRG nor NPI shall have authority to bind or make commitments on
behalf of the Company or Tosli.
(iii) Neither NRG nor NPI shall be obligated to make any equity investments in
or loans to the Company or Tosli or issue guarantees in favor of the
Company or Tosli.
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(iv) The Board of Directors of the Company shall make decisions on the basis of
the benefit to the Company of such decisions rather than the partisan
interest of either NRG or NPI; provided, however, that while Tosli holds
any shares of the Company's Common Stock, Tosli has agreed to take all
lawful action so that NRG and NPI may vote (subject to the corporate
governance provisions of the Stockholders Agreement) those shares in the
same proportions as their respective percentage ownership interests in
Tosli.
(v) The Company shall deal at arm's length with NRG and NPI.
(vi) NRG and NPI shall cooperate fully to the end that the Company and Tosli
will qualify for a "participation exemption" under the laws of the
Netherlands.
(vii) The Company shall conduct its business with due consideration to
applicable environmental standards.
Under the Stockholders Agreement, NRG and NPI have agreed that the Board of
Directors of the Company will consist of three designees of NRG, three designees
of NPI and three additional directors who are mutually satisfactory to NPI and
NRG.
The Stockholders Agreement also provides that "Major Matters" would require the
approval of at least six directors. Major Matters include (i) amendments to the
Company's Memorandum or Articles of Association, (ii) approvals of mergers and
other corporate reorganizations of the Company, (iii) changes in the Company's
dividend policy, (iv) any borrowings or guarantees by the Company in excess of
$10,000,000 in any one case, (v) changes in the Company's auditors, (vi) changes
in the Company's business objectives by entering into businesses other than the
generation, transmission and/or distribution of heat or electricity, or services
related thereto, (vii) any material amendments of the Company's material
agreements, (viii) any material commitments regarding the Mato Grosso Project or
the Miguillas Project, or (ix) any exit from the Company's existing rate base.
In addition to the Board approvals specified above, the matters referred to in
clauses (i), (iv) and (vi) would require the concurrence of at least one
director designated by NPI.
The Board approvals specified above would be in addition to the approvals, if
any, required of shareholders under applicable law and the Articles of
Association.
Under the Stockholders Agreement, the Chairman of the Board and the Secretary of
the Company are initially to be designees of NRG and thereafter the Chairmanship
is to be rotated every two years, and the position of Secretary is to be rotated
annually, between designees of NPI and NRG. It is the intention of the parties
that the Chairman not have a casting vote.
Under the Stockholders Agreement, the shares of the Company held by Tosli, and
the shares of Tosli itself, are subject to rights of first refusal and rights of
approval of transferees in favor of NRG and NPI where the proposed transfer
includes, directly or indirectly, 25% or more of the then outstanding shares of
the Company's Common Stock or would reduce the combined holdings of NRG and NPI
to less than 51% of the then outstanding shares of the Company's Common Stock.
Pursuant to the Stockholders Agreement, in the event of the transfer of
effective working control of NPI by Vattenfall, or of NRG by Northern States
(other than a spin-off or split-off of NRG to all shareholders of Northern
States or a change of control of Northern States or Vattenfall), then the
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other party would have a right to purchase the first party's interest in the
shares of the Company held by Tosli and in Tosli at fair market value.
The Stockholders Agreement states that each party would be free to pursue other
business opportunities without offering them to the Company, except as otherwise
required by applicable law. However, each party has agreed to ensure that none
of its unilateral actions would be detrimental to the Company.
RESTRUCTURING OF THE BOLIVIAN ELECTRICITY INDUSTRY
Since 1994, the electricity industry in Bolivia has been restructured in several
significant respects. Previously, Bolivia's electricity sector was comprised of
two principal generators, the Company and the government owned power entity,
Empresa Nacional de Electricidad ("ENDE"), which operated several thermal power
stations and two hydroelectric power stations. During peak periods, the Company
purchased electricity (equal to approximately 29% of its total electricity sales
in 1995) from ENDE, and it competed with ENDE for the sale of bulk power to
mines and other industrial users of electricity. Together they served 97% of
the total national demand in 1995. The Company and ENDE each owned and operated
transmission networks which were interconnected.
In March 1994, the Bolivian Congress enacted legislation known as the
"Capitalization Law" providing for the transfer to private entities of certain
Government-owned industries, including ENDE. Under the Government's
capitalization program, private investors in these industries are invited to
make a capital contribution and own a 50% equity interest in the entity to be
capitalized and to enter into a long-term contract to manage the entity. The
remaining 50% equity interest in the capitalized entity is to be transferred to
pension funds for the benefit of the Bolivian people. Pursuant to the
Capitalization Law, during 1995 the Government divided ENDE into three separate
generating companies (two thermal-powered generating companies and one
hydroelectric generating company), and a 50% interest in each company was sold
to private entities which now manage the capitalized companies.
In December 1994, the Bolivian Congress provided for the further restructuring
of the Bolivian electricity industry by enacting a new Electricity Law which
replaced the existing Electricity Code. The new Electricity Law provides for
the separation of the generation, interconnected transmission and distribution
activities of the electricity industry. It also requires entities which control
more than one such activity to divest themselves of control of the other
activities. The Company divested itself of its distribution assets in January
1996 in order to comply with this provision of the new Electricity Law.
In anticipation of the mandated sale of its distribution assets, in the first
part of 1995 the Company formed a new subsidiary, Electropaz, and subsequently
transferred its La Paz Division distribution assets to Electropaz. The Company
also transferred its Oruro Division distribution assets and customers to its
former 95% owned subsidiary, ELF, on July 1, 1996. Bids for the purchase of
Electropaz and ELF were solicited through a competitive bidding process. After
carefully considering each bid, the Company accepted the bid of Iberdrola
Investimentos Sociedade Unipessoal L.D.A. ("Iberdrola"), a Portuguese company.
Iberdrola submitted an aggregate bid of $65.3 million. At the closing held on
January 11, 1996, Iberdrola paid to the Company $57.5 million in cash and
deposited $7.8 million in an escrow account pending the satisfaction of certain
conditions, including the grant by the Government of a distribution concession
to ELF, the transfer of certain distribution assets of the Company's Oruro
Division to ELF and the extension of ELF's service area to include the Company's
Oruro Division distribution customers. In February and July 1996 and November
1997, $6 million, $1.4 million and $0.4 million respectively of the escrowed
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funds were released to the Company following the satisfaction of such
conditions. The Company and Iberdrola subsequently agreed to a post-closing
adjustment of $513,000 to reflect changes in the book value of Electropaz and
ELF, resulting in an increase in the purchase price from $65.3 million to $65.8
million.
In connection with the sale to Iberdrola, the Company entered into an
Electricity Supply Contract with Electropaz which provides that the Company
shall sell, and Electropaz shall purchase, all of the electricity that the
Company can supply, up to the maximum amount of electricity required by
Electropaz to supply the requirements of its concession area. The Electricity
Supply Contract expires in December 2008. On February 26, 1996 the Company and
ELF entered into an Electricity Supply Contract on terms that are substantially
similar to the terms of the Electropaz Electricity Supply Contract. See
"Continuing Operations - Major Customers" below.
As a result of the restructuring of the Bolivian electricity industry and the
sale by the Company of its distribution assets, the Company is now primarily a
wholesale electricity supplier to two major electricity distributors in Bolivia
and no longer supplies electricity directly to Bolivian retail consumers in the
Company's concession area.
CONTINUING OPERATIONS
CONCESSION
The Company operates its electric generation and localized transmission business
under a 40-year Concession which was granted by the National Government in 1990
and subsequently was amended on December 30, 1994 and March 17, 1995 by two
Supreme Resolutions.
The Concession, as amended, includes the following pertinent provisions: (i) The
Concession is for a period of 40 years commencing on October 1, 1990 and
expiring on September 30, 2030; (ii) for a period of seven years from and after
December 30, 1994, the Company shall be entitled to the 9% rate of return
established under the old Electricity Code; thereafter, for a period of seven
years the Company shall be entitled to the rate of return provided under the old
Electricity Code or, at its option, to price and sell its generated power under
the marginal cost pricing system established under the new Electricity Law; and
from and after 14 years, the Company shall be subject to the marginal cost
pricing system established under the new Electricity Law; (iii) the Company will
comply with the new Electricity Law by, among other things, disposing of its
distribution assets by June 30, 1996 (which the Company has done); (iv) the
Company will retain ownership of its assets upon termination of the Concession;
(v) the Company is required to complete certain designated projects in the Zongo
Valley within specified time periods; (vi) the Company must supply power to meet
an annual growth in demand in its concession area of up to 6% and if demand in
an area grows at a rate in excess of 6% and the Company declines to supply such
demand in excess of 6%, another party may be granted a concession in the area
(since the Company is no longer engaged in distribution activities, the Company
believes that this requirement is no longer applicable).
If the Company fails to meet its obligations under the Concession, including
(iii) (v), and (vi) above, the Government may, depending on the nature of the
failure, terminate the Concession either in part or in its entirety and grant a
new concession to a third party.
ELECTRIC POWER STATIONS
The Company owns and operates 14 hydroelectric power stations and one gas-fired
electric generation facility, which vary in size and together currently generate
185 MW of electricity. Eleven
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of the Company's power stations serve the La Paz area, with a total coincidental
capacity of 166 MW, and four serve the Oruro area, with a total coincidental
capacity of 19 MW, all with associated dams and aqueducts. The Company also owns
and operates 69 Kilovolt and 115 Kilovolt transmission lines.
The table below lists the Company's electric power stations, the year operations
commenced, total installed capacity, total coincidental capacity ("maximum
capacity") and availability
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<TABLE>
<CAPTION>
TOTAL TOTAL AVAIL-
NO. YEAR INSTALLED COINCIDENTAL ABILITY
OF OPERATIONS CAPACITY CAPACITY FACTOR
POWER STATION UNITS COMMENCED (MW) (MW) (1) (2)
- -------------------------- ----- ---------- --------- ------------ -------
<S> <C> <C> <C> <C> <C>
LA PAZ DIVISION
Achachicala 2 1909 4.2 4.0 97.3
1 1952
Zongo Valley
Zongo(3) 1 1997 10.6 10.6 98.9
Tiquimani(4) 1 1997 9.6 9.6 98.9
Botijlaca 1 1937 3.6 3.5 92.6
1 1940
Cuticucho(5) 1 1942 21.1 21.1 95.6
1 1944
1 1955
1 1965
1 1998
Santa Rosa(6) 1 1952 13.0 12.5 93.0
1 1955
1 1997
Sainani 1 1956 10.4 10.4 98.0
Chururaqui 2 1966 26.0 24.0 98.1
Harca 2 1969 27.2 26.0 97.5
Cahua 2 1974 28.8 27.0 97.6
El Alto - Kenko 2 1995 30.0 17.6(7) 99.7
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SUB TOTAL 24 184.5 166.3
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ORURO DIVISION
Miguillas Valley
Miguillas 2 1931 3.2 2.5 98.3
Angostura 1 1936 4.2 3.7 98.5
1 1958
Choquetanga 1 1939 7.4 6.5 74.3(8)
2 1944
Carabuco 1 1958 6.1 6.1 97.9
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SUB TOTAL 8 20.9 18.8
-- ----- ------
Total 32 205.4 185.1
== ===== ======
</TABLE>
(1) Coincidental or "maximum" capacity represents the total capacity of each
power station if all units are in operation at the same time.
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(2) Availability factor is calculated as a percentage of the number of days
during the 12 months ended December 31, 1997 on which the specified plant
was available to generate electricity.
(3) The Zongo plant expansion entered into commercial operation in September,
1997.
(4) The Tiquimani plant entered into commercial operation in January, 1997.
(5) The Cuticucho plant expansion entered into commercial operation in February,
1998.
(6) The Santa Rosa plant expansion entered into commercial operation in
December, 1997
(7) 41% derating due to altitude.
(8) Unit No. 2 was off-line from May to October 1997 due to damages to shaft.
MAJOR CUSTOMERS
The Company is now primarily a wholesale electricity supplier to two major
electricity distributors, Electropaz in La Paz and El Alto, and ELF in Oruro.
In addition, at certain times when the Company's generation exceeds the
requirements of Electropaz and ELF, the Company sells electricity on the spot
market. The Company no longer supplies electricity directly to retail
consumers. In 1997, Electropaz and ELF accounted for approximately 79% and 14%
respectively of the Company's revenue.
The Company's Electricity Supply Contract with Electropaz expires in 2008 and
provides that the Company shall sell, and Electropaz shall purchase, all of the
electricity that the Company can supply, up to the maximum amount of electricity
required by Electropaz to supply the requirements of its concession area. The
Electricity Supply Contract, as originally signed and approved by Bolivian
regulatory authorities, require, among other things, that Electropaz deposit 75%
of its daily collections from electricity customers into an escrow account in
favor of the Company. Once a month, these escrowed amounts are to be delivered
to the Company and are to be applied by the Company to amounts owed to the
Company for electricity delivered to Electropaz under the Electricity Supply
Contract. In connection with the sale of Electropaz and ELF to Iberdrola, the
Company agreed with Iberdrola that the amount of the escrow would be reduced to
35% of Electropaz's daily collections.
On February 26, 1996, the Company and ELF entered into an Electricity Supply
Contract on terms that are substantially similar to the terms of the Electropaz
Electricity Supply Contract.
FORMER DISTRIBUTION ACTIVITIES
As discussed above, in January 1996 the Company divested itself of its
distribution assets in accordance with the new Electricity Law. The following
paragraphs describe the Company's distribution activities as they existed during
1995.
The Company's retail distribution activities served the cities of La Paz and El
Alto, through the Company's La Paz Division, and the City of Oruro, through the
Company's Oruro Division and its former subsidiary, ELF. The Company owned and
maintained a distribution network to service its customer base. In 1995, retail
sales of electricity by the Company accounted for approximately 45% of total
retail sales by all distributors in Bolivia. The following table provides
summary information on the transmission and distribution lines of the Company
during 1995.
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<TABLE>
<CAPTION>
TRANSMISSION DISTRIBUTION
(KM) (KM)
<S> <C> <C>
La Paz Division................................. 400 2,605
Oruro Division.................................. 367 566
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Total...................................... 767 3,171
=== =====
</TABLE>
During 1995, no customer accounted for more than 5% of the Company's operating
revenues.
The Company was not able to realize sales on all the electricity it generated or
purchased because of losses during transmission and distribution. The Company's
transmission losses during 1995 amounted to approximately 3% of the total
electricity generated and its distribution losses amounted to approximately 11%
of the total electricity generated or purchased. Through a variety of programs,
the Company was able to reduce its total losses from 19% in 1988 to
approximately 14% as of December 31, 1995.
During 1995 the Company's largest operating cost was the cost of electricity
purchased from ENDE. In 1995, the Company purchased electricity from ENDE in
the amount of $18.8 million, which represented 41.7% of the Company's total
operating expenses, and it sold surplus electricity to ENDE in the amount of
$0.7 million. The Company purchased electricity from ENDE in order to meet
additional demand during peak periods, and it sold electricity to ENDE during
off-peak periods.
The Company was permitted to include as an operating cost the cost of
electricity purchased from ENDE, which was more expensive than electricity
generated by the Company, and to recover such costs through the rates which the
Company charged to its consumers.
EXPANSION AND MODERNIZATION PROJECTS
ZONGO PROJECT
Under the terms of its Concession, the Company is obligated to expand its
hydroelectric generation capacity. This expansion, which the Company refers to
as the "Zongo Project," consists of adding new generation facilities and
expanding existing facilities located in the Zongo Valley and constructing
transmission lines to transmit the increased generation capacity. Construction
of the Zongo Project was commenced in 1995 and is scheduled to be completed in
mid 1999. The Company estimates that during the next two years it will be
required to spend approximately $28 million to complete the generation
facilities associated with the Zongo Project, which is expected to add
approximately 65 MW to the Company's generation capacity. In addition the
Company will spend $9 million over the next two years to complete the
transmission facilities associated with the Zongo Project. Under the
Concession, the Company was also obligated to expand its La Paz distribution
facilities, and during 1995 the Company expended approximately $4.8 million for
this purpose. Since the Company has divested itself of all of its distribution
assets, it no longer is required to spend funds for the expansion of the La Paz
distribution system. However, it is anticipated that Electropaz will invest
substantial funds over the next few years to complete the expansion of its
electric distribution capability in and around La Paz.
Upon completion of the entire Zongo Project, the Company will be entitled to
include the cost thereof, as previously agreed upon by the Government and the
Company, in its rate base. However,
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any cost overruns not approved by the Government are to be absorbed by the
Company and may not be passed on to the Company's customers.
The six projects listed below, which together comprise the Zongo Project, are
required by the Company's Concession to be completed by the indicated dates. The
Company anticipates that the entire Zongo Project will be completed in mid-1999.
1. THE TIQUIMANI PROJECT. The Tiquimani plant was constructed to provide 9.6
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MW and entered into service in January, 1997.
2. THE CUTICUCHO EXPANSION. The 8 MW Cuticucho plant was expanded by 12.7 MW
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and entered into service in February, 1998.
3. THE SANTA ROSA EXPANSION. The Santa Rosa plant was expanded by 3 MW and
------------------------
entered into service in December, 1997.
4. THE ZONGO EXPANSION. The Zongo plant expansion consisted of the
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installation of a 10.6 MW unit to replace the existing 4.6 MW and entered
into service in September, 1997.
5. THE BOTIJLACA EXPANSION. The Botijlaca plant is to be expanded to provide
-----------------------
an additional 3 MW by February 1999.
6. THE HUAJI PROJECT. The Huaji plant is to be constructed to provide 29 MW
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by July 1999.
MIGUILLAS PROJECT
Under the terms of the Concession, the Company also has the right to expand its
facilities in the Miguillas Basin (the "Miguillas Project") which, if completed,
would add over 200 MW of generation capacity. In accordance with its
obligations under the Concession, in late 1995 the Company presented to the
Government a technical-economic feasibility study for the Miguillas Project
prepared by its engineering consultant, CI Power Monenco Inc.
With a view of commencing construction of the Miguillas Project in late 1998 and
its entering into commercial operation by mid 2002, on December 20, 1997 the
Company invited certain selected contractors to submit their bids for an
engineering, procurement and construction contract by May 1998. Based on the
terms of these bids and on the availability of long-term debt and equity sources
to provide financing, the Company will make a decision as to whether or not it
will proceed with the Miguillas Project.
PUERTO SUAREZ PROJECT
In September 1997 the Superintendency of Electricity granted the Company a non-
exclusive provisional license to perform the necessary studies for the
installation of gas-fired generation facilities in Puerto Suarez in Santa Cruz
on the Brazilian border (the "Puerto Suarez Project"). The license grants the
Company the right to perform studies in order to generate and sell electricity
in Puerto Suarez and surrounding areas and to sell electricity in the Brazilian
market. The Company is currently conducting those studies in cooperation with
three other companies. The Puerto Suarez Project is at a very preliminary
stage, and there can be no assurance that the Project will be undertaken.
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FINANCING EXPANSION AND MODERNIZATION PROJECTS
The Company estimates that from 1998 through 1999 approximately $44 million be
required for completion of the Zongo Project and for the Company's regular
capital expenditure program. The Company estimates that during the next two
years it will be required to spend approximately $28 million to complete the
Zongo Project generation facilities, $9 million to complete the Zongo Project
transmission facilities, and approximately $7 million on its regular capital
expenditure program. Based on revised and updated projections, which include the
settlement of certain claims from contractors and redesign of civil works, the
total cost of the Zongo Project, including expenditures through December 31,
1997 of $76 million, is estimated to be $113 million ($98 million for generation
facilities and $15 million for transmission facilities).
The Company intends to fund the Zongo Project and its regular capital
expenditure program with borrowings from financial institutions or possible
equity financings, equipment financing, the proceeds it received from the sale
of Electropaz, ELF and CADE, and from internal cash generation. At December 31,
1997, $26.7 million of loan proceeds under the CAF Agreement was available for
this purpose. See "CAF Agreement" below. During 1997 and 1996, the Company
expended $39 million and $25.5 million, respectively, on the Zongo Project. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Liquidity and Capital Resources" in relation to borrowings by the
Company from CAF and special dividends paid by the Company. The capital
requirements discussed above do not include possible funding requirements of the
Miguillas Project or the Puerto Suarez Project referred to above.
REGULATION AND RATE SETTING
The Electricity Law, and the Sectorial Regulatory Law, both enacted in 1994,
created a new Government agency, known as the Superintendency of Electricity,
which is responsible for performing the regulatory functions previously
performed by the Government regulatory board, Direccion Nacional de
Electricidad.
The Company's Concession provides that until December 2001 the Company shall be
entitled to the rate of return established under the old Electricity Code.
Thereafter, until December 2008 the Company shall be entitled to the rate of
return provided under the old Electricity Code or, at its option, to price and
sell its generated power under the marginal cost pricing system established
under the new Electricity Law. Thereafter, the Company shall be subject to the
marginal cost pricing system established under the new Electricity Law. The new
Electricity Law provides that rates will be determined on an unregulated,
competitive marginal cost basis, similar to systems operating in Argentina,
Chile and the United Kingdom, rather than the present regulated rate of return
basis.
Since 1990, the Company's rates have been set in accordance with the old
Electricity Code, which provides for a 9% rate of return on the Company's Rate
Base (approximately the depreciated book value of the Company's utility plant
and equipment plus an allowance for materials not exceeding 3% of tangible
assets and an allowance for working capital of 12.5% of gross revenues) and for
adjustments in the rates to compensate for shortfalls or excesses in the rate of
return in prior years. The Company periodically applies to the Government for
rate increases sufficient to provide a 9% rate of return based on the Company's
current operating results and its projection of future revenue and expenses.
Prior to 1990, the Government failed to approve rates sufficient to produce a 9%
return or to adjust rates to compensate for shortfalls. As of December 31,
1989, the accumulated deficit for the period 1968 through 1989 was approximately
$53.8 million. In connection with the negotiations between the Company and the
Government for the Concession, the Company agreed to
13
<PAGE>
waive $40.8 million of the accumulated deficit. The $13 million balance of such
deficit will also be waived by the Company in the event of a favorable outcome
for the Company of the legal proceeding described in "Item 3 - Legal
Proceedings" and Notes 4 and 6(b) to the Company's Consolidated Financial
Statements.
Until the Company's distribution activities were divested in January 1996, the
Company applied for periodic adjustments in its distribution rates in order to
provide for an annual return of 9% on its Rate Base. In 1995 the Company was
granted a 4.6% increase in its distribution rates which enabled the Company to
earn its 9% return on its Rate Base in 1995. In December 1995, when it was
apparent that the Company would no longer be engaged in the distribution of
electricity, the Company applied for new generation rates and in February 1996
the Superintendency of Electricity granted this request, effective retroactively
to January 1, 1996. Based on such rates, the Company return in 1996 was 9.15%.
The Company subsequently held discussions with the Superintendency of
Electricity with a view to establishing the criteria which will govern the
Company's future requests for rate adjustments. In this connection, on October
30, 1996 the Company presented to the Superintendency of Electricity the
Company's analysis of what likely will be the required rate adjustments during
the period of 1996 through 2001.
On February 5, 1997, the Superintendency of Electricity issued a Resolution
granting the Company an 18.2% rate increase as from February 1, 1997, 21.3% in
1999 and 19.5% in 2000. The Resolution also provides for annual reviews of
rates in order to correct any shortfall or excess in the Company's actual rate
of return during the period 1997 through 2001. The increase granted by the
Superintendency of Electricity on February 5, 1997 enabled the Company to earn a
9.5% return on its Rate Base in 1997, although this calculation has not yet been
agreed to with the Superintendency of Electricity.
In addition, pursuant to the annual reviews of rates called for by the
Resolution issued by the Superintendency of Electricity on February 5, 1997, on
October 31, 1997 the Company presented to the Superintendency of Electricity a
rate case study for the period of 1998 through 2002. This rate case study
requests rate increases of 20.9% in 1998, 20.7% in 1999 and 2.8% in 2002, with
no increases required in 2000 and 2001. The Superintendency of Electricity has
not ruled on the Company's rate increase request. On January 30, 1998 the
Superintendency of Electricity issued a resolution which maintains the Company's
current rates until March 31, 1998. The Company expects that a resolution will
be issued in the near future, establishing the rates to be applied as from April
1, 1998.
The Company's rates are indexed to the U.S. dollar so that the Company's rates
are automatically adjusted on a monthly basis to reflect changes in the exchange
rate between the Boliviano and the U.S. dollar, thereby providing the Company
with protection from effects of fluctuations in the exchange rate. Although
Bolivia suffered from periods of hyperinflation in prior years, the Government
has been successful in maintaining a relatively low rate of inflation since
1986. While the Company does not anticipate that there will be a period of
hyperinflation in the near future, it should be recognized that in a period of
hyperinflation there can be no assurance that dollar indexing would adequately
protect the Company from severe currency fluctuations. See "The Republic of
Bolivia - Inflation" below.
The Company is entitled to include in its rates an amount equal to the excess of
the rate of interest paid over 6% on any financing approved by the Government.
In approving the CAF Agreement, the
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<PAGE>
Government approved the inclusion of this excess in the rate base of the
interest on only $55.6 million of borrowings under the CAF Agreement.
EMPLOYEES
As of December 31, 1997, the Company had 280 employees. The Company has
contracts with local labor unions covering such matters as representation,
general working conditions, seniority, wages, and arbitration. Labor unions and
all labor matters are under the supervision of the Ministry of Labor. The
Company considers its employee relations to be good. The Company's work force
is supplemented by work done by independent contractors.
COMPETITION WITHIN BOLIVIA AND THROUGHOUT LATIN AMERICA
Until ENDE was capitalized and separated into three separately owned generating
companies (two thermal powered generating companies and one hydroelectric
generating company) during 1995, ENDE was the only other major electricity
producer in Bolivia and was the Company's principal competitor. In the Bolivian
market, the Company now competes with the three independently owned generating
companies which now own and operate the generation business formerly owned and
operated by ENDE. These new Bolivian generators are Empresa Electrica Corani
S.A. (126 MW hydroelectric capacity), Empresa Electrica Guaracachi S.A. (217 MW
thermal capacity), and Empresa Electrica Valle Hermoso S.A. (180 MW thermal
capacity) which are owned by investment groups led by three U.S. utilities,
Dominion Energy (a subsidiary of Dominion Resources), Energy Initiatives, Inc.
(a subsidiary of General Public Utilities), and Constellation Energy (a
subsidiary of Baltimore Gas & Electric), respectively. The Company anticipates
that it will compete with these three companies for new electricity projects
within Bolivia as well as for new projects to export electricity from within
Bolivia to neighboring countries. An overall limit on the amount of total
Bolivian interconnected generation capacity owned by the Company or any one of
these three other generators has been set by the new Electricity Law at 35%.
Pursuant to the Concession, the Company is entitled to the 9% rate of return
established under the old Electricity Code until December 2001, after which it
shall be entitled, at its option, to continue that pricing system for another
seven years or to change to the marginal cost pricing system established under
the new Electricity Law. On the other hand, the Company's three competitors are
required to price all of their generated power exclusively under the marginal
cost pricing system established under the new Electricity Law. The Company
believes that its flexible pricing system may provide it with more stable and
predictable cash flow and earnings than that of its competitors. It is also
important to note that the Company's electricity price on a per kwh basis is
lower today than that of the other three Bolivian generators. See "Regulation
and Rate Setting" above. Under the new Electricity Law, the Company and its
three competitors are the only four companies permitted to own and operate
interconnected electric generation facilities in Bolivia until 1999 and to own
electric generation facilities for export from Bolivia until December 1998. The
Company expects the expiration of these exclusivity periods will not materially
and adversely affect its existing business, but it will likely result in
increased competition for new projects that the Company might pursue.
As explained above under "Major Customers", the Company has entered into an
Electricity Supply Contract which provides that the Company shall sell, and
Electropaz shall purchase, all of the electricity that the Company can supply,
up to the maximum amount of the electricity required by Eletropaz to supply the
requirements of its La Paz concession area. Also, as explained above, the
Company has entered into an Electricity Supply Contract with ELF on terms that
are substantially
15
<PAGE>
similar to the terms of the Electropaz Electricity Supply Contract in order that
ELF can supply the requirements of its Oruro concession area.
In addition to the competition it faces from Empresa Electrica Corani S.A.,
Empresa Electrica Guaracachi S.A. and Empresa Electrica Valle Hermoso S.A. for
both new internal and export electric power projects in Bolivia, the Company
also faces competition for new "greenfield" development projects and for the
acquisition of or investment in existing electric power projects throughout
Latin America from numerous international independent power project companies
and from electric utility companies, such as those which led the successful
investor groups in the three other Bolivian generators.
ENVIRONMENTAL REGULATIONS
The Republic of Bolivia for the first time enacted legislation to protect the
environment in 1991. Regulations implementing this legislation were adopted by
the Government in 1996. The Company is complying with these new regulations and
it is possible that the Company may be required to make future capital
expenditures in this regard. However, management of the Company believes that
any required actions or expenditures to comply with the environmental
regulations will not have a material adverse effect on the Company's
consolidated financial condition.
THE REPUBLIC OF BOLIVIA
GENERAL
Bolivia has an area of 424,164 square miles, approximately equal to the combined
size of France and Spain. Bolivia shares its borders with the growing
electricity markets of Argentina, Brazil, Chile and Peru, as well as with
Paraguay. Geographically, the country is divided into three distinct regions:
the lowland plains, which are in the eastern region of the country, the highland
valleys, which are in the middle of the country, and the highlands, or
Altiplano, located in the western part of the country between the cities of La
Paz and Oruro. Over half of Bolivia's terrain is relatively low-lying, and this
section of the country has substantial timber reserves and is suited for
agriculture. The upper valleys and high plateau formations contain most of the
country's mineral deposits and are actively mined.
Out of Bolivia's total population of approximately 6.9 million, 75% live in the
provinces of La Paz, Cochabamba, and Santa Cruz. Overall, approximately 58% of
the population live in urban areas. The principal cities are La Paz, Santa Cruz
and Cochabamba with approximate populations of 1.1 million (including El Alto),
692,000 and 408,000, respectively. Spanish, Quechua and Aymara are the official
languages.
GOVERNMENT AND POLITICAL SYSTEM
The Bolivian Constitution provides for a tripartite system of government: an
executive branch headed by a President; a legislative branch made up of a
bicameral congress; and a judicial branch, of which the Supreme Court is the
highest authority. The President's term of office is five years; the Bolivian
Constitution does not allow successive terms. The Congress is comprised of a
27-member Senate, consisting of three senators from each of the nine
departments, and a 130-member Chamber of Deputies. Both senators and deputies
hold office for five years.
The military dominated the political arena in Bolivia until 1982 Since then,
civilian constitutional governments have been democratically elected The
current National Government, headed by
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<PAGE>
President Hugo Banzer Suarez, was elected in June 1997 to a five-year term which
expires in August 2002.
GOVERNMENT PARTICIPATION IN THE ECONOMY AND THE CAPITALIZATION PLAN.
Prior to 1992, there were a number of important sectors of the economy that were
highly dependent on Government owned and controlled enterprises, including oil
and gas production, sugar and dairy production, and water and sewage services.
In 1992 the Government initiated a privatization plan that affected minor
enterprises owned by regional development corporations. Companies that were
sold included those in the agro-industrial and lodging sectors.
Since the enactment of the Capitalization Law in 1994, several larger
enterprises have been capitalized. Under the Capitalization Law, investors are
permitted to make a capital contribution and own up to 50% of the enterprise to
be capitalized and are granted a contract to manage the business. The
Government-owned entities that have been capitalized include ENDE (electric
generation), Lloyd Aereo Boliviano (airline), Empresa Nacional de
Telecomunicaciones (telecommunications), Empresa Nacional de Ferrocarriles
(railways) and Yacimientos Petroliferos Fiscales Bolivianos (oil). In addition,
the Government privatized the Cochabamba electric distribution company (ELFEC)
by selling the entire company to a private entity for $52 million
EXCHANGE RATES
The official rate of exchange for U.S. dollars is set daily by Bolivia's Central
Bank. There have been no restrictions on the transfer of foreign currency out
of Bolivia since 1985, and the exchange rate of Bolivianos to dollars has been
relatively stable in recent years. The following table sets forth for the
periods and dates indicated certain information concerning the exchange rate for
dollars expressed in Bolivianos per $1.00.
<TABLE>
<CAPTION>
Year Low(1) High(1) Average (2) Year
END
<S> <C> <C> <C> <C>
1993 4.10 4.48 4.29 4.48
1994 4.48 4.70 4.62 4.70
1995 4.70 4.94 4.82 4.94
1996 4.94 5.19 5.08 5.19
1997 5.19 5.37 5.26 5.37
</TABLE>
(1) Reflects the low and high rate, as the case may be, for each
respective year.
(2) Reflects the average rate for each respective year as calculated by
the Central Bank of Bolivia. On December 31, 1997 the exchange rate
was 5.37 Bolivianos per $1.00.
Source: Central Bank of Bolivia.
17
<PAGE>
INFLATION
The following table sets forth the consumer price index for the years 1993 to
1997.
<TABLE>
<CAPTION>
YEAR RATE OF INFLATION
<S> <C>
1993 9.3%
1994 8.5%
1995 12.6%
1996 7.6%
1997 6.7%
</TABLE>
Source: Bolivian National Institute of Statistics.
CAF AGREEMENT
The Company entered into the CAF Agreement in August 1997. CAF is a
multilateral, supernational financial institution, the shareholders of which are
the member countries of the Andean Community (i.e., Bolivia, Colombia, Ecuador,
Peru and Venezuela), plus Chile, Mexico, Trinidad and Tobago, Brazil, Paraguay,
Jamaica and 22 private commercial banks. The CAF Agreement provides an A Loan
of up to $30,000,000 (the "A Loan") to be provided by CAF and a B Loan of up to
$45,000,000 (the "B Loan") to be provided by ING Baring (U.S.) Capital
Corporation (or an affiliate) and other Participants.
The A Loan and the B Loan will be available in multiple disbursements, following
the satisfaction of conditions to disbursement, for a period ending not later
than July 31, 1998. The number of disbursements shall be limited to no more
than one every two months. All disbursements shall be pro rata between the A
Loan and the B Loan. In December 1997 the Company borrowed $61,700,000 under
the CAF Agreement. The Company does not expect to borrow any additional amounts
under the CAF Agreement and if it elected to do so it would be required to
prepay a corresponding amount of other indebtedness currently outstanding.
The loans under the CAF Agreement will be amortized in 18 semi-annual
installments of varying amounts beginning January 31, 1999 and ending July 31,
2007.
The A Loan may be voluntarily prepaid upon 90 days notice in whole or in part in
an amount of not less than $5,000,000 beginning on July 31, 1999 subject to the
payment of (i) a prepayment fee of 2.00% if a prepayment occurs on or before
July 31, 2003, or 1.00% if a prepayment occurs thereafter and (ii) applicable
breakage costs. The B Loan may be voluntarily prepaid in whole or in part at
any time upon 90 days notice, subject to payment of applicable breakage costs.
Any voluntary prepayment will be made pro rata between the A Loan and the B
Loan, except that CAF may elect to waive pro rata voluntary prepayment and allow
voluntary prepayment of B Loan amounts only. Voluntary prepayments shall be
applied pro rata to remaining principal payments due on the A Loan and the B
Loan.
Certain mandatory prepayments will be required in the event of asset sales by
the Company in excess of a cumulative total of $15,000,000.
Interest is payable semi-annually in arrears at a rate equal to 6-month LIBOR
plus a margin of 4.5% on the A Loan and 6-month LIBOR plus a margin of 4.0% on
the B Loan. Overdue amounts will bear interest at a rate of 4.00% over the
amount otherwise payable.
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<PAGE>
The A Loan and the B Loan are collateralized by a mortgage on substantially all
of the Company's assets.
The CAF Agreement includes the following affirmative covenants, among others:
Unless CAF shall otherwise agree, the Company shall:
(a) conduct its business with due diligence and efficiency and in
accordance with sound financial and business practices, maintain its
corporate existence and good standing and qualify and remain qualified
to do business as a foreign corporation in the Republic of Bolivia and
each other jurisdiction in which the character of the properties owned
or leased by it therein or in which the transaction of its business is
such that the failure to qualify would have a Material Adverse Effect,
and maintain its assets and properties in good working order and
condition, ordinary wear and tear excepted;
(b) keep its properties and business insured with financially sound and
reputable insurers against loss or damage in such manner and to the
same extent as shall be no less than that generally accepted as
customary in regard to property and business of like character;
(c) as soon as available, but in any event within 60 days after the end of
each quarter of each fiscal year, furnish to CAF the Company's Form 10-
Q filed with the SEC and the Company's unaudited financial statements
for such quarter, a report on any factors which could reasonably be
expected to have a Material Adverse Effect and a certificate stating
that no Event of Default has occurred and is continuing, or if an Event
of Default has occurred and is continuing, the actions which the
Company intends to take to cure such Event of Default;
(d) as soon as available, but in any event within 120 days after the end of
each fiscal year, furnish to CAF the Company's Form 10-K filed with the
SEC, the Company's audited financial statements for such fiscal year,
together with an audit report; and a report by Price Waterhouse
certifying that the Company was in compliance with the financial
covenants contained in Section 6.02 of the CAF Agreement as of the end
of the relevant fiscal year or detailing any non-compliance;
(e) as soon as available, but in any event within 15 days after the end of
each fiscal quarter, furnish to CAF the Company's calculation of the
Debt Service Coverage Ratio ("DSCR") for the four quarters then ended,
and until completion of the Zongo Valley Expansion Project, a
construction progress report in form reasonably acceptable to CAF;
(f) within 90 days after the end of each of the Company's fiscal quarters,
furnish to CAF the Company's calculation of the Unrestricted Dividend
Balance including the amount of any dividends declared and/or paid to
the Company's shareholders which are intended to reduce the
Unrestricted Dividend Balance;
(g) take such actions as are necessary or required by CAF to cause the lien
of the security documents to attach to and be perfected, and continue
to be perfected, for the benefit of CAF;
(h) obtain, on or prior to the date required, and maintain in force (or
where appropriate promptly renew) all Permits necessary or advisable
for carrying out the Company's
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<PAGE>
business and operations generally, and comply with the Bolivian
Electricity Laws and all other applicable laws, rules and regulations,
except in each case where failure to so obtain, maintain in force or
comply could not reasonably be expected to have a Material Adverse
Effect;
(i) obtain, make and keep in full force and effect all Permits and
registrations that may be required for the validity or enforceability
of the CAF loan documents, except to the extent failure to obtain, make
or keep Permits and registrations in full force and effect could not
reasonably be expected to have a Material Adverse Effect;
(j) obtain, on or prior to the date required, and maintain in force (or
where appropriate promptly extend), enter into all agreements necessary
or advisable for carrying out the Company's business and operations
generally, and comply in all material respects therewith, except to the
extent that any failure to so obtain, enter into and comply could not
reasonably be expected to have a Material Adverse Effect;
(k) furnish promptly to CAF copies of all material documents and reports
that the Company submits to any governmental authority, and take all
necessary action to permit CAF's representatives to (i) visit with
prior notice the premises of the Company and (ii) have access to the
Company's books and its auditors;
(l) promptly notify CAF upon the discovery by any officer of the Company of
the occurrence of (i) any Default or Event of Default; (ii) certain
other adverse events, developments or circumstances set forth in the
CAF Agreement;
(m) exercise all reasonable efforts to complete the Zongo Valley Expansion
Project no later than June 30, 1998, and in any event complete the
Zongo Valley Expansion Project by no later than required by each
Concession; and construct and complete the expansion and construction
of each of the projects specified in the Resolutions as and when
required by the Resolutions and for the cost approved by the
appropriate governmental authority;
(n) yearly on or about the anniversary of August 13, 1997, (i) furnish CAF
a certificate of the Company's chief financial officer setting forth
the Book Value of the Generating Assets, the book value of all other
assets which are part of the Collateral, the book value of the
remaining assets, and the Collateral Value Ratio, (ii) cause NRG and
NPI to deliver to CAF a certificate stating that the Sponsors are in
compliance with the ownership requirements set forth in the Shareholder
Maintenance Agreement, and (iii) deliver to CAF any revisions to the
Company's Corporate Environmental Policy;
(o) upon entering into any electricity supply contract which will commit
10% or more of the electrical capacity of the Company, or result in the
sale of 10% or more of the energy sold by the Company, and which
provides for the escrow of retail power sales revenues by the purchaser
thereunder for the benefit of the Company, the Company shall enter into
with CAF an agreement similar to Article 10 of the Contract of
Constitution of Guaranties, and shall cause the power purchaser and
applicable financial institution(s) to enter into Irrevocable
Instructions similar to those entered into by Electropaz, ELF and Banco
Mercantil;
(p) take such actions, either before or after a Default or Event of
Default, as may be requested by CAF to ensure or increase the
likelihood that the proceeds of any sale,
20
<PAGE>
auction or other disposition of the Company's Generating Assets
pursuant to Article 34 of the Electricity Law will, to the extent
otherwise payable to the Company and the Company agrees that such
proceeds shall be paid directly to CAF by the corresponding awardee of
the bid process provided for in said Article, without the Company being
entitled to receive such proceeds in any manner whatsoever; and
(q) prepay the Loan in accordance with Section 3.04(b) of the CAF Agreement
and, if required by the intercreditor agreement between CAF and any
provider of Pari Passu Debt, any Pari Passu Debt, pro rata, to the
extent necessary to maintain the Collateral Value Ratio at all times at
a level no less than as specified in Section 6.02(g) of the CAF
Agreement.
The CAF Agreement includes the following negative covenants, among others:
Unless CAF shall otherwise agree, the Company shall not:
(a) declare or pay any dividend or make any distribution on its share
capital, or purchase, redeem or otherwise acquire any shares of capital
stock of the Company or any option over the same, unless (i)
immediately prior to declaring and paying such dividend or distribution
the Company is in compliance with all material obligations under the
Loan Documents, (ii) after making such payment or distribution, the
Company is in compliance with Sections 6.02(d)-(g) of the CAF
Agreement, (iii) the DSCR for the four fiscal quarters most recently
ended is not less than 1.25/1 and (iv) a Default or Event of Default
has not occurred and is not continuing; provided that the Company may,
at any time that no Default or Event of Default has occurred and is
continuing, declare or pay dividends to the extent of the Unrestricted
Dividend Balance;
(b) transfer, convey, sell, lease or otherwise dispose of any part of its
business or assets, subject to certain limited exceptions;
(c) incur, assume or permit to exist any Indebtedness, except:
(i) the Loan;
(ii) Indebtedness which is subordinated to the Loan upon terms and
conditions acceptable to CAF;
(iii) Non-Recourse Debt;
(iv) the March 16, 1995 Loan Agreement between the Company and CAF in
the original principal amount of $13,233,571, provided that such
Indebtedness shall cease being permitted in the event that
borrowings under the CAF Agreement exceed $61,766,429;
(v) guaranties provided to third parties in connection with the Zongo
Valley Expansion Project and the Miguillas Expansion, which are
required by the Concession therefor; and
(vi) certain other Indebtedness.
(d) allow the Leverage Ratio to exceed 0.60/1;
21
<PAGE>
(e) fail to maintain Tangible Net Worth of at least $65,000,000, or, except
as may result from payment of the January 1998 dividend, allow a
cumulative reduction of Tangible Net Worth in excess of 15% over any
period of four consecutive fiscal quarters;
(f) fail to maintain the Current Ratio at least 1.00/1;
(g) allow the Collateral Value Ratio to fall below 1.25/1 at any time;
(h) create or permit to exist any Lien, except Permitted Liens;
(i) enter into, any transactions with any Affiliate of the Company, other
than upon fair and reasonable terms no less favorable to the Company
than would obtain in a comparable arm's-length transaction with an
entity not an Affiliate of the Company;
(j) make any prepayment (whether voluntarily or involuntarily) or
repurchase of any long-term Indebtedness (other than the Loan), or
make, any repayment of any such Indebtedness pursuant to any provision
of any agreement or note which provides directly or indirectly for
acceleration of repayment in time or amount, unless in any such case it
shall, if CAF so elects, contemporaneously make a proportionate
prepayment or repayment of the principal amount then outstanding of the
Loan;
(k) terminate or assign, or materially amend or modify, or waive any
material provision of, any Concession, any Material Agreement, or any
electricity supply contract covering 10% or more of the electrical
capacity of the Company and Restricted Subsidiaries, or 10% or more the
energy sold by the Company and Restricted Subsidiaries, or allow any
Restricted Subsidiary to do so, except that the Company may, in respect
of, and as permitted by, the Electropaz Electricity Supply Contract,
and the ELF Electricity Supply Contract elect the marginal cost pricing
formula contemplated by Title V of the Electricity Law, so long as it
has provided CAF prior notice of its intent to do so;
(l) without the consent of CAF (which shall not be unreasonably withheld),
enter into any new electricity supply contract expected to commit 10%
or more of the electrical capacity of the Company, or result in the
sale of 10% or more of the energy sold by the Company;
(m) merge, amalgamate or consolidate with any other entity, or reorganize
its business, subject to certain exceptions set forth in the CAF
Agreement;
(n) cease doing business, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution);
(o) materially alter the scope of the Zongo Valley Expansion Project, or
schedule progress of construction such that completion of the stages of
the Zongo Valley Expansion Project could not reasonably be expected to
be attained by [the completion dates set forth in the CAF Agreement's
definition of such Project];
(p) settle or compromise any pending or threatened suit, action, claim,
dispute or proceeding which would have a Material Adverse Effect; and
(q) take any action, which could reasonably be expected to result in the
Company's loss of its exemption from Canadian taxation.
22
<PAGE>
Events of Default:
The CAF Agreement includes the following Events of Default:
(a) default shall have occurred in the payment of any principal of the
Loan;
(b) default shall have occurred in the payment of any interest on the Loan
or any fee, reimbursement or other amount due to CAF under the Loan
Documents, and such default shall have continued for a period of five
business days;
(c) (i) default shall have occurred in the due observance or performance of
any term, covenant or agreement contained in specified sections of the
CAF Agreement; or (ii) default shall have occurred in the due
observance or performance of any other term, covenant or agreement
contained in the CAF Agreement and such default under this clause (ii)
shall have continued unremedied for a period of 30 days after the
Company becomes aware, or should have become aware, of such default;
(d) any representation or warranty, shall be found to have been incorrect
in any material respect as of the date it was made or confirmed and
shall continue to be incorrect for a period of 30 days after notice
thereof shall have been given to the Company by CAF;
(e) any Political Risk Event shall occur which, in the reasonable opinion
of CAF, has had or could reasonably be expected to have a Material
Adverse Effect;
(f) the Company, or any of its "empresas vinculadas", or any of its
"accionistas o socios vinculados" (as such terms are defined in Article
2 of the Electricity Law), fails to comply with the ownership
restrictions set forth in Article 15 of the Electricity Law;
(g) the Company shall abandon the Zongo Valley Expansion Project, or any
substantial portion thereof, or cease working on the Zongo Valley
Expansion Project for a period in excess of 90 consecutive days
(excluding days where work could not progress due to adverse weather
conditions);
(h) any Permit required to conduct the Company's business is revoked,
suspended, withdrawn, or declared unenforceable, or material conditions
are added thereto, unless such revocation, suspension, withdrawal,
declaration or addition of material conditions would not have a
Material Adverse Effect;
(i) there shall have occurred certain bankruptcy or insolvency-related
events with respect to the Company, the Company's branch in Bolivia,
any Restricted Subsidiary, or any Sponsor;
(j) a material default shall have occurred with respect to any Indebtedness
of (other than the Loan) in excess of $1,000,000 individually, or in
excess of $3,000,000 in the aggregate, and such default shall have
continued for more than any applicable period of grace;
(k) any Lien created by the Security Documents ceases to be valid under
applicable law or ceases to be effective with the priority purported to
be created by the Security Documents and applicable filings and
recordings (subject to Article 35 of the Electricity Law and
corresponding regulations);
23
<PAGE>
(l) any Sponsor fails to comply with the terms of the Shareholder
Maintenance Agreement;
(m) each of the voting power and aggregate capital stock of the Company
shall cease for any reason to be owned, directly or indirectly, by any
combination of NRG and Vattenfall (or, if Vattenfall owns at least 51%
of each of the voting power and capital stock of NPI, owned by NPI), in
amounts set forth in the CAF Agreement and the Shareholder Maintenance
Agreement;
(n) the Republic of Bolivia ceases to be a member of CAF;
(o) a Material Adverse Change occurs and is continuing;
(p) one or more judgments are entered against the Company or attachments
are obtained against its property, in excess of $1,000,000 individually
or $3,000,000 in the aggregate, or the operation or result of which
could reasonably be expected to have a Material Adverse Effect, and
which remain unpaid, unstayed on appeal, undischarged, unbonded, or
undismissed for a period of 60 days; or
(q) any material provision of the CAF Agreement or any other Loan Document
(or any component thereof) is or shall have become or been declared by
any Governmental Authority or party thereto (other than CAF) invalid,
illegal or unenforceable.
The Bolivian Electricity Law imposes certain limitations on the lenders' ability
to exercise remedies with respect to their collateral. If the Company defaults
under the CAF Agreement and CAF seeks to exercise remedies that jeopardize the
normal supply of electricity, the Electricity Law requires CAF to apply to the
Superintendency of Electricity for preventive intervention, a mechanism which
allows an arm of Bolivia's energy regulatory body to supervise the operation and
administration of the Company for up to two years. If by the expiration of this
intervention period, the Company is unable to cure its default and normalize its
operations, the Superintendency of Electricity may revoke the Company's
Concession, conduct an auction, and transfer the Concession and the Company's
generating assets to a new concessionaire.
Certain Definitions
Under the CAF Agreement the following definitions apply (as to capitalized terms
used herein, but not defined below, see the more detailed list of definitions in
the CAF Agreement):
"Book Value" means "valor de libros," as used in Article 34 of the Electricity
Law.
"Collateral" means any item of collateral specified in or pursuant to a Security
Document, whether owned by the Company or a Restricted Subsidiary on the Closing
Date, or later acquired.
"Collateral Value" means the value of the Collateral. For purposes of this
definition, (a) all Generating Assets shall be valued at Book Value, and (b) all
other Collateral shall be valued at book value under GAAP.
"Collateral Value Ratio" means the ratio of (a) the Collateral Value to (b) the
aggregate outstanding principal amount of the Loan plus all Pari Passu Debt.
"Current Ratio" means, at any time for the Company and Restricted Subsidiaries,
current assets divided by current liabilities.
24
<PAGE>
"EBIT" means, for any period for the Company and Restricted Subsidiaries, Net
Income for such period, plus, to the extent deducted in determining such Net
Income, (a) Interest Expense and (b) all income taxes, whether domestic
(Bolivia) or foreign, all as determined in accordance with GAAP.
"GAAP" means generally accepted accounting principles in the United States,
consistently applied.
"Generating Assets" means Collateral which is subject to disposition to a new
concessionaire at the direction of the Superintendent of Electricity of the
Republic of Bolivia pursuant to Article 34 of the Electricity Law.
"Indebtedness" of any entity at any date means (a) all indebtedness of such
entity for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities included in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such entity which is evidenced by a note, bond debenture or
similar instrument, (c) all capital lease obligations of such entity, (d) all
obligations of such entity in respect of acceptances issued or created for the
account of such person, (e) all liabilities secured by any Lien on any property
owned by such entity even though such entity has not assumed or otherwise become
liable for the payment thereof, (f) any guarantee or contingent liability in
respect of the obligations of another entity and (g) any liability or
obligation, contingent on otherwise, arising out of any capital contribution
agreement or subscription agreement or the like.
"Intangible Assets" means, to the extent included in balance sheet assets, (a)
all write-ups subsequent to December 31, 1996 in book value of any assets, (b)
all investments in Unrestricted Subsidiaries, and (c) all other intangible
assets in accordance with GAAP.
"Interest Coverage Ratio" means, for any period for the Company and Restricted
Subsidiaries, the ratio of (a) EBIT to (b) Interest Expense for the specified
period.
"Interest Expense" means, for any period for the Company and Restricted
Securities, the sum of (a) all interest expense determined in accordance with
GAAP, but excluding capitalized interest, plus (b) the net amount payable (or
minus the net amount receivable) under interest rate hedging agreements during
such period (whether actually paid or received during such period).
"Leverage Ratio" at any date means, for the Company and Restricted Subsidiaries,
the ratio of Total Debt to Total Capital.
"Material Adverse Change" means an event, occurrence or condition which has
resulted in or could reasonably be expected to result in a Material Adverse
Effect.
"Material Adverse Effect" means a material adverse effect, as reasonably
determined by CAF, on (a) the ability of the Company, any Restricted Subsidiary
or any Sponsor to perform its obligations under any Loan Document to which it is
a party, or (b) the validity, perfection or priority of the lien of the Security
Documents, or any Collateral; provided that a material adverse effect on the
ability of any Restricted Subsidiary to perform its obligations under any Loan
Document to which it is a party shall not be deemed to be a Material Adverse
Effect if the Company, together with the other Restricted Subsidiaries, is able
to perform its obligations under the Loan Documents.
"Net Income" means, for any period, net income of the Company and Restricted
Subsidiaries for such period, but excluding (a) any extraordinary or non-
recurring gains or losses, (b) effects of discontinued operations and (c)
interest income to the extent attributable to any special dividends paid in such
period.
25
<PAGE>
"Non-Recourse Debt" means Indebtedness of the Company or any Restricted
Subsidiary (a) that is without recourse to the Company or any Restricted
Subsidiary or to any assets of the Company or any Restricted Subsidiary, other
than the asset purchased with the proceeds of such Indebtedness and the income
deriving from such asset, (b) as to which neither the Company nor any Restricted
Subsidiary provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) and (c) no default
with respect to which would permit any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated.
"Pari Passu Debt" means any Indebtedness of the Company and the Restricted
Subsidiaries which is not Non-Recourse Debt or is not subordinated to the Loan
in accordance with Section 6.02(c)(ii) of the CAF Agreement and is secured by
the Collateral or any portion thereof.
"Political Risk Event" means (a) war (whether declared or undeclared),
insurrection, civil war, revolution, terrorism, sabotage, kidnapping or any
other act or series of acts of civil or political violence; (b) an act or series
of acts (including any requisition, confiscation, detention, restraint,
commandeering, attachment, freezing of assets, sequestration, seizure,
appropriation, expropriation, nationalization, discriminatory taxation,
additional Permit requirements or cancellation or non-renewal of existing
Permits) or failure or series of failures to act by a governmental authority or
entity controlled by a governmental authority; (c) breach of contract by a
governmental authority or entity controlled by a governmental authority; (d) the
Superintendent of Electricity of the Republic of Bolivia shall have rejected the
Company's application for an "adecuacion" to the Electricity Law, as provided by
Article 69 of the Electricity Law, or shall have issued such adecuacion under
terms which materially adversely affects the ability of the Company to conduct
business in the normal course as currently conducted, or (e) the creation,
imposition, application or existence of any restriction on the ability of the
Company or CAF to obtain U.S. dollars in a lawful market of the Republic of
Bolivia or to effect the transfer of U.S. dollars to CAF.
"Restricted Subsidiary" means any subsidiary of the Company other than
Unrestricted Subsidiaries (as hereinafter defined).
"Sponsors" means NRG and NPI.
"Tangible Net Worth" means, at any date for the Company and Restricted
Subsidiaries, (a) shareholders' equity minus (b) Intangible Assets plus (c)
Indebtedness provided by any Sponsor which is subordinated to the Loan upon
terms and conditions acceptable to CAF.
"Total Capital" means Total Debt plus Tangible Net Worth.
Total Debt" means for the Company and Restricted Subsidiaries (a) all interest-
bearing Indebtedness, whether or not subordinated to the Loan, but excluding any
subordinated Indebtedness provided by any Sponsor, plus (b) any obligation on
the part of the Company or any Restricted Subsidiary to fund or otherwise
provide equity to any project or joint venture which is not supported by an
undertaking from a creditworthy third party to provide such equity.
"Unrestricted Dividend Balance" means the sum of (a) cash dividends or other
cash distributions received by the Company from Unrestricted Subsidiaries (such
dividends, "Unrestricted Subsidiary Cash Dividends"), minus (b) dividends to the
Company's shareholders which are deemed to have been made from Unrestricted
Subsidiary Cash Dividends (provided that such sum shall not be less than zero).
For purposes of the foregoing sentence, dividends to the Company's shareholders
will be deemed to have been made from Unrestricted Subsidiary Cash Dividends (i)
in full, at all times that
26
<PAGE>
dividends to the Company's shareholders are prohibited by Section 6.02(a) of the
CAF Agreement, and (ii) at all other times, in the same proportion relative to
the entire dividend paid to the Company's shareholders as (A) the Unrestricted
Subsidiary Cash Dividend bears to (B) the sum of (1) the aggregate Net Income
(as defined in the CAF Agreement) for such fiscal year and (2) the Unrestricted
Subsidiary Cash Dividends. For illustration, if the Unrestricted Cash Dividends
in Fiscal Year 2000 is $20x, the aggregate Net Income for such Fiscal Year is
$10x, and the Company dividends to its shareholders $15x, the Unrestricted
Dividend Balance is increased by $20x and then decreased by $10x ($20x/$10x
multiplied by the dividend to Company shareholders), for a net balance of $10x.
"Unrestricted Subsidiary" means any Subsidiary of the Company with respect to
which (a) there exist no Contractual Obligations (as defined in the CAF
Agreement) which provide recourse to any assets of the Company, other than to
the capital stock of such Unrestricted Subsidiary, including by virtue of a
guaranty of or other contingent obligation of the Company with respect to, any
such Contractual Obligations of such Unrestricted Subsidiary, (b) the Company
and the Restricted Subsidiaries have no Contractual Obligations which do not
comply with Section 6.02(j) of the CAF Agreement, (c) no Permits, Contractual
Obligations or conditions thereto of the Company or any Restricted Subsidiary
are dependent on the status, operations, property, nature or other status or
such Unrestricted Subsidiary, and (d) neither the Company nor any Restricted
Subsidiary has any obligation to subscribe for additional shares of capital
stock or other equity interest therein, or to maintain or preserve such
Unrestricted Subsidiary's financial condition or cause such Unrestricted
Subsidiary to achieve certain operating results.
SHAREHOLDER MAINTENANCE AGREEMENT
In connection with the execution of the CAF Agreement, NRG, NPI and CAF entered
into the Shareholder Maintenance Agreement. For a period of five years, NPI and
NRG agreed to maintain a combined ownership of at least 40% of each of the
voting power and the aggregate capital stock of the Company; provided, however,
-------- -------
that they agreed to maintain a combined ownership of more than 50% of each of
the voting power and aggregate capital stock unless the voting stock of the
Company is publicly traded and at least 20% of the voting power is held by
persons other than NRG, NPI and their affiliates. Thereafter, for the remaining
term of the financing, NPI and NRG agreed to maintain a combined ownership of at
least 30% of each of the voting power and aggregate capital stock of the
Company; provided, however, that they agreed to maintain a combined ownership of
-------- -------
more than 50% of each of the voting power and aggregate capital stock unless the
voting stock of the Company is publicly traded and at least 20% of the voting
power is held by persons other than NRG and NPI and their affiliates.
Additionally, they agreed to maintain effective management control of the
Company, and to appoint competent directors of the Company who will exercise
diligence and attention to the management of, and the appointment of officers
with appropriate competence and experience to manage, the Company.
Under the Shareholder Maintenance Agreement, NRG and NPI are prohibited from
encumbering or otherwise hypothecating shares in the Company or any intermediate
company through which they hold their ownership interests in the Company.
Additional covenants include notification/information requirements, maintenance
of corporate existence, compliance with laws and regulations, and an agreement
not to modify their organizational documents. In an event of default, remedies
include specific performance and injunctive relief as well as monetary damages.
The Shareholder Maintenance Agreement will automatically terminate upon the
repayment in full of all amounts payable under the CAF Agreement. In addition,
NRG and NPI shall have the right to transfer all of their capital stock of the
Company or of Tosli pursuant to a claims payment settlement
27
<PAGE>
under an insurance agreement covering expropriation risk, and thereupon the
Shareholder Maintenance Agreement shall automatically terminate.
ITEM 2. PROPERTIES
See Item 1 - "Business - Continuing Operations" for a description of the
Company's power plants.
During 1996, the Company's principal offices in La Paz, Bolivia were located at
Plaza Venezuela in a two-story office building owned by its former subsidiary,
CADE. In January 1996, the Company sold CADE to Iberdrola and, prior to the
sale of CADE to Iberdrola, the Company entered into a two-year lease with CADE
for the Company's office space. The Company also leased other premises for
office space. In February 1997, the Company canceled these leases and moved its
offices to Av. Hernando Siles 5635, zona Obrajes in La Paz pursuant to a two-
year lease of approximately 16,000 square feet at an annual rent of $81,000.
ITEM 3. LEGAL PROCEEDINGS
(A) EXCESSIVE RATE CHARGE CLAIM (CENTRO CIVICO Y CULTURAL 20 DE OCTUBRE VS.
COMPANIA BOLIVIANA DE ENERGIA ELECTRICA S.A.)
In January 1987, an action was filed against the Company by claimants purporting
to represent the Company's customers alleging that the Company had applied
unauthorized rates in billing its residential customers. On February 20, 1987,
the Superior Court of Justice of the District of La Paz ("Superior Court") ruled
that the action was unfounded. On appeal, the Supreme Court reversed the ruling
of the Superior Court and the case was referred to DINE, the Government
regulatory body, to establish the amounts overcharged, if any. DINE ascertained
that the claimants were not registered as customers of the Company, and so
informed the Court.
The claimants insisted that this is a class action suit on behalf of all
customers, and that it be resubmitted to DINE. Upon resubmission by the
claimants, DINE certified that, under the terms of the Electricity Code, no
overcharges had taken place. This certification was again rejected by the
claimants. On September 26, 1989, the Superior Court ruled that, since the
Supreme Court decisions did not establish the amounts of the claim, this must
now be determined by the Courts through the regular channels of Ordinary
Proceedings. On July 27, 1996 a Bolivian court ruled that the claimants had
abandoned their claim due to their failure to pursue this action within the
statutorily prescribed period. The claimants appealed this ruling on May 30,
1997; to date the Superior Court has not ruled on the claimants appeal.
The Company is unable to predict the ultimate resolution of this matter, but in
the event of an adverse ruling, the unwaived balance of $13 million of
accumulated deficits in rates of return at December 31, 1989 could be used to
offset any obligation arising therefrom, or the Company may be able to recover
any payment it is required to make through the rates it charges to consumers.
In the event of a favorable resolution to the Company, the $13 million
accumulated deficit amount will be waived by the Company. See notes 4 and 6(b)
of the Notes to Consolidated Financial Statements.
(B) OTHER PROCEEDINGS
The Company is a party to certain legal proceedings arising in the normal course
of its business, none of which is material individually or in the aggregate.
28
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- ------- ----------------------------------------------------
During the fourth quarter of the year ending December 31, 1997, no matter was
submitted to a vote of the Company's security holders through the solicitation
of proxies or otherwise.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
The Common Stock was traded on the New York Stock Exchange ("NYSE") under the
symbol "BLP" from November 22, 1993 until December 19, 1996, when it was
delisted as a result of the Offer. Since the delisting, there has been no
established active trading market for the Company's Common Stock. As of March
10, 1998, there were 376 shareholders of record and approximately 500
shareholders who held their shares through nominees.
The table below sets forth the high and low bid prices for the Common Stock on
the NYSE for the periods indicated.
<TABLE>
<CAPTION>
Per Share
High Low
<S> <C> <C>
Year ended December 31, 1995:
First quarter.......................................... 24 1/8 19 1/2
Second quarter ........................................ 32 1/2 23 7/8
Third quarter ......................................... 31 1/4 29
Fourth quarter ........................................ 33 1/4 26
Year ended December 31, 1996:
First quarter ......................................... 38 5/8 33 1/3
Second quarter ........................................ 42 7/8 34 7/8
Third quarter ......................................... 46 3/8 37 1/4
Fourth quarter (through December 19, 1996)............. 44 3/4 42
</TABLE>
Prices are based on the NYSE. On December 19, 1996 the reported closing bid
price for the Common Stock on the NYSE was $43.75 per share.
The Company terminated its policy of paying regular quarterly dividends when the
Common Stock was delisted from the NYSE. However, the Company paid a special
cash dividend of $5.00 per share in January 1997 and a special cash dividend of
$8.32 per share in January 1998. There is no current intention that any further
special dividends will be paid or that the policy of paying regular quarterly
cash dividends will be reinstated. However, the Company intends to evaluate its
dividend policy from time to time with respect to its cash requirements and
legal and regulatory requirements. The Company's ability to pay dividends is
restricted by the CAF Agreement. See Item 1--"Business--CAF Agreement" above.
The United States has no reciprocal tax treaty with Bolivia. There is no
withholding tax on dividends paid to shareholders of the Company. See Note 5 to
Consolidated Financial Statements for a discussion of income taxes and
withholding provisions.
29
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
Selected Financial Data for the Company are presented in a separate section of
this Annual Report on Form 10-K beginning on Page No. F-1.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.
Management's Discussion and Analysis of Financial Condition and Results of
Operations is presented in a separate section of this Annual Report on Form 10-K
beginning on Page No. F-4.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MATERIAL RISK.
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Financial statements and supplementary data, listed under Item 14, are presented
in a separate section of this Annual Report on Form 10-K beginning on Page No.
F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURES
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information called for by this item with respect to directors is
incorporated by reference to the section captioned "Election of Directors" in
the Company's definitive proxy statement to be filed with the Commission in
connection with the Company's June 4, 1998 Ordinary General Meeting of
Shareholders. Information with respect to executive officers follows.
30
<PAGE>
<TABLE>
<CAPTION>
OFFICER POSITION WITH
NAME AGE SINCE THE COMPANY
---- --- ----- -------------
<S> <C> <C> <C>
David H. Peterson 57 1996 Chairman of the Board,
Chief Executive Officer*
and Director
Robert McClenachan 46 1997 Chief Executive officer*
and Director
Roger J. Dupuis 56 1993 President and General
Manager
Roland C. Gibson 46 1991 Vice President - Finance
</TABLE>
All officers serve at the pleasure of the Board of Directors of the Company.
The recent business experience of the Company's executive officers is summarized
as follows:
DAVID H. PETERSON has been the Company's Chairman of the Board since December
1996. He served as its Chief Executive Officer from December 1996 until
November 1997. He has been Chairman of the Board of NRG since January 1994,
Chief Executive Officer of NRG since November 1993, President of NRG since 1989
and a Director of NRG since 1989. He is also a director of NRGenerating (U.S.
Inc.). He was also Chief Operating Officer of NRG from June 1992 to November
1993. Prior to joining NRG, Mr. Peterson was Vice President, Non - Regulated
Generation for Northern States Power Company ("NSP") and has served in various
other management positions with NSP during the last 20 years.
ROBERT MCCLENACHAN has been Chief Executive Officer of the Company since
November 1997 and a Director of the Company since December 1996. He is also
President of NRG Latin America Inc. He served as the Vice President,
International Business Development of NRG from September 1995 to November 1997,
and was Managing Director, Business Development from June 1992 to September
1995. Mr. McClenachan was also President of NRG Australia, a wholly-owned
subsidiary of NRG, from April 1993 to October 1995. Prior to joining NRG, Mr.
McClenachan served as Development Director for Bonneville Pacific Corporation,
an independent power producer in Salt Lake City, Utah, from January 1991 to
December 1991, and he worked from 1983 to 1991 in various positions for Central
Vermont Public Service Corporation, including Vice President, Corporate
Development.
ROGER J. DUPUIS has served as President and General Manager of the Company since
January 1993, and as Executive Vice President of the Company from August 1991 to
December 1992. He was a director from December 1993 to November 1994. He
previously served as Project Manager for Canadian International Power Services,
Inc. from 1987 to 1991 in Georgetown, Guyana and in Managua, Nicaragua. Mr.
Dupuis received his Masters of Business Administration degree from the
- ------------------
* Mr. Peterson was the Company's Chief Executive Officer from December 1996
until November 1997, when Mr. McClenachan was elected to that position. Mr.
Peterson continues to be the Chairman of the Board.
31
<PAGE>
University of Western Ontario and his Bachelor of Electrical Engineering degree
from the University of New Brunswick in Canada.
ROLAND C. GIBSON has served as Vice President-Finance of the Company since 1991
and as Assistant Finance Manager of the Company from 1988 to 1990. Prior to
joining the Company in 1988, Mr. Gibson worked as an audit manager for Deloitte,
Haskins & Sells in Buenos Aires, Argentina. Mr. Gibson is a Certified Public
Accountant with a degree from Universidad Nacional de La Plata, Argentina.
ITEM 11. EXECUTIVE COMPENSATION
The information called for by this item is incorporated by reference to the
section captioned "Executive Compensation" in the Company's definitive proxy
statement to be filed with the Commission in connection with the Company's June
4, 1998 Ordinary General Meeting of Shareholders.
ITEM 12. SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT.
The information called for by this item is incorporated by reference to the
sections captioned "Election of Directors - Securities Ownership of Management"
and "Voting Securities and Principal Shareholders" in the Company's definitive
proxy statement to be filed with the Commission in connection with the Company's
June 4, 1998 Ordinary General Meeting of Shareholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information called for by this item is incorporated by reference to the
sections captioned "Election of Directors - Executive Compensation",
"Compensation Committee Interlocks and Insider Participation", "Certain
Transactions" and "Voting Securities and Principal Shareholders" in the
Company's definitive proxy statement to be filed with the Commission in
connection with the Company's June 4, 1998 Ordinary General Meeting of
Shareholders.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K.
<TABLE>
<CAPTION>
REFERENCE FORM 10-K ANNUAL REPORT PAGE
- ----------- ------------------------------- -----------
<S> <C> <C>
(a) (1) Index to Financial Information
Report of Independent F-15
Accountants
Consolidated Balance Sheets at F-16
December 31, 1997 and 1996
</TABLE>
32
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Consolidated Statements of F-17
Income for the years ended
December 31, 1997, 1996 and
1995.
Consolidated Statements of F-18
Changes in Shareholders' Equity
for the years ended December 31,
1997, 1996 and 1995.
Consolidated Statements of F-19
Cash Flows for the years ended
December 31, 1997, 1996 and
1995.
Notes to Consolidated F-20
Financial Statements
</TABLE>
(a) (2) The following exhibits are filed herewith or incorporated by reference:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- -------
<S> <C>
2(a) Stock Purchase Agreement dated December 15, 1995 between the Company
and Iberdrola Investimentos Sociedade Unipessoal L.D.A.
(incorporated by reference to the Company's Form 8-K dated December
28, 1995).
2(b) Purchase Agreement, dated as of November 13, 1996, by and between
NRGenerating Holdings (No.9) B.V., a wholly-owned subsidiary of NRG
Energy, Inc., and Compania Boliviana de Energia Electrica S.A. -
Bolivian Power Company Limited. (incorporated by reference to the
Company's Form 8-K dated December 19, 1996).
2(c) Form of Stockholders Agreement, dated as of December 13, 1996, by
and between NRG Energy, Inc. and Nordic Power Invest AB.
(incorporated by reference to the Company's Form 8-K dated December
19, 1996).
3(a) Memorandum and Articles of Association of the Company (incorporated
by reference to Exhibit 6.1 in Registration Statement No.2-59195 on
Form S-14, filed with the Commission on June 3, 1977).
3(b)4* Amended and Restated Articles of Association of the Company.
10(a)(i) Supreme Resolution dated May 4, 1990 (revised English
translation) (incorporated by reference to the Company's Form 10-Q
for the quarter ended June 30, 1990)
10(a)(ii) Supreme Resolution No.215064 dated December 30, 1994 (Spanish and
English translation) (incorporated by reference to the Company's
Form 10-K for the year ended December 31, 1994).
</TABLE>
33
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
10(a)(iii) Supreme Resolution No.215087 dated February 2, 1995 (Spanish and
English translation) (incorporated by reference to the Company's
Form 10-K for the year ended December 31, 1994).
10(a)(iv) Supreme Resolution No.215474 dated March 17, 1995 (Spanish and
English translation) (incorporated by reference to the Company's
Form 10-K for the year ended December 31, 1994).
10(a)(v) DINE Resolution dated June 1, 1990 regarding Third-Party Rights
in Company's area of Concession (English translation)
(incorporated by reference to the Company's Form 10-Q for the
quarter ended June 30, 1990).
10(a)(vi) Accord dated June 21, 1990 between DINE and the Company regarding
adjustment of rates (or tariffs) (English translation)
(incorporated by reference to the Company's Form 10-Q for the
quarter ended June 30, 1990).
10(a)(vii) Contract for the Supply of Electric Energy dated June 6, 1995
between the Company and Electricidad de La Paz S.A. and DINE
resolution No.030/95 dated June 12, 1995 approving the agreement
(Spanish and English language translation) (incorporated by
reference to the Company's Form 10-Q for the quarter ended June
30, 1995).
10(a)(viii) Contract for the Supply of Electricity, dated February 26, 1996
between the Company and Empresa de Luz y Fuerza Electrica de
Oruro S.A. (Spanish and English language translation)
(incorporated by reference to the Company's Form 10-Q for the
quarter ended March 31, 1996).
10(b)(i)** Employment Agreement dated as of October 7, 1996 between the
Company and Roger J. Dupuis (incorporated by reference to the
Company's Form 10-K for the year ended December 31, 1996).
10(b)(ii)** Employment Agreement dated as of October 7, 1996 between the
Company and Roland C. Gibson (incorporated by reference to the
Company's Form 10-K for the year ended December 31, 1996).
10(b)(iii)** 1994 Stock Option Plan (incorporated by reference to the
Company's definitive proxy statement dated April 1, 1994).
10(c) Loan Agreement (No.207) dated March 16, 1995, between the Company
and BHN Multibanco (Spanish and English translation)
(incorporated by reference to the Company's Form 10-K for the
year ended December 31, 1994).
10(d) Interconnection Agreement dated June 21, 1990 between Empresa
Nacional de Electricidad ("ENDE") and the Company (incorporated
by reference to the Company's Form 10-Q for the quarter ended
June 30, 1990).
10(e) Form of Credit Agreement dated as of August 1, 1997, by and
between Compania Boliviana de Energia Electrica S.A. - Bolivian
Power Company Limited and Corporacion Andina de Fomento
(incorporated by reference to the Company's Form 10-Q for the
quarter ended June 30, 1997).
</TABLE>
34
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
10(f) Form of Shareholder Maintenance Agreement dated as of August 1,
1997, by and among NRG Energy, Inc., Nordic Power Invest AB and
Corporacion Andina de Fomento (incorporated by reference to the
Company's Form 10-Q for the quarter ended June 30, 1997).
10(g) Form of Pledge Agreement dated as of August 1, 1997, by and among
Compania Boliviana de Energia Electrica S.A. - Bolivian Power Company
Limited, Corporacion Andina de Fomento and United States Trust
Company of New York (incorporated by reference to the Company's Form
10-Q for the quarter ended June 30, 1997).
10(h) Form of Subsidiary Guaranty dated as of August 1, 1997, by and among
Compania Boliviana de Energia Electrica S.A. - Bolivian Power Company
Limited, Corporacion Andina de Fomento and all Restricted
Subsidiaries of the Company made a party to the Agreement by
execution of a Joinder to Guaranty in the form attached thereto
(incorporated by reference to the Company's Form 10-Q for the
quarter ended June 30, 1997).
10(i) Form of Indenture dated as of August 1, 1997, by and between
Compania Boliviana de Energia Electrica S.A. - Bolivian Power Company
Limited and Corporacion Andina de Fomento (incorporated by reference
to the Company's Form 10-Q for the quarter ended June 30, 1997).
</TABLE>
* Filed with this report
** Required to be identified as an exhibit by Item 14(a)(3) of Form 10-K.
(b) Reports on Form 8-K
The Company filed no Reports on Form 8-K during the fourth quarter of 1997.
(c) Exhibits Required by Item 601 of Regulation S-K
The exhibits to this report follow "Signatures".
35
<PAGE>
SELECTED FINANCIAL AND OPERATING DATA
- -------------------------------------
<TABLE>
<CAPTION>
FINANCIAL HIGHLIGHTS
(US Dollars in thousands, except per share data)
YEARS ENDED DECEMBER 31
--------------------------------------------------------------------------------
1997 1996(*) 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Total Assets $198,394 $153,761 $148,535 $125,918 $118,617
Gross Plant Additions 38,738 26,438 33,464 7,252 8,207
Operating Revenue 21,676 20,009 52,874 45,969 43,973
Net Income 6,195 8,434 7,963 7,712 7,155
Net Income Per Common Share (*) 1.47 2.01 1.90 1.84 2.34
Book Value Per Common Share 18.15 29.96 27.66 26.20 25.25
Cash Dividends Per Common Share 13.32 0.80 0.76 0.72 0.68
(*) average common shares outstanding: 4,202,575 in 1997, 4,201,602 in 1996, 4,198,983 in
1995 and 1994 and 3,053,150 in 1993.
</TABLE>
<TABLE>
<CAPTION>
OPERATING HIGHLIGHTS
YEARS ENDED DECEMBER 31
----------------------------------------------------------------------------
1997 1996(*) 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Customers at End of Year 168 151 259,937 244,611 229,780
kWh Sales (in thousands) 834,488 861,345 910,315 888,539 882,045
Peak Demand-kW - - 224,249 214,118 205,900
Demand Purchased from ENDE-kW - 18,161 90,439 87,508 80,050
kWh Purchased (in thousands) - 22,907 264,180 245,742 184,967
kWh Generated 853,636 864,792 773,059 771,543 834,314
(*) In 1996 the Company sold its distribution subsidiaries and therefore no longer supplies
electricity directly to retail consumers. The Company is now primarily a wholesale
electricity supplier to two former subsidiaries, ELECTROPAZ and ELF, who distribute
electricity principally in the cities of La Paz and Oruro, respectively.
See Item I - "Business - Restructuring of Bolivian Electricity Industry."
</TABLE>
F-1
<PAGE>
<TABLE>
<CAPTION>
FIVE YEAR HISTORICAL OPERATING REVIEW
LA PAZ DIVISION
YEARS ENDED DECEMBER 31
----------------------------------------------------------------------------
1997 1996(*) 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Customers at End of Year:
Residential 191,126 179,979 169,503
Commercial 32,146 29,484 26,416
Industrial 681 664 663
Public Lighting, Interconnection
and others 11 11 10
ELECTROPAZ 1 1
Zongo Valley customers 42 36
Spot Market 1 1
----------------------------------------------------------------------------
TOTAL 44 38 223,964 210,138 196,592
============================================================================
kWh Sales (in thousands):
Residential 352,273 345,823 330,656
Commercial 161,733 150,513 139,896
Industrial 145,874 134,417 124,344
Others 24,356 23,127 24,964
Public Lighting 31,012 29,207 26,362
Interconnection 53,998 64,872 80,103
ELECTROPAZ 667,958 653,160
Zongo Valley customers 3,965 1,734
Spot Market 53,222 67,113
----------------------------------------------------------------------------
TOTAL 725,145 722,007 769,246 747,959 726,325
============================================================================
Operating Revenue (US$ in thousands):
Residential $17,595.3 $15,456.1 $14,250.8
Commercial 15,387.1 13,099.9 12,017.6
Industrial 6,965.8 5,993.7 5,507.7
Others 2,210.3 1,737.7 1,905.1
Public Lighting 1,612.0 1,432.6 1,238.6
Interconnection 664.1 688.2 873.9
ELECTROPAZ $17,031.2 $13,554.6
Zongo valley customers 373.7 145.5
Spot Market 760.0 1,064.0
Miscellaneous 374.3 369.1
----------------------------------------------------------------------------
TOTAL $18,539.2 $15,133.2 $44,434.6 $38,408.2 $35,793.7
============================================================================
Peak Demand - Kw 185,500 175,000 169,000
Demand Purchased - kW 70,690 67,390 59,160
kWh Purchased (in thousands) 218,082 195,770 134,379
Generation Peak - kW 142,800 127,520
</TABLE>
(*) In January 1996 the Company sold Electropaz and its La Paz Division
distribution assets and, as from that date, no longer supplies electricity
to retail consumers.
The Company is now primarily a wholesale supplier to Electropaz, the retain
distributor in the cities of La Paz and El Alto. See Item 1 - "Business -
Restructuring of Bolivian Electricity Industry".
F-2
<PAGE>
<TABLE>
<CAPTION>
FIVE YEAR HISTORICAL OPERATING REVIEW
ORURO DIVISION
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------
1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C>
Customers at End of Year:
Comibol + 6 6 7
Other Mining & Industrial 33 29 30
Small Towns & Others 16 15 14
Rural Customers 1,511 1,394 1,393
ELF (*) 34,407 33,029 31,744
ELF-Retail distributor (*) 1 1
Miguillas Valley customers 122 111
Spot Market 1 1
----------------------------------------------------------------------
Total 124 113 35,973 34,473 33,188
======================================================================
kWh Sales (in thousands):
Comibol(+) 30,663 32,853 43,350
Other Mining & Industrial 17,550 16,191 21,760
Small Towns & Others 9,666 9,574 10,482
Rural Customers 901 898 659
Interconnection 3,073 4,040 7,394
ELF(*) 79,216 77,024 73,074
ELF - Retail distributor(*) 103,499 106,649
Miguillas Valley customers 59 1,076
Spot Market 5,785 2,955
Customers transferred to ELF 28,658
----------------------------------------------------------------------
Total 109,343 139,338 141,069 140,580 155,719
======================================================================
Operating Revenue (US$ in thousands):
Comibol *+ $1,727.4 $1,711.3 $2,405.8
Other Mining & Industrial 344.7 249.7 492.8
Small Towns & Others 1,228.9 989.8 1,160.5
Rural Customers 42.1 38.1 23.6
Interconnection 43.3 35.2
ELF (*) 4,836.4 4,530.0 4,020.3
ELF - Retail distributor (*) $3,040.4 $3,169.5
Miguillas Valley customers 5.0 63.7
Spot Market 90.9 27.7
Customers transferred to ELF 1,615.4
----------------------------------------------------------------------
TOTAL $3,136.3 $4,876.3 $8,222.8 $7,554.1 $8,103.0
======================================================================
Peak Demand - Kw 61,203 61,086 61,454
Demand Purchased - Kw 19,749 29,118 20,890
kWh Purchased (in thousands) 22,907 46,098 49,972 50,587
Generation Peak - Kw 18,700 18,600
</TABLE>
+ Comibol (Corporacion Minera de Bolivia) is a Bolivian Government owned
mining entity.
(*) ELF is the Company's former 95% owned subsidiary engaged in the
distribution of electricity in the city of Oruro. In January and July 1996
respectively, the Company sold ELF and its Oruro Division Distribution
assets. The Oruro Division Distribution customers were also transferred in
July 1996. As from that date, the Company no longer supplies electricity to
retail customers and is primarily a wholesale supplier to ELF. See Item 1 -
"Business- Restructuring of Bolivian Electricity Industry."
F-3
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Consolidated
Financial Statements and Notes thereto which are included elsewhere in this Form
10-K Annual Report.
DECEMBER 1996 CHANGE OF CONTROL
In December 1996, NRG Energy, Inc. and Nordic Power Invest AB, together through
Tosli Investments B.V., purchased 96.6% of the Company's outstanding common
stock. The Company incurred expenses amounting to $10.3 million directly related
to the sale. $6.4 million of these expenses are attributable to employee stock
options (see STOCK OPTIONS COMPENSATION) and $3.9 million of these expenses are
attributable to legal, finance, printing and other costs. The former principal
shareholder of the Company, Liberty Power/Cogentrix and the previous management
of the Company, authorized and approved all expenditures related to this
transaction. The $10.3 million of expenses are unique to the Change of Control
transaction and are not recurring expenses. See Item 1 - "Business - Change of
Control".
GENERAL
The Company operates its electric generation business under a 40-year concession
(the "Concession") from the Bolivian Government which was granted in 1990 and
subsequently amended in December 1994 and March 1995. See Item 1 - "Business -
Concession" for a description of the pertinent provisions of the Concession.
In December 1994, a new Electricity Law was enacted which required the Company
to separate its generation, transmission and distribution activities. In order
to comply with the new Electricity Law the Company formed a new subsidiary,
Electricidad de La Paz S.A. ("Electropaz"), which held the Company's La Paz
Division distribution assets and which was divested, together with two other
Company subsidiaries, Empresa de Luz y Fuerza Electrica de Oruro S.A. ("ELF")
and Compania Administradora de Empresas ("CADE"), on January 11, 1996. See
"Sale of Distribution Subsidiaries" below.
On February 2, 1995 a 40-year distribution concession (the "Distribution
Concession") for the cities La Paz and El Alto and surrounding areas was granted
to the Company by a Supreme Resolution of the Bolivian Government. Pursuant to
the provisions of the Distribution Concession, the Company transferred the
Distribution Concession to Electropaz in December 1995.
The Company has entered into an Electricity Supply Contract with Electropaz
dated June 6, 1995 which as amended, provides that the Company shall sell, and
Electropaz shall purchase, all of the electricity that the Company can supply,
up to the maximum amount of the electricity required by Electropaz to supply the
requirements of its concession area. The Electricity Supply Contract expires in
December, 2008.
F-4
<PAGE>
The Company also sells power on a wholesale basis to ELF, which distributes
electricity to the city of Oruro and surrounding areas. On January 10, 1996,
the then Government regulatory board, Direccion Nacional de Electricidad
("DINE"), granted ELF a 40-year concession for the distribution of electricity
in the City of Oruro. On February 26, 1996 the Company and ELF entered into a
long-term Electricity Supply Contract on terms substantially similar to the
Electricity Supply Contract between the Company and Electropaz.
SALE OF DISTRIBUTION SUBSIDIARIES
In order to comply with the new Electricity Law, on December 15, 1995 the
Company entered into a Stock Purchase Agreement (the "Agreement") with Iberdrola
Investimentos Sociedade Unipessoal L.D.A., a Portuguese company ("Iberdrola"),
which is a subsidiary of Iberdrola S.A., a Spanish electric utility, providing
for the sale to Iberdrola of three of the Company's subsidiaries - Electropaz,
ELF and CADE - for an aggregate cash price of $65.3 million (the "Purchase
Price"). The closing of the Agreement was held on January 11, 1996.
On the closing date, Iberdrola paid to the Company $57.5 million in cash and
deposited $7.8 million in an escrow account pending the satisfaction of certain
conditions. Of the $7.8 million deposited in escrow, $6 million, $1.4 million
and $0.4 million respectively were released to the Company in February and July
1996 and November 1997 upon resolution of certain outstanding issues.
In accordance with the Agreement an adjustment of $513,000 subsequently was
agreed to between the Company and Iberdrola to reflect changes in the book value
of Electropaz and ELF, resulting in an increase in the Purchase Price from $65.3
million to $65.8 million.
EXPANSION AND MODERNIZATION PROJECTS
Under the terms of the Concession, the Company is obligated to expand its
hydroelectric generating capacity in the Zongo Valley. This expansion consists
of adding generation facilities, modernizing existing facilities and
constructing transmission lines to transmit the increased generation capacity as
required by the Concession (the "Zongo Project"). The Zongo Project is expected
to add approximately 65 MW to the Company's generating capacity and is expected
to be completed in mid 1999.
Under the terms of the Concession, the Company has the right to expand its
facilities in the Miguillas Basin (the "Miguillas Expansion") which, if
completed, would add over 200 MW of generation capacity. In accordance with its
obligations under the Concession, in late 1995 the Company presented to the
Government a technical-economic feasibility study for the Miguillas Expansion.
The Company has invited certain selected contractors to submit their bids for an
engineering, procurement and construction contract by May 1998. Based on the
terms of these bids and on the availability of long-term debt and equity sources
to provide financing, the Company will make a decision as to whether or not it
should proceed with the Miguillas Expansion. See Item 1 - "Business - Expansion
and Modernization Projects".
FINANCING EXPANSION AND MODERNIZATION PROJECTS
The Company estimates that from 1998 through 1999 approximately $44 million be
required for completion of the Zongo Project and for the Company's regular
capital expenditure program. The
F-5
<PAGE>
Company estimates that during the next two years it will be required to spend
approximately $28 million to complete the Zongo Project generation facilities,
$9 million to complete the Zongo Project transmission facilities and
approximately $7 million of its regular capital expenditure program. Based on
revised and updated projections, which include the settlement of certain claims
from contractors and redesign of civil works, the total cost of the Zongo
Project, including expenditures through December 31, 1997 of $76 million, is
estimated to be $113 million ($98 million for generation facilities and $15
million for transmission facilities).
The Company intends to fund the Zongo Project and its regular capital
expenditure program with borrowings from financial institutions or possible
equity financings, equipment financing, the proceeds it received from the sale
of Electropaz, ELF and CADE, and from internal cash generation. At December
31, 1997, $26.7 million of loan proceeds under the CAF Agreement was available
for this purpose. During 1997 and 1996, the Company expended $39 million and
$25.5 million, respectively, on the Zongo Project. See "Liquidity and Capital
Resources" below. The capital requirements discussed above do not include
possible funding requirements of the Miguillas Project and the Puerto Suarez
Project referred to above.
REGULATION AND RATE SETTING
The Electricity Law, and the Sectorial Regulatory Law, both enacted in 1994,
created a new Government agency, known as the Superintendency of Electricity,
which is responsible for performing the regulatory functions previously
performed by the Government regulatory board, Direccion Nacional de
Electricidad.
The Company's Concession provides that until December 2001 the Company shall be
entitled to the rate of return established under the old Electricity Code.
Thereafter, until December 2008 the Company shall be entitled to the rate of
return provided under the old Electricity Code or, at its option, to price and
sell its generated power under the marginal cost pricing system established
under the new Electricity Law. Thereafter, the Company shall be subject to the
marginal cost pricing system established under the new Electricity Law. The new
Electricity Law provides that rates will be determined on an unregulated,
competitive marginal cost basis, similar to systems operating in Argentina,
Chile and the United Kingdom, rather than the present regulated rate of return
basis.
Since 1990, the Company's rates have been set in accordance with the old
Electricity Code, which provides for a 9% rate of return on the Company's Rate
Base (approximately the depreciated book value of the Company's utility plant
and equipment plus an allowance for materials not exceeding 3% of tangible
assets and an allowance for working capital of 12.5% of gross revenues) and for
adjustments in the rates to compensate for shortfalls or excesses in the rate of
return in prior years.
Until the Company's distribution activities were divested in January 1996, the
Company applied for periodic adjustments in its distribution rates in order to
provide for an annual return of 9% on its Rate Base. In 1995 the Company was
granted a 4.6% increase in its distribution rates which enabled the Company to
earn its 9% return on its Rate Base in 1995. In December 1995, when it was
apparent that the Company would no longer be engaged in the distribution of
electricity, the Company applied for new generation rates and in February 1996
the Superintendency of Electricity granted this request, effective
retroactively to January 1, 1996. Based on such rates, the Company's return in
1996 was 9.15%.
F-6
<PAGE>
The Company subsequently held discussions with the Superintendency of
Electricity with a view to establishing the criteria which will govern the
Company's future requests for rate adjustments. In this connection, on October
30, 1996 the Company presented to the Superintendency of Electricity the
Company's analysis of what likely will be the required rate adjustments during
the period of 1996 through 2001.
On February 5, 1997, the Superintendency of Electricity issued a Resolution
granting the Company an 18.2% rate increase as from February 1, 1997, 21.3% in
1999 and 19.5% in 2000. The Resolution also provides for annual reviews of
rates in order to correct any shortfall or excess in the Company's actual rate
of return during the period 1997 through 2001. The increase granted by the
Superintendency of Electricity on February 5, 1997 enabled the Company to earn a
9.5% return on its Rate Base in 1997, although this calculation has not yet been
agreed to with the Superintendency of Electricity.
In addition, pursuant to the annual reviews of rates called for by the
Resolution issued by the Superintendency of Electricity on February 5, 1997, on
October 31, 1997 the Company presented to the Superintendency of Electricity a
rate case study for the period of 1998 through 2002. This rate case study
requests rate increases of 20.9% in 1998, 20.7% in 1999 and 2.8% in 2002, with
no increases required in 2000 and 2001. The Superintendency of Electricity has
not ruled on the Company's rate increase request. On January 30, 1998 the
Superintendency of Electricity issued a resolution which maintains the Company's
current rates until March 31, 1998. The Company expects that a resolution will
be issued in the near future, establishing the rates to be applied as from April
1, 1998.
The Company's rates are indexed to the U.S. dollar so that the Company's rates
are automatically adjusted on a monthly basis to reflect changes in the exchange
rate between the Boliviano and the U.S. dollar, thereby providing the Company
with protection from effects of fluctuations in the exchange rate. Although
Bolivia suffered from periods of hyperinflation in prior years, the Government
has been successful in maintaining a relatively low rate of inflation since
1986. While the Company does not anticipate that there will be a period of
hyperinflation in the near future, it should be recognized that in a period of
hyperinflation there can be no assurance that dollar indexing would adequately
protect the Company from severe currency fluctuations. See "The Republic of
Bolivia - Inflation" below.
The Company is entitled to include in its rates an amount equal to the excess of
the rate of interest paid over 6% on any financing approved by the Government.
In approving the CAF Agreement, the Government approved the inclusion of this
excess in the rate base of the interest on only $55.6 million of borrowings
under the CAF Agreement.
STOCK OPTIONS COMPENSATION
A. In December 1996, upon the change in control of the Company - see "Item 1 -
Business - Change of Control" - the Company charged $6.4 million to income in
relation to stock options compensation to Directors, officers and certain key
employees (the "Optionees") of the Company. This charge arose due to the
termination of options granted pursuant to the Company's 1994 stock option plan
and to the termination of the agreement between Liberty Power/Cogentrix Bolivia
Inc. and certain executive officers of the Company.
F-7
<PAGE>
The stock options granted to Optionees pursuant to the Company's 1994 Stock
Option Plan were terminated on December 20, 1996 and the Company paid the
Optionees the amount equal to the excess of the tendered price for the purchase
of the Company's common stock over the exercise price for each share covered by
the options. Total expenditure for the termination of these options amounted to
approximately $1.7 million.
B. In addition, the Company charged $4.7 million to income with respect to
stock options compensation paid to three executive officers of the Company
pursuant to the termination of the agreement by which Liberty Power/Cogentrix
Bolivia Inc., which owned 719,206 shares or 17.1% of the outstanding common
stock of the Company prior to the change of control of the Company, had granted
to three executive officers of the Company (the "Officers") options (the
"Options") to purchase an aggregate of 431,523 of the shares (the "Shares")
owned by Liberty Power/Cogentrix. The Options were granted at the approximate
time Liberty Power/Cogentrix acquired its 17.1% interest in the Company in
November 1994.
The price per share paid by the Officers upon the termination of the Options was
equal to the greater of: (i) $25.00 per share plus 5% per year compounded
annually or (ii) $25.00 per share, plus 100% of the cumulative increase (if any)
in the consolidated shareholders' equity per share of common stock of the
Company determined in accordance with U.S. generally accepted accounting
principles, in each case from the date the Options were granted to the date of
termination.
Since the Options are considered to be variable price options, the beneficiaries
of the Options were officers of the Company and as Liberty Power/Cogentrix owned
more than 10% of the common stock of the Company at the date the Options were
granted, under the provisions of Accounting Principles Board Opinion No. 25,
Accounting for Stock Issued to Employees, the benefits received had to be
recorded as compensation in the Company's Income Statement. Consequently, as
the Options were terminated upon the change of control of the Company, the
accounting provisions for the Options require that the excess, if any, of the
tendered price of the common stock of the Company over the price of the Options
must be recorded by the Company as compensation expense even though there is no
actual cost to the Company. Such excess is recognized as a charge to income with
a corresponding credit to Additional Capital within the Shareholders' Equity
section of the Consolidated Balance Sheet. This charge had no effect on the
Company's cash flow and will not be recurring in the future.
C. On February 21, 1997, the Company granted 13,500 new options to management
under the existing 1994 option plan at US$43 a share. These options vest over
five years.
On November 25, 1997, the Company granted 70,000 new options to the newly
elected Chief Executive Officer. Exercising these options is contingent on the
occurrence of a number of events (building of new plants, achievement of stock
price levels, etc.). These events are principally unrelated except that none of
the options are exercisable until the Company has a successful public offering.
The relevant data regarding these options is as follows:
<TABLE>
<CAPTION>
1997
-----------------
<S> <C>
Outstanding at beginning of year
Granted:
Series 1 (February 21, 1997) 13,500
</TABLE>
F-8
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Series 2 (November 25, 1997) 70,000
-----------------
Outstanding at end of year 83,500
=================
Shares available at end of year
for options that may be granted in
subsequent year: 216,500
=================
Range of exercise prices for outstanding options US$ 31.00 - 43.00
Weighted average grant-date exercise price of
options US$ 32.94
Weighted average grant-date estimated market price
of share US$ 32.94
Weighted average grant-date value (difference
between estimated market price and exercise price)
of options granted during the year --
=================
Compensation cost recognized in income for the year
ended December 31, 1997 --
=================
</TABLE>
The Company has calculated the pro forma effects of accounting for the stock
option plan in accordance with SFAS No. 123 on the basis of the fair market
value based accounting method. Had compensation cost for the stock option plan
been determined based on the fair value at the grant date in accordance with the
provisions of SFAS No. 123, the Company's net income and earnings per share
would have been affected as indicated below.
<TABLE>
<CAPTION>
1997
--------
<S> <C>
Net income - as reported 6,195
Net income - pro forma 6,131
Earnings per share - as reported US$ 1.47
Earnings per share - pro forma US$ 1.46
</TABLE>
The fair value of each option grant was estimated on the date of grant using the
Black-Scholes option-pricing model with the following weighted average
assumptions used for grants in 1997: expected dividend yield of 0%, expected
volatility of 0%, annual risk-fee interest rate of 9.5% and expected average
lives of 5 years.
<TABLE>
<CAPTION>
1997
---------
<S> <C>
Weighted average grant-date fair value US$ 12.46
</TABLE>
F-9
<PAGE>
RESULTS OF OPERATIONS
1997 compared with 1996
- -----------------------
Electricity sales in 1997 were 834,488 MWh, an overall decrease of 3.1% when
compared to 1996, because in the first six months of 1996 the Company was still
engaged in the distribution activity in the Oruro division providing service to
its Oruro division customers. Excluding these sales to Oruro customers,
Electricity sales in 1997 were almost the same as in 1996. Revenue in 1997
increased by 8.3% over 1996, but excluding the sales to the Oruro customers the
overall increase in revenue is 17.8%. This is principally due to the rate
increase granted to the Company in February 1997.
The Company's overall hydro generation decreased by 3% in 1997, despite the fact
that both the Tiquimani plant and the new Zongo plant went on line in 1997.
This reduction occurred in the second half of 1997, and is attributable to the
Company's plans - and recommendations from governmental authorities - to
increase water storage, and consequently restrict production, in order to face
what is expected to be a very dry year in 1998.
Operating expenses in 1997 decreased by 33% from 1996 principally due to the
fact that in 1996 the Company charged $6.4 million to income in relation to
stock options compensation to certain officers of the Company. This charge was
a non-recurring expense. In addition, the Company no longer purchases bulk power
to supply retail customers in the Oruro Division. As from July 1, 1996 the
Company transferred its retail customers in the Oruro Division to its former
subsidiary ELF, and therefore discontinued its purchase of bulk power in the
Oruro Division. In the first six months of 1996 the cost of power purchased
amounted to $1.5 million. The depreciation charge has increased by 10.3% due to
the addition of new facilities to the rate base during 1997.
Due to the reasons above mentioned, operating income in 1997 was equivalent to
26.5% of operating revenue. In 1996 the Company's operating loss compared to
operating revenue was equivalent to 20.8%
Interest capitalized during construction increased in 1997 due to the continuous
increase of the balance of work in progress (Zongo expansion). Interest is
currently being capitalized and allocated to work in progress at rates permitted
in the Bolivian Electricity Code.
Interest income decreased in 1997 as the balance of temporary investments
decreased principally due to expenditure for the Zongo expansion, special
dividends and other extraordinary expenses. In addition, in 1996 the Company
charged $3.9 million to income in relation to expenses relating to the change of
control of the Company. This charge was a non-recurring expense.
The financial statements at December 31, 1996 include a gain of $16.3 million on
the sale of the Company's former subsidiaries Electropaz, ELF and CADE. The
effect on earnings per common share is $3.17.
The Company's statutory income tax is 34.375% which is comprised of an income
tax of 25% relating to branch profits and a 12.5% withholding tax relating to
net branch profits after the 25% income tax. The Company is permitted to
recover such taxes through the rates it charges its consumers. The effective
tax rate of 28.8% in 1997 differs from the above-mentioned statutory rate
because the Company has income and expenses outside Bolivia which are not
subject to or deductible against Bolivian taxes.
F-10
<PAGE>
Net income in 1997 was $6.2 million or $1.47 per Common Share as compared to
$8.4 million of 2.01 per Common Share in 1996.
1996 COMPARED WITH 1995
- -----------------------
As from January 1, 1996 the Company is no longer engaged in distribution
activities in the cities of La Paz, El Alto and Oruro and the distribution
customers and the associated assets in the Oruro division were transferred to
the Company's former subsidiary ELF on July 1, 1996.
The Company incurred an operating loss in 1996 principally due to a non-
recurring $6.4 million charge relating to stock options compensation to
directors, officers and certain employees of the Company. Absent these charges,
in 1996 the Company would have had operating income amounting to approximately
$2.3 million, which is equivalent to 11% of operating revenue. In both 1995 and
1994, operating income was equivalent to 13% of operating revenue.
The decrease - in absolute amounts - of the Company's operating results in 1996
when compared to prior years is also due to the reduction in value of the
Company's rate base following the sale of the Company's distribution
subsidiaries. The Company anticipates that the absolute amounts of its current
operating results will not increase until the Company completes its Expansion
and Modernization Projects with a consequent increase in the Company's rate
base.
The Company's sales of electricity as a generator in 1996 were 861,345 MWh, as
compared to sales to retail consumers of 910,315 MWh in 1995. (Sales to retail
consumers in 1995 included purchases of bulk power from the interconnected
system and also were affected by losses in the distribution system -
approximately 11% of total electricity generated or purchased). The generation
rate which the Company earned on electricity delivered for 1996 was $.0232 per
Kwh, resulting in operating revenue of $20 million. In 1995 the Company earned a
distribution rate of $.0578 per Kwh on its electricity delivered, resulting in
operating revenues of $52.6 million.
Operating expenses in 1996 decreased by 47% from 1995 principally due to the
fact that, as from January 1, 1996, the Company no longer purchases bulk power
to supply retail customers in the La Paz Division. As from July 1, 1996 the
Company transferred its retail customers in the Oruro Division to its former
subsidiary ELF, and therefore also discontinued its purchases of bulk power in
the Oruro Division. In 1995 the cost of power purchased amounted to $18.8
million as compared to $1.5 million in 1996. In addition, the Company's payroll
expenses decreased by approximately $4.5 million or 54.2%, as the Company's
workforce, upon the sale of its distribution subsidiaries, decreased from 952 to
333 employees as from January 1, 1996 and to 287 employees as from July 1, 1996.
The Company's depreciation charge also decreased by $1.9 million or 38.5% as a
result of the sale of its distribution subsidiaries.
As explained above, in 1996 the Company charged $6.4 million to income as stock
options compensation to officers, directors and employees of the Company. In
1995 such charge amounted to $840,000.
Interest and other income increased from $3.1 million to $4.6 million in 1996
when compared to 1995, principally due to the increase in the balance of
temporary investments. This increase related to the proceeds received from the
sale of the Company's distribution subsidiaries.
F-11
<PAGE>
The financial statements at December 31, 1996 include a gain of $16.3 million on
the sale of the Company's former subsidiaries Electropaz, ELF and CADE. $57.5
million, $6 million and $1.4 million were received as proceeds from the sale
transaction in January, February and July 1996, respectively. A further
$513,000 were received as a post-closing adjustment in December 1996. $400,000
were still held in escrow pending the approval of certain modifications to the
ELF concession.
The Company's statutory tax rate is 34.375% which is comprised of an income tax
of 25% relating to branch profits and a 12.5% withholding tax relating to net
branch profits after the 25% income tax. The Company is permitted to recover
such taxes through the rates it charges its consumers. However, the Company's
effective tax rate is 29.3% because the Company has income and expenses outside
Bolivia which are not subject to or deductible against Bolivian tax and because,
as permitted by Bolivian tax legislation, the 12.5% withholding tax has not been
calculated on the gain on the sale of the distribution subsidiaries. This gain
is being reinvested in Bolivia and consequently the withholding tax does not
apply.
As a result of the change of control in the Company, see Item 1 - "Business -
Change of Control" above - in 1996, the Company expensed $3.9 million relating
to investment banker and legal fees, as well as printing and other miscellaneous
expenses. These expenses have been disclosed as a non-operational and non-
recurring expense in the income statement.
LIQUIDITY AND CAPITAL RESOURCES
During 1997, 1996 and 1995, the Company incurred capital expenditures of $38.7
million, $26.5 million and $33.35 million, respectively. In 1997 and 1996 these
expenditures related primarily to contracts for purchase of equipment and civil
works related to the Zongo Project and in 1995 to expenditure relating to the
Zongo Project and to the installation of the El Alto gas turbines. The Company
funded the expenditures from internally generated funds and from proceeds
received from the sale of its distribution subsidiaries, as explained above. In
1995 expenditures were financed from internally generated funds and from a loan
from BHN Multibanco.
At December 31, 1997 the Company had purchase commitments with suppliers for the
purchase of equipment for the Zongo Project and its routine capital expenditure
amounting to approximately $4.7 million. The Company has sufficient liquid
assets to meet its purchase commitments as well as its other current operating
obligations and to perform necessary maintenance of its facilities.
The Company paid a special dividend of $5 per share (an aggregate of
$21,012,875) in January 1997 and $8.32 per share (an aggregate of $34,965,424)
in January 1998. The Company has no present plan to pay any additional
dividends.
On August 13, 1997 the Company entered into the CAF Agreement pursuant to which
the Company has borrowed $61,700,000. The Company does not expect to borrow any
additional amounts under the CAF Agreement and if it elected to do so, it would
be required to prepay a corresponding amount of other indebtedness currently
outstanding.
Under the Credit Agreement, the Company is now prohibited from declaring or
paying any dividend or making any distribution on its share capital or
purchasing, redeeming or otherwise acquiring any shares of capital stock of the
Company or any option over the same, unless (i) immediately prior to
F-12
<PAGE>
declaring and paying such dividend or distribution the Company is in compliance
with all material obligations under the loan documents, (ii) after making such
payment or distribution, the Company is in compliance with certain financial
ratios described below, (iii) the Debt Service Coverage Ratio (as defined in the
CAF Agreement) for the four fiscal quarters most recently ended is not less than
1.25/1 and (iv) a default or event of default has not occurred and is not
continuing, provided that the Company may, at any time that no default or event
of default has occurred and is continuing, declare or pay dividends to the
extent of the Unrestricted Dividend Balance (as defined in the CAF Agreement).
The CAF Agreement imposes on the Company the following obligations, among
others: (1) not to allow the Leverage Ratio (as defined in the CAF Agreement)
to exceed 0.60/1; (2) to maintain the Tangible Net Worth (as defined in the CAF
Agreement) of at least $65 million or, except as may result from payment of the
special dividend paid in January 1998, allow a cumulative reduction of Tangible
Net Worth (as defined in the CAF Agreement) in excess of 15% over any period of
four consecutive fiscal quarters; (3) to maintain a Current Ratio (as defined in
the CAF Agreement) of at least 1.00/1; and (4) not to allow the Collateral Value
Ratio (as defined in the CAF Agreement) to fall below 1.25/1 at any time. See
Item 1 "Business--CAF Agreement."
In January 1996, the Company received $57.5 million of the aggregate Purchase
Price of $65.3 million of the Company's three subsidiaries, Electropaz, ELF and
CADE. See "Sale of Distribution Subsidiaries" above. The balance of the
Purchase Price, $7.8 million, was deposited in an escrow account pending the
satisfaction of certain conditions. In February and July 1996 and November 1997,
$6 million, $1.4 million and $0.4 million, respectively, of the amount deposited
in escrow were released to the Company. Subsequently, the Company and Iberdrola
agreed to an additional $513,000 as an adjustment to the purchase price which
was paid to the Company in December 1996.
The Company estimates that from 1998 through 1999 approximately $44 million will
be required for completion of the Zongo Project and the Company's regular
capital expenditure program. The Company estimates that during the next two
years it will be required to spend approximately $28 million to complete the
Zongo Project generation facilities, $9 million to complete the Zongo Project
transmission facilities and approximately $7 million on its regular capital
expenditure program. The total cost of the Zongo Project, including
expenditures through December 31, 1997 of $ 76 million, is estimated to be $113
million ($98 million for generation facilities and $15 million for transmission
facilities).
The Company intends to fund the Zongo Project and its regular capital
expenditure program with the borrowings from CAF, possible equity financings,
equipment financing, the proceeds it received from the sale of Electropaz, ELF
and CADE, and from internal cash generation. At December 31, 1997, $26.7
million of loan proceeds under the CAF Agreement was available for this purpose.
During 1997 and 1996, the Company expended $39 and $25.5 million, respectively,
on the Zongo Project.
In order to update its data processing facilities, the Company is currently in
the process of acquiring a software package which will satisfy the Company's
current information requirements and which render such facilities ready for the
year 2000. The Company believes that the change of the century issue will be
adequately addressed and that it will not have any significant impact on the
Company's financial condition or results of operation.
F-13
<PAGE>
EFFECT OF INFLATION
Bolivia has suffered in the past from hyperinflation. However, since 1987 the
Bolivian government has been successful in containing inflation and, therefore,
the Company believes that inflation will not have a material adverse effect on
results of operations in the near future. The inflation rate was 6.7%, 7.6%,
12.6% in 1997, 1996 and 1995, respectively. The effect of inflation and
currency devaluation on the Company's results is mitigated by indexing the
Company's rates to the U.S. dollar so that the Company's rates are automatically
adjusted on a monthly basis to reflect changes in the exchange rate between the
Bolivian currency and the U.S. dollar.
F-14
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
TO THE BOARD OF DIRECTORS AND SHAREHOLDERS
COMPANIA BOLIVIANA DE ENERGIA ELECTRICA S.A.
BOLIVIAN POWER COMPANY LIMITED -
We have audited the accompanying consolidated financial statements of
Compania de Energia Electrica S.A. Bolivian Power Company Limited and
its subsidiaries as of December 31, 1997 and 1996, and the related
consolidated statements of income of cash flows and of shareholders'
equity for each of the three years in the period ended December 31, 1997
appearing on pages . ... through pages . ..... These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements
based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that
we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements. An audit also
includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements audited by us,
appearing on pages ..... through ......., present fairly, in all
material respects, the financial position of Compania Boliviana de
Energia Electrica S.A. - Bolivian Power Company Limited and its
subsidiaries at December 31, 1997 and 1996, and the results of their
operations and their cash flows for each of the three years in the
period ended December 31, 1997, in conformity with accounting principles
generally accepted in the United States of America.
La Paz, Bolivia
February 13, 1998
F-15
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED BALANCE SHEETS
(US DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
December 31
----------------------------------------------
1997 1996
-------- --------
A S S E T S
----------------
<S> <C> <C>
Utility Plant
In service
Production 85,329 60,082
Transmission 10,833 9,328
Construction work in progress 54,466 41,644
General Property 5,434 4,893
-------------------- --------------------
156,062 115,947
Less accumulated depreciation 39,750 36,770
-------------------- --------------------
Net utility plant 116,312 79,177
-------------------- --------------------
Current assets
Cash and cash equivalents 1,453 3,024
Temporary investments at fair market value
(includes restricted collateral deposits
of $3,410 in 1997 and $10,435 in 1996) 66,227 57,028
Accounts receivable, net 7,489 7,471
Materials and supplies 3,004 3,979
Prepaid expenses 1,003 1,048
-------------------- --------------------
Total Current Assets 79,176 72,550
-------------------- --------------------
Other assets 2,906 2,034
-------------------- --------------------
Total Assets $198,394 $153,761
==================== ====================
SHAREHOLDERS' EQUITY AND LIABILITIES
------------------------------------
Shareholders' equity
Common shares, without par value
(13,066,803 authorized, 4,202,575
issued and outstanding in 1997 and
4,202,567 in 1996) $ 55,247 $ 55,247
Additional capital 14,493 14,493
Unrealized loss on temporary investments (14) (173)
Earnings reinvested 6,557 56,340
-------------------- --------------------
Total Shareholders' Equity 76,283 125,907
-------------------- --------------------
Long-term debt 70,964 11,910
Provision for severance indemnities 3,649 3,126
-------------------- --------------------
74,613 15,036
-------------------- --------------------
Current liabilities
Accounts payable 6,058 5,851
Current portion of long term-debt 2,647 1,323
Dividends payable 34,965 -
Other liabilities
Taxes on income 2,269 4,943
Other taxes 1,361 473
Other 198 228
-------------------- --------------------
Total Current Liabilities 47,498 12,818
-------------------- --------------------
Contingencies and commitments - -
-------------------- --------------------
Total Shareholders' Equity and Liabilities $198,394 $153,761
==================== ====================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
F-16
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF INCOME
(US DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATE)
YEARS ENDED DECEMBER 31
--------------------------------------------------------------
1997 1996 1995
------------------ ------------------ ------------------
<S> <C> <C> <C>
Operating revenue $ 21,676 $ 20,009 $ 52,874
------------------ ------------------ -------------------
Operating expenses
Operations 10,136 12,342 34,036
Maintenance 1,716 1,603 4,207
Depreciation 3,306 2,998 4,878
Taxes, other than income taxes 783 788 1,984
Stock options compensation - 6,437 840
------------------ ------------------ -------------------
Total operating expenses 15,941 24,168 45,945
------------------ ------------------ -------------------
Operating income (loss) 5,735 (4,159) 6,929
------------------ ------------------ -------------------
Sale of distribution subsidiaries - 16,273 -
Interest capitalized 2,808 1,554 855
Other, principally interest income 1,733 4,598 3,112
Expenses relating to change of control
of the Company - (3,918) -
------------------ ------------------ -------------------
Total other income 4,541 18,507 3,967
------------------ ------------------ -------------------
Income before interest charges
and income taxes 10,276 14,348 10,896
Interest charges 1,577 1,462 818
------------------ ------------------ -------------------
Income before taxes 8,699 12,886 10,078
Income tax 2,504 4,452 2,115
------------------ ------------------ -------------------
Net income $ 6,195 $ 8,434 $ 7,963
================== ================== ===================
Average common shares outstanding 4,202,575 4,201,602 4,198,983
================== ================== ===================
Earnings per common share $1.47 $2.01 $1.90
================== ================== ===================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
F-17
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(US DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
Unrealized
loss on Total
Common Additional Earnings Temporary Shareholders
Shares Capital Reinvested Investments Equity
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
BALANCE DECEMBER 31, 1995 $55,237 $ 8,965 $ 46,495 $ (700) $ 109,997
Net income for year - - 7,963 - 7,963
Dividends paid ($ 0.76 per share) - - (3,191) - (3,191)
Unrealized gain on temporary
investments - - - 551 551
Stock options compensation - 840 - - 840
- ---------------------------------------------------------------------------------------------------------------------------
BALANCE DECEMBER 31, 1996 $55,237 $ 9,805 $ 51,267 $ (149) $ 116,160
Net income for year - - 8,434 - 8,434
Increase in share capital 10 - - - 10
Dividends paid ($ 0.80 per share) - - (3,361) - (3,361)
Unrealized loss on temporary
investments - - - (24) (24)
Stock options compensation - 4,688 - - 4,688
- ---------------------------------------------------------------------------------------------------------------------------
BALANCE DECEMBER 31, 1997 $55,247 $ 14,493 $ 56,340 $ (173) $ 125,907
Net income for year - - 6,195 - 6,195
Dividends ($ 13.32 per share) - - (55,978) - (55,978)
Unrealized gain on temporary
investments - - - 159 159
- ---------------------------------------------------------------------------------------------------------------------------
BALANCE DECEMBER 31, 1997 $55,247 $ 14,493 $ 6,557 $ (14) $ 76,283
======= ========= ========= ========= =========
</TABLE>
See accompanying Notes to Consolidated Financial Statements
F-18
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN US DOLLARS, IN THOUSANDS)
YEARS ENDED DECEMBER 31
------------------------
1997 1996 1995
----------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities
Net income $ 6,195 $ 8,434 $ 7,963
Adjustments to reconcile net income to
cash provided by (used in) operating activities:
Profit on sale of subsidiaries - (16,273) -
Depreciation 3,306 2,998 4,878
Provision for indemnities 746 732 1,308
Interest capitalized (2,808) (1,554) (855)
Stock options compensation - 4,688 840
Other-net (713) (1,308) 261
(Increase) Decrease in accounts receivable (18) (6,095) 625
Decrease (Increase) in materials and supplies 975 (1,221) (2,124)
Decrease (Increase) in prepaid expenses 44 402 (1,326)
Increase in accounts payable 207 958 1,256
(Decrease) Increase in taxes payable (1,786) 1,482 1,811
(Decrease) Increase in other liabilities (30) 59 (532)
Indemnities paid (223) (2,002) (623)
- --------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) operating
activities 5,895 (8,700) 13,482
- --------------------------------------------------------------------------------------------------------------------
Cash flows from (used in) investing activities
Utility plant additions (38,738) (26,438) (33,464)
Cash received from disposal of subsidiaries
net of cash disposed and of related expenses - 58,427 -
Net (Increase) Decrease in temporary
investments (9,198) (25,337) 11,618
Other-net 1,106 296 810
- --------------------------------------------------------------------------------------------------------------------
Net cash (used in) provided by investing
activities (46,830) 6,948 (21,036)
- --------------------------------------------------------------------------------------------------------------------
Cash flows from (used in) financing activities
Proceeds from long-term debt 61,700 - 13,233
Payment of long-term debt (1,323) - -
Payment of dividends (21,013) (3,361) (3,191)
- --------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) financing
activities 39,364 (3,361) 10,042
- --------------------------------------------------------------------------------------------------------------------
Net (decrease) increase in cash and
cash equivalents (1,571) (5,133) 2,488
Cash and cash equivalents at beginning of period 3,024 8,137 5,649
- --------------------------------------------------------------------------------------------------------------------
Cash and equivalents at end of period $ 1,453 $ 3,024 $ 8,137
==============================================
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
1997 1996 1995
----------------------------------------------
Cash paid during the period for:
Interest (net of amount capitalized) $ (1,231) $ (92) $ (37)
Income tax and withholding tax on branch income $ 4,372 $ 2,776 $ 1,093
See accompanying notes to Consolidated Financial Statements.
</TABLE>
F-19
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
DECEMBER 31, 1997, 1996 AND 1995
(IN THOUSANDS, EXCEPT SHARE, PER SHARE DATA AND EXCHANGE RATE DATA)
1. CHANGE OF CONTROL
In December 1996, NRG Energy and Nordic Power Invest AB, together through Tosli
Investments B.V., a Netherlands limited liability company, purchased 96.6% of
the Company's common stock, pursuant to a cash tender offer for all the
outstanding shares of the Company at $43 per share. As a result of this
transaction the Company incurred non-recurring expenses amounting to $10,355.
Of this amount, $6,437 related to stock options compensation (see note 2g.) and
$3,918 were spent in respect of legal, financial and printing costs.
2. ACCOUNTING PRINCIPLES
A. CONSOLIDATION POLICY
During 1995, the Company had two divisions, the La Paz Division and the Oruro
Division. The La Paz Division generated and distributed electric power to the
cities of La Paz and El Alto and the Oruro Division supplied electric power to
mines operated by an agency of the Bolivian Government, Corporacion Minera de
Bolivia ("Comibol"), and sold wholesale power to the Company's subsidiary,
Empresa de Luz y Fuerza Electrica de Oruro S.A. ("ELF"), which distributed
electricity to the City of Oruro.
The consolidated financial statements at December 31, 1995 include the accounts
of the Company's Head Office and Bolivian Branch and its former distribution
subsidiaries, Electricidad de La Paz ("Electropaz"), ELF and Compania
Administradora de Empresas ("CADE") which were sold on January 11, 1996. (See
note 3). As from 1996, the consolidated financial statements solely include the
accounts of the Company's Head Office and its Bolivian Branch.
B. GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
The consolidated financial statements have been prepared in accordance with
generally accepted accounting principles in the United States of America and are
presented in U.S. Dollars, the functional currency of the Company.
C. UTILITY PLANT AND RELATED MATERIALS
Properties and related materials are stated at cost. In accordance with a
resolution of the Government Regulatory Board, depreciation is provided on a
straight line basis over estimated service lives for different types of
facilities which range between 5 and 40 years. Charges for maintenance and
repairs are expensed as incurred and costs of renewals and improvements are
capitalized.
Interest expense from funds used during construction is capitalized and
allocated to work in progress at rates permitted in the Bolivian Electricity
Code.
F-20
<PAGE>
D. TEMPORARY INVESTMENTS
The Company accounts for investments in securities for sale at their fair market
value, reporting unrealized holding gains and losses separately in shareholders'
equity. Unrealized gains of $159 and $551 have been reported at December 31,
1997 and 1995, respectively, and an unrealized loss of $24 has been reported at
December 31, 1996.
E. CASH FLOWS
For purposes of the Consolidated Statements of Cash Flows, the Company considers
all highly liquid investments with original maturities of three months or less
to be cash equivalents.
F. EARNINGS PER COMMON SHARE
Earnings per Common Share are calculated by dividing net income by the average
number of outstanding Common Shares.
G. STOCK OPTIONS ACCOUNTING
A. On May 4, 1994, the Company adopted a Stock Option Plan that provides for
the issuance of stock options at not less than the fair market value of the
underlying stock on the date the options were granted. Prior to the change of
control of the Company on December 20, 1996, options to purchase 107,760 shares
had been granted to certain officers, directors and employees (the "Optionees")
of the Company, of which 25,380 were exercisable.
On December 20, 1996, pursuant to the change of control of the Company, the
stock options granted to the Optionees were terminated, and the Company paid the
Optionees the amount equal to the excess of the tendered price for the purchase
of the Company's common stock over the exercise price for each share covered by
the options. The total amount charged to income in relation to the termination
of these stock options was $1,749.
B. In addition, in 1996, the Company charged $4,688 as stock options
compensation to three executive officers of the Company pursuant to the
termination of the agreement by which Liberty Power/Cogentrix Bolivia Inc.
("Liberty Power/Cogentrix"), which owned 719,206 shares or 17.1% of the
outstanding common stock of the Company prior to the change of control of the
Company, had granted to three executive officers of the Company (the "Officers")
options (the "Options") to purchase an aggregate of 431,523 of the shares (the
"Shares") owned by Liberty Power/Cogentrix. The Options were granted at the
approximate time Liberty Power/Cogentrix acquired its 17.1% interest in the
Company in November 1994.
The price per share paid by the Officers upon the termination of the Options is
equal to the greater of: (i) $25.00 per share plus 5% per year compounded
annually or (ii) $25.00 per share, plus 100% of the cumulative increase (if any)
in the consolidated shareholders' equity per share of common stock of the
Company determined in accordance with U.S. generally accepted accounting
principles, in each case from the date the Options were granted to the date of
termination.
Since the Options are considered to be variable price options, the beneficiaries
of the Options were officers of the Company and as Liberty Power/Cogentrix owned
more than 10% of the common stock of the Company at the date the Options were
granted, under the provisions of Accounting Principles Board Opinion No. 25,
Accounting for Stock Issued to Employees, the benefits received
F-21
<PAGE>
had to be recorded as compensation in the Company's Income Statement.
Consequently, as the Options were terminated upon the change of control of the
Company, the accounting provisions for the Options require that the excess, if
any, of the tendered price of the common stock of the Company over the price of
the Options must be recorded by the Company as compensation expense even though
there is no actual cost to the Company. Such excess is recognized as a charge to
income with a corresponding credit to Additional Capital within the
Shareholders' Equity section of the Consolidated Balance Sheet. This charge had
no effect on the Company's cash flow and will not be recurring in the future.
C. On February 21, 1997, the Company granted 13,500 new options to management
under the existing 1994 option plan at US$43 a share. These options vest over
five years.
On November 25, 1997, the Company granted 70,000 new options to the newly
elected Chief Executive Officer. Exercising these options is contingent on the
occurrence of a number of events (building of new plants, achievement of stock
price levels, etc.). These events are principally unrelated except that none of
the options are exercisable until the Company has a successful public offering.
The relevant data regarding these options is as follows:
<TABLE>
<CAPTION>
1997
-----------------
<S> <C>
Outstanding at beginning of year
Granted:
Series 1 (February 21, 1997) 13,500
Series 2 (November 25, 1997) 70,000
-----------------
Outstanding at end of year 83,500
=================
Shares available at end of year
for options that may be granted in
subsequent year: 216,500
=================
Range of exercise prices for outstanding options US$ 31.00 - 43.00
Weighted average grant-date exercise price of
options US$ 32.94
Weighted average grant-date estimated market price
of share US$ 32.94
Weighted average grant-date value (difference
between estimated market price and exercise price)
of options granted during the year --
=================
Compensation cost recognized in income for the year
ended December 31, 1997 --
=================
</TABLE>
The Company has calculated the pro forma effects of accounting for the stock
option plan in accordance with SFAS No. 123 on the basis of the fair market
value based accounting method. Had
F-22
<PAGE>
compensation cost for the stock option plan been determined based on the fair
value at the grant date in accordance with the provisions of SFAS No. 123, the
Company's net income and earnings per share would have been affected as
indicated below.
<TABLE>
<CAPTION>
1997
--------
<S> <C>
Net income - as reported 6,195
Net income - pro forma 6,131
Earnings per share - as reported US$ 1.47
Earnings per share - pro forma US$ 1.46
</TABLE>
The fair value of each option grant was estimated on the date of grant using the
Black-Scholes option-pricing model with the following weighted average
assumptions used for grants in 1997: expected dividend yield of 0%, expected
volatility of 0%, annual risk-fee interest rate of 9.5% and expected average
lives of 5 years.
<TABLE>
<CAPTION>
1997
---------
<S> <C>
Weighted average grant-date fair value US$ 12.46
</TABLE>
3. SALE OF DISTRIBUTION SUBSIDIARIES
In order to comply with the Bolivian Electricity Law which was enacted in
December 1994, (see note 6a), on December 15, 1995 the Company entered into a
Stock Purchase Agreement (the "Agreement") with Iberdrola Investimentos
Sociedade Unipessoal L.D.A., a Portuguese company ("Iberdrola"), which is a
wholly-owned subsidiary of Ibedrola S.A., a Spanish electric utility, providing
for the sale to Iberdrola of three of the Company's subsidiaries (Electropaz,
ELF and CADE) for an aggregate cash price of $65,300 (the "Purchase Price").
This Purchase Price was subject to closing adjustments discussed below. The
closing of the Agreement was held on January 11, 1996.
On the closing date, Iberdrola paid to the Company $57,500 in cash and deposited
$7,800 in an escrow account pending the satisfaction of certain conditions. Of
the $7,800 deposited in escrow on the closing date, $6,000, $1,400 and $400 were
was released to the Company in February and July 1996 and in November 1997,
respectively, upon the resolution of certain outstanding issues.
In accordance with the Agreement an adjustment of $513 subsequently was agreed
to between the Company and Iberdrola, resulting in an increase in the Purchase
Price from $65,300 to $65,813.
4. RATE OF RETURN
Pursuant to the provisions of the Bolivian Electricity Code and of the
Concession (see Note 6a) granted by the Government of Bolivia in 1990 and its
subsequent amendments, the Company is entitled to earn on its U.S. Dollar rate
base, consisting of net fixed assets at historical cost in U.S. Dollars and
working capital and materials up to certain limits, a return of 9% after all
operating expenses, depreciation, taxes and interest expense in excess of 6% on
borrowings. The Electricity
F-23
<PAGE>
Code also provides for the adjustment of rates to compensate the Company for any
shortfall or to recapture any excess in the Company's actual rate of return
during the previous year.
A rate increases on the Company's distribution rates of 4.6% in 1995 granted by
the regulatory authority enabled the Company to earn 9% return in that years.
In December 1995, when it was apparent that the Company would no longer be
engaged in the distribution of electricity - see note 3 -, the Company applied
for new generation rates and in February 1996 the Superintendency of Electricity
granted this request, effective retroactively to January 1, 1996. The Company
earned a 9.15% rate of return in 1996. On February 5, 1997, the Superintendency
of Electricity issued a Resolution granting the Company an 18.2% rate increase
as from February 1, 1997. This rate increase enabled the Company to earn a 9.5%
return on its Rate Base in 1997, although this calculation has not yet been
agreed to with the Superintendency of Electricity.
Pursuant to an agreement between the Company and the Government Regulatory Board
dated May 4, 1990, the Company agreed to waive $40,788 of a total of $53,788 of
accumulated deficits in rates of return for the period 1968 through December 31,
1989. The balance of $13,000 of such deficit will also be waived by the Company
in the event of a favorable outcome for the Company of the legal proceeding
mentioned in note 6b. In the event of an adverse ruling the Company believes
that any obligation arising therefrom will be offset against such amount.
Should the compensation be disallowed by the Courts, the payment of this
obligation may be recoverable through rates to consumers.
5. INCOME TAXES
The Company is subject to a 25% income tax and must withhold 12.5% on profits
credited to the Head Office. The Company is also permitted to recover these
taxes through rates it charges to its consumers.
The effective tax rate of 28.8% in 1997, 29.3% in 1996 and 19.4% in 1995 differs
from the above-mentioned tax rates because the Company had income and expenses
outside Bolivia which are not subject to or deductible against Bolivia tax. At
December 31, 1997, 1996 and 1995 there were no significant tax timing
differences which should be deferred in accordance with the Statement of
Financial Accounting Standards No.109, Accounting for Income Taxes.
6. CONTINGENCIES AND COMMITMENTS
A. The Company operates under a 40 year concession (the "Concession") from
the Government of Bolivia to generate electricity as a public utility. The term
of the Concession commenced on October 1, 1990, and expires on September 30,
2030.
Amendments to the Concession were introduced on December 30, 1994 and March 17,
1995 by Supreme Resolutions of the Bolivian Government in order to conform to
the new Electricity Law enacted by the Bolivian Congress on December 21, 1994.
The new Electricity Law requires the separation of the generation, transmission
and distribution activities of the electric industry and requires entities which
control more than one such activity, including the Company, to divest themselves
of control of the other activities.
F-24
<PAGE>
In order to comply with the new Electricity Law the Company formed a new
subsidiary, Electropaz, which held the Company's La Paz Division distribution
assets and which was divested, together with two other Company subsidiaries, ELF
and CADE, on January 11, 1996 (see Note 3).
On February 2, 1995 a 40 year distribution concession (the "Distribution
Concession") for the cities of La Paz and El Alto and surrounding areas was
granted to the Company by a Supreme Resolution of the Bolivian Government.
Pursuant to the provisions of the Distribution Concession, the Company
transferred the Distribution Concession to Electropaz in December 1995.
The Company has entered into a Supply Contract with Electropaz which provides
that the Company shall sell to Electropaz, and Electropaz shall purchase from
the Company, all of the electricity that the Company can supply, up to the
maximum amount of the electricity required by Electropaz to supply the
requirements of its concession area. The Electricity Supply Contract expires in
December 2008.
The Company also sells power on a wholesale basis to its former subsidiary, ELF,
which distributes electricity to the city of Oruro. On January 10, 1996, the
Government Regulatory Board granted ELF a 40-year concession for distribution in
the City of Oruro. On February 26, 1996 and Company and ELF entered into a
long-term Electricity Supply Contract on substantially similar terms as the
Electricity Supply Contract between the Company and Electropaz.
B. In January, 1987, claimants purporting to represent a class comprised of
the Company's rate payers commenced a legal action against the Company alleging
that the Company had included unauthorized rate increases in its bills to rate
payers. In February, 1987, the Superior Court of Justice of the District of La
Paz ("Superior Court") ruled that the action was unfounded.
On appeal, the Supreme Court reversed the lower court ruling and the case was
referred to the Government Regulatory Board to establish the amounts by which
such claimants were overcharged, if any. The Government Regulatory Board
ascertained that the claimants were not registered as customers of the Company,
and so informed the court.
The claimants insisted that this is a class action case on behalf of all
consumers, and that it be resubmitted to the Government Regulatory Board. Upon
resubmission by the claimants, the Government Regulatory Board certified that
under the terms of the Bolivian Electricity Code no overcharges had taken place.
This certification was again rejected by the claimants. On September 26, 1989,
the Superior Court ruled that since the Supreme Court decision did not establish
the amount of the claim, the amount must now be determined by the courts through
the regular channels of Ordinary Proceedings. On July 27, 1996 a Bolivian court
ruled that the claimants had abandoned their claim due to their failure to
pursue action within the statutorily prescribed period. The claimants appealed
this ruling on May 30, 1997; to date the Superior Court has not ruled on the
claimants' appeal.
The Company is unable to predict the ultimate resolution of this matter, but in
the event of an adverse ruling, an unwaived balance of $13,000 of accumulated
deficits in rates of return at December 31, 1989, may be used to offset any
obligation arising therefrom, or the payment of any obligation may be
recoverable through rates to customers (See Note 4).
C. Under the terms of its Concession, the Company is obligated to expand
its hydroelectric generation capacity serving La Paz. This expansion, which the
Company refers to as the "Zongo
F-25
<PAGE>
Project", consists of adding new generation facilities and modernizing existing
facilities located in the Zongo Valley and constructing transmission lines to
transmit the increased generation capacity at a total estimated cost of $113,000
($98,000 for generation and $15,000 for transmission). Construction of the Zongo
Project was commenced in 1995 and is scheduled to be completed in mid-1999. The
Company estimates that during the next two years it will be required to spend
approximately $37,000 to complete the Zongo Project (approximately $28,000 for
generation facilities and $9,000 for transmission facilities), which will add
approximately 65 MW to the Company's generation capacity. Under the Concession,
the Company also was obligated to expand its La Paz distribution facilities, and
during 1995 the Company expended approximately $4,825 for this purpose. Since
the Company has divested itself of all of its distribution assets in early 1996,
the Company is no longer required to expend funds for the expansion of its
former distribution systems. In addition to the funds it has budgeted for the
Zongo Project, it is anticipated that the Company will spend approximately
$7,000 during 1998 and 1999 on its regular capital expenditure program. The
Company intends to fund the Zongo Project and its regular capital expenditure
program with borrowings from financial institutions or possible equity
financings, equipment financing, the proceeds from the sale its distribution
subsidiaries and from internal cash generation. During 1997, 1996 and 1995, the
Company expended $39,015, $25,522 and $8,642, respectively, on the Zongo
Project. The total expenditures on the Zongo Project through December 31, 1997
were $76,000.
D. At December 31, 1997, the Company had entered into purchase commitments
with suppliers amounting to approximately $4,722. These commitments related
principally to the Zongo Valley expansion, for which the Company has restricted
collateral deposits amounting to $3,410.
7. LONG TERM DEBT
A. To finance the Company's El Alto generating facility, the Company entered
into a seven-year loan agreement with BHN Multibanco, a Bolivian bank, and BHN
Multibanco subsequently sold all of this loan to Corporacion Andina de Fomento
("CAF"). This loan bears interest at the rate of LIBOR (six months) plus 5
1/4%, payable semi-annually, with principal to be paid in ten equal semi-annual
installments commencing September 1, 1997. At December 31, 1997 the Company had
obligations under this loan of $11,911 ($2,647 current portion and $9,264 non-
current portion).
B. On August 13, 1997 the Company entered into a Credit Agreement with CAF
pursuant to which the Company may borrow from CAF up to an aggregate principal
amount of $75,000 (the "loan") for the financing of the Zongo Project. At
December 31, 1997 the Company had obligations under this loan of $61,700.
The loan bears an interest rate of LIBOR (six months) plus 4.50% on its A
portion (40% of the principal amount) and LIBOR (six months) plus 4% on its B
portion (60% of the principal amount). The loan is payable in variable semi-
annual installments commencing on January 31, 1999.
Under the Credit Agreement, the Company is now prohibited from declaring or
paying any dividend or making any distribution on its share capital or
purchasing, redeeming or otherwise acquiring any shares of capital stock of the
Company or any option over the same, unless (i) immediately prior to declaring
and paying such dividend or distribution the Company is in compliance with all
material obligations under the loan documents, (ii) after making such payment or
distribution, the Company is in compliance with certain financial ratios
described below, (iii) the Debt Service Coverage Ratio (as defined in the CAF
Agreement) for the four fiscal quarters most recently ended is not less than
1.25/1
F-26
<PAGE>
and (iv) a default or event of default has not occurred and is not
continuing, provided that the Company may, at any time that no default or event
of default has occurred and is continuing, declare or pay dividends to the
extent of the Unrestricted Dividend Balance (as defined in the CAF Agreement).
The Credit Agreement also requires the Company to maintain certain financial
ratios. The loan is collateralized by a mortgage on substantially all of the
Company's assets.
C. The payment schedule of the above-mentioned loans is as follows:
<TABLE>
<CAPTION>
<S> <C>
1998 $ 2,647
1999 7,830
2000 8,940
2001 10,421
2002 9,097
after 2002 34,676
-------
$73,611
=======
</TABLE>
8. RELATED PARTY TRANSACTIONS
On October 27, 1994, the Company entered into a Management Agreement (the
"Management Agreement") with its then principal shareholder, Liberty
Power/Cogentrix. Pursuant to the Management Agreement, Liberty Power/Cogentrix
performed certain general, administrative and overhead functions for the
Company. The Management Agreement provides the Company will pay Liberty
Power/Cogentrix $320 per year, subsequently adjusted, effective January 1, 1996,
to $329 per year, and reimburse up to an aggregate amount of $100 for travel
expenses to be incurred by certain officers of the Company. The Management
Agreement expired on December 20, 1996, but was extended to February 14, 1997.
9. FOREIGN CURRENCY REQUIREMENTS
There are currently no exchange controls in Bolivia and, while this situation
continues, the Company sees no difficulty in meeting its foreign currency
requirements.
10. BOLIVIAN ECONOMIC SITUATION
During 1997, inflation, measured by the official price index, decreased from
7.6% in 1996 to 6.7% in 1997. The Boliviano exchange rate changed from Bs 5.19
= US$ 1 at December 31, 1996 to Bs 5.37 = US$ 1 at December 31, 1997.
11. SUBSEQUENT EVENTS
A special dividend of $8.32 per Common Share was paid on January 8, 1998.
F-27
<PAGE>
12. QUARTERLY PERFORMANCE (UNAUDITED)
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER YEAR
======== ======== ========== ========== =========
<S> <C> <C> <C> <C> <C>
1997
- ----
OPERATING REVENUE $ 5,703 $5,433 $ 4,674 $ 5,826 $21,676
OPERATING INCOME $ 1,863 $1,300 $ 1,002 $ 1,570 $ 5,735
NET INCOME $ 1,961 $1,672 $ 1,265 $ 1,297 $ 6,195
EARNINGS PER COMMON
SHARE $ 0.47 $ 0.38 $ 0.30 $ 0.32 $ 1.47
DIVIDENDS PER
COMMON SHARE $ 5.00 $ 8.32 $ 8.32
1996
- ----
OPERATING REVENUE $ 5,767 $5,366 $ 4,003 $ 4,903 $20,009
OPERATING INCOME $ 1,247 $ (149) $ (1,129) $ (4,128) $(4,159)
NET INCOME $15,183 $1,201 $ ( 453) $ (7,497) $ 8,434
EARNINGS PER COMMON
SHARE $ 3.62 $ 0.29 $ (0.11) $ (1.79) $ 2.01
DIVIDENDS PER
COMMON SHARE $ 0.20 $0. 20 $ 0.20 $ 0.20 $ 0.80
</TABLE>
First quarter results in 1996 include a gain of $16,384 relating to the sale of
the Company's distribution subsidiaries (see note 3). Results in the fourth
quarter are affected by non-recurring expenses incurred in relation to the
change of control of the Company (see note 1).
F-28
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
COMPANIA BOLIVIANA DE ENERGIA ELECTRICA S.A. -- BOLIVIAN POWER COMPANY LIMITED
Date: March 30, 1998 By: /s/ Roger J. Dupuis
-------------------
Roger J. Dupuis
President and General Manager
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
By /s/ David H. Peterson Chairman of the Board March 30, 1998
--------------------- and Director
David H. Peterson
By /s/ Robert McClenachan Chief Executive Officer March 30, 1998
---------------------- and Director
Robert McClenachan (Principal Executive
Officer)
By /s/ Roger J. Dupuis President and General March 30, 1998
---------------------- Manager
Roger J. Dupuis
By /s/ Roland C. Gibson Vice President-Finance March 30, 1998
---------------------- (Principal Financial and
Roland C. Gibson Accounting Officer)
By /s/ Leonard Bluhm Director March 30, 1998
----------------------
Leonard Bluhm
By /s/ Edwin G. Corr Director March 30, 1998
----------------------
Edwin G. Corr
By /s/ Mats Fagerlund Director March 30, 1998
----------------------
Mats Fagerlund
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
By /s/ Mauricio Gonzales Director March 30, 1998
---------------------
Mauricio Gonzales
By /s/ Joachim Platzer Director March 30, 1998
---------------------
Joachim Platzer
By /s/ Gunnar Vallin Director March 30, 1998
----------------------
Gunnar Vallin
By /s/ Ronald J. Will Director March 30, 1998
---------------------
Ronald J. Will
</TABLE>
<PAGE>
INDEX TO EXHIBITS
The following documents are filed as part of this report:
<TABLE>
<CAPTION>
EXHIBIT LOCATION
- ------- --------
<S> <C> <C>
2(a) Stock Purchase Agreement dated Incorporated by reference to the
December 15, 1995 between the Company's Form 8-K dated
Company and Iberdrola Investimentos December 28, 1995
Sociedade Unipessoal L.D.A.
2(b) Purchase Agreement, dated as of Incorporated by reference to the
November 13, 1996, by and between Company's Form 8-K dated
NRGenerating Holdings (No. 9) B.V., December 19, 1996
a wholly-owned subsidiary of NRG
Energy, Inc., and Compania
Boliviana de Energia Electrica S.A.
- Bolivian Power Company Limited
2(c) Form of Stockholders Agreement, Incorporated by reference to the
dated as of December 13, 1996, by Company's Form 8-K dated
and between NRG Energy, Inc. and December 19, 1996
Nordic Power Invest AB
3(a) Memorandum and Articles of Incorporated by reference to
Association of the Company Exhibit 6.1 in Registration
Statement No. 2-59195 on Form
S-14, filed with the Commission
on June 3, 1977
3(b)4 Amended and Restated Articles of Attached
Association of the Company
10(a)(i) Supreme Resolution dated May 4, Incorporated by reference to the
1990 (revised English translation) Company's Form 10-Q for the
quarter ended June 30, 1990)
10(a)(ii) Supreme Resolution No. 215064 dated Incorporated by reference to the
December 30, 1994 (Spanish and Company's Form 10-K for the year
English translation) ended December 31, 1994
10(a)(iii) Supreme Resolution No. 215087 dated Incorporated by reference to the
February 2, 1995 (Spanish and Company's Form 10-K for the year
English translation) ended December 31, 1994
10(a)(iv) Supreme Resolution No. 215474 dated Incorporated by reference to
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
dated March 17, 1995 (Spanish and the Company's Form 10-K for
English translation) the year ended December 31, 1994
10(a)(v) DINE Resolution dated June 1, 1990 Incorporated by reference to the
regarding Third-Party Rights in Company's Form 10-Q for the
Company's area of Concession quarter ended June 30, 1990
(English translation)
10(a)(vi) Accord dated June 21, 1990 between Incorporated by reference to the
DINE and the Company regarding Company's Form 10-Q for the
adjustment of rates (or tariffs) quarter ended June 30, 1990
(English translation)
10(a)(vii) Contract for the Supply of Electric Incorporated by reference to the
Energy dated June 6, 1995 between Company's Form 10-Q for the
the Company and Electricidad de La quarter ended June 30, 1995
Paz S.A. and DINE resolution No.
030/95 dated June 12, 1995
approving the agreement (Spanish
and English language translation)
10(a)(viii) Contract for the Supply of Incorporated by reference to the
Electricity, dated February 26, Company's Form 10-Q for the
1996 between the Company and quarter ended March 31, 1996
Empresa de Luz y Fuerza Electrica
de Oruro S.A. (Spanish and English
language translation)
10(b)(i) Employment Agreement dated as of Incorporated by reference to the
October 7, 1996 between the Company Company's Form 10-K for the year
and Roger J. Dupuis ended December 31, 1996
10(b)(ii) Employment Agreement dated as of Incorporated by reference to the
October 7, 1996 between the Company Company's Form 10-K for the year
and Roland C. Gibson ended December 31, 1996
10(b)(iii) 1994 Stock Option Plan Incorporated by reference to the
Company's definitive proxy
statement dated April 1, 1994
10(c) Loan Agreement (No. 207) dated Incorporated by reference to the
March 16, 1995, between the Company Company's Form 10-K for the year
and BHN Multibanco (Spanish and ended December 31, 1994
English translation)
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
10(d) Interconnection Agreement dated Incorporated by reference to the
June 21, 1990 between Empresa Company's Form 10-Q for the
Nacional de Electricidad ("ENDE") quarter ended June 30, 1990
and the Company
10(e) Form of Credit Agreement dated as Incorporated by reference to the
of August 1, 1997, by and between Company's Form 10-Q for the
Compania Boliviana de Energia quarter ended June 30, 1997
Electrica S.A. - Bolivian Power
Company Limited and Corporacion
Andina de Fomento
10(f) Form of Shareholder Maintenance Incorporated by reference to the
Agreement dated as of August 1, Company's Form 10-Q for the
1997, by and among NRG Energy, quarter ended June 30, 1997
Inc., Nordic Power Invest AB and
Corporacion Andina de Fomento
10(g) Form of Pledge Agreement dated as Incorporated by reference to the
of August 1, 1997, by and among Company's Form 10-Q for the
Compania Boliviana de Energia quarter ended June 30, 1997
Electrica S.A. - Bolivian Power
Company Limited, Corporacion Andina
de Fomento and United States Trust
Company of New York
10(h) Form of Subsidiary Guaranty dated Incorporated by reference to the
as of August 1, 1997, by and among Company's Form 10-Q for the
Compania Boliviana de Energia quarter ended June 30, 1997
Electrica S.A. - Bolivian Power
Company Limited, Corporacion Andina
de Fomento and all Restricted
Subsidiaries of the Company made a
party to the Agreement by execution
of a Joinder to Guaranty in the
form attached thereto
10(i) Form of Indenture dated as of Incorporated by reference to the
August 1, 1997, by and between Company's Form 10-Q for the
Compania Boliviana de Energia quarter ended June 30, 1997
Electrica S.A. - Bolivian Power
Company Limited and Corporacion
Andina de Fomento
</TABLE>
3
<PAGE>
EXHIBIT 3(b)4
-------------
ARTICLES OF ASSOCIATION
OF
COMPANIA BOLIVIANA DE ENERGIE S.A.--
BOLIVIAN POWER COMPANY LIMITED
<PAGE>
ARTICLES OF ASSOCIATION
OF
COMPANIA BOLIVIANA DE ENERGIA ELECTRICA S.A. --
BOLIVIAN POWER COMPANY
LIMITED
INTERPRETATION
1. In these Articles, unless there be something in the subject or
context inconsistent therewith:
(a) "the Act" means the Companies Act of Nova Scotia and all amendments
thereto;
(b) "annual general meeting" has the same meaning as "ordinary general
meeting";
(c) "the Company" means the company named above;
(d) Deleted;
(e) "the Office" means the registered office for the time being of the
Company;
(f) Deleted;
(g) "the Register" means the register of members kept pursuant to the
Act;
(h) "the Registrar" means the Registrar of Joint Stock Companies for
the time being;
(i) "shareholder" has the same meaning as "member".
(j) "month" means calendar month;
(k) "in writing" and "written" includes printing, lithography and other
modes of representing or reproducing words in visible form;
(l) "these Articles" and "these presents" include these Articles of
Association and all amendments thereto;
(m) (a) "the Directors" or "the Board" means the Directors of the
Company for the time being;
(b) Deleted;
(c) Deleted.
<PAGE>
INDEX TO ARTICLES OF ASSOCIATION
Article No. Page
- ---------- ----
INTERPRETATION
1. Interpretation.......................................................... 1
2. Table "A" not to apply.................................................. 2
3. Pre-Incorporation Agreement............................................. 2
4. Payment of expenses of Incorporation, etc............................... 2
5. May commence business at once........................................... 2
SHARES
6. Shares under control of Directors....................................... 2
7. May pay commission on subscription...................................... 2
8. May make difference in amount of calls, etc............................. 2
9. If payable by installments, payable by registered holder................ 2
10. May be registered jointly - not exceeding three......................... 3
11. Jointly and severally liable. Survivor only recognized.................. 3
12. Company treats registered holder as absolute owner - equities
not recognized.......................................................... 3
CERTIFICATES
13. Share Certificates - how signed......................................... 3
14. Member entitled to share certificate.................................... 3
15. Only one certificate when joint holders - issued to first
named on register....................................................... 3
16. Worn out, defaced or lost certificates.................................. 3
17. Fee for certificates.................................................... 3
18. May keep one or more branch registers................................... 4
CALLS
19. Directors may make calls................................................ 4
20. When calls deemed made.................................................. 4
21. Fourteen days' notice of call - contents of............................. 4
22. If not paid, bears interest............................................. 4
23. Resolution making call conclusive....................................... 4
24. Directors may accept money in advance and may pay interest thereon...... 4
FORFEITURE OF SHARES
25. If member fails to pay calls - notice served............................ 4
26. What notice to contain.................................................. 5
27. If requisitions of notice not complied with, shares
forfeited - includes dividends.......................................... 5
28. Notice of resolution of forfeiture to be given and entry
to be made in the Register.............................................. 5
29. Forfeited share deemed property of Company.............................. 5
30. Directors may annul forfeiture, etc..................................... 5
<PAGE>
31. Members still liable to pay notwithstanding forfeiture.................. 5
32. Certificate of forfeiture - conclusive.................................. 5
LIEN OF SHARES
33. Company has lien on shares (not fully paid up) for debts of
member includes dividends............................................... 5
34. Directors may sell shares after notice.................................. 6
35. Proceeds of shares, first used to pay debts, residue to member.......... 6
VALIDITY OF SHARES
36. Purchaser at sale after forfeiture or for enforcing lien, not bound to
inquire................................................................. 6
TRANSFER OF SHARES
37. How transfer to be signed not effective until registered................ 6
38. Form of transfer........................................................ 6
39. May decline transfer in certain cases................................... 7
40. Transfer to be left at office and evidence of title given............... 7
41. Fee on Transfer......................................................... 7
42. Instrument of transfer to remain in custody of Company.................. 7
43. Repealed................................................................ 7
TRANSMISSION OF SHARES
44. Executors or Administrators of deceased member only recognized.......... 7
45. Transmission Clause - Transfer of Shares (of deceased
member or bankrupt, etc.)............................................... 7
46. Repealed................................................................ 7
47. Repealed................................................................ 7
INCREASE AND REDUCTION OF CAPITAL
48. May increase Capital.................................................... 7
49. New Shares may be issued on terms, etc.................................. 8
50. May determine when new shares to be offered to existing members......... 8
51. New capital to be considered part of original capital
and subject to these Articles........................................... 8
52. May reduce capital and capital redemption reserve fund.................. 8
ALTERATION OF CAPITAL
53. May consolidate and divide capital...................................... 8
54. May convert paid-up shares into stock................................... 8
55. May sub-divide shares................................................... 8
56. May exchange shares of one denomination for another..................... 9
57. May cancel unissued shares.............................................. 9
58. May convert unissued shares into redeemable Preference Shares........... 9
ii
<PAGE>
59. May provide for issue of No Par Value shares............................ 9
60. May convert no par value shares into shares with par value
same number, etc........................................................ 9
61. May convert no par shares into same or different number of
shares with par value................................................... 9
62. May redeem or purchase certain Preference Shares........................ 9
63. Repealed................................................................ 10
CLASSES OF SHARES
64. Shares may be issued with preferred, deferred or other
special rights, etc.................................................... 10
MODIFICATIONS OF RIGHTS OF SHAREHOLDERS
65. Rights attached to class may be modified, altered, etc., by
agreement ratified by Extraordinary Resolution.......................... 10
66. Repealed................................................................ 10
BORROWING POWERS
67. Directors may on behalf of the Company:
(a) raise or borrow money for purpose of Company....................... 10
(b) secure repayments by mortgage, bonds, debentures, etc.............. 11
(c) sign notes, cheques, etc., and other evidence of or
securities for money borrowed, etc................................. 11
(d) pledge debentures as security...................................... 11
68. Bond, etc., may be made assignable free from equities................... 11
69. Bonds, etc., may be issued at discount or premium, etc.................. 11
MEETINGS
70. Notice and record date for meetings..................................... 11
71. General Meeting every year.............................................. 12
72. When special meeting called - requisition............................... 12
73. What requisition must state............................................. 12
74. If Directors fail to call - requisitionists may......................... 12
75. If confirmatory meeting required - Directors to call.................... 12
76. Requisitionists' meeting called same as other meetings called........... 12
77. Seven days' notice required - may be waived............................. 12
78. In case of special resolution, two meetings may be
called by one and same notice........................................... 12
79. Accidental omission to give notice does not invalidate resolution....... 13
PROCEEDINGS AT GENERAL MEETING
80. Business of general meeting............................................. 13
81. No business unless quorum present....................................... 13
82. Quorum.................................................................. 13
83. Chairman................................................................ 13
84. If quorum not present - when dissolved - and when adjourned............. 13
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85. Resolution decided by show of hands unless poll demanded
Who may demand poll..................................................... 14
86. Declaration by Chairman conclusive...................................... 14
87. How poll taken; may be withdrawn........................................ 14
88. Chairman has casting vote............................................... 14
89. Meeting may be adjourned. Adjourned meeting may only
transact unfinished business............................................ 14
90. Question of adjournment shall be taken at meeting without adjournment... 14
91. Demand of poll shall not prevent continuance of meeting................. 14
91A. Repealed................................................................ 14
VOTES OF MEMBERS
92. Every member entitled to one vote unless excluded by
conditions of issue, etc................................................ 14
93. Persons entitled under transmission clause.............................. 15
94. Votes by joint registered holders....................................... 15
95. Votes by persons or proxy or corporate representative................... 15
96. Proxies................................................................. 15
97. Votes of members of unsound mind........................................ 15
98. Proxies to be deposited................................................. 15
99. When vote by proxy valid though authority revoked....................... 15
100. Form of Proxy........................................................... 15
101. Member not entitled to vote for......................................... 16
102. Resolution of Directors ratified and confirmed by three-fifths
of shareholders valid as resolution of general meeting.................. 16
DIRECTORS
103. Number of Directors..................................................... 16
104. Subscribers to Memorandum to be first Directors......................... 16
105A.When Directors may appoint additional Directors......................... 16
105B.Repealed................................................................ 17
106. Qualification........................................................... 17
107. Resignation or retirement............................................... 17
108. Remuneration............................................................ 17
109. Directors may act notwithstanding vacancy............................... 17
110. Directors may also hold other office with Company....................... 17
111. When office vacated..................................................... 17
(a) Bankrupt........................................................... 17
(b) Unsound Mind....................................................... 17
(c) Resigns............................................................ 17
(d) Removed by Special Resolution...................................... 17
112. Director may contract with Company, but must declare interest........... 17
113A.Repealed................................................................ 18
Retiring Directors eligible for re-election............................. 18
113B.Repealed................................................................ 19
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113C.Nominations by Shareholders............................................. 19
114. Retiring Directors to remain in office until successors appointed....... 19
115. Repealed................................................................ 19
116. Removal of Directors by Special Resolution.............................. 19
117. Directors may fill casual vacancies in Directors........................ 19
117B.Repealed................................................................ 19
MANAGING DIRECTOR
118. Power to appoint Managing Director...................................... 19
119. What provisions he will be subject to................................... 20
120. Remuneration............................................................ 20
121. Power and Duties of Managing Director................................... 20
PRESIDENT AND VICE-PRESIDENTS
122. (a) President.......................................................... 20
(b) Vice-Presidents.................................................... 20
CHAIRMAN OF THE BOARD
123. Chairman of the Board................................................... 21
123A.Chief Executive Officer................................................. 21
PROCEEDINGS OF DIRECTORS
124. Meetings of Directors and quorum....................................... 21
125. Place of meetings - within or without Province......................... 21
(1) without notice after general meeting............................. 21
(2) notice for other meetings........................................ 21
(3) if all present or all have assented, may be held without notice.. 21
(4) by means of telephone conference call............................ 21
126. Who may summon meetings................................................ 22
127. (1) Hot questions decided; Chairman has casting vote................. 22
(2) Directors, vote by proxy......................................... 22
128. Chairman of meeting.................................................... 22
129. If quorum present, meeting competent................................... 22
130. Committee of Directors................................................. 22
131. Meetings of committees................................................ 22
132. When acts of Directors or committee valid
notwithstanding defective appointment.................................. 22
133. Resolution without Board Meeting valid................................. 23
134. Remuneration for extra services........................................ 23
134A.Repealed............................................................... 23
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REGISTERS
135. Register of Members, Bond and Debenture Holders and Directors to be
kept in accordance with the Act. Branch registers may be kept......... 23
MINUTES
136. Minutes to be made.................................................... 23
(1) of appointment of officers....................................... 23
(2) of Directors present at meetings................................. 23
(3) of orders of Directors and committees............................ 23
(4) of resolutions and proceedings of Shareholders and Directors..... 23
When Minutes prima facie evidence..................................... 23
POWERS OF DIRECTORS
137. General powers of Company vested in Directors......................... 24
138. (1) To carry agreements into effect.................................. 24
(2) To pay preliminary expenses...................................... 24
(3) To acquire property.............................................. 24
(4) To pay for property, services, etc., in shares, bonds, etc....... 24
(5) To secure fulfillment of contracts............................... 24
(6) To appoint experts, agents, etc.................................. 24
(7) To accept surrender of shares.................................... 24
(8) To appoint trustees.............................................. 25
(9) To bring and defend actions...................................... 25
(10) To refer to arbitration.......................................... 25
(11) To give receipts................................................. 25
(12) To authorize signatures, etc..................................... 25
(13) To appoint managers abroad....................................... 25
(14) To invest moneys................................................. 25
(15) To give security by way of indemnity............................. 25
(16) To give commission to officers, etc.............................. 25
(17) To establish reserve fund........................................ 25
(18) To make rules, vary and repeal same.............................. 26
(19) To make contracts................................................ 26
(20) To provide for management generally.............................. 26
SOLICITORS
139. Company may retain solicitors........................................ 26
SECRETARY AND TREASURER
140. Secretary............................................................. 26
141. Treasurer............................................................. 26
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THE SEAL
142. Use of Common Seal.................................................... 26
143. Facsimile Seal........................................................ 27
DIVIDENDS
144. Profits may be divided among members................................. 27
145. Declaration of dividend.............................................. 27
146. Payable out of profits only.......................................... 27
147. Declaration as to amount of net profits conclusive................... 27
148. Interim dividends.................................................... 27
149. Deduction in case of debts........................................... 27
150. Retention in certain cases........................................... 27
151. Retention in case of transmission.................................... 28
152. Meeting declaring dividend may make call............................. 28
153. Meeting declaring dividend may resolve to pay same by distribution of
paid up shares, etc.................................................. 28
154. May capitalize and distribute reserve funds.......................... 28
155. May issue fractional certificates, etc............................... 28
156. Transfer not to pass right to dividend until registered.............. 28
157. Any one of joint holders may give receipt for dividends.............. 28
158. Dividend may be paid by cheque....................................... 29
159. Notice of declaration of dividend.................................... 29
160. Unclaimed dividends.................................................. 29
ACCOUNTS
161. Accounts to be kept.................................................. 29
162. Where books to be kept............................................... 29
163. Inspection by members................................................ 29
164. Profit and loss statement to be laid before meeting
of shareholders annually............................................. 29
165. Balance sheet to be laid before shareholders, contents............... 29
166. Balance sheet to be accompanied by report of Directors,
contents; balance sheet to be approved by Board and signed
by two Directors..................................................... 29
167. Repealed............................................................. 29
168. Repealed............................................................. 30
AUDITORS
169. Appointed at each annual general meeting............................. 30
170. Repealed............................................................. 30
171. Repealed............................................................. 30
172. Persons not eligible for appointment as auditors:.................... 30
(a) Directors and officers......................................... 30
(b) Partners or employees of officers.............................. 30
(c) A body corporate............................................... 30
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173. Repealed.......................................................... 30
174. Repealed.......................................................... 30
175. Repealed.......................................................... 30
176. Repealed.......................................................... 30
177. Repealed.......................................................... 30
178. Repealed.......................................................... 30
179. Repealed.......................................................... 30
NOTICES
180. How notices to be served on members............................... 30
181. Notices where no registered address............................... 30
182. Holders of share warrants not entitled to notice.................. 30
183. Notice may be given by advertisement.............................. 31
184. How notice given by advertisement................................. 31
185. Notice to joint holders........................................... 31
186. When notice sent by post deemed served, how proved................ 31
187. Transferees bound by prior notice................................. 31
188. Notice valid though member deceased............................... 31
189. How notice to be signed........................................... 31
190. How time to be counted............................................ 31
INDEMNITY
191. Indemnity of Directors and officers............................... 32
192. Individual responsibility of Directors............................ 32
REMINDERS
193. Amendment of designated Articles................................. 32
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ARTICLES OF ASSOCIATION
OF
COMPANIA BOLIVIANA DE ENERGIA ELECTRICA S.A. --
BOLIVIAN POWER COMPANY
LIMITED
INTERPRETATION
1. In these Articles, unless there be something in the subject or
context inconsistent therewith:
(a) "the Act" means the Companies Act of Nova Scotia and all amendments
thereto;
(b) "annual general meeting" has the same meaning as "ordinary general
meeting";
(c) "the Company" means the company named above;
(d) Deleted;
(e) "the Office" means the registered office for the time being of the
Company;
(f) Deleted;
(g) "the Register" means the register of members kept pursuant to the
Act;
(h) "the Registrar" means the Registrar of Joint Stock Companies for
the time being;
(i) "shareholder" has the same meaning as "member".
(j) "month" means calendar month;
(k) "in writing" and "written" includes printing, lithography and other
modes of representing or reproducing words in visible form;
(l) "these Articles" and "these presents" include these Articles of
Association and all amendments thereto;
(m) (a) "the Directors" or "the Board" means the Directors of the
Company for the time being;
(b) Deleted;
(c) Deleted.
<PAGE>
(n) "Secretary" includes any person appointed to perform the duties of
the secretary temporarily;
(o) "special resolution" has the meaning assigned by the Act;
(p) words importing the singular number only include the plural number
and vice versa;
(q) words imposing the masculine gender only include the feminine
gender;
(r) words importing persons include corporations.
2. The regulations appearing in Table A in the First Schedule to the
Act shall not apply to the Company.
3. The Directors may enter into and carry into effect or adopt and
carry into effect any agreement or agreements made by the promoters of the
Company on behalf of the Company and shall have full power to agree to any
modification in the terms of any such agreement or agreements, either before or
after their execution.
4. The Directors may, out of any moneys of the Company for the time
being in their hands, pay all expenses incurred for the formation and
establishment of the Company, including the expenses of registration.
5. The business of the Company may be commenced as soon after
incorporation as the Directors think fit, and notwithstanding that part only of
the shares have been allotted.
SHARES
6. The Directors shall control the shares and, subject to the
provisions of these Articles, may allot or otherwise dispose of them to such
persons at such times, on such terms and conditions and either at a premium or
at par as they think fit.
7. The Directors may pay on behalf of the Company a commission to any
person in consideration of his subscribing or agreeing to subscribe (whether
absolutely or conditionally) for any shares in the Company, or his procuring or
agreeing to procure subscriptions (whether absolute or conditional) for any
shares in the Company. The commission may be paid or satisfied in cash or in
shares, debentures or debenture stock of the Company.
8. On the issue of shares the Company may arrange among the holders
thereof differences in the calls to be paid and in the times for their payment.
9. If the whole or part of the allotment price of any shares is, by the
conditions of their allotment, payable in installments, every such installment
shall, when due, be
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payable to the Company by the person who is at such time the registered holder
of the shares.
10. Shares may be registered in the names of joint holders not exceeding
three in number.
11. The joint holders of a share shall be severally as well as jointly
liable for the payment of all installments and calls due in respect of such
share.
12. Save as herein otherwise provided, the Company shall be entitled to
treat the registered holder of any share as the absolute owner thereof and
accordingly shall not, except as ordered by a court of competent jurisdiction or
required by statute, be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person.
CERTIFICATES
13. Certificates of title to shares shall be signed (i) by the
President, a Vice-President or a Director, (ii) by the Secretary, an Assistant
Secretary or such other persons as the Directors may authorize and, if the
Directors have appointed a transfer agent for the Company, (iii) by an
authorized officer of such transfer agent. The signature of the President or
Vice-President and, if a transfer agent has been appointed, of the Secretary or
Assistant Secretary may be engraved, lithographed or printed upon the
certificates or any one or more of them and all such certificates, when signed
by the Secretary, an Assistant Secretary, such other person as the Directors
authorize, or, if a transfer agent has been appointed, an authorized officer of
such transfer agent, shall be valid and binding upon the Company.
14. Subject to any regulations made at any time by the Directors, each
shareholder may have title to the shares registered in his name evidenced by any
number of certificates so long as the aggregate of the shares stipulated in such
certificates equals the aggregate registered in his name.
15. Where shares are registered in the names of two or more persons, the
Company shall not be bound to issue more than one certificate or one set of
certificates, and such certificate or set of certificates shall be delivered to
the person first named on the register.
16. Any certificate that has become worn, damaged or defaced may, upon
its surrender to the Directors, be canceled and replaced by a new certificate.
Any certificate that has become lost or destroyed may also be replaced by a new
certificate upon proof of such loss or destruction to the satisfaction of the
Directors and the furnishing to the Company of such undertakings of indemnity as
the Directors deem adequate.
17. The sum of one dollar or such other such as the Directors from time
to time determine shall be paid to the Company for every certificate other than
the first certificate issued to any holder in respect of any share or shares.
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18. The Directors may cause one or more branch registers of members to
be kept in any place or places, whether inside or outside of Nova Scotia.
CALLS
19. The Directors may from time to time make such calls as they think
fit upon the shareholders in respect of all moneys unpaid on the shares held by
them respectively and not made payable at fixed times by the conditions on which
such shares were allotted and each shareholder shall pay the amount of every
call so made on him to the persons and at the times and places appointed by the
Directors. A call may be made payable by installments.
20. A call shall be deemed to have been made at the time when the
resolution of the Directors authorizing such call was passed.
21. At least fourteen days' notice of any call shall be given, and such
notice shall specify the time and place at which and the person to whom such
call shall be paid.
22. If the sum payable in respect of any call or installment is not paid
on or before the day appointed for the payment thereof, the holder for the time
being of the share in respect of which the call has been made or the installment
is due shall pay interest on such call or installment at such rate as the
Directors may determine from the day appointed for the payment thereof up to the
time of actual payment.
23. At the trial or hearing of any action for the recovery of any money
due for any call, it shall be sufficient to prove that the name of the
shareholder sued is entered on the register as the holder or one of the holders
of the shares or shares in respect of which such debt accrued, that the
resolution making the call is duly recorded in the minute book and that notice
of such call was duly given to the shareholder sued in pursuance of these
Articles. It shall not be necessary to prove the appointment of the Directors
who made such call or any other matters whatsoever and the proof of the matters
stipulated shall be conclusive evidence of the debt.
24. The Directors may, if they think fit, receive from any shareholder
willing to advance it all or any part of the moneys due upon shares held by him
beyond the sums actually called for; and upon the moneys so paid or satisfied in
advance or so much thereof as from time to time exceeds the amount of the calls
then made upon the shares in respect of which such advance has been made the
Company may pay interest at such rate as the shareholder paying such sum in
advance and the Directors agree upon, or the Directors may agree with such
shareholder that he may participate in profits upon the amount so paid or
satisfied in advance.
FORFEITURE OF SHARES
25. If any shareholder fails to pay any call or installment on or before
the day appointed for payment, the Directors may at any time thereafter while
the call or
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<PAGE>
installment remains unpaid serve a notice on such shareholder requiring him to
pay the call or installment together with any interest that may have accrued and
all expenses that may have been incurred by the Company by reason of such non-
payment.
26. The notice shall name a day (not being less than fourteen days after
the date of the notice) and a place or places on and at which such call or
installment and such interest and expenses are to be paid. The notice shall also
state that, in the event of nonpayment on or before the day and at the place or
one of the places so named, the shares in respect of which the call was made or
installment is payable will be liable to be forfeited.
27. If the requirements of any such notice are not complied with, any
shares in respect of which such notice has been given may at any time
thereafter, before payment of all calls or installments, interest and expenses
due in respect thereof, be forfeited by a resolution of the Directors to that
effect. Such forfeiture shall include all dividends declared in respect of the
forfeited shares and not actually paid before the forfeiture.
28. When any share has been so forfeited, notice of the resolution shall
be given to the shareholder in whose name it stood immediately prior to the
forfeiture and an entry of the forfeiture shall be made in the register.
29. Any share so forfeited shall be deemed the property of the Company
and the Directors may sell, re-allot or otherwise dispose of it in such manner
as they think fit.
30. The Directors may at any time before any share so forfeited has been
sold, re-allotted or otherwise disposed of, annul the forfeiture thereof upon
such conditions as they think fit.
31. Any shareholder whose shares have been forfeited shall nevertheless
be liable to pay and shall forthwith pay to the Company all calls, installments,
interest and expenses owing upon or in respect of such shares at the time of the
forfeiture together with interest thereon at such rate as the Directors may
determine, from the time of forfeiture until payment. The Directors may enforce
such payment if they think fit, but are under no obligation to do so.
32. A certificate in writing under the hands of two of the Directors and
countersigned by the Secretary stating that a share has been duly forfeited on a
specified date in pursuance of these Articles and the time when it was forfeited
shall be conclusive evidence of the facts therein stated as against all persons
who would have been entitled to the share but for such forfeiture.
LIEN ON SHARES
33. The Company shall have a first and paramount lien upon all shares
(other than fully paid up shares) registered in the name of each shareholder
(whether solely or jointly with others) and upon the proceeds from the sale
thereof for his debts, liabilities and other engagements, solely or jointly with
any other person, to or with the Company, whether or not the period for the
payment, fulfillment or discharge thereof has actually
5
<PAGE>
arrived, and such lien shall extend to all dividends from time to time declared
in respect of such shares. Unless otherwise agreed, the registration of a
transfer of shares shall operate as a waiver of any lien of the Company on such
shares.
34. For the purpose of enforcing such lien the Directors may sell the
shares subject to it in such manner as they think fit; but no sale shall be made
until the period for the payment, fulfillment or discharge of such debts,
liabilities or other engagements has arrived, and until notice in writing of the
intention to sell has been given to such shareholder, his executors or
administrators and default has been made by him or them in such payment,
fulfillment or discharge for seven days after such notice.
35. The net proceeds of any such sale after the payment of all costs
shall be applied in or towards the satisfaction of such debts, liabilities or
engagement and the residue, if any, paid to such shareholder or his executors,
administrators or assigns.
VALIDITY OF SALES
36. Upon any sale after forfeiture or the enforcing of a lien in
purported exercise of the powers given by these Articles the Directors may cause
the purchaser's name to be entered in the register in respect of the shares
sold, and the purchaser shall not be bound to see to the regularity of the
proceedings or to the application of the purchase money, and after his name has
been entered in the register in respect of such shares the validity of the sale
shall not be impeached by any person and the remedy of any person aggrieved by
the sale shall be in damages only and against the Company exclusively.
TRANSFER OF SHARES
37. The instrument of transfer of any share in the Company shall be
signed by the transferor. The transferor shall be deemed to remain the holder of
such share until the name of the transferee is entered in the register in
respect thereof and shall be entitled to receive any dividend declared thereon
before the registration of the transfer.
38. The instrument of transfer of any share shall be in writing in the
following form or as near thereto as circumstances will permit:
For value received _______________ hereby sell, assign and transfer
unto ___________ shares of the capital stock of the Company
represented by the within certificate, and do hereby irrevocably
constitute and appoint _________________ to transfer such stock on the
books of the Company with full power of substitution in the premises.
Dated the ____ day of __________, 19__.
Witness:
6
<PAGE>
39. The Directors may, without assigning any reason therefor, decline to
register any transfer of shares not fully paid up or upon which the Company has
a lien.
40. Every instrument of transfer shall be left at the office of the
Company or its transfer agent where the principal or a branch register of
members is maintained for registration together with the certificate of the
shares to be transferred and such other evidence as the Company may require to
prove the title of the transferor or his right to transfer the shares.
41. A fee not exceeding one dollar may be charged for each transfer and
shall, if required by the Directors, be paid before its registration.
42. Every instrument of transfer shall, after its registration, remain
in the custody of the Company. Any instrument of transfer that the Directors
decline to register shall, except in case of fraud, be returned to the person
who deposited it.
43. Repealed.
TRANSMISSION OF SHARES
44. The executors or administrators of a deceased member (not being one
of several joint holders) shall be the only persons recognized by the Company as
having any title to the shares registered in the name of such member. When a
share is registered in the names of two or more joint holders, the survivor or
survivors or the executors or administrators of the deceased survivor, shall be
the only persons recognized by the Company as having any title to, or interest
in, such share.
45. Any person becoming entitled to shares in consequence of the death
or bankruptcy of any member or in any way other than by allotment or transfer
upon producing such evidence of his being entitled to act in the capacity
claimed or of his title as the Directors think sufficient, may, with the consent
of the Directors (which they shall not be under any obligation to give) be
registered as a member in respect of such shares, or may, without being
registered, transfer such shares subject to the provisions of these Articles
respecting the transfer of shares. The Directors shall have the same right to
refuse to register a person entitled by transmission to any shares, or his
nominee, as if he were the transferee named in an ordinary transfer presented
for registration.
46. Repealed.
47. Repealed.
INCREASE AND REDUCTION OF CAPITAL
48. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time
7
<PAGE>
to time, by a resolution of its shareholders passed at a general meeting,
increase its capital by the creation of new shares of such amount as it thinks
expedient.
49. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
new shares may be issued upon such terms and conditions and with such rights and
privileges annexed thereto as the Company in general meeting determines or, if
no direction is given, as the Directors determine, and in particular (but
without limiting the generality of the foregoing) such shares may be issued with
a preferential or qualified right to dividends and to the assets of the Company
upon distribution and with a special or without any right of voting.
50. The Company in general meeting may, before the issue of any new
shares, determine that such shares or any of them, shall be offered in the first
instance to all the then members or to the members of any class of shareholders
in proportion to the amount of the capital held by them, or make any other
provisions as to the issue and allotment of such shares. In default of any such
determination or to the extent that it does not apply, the new shares may be
dealt with as if they formed part of the shares in the original capital.
51. Except so far as otherwise provided by the conditions of issue or
these Articles, any capital raised by the creation of new shares shall be
considered part of the original capital and shall be subject to the provisions
herein contained with reference to payment of calls and installments, transfer
and transmission, forfeiture, lien and otherwise.
52. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time by special resolution reduce its share capital and
any capital redemption reserve fund in any way and with and subject to any
incident authorized and consent required by law.
ALTERATION OF CAPITAL
53. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time in general meeting consolidate and divide all or
any of its share capital into shares of larger amount than its existing shares.
54. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time in general meeting convert all or any of its paid-
up shares into stock and re-convert that stock into paid-up shares of any
denomination.
55. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time by special resolution subdivide its shares, or any
of them, into shares of smaller amount than is fixed by the Memorandum of
Association so, however, that in the
8
<PAGE>
subdivision the proportion between the amount paid and the amount, if any,
unpaid on each reduced share shall be the same as it was in the case of the
share from which the reduced share is derived. The special resolution whereby
any share is subdivided may determine that, as between the holders of the shares
resulting from such subdivision, one or more of such shares shall have some
preference or special advantage as regards dividend, capital, voting or
otherwise, over, or as compared with, the others or other.
56. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time in general meeting exchange shares of one
denomination for another.
57. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time in general meeting cancel shares which, at the
date of the passing of the resolution in that behalf, have not been taken or
agreed to be taken by any person, and diminish the amount of its share capital
by the amount of the shares so canceled.
58. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time by special resolution convert any part of its
unissued share capital into preference shares redeemable or purchasable by the
Company in the manner provided in the Act.
59. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series on these issues, the
Company may from time to time by special resolution provide for the issue of
shares without any nominal or par value provided that, upon any such issue, a
declaration executed by the Secretary of the Company must be filed with the
Registrar stating the number of shares issued and the amount received therefor.
60. The Company may from time to time by special resolution convert all
or any of its previously authorized, unissued or issued, fully paid-up shares
other than preferred shares, with nominal or par value into the same number of
shares without any nominal or par value, and reduce, maintain or increase
accordingly its liability or any of its shares so converted; provided that the
power to reduce its liability on any of its shares so converted may, where it
results in a reduction of capital, only be exercised subject to confirmation by
the courts as provided by the Act.
61. The Company may from time to time by special resolution convert all
or any of its previously authorized, unissued or issued, fully paid-up shares
without nominal or par value into the same or a different number of shares with
nominal or par value. For such purpose the shares issued without nominal or par
value and replaced by shares with a nominal or par value shall be considered as
fully paid, but their aggregate par value shall not exceed the value of the net
assets of the Company as represented by the shares without par value before the
conversion.
62. Subject to the provisions of the Act from time to time in force, the
Company may redeem or purchase any preference shares which by their provisions
may be
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redeemed or purchased by the Company. The Directors may, subject to such
provisions, determine the manner and the terms for redeeming or purchasing such
preference shares and may from time to time provide a sinking fund on such terms
as they think fit for the redemption or purchase of preference shares of any
class or series.
63. Repealed.
CLASSES OF SHARES
64. Subject to the rights, if any, of the holders of shares of any class
or series of shares to vote separately as a class or series thereon, subject to
the provisions of the Company's Memorandum of Association, and without prejudice
to any special rights previously conferred on the holders of existing shares,
any share may be issued with such preferred, deferred or other special rights,
or with such restrictions, whether in regard to dividends, voting, return of
share capital or otherwise, as the Company may from time to time determine by
special resolution. Any preference shares may with the sanction of a special
resolution of the Company be issued on the terms that they are, at the option of
the Company, liable to be redeemed or purchased by the Company.
MODIFICATION OF RIGHTS OF SHAREHOLDERS
65. If at any time the share capital of the Company is divided into
different classes of shares in pursuance of the provisions of the next preceding
Article or otherwise, all or any of the rights and privileges attached to any
such class may be modified, altered, varied, affected, commuted, abrogated or
otherwise dealt with by agreement between the Company and any person purporting
to contract on behalf of that class, provided such agreement is ratified in
writing by the holders of at least a two-thirds majority in number of the issued
shares of the class or by a resolution passed by the same majority, and all the
provisions hereinafter contained as to general meetings, shall, mutatis
mutandis, apply to every meeting of such class of shareholders convened for such
purpose, save that the quorum for such a meeting shall be members holding or
representing by proxy one-half in number of the issued shares of the class. This
Article shall not be deemed by implication to curtail the power of modification
which the Company would have if the Article were omitted.
66. Repealed.
BORROWING POWERS
67. The Directors on behalf of the Company may from time to time in
their discretion:
(a) Raise or borrow money for the purpose of the Company or any of them;
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(b) Secure, subject to compliance with Section 88 of the Act, the
repayment of moneys so raised or borrowed in such manner and upon
such terms and conditions in all respects as they think fit, and
in particular by the execution and delivery of mortgages of the
Company's real or personal property, or by the issue of bonds,
debentures or debenture stock of the Company secured by mortgage
or other charge upon all or any part of the property of the
Company, both present and future, including its uncalled capital
for the time being;
(c) Sign or endorse bills, notes, acceptances, cheques, contracts, and
other evidence of or securities for money borrowed or to be
borrowed for the purposes aforesaid;
(d) Pledge debentures as security for loans.
68. Bonds, debentures and other securities may be made assignable, free
from any equities between the Company and the person to whom such securities
were issued.
69. Any bonds, debentures and other securities may be issued at a
discount, premium or otherwise and with special privileges as to redemption,
surrender, drawings, allotment of shares, attending and voting at general
meetings of the Company, appointment of Directors and other matters.
MEETINGS
70. (1) For the purpose of determining
(a) shareholders entitled to receive payment of a dividend, or
(b) who is a shareholder for any other purpose except the right to
receive notice of, or to vote at, a meeting,
the directors may fix in advance a date as the record date for the determination
of shareholders, but the record date so fixed shall not precede by more than 50
days the particular action to be taken.
(2) For the purpose of determining shareholders entitled to receive
notice of a meeting of shareholders, the directors may fix in advance a date as
the record date for the determination of shareholders, but the record date so
fixed shall not precede the date on which the meeting is to be held by more than
70 days or less than 21 days.
(3) If no record date is fixed pursuant to subsection (1) or (2),
(a) the record date for the determination of shareholders for any
purpose, other than to establish a shareholder's right to
receive notice of, or to vote at, a meeting, is the day on
which the directors pass the resolution relating to the
particular purpose; and
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(b) the record date for the determination of shareholders entitled
to receive notice of, or to vote at, a meeting of shareholders
is
(i) the day immediately preceding the day on which the notice
is given, or
(ii) if no notice is given, the day on which the meeting is
held.
71. Ordinary general meetings shall be held at least once in every
calendar year at such time and place as may be determined by the Directors and
not later than fifteen months after the preceding ordinary general meeting. All
other meetings of the Company shall be called special general meetings.
72. The directors, whenever they think fit, may convene a special
general meeting and on the requisition of members of the Company holding not
less than five percent of the shares of the Company carrying the right to vote
at the meeting sought to be held, the directors shall forthwith proceed to
convene a special general meeting of the Company to be held at such time and
place as may be determined by the directors.
73. The requisition shall state the objects of the meeting requested, be
signed by the members making it and deposited at the registered office of the
Company. It may consist of several documents in like form each signed by one or
more of the requisitionists.
74. If the Directors do not proceed to cause a meeting to be held within
twenty-one days from the date that the requisition is so deposited, the
requisitionists, or a majority of them in value, may themselves convene a
meeting, provided it is held within three months after the date of the deposit
of the requisition.
75. If at any such meeting a resolution requiring confirmation at
another meeting is passed, the Directors shall forthwith convene a further
special general meeting for the purpose of considering such resolution and, if
thought fit, of confirming it as a special resolution; and if the Directors do
not convene the meeting within seven days from the date of the passing of the
first resolution, the requisitionists, or a majority of them in value, may
themselves convene the meeting.
76. Such meetings shall be convened as nearly as possible as meetings
are to be convened by the Directors.
77. At least twenty-one days' notice of every general meeting specifying
the place, day and hour of the meeting, and, in the case of special business,
the general nature of such business, shall be sent to the members entitled to be
present at such meeting by notice sent by post or otherwise served as
hereinafter provided.
78. When it is proposed to pass a special resolution, the two meetings
may be conveyed by the same notice, and it shall be no objection to such notice
that it only
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convenes the second meeting contingently upon the resolution being passed by the
requisite majority at the first meeting.
79. The accidental omission to give any such notice to any of the
members or the failure of any shareholder to receive such notice shall not
invalidate any resolution passed at any such meeting.
PROCEEDINGS AT GENERAL MEETINGS
80. (1) The business of an ordinary general meeting shall be to receive
and consider the financial statements of the Company, the reports of the
Directors and of the auditors, to elect Directors in the place of those retired,
to appoint auditors and to transact any other business which under these
Articles ought to be transacted at any ordinary general meeting.
(2) No business shall be transacted at any special general meeting
except the business specified in the notice calling such meeting.
81. No business shall be transacted at any general meeting unless the
quorum requisite is present at the commencement of the business. A corporation
that is a member of the Company and has a duly authorized agent or
representative present at any such meeting shall for the purpose of this Article
be deemed to be personally present at such meeting.
82. Two members personally present entitled to vote and holding or
representing by proxy not less than a majority in number of the issued shares of
the Company as confer upon the holders thereof the right to vote at such meeting
shall constitute a quorum for a meeting of the members of the Company.
83. The Chairman of the Board shall be entitled to take the chair at
every general meeting or, if there be no Chairman of the Board, or if he is not
present within fifteen minutes after the time appointed for holding the meeting,
the President or, failing him, a Vice-President shall be entitled to take the
chair. If the Chairman, the President or a Vice-President is not present within
fifteen minutes after the time appointed for holding the meeting, the members
present entitled to vote at the meeting shall choose another Director as
chairman and, if no Director is present or if all the Directors present decline
to take the chair, then the members present entitled to vote shall choose one of
their number to be chairman.
84. If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting, if it was convened pursuant to a requisition
under Articles 72-76, shall be dissolved; if it was convened in any other way,
it shall stand adjourned to the same day, in the next week, at the same time and
place. If at such adjourned meeting a quorum is not present, those members
entitled to vote who are present shall be a quorum and may transact the business
for which the meeting was called.
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85. At any general meeting, a resolution put to the meeting shall be
decided by a show of hands unless, either before or on the declaration of the
result of the show of hands, a poll is demanded by (i) the chairman or (ii) at
last five members present and entitled to vote at the meeting or (iii) a member
or members holding or representing by proxy at least one-tenth in number of the
issued shares of the Company that confer upon their holders the right to vote at
the meeting.
86. When a resolution is decided by a show of hand, a declaration by the
chairman that a resolution has been carried, carried by a particular majority,
lost or not carried by a particular majority and an entry to that effect in the
Company's book of proceedings shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favor or against such
resolution.
87. When a poll is demanded, it shall be taken in such manner at such
time and place as the chairman of the meeting directs, and either at once or
after an interval or adjournment or otherwise. The result of the poll shall be
deemed to be the resolution of the meeting at which the poll was demanded. The
demand of a poll may be withdrawn. When any dispute occurs over the admission or
rejection of a vote, it shall be resolved by the chairman and such determination
made in good faith shall be final and conclusive.
88. When there is equality of votes, either on a show of hands or on a
poll, the question shall be deemed defeated and the chairman shall have no
casting vote in any circumstance.
89. The chairman of a general meeting may, with the consent of a
majority of the members present, adjourn the meeting from time to time and from
place to place, but no business shall be transacted at any adjourned meeting
other than the business left unfinished at the meeting that was adjourned.
90. Any poll demanded on the election of a chairman of a meeting or any
question of adjournment shall be taken at the meeting without adjournment.
91. The demand of a poll shall not prevent the continuance of a meeting
for the transaction of any business other than the question on which a poll has
been demanded .
91.A. Repealed.
VOTES OF MEMBERS
92. Subject to the provisions applicable to any shares issued under
conditions limiting or excluding the rights of the holders thereof to vote at
general meetings, on a show of hands every member present in person and proxy
holder, subject to Section 84F(2) of the Act shall have one vote, and upon a
poll every member present in person or by proxy shall have one vote for every
share held by him. Where a corporation that is a member is present by proxy or a
representative duly authorized under the Act, such proxy or representative
shall, whether or not he himself is a member, be entitled to vote for such
corporation either on a show of hands or at a poll.
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93. Any person entitled under Article 45 to transfer any shares may vote
at any general meeting in respect thereof in the same manner as if he were the
registered holder of such shares so long as he, at least forty-eight hours
before the time of holding the meeting or adjourned meeting at which he proposes
to vote, satisfies the Directors of his right to transfer such shares.
94. Where there are joint registered holders of any share, any one of
such persons may vote such share at any meeting, either personally or by proxy,
as if he were solely entitled to it. If more than one of such joint holders is
present at any meeting, personally or by proxy, the one whose name stands first
on the register in respect of such share shall alone be entitled to vote it.
Several executors or administrators of a deceased member in whose name any share
stands shall for the purpose of this Article be deemed joint holders thereof.
95. Votes may be cast either personally or by proxy or, in the case of a
corporation, by a representative duly authorized under the Act.
96. The instrument appointing a proxy shall be in writing under the hand
of the appointor or of his attorney duly authorized in writing, or, if such
appointor is a corporation, under its common seal. Holders of share warrants
shall not be entitled to vote by proxy in respect of the shares included in such
warrants unless otherwise expressed in such warrants.
97. A member of unsound mind in respect of whom an order has been made
by any court having jurisdiction in lunacy may vote by his guardian or other
person in the nature of a guardian appointed by that court and any such guardian
or other person may vote by proxy.
98. The instrument appointing a proxy and the power of attorney or other
authority, if any, under which it is signed or a notarially certified copy of
that power or authority shall be deposited at the office of the Company not less
than forty-eight hours or such shorter period as the Directors may determine
before the time for holding the meeting or adjourned meeting at which the person
named in such instrument proposes to vote. No instrument appointing a proxy
shall be valid after the expiration of twelve months from the date of its
execution. Notice of the time before which proxies must be deposited shall be
given in the notice calling the meeting.
99. A vote given in accordance with the terms of an instrument of proxy
shall be valid notwithstanding the previous death of the principal, the
revocation of the proxy, or the transfer of the share in respect of which the
vote is given, provided no intimation in writing of the death, revocation or
transfer is received at the office of the Company before the meeting or by the
chairman of the meeting before the vote is given.
100. Every instrument of proxy, whether for a specified meeting or
otherwise, shall as nearly as circumstances will admit, be in the form following
or in such other form as the Directors may from time to time determine:
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BOLIVIAN POWER COMPANY LIMITED
I, ______________, of ______________, in the County of ____________,
being a member of BOLIVIAN POWER COMPANY LIMITED, hereby appoint
____________________ of ______________ (or failing him _____________
of _____________) as my proxy to vote for me and on my behalf at the
ordinary general (or special general as the case may be) meeting of
the Company, to be held on the ____ day of _____________ and at any
adjournment thereof, or at any meeting of the Company which may be
held within ___ months from the date thereof.
As witness my hand this ____ day of ___________, 19__.
WITNESS:
-------------------------------------------------
Shareholder
101. Except to the extent rights are conferred by Section 12(1) of the
Third Schedule of the Act, no member shall be entitled to be present or to vote
on any question, either personally or by proxy or as proxy for another member,
at any general meeting or upon a poll, or be reckoned in a quorum whilst any
call or other sum is due and payable to the Company in respect of any of the
shares of such member.
102. Any resolution passed by the Directors, notice of which has been
given to the members in the manner in which notices are hereinafter directed to
be given and which is, within one month after it has been passed, ratified and
confirmed in writing by members entitled on a poll to three-fifths of the votes,
shall be as valid and effectual as a resolution of a general meeting. This
Article shall not apply to a resolution for winding up the Company or to a
resolution dealing with any matter that by statute or these Articles ought to be
dealt with by a special resolution or any action which, by virtue of Section
12(1) of the Third Schedule to the Act, requires approval in accordance with
that subsection.
DIRECTORS
103. The number of Directors shall not be less than seven nor more than
twenty, the precise number to be determined from time to time by resolution of
the Directors of the Company, and until the precise number is so determined,
such number shall be deemed to be seven.
(2) Repealed
104. Notwithstanding anything herein contained the subscribers to the
Memorandum of Association of the Company shall be the first Directors of the
Company.
105.A. The Directors shall have power at any time and from time to time
to appoint any other person as a Director either to fill a casual vacancy or as
an additional
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Director but the total number of Directors shall not at any time exceed twenty.
No such appointment shall be effective unless two-thirds of the Directors concur
therein.
105.B. Repealed.
106. There shall be no share qualification of a Director.
107. Director may retire from office upon giving to the Company one
month's notice in writing of his intention so to do. Such resignation shall take
effect upon the expiration of such notice or its earlier acceptance.
108. The Directors shall be paid out of the funds of the Company as
remuneration for their service such sums, if any, as the Company in general
meeting may determine and such remuneration shall be divided among them in such
proportions and manners as the Directors determine. The Directors may also be
paid their reasonable traveling, hotel and other expenses incurred in attending
board meetings and the execution of their duties as Directors.
109. The continuing Directors may act notwithstanding any vacancy in
their body, but if the number falls below the minimum permitted, the Directors
shall not, except in emergencies or for the purpose of filling up vacancies, act
so long as the number is below the minimum.
110. A Director may, in conjunction with the office of Director, and on
such terms as to remuneration and otherwise as the Directors arrange or
determine, hold any other office or employment or place of profit under the
Company or under any company in which this Company is a shareholder or is
otherwise interested or under any other person, firm, corporation, government
agency, domestic or foreign, with respect to which the Company has from time to
time outstanding debts, liabilities or obligations.
111. The office of a Director shall ipso facto be vacated:
(a) if he becomes bankrupt, makes an authorized assignment,
suspends payment, or compounds with his creditors;
(b) or if he is found a lunatic or becomes of unsound mind; or
(c) if by notice in writing to the Company he resigns his
office; or
(d) if he is removed by special resolution as provided by
Article 116.
112. No Director shall be disqualified by his office from contracting
with the Company, either as vendor, purchaser, or otherwise, nor shall any such
contract, or any contract or arrangement entered into or proposed to be entered
into by or on behalf of the Company in which any Director is in any way
interested, either directly or indirectly, be avoided, nor shall any Director so
contracting or being so interested be liable to account to the Company for any
profit realized by any such contract or arrangement by reason only of such
Director holding that office or of the fiduciary relation thereby established.
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However, the existence and nature of his interest must be declared by him at a
meeting of the Directors of the Company. In the case of a proposed contract such
Director shall declare his interest at the meeting of Directors at which the
question is first taken into consideration, or if he was not then interested, at
the next meeting held after he became so interested, and when he becomes
interested after it is made, he shall declare his interest at the first meeting
held after he becomes so interested. A general notice given to the Directors by
a Director that he is a member, shareholder or director of any specified firm or
company and is to be regarded as interested in any transaction or contract with
such firm or company shall be deemed to be a sufficient declaration under this
Article and no further or other notice shall be required. No Director shall as a
Director vote in respect of any contract or arrangement in which he is so
interested, and if he does so vote, his vote shall not be counted. This
prohibition may at any time or times be suspended or relaxed to any extent by a
general meeting and shall not apply to any contract by or on behalf of the
Company to give to the Directors or any of them any security for advances or by
way of indemnity.
ELECTION OF DIRECTORS
113.A. (1) The Directors of the Company shall be divided into three
classes, each class to be as nearly equal in number as possible, and shall be
designated as Class I, Class II and Class III Directors. Each Class of Directors
shall be elected and retire in rotation. Of the total number of Directors
elected at the 1995 Annual Meeting of Shareholders, three shall be designated as
Class I Directors for a term expiring at the 1996 Annual Meeting of
Shareholders, two shall be designated as Class II Directors for a term expiring
at the 1997 Annual Meeting of Shareholders, and two shall be designated as Class
III Directors for a term expiring at the 1998 Annual Meeting of Shareholders.
At each succeeding Annual Meeting of shareholders of the Company, the
successors of the class of Directors whose terms expire at that meeting shall be
elected for a term expiring at the Annual Meeting of Shareholders held on the
third year following the year of their election or until their successors are
elected. The designation of which individual Directors elected at the 1995
Annual Meeting shall comprise each class of Directors shall be made by the
Directors immediately following the coming into force of this Article 113A.
(2) If at any time or from time to time, the number of Directors
is further increased, each additional position shall be designated by the
Directors as Class I, II or III in such numbers as will result, as nearly as may
be, in there being one third of the Directors in each of Classes I, II and III,
and the term of office of the person appointed to the position shall expire at
the same annual general meeting as the terms of the other Directors of that
class; if at any time or from time to time, the number of Directors is decreased
to not less than seven, then, at the annual general meeting of shareholders next
following the date on which the Directors resolve to reduce the number of
Directors, all the Directors then in office shall retire and Directors shall be
elected at such meeting of shareholders in the same manner as at the 1995 annual
general meeting of shareholders.
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(3) Only the holders of common shares shall be entitled to vote
for the election of Directors. A retiring Director shall be eligible for
reelection.
113.B. Repealed.
113.C. Common shareholders, other than the Board of Directors, may
nominate a person to be a Director only by means of a "proposal" submitted to
the Company in compliance with the provisions of section 9 of the Third Schedule
of the Companies Act (Nova Scotia); such proposal shall set forth the name and
address of the common shareholder submitting it, the name, address and
occupation of the person nominated and a statement as to whether he then holds
the necessary shares to be qualified to be a Director; a description of any
arrangements or understandings between the common shareholder and the nominee,
such other information as would be required to be included in a proxy statement
soliciting proxies for the election of such nominee, and the consent of such
nominee to serve as a Director if elected.
114. If at any ordinary general meeting at which an election of
Directors ought to take place no such election takes place, or if no ordinary
general meeting is held in any year or period of years, the retiring Directors
shall continue in office until their successors are elected and a general
meeting for that purpose may on notice be held at any time.
115. Repealed.
116. (1) The Company may, by a resolution approved at a meeting of the
common shareholders by the affirmative vote of not less than seventy-five
percent (75%) of the common shares of the Company then outstanding, remove any
Director only for cause before the expiration of his term of office and appoint
another person who may be qualified or become qualified in his stead.
(2) Any Director so appointed shall hold office during such time
only as the director in whose place he is appointed would have held the same if
he had not been removed.
117. Any casual vacancy occurring among the Directors maybe filled by
the Directors, but any person so chosen shall retain office only so long as the
vacating Director would have retained it if he had continued as a Director.
117.B. Repealed.
MANAGING DIRECTOR
118. The Directors may from time to time appoint one or more persons,
each of whom shall be a Director or a senior executive officer holding the title
of chairman, president, chief executive officer or executive vice president, to
be a Managing Director or Managing Directors of the Company, either for a fixed
term or without any limitation as to the period for which he or they are to hold
such office, and may from time to time
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remove or dismiss him or them from office and appoint another or others in his
or their place or places.
119. A Managing Director shall, subject to the provisions of any
contract between him and the Company, be subject to the same provisions as to
resignation and removal as the other Directors of the Company, and if for any
reason he ceases to hold the office of Director, he shall ipso facto,
immediately cease to be a Managing Director.
120. The remuneration of a Managing Director shall from time to time be
fixed by the Directors and may be by way of salary, commission, participation in
profits or any combination of those modes.
121. The Directors may from time to time entrust to and confer upon the
Managing Director for the time being such powers exercisable under these
Articles by the Directors as they think fit, and may confer such powers for such
time, and to be exercised for such objects and purposes and upon such terms and
conditions, and with such restrictions as they think expedient; and they may
confer such powers either collaterally with, or to the exclusion of, and in
substitution for, all or any of the powers of the Directors in that behalf; and
may from time to time revoke, withdraw, alter or vary all or any of such powers.
PRESIDENT AND VICE-PRESIDENTS
122. (a) The Directors shall elect the President of the Company (who
need not be a Director) and may determine the period for which he is to hold
office. The President shall have general supervision of the business of the
Company and shall perform such duties as may be assigned to him from time to
time by the Board.
(b) The Directors may also elect Vice-Presidents and determine the
period for which they are to hold office. A Vice-President need not be a
Director and any Vice-President shall, at the request of the President or the
Board and subject to the directions of the Board, perform the duties of the
President during the absence, illness or incapacity of the President.
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CHAIRMAN OF THE BOARD
123. The Directors may also elect one of their number to be Chairman of
the Board and may determine the period during which he is to hold office. He
shall perform such duties and receive such special remuneration as the Board may
from time to time provide.
123.A. The Directors may also elect a Chief Executive Officer who shall
be the principal executive officer of the Company and, subject to the control of
the Board of Directors, shall supervise and control all of the business and
affairs of the Company.
PROCEEDINGS OF DIRECTORS
124. The Directors may meet together for the dispatch of business,
adjourn and otherwise regulate their meetings and proceedings as they think fit,
and may determine the quorum necessary for the transaction of business. Until
otherwise determined two Directors shall constitute a quorum.
125. Meetings of Directors may be held either within or without the
Province of Nova Scotia and the Directors may from time to time make
arrangements relating to the time and place of holding Directors' meetings, the
notices to be given for such meetings and what meetings may be held without
notice. Unless otherwise provided by such arrangements:
(1) A meeting of Directors may be held at the close of every
ordinary general meeting of the Company without notice.
(2) Notice of every other Directors' meeting may be delivered or
mailed or telegraphed or telephoned to each Director before the meeting is to
take place. Such notice shall be delivered or mailed or telegraphed or
telephoned at least forty-eight hours before the time fixed for the meeting.
(3) A meeting of Directors may be held without formal notice if all
the Directors are present or if those absent have signified their assent to such
meeting or their consent to the business transacted at such meeting.
(4) A meeting of Directors may be held by means of a telephone
conference call or any other means of communication by which all Directors
participating in the meeting may hear each other. A Director participating in a
meeting by such means shall be considered to be present in person at the
meeting.
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126. The President or any other Director may at any time, and the
Secretary, upon the request of the President or any other Director, shall summon
a meeting of the Directors to be held at the Registered Office of the Company.
The President, the Chairman of the Board or a majority of the Board may at any
time on a meeting to be held elsewhere.
127. (1) Questions arising at any meeting of Directors shall be decided
by a majority of votes and when there is an equality of votes the chairman of
the meeting shall have a second or casting vote.
(2) At any meeting of Directors the chairman shall receive and
count the vote of any Director not present in person at such meeting on any
question or matter arising at such meeting whenever such absent Director has
indicated by telegram, letter or other writing lodged with the chairman of such
meeting the manner in which he desires to vote on such question or matter and
such question or matter has been specifically mentioned in the notice calling
the meeting as a question or matter to be discussed or decided thereat. In
respect of any such question or matter so mentioned in such notice any Director
may give to any other Director a proxy authorizing such other Director to vote
for such first named Director at such meeting, and the chairman of such meeting,
after such proxy has been lodged with him, shall receive and count any vote
given in pursuance thereof notwithstanding the absence of the Director giving
such proxy.
128. If no Chairman of the Board is elected, or if at any meeting of
Directors he is not present within five minutes after the time appointed for
holding the meeting, the President, if a Director, shall preside. If the
President, being a Director, is not present at such time, a Vice-President who
is also a Director shall preside. If neither the President nor a Vice-President
who is also a Director is present at such time, the Directors present shall
choose some one of their number to be chairman of the meeting.
129. A meeting of the Directors at which a quorum is present shall be
competent to exercise all or any of the authorities, powers and discretions for
the time being vested in or exercisable by the Directors generally.
130. The Directors may delegate any of their powers to committees
consisting of such number of members of their body as they think fit. Any
committee so formed shall in the exercise of the powers so delegated conform to
any regulations that may be imposed on them by the Directors.
131. The meetings and proceedings of any such committee consisting of
two or more members shall be governed by the provisions contained in these
Articles for regulating the meetings and proceedings of the Directors insofar as
they are applicable and are not superseded by any regulations made by the
Directors.
132. All acts done at any meeting of the Directors or of a committee of
Directors or by any person acting as a Director shall, notwithstanding that it
is afterwards discovered that there was some defect in the appointment of the
Directors, or persons so
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acting, or that they or any of them are disqualified, be as valid as if every
such person had been duly appointed and was qualified to be a Director.
133. A resolution in writing signed by all the Directors entitled to
vote on the matter shall be as valid and effectual as if it had been passed at a
meeting of the Directors duly called and constituted.
134. If any one or more of the Directors is called upon to perform extra
services or to make any special exertions in going or residing abroad or
otherwise for any of the purposes of the Company or the business thereof, the
Company may remunerate the Director or Directors so doing, either by a fixed sum
or by a percentage of profits or otherwise. Such remuneration shall be
determined by the Directors and may be either in addition to or in substitution
for his share in the remuneration provided under Article 108.
134.A. Repealed.
REGISTERS
135. The Directors shall cause to be kept at the Company's head office
in accordance with the provisions of the Act a register of the members of the
Company, a register of the bond and debenture holders of Company and a register
of its Directors. Branch registers of the members and the bond and debenture
holders may be kept elsewhere, either within or without Nova Scotia, in
accordance with the Act.
MINUTES
136. The Directors shall cause minutes to be entered in books designated
for the purpose:
(1) of all appointments of officers;
(2) of the names of the Directors present at each meeting of
Directors and of any committees of Directors;
(3) of all orders made by the Directors and committees of
Directors;
(4) of all resolutions and proceedings of meetings of the
Shareholders and of the Directors.
Any such minutes of any meeting of the Directors or of any committee of the
Directors or of the Company, if purporting to be signed by the chairman of such
meeting or by the chairman of the next succeeding meeting, shall be receivable
as prima facie evidence of the matters stated in such minutes.
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POWERS OF DIRECTORS
137. The management of the business of the Company shall be vested in
the Directors who, in addition to the powers and authorities by these Articles
or otherwise expressly conferred upon them, may exercise all such powers and do
all such acts and things as may be exercised or done by the Company and are not
hereby or by statute or by special resolution expressly directed or required to
be exercised or done by the Company in general meeting, but subject nevertheless
to the provisions of the statutes in that behalf and of these Articles and to
any regulations from time to time made by the Company in general meeting;
provided that no regulation so made shall invalidate any prior act of the
Directors that would have been valid if such regulation had not been made.
138. Without restricting the generality of the terms of the last
preceding Article and without prejudice to the powers conferred thereby, and the
other powers conferred by these Articles, the Directors shall have power:
(1) To take such steps as they think fit to carry out any agreement
or contract made by or on behalf of the Company;
(2) To pay the costs, charges and expenses preliminary and
incidental to the promotion, formation, establishment, and registration of the
Company;
(3) To purchase or otherwise acquire for the Company any property,
rights or privileges that the Company is authorized to acquire, and at such
price and generally on such terms and conditions as they think fit;
(4) At their discretion to pay for any property, rights, or
privileges acquired by, or services rendered to the Company either wholly or
partially in cash or in shares, bonds, debentures or other securities of the
Company, and any such shares may be issued either as fully paid up, or with such
amount credited as paid up thereon as may be agreed upon;
(5) Subject to Section 88(2) of the Act, to secure the fulfillment
of any contracts or engagements entered into by the Company by mortgaging or
charging all or any of the property of the Company and its unpaid capital for
the time being, or in such other manner as they think fit;
(6) To appoint, remove or suspend at their discretion such experts,
managers, secretaries, treasurers, officers, clerks, agents and servants for
permanent, temporary or special services, as they from time to time think fit,
and to determine their powers and duties, and fix their salaries or emoluments
and to require security in such instances and to such amounts as they think fit;
(7) To accept from any member insofar as the law permits and on
such terms and conditions as may be agreed upon a surrender of his shares or any
part thereof;
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(8) To appoint any person or persons (whether incorporated or not)
to accept and hold in trust for the Company any property belonging to the
Company, or in which it is interested, to execute and do all such deeds and
things as may be requisite in relation to any such trust, and to provide for the
remuneration of any such trustee or trustees;
(9) To institute, conduct, defend, compound or abandon any legal
proceedings by and against the Company or its officers or otherwise concerning
the affairs of the Company, and also to compound and allow time for payment or
satisfaction of any debts due and of any claims or demands by or against the
Company;
(10) To refer any claims or demands by or against the Company to
arbitration and observe and perform the awards;
(11) To make and give receipts, releases and other discharges for
money payable to the Company and for claims and demands of the Company;
(12) To determine who shall be entitled to exercise the borrowing
powers of the Company and sign on the Company's behalf bonds, debentures or
other securities, bills, notes, receipts, acceptances, assignments, transfers,
hypothecations, pledges, endorsements, checks, drafts, releases, contracts,
agreements and all other instruments and documents;
(13) To provide from time to time for the management of the affairs
of the Company abroad in such manner as they think fit, and in particular to
appoint any persons to be the attorneys or agents of the Company with such
powers (including power to sub-delegate) and upon such terms as may be thought
fit;
(14) To invest and deal with any of the moneys of the Company not
immediately required for the purposes thereof in such securities and in such
manner as they think fit; and from time to time to vary or realize such
investments;
(15) Subject to Section 88(2) of the Act, to execute in the name
and on behalf of the Company in favor of any Director or other person who may
incur or be about to incur any personal liability for the benefit of the Company
such mortgages of the Company's property, present and future, as they think fit,
and any such mortgages may contain a power of sale and such other powers,
covenants and provisions as are agreed on;
(16) To give any officer or other person employed by the Company a
commission on the profits of any particular business or transaction or a share
in the general profits of the Company, and such commission or share of profits
shall be treated as part of the working expenses of the Company;
(17) To set aside out of the profits of the Company before
declaring any dividend such sums as they think proper as a reserve fund to meet
contingencies or provide for dividends, depreciation, repairing, improving and
maintaining any of the property of the Company and such other purposes as the
Directors may in their absolute
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discretion think conducive to the interests of the Company; and to invest the
several sums set aside in such investments, other than shares of the Company, as
they may think fit, and from time to time to deal with and vary such
investments, and to dispose of all or any part of them for the benefit of the
Company, and to divide the reserve fund into such special funds as they think
fit, with full power to employ the assets constituting the reserve fund in the
business of the Company without being bound to keep them separate from the other
assets;
(18) From time to time to make, vary and repeal rules for the
regulation of the business of the Company, its officers and servants, the
members of the Company or any section or class of them;
(19) To enter into all such negotiations and contracts, rescind and
vary all such contracts, and execute and do all such acts, deeds, and things in
the name and on behalf of the Company as they may consider expedient for or in
relation to any of the matters aforesaid or otherwise for the purposes of the
Company;
(20) From time to time to provide for the management of the affairs
of the Company in such manner as they shall think fit.
SOLICITORS
139. The Company may employ or retain a solicitor or solicitors and such
solicitor may, at the request of the Board of Directors or on instructions of
the Chairman of the Board, the President or the Managing Director, attend
meetings of the Directors or Shareholders, whether or not he himself is a member
or a Director of the Company. If such solicitor is also a Director, he may
nevertheless charge for services rendered to the Company as a solicitor.
SECRETARY AND TREASURER
140. The Directors shall appoint a Secretary of the Company to keep the
minutes of the shareholders' and Directors' meetings and perform such other
duties as may be assigned to him by the Board. The Directors may also appoint a
temporary substitute for the Secretary who shall, for the purposes of these
Articles, be deemed to be the Secretary.
141. The Directors may appoint a Treasurer of the Company to carry out
such duties as the Board may assign. If the Directors think it advisable, the
same person may hold the offices of both Secretary and Treasurer.
THE SEAL
142. The Directors shall arrange for the safe custody of the Common Seal
of the Company. The Common Seal shall not be affixed to any instrument unless
authorized by a resolution of the Board of Directors or of a committee thereof
and then only in the
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presence and contemporaneously with the attesting signature of the Secretary or
other officer or person appointed by the Board for the purpose. Notwithstanding
the foregoing, for the purpose of certifying documents or proceedings, the
Common Seal may be affixed by the President, or Vice-President, the Secretary or
any Director of the Company without the authorization of a resolution of the
Board.
143. The Company may have for use at any place outside Nova Scotia to
which the corporate existence and capacity of the Company extends an official
seal that is a facsimile of the Common Seal of the Company with the addition on
its face of the name of the place where it is to be used; and the Company may by
writing under the seal of its Common Seal authorize any person to affix such
official seal to any document at such place to which the Company is a party.
DIVIDENDS
144. Subject to the provisions of these Articles and the rights of those
persons, if any, entitled to shares with special rights to dividends, the
profits of the Company may be divided among the members in proportion to the
amount of capital paid up on the shares held by them respectively. When capital
is paid up in advance of calls upon the footing that it will carry interest,
such capital shall not whilst carrying interest confer a right to participate in
profits.
145. The Directors may from time to time declare such dividend as they
deem proper upon the shares of the Company according to the rights of the
members and the respective classes thereof, and may determine the date upon
which such dividend will be payable and that it will be payable to the persons
registered as the holders of the shares on which it is declared at the close of
business upon a specified date. No transfer of such shares made or registered
after the date so specified shall pass any right to the dividend so declared.
146. No dividends shall be payable except out of the profits of the
Company and no interest shall be payable on any dividend.
147. The declaration of the Directors as to the amount of the net
profits of the Company shall be conclusive.
148. The Directors may from time to time pay to the members such interim
dividends as in their judgment the position of the Company justifies.
149. The Directors may deduct from the dividends payable to any member
all such sums of money as may be due and payable by him to the Company on
account of calls, installments or otherwise, and may apply the same in or
towards satisfaction of such sums of money so due and payable.
150. The Directors may retain any dividends on which the Company has a
lien, and may apply the same in or towards satisfaction of the debts,
liabilities or engagements in respect of which the lien exists.
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151. The Directors may retain the dividends payable upon shares in
respect of which any person is under Article 45 entitled to become a member, or
which any person under that clause is entitled to transfer, until such person
has become a member in respect of or has duly transferred such shares.
152. Any meeting declaring a dividend may make a call on the members for
such amount as the meeting fixed so long as the call on each member does not
exceed the dividend payable to him. The call shall be made payable at the same
time as the dividend and the dividend may, if so arranged between the Company
and the member, be set off against the call. The making of a call under this
Article shall be deemed to be and be business of a meeting which declares such a
dividend.
153. Any meeting declaring a dividend may resolve that such dividend be
paid wholly or in part by the distribution of specific assets, paid up shares,
debentures, bonds or debenture stock of the Company or paid up shares,
debentures, bonds, or debenture stock of any other Company, or in any one or
more of such ways.
154. Any meeting may resolve that any moneys, investments or other
assets forming part of the undivided profits of the Company standing to the
credit of the reserve fund or in the hands of the Company and available for
dividends or representing premiums received on the issue of shares and standing
to the credit of share premium account, be capitalized and distributed to the
shareholders who would be entitled to receive them if distributed by way of
dividend and in the same proportions, that all or any part of such capitalized
fund be applied on behalf of such shareholders in paying up in full, either at
par or at such premium as the resolution may provide, any unissued shares or
debentures or debenture stock of the Company (which shall be distributed
accordingly) or in or towards payment of the uncalled liability on any issued
shares or debentures or debenture stock, and that such distribution or payment
shall be accepted by such shareholders in full satisfaction of their interest in
the said capitalized sum.
155. For the purpose of giving effect to any resolution under the two
last preceding Articles, the Directors may settle any difficulty that may arise
in regard to the distribution as they think expedient, and in particular may
issue fractional certificates, may fix the value for distribution of any
specific assets, may determine that cash payments will be made to any members
upon the footing of the value so fixed or that fractions of less value than
$5.00 may be disregarded in order to adjust the rights of all parties, and may
vest any such cash or specific assets in trustees upon such trusts for the
persons entitled to the dividend or capitalized fund as may seem expedient to
the Directors.
156. A transfer of shares shall not pass the right to any dividend
declared thereon after such transfer and before the registration of the
transfer.
157. Anyone of several persons registered as the joint holder of any
share may give effectual receipts for all dividends and payments on account of
dividends in respect of such share.
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158. Unless otherwise determined by the Directors, any dividend may be
paid by a cheque or warrant delivered to or sent through the post to the
registered address of the member entitled, or, when there are joint holders, to
the registered address of that one whose name stands first on the register for
the shares jointly held. Every cheque or warrant so delivered or sent shall be
made payable to the order of the person to whom it is delivered or sent.
159. Notice of the declaration of any dividend, whether interim or
otherwise, shall be given to the holders of registered shares in the manner
hereinafter provided .
160. All dividends unclaimed one year after having been declared may,
until claimed, be invested or otherwise made use of by the Directors for the
benefit of the Company.
ACCOUNTS
161. The Directors shall cause proper books of account to be kept of the
sums of money received and expended by the Company, and the matters in respect
of which such receipt and expenditure takes place, and of all sales and
purchases of goods by the Company, and of the assets, credits and liabilities of
the Company.
162. The books of account shall be kept at the head office of the
Company or at such other place or places as the Directors may direct.
163. The Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to inspection of
the members, and no member shall have any right of inspecting any account or
book or document of the Company except as conferred by statute or authorized by
the Directors or a resolution of the Company in general meeting.
164. At the ordinary general meeting in every year the Directors shall
lay before the Company a profit and loss account covering the period commencing
from the date at which the last preceding account was made up to the date fixed
by the Company as the end of its fiscal year; and in any event the accounts
shall be made up to a date not earlier than three months before the date fixed
for the meeting at which the accounts are to be presented.
165. The financial statement shall be approved by the Board and such
approval shall be evidenced by the signatures of two Directors to the balance
sheet.
166. The Directors not less than seven (7) days before the date of the
ordinary general meeting shall send copies of the financial statements and the
report of the auditor thereon to all members holding voting securities or
otherwise entitled to receive notice of the general meeting.
167. Repealed.
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168. Repealed.
AUDITORS
169. The Company at each ordinary general meeting shall appoint an
auditor to hold office until the next succeeding ordinary general meeting.
170. Repealed.
171. Repealed.
172. None of the following persons shall be eligible for appointment as
auditor of the Company:
(a) Directors and officers of the Company;
(b) Partners or employees of an officer of the Company;
(c) A body corporate.
A member of the Company, other than the persons listed as ineligible, may be an
auditor.
173. Repealed.
174. Repealed.
175. Repealed.
176. Repealed:
177. Repealed.
178. Repealed.
179. Repealed.
NOTICES
180. A notice may be served by the Company upon members personally or by
sending it through the post in a prepaid envelope or wrapper addressed to such
member at his registered place of address.
181. Members who have no registered place of address shall not be
entitled to receive any notice.
182. The holder of a share warrant shall not, unless otherwise expressed
therein, be entitled in respect thereof to notice of any general meeting of the
Company.
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183. Any notice required to be given by the Company to the members, or
any of them, and not expressly provided for by these Articles, shall be
sufficiently given if given by advertisement.
184. Any notice given by advertisement shall be advertised twice in a
paper published in the place where the head office of the Company is situated,
or if no paper is published there, then in any newspapers published in the City
of Halifax, Nova Scotia.
185. All notices shall, with respect to any registered shares to which
persons are jointly entitled, be given to whichever of such persons is named
first in the register for such shares, and notice so given shall be sufficient
notice to all the holders of such shares.
186. Any notice sent by post shall be deemed to be served on the day
following that upon which the letter, envelope or wrapper containing it is
posted, and in proving such service it shall be sufficient to prove that the
letter, envelope or wrapper containing the notice was properly addressed and put
into the post office with the postage prepaid thereon. A certificate in writing
signed by any manager, secretary or other official of the Company that the
letter, envelope or wrapper containing the notice was so addressed and posted
shall be conclusive evidence thereof. The foregoing provisions of this clause
shall not apply to a notice of a meeting of the Directors.
187. Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share shall be bound by every notice in
respect of such share that prior to his name and address being entered on the
register was duly served in the manner hereinbefore provided upon the person
from whom he derived his title to such share.
188. Any notice or document so advertised or sent by post to or left at
the registered address of any member in pursuance of the Articles, shall,
notwithstanding that such member is then deceased and that the Company has
notice of his decease, be deemed to have been served in respect of any
registered shares, whether held by such deceased member solely or jointly with
other persons, until some other person is registered in his stead as the holder
or joint holder thereof, and such service shall for all purposes of these
Articles be deemed a sufficient service of such notice or document on his heirs,
executors or administrators and all persons, if any, jointly interested with him
in any such share.
189. The signature to any notice given by the Company may be written or
printed.
190. When a given number of days' notice or notice extending over any
other period is required to be given, the day of service and the day upon which
such notice expires shall not, unless it is otherwise provided, be counted in
such number of days or other period.
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INDEMNITY
191. Every Director, manager, secretary, treasurer, and other officer or
servant of the Company shall be indemnified by the Company against, and it shall
be the duty of the Directors out of the funds of the Company to pay all costs,
losses and expenses, including without limitation lawyers fees, judgments, fines
and amounts paid in settlement which any Director, manager, secretary, treasurer
or other officer or servant may actually and reasonably incur or become liable
to by reason of any contract entered into, or act or thing done by him as such
officer or servant (except for knowing unlawful conduct), or in any way in the
discharge of his duties, including serving at the request of the Company as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise and the amount for which such indemnity is
proved shall immediately attach as a lien on the property of the Company and
have priority as against the members over all other claims and it shall further
be the duty of the Directors out of the funds of the Company to advance, prior
to final disposition of any action, suit or proceeding, to any Director,
manager, secretary, treasurer, and other officer or servant of the Company
against whom such an action, suit or proceeding is commenced such amounts as may
be reasonably necessary to allow a proper defense of such action, suit or
proceeding. The obligation to indemnify set out in this Article shall continue
as to a person who has ceased to be a Director, manager, secretary, treasurer,
and other officer or servant of the Company and shall enure to the benefit of
the heirs, executors and administrators of any such person. The Directors are
authorized to enter into a contract with any such person to evidence the
Company's obligations hereunder. Indemnification shall be as and to the extent
authorized by Nova Scotia law, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Director or officer.
192. No Director or other officer of the Company shall, in the absence
of any dishonesty on his part, be liable for the acts, receipts, neglects or
defaults of any other Director or officer, or for joining in any receipt or
other act for conformity, or for any loss or expense happening to the Company
through the insufficiency or deficiency of title to any property acquired by
order of the Directors for or on behalf of the Company, or through the
insufficiency or deficiency of any security in or upon which any of the moneys
of the Company are invested, or for any loss or damage arising from the
bankruptcy, insolvency or tortious act of any person with whom any moneys,
securities or effects are deposited, or for any loss occasioned by error of
judgment or oversight on his part, or for any other loss, damage or misfortune
whatsoever which happens in the execution of the duties of his office or in
relation thereto.
REMINDERS
193. Notwithstanding anything to the contrary contained in these
Articles, and in addition to the requirements of the Companies Act, Articles 80,
103, 105A, 105B, 113, 115, 116 and 117 may be amended or repealed only by a
resolution approved at a meeting of the common shareholders by the affirmative
vote of not less than seventy-five percent (75%) common shares of the Company
then outstanding.
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Names, Addresses and Descriptions of Subscribers
Dated at ________________ the _____ day of __________, 19__.
Witness to the above signatures:
- ---------------------------
No________ Street___________________
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