As filed with the Securities and Exchange Commission on February 4, 1994
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
California Energy Company, Inc.
(Exact name of registrant as specified in its charter)
Delaware 94-2213782
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
10831 Old Mill Road, Omaha, NE 68154
(Address of principal executive offices) (zip code)
THE CALIFORNIA ENERGY COMPANY, INC. EXECUTIVE OPTION AGREEMENT
(Full title of the Plan)
Steven A. McArthur
Senior Vice President, General Counsel and Secretary
CALIFORNIA ENERGY COMPANY, INC.
10831 Old Mill Road, Omaha, NE 68154, (402) 330-8900
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Shares Maximum Maximum Amount of
Title of each Class of to be Offering Price Aggregate Registration
Securties to be Registered Registered Per Share(1) Offering Price(1) Fee
<S> <C> <C> <C> <C>
Common Stock, $0.0675 par value
(including attached Series A Junior 750,000 (3) $18.8125 $14,109,375 $4,865
Preferred Share Purchase Rights)(2)
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the registration fee, based on the average of the
high and low sales prices reported on the New York Stock
Exchange on February 2, 1994.
(2) Prior to the occurrence of certain events, the Series A Junior
Preferred Share Purchase Rights will not be evidenced
separately from shares of the Common Stock. Upon the
occurrence of such events, separate Rights certificates will
be issued representing one Right for each share of common
stock held, subject to adjustment pursuant to antidilution
provisions.
(3) The 750,000 shares are to be issued from time to time pursuant
to the Registrant's 1994 Employee Stock Purchase Plan (as
adopted effective January 1, 1994).
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PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933
and the Note to Part I of Form S-8. The documents containing
such information will be provided to employees as specified by
Rule 428(b)(1)(i).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by the Registrant with the
Securities and Exchange Commission (the "Commission"), are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K (File
No. 1-9874) for the fiscal year ended December 31, 1992 filed
pursuant to the Securities Exchange Act of 1934;
(b) All other reports filed by the Registrant with the
Commission since December 31, 1992 pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(c) The description of the Registrant's Common Stock and
attached Series A Junior Preferred Share Purchase Rights ("Rights")
contained in the Registrant's Registration Statement on the Form 8-
A filed with the Commission on July 28, 1993 pursuant to Section 12
of the Securities Exchange Act of 1934; including any subsequent
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents.
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Item 4. Description of Securities.
The description of the securities offered pursuant to the
Registrant's 1994 Employee Stock Purchase Plan (as
adopted effective January 1, 1994) are hereby
incorporated by reference to Registrant's Form 8-A dated
July 28, 1993.
Item 5. Legal Matters; Interests of Named Experts and Counsel.
The validity of the 750,000 shares of the Registrant's
Common Stock (the "Common Stock"), and associated Rights
offered hereby will be passed upon for the Registrant by
Steven A. McArthur, Senior Vice President and General
Counsel of the Registrant. Mr. McArthur is the
beneficial owner of shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State
of Delaware the ("DGCL") grants each corporation
organized thereunder, such as the Registrant, the power
to indemnify its directors and officers against
liabilities for certain of their acts. Article EIGHTH of
the Registrant's Restated Certificate of Incorporation
and Article V of the Registrant's By-Laws provides for
indemnification of directors and officers of the
Registrant to the extent permitted by the DGCL. Article
V of the Registrant's By-Laws further provides that the
Registrant may enter into contracts providing
indemnification to the full extent authorized or
permitted by the DGCL and that the Registrant may create
a trust fund, grant a security interest and/or use other
means to ensure the payment of such amounts as may become
necessary to effect indemnification pursuant to such
contracts or otherwise.
Section 102(b)(7) of the DGCL permits a provision in the
certificate of incorporation of each corporation
organized thereunder, such as the Registrant, eliminating
or limiting, with certain exceptions, the personal
liability of a director to the corporation or its
stockholders for monetary damages for certain breaches of
fiduciary duty as a director. Article EIGHTH of the
Registrant's Restated Certificate of Incorporation
eliminates the personal liability of directors to the
full extent permitted by the DGCL.
The foregoing statements are subject to the detailed
provisions of Section 145 and 102(b)(7) of the DGCL,
Article EIGHTH of the Registrant's Restated Certificate
of Incorporation and Article V of the Registrant's By-
laws.
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE>
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Item 8. Exhibits.
Exhibit
Number Exhibit
4.1 Form of Certificate of Common Stock (incorporated by
reference to Exhibit 4.1 to Registrant's Registration
Statement on Form S-1, File No. 33-7770)
4.2 Shareholder Rights Agreement between the Registrant and
Manufacturers Hanover Trust Company of California, dated
December 1, 1988 (incorporated by reference to Exhibit 1
to Registrant's Form 8-K dated December 5, 1988, File No.
1-9874)
4.3 Amendment Number 1 to the Shareholder Rights Agreement,
dated February 15, 1991 (incorporated by reference to
Exhibit 4.2 to the Registrant's Form 10-K for the year
ended December 31, 1992, File No. 1-9874 (the "Form 10-
K"))
4.4 Registration Rights Agreement among the Registrant,
Lehman Brothers Inc. and Alex Brown & Sons Incorporated
dated June 24, 1993 (incorporated by reference to the
Registrant's Form 8-K dated June 24, 1993, File No. 1-
9874)
4.5 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 of Registrant's
Form 10-K)
4.6 Certificate of Amendment of Registrant's Restated
Certificate of Incorporation, dated June 23, 1993
(incorporated by reference to Registrant's Form 8-A dated
July 28, 1993, File No. 1-9874 (the "Form 8-A"))
4.7 The Registrant's Certificate of Designation with respect
to Registrant's Series C Redeemable Convertible
Exchangeable Preferred Stock, dated November 20, 1991
(incorporated by reference to Exhibit 3.1 of Registrant's
Form 10-K)
4.8 The Registrant's By-Laws (incorporated by reference to
Exhibit 6 of Registrant's Form 8-A)
4.9 The Registrant's 1994 Employee Stock Purchase Plan
5 Opinion of Steven A. McArthur, General Counsel of the
Registrant
23.1 Consent of Deloitte & Touche
23.2 Consent of Counsel (included in Exhibit 5)
<PAGE>
<PAGE>
Exhibit
Number Exhibits
24.1 Powers of Attorney
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any material
change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) of Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of the Plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
<PAGE>
<PAGE>
1934) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(S-8-ESP.94)
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-
8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Omaha, State of Nebraska, on February 4, 1994.
CALIFORNIA ENERGY COMPANY, INC.
By: /s/ David L. Sokol
David L. Sokol
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the date indicated.
Name Title Date
/s/David L. Sokol President, Chief February 4, 1994
David L. Sokol Executive Officer
and Director
/s/John G. Sylvia Vice President February 4, 1994
John G. Sylvia Chief Financial
Officer, Chief
Accounting Officer
and Treasurer
Edgar D. Aronson* Director February 4, 1994
Edgar D. Aronson
Judith E. Ayres* Director February 4, 1994
Judith E. Ayres
Harvey F. Brush* Director February 4, 1994
Harvey F. Brush
James Q. Crowe* Director February 4, 1994
James Q. Crowe
<PAGE>
<PAGE>
Name Title Date
Richard K. Davidson Director February 4, 1994
Richard K. Davidson
Richard R. Jaros* Chairman of the February 4, 1994
Richard R. Jaros Board of Directors
Benjamin M. Holt* Director February 4, 1994
Benjamin M. Holt
Everett B. Laybourne* Director February 4, 1994
Everett B. Laybourne
Daniel J. Murphy Director February 4, 1994
Daniel J. Murphy
Herbert L. Oakes, Jr.* Director February 4, 1994
Herbert L. Oakes, Jr.
Walter Scott, Jr.* Director February 4, 1994
Walter Scott, Jr.
Barton W. Shackelford* Director February 4, 1994
Barton W. Shackelford
David E. Wit* Director February 4, 1994
David E. Wit
*By: /s/Steven A. McArthur
Steven A. McArthur
Attorney-in-Fact
<PAGE>
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Exhibit 4.9
CALIFORNIA ENERGY COMPANY, INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
(As Adopted Effective January 1, 1994)
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TABLE OF CONTENTS
Page
Section 1. Establishment of the Plan 1
Section 2. Definitions 1
Section 3. Shares Authorized 3
Section 4. Administration 3
Section 5. Eligibility and Participation 4
Section 6. Participation Periods 5
Section 7. Purchase Price 5
Section 8. Employee Contributions 5
Section 9. Plan Accounts; Purchase of Shares 6
Section 10. Withdrawal From the Plan 7
Section 11. Effect of Termination of Employment
or Death 8
Section 12. Rights Not Transferable 8
Section 13. Recapitalization, Etc 9
Section 14. Limitation on Stock Ownership 9
Section 15. No Rights as an Employee 10
Section 16. Rights as a Stockholder 10
Section 17. Use of Funds 10
Section 18. Amendment or Termination of the Plan 11
Section 19. Governing Law 11
Section 20. Stockholder Approval 11
Section 21. Withholding 11
i
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CALIFORNIA ENERGY COMPANY, INC.
1994 STOCK PURCHASE PLAN
(As Adopted Effective January 1, 1994)
Section 1. Establishment of the Plan.
The California Energy Company, Inc. 1994 Employee Stock
Purchase Plan (the "Plan") is hereby established to provide
Eligible Employees with an opportunity to purchase the
Company's common stock so that they may increase their
proprietary interest in the success of the Company. The
Plan, which provides for the purchase of stock through
payroll withholding, is intended to qualify under
section 423 of the Code.
Section 2. Definitions.
(a) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Company" means California Energy Company, Inc., a
Delaware corporation.
(d) "Compensation" means the base compensation paid to
a Participant during a Participation Period in cash or in
kind including overtime and shift differential. Incentive
compensation, commissions and other bonuses and other forms
of compensation for work outside the regular work schedule
are excluded.
(e) "Date of Participation" means the first day of a
Participation Period.
(f) "Eligible Employee" means any Employee of a
Participating Company (i) who has been continuously employed
by the Participating Company for at least three (3) months
prior to the commencement of a Participation Period,
(ii) who is customarily employed for more than twenty (20)
hours per week, (iii) who is customarily employed for more
than five (5) months per calendar year, and (iv) who is an
Employee at the commencement of a Participation Period. If
an Employee has been employed less than three months and is
granted a formal leave of absence, service, prior to and
after the leave, will count toward the three months waiting
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period for eligibility. Rehired Employees with less than a
six month break in service will receive full credit for past
service to determine eligibility; otherwise, rehired
Employees will be treated as new Employees for purposes of
eligibility.
In the event an Eligible Employee fails to remain in the
continuous employ of a Participating Company customarily for
at least twenty (20) hours per week during a Participation
Period, he or she will be deemed to have elected to withdraw
from the Plan and the payroll deductions credited to his
account will be returned to him or her, without interest;
provided that a Participant who goes on an unpaid leave of
absence shall be permitted to remain in the Plan with
respect to a Participation Period which commenced prior to
such leave of absence. If such Participant is not
guaranteed reemployment by contract or statute and the leave
of absence extends beyond ninety (90) days, such Participant
shall be deemed to have terminated employment on the ninety-
first (91st) day of such leave of absence. Payroll
deductions for a Participant who has been on an unpaid leave
of absence will resume at the same rate as in effect prior
to such leave upon return to work unless changed by such
Participant or unless the Participant has been on an unpaid
leave of absence either throughout an entire Participation
Period or for more than 90 days, in which case the
Participant shall not be permitted to re-enter the Plan
until a participation agreement is filed with respect to a
subsequent Participation Period which commences after such
Participant has returned to work from the unpaid leave of
absence.
(g) "Employee" means any employee of a Participating
Company for purposes of tax withholding under Section 3401
et seq. of the Code.
(h) "Fair Market Value" shall mean (i) the closing
price of a share of Stock on the principal exchange which
the shares are trading, or (ii) if the shares are not traded
on an exchange but are quoted on NASDAQ or such successor
quotation system, or (iii) if the shares are not traded on
an exchange or quoted on the NASDAQ or a successor quotation
system, the fair market value of a share as determined by
the Plan Administrator in good faith. Such determination
shall be conclusive and binding on all persons.
(i) "Participant" means an Eligible Employee who elects
to participate in the Plan, as provided in Section 5 hereof.
(j) "Participating Company" means the Company and such
present or future Subsidiaries of the Company as the Company
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shall from time to time designate. The initial designated
Subsidiaries are set forth on Exhibit A hereto.
(k) "Participation Period" means a period during which
contributions may be made toward the purchase of Stock under
the Plan, as determined pursuant to Section 6.
(l) "Plan" has the meaning set forth in Section 1.
(m) "Plan Account" means the account established for
each Participant pursuant to Section 9(a).
(n) "Purchase Price" means the price at which
Participants may purchase Stock under Section 5, as
determined pursuant to Section 7.
(o) "Stock" means the common stock of the Company,
$0.0675 par value.
(p) "Subsidiary" means a subsidiary corporation as
defined in section 424(f) of the Code.
Section 3. Shares Authorized.
The maximum aggregate number of shares which may be
offered under the Plan shall be 750,000 shares of Stock,
subject to adjustment as provided in Section 13 hereof.
Section 4. Administration.
(a) The Plan shall be administered by a Plan
Administrator appointed by the Company. Until and unless
another person or entity shall be so appointed and serving,
the Plan Administrator shall be the Company. The
interpretation and construction by the Plan Administrator of
any provision of the Plan or of any right to purchase stock
under the Plan shall be conclusive and binding on all
persons.
(b) No member of the Board or any employee of the Plan
Administrator shall be liable for any action or
determination made in good faith with respect to the Plan or
the right to purchase Stock. The Plan Administrator shall
be indemnified by the Company against the reasonable
expenses, including attorney's fees actually and necessarily
incurred in connection with the defense of any action, suit
or proceeding, or in connection with any appeal therein, to
which it may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any
stock purchased under the Plan, and against all amounts paid
by it in settlement (provided such settlement is approved by
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independent legal counsel selected by the Company) or paid
by it in satisfaction of a judgment in any such action, suit
or proceeding, except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that
the Plan Administrator is liable for negligence or
misconduct in the performance of its duties; provided that
within sixty (60) days after institution of any such action,
suit or proceeding, the Plan Administrator shall in writing
offer the Company the opportunity, at its own expense, to
handle and defend the same.
(c) All costs and expenses incurred in administering
the Plan shall be paid by the Company. The Board or the
Plan Administrator may request advice for assistance or
employ such other persons as are necessary for proper
administration of the Plan.
(d) Notwithstanding the preceding provisions of this
Section 4, in the event that Rule 16b-3 promulgated under
the Securities Exchange Act of 1934, as amended, or any
successor provision ("Rule 16b-3") provides specific
requirements for the administrators of plans of this type,
the Plan shall be only administered by such a body and in
such a manner as shall comply with the applicable
requirements of Rule 16b-3. Unless permitted by Rule 16b-3,
no discretion concerning decisions regarding the Plan shall
be afforded to any committee or person that is not
"disinterested" as that term is used in Rule 16b-3. The
Company shall appoint a "disinterested" committee or person
to carry out any discretionary determination that would
otherwise be in contravention of the foregoing provision.
Section 5. Eligibility and Participation.
(a) Any person who qualifies or will qualify as an
Eligible Employee on the Date of Participation with respect
to a Participation Period may elect to participate in the
Plan for such Participation Period. An Eligible Employee
may elect to participate by executing the participation
agreement prescribed for such purpose by the Plan
Administrator. The participation agreement shall be filed
with the Plan Administrator no later than the deadline
stated on the participation agreement, and if none is
stated, then no later than the first day of the
Participation Period. The Eligible Employee shall designate
on the participation agreement the percentage of his or her
Compensation which he or she elects to have withheld for the
purchase of Stock, which may be any whole percentage of the
Participant's Compensation.
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(b) By enrolling in the Plan, a Participant shall be
deemed to have elected to purchase the maximum number of
whole shares of Stock which can be purchased with the amount
of the Participant's Compensation which is withheld during
the Participation Period. However, with respect to any
Participation Period, no Participant shall be eligible to
purchase shares of Stock in excess of any maximum number
which may be set by the Plan Administrator from time to
time, which maximum number shall initially be five hundred
(500) shares (appropriately adjusted if the Participation
Period is shorter or longer than six months and for events
described in Section 13).
(c) Once enrolled, a Participant will continue to
participate in the Plan for each succeeding Participation
Period until he or she terminates participation by
withdrawing in accordance with Section 10 or ceases to
qualify as an Eligible Employee. A Participant who
withdraws from the Plan in accordance with Section 10 may
again become a Participant, if he or she then is an Eligible
Employee, by following the procedure described in
Section 5(a).
Section 6. Participation Periods.
The Plan shall be implemented by one or more
Participation Periods of six months' duration each. The
first Participation Period will commence on January 1, 1994
and end on June 30, 1994, and thereafter a new Participation
Period shall commence on each July 1 and January 1. The
Company may alter the duration of each Participation Period
and the commencement dates, provided that any such
alteration shall be effective for the next Participation
Period, and provided further that no Participation Period
shall exceed twenty-seven (27) months or extend beyond the
termination of the Plan.
Section 7. Purchase Price.
The Purchase Price for each share of Stock shall be the
lesser of (i) eight-five percent (85%) of the Fair Market
Value of such share on the last trading day before the Date
of Participation or (ii) eighty-five percent (85%) of the
Fair Market Value of such share on the last trading day
during the Participation Period.
Section 8. Employee Contributions.
A Participant may purchase shares of Stock pursuant to
the Plan solely by means of payroll deductions. Payroll
deductions, as designated by the Participant pursuant to
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Section 5(a), shall commence with the first paycheck issued
during the Participation Period and shall be deducted from
each subsequent paycheck throughout the Participation
Period. If a Participant desires to decrease the rate of
payroll withholding during the Participation Period, he or
she may do so, if permitted by the Plan Administrator, one
time during a Participation Period by filing a new
participation agreement with the Plan Administrator. Such
decrease will be effective as of the first day of the second
payroll period which begins following the receipt of the new
participation agreement. A Participant may not increase his
or her rate of payroll withholding during a Participation
Period. If a Participant desires to increase or decrease
the rate of payroll withholding effective for the next
Participant Period, he or she may do so by filing a new
participation agreement with the Plan Administrator on or
before the date specified by the Plan Administrator, and if
none is stated, then no later than the first day of the
Participation Period for which such change is to be
effective. Notwithstanding the provisions of this
Section 8, any Participant who has executed an irrevocable
election to participate in and not withdraw from the Plan
during a Participation Period shall not increase or decrease
his or her rate of payroll withholding for the period
covered by such irrevocable election.
Section 9. Plan Accounts; Purchase of Shares.
(a) The Company will maintain a Plan Account on its
books in the name of each Participant. At the close of each
pay period, the amount deducted from the Participant's
Compensation will be credited to the Participant's Plan
Account. No interest shall be credited to amounts in a
Participant's Plan Account.
(b) As of the last day of each Participation Period,
the amount then in the Participant's Plan Account will be
divided by the Purchase Price, and the number of whole
shares which results (subject to the limitations described
in Sections 5(b), 9(c) and 14) shall be purchased from the
Company with the funds in the Participant's Plan Account.
Share certificates representing the number of shares of
Stock so purchased shall be delivered either directly to
each Participant or to a brokerage account designated by the
Plan Administrator to be kept in such account pursuant to a
participation agreement (which shall be uniform) between
each Participant and the Company and subject to the
conditions described therein which may include a requirement
that shares of Stock be held and not sold for certain time
periods. To the extent that any amount remains in the
Participant's Plan Account after effecting the purchase of
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whole shares, the amount shall remain in the Participant's
Plan Account for application to the purchase of Shares in
the subsequent Participation Period.
(c) In the event that the aggregate number of shares
which all Participants elect to purchase during a
Participation Period shall exceed the number of shares
remaining available for issuance under the Plan, then the
number of shares to which each Participant shall become
entitled shall be determined by multiplying the number of
shares available for issuance by a fraction the numerator of
which is the sum of the number of shares the Participant has
elected to purchase pursuant to Section 5, and the
denominator of which is the sum of the number of shares
which all Participants have elected to purchase for such
Participation Period pursuant to Section 5. Any cash amount
remaining in the Participant's Plan Account under these
circumstances shall be refunded to the Participant.
(d) Any amount remaining in the Participant's Plan
Account caused by a surplus due to fractional shares after
deducting the amount of the Purchase Price for the number of
whole shares issued to the Participant shall be carried over
in the Participant's Plan Account for the succeeding
Participation Period, without interest. Any amount
remaining in the Participant's Plan Account at the end of
the Participation Period caused by anything other than a
surplus due to fractional shares shall be refunded to the
Participant in cash, without interest.
(e) As soon as practicable following the end of each
Participation Period, the Company shall deliver to each
Participant a Plan Account statement setting forth the
amount of payroll deductions, the purchase price, the number
of shares purchased and the remaining cash balance, if any.
Section 10. Withdrawal From the Plan.
A Participant may elect to withdraw from participation
under the Plan at any time up to the last day of a
Participation Period by filing the prescribed form with the
Plan Administrator. As soon as practicable after a
withdrawal, payroll deductions shall cease and all amounts
credited to the Participant's Plan Account will be refunded
in cash, without interest. A Participant who has withdrawn
from the Plan shall not be a Participant in future
Participation Periods, unless he or she again enrolls in
accordance with the provisions of Section 5.
Notwithstanding the provisions of this Section 5, any
Participant who has executed an irrevocable election to
participate in and not withdraw from the Plan during a
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Participation Period shall not withdraw from the Plan for
the period covered by such irrevocable election.
Section 11. Effect of Termination of Employment or Death.
(a) Termination of employment as an Eligible Employee
for any reason, including death, shall be treated as an
automatic withdrawal from the Plan under Section 10. A
transfer from one Participating Company to another shall not
be treated as a termination of employment.
(b) A Participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any,
from the Participant's Plan Account under the Plan in the
event of such Participant's death subsequent to the purchase
of shares but prior to delivery to him or her of such shares
and cash. In addition, a Participant may file a written
designation of a beneficiary who is to receive any cash from
the Participant's Plan Account under the Plan in the event
of such Participant's death prior to the last day of a
Participation Period.
(c) Such designation of beneficiary may be changed by
the Participant at any time by written notice. In the event
of the death of a Participant in the absence of a valid
designation of a beneficiary who is living at the time of
such Participant's death, the Company shall deliver such
shares and/or cash in accordance with the Participant's
designation of beneficiaries under the Company's 401(k)
Plan; or, in the absence of such designation, to the
executor or administrator of the estate of the Participant;
or if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its
discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the
Participant; or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may
designate.
Section 12. Rights Not Transferable.
The rights or interests of any Participant in the Plan,
or in any Stock or moneys to which he or she may be entitled
under the Plan, shall not be transferable by voluntary or
involuntary assignment or by operation of law, or by any
other manner other than as permitted by Section 423 of the
Code or by will or the laws of descent and distribution. If
a Participant in any manner attempts to transfer, assign or
otherwise encumber his or her rights or interest under the
Plan, other than as permitted by Section 423 of the Code or
8
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by will or the laws of descent and distribution, such act
shall be treated as an automatic withdrawal under
Section 10.
Section 13. Recapitalization, Etc.
(a) The aggregate number of shares of Stock offered
under the Plan, the number and price of shares which any
Participant has elected to purchase pursuant to Section 5
and the maximum number of shares which a Participant may
elect to purchase under the Plan in any Participation Period
shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Stock resulting
from a subdivision or consolidation of shares or any other
capital adjustment, the payment of a stock dividend, or
other increase or decrease in such shares effected without
receipt of consideration by the Company.
(b) In the event of a dissolution or liquidation of the
Company, or a merger or consolidation to which the Company
is a constituent corporation, this Plan shall terminate,
unless the plan of merger, consolidation or reorganization
provides otherwise, and all amounts which each Participant
has paid towards the Purchase Price of Stock hereunder for
the Participation Period during which the dissolution,
liquidation, merger or consolidation is effective shall be
refunded, without interest.
(c) The Plan shall in no event be construed to restrict
in any way the Company's right to undertake a dissolution,
liquidation, merger, consolidation or other reorganization.
Section 14. Limitation on Stock Ownership.
Notwithstanding any provision herein to the contrary, no
Participant shall be permitted to elect to participate in
the Plan to the extent that (i) such Participant,
immediately after his or her election to participate, would
own stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of
the Company or any parent corporation (as defined by
Section 424 of the Code) or Subsidiary of the Company, or
(ii) under the terms of the Plan the rights of the Employee
to purchase Stock under this Plan and all other qualified
employee stock purchase plans of the Company or any parent
corporation (as defined by Section 424 of the Code) or its
Subsidiaries would accrue at a rate which exceeds twenty-
five thousand dollars ($25,000) of the Fair Market Value of
such Stock (determined at the time such right is granted)
for each calendar year for which such right is outstanding
at any time. To the extent necessary to comply with
9
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<PAGE>
clause (ii), a Participant's payroll deductions may be
decreased by the Company to zero percent (0%) at such time
during the current calendar year that the sum of all payroll
deductions which were previously used to purchase Stock
under the Plan during such calendar year, all payroll
deductions under other plans of the Company which qualify as
employee stock purchase plans under Section 423 of the Code
which have been used or can be used to purchase Stock during
such calendar year, and all payroll deductions accumulated
but not yet used to purchase shares of Common Stock, equals
$21,250 (i.e., 85% of the maximum amount set forth in such
clause (ii)). Payroll deductions shall recommence at the
rate provided in such Participant's participation agreement
at the beginning of the following calendar year. For
purposes of this Section 14, ownership of stock shall be
determined by the taking into account the attribution rules
of section 424(d) of the Code, and Participants shall be
considered to own any stock which they have a right to
purchase under this or any other stock option plan.
Section 15. No Rights as an Employee.
Nothing in the Plan shall be construed to give any
person the right to remain in the employ of a Participating
Company. Each Participating Company reserves the right to
terminate the employment of any person at any time and for
any reason or for no reason, it being understood that
employees of the Participating Companies are employed on an
"at will" basis, except to the extent provided in a written
employment contract between an employee and the
Participating Company.
Section 16. Rights as a Stockholder.
A Participant shall have no rights as a stockholder with
respect to any shares he or she may have a right to purchase
under the Plan until the date of issuance of a stock
certificate to the brokerage account designated by the Plan
Administrator for shares of Stock issued pursuant to the
Plan, subject to the shareholders approval of the adoption
of the Plan.
Section 17. Use of Funds.
All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate
such payroll deductions in separate accounts.
10
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<PAGE>
Section 18. Amendment or Termination of the Plan.
The Board of Directors shall have the right to amend,
modify or terminate the Plan at any time without notice. An
amendment of the Plan shall be subject to shareholder
approval only to the extent required by applicable laws,
regulations or rules.
Section 19. Governing Law.
The Plan shall be governed by, and construed and
interpreted in accordance with, the laws of the State of
Delaware.
Section 20. Stockholder Approval.
The Plan shall become effective upon its adoption by the
Board, provided that no Stock shall be purchased under the
Plan unless and until stockholder approval of the Plan is
obtained. In the case of the initial approval of the Plan
or if stockholder approval is required under the Code for an
amendment to the Plan adopted or proposed to be adopted by
the Board, such stockholder approval shall be obtained in
any manner and within the time periods required by
Section 423 of the Code and the Treasury Regulations
thereunder (or any successor provisions). The Board, in its
discretion, also may obtain stockholder approval for any
amendment to the Plan adopted by or proposed to be adopted
by the Board to the extent desirable to maintain compliance
with Rule 16b-3.
Section 21. Withholding.
The Company may withhold from a Participant's
Compensation any amount necessary for the Company to meet
applicable income and employment tax withholding obligations
with respect to such Participant.
To record the adoption of the Plan by the Board of
Directors, effective as of January 1, 1994, the Company has
caused its authorized officer to execute the same this
20th day of December, 1993.
CALIFORNIA ENERGY COMPANY, INC.
By /s/STEVEN A. MCARTHUR
Steven A. McArthur
Senior Vice President
11
148253(14409)(3)
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<PAGE>
Exhibit A
Initial Participating Companies
California Energy Company, Inc.
Western States Geothermal Company
Russian-American Science, Inc.
Rose Valley Properties, Inc. The
Ben Holt Co.
12
148253(14409)(3)
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<PAGE>
Exhibit 5
February 4, 1994
California Energy Company, Inc.
10831 Old Mill Road
Omaha, NE 68154
Attention: Board of Directors
Re: Registration Statement on Form S-8
Covering 750,000 Shares of Common Stock
Ladies and Gentlemen:
I am the Senior Vice President and General Counsel of
California Energy Company, Inc., a Delaware corporation (the
"Company"), and am rendering this opinion in connection with the
Registration Statement on Form S-8 (the "Registration Statement")
filed by the Company with the Securities and Exchange Commission
in connection with the registration under the Securities Act of
1933, as amended, of 750,000 shares of the Company's Common Stock
(the "Common Stock"), $0.0675 par value and attached Series A
Junior Preferred Share Purchase Rights (the "Rights"), which are
reserved for issuance under the Company's 1994 Employee Stock
Purchase Plan (as adopted effective January 1, 1994).
As a basis for the opinion expressed below, I have examined
and relied upon originals or copies of documents, records,
certificates (including certificates of public officials and of
officers of the Company) and other instruments, have made such
inquiries as to questions of fact of officers of the Company and
relied to the extent deemed appropriate upon the responses to
such inquiries and have made such examinations of law as in my
judgment are necessary or appropriate to enable me to render the
opinion expressed below. In all such examinations, I have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to me as originals and the conformity
with the originals of all documents submitted to me as copies.
The opinion below is restricted to matters controlled by the
federal laws of the United States, the General Corporation Law of
the State of Delaware and the laws of the States of California
and New York.
Based on and subject to the foregoing, I am of the opinion
that the shares of Common Stock (including the Rights) that are
reserved for issuance, when issued and sold in the manner
contemplated by the Registration Statement, will be legally and
validly issued and fully paid and nonassessable.
I consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration
Statement and to the reference to me under the caption "Legal
Matters; Interests of Named Experts and Counsel" in the
prospectus included therein.
This opinion addresses matters only as of the date hereof
and is solely for your benefit and may not be relied upon by you
for any purpose other than in connection with the Registration
Statement and may not be relied upon by any other person or,
except for the filing referenced above, provided to any other
party without my prior written consent.
Very truly yours,
/s/Steven A. McArthur
Steven A. McArthur
Senior Vice President and
General Counsel
SAM/jm
(ESPS-8.Op)
<PAGE>
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Exhibit 23.1
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in the
Registration Statement of California Energy Company, Inc. on Form
S-8 pertaining to the 1994 Employee Stock Purchase Plan of
California Energy Company, Inc. of our reports dated February 26,
1993, appearing in and incorporated by reference in the Annual
Report on Form 10-K of California Energy Company, Inc. for the
year ended December 31, 1992.
Deloitte & Touche
/s/ Deloitte & Touche
Omaha, Nebraska
February 2, 1994
(Ex-23-1.S8)
<PAGE>
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
The undersigned, a member of the Board of Directors of
California Energy Company, Inc., a Delaware corporation (the
"Company"), hereby constitutes and appoints Steven A. McArthur, as
his/her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for and in his/her stead, in
any and all capacities, to sign on his/her behalf any and all
Registration Statements filed by the Company on Form S-8 with
respect to employee stock purchase plan and employee stock option
and other employee benefit plans, including, without limitation,
the 1994 Employee Stock Purchase Plan of the Company, the Amended
and Restated 1986 Stock Option Plan of the Company, the 401(K) Plan
of the Company and any other employee benefit plan of the Company,
as they may be amended from time to time and to execute any
amendments thereto (including post-effective amendments) or
certificates that may be required in connection with such
Registration Statement, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, with the full power and
authority to do and perform each and every act and thing necessary
or advisable to all intents and purposes as he/she might or could
do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his/her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
(POA.S-8)
<PAGE>
<PAGE>
POWER OF ATTORNEY
DATE: February 4, 1994
/s/ RICHARD R. JAROS /s/ EVERETT B. LAYBOURNE
RICHARD R. JAROS EVERETT B. LAYBOURNE
/s/ EDGAR D. ARONSON /s/ ADM. DANIEL J. MURPHY
EDGAR D. ARONSON ADM. DANIEL J. MURPHY
/s/ JUDITH E. AYRES /s/ HERBERT L. OAKES, JR.
JUDITH E. AYRES HERBERT L. OAKES, JR.
/s/ HARVEY F. BRUSH /s/ WALTER SCOTT, JR.
HARVEY F. BRUSH WALTER SCOTT, JR.
/s/ JAMES Q. CROWE /s/ BARTON W. SHACKELFORD
JAMES Q. CROWE BARTON W. SHACKELFORD
/s/ RICHARD K. DAVIDSON /s/ DAVID L. SOKOL
RICHARD K. DAVIDSON DAVID L. SOKOL
/s/ BENJAMIN M. HOLT /s/ DAVID E. WIT
BENJAMIN M. HOLT DAVID E. WIT
(POA.S-8)
