AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1996
REGISTRATION NO. 333-08315
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO.1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CALENERGY COMPANY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-2213782
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
CALENERGY CAPITAL TRUST
(Exact name of registrant as specified in its charter)
DELAWARE 47-6208410
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
302 SOUTH 36TH STREET, SUITE 400
OMAHA, NE 68131
(402) 341-4500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
STEVEN A. MCARTHUR, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CALENERGY COMPANY, INC.
302 SOUTH 36TH STREET, SUITE 400
OMAHA, NE 68131
(402) 341-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
PETER J. HANLON, ESQ.
WILLKIE FARR & GALLAGHER
ONE CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NY 10022-4669
(212) 821-8000
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
[ ] ____________________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ____________________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) UNIT(4) PRICE(4) FEE(1)
<S> <C> <C> <C> <C> <C> <C> <C>
TIDES................................ 2,078,600 $52.5625 (1)(2) $109,256,412.5 (1)(2) $37,675 (7)
Convertible Junior Subordinated
Debentures of CalEnergy Company,
Inc.................................. (3) -- -- --
Common Stock of CalEnergy Company,
Inc.(5).............................. 3,477,083(4) -- -- --
Preferred Securities Guarantee(6).... -- -- -- --
Total............................. 2,078,600 100% $109,256,412.5 $37,675(7)
===================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) of the Securities Act.
(2) Exclusive of accrued interest and distributions, if any.
(3) $103,930,000 in aggregate principal amount of 6 1/4% Convertible Junior
Subordinated Debentures (the "Convertible Junior Subordinated
Debentures") of CalEnergy Company, Inc. (the "Company") were issued and
sold to CalEnergy Capital Trust (the "Trust") in connection with the
issuance by the Trust of 2,078,600 of its 6 1/4% Convertible Preferred
Securities Term Income Deferrable Equity Securities ("TIDES"). The
Convertible Junior Subordinated Debentures may be distributed, under
certain circumstances, to the holders of TIDES for no additional
consideration.
(4) Such number of shares of Common Stock ("Common Stock") of the Company are
issuable upon conversion of the TIDES or the Convertible Junior
Subordinated Debentures registered hereunder. This Registration Statement
also covers such shares as may be issuable pursuant to anti-dilution
adjustments.
(5) Includes Common Stock purchase rights. Prior to the occurrence of certain
events, the purchase rights will not be exercisable or evidenced
separately from the Common Stock. No separate consideration will be
received for the Common Stock purchase rights.
(6) Includes the rights of holders of the TIDES under the Preferred
Securities Guarantee. No separate consideration will be received for the
Preferred Securities Guarantee.
(7) Previously paid.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 8(A) OF THE SECURITIES ACT OF 1933.
<PAGE>
Subject to Completion, dated AUGUST 29, 1996
PROSPECTUS
2,078,600 TIDES (SM)
CALENERGY CAPITAL TRUST
6 1/4% CONVERTIBLE PREFERRED SECURITIES
TERM INCOME DEFERRABLE EQUITIES SECURITIES (TIDES)SM
(liquidation preference $50 per each of the TIDES)
guaranteed to the extent set forth herein by, and convertible into
Common Stock of,
CALENERGY COMPANY, INC.
Distributions payable March 15, June 15, September 15, and December 15.
----------------------
This Prospectus relates to the 6 1/4% Convertible Preferred
Securities Term Income Deferrable Equity Securities (TIDES)SM or TIDESSM,
which represent undivided beneficial ownership interests in the assets of
CalEnergy Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Issuer" or the "Trust"), and the shares of the
common stock, par value $.0675 per share ("Common Stock") of CalEnergy
Company, Inc., a Delaware corporation ("CalEnergy" or the "Company"), issuable
upon conversion of the TIDES. The TIDES were issued and sold (the "Original
Offering") on April 10, 1996 (the "Original Offering Date") to the Initial
Purchasers (as defined herein) and were simultaneously sold by the Initial
Purchasers in transactions exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), in the United
States to persons reasonably believed by the Initial Purchasers to be
qualified institutional buyers in reliance on Rule 144A under the Securities
Act and to a limited number of institutional "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act). The
Company directly or indirectly owns all the common securities issued by the
Issuer (the "Common Securities" and together with the TIDES, the "Trust
Securities"). The Issuer exists for the sole purpose of issuing the Trust
Securities and using the proceeds thereof to purchase from the Company its 6
1/4% Convertible Junior Subordinated Debentures due 2016 (the "Convertible
Junior Subordinated Debentures") having the terms described herein. The
holders of TIDES will have a preference with respect to cash distributions and
amounts payable upon liquidation, redemption or otherwise over the holders of
the Common Securities of the Issuer.
The TIDES, the Convertible Junior Subordinated Debentures and the
Common Stock issuable upon conversion of the TIDES (the "Offered Securities")
may be offered and sold from time to time by the holders named herein or by
their transferees, pledgees, donees or their successors (collectively, the
"Selling Holders") pursuant to this Prospectus. The Offered Securities may be
sold by the Selling Holders from time to time directly to purchasers or, under
certain circumstances, through agents, underwriters or dealers. See "Plan of
Distribution" and "Selling Holders." If required, the names of any Selling
Holders, agents or underwriters involved in the sale of the Offered Securities
and the applicable agent's commission, dealer's purchase price or
underwriter's discount, if any, will be set forth in an accompanying
supplement to this Prospectus (the "Prospectus Supplement"). The Selling
Holders will receive all of the net proceeds from the sale of the Offered
Securities and will pay all underwriting discounts and selling commissions, if
any, applicable to any such sale. The Company is responsible for payment of
all other expenses incident to the offer and sale of the Offered Securities.
The Selling Holders and any broker-dealers, agents or underwriters which
participate in the distribution of the Offered Securities may be deemed to be
"underwriters" within the meaning of the Securities Act, and any commission
received by them and any profit on the resale of the Offered Securities
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. See "Plan of Distribution" for a description of
indemnification arrangements.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER MATTERS DISCUSSED
UNDER THE CAPTION "RISK FACTORS" COMMENCING ON PAGE 7.
<PAGE>
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August 29, 1996
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
3
<PAGE>
(continued from front cover)
Holders of the TIDES are entitled to receive cumulative cash
distributions at an annual rate of 6 1/4% of the liquidation preference of $50
per each of the TIDES, accruing from the date of original issuance and payable
quarterly in arrears on each March 15, June 15, September 15 and December 15,
commencing June 15, 1996. See "Description of the TIDES--Distributions." The
payment of distributions and payments on liquidation of the Issuer or the
redemption of TIDES, as described below (but only to the extent of funds of
the Issuer available therefor), are guaranteed by the Company to the extent
described herein (the "Guarantee"). The Company's obligations under the
Guarantee are subordinate and junior to all other liabilities of the Company,
except any liabilities that may be made pari passu expressly by their terms
and certain other guarantees, but are pari passu with the most senior
preferred stock issued, from time to time, if any, by the Company. See
"Description of the Guarantee." If the Company fails to make interest payments
on the Convertible Junior Subordinated Debentures, the Issuer will have
insufficient funds to pay distributions on the TIDES. The Guarantee does not
cover payment of distributions when the Issuer does not have sufficient funds
to pay such distributions. The Guarantee, when taken together with the
Company's obligations under the Convertible Junior Subordinated Debentures and
the Indenture (as defined herein) and its obligations under the Declaration
(as defined herein), including its liabilities to pay costs, expenses, debts
and obligations of the Issuer (other than with respect to the Trust
Securities), provide a full and unconditional guarantee of amounts due on the
TIDES. The obligations of the Company under the Convertible Junior
Subordinated Debentures are subordinate and junior in right of payment to
Senior Indebtedness (as defined herein) of the Company. At June 30, 1996,
Senior Indebtedness consisting of borrowed money of the Company aggregated
approximately $866.6 million. See "Capitalization."
The Company has the right under the Indenture for the Convertible Junior
Subordinated Debentures to defer the interest payments due from time to time
on the Convertible Junior Subordinated Debentures for successive periods not
exceeding 20 consecutive quarters for each such period, and, as a consequence,
quarterly distributions on the TIDES would be deferred by the Issuer (but
would continue to accumulate quarterly and accrue interest) until the end of
any such interest deferral period. See "Risk Factors--Option to Extend
Interest Payment Period; Tax Consequences," "Description of the
TIDES--Distributions" and "Description of the Convertible Junior Subordinated
Debentures--Option to Extend Interest Payment Period."
Each of the TIDES is convertible in the manner described herein at the
option of the holder into shares of Common Stock at the rate of 1.6728 shares
of the Common Stock for each of the TIDES (equivalent to a conversion price of
$29.89 per share of Common Stock), subject to adjustment in certain
circumstances. See "Description of the TIDES--Conversion Rights." The last
reported sale price of the Common Stock (which is listed under the symbol "CE"
on the New York Stock Exchange) on August 27, 1996, was $ 30 5/8 per
share.
The TIDES are effectively redeemable at the option of the Company, in
whole or in part, from time to time, after April 9, 1999, at the prices set
forth herein, plus accrued and unpaid distributions thereon to the date fixed
for redemption (the "Redemption Price"). See "Description of the
TIDES--Optional Redemption." Upon the repayment of the Convertible Junior
Subordinated Debentures at maturity or upon any acceleration, earlier
redemption, or otherwise, the proceeds from such repayment will be applied to
redeem the TIDES and the Common Securities on a pro rata basis. In addition,
upon the occurrence of certain events arising from a change in law or a change
in legal interpretation, the Company will liquidate the Issuer and cause to be
distributed to the holders of the TIDES, on a pro rata basis, Convertible
Junior Subordinated Debentures or, in certain limited circumstances, will
cause the redemption of the TIDES in whole at the liquidation preference of
$50 per each of the TIDES plus accrued and unpaid distributions. See
"Description of the TIDES--Tax Event or Investment Company Event Redemption or
Distribution" and "Description of the Convertible Junior Subordinated
Debentures."
In the event of the liquidation of the Issuer, the holders of the TIDES
will be entitled to receive for each of the TIDES a liquidation preference of
$50 plus accrued and unpaid distributions thereon to the date of payment,
unless, in connection with such liquidation, Convertible Junior Subordinated
Debentures are distributed to the holders of the TIDES. See "Description of
the TIDES--Liquidation Distribution Upon Dissolution."
4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"), and, in accordance
therewith, files reports, proxy and information statements and other
information with the Securities and Exchange Commission ("SEC"). Such reports,
proxy and information statements and other information filed by the Company
with the SEC can be inspected and copied at the Public Reference Section of
the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the regional offices of the SEC located at Seven World
Trade Center, 13th Floor, New York 10048 and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material can be obtained from
the Public Reference Section of the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. In addition,
the SEC maintains a site on the Internet World Wide Web that can be accessed
at http://www.sec.gov. and that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the SEC. Such reports, proxy and information statements
and other information can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the SEC a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the securities offered by
this Prospectus. This Prospectus does not contain all of the information set
forth or incorporated by reference in the Registration Statement and the
exhibits and schedules related thereto, certain portions of which have been
omitted as permitted by the rules and regulations of the SEC. For further
information with respect to the Company and the securities offered by this
Prospectus, reference is made to the Registration Statement and the exhibits
filed or incorporated as a part thereof. Statements contained in this
Prospectus as to the contents of any documents referred to are not necessarily
complete and, in each such instance, are qualified in all respects by
reference to the applicable documents filed with the SEC.
No separate financial statements of the Issuer have been included herein.
The Company does not consider that such financial statements would be material
to holders of the TIDES because (i) all of the voting securities of the Issuer
will be owned, directly or indirectly, by the Company, a reporting company
under the Exchange Act, (ii) the Issuer has no independent operations but
exists for the sole purpose of issuing securities representing undivided
beneficial interests in the assets of the Issuer and investing the proceeds
thereof in Convertible Junior Subordinated Debentures issued by the Company
and (iii) the obligations of the Issuer under the Trust Securities are fully
and unconditionally guaranteed by the Company to the extent that the Issuer
has funds available to meet such obligations. See "Description of the
Convertible Junior Subordinated Debentures" and "Description of the
Guarantee."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC (file No. 1-9874) are
incorporated by reference into this Prospectus:
(i) The Company's description of the Common Stock contained in the
Company's Registration Statement on Form 8-A, dated July 28, 1993, pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description;
(ii) The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
(iii) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ending March 31, 1996 and June 30, 1996; and
(iv) The Company's Current Reports on Form 8-K dated March 26, 1996,
March 28, 1996, April 2, 1996, April 12, 1996, April 17, 1996 (two reports
with this date), July 1, 1996 (two reports with this date), July 8, 1996, July
11, 1996, August 7, 1996, August 21, 1996 and August 27, 1996.
5
<PAGE>
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post-effective amendment which indicates the
termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document, all or a portion of which is
incorporated by reference herein, or contained in this Prospectus, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated herein by reference, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Prospectus except as so modified or
superseded.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered, on the written or
oral request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated into this Prospectus
by reference (other than certain exhibits to such documents). Requests for
such copies should be directed to Investor Relations, CalEnergy Company, Inc.,
302 South 36th Street, Suite 400, Omaha, Nebraska 68131, telephone number
(402) 341-4500.
6
<PAGE>
RISK FACTORS
Prospective purchasers should carefully consider the following risk
factors in addition to the other information appearing in or incorporated by
reference in this Prospectus. This Prospectus contains or incorporates by
reference forward-looking statements which involve risks and uncertainties.
The Company's actual results may differ significantly from the results
discussed in the forward-looking statements. Factors that might cause such
differences include, but are not limited to, the following risk factors.
SUBORDINATION OF GUARANTEE AND CONVERTIBLE JUNIOR SUBORDINATED
DEBENTURES. The Company's obligations under the Guarantee are subordinate and
junior in right of payment to all other liabilities of the Company, with
certain limited exceptions. The obligations of the Company under the
Convertible Junior Subordinated Debentures are subordinate and junior in right
of payment to Senior Indebtedness (as defined herein) of the Company. No
payment of principal (including redemption payments, if any), premium, if any,
or interest on the Convertible Junior Subordinated Debentures may be made if
(i) any Senior Indebtedness is not paid when due and any applicable grace
period with respect to such default has ended with such default not having
been cured or waived or ceasing to exist, or (ii) the maturity of any Senior
Indebtedness has been accelerated because of a default. As of June 30, 1996,
the Company had approximately $866.6 million principal amount of borrowed
money included in Senior Indebtedness. See "Capitalization." Neither the
TIDES, the Convertible Junior Subordinated Debentures nor the Guarantee limit
the Company's ability to incur additional indebtedness or liabilities,
including indebtedness or liabilities that would rank senior to the
Convertible Junior Subordinated Debentures and the Guarantee. See "Description
of the Guarantee--Status of the Guarantee; Subordination" and "Description of
the Convertible Junior Subordinated Debentures--Subordination." The
Convertible Junior Subordinated Debentures are also effectively subordinate to
all existing and future liabilities, including trade payables, of the
Company's subsidiaries, joint ventures and affiliates. See "Risk
Factors--Holding Company Structure."
DEPENDENCE ON CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES PAYMENTS;
LEVERAGE. The ability of the Issuer to pay amounts due on the TIDES is wholly
dependent upon the Company making payments on the Convertible Junior
Subordinated Debentures. The Company is substantially leveraged. As of JUNE
30, 1996, the Company's total consolidated liabilities were $2,257.0 million
(excluding deferred income), its total consolidated assets were $2,975.1
million and its total stockholders' equity was $587.9 million. As of such
date, on a pro forma basis, after giving effect to the acquisition of Falcon
Seaboard Resources, Inc. together with the borrowing of $35 million on a
revolving line of credit, the Company's total consolidated liabilities would
have been $2,513.7 million (excluding deferred income), its obligations in
respect of the TIDES would have been $103.9 million, its total consolidated
assets would have been $3,234.8 million and its stockholders' equity would
have been $590.9 million. The Company's substantial level of debt presents
the risk that the Company might not generate sufficient cash to service the
Company's indebtedness, including the Convertible Junior Subordinated
Debentures, or that its leveraged capital structure could limit its
ability to finance the acquisition and development of additional projects,
to compete effectively or to operate successfully under adverse economic
conditions. See "Selected Historical Financial and Operating Data" and
"Capitalization." If the Company is unable to make payments on the
Convertible Junior Subordinated Debentures or the Guarantee, the Issuer will
be unable to make payments on the TIDES as and when required. The Company is
also a holding company which derives substantially all of its operating
income from its subsidiaries and joint ventures. Distributions from such
entities are restricted under various covenants and conditions contained
in financing documents by which they are bound and the stock or assets of
substantially all of such entities is directly or indirectly pledged, to
secure various of such financings. See "Risk Factors--Holding Company
Structure," "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Notes to the Consolidated Financial Statements."
HOLDING COMPANY STRUCTURE. As a holding company, the Company is dependent
on distributions from its subsidiaries' and joint ventures' ownership
interests in the projects owned and operated by such entities for
substantially all of its operating income. The Company expects that its future
development efforts will also be structured to involve operating subsidiaries,
joint ventures and partnerships. The Company must rely upon dividends and
other payments from its subsidiaries, partnerships and joint ventures to
generate the funds necessary to meet its obligations, including the payment of
principal, interest and premium, if any, on the Convertible
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Junior Subordinated Debentures. The availability of distributions from the
Company's subsidiaries and projects is subject to the satisfaction of various
covenants and conditions contained in the applicable subsidiaries' and joint
ventures' financing documents and, until the pending acquisition of the
remaining partnership interests in the Partnership Projects (as defined
herein) is consummated, in the partnership agreements relating to the
Partnership Projects. Furthermore, the Company is structuring Philippine and
Indonesian project financing arrangements containing, and anticipates that
future project level financings will contain, certain conditions and similar
restrictions on the distribution of cash to the Company.
The Company's subsidiaries, partnerships and joint ventures are
separate and distinct legal entities and have no obligation, contingent or
otherwise, to pay any amounts due pursuant to the Convertible Junior
Subordinated Debentures or to make any funds available therefor, whether by
dividends, loans or other payments, and do not guarantee the payment of
interest on, premium (if any) or principal of the Convertible Junior
Subordinated Debentures. Any right of the Company to receive any assets of any
of its subsidiaries or other affiliates upon any liquidation or reorganization
of the Company (and the consequent right of the holders of the Convertible
Junior Subordinated Debentures to participate in the distribution of, or to
realize proceeds from, those assets) will be effectively subordinated to the
claims of any such subsidiary's or other affiliate's creditors (including
trade creditors and holders of debt issued by such subsidiary or other
affiliate). As of June 30, 1996, on a pro forma basis, after giving effect
to the acquisition of Falcon Seaboard Resources, Inc. together with the
borrowing of $35 million on a revolving line of credit, there would have been
approximately $2,077.2 million of total consolidated indebtedness, which
includes the Company's proportionate share of joint venture and subsidiary
debt, which would be effectively senior to the Convertible Junior
Subordinated Debentures, substantially all of which would have been secured
by the assets of such joint ventures and subsidiaries, and $103.9 million
of TIDES. See "Description of the Convertible Junior Subordinated
Debentures--Subordination."
RIGHTS UNDER THE GUARANTEE. The Guarantee Trustee (as defined herein)
holds the Guarantee for the benefit of the holders of the TIDES. The Guarantee
guarantees to the holders of the TIDES the payment (but not the collection) of
(i) any accrued and unpaid distributions on the TIDES to the extent the Issuer
has funds available therefor, (ii) the amount payable upon redemption,
including all accrued and unpaid distributions, of the TIDES called for
redemption by the Issuer, to the extent the Issuer has funds available
therefor and (iii) upon a voluntary or involuntary dissolution, winding up or
termination of the Issuer (other than in connection with a redemption of all
of the TIDES), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid distributions on the TIDES to the date of payment to
the extent the Issuer has funds available therefor and (b) the amount of
assets of the Issuer remaining available for distribution to holders of the
TIDES upon the liquidation of the Issuer. The holders of a majority in
liquidation amount of the TIDES have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under the Guarantee. In the event of a payment default on
the TIDES, any holder of TIDES may institute a legal proceeding directly
against the Company to enforce such holder's rights in respect thereof under
the Guarantee without first instituting a legal proceeding against the Issuer,
the Guarantee Trustee, or any other person or entity. If the Company were to
default on its obligations under the Convertible Junior Subordinated
Debentures, the Issuer would lack available funds for the payment of
distributions or amounts payable on redemption of the TIDES or otherwise, and
in such event, the holders of the TIDES would not be able to rely upon the
Guarantee for payment of such amounts. Instead, holders of the TIDES would
rely on the enforcement (1) by the Trustee of its rights, as registered holder
of the Convertible Junior Subordinated Debentures, against the Company
pursuant to the terms of the Convertible Junior Subordinated Debentures or (2)
by such holder of its right of direct action against the Company to enforce
payments on the Convertible Junior Subordinated Debentures. See "Description
of the Guarantee--Status of the Guarantee; Subordination" and "Description of
the Convertible Junior Subordinated Debentures--Subordination" herein. The
Declaration provides that each holder of TIDES by acceptance thereof agrees to
the provisions of the Guarantee (including the subordination provisions
thereof) and the Indenture.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES. The Company
has the right under the Indenture to defer interest payments from time to time
on the Convertible Junior Subordinated Debentures for successive periods not
exceeding 20 consecutive quarters for each such period. Upon the termination
of any Deferral Period and the payment of all amounts then due, the Company
may select a new Deferral Period, subject
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to the requirements described herein. As a consequence, during any such
Deferral Period, quarterly distributions on the TIDES would be deferred (but
would continue to accrue with interest thereon) by the Issuer. In the event
that the Company exercises this right, during such period the Company (i)
shall not declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock (other than stock dividends paid by the Company which
consist of stock of the same class as that on which the dividend is being
paid), (ii) shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the
Company after the date of initial issuance of the Convertible Junior
Subordinated Debentures that rank pari passu with or junior to the Convertible
Junior Subordinated Debentures, and (iii) shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Guarantee).
Prior to the termination of any such Deferral Period, the Company may further
extend the Deferral Period; provided that such Deferral Period, together with
all previous and further extensions thereof, may not exceed 20 consecutive
quarters and that such Deferral Period may not extend beyond the maturity date
of the Convertible Junior Subordinated Debentures. The Company has no current
intention of exercising its right to defer payments of interest by extending
the interest payment period on the Convertible Junior Subordinated Debentures.
However, if the Company should determine to exercise its deferral right in the
future, the market price of the TIDES is likely to be adversely affected. See
"Description of the TIDES--Distributions" and "Description of the Convertible
Junior Subordinated Debentures--Option to Extend Interest Payment Period."
Should a Deferral Period occur, a holder of TIDES will continue to
accrue interest income for United States federal income tax purposes. As a
result, such a holder will be required to include such interest in gross
income for United States federal income tax purposes in advance of the receipt
of cash, and such holder will not receive the cash from the Issuer related to
such income if such holder disposes of or converts its TIDES prior to the
record date for payment of distributions. See "United States
Taxation--Potential Extension of Interest Payment Period and Original Issue
Discount."
TAX EVENT OR INVESTMENT COMPANY EVENT REDEMPTION OR DISTRIBUTION.
Upon the occurrence of a Tax Event or Investment Company Event, the Company
will, except in certain limited circumstances, cause the Trustees to liquidate
the Issuer and cause Convertible Junior Subordinated Debentures to be
distributed pro rata to the holders of TIDES. In certain circumstances, the
Company will have the right to redeem the Convertible Junior Subordinated
Debentures, in whole (but not in part), at 100% of principal amount plus
accrued and unpaid interest, in lieu of a distribution of the Convertible
Junior Subordinated Debentures, in which event the TIDES will be redeemed in
whole at the liquidation preference of $50 per each of the TIDES plus accrued
and unpaid distributions. In the case of a Tax Event, the Company may also
elect to cause the TIDES to remain outstanding and pay Additional Interest (as
defined herein) on the Convertible Junior Subordinated Debentures. See
"Description of the TIDES--Tax Event or Investment Company Event Redemption or
Distribution" and "Description of the Convertible Junior Subordinated
Debentures--General."
Under current United States federal income tax law, a distribution of
the Convertible Junior Subordinated Debentures would not be a taxable event to
holders of the TIDES. However, if the relevant Special Event (as defined
herein) is a Tax Event which results in the Issuer being treated as an
association taxable as a corporation, the distribution would likely constitute
a taxable event to holders of the TIDES. See "United States Taxation--Receipt
of Convertible Junior Subordinated Debentures or Cash Upon Liquidation of the
Issuer."
LIMITED VOTING RIGHTS. Except in the limited circumstances described
herein, holders of TIDES will have no voting rights. See "Description of the
TIDES--Voting Rights."
DEVELOPMENT UNCERTAINTY. The Company is actively seeking to develop,
construct, own and operate new power projects utilizing geothermal and other
technologies, both domestically and internationally, the completion of any of
which is subject to substantial risk. The Company has in development or under
construction projects representing several times the generating capacity of
those currently in operation. Development can require the Company to expend
significant sums for preliminary engineering, permitting, fuel supply,
resource exploration, legal and other expenses in preparation for competitive
bids which the Company may not win or before it can be determined whether a
project is feasible, economically attractive or capable of being financed.
Successful development and construction is contingent upon, among other
things, negotiation on terms
9
<PAGE>
satisfactory to the Company of engineering, construction, fuel supply and
power sales contracts with other project participants, receipt of required
governmental permits and consents and timely implementation of construction.
Further, there can be no assurance that the Company, which is substantially
leveraged, will obtain access to the substantial debt and equity capital
required to continue to develop and construct electric power projects or to
refinance projects. The future growth of the Company is dependent, in large
part, upon the demand for significant amounts of additional electrical
generating capacity and its ability to obtain contracts to supply portions of
this capacity. There can be no assurance that development efforts on any
particular project, or the Company's efforts generally, will be successful.
DEVELOPMENT UNCERTAINTY OUTSIDE THE UNITED STATES. The Company has
various projects under construction outside the United States and a number
of projects under award outside the United States. The financing and
development of projects outside the United States entail significant political
and financial risks (including, without limitation, uncertainties associated
with privatization efforts in the countries involved, currency exchange rate
fluctuations, currency repatriation restrictions, changes in law, political
instability, civil unrest and expropriation) and other structuring issues that
have the potential to cause substantial delays in respect of or material
impairment of the value of the project being developed, which the Company may
not be capable of fully insuring against. The uncertainty of the legal
environment in certain foreign countries in which the Company is developing
and may develop or acquire projects could make it more difficult for the
Company to enforce its rights under agreements relating to such projects. In
addition, the laws and regulations of certain countries may limit the ability
of the Company to hold a majority interest in some of the projects that it may
develop or acquire. The Company's international projects may, in certain
cases, be terminated by the applicable foreign governments.
EXPLORATION, DEVELOPMENT AND OPERATION UNCERTAINTIES OF GEOTHERMAL
RESOURCES. Geothermal exploration, development and operations are subject to
uncertainties similar to those typically associated with oil and gas
exploration and development, including dry holes and uncontrolled releases.
Because of the geological complexities of geothermal reservoirs, the
geographic area and sustainable output of geothermal reservoirs can only be
estimated and cannot be definitively established. There is, accordingly, a
risk of an unexpected decline in the capacity of geothermal wells and a risk
of geothermal reservoirs not being sufficient for sustained generation of the
electrical power capacity desired. In addition, geothermal power production
poses unusual risks of seismic activity. Accordingly, there can be no
assurance that earthquake, property damage or business interruption insurance
will be adequate to cover all potential losses sustained in the event of
serious seismic disturbances or that such insurance will be available on
commercially reasonable terms. The success of a geothermal project depends on
the quality of the geothermal resource and operational factors relating to the
extraction of the geothermal fluids involved in such project. The quality of a
geothermal resource is affected by a number of factors, including the size of
the reservoir, the temperature and pressure of the geothermal fluids in such
reservoir, the depth and capacity of the production and injection wells, the
amount of dissolved solids and noncondensible gases contained in such
geothermal fluids, and the permeability of the subsurface rock formations
containing such geothermal resource, including the presence, extent and
location of fractures in such rocks. The quality of a geothermal resource may
decline as a result of a number of factors, including the intrusion of
lower-temperature fluid into the producing zone. An incorrect estimate by the
Company of the quality of a geothermal resource, or a decline in such quality,
could have a material adverse effect on the Company's results of operations.
In addition, both the cost of operations and the operating performance of
geothermal power plants may be adversely affected by a variety of resource
operating factors. Production and injection wells can require frequent
maintenance or replacement. Corrosion caused by high-temperature and
high-salinity geothermal fluids may compel the replacement or repair of
certain equipment, vessels or pipelines. New production and injection wells
may be required for the maintenance of operating levels, thereby requiring
substantial capital expenditures.
GENERAL OPERATING RISKS. The operation of a power plant involves
many risks, including the breakdown or failure of power generation equipment,
pipelines, transmission lines or other equipment or processes, fuel
interruption, and performance below expected levels of output or efficiency.
Each facility may depend on a single or limited number of entities to purchase
electricity or thermal energy, to supply water, to supply gas, to transport
gas, to dispose of wastes or to wheel electricity. The failure of any such
purchasing utility, steam host, water or gas supplier, gas transporter,
wheeling utility or other relevant project participant to fulfill its
contractual obligations could have material adverse impact on the Company.
10
<PAGE>
PRESENT DEPENDENCE ON LARGE CUSTOMER. The Company currently relies on
long-term power purchase "Standard Offer No. 4" contracts (each, an "SO4
Agreement") with a large customer, Southern California Edison Company
("Edison"), to generate a substantial portion of its operating revenues. Any
material failure by Edison to fulfill its contractual obligations under any of
such contracts is likely to have a material adverse effect on the Company's
results of operations. Each of the Company's SO4 Agreements provides for
both capacity payments and energy payments for a term of between 20 and 30
years. During the first ten years of the term of each SO4 Agreement, energy
payments are based on a pre-set schedule. Thereafter, while the basis for the
capacity payment remains the same, the required energy payment is Edison's
then-current published avoided cost of energy ("Avoided Cost of Energy"), as
determined by the California Public Utility Commission ("CPUC").
Estimates of Edison's future Avoided Cost of Energy vary
substantially in any given year. The Company cannot predict the likely level
of Avoided Cost of Energy prices under its SO4 Agreements with Edison at the
expiration of the fixed-price periods. Edison's Avoided Cost of Energy as
determined by the CPUC is currently substantially below the current scheduled
energy prices under the Company's respective SO4 Agreements and is currently
expected to remain so. For the year ended December 31, 1995, the time
period-weighted average of Edison's Avoided Cost of Energy was 2.1 cents per
kWh, compared to the time period-weighted average for the year ended December
31, 1995 selling prices for energy of approximately 11.4 cents per kWh for the
Company. Thus, the revenues generated by each of the Company's facilities
operating under SO4 Agreements are likely to decline significantly after the
expiration of the applicable fixed price period.
COMPETITION AND DOMESTIC DEREGULATION. The international power
production market is characterized by numerous strong and capable competitors,
many of which have more extensive and more diversified developmental or
operating experience (including international experience) and greater
financial resources than the Company. Many of these competitors also compete
in the domestic market. Further, in recent years, the domestic power
production industry has been characterized by strong and increasing
competition with respect to the industry's efforts to obtain new power sales
agreements, which has contributed to a reduction in prices offered to
utilities. In that regard, many utilities often engage in "competitive bid"
solicitations to satisfy new capacity demands. In the domestic market,
competition is expected to increase as the electric utility industry becomes
deregulated. In addition, deregulation activity may cause certain utilities or
other contract parties to attempt to renegotiate contracts or otherwise fail
to perform their contractual obligations, which in turn could adversely affect
the Company's results of operations.
NATURAL GAS SUPPLY/MINIMUM TAKE CONTRACTS. The primary fuel source
for certain of the Company's projects is natural gas and a substantial portion
of the operating expenses of such facilities consists of the costs of
obtaining natural gas through gas supply agreements and transporting that gas
to the projects under gas transportation agreements. The Company believes it
has contracted for natural gas supplies and transportation covering sufficient
volumes to satisfy the long term fuel requirements of the applicable projects.
The obligations of gas suppliers are corporate undertakings that are not
supported by dedicated reserves in all cases. Unless the gas projects were
able to obtain substitute volumes of natural gas, including the requisite
transportation services for such volumes at a price not materially higher than
the sum of the contract price under the existing gas supply agreements and any
damages paid by the supplier for failure to deliver, the sustained failure of
a supplier to comply with its obligation to deliver natural gas in accordance
with its gas supply agreement, including as a result of its failure to
maintain the necessary federal, state and provincial permits, could have a
material adverse effect on the cash flows to the Company.
Under certain gas supply agreements, if a project fails to purchase a
minimum annual quality of natural gas, the project is obligated to pay an
amount equal to the product of the deficiency amount and the applicable
contract price. In certain circumstances, utilities may curtail or schedule
the projects for dispatch off-line. Curtailment or low dispatch levels in
combination with other events could result in the project's inability to
satisfy minimum take provisions through the project's fuel requirements. The
Company intends to manage its requirements for contract volumes under the gas
supply agreements so as to
11
<PAGE>
meet the minimum take requirements through a combination of utilization of
nominated volumes in operations and resales of the remainder of the volumes to
third-party customers, if necessary.
The transportation arrangements, including pipelines facilities and
the rates charged for transportation services, are subject to various Federal,
provincial, state and local authorities and, in the case of the Company's
Saranac project, the Natural Energy Board of Canada. In exercising such
jurisdiction, these regulatory authorities maintain or may maintain authority
to modify aspects of the rates, terms and conditions that govern the
transportation services provided. It is possible that such a modification
could materially increase the fuel transportation costs of the projects. In
addition, certain of the natural gas transportation agreements, and the
approved tariffs of the transporters, contain provisions that allow the
transporter to terminate, or suspend performance under, or reduce the amount
of gas transported for the projects under the agreement upon certain
conditions, such as the taking of an adverse action by a regulatory authority
or if the transporter, in its judgment, deems it necessary to make
modifications or repairs to its pipeline facilities or upon the occurrence of
an event of force majeure. The sustained failure of any transporter to provide
gas transportation services under its natural gas transportation agreement
could have a material adverse effect on a power plant's operations.
IMPACT OF ENVIRONMENTAL AND OTHER REGULATIONS. The Company is subject
to a number of environmental and other laws and regulations affecting many
aspects of its present and future operations, including the disposal of
various forms of waste, the construction or permitting of new facilities,
and the drilling and operation of new and existing wells. Such laws and
regulations generally require the Company to obtain and comply with a wide
variety of licenses, permits and other approvals. The Company also remains
subject to a number of complex and stringent laws and regulations that both
public officials and private individuals may seek to enforce. There can be no
assurance that existing regulations will not be revised or that new
regulations will not be adopted or become applicable to the Company which
could have an adverse impact on its operations. The implementation of
regulatory changes imposing more comprehensive or stringent requirements on
the Company, which would result in increased compliance costs, could have a
material adverse effect on the Company's results of operations. In addition,
regulatory compliance for the construction of new facilities is a costly and
time-consuming process, and intricate and rapidly changing environmental
regulations may require major expenditures for permitting and create the risk
of expensive delays or material impairment of project value if projects cannot
function as planned due to changing regulatory requirements or local
opposition.
The Public Utility Regulatory Policies Act of 1978, as amended
("PURPA") and the Public Utility Holding Company Act of 1935, as amended
("PUHCA") are two of the laws (including the regulations thereunder) which
affect the Company's Operations. PURPA provides to qualifying facilities
("QFs") certain exemptions from federal and state laws and regulations,
including organizational, rate and financial regulation. PUHCA regulates
public utility holding companies and their subsidiaries. The Company is not
and will not be subject to regulation as a holding company under PUHCA as long
as the power plants it owns are QFs under PURPA. QF status is conditioned on
meeting certain criteria, and would be jeopardized, for example, by the loss
of a steam customer or reduction of steam purchases below the amount required
by PURPA. The Company's four cogeneration facilities have steam sales
agreements with existing industrial hosts which agreements must be maintained
in effect in order to maintain QF status. In the event the Company were unable
to avoid the loss of such status for one of its facilities, such an event
could result in termination of a given project's power sales agreement and a
default under the project subsidiary's project financing agreements.
SHARES OF COMMON STOCK ELIGIBLE FOR FUTURE SALE. Pursuant to the
Company's Amended and Restated 1996 Stock Option Plan (the "1996 Plan"), as of
June 30, 1996, the Company had outstanding various options to its officers,
directors and employees for the purchase of 2,696,841 shares of Common
Stock, of which all of the shares of Common Stock issuable upon exercise of
said options have been registered pursuant to registration statements on Form
S-8, and, as and when fully vested, are available for immediate resale. Also
as of June 30, 1996, there were additional options outstanding to purchase
4,489,163 shares of Common Stock, 4,289,163 of which were granted to Peter
Kiewit Sons' Inc. ("PKS"). As of June 30, 1996, PKS has demand and piggyback
registration rights with respect to approximately 12,322,312 shares of Common
Stock (and any shares of Common Stock subsequently held by PKS), all options
to purchase shares of Common Stock (and the shares issuable upon
12
<PAGE>
the exercise of such options) and 3,529,252 shares of Common Stock issuable
upon conversion of the Company's 9.5% convertible subordinated debentures. In
addition, 4,444,444 shares of Common Stock have been reserved for issuance
pursuant to the conversion of the Company's 5% convertible subordinated
debentures. Sales of substantial amounts of Common Stock or the availability
of Common Stock for sale, could have an adverse impact on the market price of
the Common Stock and on the Company's ability to raise additional capital
through the sale of Common Stock.
TRADING CHARACTERISTICS OF THE TIDES. The TIDES may trade at a price
that does not fully reflect the value of accrued but unpaid distributions. A
holder who disposes of its TIDES between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest
on the Convertible Junior Subordinated Debentures through the date of
disposition in income as ordinary income (i.e., original issue discount), and
to add such amount to its adjusted tax basis in its pro rata share of the
underlying Convertible Junior Subordinated Debentures deemed disposed of. To
the extent the selling price is less than the holder's adjusted tax basis
(which will include, in the form of original issue discount, all accrued but
unpaid interest), a holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes. See "United States Taxation."
LACK OF PUBLIC MARKET FOR THE TIDES. There is no existing public
trading market for the TIDES, and there can be no assurance regarding the
future development of a market for the TIDES, or the ability of holders of the
TIDES to sell their TIDES or the price at which such holders may be able to
sell their TIDES. If such a market were to develop, the TIDES could trade at
prices that may be higher or lower than the initial offering price depending
on many factors, including prevailing interest rates, the price of the Common
Stock, the Company's operating results and the market for similar securities.
The Initial Purchasers currently make a market in the TIDES. The Initial
Purchasers are not obligated to do so, however, and any market making with
respect to the TIDES may be discontinued at any time without notice.
Therefore, there can be no assurance as to the liquidity of any trading market
for the TIDES or that an active public market for the TIDES will develop. The
Company does not intend to apply for listing or quotation of the TIDES on any
securities exchange or stock market; however, the TIDES are eligible for
trading in the Private Offerings, Resale and Trading through Automated
Linkages (PORTAL) Market of the National Association of Securities Dealers,
Inc.
13
<PAGE>
CALENERGY CAPITAL TRUST
CalEnergy Capital Trust (the "Issuer" or the "Trust") is a statutory
business trust formed under Delaware law pursuant to (i) a declaration of
trust (the "Declaration") executed by the Company, as sponsor of the Trust,
and the trustees of the Issuer (the "Issuer Trustees") and (ii) the filing of
a certificate of trust with the Secretary of State of the State of Delaware.
The Company owns, directly or indirectly, Common Securities in an aggregate
liquidation amount equal to 3% of the total capital of the Issuer. The Common
Securities rank pari passu, and payment will be made thereon pro rata, with
the TIDES, except that, upon the occurrence and during the continuance of an
event of default under the Declaration, the rights of the holders of the
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of
the holders of the TIDES. The assets of the Trust will consist principally of
the Convertible Junior Subordinated Debentures. The Issuer exists for the
exclusive purpose of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of the Trust, (ii) investing the gross
proceeds of the Trust Securities in the Convertible Junior Subordinated
Debentures and (iii) engaging in only those other activities necessary or
incidental thereto.
Pursuant to the Declaration, there are initially five Issuer
Trustees. Three of the Issuer Trustees (the "Company Trustees") are
individuals who are employees or officers of or who are affiliated with the
Company.
The fourth trustee is a financial institution that is unaffiliated
with the Company (the "Trustee"). The fifth trustee is an entity which
maintains its principal place of business in the State of Delaware (the
"Delaware Trustee"). Initially, The Bank of New York, a New York banking
corporation, acts as Trustee and its affiliate, The Bank of New York
(Delaware), a Delaware banking corporation, acts as Delaware Trustee until, in
each case, removed or replaced by the holder of the Common Securities. The
Bank of New York also acts as indenture trustee under the Guarantee (the
"Guarantee Trustee") and under the Indenture (the "Indenture Trustee"). See
"Description of the Guarantee" and "Description of the TIDES."
The Trustee holds title to the Convertible Junior Subordinated
Debentures for the benefit of the holders of the Trust Securities and the
Trustee has the power to exercise all rights, powers and privileges under the
Indenture as the holder of the Convertible Junior Subordinated Debentures. In
addition, the Trustee maintains exclusive control of a segregated non-interest
bearing bank account (the "Property Account") to hold all payments made in
respect of the Convertible Junior Subordinated Debentures for the benefit of
the holders of the Trust Securities. The Company, as the direct or indirect
holder of all the Common Securities, has the right to appoint, remove or
replace any of the Issuer Trustees and to increase or decrease the number of
trustees, provided that the number of trustees shall be at least three, a
majority of which shall be Company Trustees. The Company will pay all fees and
expenses related to the Trust and the offering of the TIDES. See "Description
of the Convertible Junior Subordinated Debentures."
The rights of the holders of the TIDES, including economic rights,
rights to information and voting rights, if any, are as set forth in the
Declaration and the Delaware Business Trust Act, as amended (the "Trust Act").
See "Description of the TIDES." The Declaration, the Indenture and the
Guarantee also incorporate by reference the terms of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Declaration, the
Indenture and the Guarantee will be qualified under the Trust Indenture Act.
The place of business and the telephone number of the Trust are the principal
executive offices and telephone number of the Company. See "The Company."
14
<PAGE>
THE COMPANY
CalEnergy Company, Inc., formerly known as California Energy Company,
Inc. (the "Company"), was founded in 1971 and is primarily engaged in the
development and operation of environmentally responsible independent power
production facilities worldwide utilizing geothermal resources, natural gas
and hydroelectric or other energy sources, such as oil and coal. The Company
is the largest independent geothermal power producer in the world (on the
basis of the Company's estimate of the aggregate MW of electric generating
capacity in operation and under construction).
The Company has an aggregate net legal ownership interest of 872 MW
of electric generating capacity in power production facilities in the United
States having an aggregate net capacity of 1135 MW (of which 570 MW
constitute natural gas fired plants). All of these facilities are managed and
operated by the Company and are located in Southern California, Texas,
Arizona, Pennsylvania and New York. In addition to the electricity sales
revenue earned from its net ownership position in such facilities, the Company
receives significant fee and royalty income from operating such plants and
certain power plants which are owned by unaffiliated third parties and from
managing the production from the geothermal resources for certain of such
facilities.
Additionally, the Company has an aggregate net ownership interest of
409 MW of electric generating capacity in four geothermal power projects in
the Philippines having an aggregate net capacity of 540 MW, and has a net
ownership interest of 52 MW of electric generating capacity in a hydroelectric
power project in the Philippines having an aggregate net capacity of 150 MW,
which projects are all financed and under construction. The Company has
commenced construction of a 55 net MW geothermal project in Indonesia in which
the Company has an aggregate net ownership interest of 26 MW of electric
generating capacity.
The Company is also developing seven additional projects with
executed or awarded power sales contracts in the Philippines, Indonesia and
the United States. The Company is expected to have an approximate net
ownership interest of 760 MW in these development projects (which represent an
aggregate net capacity of 1,423 MW of additional potential electric generating
capacity). Additionally, the Company is developing the Salton Sea Minerals
Extraction Project, in which it plans to recover minerals (potentially
including zinc, manganese, lithium carbide, boric acid and hydrogen sulfide)
in commercial quantities from the geothermal fluids at the Company's Imperial
Valley Projects (as defined herein). Substantial contingencies exist with
respect to development projects, including, without limitation, the need to
obtain financing, permits and licenses and the satisfactory completion of
construction and implementation of commercial operation.
The Company's Common Stock is traded on the New York, Pacific and
London Stock Exchanges. As of June 30, 1996, PKS was an approximate 34%
stockholder of the Company (on a fully diluted basis). PKS is a large
employee-owned construction, mining and telecommunications company with
approximately $3 billion in revenues in 1995. PKS is one of the largest
construction companies in North America and has been in the construction
business since 1884.
STRATEGY
Domestically, the Company is focusing on market opportunities in
which it believes it has relative competitive advantages due to its
geotechnical, project management, and operating expertise. In addition, the
Company expects to continue diversification into other environmentally
responsible sources of energy primarily through selected acquisitions,
including acquisitions of partially developed or existing power generating
projects and contracts. The Company is also evaluating the potential impacts
and opportunities of direct access and retail wheeling.
The Company presently believes that the international independent
power market holds the majority of new opportunities for financially
attractive private power development in the next several years, in large part
because the demand for new generating capacity is growing more rapidly in
emerging nations than in the United States. In developing its international
strategy, the Company pursues development opportunities in countries which it
believes have an acceptable risk profile and where the Company's geothermal
resource development and operating experience, project development expertise
or strategic relationship with PKS or local partners are
15
<PAGE>
expected to provide it with a competitive advantage. The Company has financed
and has under construction four projects representing an aggregate of 461 MW
of net ownership of electric generating capacity in the Philippines and has
commenced construction of a 55 MW geothermal project in Indonesia in which the
Company has a net ownership interest of 26 MW of electric generating capacity.
In addition, the Company is currently pursuing a number of other electric
power project opportunities in the Philippines, Indonesia and other countries.
The Company believes that these countries are ideally suited for the Company
to develop, finance and operate power projects successfully because of their
population demographics, extensive geothermal resources and stated commitments
to the development of private power programs. The Company's development
efforts include both so-called "greenfield" development as well as the
acquisition of or participation in the joint venture development of projects
which are under development or already operating. In greenfield development,
the Company attempts to negotiate power sales contracts for new generation
capacity or engages in competitive bids in response to government agency or
utility requests for proposals for new capacity.
The principal executive offices of the Company are located at 302
South 36th Street, Suite 400, Omaha, Nebraska 68131 and its telephone number
is (402) 341-4500. The Company was incorporated in 1971 under the laws of the
State of Delaware.
RECENT DEVELOPMENTS
On August 7, 1996, CE/FS Holding Company, inc, a wholly owned
subsidiary of the Company, completed its purchase of all of the issued and
outstanding shares of capital stock of Falcon Seaboard Resources, Inc.
("Falcon Seaboard"). falcon seaboard has a significant ownership interest in
three operating gas-fired cogeneration plants and related natural-gas
pipelines. The plants are located in Texas, Pennsylvania and New York and
total 520 MWs in capacity. Assets in oil and gas properties and certain
other assets and liabilities previously held by Falcon Seaboard were
distributed to the stockholders of Falcon Seaboard prior to the consummation
of the transaction. Reference is made to the Company's Current Reports on
Form 8-K dated July 8, 1996 and August 7, 1996, which contain the terms and
conditions to the Falcon stock purchase agreement and report on the
consummation of the acquisition and which reports are incorporated herein by
reference.
RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
The following table sets forth the Company's ratio of earnings to fixed
charges on a historical basis for each of the five years in the period ended
December 31, 1995, and for the SIX-month periods ended June 30, 1995 and
June 30, 1996.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
----------------------- ----------------
1991 1992 1993 1994 1995 1995 1996
---- ---- ---- ---- ---- ---- ----
Ratio of Earnings to
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges..................... 2.0 3.2 2.8 1.7 1.5 1.4 1.4
</TABLE>
For purposes of computing historical ratios of earnings to fixed charges,
earnings are divided by fixed charges. "Earnings" represent the aggregate of
(a) the pre-tax income of the Company, including its proportionate share of
the pre-tax income of the Coso Project (as defined herein) and beginning for
the year ended December 31, 1995, the Partnership Projects (as defined herein)
and excluding the equity in loss of a non-consolidated subsidiary, and (b)
fixed charges, less capitalized interest. "Fixed charges" represent interest
(whether expensed or capitalized), amortization of deferred financing and bank
fees, and the portion of rentals considered to be representative of the
interest factor (one-third of lease payments).
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<PAGE>
CAPITALIZATION
(IN THOUSANDS)
The following table sets forth (i) the consolidated capitalization of the
Company at June 30, 1996, and (ii) the consolidated capitalization of the
Company as adjusted to reflect the acquisition of Falcon Seaboard Resources,
Inc. and the borrowing of $35 million on a revolving line of credit. The table
should be read in conjunction with the Company's consolidated financial
statements and notes thereto and other financial data incorporated herein by
reference.
<TABLE>
<CAPTION>
AT JUNE 30, 1996
ACTUAL AS ADJUSTED
Indebtedness:
<S> <C> <C>
Revolving line of credit..........................................................$ -- $ 35,000
Construction loans................................................................ 305,870 305,870
Project finance loans............................................................. 187,172 306,650
Senior discount notes............................................................. 501,798 501,798
Salton Sea notes and bonds........................................................ 563,035 563,035
Limited recourse senior secured notes............................................. 200,000 200,000
5% Convertible debt............................................................... 100,000 100,000
Convertible debt.................................................................. 64,850 64,850
--------- ---------
Total consolidated indebtedness................................................. 1,922,725 2,077,203
--------- ---------
Deferred income...................................................................... 26,213 26,213
Convertible preferred securities of subsidiary (1)................................... 103,930 103,930
Stockholders' equity:
Preferred stock, no par value, 2,000 shares authorized............................ -- --
Common stock, $.0675 par value, 80,000 shares authorized, 52,179
shares issued, 52,176 outstanding............................................... 3,523 3,523
Additional paid-in capital........................................................ 351,976 354,976
Retained earnings................................................................. 238,792 238,792
Treasury stock, 3 common shares at cost......................................... (61) (61)
Unearned compensation--restricted stock............................................ (6,294) (6,294)
Total stockholders' equity........................................................ 587,936 590,936
--------- ---------
Total capitalization............................................................$2,640,804 2,798,282
========= =========
- --------------------
</TABLE>
(1) As described herein, the sole asset of the Issuer will be the 6 1/4%
Convertible Junior SubordinateD Debentures due 2016 of the Company with
an outstanding principal amount of approximately $107,023 and upon
redemption of such debt, such convertible preferred securities (TIDES)
will be mandatorily redeemable.
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<PAGE>
ACCOUNTING TREATMENT
The financial statements of the Issuer will be included in the Company's
consolidated financial statements and the TIDES will be shown as convertible
preferred securities of a subsidiary.
USE OF PROCEEDS
The Selling Holders will receive all of the proceeds from the sale of the
Offered Securities. Neither the Company nor the Issuer will receive any
proceeds from the sale of the Offered Securities.
DESCRIPTION OF THE TIDES
The following summary of certain material terms and provisions of the
TIDES is subject to, and qualified in its entirety by reference to, the
Declaration. The TIDES were issued pursuant to the terms of the Declaration.
The Declaration incorporates by reference terms of the Trust Indenture Act.
The Declaration will be qualified under the Trust Indenture Act. The Bank of
New York, as Trustee, acts as indenture trustee for the Declaration for
purposes of compliance with the Trust Indenture Act. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the
Declaration.
GENERAL
The TIDES were issued in fully registered form without interest coupons.
Bearer TIDES were not issued.
The TIDES represent undivided beneficial ownership interests in the
assets of the Issuer and entitle the holders thereof to a preference in
certain circumstances with respect to distributions and amounts payable on
redemption or liquidation over the Common Securities, as well as other
benefits as described in the Declaration.
All of the Common Securities are owned, directly or indirectly, by
the Company. The Common Securities rank pari passu, and payments will be made
thereon pro rata, with the TIDES except as described under "--Subordination of
Common Securities." The Convertible Junior Subordinated Debentures are owned
by the Trustee and held for the benefit of the holders of the Trust
Securities. The Declaration does not permit the issuance by the Issuer of any
securities other than the Trust Securities or the incurrence of any
indebtedness by the Issuer.
DISTRIBUTIONS
The distributions payable on each of the TIDES are fixed at a rate per
annum of 6 1/4% of the stateD liquidation preference of $50 per each of the
TIDES. Deferred distributions (and interest thereon) accrue interest
(compounded quarterly) at the same rate. The term "distributions" as used
herein includes any such distributions payable unless otherwise stated. The
amount of distributions payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months.
Distributions on the TIDES are cumulative, accrue from the date of
initial issuance and are payable quarterly in arrears on each March 15, June
15, September 15 and December 15, commencing June 15, 1996, when, as and if
available. The Company has the right under the Indenture to defer interest
payments from time to time on the Convertible Junior Subordinated Debentures
for successive periods not exceeding 20 consecutive quarters for each such
period, and, as a consequence, quarterly distributions on the TIDES would be
deferred by the Issuer (but would continue to accrue with interest) during any
such Deferral Period. In the event that the Company exercises this right,
during such period the Company (i) shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than
stock dividends paid by the Company which consist of stock of the same class
as that on which the dividend is being paid), (ii) shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem
any debt securities issued by the Company after the date of original issuance
of the Convertible Junior Subordinated Debentures that rank pari passu with or
junior to the
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<PAGE>
Convertible Junior Subordinated Debentures, and (iii)
shall not make any guarantee payments with respect to the foregoing (other
than pursuant to the Guarantee). Prior to the termination of any Deferral
Period, the Company may further extend such Deferral Period; provided that
such Deferral Period together with all previous and further deferrals thereof
may not exceed 20 consecutive quarters. Upon the termination of any Deferral
Period, the Company is required to pay all amounts then due and, upon such
payment, the Company may select a new Deferral Period, subject to the above
requirements. In no event shall any Deferral Period extend beyond the maturity
of the Convertible Junior Subordinated Debentures. See "Description of the
Convertible Junior Subordinated Debentures--Interest" and "--Option to Extend
Interest Payment Period."
Distributions on the TIDES must be paid quarterly on the dates payable to
the extent of funds of the Trust available for the payment of such
distributions. Amounts available to the Trust for distribution to the holders
of the TIDES are limited to payments under the Convertible Junior Subordinated
Debentures in which the Issuer will invest the proceeds from the issuance and
sale of the Trust Securities. See "Description of the Convertible Junior
Subordinated Debentures." The payment of distributions, to the extent of funds
of the Trust available therefor, is guaranteed by the Company, as set forth
under "Description of the Guarantee."
Distributions on the TIDES are payable to the holders thereof as they
appear on the books and records of the Issuer on the relevant record dates,
which will be fifteen days prior to the relevant payment dates. Subject to any
applicable laws and regulations and the provisions of the Declaration, each
such payment will be made as described under "--Book-Entry-Only Issuance--The
Depository Trust Company" below. In the event that any date on which
distributions are payable on the TIDES is not a Business Day, payment of the
distribution payable on such date will be made on the next succeeding day
which is a Business Day (without any distribution or other payment in respect
of any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. A "Business Day" shall mean any day other than a day on which banking
institutions in The City of New York are authorized or required by law to
close.
CONVERSION RIGHTS
General. TIDES are convertible at any time prior to maturity (except in
the case of TIDES called for redemption which are convertible at any time
prior to the close of business on the Business Day prior to the redemption
date), at the option of the holder thereof and in the manner described below,
into shares of the Common Stock at an initial conversion rate of 1.6728 shares
of Common Stock for each of the TIDES (equivalent to a conversion price of
$29.89 per share of Common Stock), subject to adjustment as described under
"Conversion Price Adjustments" below. The Issuer has covenanted in the
Declaration not to convert Convertible Junior Subordinated Debentures held by
it except pursuant to a notice of conversion delivered by a holder of TIDES to
an office or agency designated by the Trust for such purpose (the "Conversion
Agent"). A holder of TIDES wishing to exercise its conversion right shall
deliver an irrevocable conversion notice, together, if such TIDES is a
Certificated Security (as defined herein), with such Certificated Security, to
the Conversion Agent which shall, on behalf of such holder, exchange such of
the TIDES for a portion of the Convertible Junior Subordinated Debentures and
immediately convert such Convertible Junior Subordinated Debentures into
Common Stock. Holders may obtain copies of the required form of the conversion
notice from the Conversion Agent.
Holders of TIDES at the close of business on a distribution record date
will be entitled to receive the distribution payable on such TIDES on the
corresponding distribution payment date notwithstanding the conversion of such
TIDES following such distribution record date but prior to such distribution
payment date. Except as provided in the immediately preceding sentence,
neither the Issuer nor the Company will make, or be required to make, any
payment, allowance or adjustment for accumulated and unpaid distributions,
whether or not in arrears, on converted TIDES. The Company will make no
payment or allowance for distributions on the shares of Common Stock issued
upon such conversion, except to the extent that such shares of Common Stock
are held of record on the record date for any such distributions, except in
certain limited circumstances. Each conversion will be deemed to have been
effected immediately prior to the close of business on the day on which the
related conversion notice was received by the Issuer.
19
<PAGE>
No fractional shares of the Common Stock will be issued as a result
of conversion, but in lieu thereof such fractional interest will be paid by
the Company in cash.
Conversion Price Adjustments--General. The conversion price will be
subject to adjustment in certain events including, without duplication: (a)
the issuance of shares of Common Stock as a dividend or a distribution with
respect to Common Stock, (b) subdivisions, combinations and reclassification
of Common Stock, (c) the issuance to all holders of Common Stock of rights or
warrants entitling them (for a period not exceeding 45 days) to subscribe for
shares of Common Stock at less than the current market price, and (d) the
distribution to holders of Common Stock of evidences of indebtedness of the
Company, securities or capital stock, cash or assets (including securities,
but excluding those rights, warrants, dividends and distributions referred to
above and dividends paid exclusively in cash).
The Company from time to time may reduce the conversion price of the
Convertible Junior Subordinated Debentures (and thus the conversion price of
the TIDES) by any amount selected by the Company for any period of at least 20
days, in which case the Company shall give at least 15 days' notice of such
reduction. The Company may, at its option, make such reductions in the
conversion price, in addition to those set forth above, as the Company's Board
of Directors deems advisable to avoid or diminish any income tax to holders of
Common Stock resulting from any dividend or distribution of stock (or rights
to acquire stock) or from any event treated as such for income tax purposes.
See "United States Taxation--Adjustment of Conversion Price."
No adjustment of the conversion price will be made upon the issuance
of any shares of Common Stock pursuant to any present or future plan providing
for the reinvestment of dividends or interest payable on securities of the
Company and the investment of additional optional amounts in shares of Common
Stock under any such plan. No adjustment in the conversion price will be
required unless such adjustment would require a change of at least one percent
(1%) in the price then in effect; provided, however, that any adjustment that
would not be required to be made shall be carried forward and taken into
account in any subsequent adjustment. If any action would require adjustment
of the conversion price pursuant to more than one of the provisions described
above, only one adjustment shall be made and such adjustment shall be the
amount of adjustment that has the highest absolute value to the holder of the
TIDES.
Conversion price adjustments or omissions in making such adjustments may,
under certain circumstances, be deemed to be distributions that could be
taxable as dividends to holders of the TIDES or to the holders of Company
Common Stock. See "United States Taxation."
Conversion Adjustments--Merger, Consolidation or Sale of Assets of
the Company. In the event that the Company shall be a party to any transaction
(including, without limitation, and with certain exceptions, (a)
recapitalization or reclassification of the Common Stock, (b) consolidation of
the Company with, or merger of the Company into, any other Person, or any
merger of another Person into the Company, (c) any sale, transfer or lease of
all or substantially all of the assets of the Company or (d) any compulsory
share exchange) pursuant to which the Common Stock is converted into the right
to receive other securities, cash or other property (each of the foregoing
being referred to as a "Transaction"), then the holders of the TIDES then
outstanding shall have the right to convert the TIDES into the kind and amount
of securities, cash or other property receivable upon the consummation of such
Transaction by a holder of the number of shares of Common Stock issuable upon
conversion of such TIDES immediately prior to such Transaction.
In the case of a Transaction, each of the TIDES would become
convertible into the securities, cash or property receivable by a holder of
the number of shares of the Common Stock into which such TIDES was convertible
immediately prior to such Transaction. This change could substantially lessen
or eliminate the value of the conversion privilege associated with the TIDES
in the future. For example, if the Company were acquired in a cash merger,
each of the TIDES would become convertible solely into cash and would no
longer be convertible into securities whose value would vary depending on the
future prospects of the Company and other factors.
20
PAYMENT OF EXCESS CASH DIVIDENDS
If the Company shall declare and pay cash dividends on its Common
Stock in an annualized per share amount which exceeds the greater of (A) the
per share amount of the immediately preceding cash dividend on its Common
Stock (as adjusted to reflect any of the events described above under
"--Conversion Rights--Conversion Price Adjustments--General") and (B) 15% of
the current market price of the Common Stock as of the trading day immediately
preceding the date of declaration of such dividend (the per share amount of
any such excess, to the extent of such excess, being herein called an "Excess
Amount"), then in any such event the holders of the TIDES then outstanding
shall have the right to receive, and the Company will pay to each such holder,
at the time of the payment of such Common Stock dividend, an amount equal to
such Excess Amount (on the basis of the number of shares of Common Stock that
would have been issued to such holder upon conversion of the TIDES held by
such holder on the record date for the payment of such dividend).
OPTIONAL REDEMPTION
The Company is permitted to redeem the Convertible Junior
Subordinated Debentures as described herein under "Description of the
Convertible Junior Subordinated Debentures--Optional Redemption," in whole or
in part, from time to time, after April 9, 1999, upon not less than 20 nor
more than 60 days' notice. See "Description of the Convertible Junior
Subordinated Debentures--Optional Redemption." Upon any redemption in whole or
in part of the Convertible Junior Subordinated Debentures at the option of the
Company, the Issuer will, to the extent of the proceeds of such redemption,
redeem TIDES and Common Securities at the Redemption Price. In the event that
fewer than all the outstanding TIDES are to be so redeemed, the TIDES to be
redeemed will be selected as described under "--Book-Entry-Only Issuance--The
Depository Trust Company" below.
In the event of any redemption in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any of the TIDES
during a period beginning at the opening of business 15 days before any
selection for redemption of TIDES and ending at the close of business on the
earliest date in which the relevant notice of redemption is deemed to have
been given to all holders of TIDES to be so redeemed and (ii) register the
transfer of or exchange any TIDES so selected for redemption, in whole or in
part, except for the unredeemed portion of any TIDES being redeemed in part.
TAX EVENT OR INVESTMENT COMPANY EVENT REDEMPTION OR DISTRIBUTION
If a Tax Event (as defined herein) shall occur and be continuing, the
Company shall cause the Company Trustees to liquidate the Issuer and cause
Convertible Junior Subordinated Debentures to be distributed to the holders of
the TIDES in liquidation of the Issuer within 90 days following the occurrence
of such Tax Event; provided, however, that such liquidation and distribution
shall be conditioned on (i) the Company Trustees' receipt of an opinion of
nationally recognized independent tax counsel (reasonably acceptable to the
Company Trustees) experienced in such matters (a "No Recognition Opinion"),
which opinion may rely on published revenue rulings of the Internal Revenue
Service, to the effect that the holders of the TIDES will not recognize any
income, gain or loss for United States Federal income tax purposes as a result
of such liquidation and distribution of Convertible Junior Subordinated
Debentures, and (ii) the Company being unable to avoid such Tax Event within
such 90-day period by taking some ministerial action or pursuing some other
reasonable measure that, in the sole judgment of the Company, will have no
adverse effect on the Issuer, the Company or the holders of the TIDES and will
involve no material cost. Furthermore, if (i) the Company has received an
opinion (a "Redemption Tax Opinion") of nationally recognized independent tax
counsel (reasonably acceptable to the Company Trustees) experienced in such
matters that, as a result of a Tax Event, there is more than an insubstantial
risk that the Company would be precluded from deducting the interest on the
Convertible Junior Subordinated Debentures for United States Federal income
tax purposes, even after the Convertible Junior Subordinated Debentures were
distributed to the holders of the TIDES upon liquidation of the Issuer as
described above, or (ii) the Company Trustees shall have been informed by such
tax counsel that it cannot deliver a No Recognition Opinion, the Company shall
have the right, upon not less than 30 nor more than 60 days' notice and within
90 days following the occurrence of the Tax Event, to redeem the Convertible
Junior Subordinated Debentures, in whole (but not in part) for cash, at 100%
of principal amount thereof plus accrued
21
<PAGE>
and unpaid interest and, following such redemption, all the TIDES will be
redeemed by the Issuer at the liquidation preference of $50 per each of the
TIDES plus accrued and unpaid distributions; provided, however, that, if at
the time there is available to the Company or the Issuer the opportunity to
eliminate, within such 90-day period, the Tax Event by taking some ministerial
action or pursuing some other reasonable measure that, in the sole judgment of
the Company, will have no adverse effect on the Issuer, the Company or the
holders of the TIDES and will involve no material cost, the Issuer or the
Company will pursue such measure in lieu of redemption. See "--Mandatory
Redemption." In lieu of the foregoing options, the Company will also have the
option of causing the TIDES to remain outstanding and pay Additional Interest
(as defined herein) on the Convertible Junior Subordinated Debentures. See
"Description of the Convertible Junior Subordinated Debentures--Additional
Interest."
"Tax Event" means that the Company shall have obtained an opinion of
nationally recognized independent tax counsel (reasonably acceptable to the
Company Trustees) experienced in such matters to the effect that, as a result
of (a) any amendment to or change (including any announced prospective change)
in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein or (b) any
amendment to or change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of
any judicial decision or regulatory determination on or after the date of this
Offering Circular), which amendment or change is effective or which
interpretation or pronouncement is announced on or after the date of this
Offering Circular (collectively, a "Change In Tax Law"), there is more than an
insubstantial risk that (i) the Issuer is or will be subject to United States
Federal income tax with respect to interest received on the Convertible Junior
Subordinated Debentures, (ii) interest payable to the Issuer on the
Convertible Junior Subordinated Debentures is not or will not be deductible
for United States Federal income tax purposes or (iii) the Issuer is or will
be subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges of whatever nature imposed by the
United States, or any other taxing authority. Notwithstanding anything in the
previous sentence to the contrary, a Tax Event shall not include any Change in
Tax Law that requires the Company for United States federal income tax
purposes to defer taking a deduction for any original issue discount ("OID")
that accrues with respect to the Convertible Junior Subordinated Debentures
until the interest payment related to such OID is paid by the Company in money
provided that such Change in Tax Law does not create more than an
insubstantial risk that the Company will be prevented from taking a deduction
for OID accruing with respect to the Convertible Junior Subordinated
Debentures at a date that is no later than the date the interest payment
related to such OID is actually paid by the Company in money.
If an Investment Company Event (as hereinafter defined) shall occur
and be continuing, the Company shall cause the Company Trustees to liquidate
the Issuer and cause the Convertible Junior Subordinated Debentures to be
distributed to the holders of the TIDES in liquidation of the Issuer within 90
days following the occurrence of such Investment Company Event.
The distribution by the Company of the Convertible Junior
Subordinated Debentures will effectively result in the cancellation of the
TIDES.
"Investment Company Event" means the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the Issuer is or
will be considered an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), which
Change in 1940 Act Law becomes effective on or after the date of this Offering
Circular.
A "Special Event" means either an Investment Company Event or a Tax
Event.
After the date fixed for any distribution of Convertible Junior
Subordinated Debentures (i) the TIDES will no longer be deemed to be
outstanding, (ii) The Depository Trust Company (the "Depository" or "DTC") or
its nominee, as the record holder of the Global Certificates (as defined
herein), will receive a registered global certificate or certificates
representing the Convertible Junior Subordinated Debentures to be delivered
upon such
22
<PAGE>
distribution and (iii) any certificates representing TIDES not held by DTC or
its nominee will be deemed to represent Convertible Junior Subordinated
Debentures having a principal amount equal to the aggregate of the stated
liquidation preference of such TIDES, with accrued and unpaid interest equal
to the amount of accrued and unpaid distributions on such TIDES, until such
certificates are presented to the Company or its agent for transfer or
reissuance.
MANDATORY REDEMPTION
The Convertible Junior Subordinated Debentures will mature on March 10,
2016, and may be redeemed, in whole or in part, at any time after April 9,
1999 or at any time in certain circumstances upon the occurrence of a Tax
Event. Upon the repayment or payment of the Convertible Junior Subordinated
Debentures, whether at maturity or upon redemption or otherwise, the proceeds
from such repayment or redemption shall simultaneously be applied to redeem
Trust Securities having an aggregate liquidation amount equal to the
Convertible Junior Subordinated Debentures so repaid or redeemed at the
applicable redemption price together with accrued and unpaid distributions
through the date of redemptions provided that holders of the Trust Securities
shall be given not less than 30 nor more than 60 days' notice of such
redemption. See "--Tax Event or Investment Company Event Redemption or
Distribution" and "Description of the Convertible Junior Subordinated
Debentures--General" and "--Optional Redemption." Upon the repayment of the
Convertible Junior Subordinated Debentures at maturity or upon any
acceleration, earlier redemption or otherwise, the proceeds from such
repayment will be applied to redeem the TIDES and Common Securities, in whole,
upon not less than 30 nor more than 60 days' notice.
REDEMPTION PROCEDURES
The TIDES will not be redeemed unless all accrued and unpaid
distributions have been paid on all TIDES for all quarterly distribution
periods terminating on or prior to the date of redemption.
If the Issuer gives a notice of redemption in respect of TIDES (which
notice will be irrevocable), then, by 12:00 noon, New York time, on the
redemption date, the Issuer will irrevocably deposit with DTC funds sufficient
to pay the amount payable on redemption and will give DTC irrevocable
instructions and authority to pay such amount in respect of TIDES represented
by the Global Certificates and will irrevocably deposit with the paying agent
for the TIDES funds sufficient to pay such amount in respect of any securities
issued in fully registered, certificated form ("Certificated Securities") and
will give such paying agent irrevocable instructions and authority to pay such
amount to the holders of Certificated Securities upon surrender of their
certificates. Notwithstanding the foregoing, distributions payable on or prior
to the redemption date for any TIDES called for redemption shall be payable to
the holders of such TIDES on the relevant record dates for the related
distribution dates. If notice of redemption shall have been given and funds
are deposited as required, then upon the date of such deposit, all rights of
holders of such TIDES so called for redemption will cease, except the right of
the holders of such TIDES to receive the redemption price, but without
interest on such redemption price. In the event that any date fixed for
redemption of TIDES is not a Business Day, then payment of the amount payable
on such date will be made on the next succeeding day which is a Business Day
(without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day. In the event that payment
of the redemption price in respect of TIDES is improperly withheld or refused,
and not paid either by the Issuer or by the Company pursuant to the Guarantee
described under "Description of the Guarantee," distributions on such TIDES
will continue to accrue at the then applicable rate, from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating
the amount payable upon redemption (other than for purposes of calculating any
premium).
Subject to the foregoing and applicable law (including, without
limitation, United States Federal securities laws), the Company or its
subsidiaries may at any time and from time to time purchase outstanding TIDES
by tender, in the open market or by private agreement.
23
<PAGE>
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, and the amount payable upon redemption
of, the Trust Securities, as applicable, shall be made pro rata based on the
liquidation preference of the Trust Securities; provided, however, that, if on
any distribution date or redemption date a Declaration Event of Default (as
defined below under "--Declaration Events of Default") under the Declaration
shall have occurred and be continuing, no payment of any distribution on, or
amount payable upon redemption of, any Common Security, and no other payment
on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of accumulated and
unpaid distributions on all outstanding TIDES for all distribution periods
terminating on or prior thereto, or in the case of payment of the amount
payable upon redemption of the TIDES, the full amount of such amount in
respect of all outstanding TIDES, shall have been made or provided for, and
all funds available to the Trustee shall first be applied to the payment in
full in cash of all distributions on, or the amount payable upon redemption
of, TIDES then due and payable.
In the case of any Declaration Event of Default, the holder of Common
Securities will be deemed to have waived any such Declaration Event of Default
until all such Declaration Events of Default with respect to the TIDES have
been cured, waived or otherwise eliminated. Until any such Declaration Events
of Default with respect to the TIDES have been so cured, waived or otherwise
eliminated, the Trustee shall act solely on behalf of the holders of the TIDES
and not the holder of the Common Securities, and only the holders of the TIDES
will have the right to direct the Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation,
dissolution, winding up or termination of the Issuer, the holders of the TIDES
at the time will be entitled to receive out of the assets of the Issuer
available for distribution to holders of Trust Securities after satisfaction
of liabilities of creditors of the Trust, before any distribution of assets is
made to the holders of the Common Securities, an amount equal to the aggregate
of the stated liquidation preference of $50 per each of the TIDES and accrued
and unpaid distributions thereon to the date of payment (the "Liquidation
Distribution"), unless, in connection with such liquidation, dissolution,
winding up or termination, Convertible Junior Subordinated Debentures in an
aggregate principal amount equal to the Liquidation Distribution have been
distributed on a pro rata basis to the holders of the Trust Securities.
Pursuant to the Declaration, the Issuer shall be dissolved and its
affairs shall be wound up upon the earliest to occur of the following: (i)
April 2, 2021, the expiration of the term of the Issuer, (ii) the bankruptcy
of the Company, (iii) the filing of a certificate of dissolution or its
equivalent with respect to the Company or the filing of a certificate of
cancellation with respect to the Issuer, following the approval thereof by the
holders of at least a majority in liquidation amount of the outstanding TIDES
as described under "--Modification of the Declaration," or the revocation of
the Company's charter and the expiration of 90 days after the date of notice
to the Company of such revocation without a reinstatement of its charter, (iv)
the distribution of all the assets of the Issuer, (v) the entry of a decree of
a judicial dissolution of the Company or (vi) the redemption of all the Trust
Securities.
MERGER, CONSOLIDATION OR AMALGAMATION OF THE ISSUER
The Issuer may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other entity or person,
except as described below. The Issuer may, without the consent of the holders
of the TIDES, consolidate, amalgamate, merge with or into, or be replaced by,
a trust organized as such under the laws of any state of the United States of
America; provided that (i) if the Issuer is not the survivor, such successor
entity either (x) expressly assumes all of the obligations of the Issuer under
the TIDES or (y) substitutes for the TIDES other securities having
substantially the same terms as the TIDES (the "Successor Securities") as long
as the Successor Securities rank the same as the TIDES with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
the Company expressly acknowledges a trustee of the successor entity that
possesses the same powers and duties as the Trustee as the holder of the
Convertible Junior Subordinated Debentures, (iii) the TIDES or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any
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national securities exchange or other organization on which the TIDES are then
listed, (iv) such merger, consolidation, amalgamation or replacement does not
cause the TIDES (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the holders of the TIDES (including any
Successor Securities) in any material respect, (vi) such successor entity has
a purpose substantially identical to that of the Issuer, (vii) the Company has
provided a guarantee to the holders of the Successor Securities with respect
to such Successor entity having substantially the same terms as the Guarantee,
and (viii) prior to such merger, consolidation, amalgamation or replacement,
the Company has received an opinion of nationally recognized independent
counsel (reasonably acceptable to the Trustee) to the Issuer experienced in
such matters to the effect that (x) such successor entity will be treated as a
grantor trust for United States Federal income tax purposes, (y) following
such merger, consolidation, amalgamation or replacement, neither the Company
nor such successor entity will be required to register as an investment
company under the 1940 Act and (z) such merger, consolidation, amalgamation or
replacement will not adversely affect the rights, preferences and privileges
of the holders of the TIDES in any material respect. Notwithstanding the
foregoing, the Issuer shall not, except with the consent of holders of 100% in
liquidation amount of the Common Securities, consolidate, amalgamate, merge
with or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger or replacement would cause the Issuer or
the Successor Entity to be classified as other than a grantor trust for United
States Federal income tax purposes.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture (an "Event of Default") or a
default by the Company under the Guarantee constitutes an event of default
under the Declaration with respect to the Trust Securities (a "Declaration
Event of Default"); provided that, pursuant to the Declaration, the holder of
the Common Securities will be deemed to have waived any Declaration Event of
Default with respect to the Common Securities until all Declaration Events of
Default with respect to the TIDES have been cured, waived or otherwise
eliminated. Until such Declaration Events of Default with respect to the TIDES
have been so cured, waived or otherwise eliminated, the Trustee will be deemed
to be acting solely on behalf of the holders of the TIDES and only the holders
of the TIDES will have the right to direct the Trustee with respect to certain
matters under the Declaration and, therefore, the Indenture.
If a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company to pay interest or
principal on the Convertible Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, the
redemption date), then a holder of TIDES may directly institute a proceeding
(a "Direct Action") for enforcement of payment to such holder of the principal
of or interest on the Convertible Junior Subordinated Debentures having a
principal amount equal to the aggregate liquidation amount of the TIDES of
such holder on or after the respective due date specified in the Convertible
Junior Subordinated Debentures. In connection with such Direct Action, the
Company will be subrogated to the rights of such holder of TIDES under the
Declaration to the extent of any payment made by the Company to such holder of
Convertible Preferred Securities in such Direct Action. The holders of TIDES
will not be able to exercise directly any other remedy available to the
holders of the Convertible Junior Subordinated Debentures.
Upon the occurrence of a Declaration Event of Default, the Trustee as
the sole holder of the Convertible Junior Subordinated Debentures will have
the right under the Indenture to declare the principal of and interest on the
Convertible Junior Subordinated Debentures to be immediately due and payable.
The Company and the Trust are each required to file annually with the Property
Trustee an officer's certificate as to its compliance with all conditions and
covenants under the Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act, the Trust Indenture
Act and under "Description of the Guarantee Amendments and Assignments," and
as otherwise required by law and the Declaration, the holders of the TIDES
will have no voting rights.
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Subject to the requirement of the Trustee obtaining a tax opinion in
certain circumstances set forth in the last sentence of this paragraph, the
holders of a majority in aggregate liquidation amount of the TIDES have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or direct the exercise of any trust or
power conferred upon the Trustee under the Declaration including the right to
direct the Trustee, as holder of the Convertible Junior Subordinated
Debentures, to (i) exercise the remedies available under the Indenture with
respect to the Convertible Junior Subordinated Debentures, (ii) waive any past
Event of Default that is waiveable under the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Convertible Junior Subordinated Debentures shall be due and payable or (iv)
consent to any amendment, modification, or termination of the Indenture or the
Convertible Junior Subordinated Debentures where such consent shall be
required; provided, however, that, where a consent or action under the
Indenture would require the consent or act of the holders of more than a
majority of the aggregate principal amount of Convertible Junior Subordinated
Debentures affected thereby, only the holders of the percentage of the
aggregate stated liquidation preference of the TIDES which is at least equal
to the percentage required under the Indenture may direct the Trustee to give
such consent or take such action. If the Trustee fails to enforce its rights
under the Convertible Junior Subordinated Debentures to receive interest or
principal on the Convertible Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, the
redemption date), a holder of record of TIDES may institute a legal proceeding
directly against the Company to enforce the Trustee's rights under the
Convertible Junior Subordinated Debentures without first instituting any legal
proceeding against the Trustee or any other person or entity. The Trustee
shall notify all holders of the TIDES of any notice of default received from
the Indenture Trustee with respect to the Convertible Junior Subordinated
Debentures. Such notice shall state that such Event of Default also
constitutes a Declaration Event of Default. Except with respect to directing
the time, method and place of conducting a proceeding for a remedy, the
Trustee shall not take any of the actions described in clause (i), (ii) or
(iii) above unless the Trustee has obtained an opinion of tax counsel to the
effect that, as a result of such action, the Issuer will not fail to be
classified as a grantor trust for United States Federal income tax purposes.
In the event the consent of the Trustee, as the holder of the
Convertible Junior Subordinated Debentures, is required under the Indenture
with respect to any amendment, modification or termination of the Indenture,
the Trustee shall request the direction of the holders of the Trust Securities
with respect to such amendment, modification or termination and shall vote
with respect to such amendment, modification or termination as directed by a
majority in liquidation amount of the Trust Securities voting would require
the together as a single class; provided, however, that, where a consent under
the Indenture would require the consent of the holders of more than a majority
of the aggregate principal amount of the Convertible Junior Subordinated
Debentures, the Trustee may only give such consent at the direction of the
holders of at least the same proportion in aggregate stated liquidation
preference of the Trust Securities. The Trustee shall not take any such action
in accordance with the directions of the holders of the Trust Securities
unless the Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States Federal income tax the Issuer will not be
classified as other than a grantor trust.
A waiver of an Event of Default under the Indenture will constitute a
waiver of the corresponding Declaration Event of Default.
Any required approval or direction of holders of TIDES may be given
at a separate meeting of holders of TIDES convened for such purpose, at a
meeting of all of the holders of Trust Securities or pursuant to written
consent. The Company Trustees will cause a notice of any meeting at which
holders of TIDES are entitled to vote, or of any matter upon which action by
written consent of such holders is to be taken, to be mailed to each holder of
record of TIDES. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which such
action is to be taken; (ii) a description of any resolution proposed for
adoption at such meeting on which such holders are entitled to vote or of such
matter upon which written consent is sought; and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the holders of TIDES
will be required for the Issuer to redeem and cancel TIDES or distribute
Convertible Junior Subordinated Debentures in accordance with the Declaration.
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Notwithstanding that holders of TIDES are entitled to vote or consent
under any of the circumstances described above, any of the TIDES that are
owned at such time by the Company or any entity directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
the Company, shall not be entitled to vote or consent and shall, for purposes
of such vote or consent, be treated as if such TIDES were not outstanding.
The procedures by which holders of TIDES may exercise their voting
rights are described below. See "--Book-Entry-Only Issuance--The Depository
Trust Company" below.
Holders of the TIDES will have no rights to appoint or remove the
Issuer Trustees, who may be appointed, removed or replaced solely by the
Company as the indirect or direct holder of all of the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be modified and amended if approved by the
Company Trustees (and in certain circumstances the Trustee and the Delaware
Trustee), provided, that if any proposed amendment provides for, or the
Company Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Trust
Securities, whether by way of amendment to the Declaration or otherwise or
(ii) the dissolution, winding-up or termination of the Trust other than
pursuant to the terms of the Declaration, then the holders of the Trust
Securities voting together as a single class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of at least a majority in liquidation amount of the
Trust Securities affected thereby; provided, that if any amendment or proposal
referred to in clause (i) above would adversely affect only the TIDES or the
Common Securities, then only the affected class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of at least a majority in liquidation
amount of such class of Securities.
Notwithstanding the foregoing, no amendment or modification may be
made to the Declaration if such amendment or modification would (i) cause the
Trust to be classified for purposes of United States Federal income taxation
as other than a grantor trust, (ii) reduce or otherwise adversely affect the
powers of the Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
TRANSFER RESTRICTIONS
The TIDES (and any Convertible Junior Subordinated Debentures
distributed to holders of TIDES) will be subject to restrictions on transfer
and will bear a legend substantially as described in "Transfer Restrictions."
Shares of Common Stock received upon conversion of TIDES or Convertible Junior
Subordinated Debentures subject to such restrictions will also be subject to
such restrictions and will bear a comparable legend.
REGISTRATION RIGHTS
In connection with the Original Offering, the Company entered into a
registration rights agreement dated April 10, 1996 (the "Registration Rights
Agreement") with the Initial Purchasers, for the benefit of the holders of the
TIDES, pursuant to which the Company would, at its cost, (a) file a
Registration Statement on Form S-3 (a "Shelf Registration Statement") covering
resales of the TIDES (together with the Convertible Junior Subordinated
Debentures, the Guarantee and the related Common Stock) pursuant to Rule 415
under the Securities Act, (b) use its reasonable best efforts to cause the
Shelf Registration Statement to be declared effective under the Securities Act
and (c) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective for a period of three years from its
effective date; in each case, subject to the terms and conditions of the
Registration Rights Agreement. The Company would, in the event a Shelf
Registration Statement is filed, among other things, provide to each holder
for whom such Shelf Registration Statement was filed copies of the prospectus
which is a part of the Shelf Registration Statement, notify each such holder
when the Shelf Registration Statement has become effective and take certain
other actions as are required to permit
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unrestricted resales of such Securities. A holder selling such Securities
pursuant to the Shelf Registration Statement generally would be required to be
named as a selling security holder in the related prospectus and to deliver a
prospectus to purchasers, would be subject to certain of the civil liability
provisions under the Securities Act in connection with such sales and will be
bound by the provisions of the Registration Rights Agreement which are
applicable to such holder (including certain indemnification obligations).
If (i) by October 7, 1996, the Shelf Registration Statement had not
been declared effective by the Securities and Exchange Commission ("SEC"), or
(ii) after the Shelf Registration Statement has been declared effective, such
Registration Statement ceases to be effective or usable (subject to certain
exceptions) in connection with resales of TIDES in accordance with and during
the periods specified in the Registration Rights Agreement (each such event
referred to in clauses (i) through (ii) a "Registration Default"), the
Convertible Junior Subordinated Debentures would bear interest at the rate per
annum of 6 3/4% and, therefore, distributions would accrue on the TIDES at the
rate of 6 3/4% per annum, from and including the date on which any such
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. At all other times, interest will
accrue on the Convertible Junior Subordinated Debentures and distributions
will accrue on the TIDES at a rate of 6 1/4% per annum. This Prospectus is a
part of the Shelf Registration StatemenT filed in accordance with the
foregoing requirements.
The summary herein of certain provisions of the Registration Rights
Agreement is subject to, and is qualified in its entirety by reference to, all
the provisions of the Registration Rights Agreement, a copy of which is
available upon request to the Company or the Initial Purchasers.
BOOK-ENTRY-ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The description of book-entry procedures in this Prospectus includes
summaries of certain rules and operating procedures of DTC that affect
transfers of interests in the global certificate or certificates issued in
connection with sales of TIDES to qualified institutional buyers pursuant to
Rule 144A under the Securities Act. Except for TIDES initially sold to certain
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) and issued as Certificated Securities, the TIDES were
issued only as fully registered securities registered in the name of Cede &
Co. (as nominee for DTC). One or more fully registered global TIDES
certificates (the "Global Certificates") will be issued, representing, in the
aggregate, TIDES sold pursuant to this Prospectus and will be deposited with
DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities that its participants ("Participants") deposit with
DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Participants in DTC include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. DTC is owned
by a number of its Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through
or maintain a custodial relationship with a Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the SEC.
Purchases of TIDES within the DTC system must be made by or through
Participants, which will receive a credit for the TIDES on DTC's records. The
ownership interest of each actual purchaser of TIDES ("Beneficial Owner") is
in turn to be recorded on the Participants' and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Participants or Indirect Participants
through which the Beneficial Owners purchased TIDES. Transfers of ownership
interests in the TIDES are to be accomplished by entries made on the books of
Participants and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive
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certificates representing their ownership interests in TIDES, except in the
event that use of the book-entry system for the TIDES is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the TIDES;
DTC's records reflect only the identity of the Participants to whose accounts
such TIDES are credited, which may or may not be the Beneficial Owners. The
Participants and Indirect Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to
Participants, by Participants to Indirect Participants, and by Participants
and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Redemption notices in respect of the TIDES held in book-entry form
shall be sent to Cede & Co. If less than all of the TIDES are being redeemed,
DTC will determine the amount of the interest of each Participant to be
redeemed in accordance with its procedures.
Although voting with respect to the TIDES is limited, in those cases
where a vote is required, neither DTC nor Cede & Co. will itself consent or
vote with respect to TIDES. Under its usual procedures, DTC would mail an
Omnibus Proxy to the Issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Participants to whose accounts the TIDES are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Distributions on the TIDES held in book-entry form will be made to
DTC in immediately available funds. DTC's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payments on such payment date. Payments by
Participants and Indirect Participants to Beneficial Owners will be governed
by standing instructions and customary practices and will be the
responsibility of such Participants and Indirect Participants and not of DTC,
the Issuer or the Company, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of distributions to DTC is the
responsibility of the Issuer, disbursement of such payments to Participants is
the responsibility of DTC, and disbursement of such payments to the Beneficial
owners is the responsibility of Participants and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a
global TIDES will not be entitled to receive physical delivery of TIDES.
Accordingly, each Beneficial Owner must rely on the procedures of DTC to
exercise any rights under the TIDES.
DTC may discontinue providing its services as securities depository
with respect to the TIDES at any time by giving notice to the Issuer. Under
such circumstances, in the event that a successor securities depository is not
obtained, certificates for the TIDES are required to be printed and delivered.
Additionally, the Issuer (with the consent of the Company) may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depository). In that event, certificates for the TIDES will be
printed and delivered. In each of the above circumstances, the Company will
appoint a paying agent with respect to the TIDES.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Company and the Issuer believe
to be reliable, but neither the Company nor the Issuer takes responsibility
for the accuracy thereof.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in the global TIDES as
represented by a Global Certificate.
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PAYMENT AND PAYING AGENCY
Payments in respect of the TIDES shall be made to DTC, which shall
credit the relevant accounts at DTC on the applicable distribution dates or,
in the case of Certificated Securities, such payments shall be made by check
mailed to the address of the holder entitled thereto as such address shall
appear on the Register. The Paying Agent shall initially be The Bank of New
York. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Issuer Trustees. In the event that The Bank of New
York shall no longer be the Paying Agent, the Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company).
REGISTRAR, TRANSFER AGENT AND CONVERSION AGENT
The Bank of New York acts as registrar, transfer agent and Conversion
Agent for the TIDES. Registration of transfers of TIDES will be effected
without charge by or on behalf of the Issuer, but upon payment (with the
giving of such indemnity as the Issuer or the Company may require) in respect
of any tax or other government charges which may be imposed in relation to it.
The Issuer will not be required to register or cause to be registered the
transfer of TIDES after such TIDES have been called for redemption.
INFORMATION CONCERNING THE TRUSTEE
The Company and certain of its subsidiaries maintain deposit accounts
and conduct other banking transactions with the Trustee in the ordinary course
of their businesses.
MISCELLANEOUS
The Issuer Trustees are authorized and directed to conduct the
affairs of and to operate the Issuer in such a way that the Issuer will not be
deemed to be an "investment company" required to be registered under the 1940
Act or characterized as other than a grantor trust for federal income tax
purposes and so that the Convertible Junior Subordinated Debentures will be
treated as indebtedness of the Company for United States federal income tax
purposes. In this connection, the Issuer Trustees are authorized to take any
action, not inconsistent with applicable law, the certificate of trust or the
Declaration that the Issuer Trustees determine in their discretion to be
necessary or desirable for such purposes as long as such action does not
adversely affect the interests of the holders of the TIDES.
Holders of the TIDES have no preemptive rights.
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DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee
which was executed and delivered by the Company for the benefit of the holders
from time to time of TIDES. The summary is subject in all respects to the
provisions of, and is qualified in its entirety by reference to, the
Guarantee. The Guarantee incorporates by reference the terms of the Trust
Indenture Act. The Guarantee will be qualified under the Trust Indenture Act.
The Bank of New York acts as trustee under the Guarantee for purposes of the
Trust Indenture Act. The Bank of New York, as the Guarantee Trustee, holds the
Guarantee for the benefit of the holders of the TIDES.
GENERAL
Pursuant to the Guarantee, the Company irrevocably and unconditionally
agrees, to the extent set forth herein, to pay in full, to the holders of the
TIDES, the Guarantee Payments (as defined below), as and when due, regardless
of any defense, right of set off or counterclaim which the Issuer may have or
assert. The following payments with respect to the TIDES, to the extent not
paid by the Issuer (the "Guarantee Payments"), will be subject to the
Guarantee (without duplication): (i) any accrued and unpaid distributions
which are required to be paid on the TIDES to the extent of funds of the Trust
available therefor, (ii) the amount payable upon redemption of the TIDES,
payable out of funds of the Trust available therefor with respect to any TIDES
called for redemption by the Issuer and (iii) upon a liquidation of the
Issuer, the lesser of (a) the aggregate of the liquidation preference and all
accrued and unpaid dividends on the TIDES to the date of payment and (b) the
amount of assets of the Issuer remaining available for distribution to holders
of TIDES upon the liquidation of the Issuer. The Company's obligation to make
a Guarantee Payment may be satisfied by direct payment of the required amounts
by the Company to the holders of TIDES or by causing the Issuer to pay such
amounts to such holders.
If the Company fails to make interest payments on the Convertible Junior
Subordinated Debentures or pay amounts payable upon the redemption,
acceleration or maturity of the Convertible Junior Subordinated Debentures,
the Issuer will have insufficient funds to pay distributions on or to pay
amounts payable upon the redemption or repayment of the TIDES. The Guarantee
does not cover payment of distributions or the amount payable upon redemption
or repayment in respect of the TIDES when the Issuer does not have sufficient
funds to pay such distributions or such amount.
In taking any action to enforce the Guarantee, holders of the TIDES may
proceed directly against the Company as guarantor, rather than having to
proceed against the Issuer before attempting to collect from the Company, and
the Company waives any right or remedy to require that any action be brought
against the Issuer or any other person or entity before proceeding against the
Company. Such obligations will not be discharged except by payment of the
Guarantee Payments in full.
The Guarantee, when taken together with the Company's obligations under
the Convertible Junior Subordinated Debentures, and the Indenture and the
Declaration, including its obligations to pay costs, expenses, debts and
liabilities of the Trust (other than with respect to the Trust Securities)
provides a full and unconditional guarantee on a subordinated basis by the
Company of payments due on the TIDES issued by the Trust.
The Company has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Trust with respect to the Common Securities
(the "Common Securities Guarantee") to the same extent as the Guarantee,
except that upon the occurrence and during the continuation of a Declaration
Event of Default, holders of TIDES shall have priority over holders of Common
Securities with respect to distributions and payments on liquidation,
redemption, or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In the Guarantee, the Company has covenanted that, so long as any
TIDES remain outstanding, if at such time (i) the Company has exercised its
option to defer interest payments on the Convertible Junior
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Subordinated Debentures and such deferral is continuing, (ii) the Company
shall be in default with respect to its payment or other obligations under the
Guarantee or (iii) there shall have occurred any event that, with the giving
of notice or the lapse of time or both, would constitute an Event of Default
under the Indenture, then the Company (a) shall not declare or pay dividends
on, make distributions with respect to, or redeem, purchase or acquire, or
make a liquidation payment with respect to, any of its capital stock (other
than stock dividends paid by the Company which consist of the stock of the
same class as that on which the dividend is being paid), (b) shall not make
any payment of interest, principal or premium, of any, on or repay, repurchase
or redeem any debt securities issued by the Company after the date of original
issuance of the Convertible Junior Subordinated Debentures that rank pari
passu with or junior to the Convertible Junior Subordinated Debentures, and
(c) shall not make any guarantee payments with respect to the foregoing (other
than pursuant to the Guarantee).
As part of the Guarantee, the Company has agreed that it will honor
all obligations described therein relating to the conversion of the TIDES into
Common Stock as described in "Description of the TIDES--Conversion Rights."
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely
affect the rights of holders of TIDES (in which case no vote will be
required), the Guarantee may be changed only with the prior approval of the
holders of not less than a majority in aggregate stated liquidation preference
of the outstanding TIDES. The manner of obtaining any such approval of holders
of the TIDES will be as set forth under "Description of the TIDES--Voting
Rights." All guarantees and agreements contained in the Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Company and shall inure to the benefit of the holders of the TIDES then
outstanding. Except in connection with any permitted merger or consolidation
of the Company with or into another entity or any permitted sale, transfer or
lease of the Company's assets to another entity as described below under
"Description of the Convertible Junior Subordinated Debentures--Restrictions,"
the Company may not assign its rights or delegate its obligations under the
Guarantee without the prior approval of the holders of at least a majority of
the aggregate stated liquidation preference of the TIDES then outstanding.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate as to each holder of TIDES and be of no
further force and effect upon (a) full payment of the applicable redemption
price of such holder's TIDES or (b) the distribution of Common Stock to such
holder in respect of the conversion of such holder's TIDES into Common Stock
and will terminate completely upon full payment of the amounts payable upon
liquidation of the Issuer. The Guarantee will continue to be effective or will
be reinstated, as the case may be, if at any time any holder of TIDES must
restore payment of any sums paid under such TIDES or the Guarantee.
STATUS OF THE GUARANTEE; SUBORDINATION
The Guarantee constitutes an unsecured obligation of the Company and
ranks (i) subordinate and junior in right of payment to all liabilities of the
Company, except any liabilities that may be made pari passu expressly by their
terms, (ii) pari passu with the most senior preferred or preference stock now
or hereafter issued by the Company and with any guarantee now or hereafter
entered into by the Company in respect of any preferred or preference stock or
preferred securities of any affiliate of the Company and (iii) senior to
Common Stock. The Declaration provides that each holder of TIDES by acceptance
thereof agrees to the subordination provisions and other terms of the
Guarantee. Upon the bankruptcy, liquidation or winding up of the Company, its
obligations under the Guarantee will rank junior to all its other liabilities
(except as aforesaid) and, therefore, funds may not be available for payment
under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default, has
undertaken to perform only such duties as are specifically set forth in the
Guarantee and, after default with respect to the Guarantee, shall exercise the
same degree of care as a prudent individual would exercise in the conduct of
his or her own affairs. Subject to
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such provision, the Guarantee Trustee is under no obligation to exercise any
of the powers vested in it by the Guarantee at the request of any holder of
TIDES unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
GOVERNING LAW
The Guarantee is governed by and construed in accordance with the
laws of the State of New York.
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DESCRIPTION OF THE CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the specific terms of the Convertible
Junior Subordinated Debentures in which the Issuer invested with the proceeds
of the issuance and sale of (i) the TIDES and (ii) the Common Securities. The
following description is qualified in its entirety by reference to the
Indenture dated as of April 1, 1996 (the "Indenture"), between the Company and
The Bank of New York, as trustee (the "Indenture Trustee"), a copy of which
has been filed as an exhibit to the Registration Statement and is incorporated
herein by reference. The Indenture will be qualified under the Trust Indenture
Act. Whenever particular provisions or defined terms in the Indenture are
referred to herein, such provisions or defined terms are incorporated by
reference herein.
Under certain circumstances involving the dissolution of the Issuer
following the occurrence of a Tax Event or Investment Company Event,
Convertible Junior Subordinated Debentures may be distributed to the holders
of the TIDES in liquidation of the Issuer. See "Description of the TIDES--Tax
Event or Investment Company Event Redemption or Distribution."
GENERAL
The Convertible Junior Subordinated Debentures were issued under the
Indenture. The Convertible Junior Subordinated Debentures were limited in
aggregate principal amount to $107,022,800, such amount being the sum of the
aggregate stated liquidation preference of the TIDES and the Common
Securities.
The entire principal amount of the Convertible Junior Subordinated
Debentures will become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on March 10, 2016.
The Convertible Junior Subordinated Debentures, if distributed to holders
of TIDES in a dissolution of the Issuer, will initially be issued as a global
security to the extent of any Global Certificates at the time representing any
TIDES and otherwise in fully registered, certificated form. In the event that
Convertible Junior Subordinated Debentures are issued in certificated form,
such Convertible Junior Subordinated Debentures will be in denominations of
$50 and integral multiples thereof and may be transferred or exchanged at the
offices described below.
Payments on Convertible Junior Subordinated Debentures issued as a global
security will be made in immediately available funds to DTC, as the depository
for the Convertible Junior Subordinated Debentures. In the event Convertible
Junior Subordinated Debentures are issued in certificated form, principal and
interest will be payable, the transfer of the Convertible Junior Subordinated
Debentures will be registrable and Convertible Junior Subordinated Debentures
will be exchangeable for Convertible Junior Subordinated Debentures of other
denominations of a like aggregate principal amount at the corporate trust
office of the Indenture Trustee in The City of New York; provided that, unless
the Convertible Junior Subordinated Debentures are held by the Issuer or any
successor permissible under "Description of the TIDES--Merger, Consolidation
or Amalgamation of the Issuer," payment of interest may be made at the option
of the Company by check mailed to the address of the persons entitled thereto.
The Indenture does not contain any provisions that afford holders of
Convertible Junior Subordinated Debentures protection in the event of a highly
leveraged transaction involving the Company. The Convertible Junior
Subordinated Debentures are not entitled to the benefit of any sinking fund.
INTEREST
Each Convertible Junior Subordinated Debenture bears interest at the
rate of 6 1/4% per annum from thE original date of issuance, payable quarterly
in arrears on March 15, June 15, September 15, and December 15 (each, an
"Interest Payment Date"), commencing June 15, 1996, to the person in whose
name such Convertible Junior Subordinated Debenture is registered at the close
of business on the fifteenth day immediately preceding such Interest Payment
Date. Interest compounds quarterly and accrues at the annual rate of 6 1/4% on
any interesT installment not paid when due.
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The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the Convertible Junior Subordinated Debentures is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (without any interest
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right at any time during the term of the Convertible
Junior Subordinated Debentures to defer interest payments from time to time
for successive periods not exceeding 20 consecutive quarters for each such
period. At the end of each Deferral Period (subject to extensions as provided
below), the Company shall pay all interest then accrued and unpaid (together
with interest thereon at the rate specified for the Convertible Junior
Subordinated Debentures to the extent permitted by applicable law). In no
event shall any Deferral Period extend beyond the maturity of the Convertible
Junior Subordinated Debentures. During any Deferral Period, the Company (i)
shall not declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock (other than stock dividends paid by the Company which
consist of stock of the same class as that on which the dividend is being
paid), (ii) shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the
Company that rank pari passu with or junior to the Convertible Junior
Subordinated Debentures, and (iii) shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee). Prior to the
expiration of any such Deferral Period, the Company may further extend such
Deferral Period; provided that such Deferral Period together with all previous
and further extensions thereof may not exceed 20 consecutive quarters. Upon
the expiration of any Deferral Period and the payment of all amounts then due,
the Company may select a new Deferral Period, subject to the above
requirements. No interest during a Deferral Period, except at the end thereof,
shall be due and payable. If the Issuer shall be the sole holder of the
Convertible Junior Subordinated Debentures, the Company shall give the Issuer
notice of its selection of such Deferral Period at least one Business Day
prior to the earlier of (i) the date the distributions on the TIDES are
payable or (ii) the date the Issuer is required to give notice to any
applicable self-regulatory organization or to holders of the TIDES of the
record date or the date such distribution is payable, but in any event not
less than ten Business Days prior to such record date. The Company shall cause
the Issuer to give notice of the Company's selection of such Deferral Period
to the holders of the TIDES. If the Issuer shall not be the sole holder of the
Convertible Junior Subordinated Debentures, the Company shall give the holders
of the Convertible Junior Subordinated Debentures notice of its selection of
such Deferral Period at least ten Business Days prior to the earlier of (i)
the Interest Payment Date or (ii) the date the Company is required to give
notice to any applicable self-regulatory organization or to holders of the
Convertible Junior Subordinated Debentures of the record or payment date of
such related interest payment, but in any event not less than two Business
Days prior to such record date.
ADDITIONAL INTEREST
If the Issuer would be required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any such case,
the Company will pay as additional interest ("Additional Interest") such
amounts as shall be required so that the net amounts received and retained by
the Issuer after paying any such taxes, duties, assessments or governmental
charges will be not less than the amounts the Issuer would have received had
no such taxes, duties, assessments or governmental charges been imposed.
CONVERSION OF THE CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES
The Convertible Junior Subordinated Debentures are convertible into
Common Stock at the option of the holders of the Convertible Junior
Subordinated Debentures at any time prior to maturity (except in the case of
TIDES called for redemption which shall be convertible at any time prior to
the close of business on the Business Day prior to the redemption date) at the
initial conversion price set forth on the cover page of this
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Prospectus, subject to the conversion price adjustments described under
"Description of the TIDES--Conversion Rights." The Issuer has covenanted not
to convert Convertible Junior Subordinated Debentures held by it except
pursuant to a notice of conversion delivered to the Conversion Agent by a
holder of TIDES. Upon surrender of each $50 of liquidation preference of TIDES
to the Conversion Agent for conversion, the Issuer will distribute $50
principal amount of the Convertible Junior Subordinated Debentures to the
Conversion Agent on behalf of the holder of the TIDES so converted, whereupon
the Conversion Agent will convert such Convertible Junior Subordinated
Debentures to Common Stock on behalf of such holder. The Company's delivery to
the holders of the Convertible Junior Subordinated Debentures (through the
Conversion Agent) of the fixed number of shares of Common Stock into which the
Convertible Junior Subordinated Debentures are convertible (together with the
cash payment, if any, in lieu of fractional shares) will be deemed to satisfy
the Company's obligation to pay the principal amount of the Convertible Junior
Subordinated Debentures so converted, and the accrued and unpaid interest
thereon attributable to the period from the last date to which interest has
been paid or duly provided for; provided, however, that if any Convertible
Junior Subordinated Debenture is converted after a record date for payment of
interest, the interest payable on the related interest payment date with
respect to such Convertible Junior Subordinated Debenture shall be paid to the
Issuer (which will distribute such interest to the converting holder) or other
holder of Convertible Junior Subordinated Debentures, as the case may be,
despite such conversion.
OPTIONAL REDEMPTION
The Company shall have the right to redeem the Convertible Junior
Subordinated Debentures, in whole or in part, at any time or from time to time
after April 9, 1999, upon not less than 20 nor more than 60 days' notice, at a
redemption price equal to $52.08 per $50 principal amount of the Convertible
Junior Subordinated Debentures to be redeemed plus any accrued and unpaid
interest, including Additional Interest, if any, to the redemption date, if
redeemed on or before April 9, 2000, and at the following redemption prices
per $50 principal amount of Convertible Junior Subordinated Debentures, if
redeemed during the 12-month period ending April 9:
PRICE PER $50
PRINCIPAL
YEAR AMOUNT
- ---- ------
2001 ...................................................... $51.74
2002 ...................................................... 51.39
2003 ...................................................... 51.39
2004 ...................................................... 51.39
2005 ...................................................... 51.39
and thereafter at $50 per $50 principal amount of Convertible Junior
Subordinated Debentures plus, in each case, accrued and unpaid interest,
including Additional Interest, if any, to the redemption date.
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange any Convertible Junior
Subordinated Debenture during a period beginning at the opening of business 15
days before any selection for redemption of Convertible Junior Subordinated
Debentures and ending at the close of business on the earliest date on which
the relevant notice of redemption is deemed to have been given to all holders
of Convertible Junior Subordinated Debentures to be so redeemed and (ii)
register the transfer of or exchange any Convertible Junior Subordinated
Debentures so selected for redemption, in whole or in part, except the
unredeemed portion of any Convertible Junior Subordinated Debenture being
redeemed in part.
SUBORDINATION
The Indenture provides that the Convertible Junior Subordinated
Debentures are subordinate and junior in right of payment to all Senior
Indebtedness of the Company as provided in the Indenture. No payment of
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principal of (including redemption payments), or interest on, the Convertible
Junior Subordinated Debentures may be made (i) if any Senior Indebtedness is
not paid when due, any applicable grace period with respect to such default
has ended and such default has not been cured or waived, or (ii) if the
maturity of any Senior Indebtedness has been accelerated because of a default.
Upon any distribution of assets of the Company to creditors upon any
dissolution, winding up, liquidation or reorganization, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all principal of, and premium, if any, and interest due or to become due on,
all Senior Indebtedness must be paid in full before the holders of the
Convertible Junior Subordinated Debentures are entitled to receive or retain
any payment. In the event that, notwithstanding the foregoing, any payment or
distribution of cash, property or securities shall be received or collected by
a holder of the Convertible Junior Subordinated Debentures in contravention of
the foregoing provisions, such payment or distribution shall be held for the
benefit of and shall be paid over to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or trustees under
any indenture under which any instrument evidencing Senior Indebtedness may
have been issued, as their respective interests may appear, to the extent
necessary to pay in full all Senior Indebtedness then due, after giving effect
to any concurrent payment to the holders of Senior Indebtedness. Subject to
the payment in full of all Senior Indebtedness, the rights of the holders of
the Convertible Junior Subordinated Debentures will be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions applicable to Senior Indebtedness until all amounts owing on the
Convertible Junior Subordinated Debentures are paid in full.
The term "Senior Indebtedness" shall mean in respect of the Company (i)
the principal, premium, if any, and interest in respect of (A) indebtedness of
such obligor for money borrowed and (B) indebtedness evidenced by securities,
convertible preferred securities, bonds or other similar instruments issued by
such obligor, (ii) all capital lease obligations of such obligor, (iii) all
obligations of such obligor issued or assumed as the deferred purchase price
of property, all conditional sale obligations of such obligor and all
obligations of such obligor under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business), (iv) all
obligations of such obligor for the reimbursement of any letter of credit,
banker's acceptance, security purchase facility or similar credit transaction,
(v) all obligations of the type referred to in clauses (i) through (iv) above
of other persons for the payment of which such obligor is responsible or
liable as obligor, guarantor or otherwise, and (vi) all obligations of the
type referred to in clauses (i) through (v) above of other persons secured by
any lien on any property or asset of such obligor (whether or not such
obligation is assumed by such obligor), except for (1) any such indebtedness
issued after the date of original issuance of the Convertible Junior
Subordinated Debentures that is by its terms subordinated to or pari passu
with the Convertible Junior Subordinated Debentures and (2) any indebtedness
(including all other debt securities and guarantees in respect of those debt
securities) initially issued to any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of preferred securities
or other similar securities. Such Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term
of such Senior Indebtedness.
The Indenture does not limit the aggregate amount of Senior Indebtedness
the Company may issue. At June 30, 1996, Senior Indebtedness consisting of
borrowed money of the Company aggregated approximately $866.6 million. See
"Capitalization."
CERTAIN COVENANTS
If (i) there shall have occurred any event that would constitute an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee, or (iii) the Company shall
have given notice of its election to defer payments of interest on the
Convertible Junior Subordinated Debentures by extending the interest payment
period as provided in the Indenture and such period, or any extension thereof,
shall be continuing, then the Company (a) shall not declare or pay dividends
on, make distributions with respect to, or redeem, purchase or acquire, or
make a liquidation payment with respect to, any of its capital stock (other
than stock dividends paid by the Company which consist of stock of the same
class as that on which the dividend is being paid), (b) shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company after the date of original
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issuance of the Convertible Junior Subordinated Debentures that rank pari
passu with or junior to the Convertible Junior Subordinated Debentures, and
(c) shall not make any guarantee payments with respect to the foregoing (other
than pursuant to the Guarantee).
The Company has covenanted (i) to directly or indirectly maintain
100% ownership of the Common Securities of the Trust; provided, however, that
any permitted successor of the Company under the Indenture may succeed to the
Company's ownership of such Common Securities and (ii) to use its reasonable
efforts to cause the Trust (x) to remain a statutory business trust, except in
connection with the distribution of Convertible Junior Subordinated Debentures
to the holders of Trust Securities in liquidation of the Trust, the redemption
of all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (y)
to otherwise continue to be classified as a grantor trust for United States
Federal income tax purposes.
RESTRICTIONS
The Indenture provides that the Company shall not consolidate with or
merge with or into any other corporation, or, directly or indirectly, convey,
transfer or lease all or substantially all of the properties and assets of the
Company on a consolidated basis to any Person, unless either the Company is
the continuing corporation or such corporation or Person assumes by
supplemental indenture all the obligations of the Company under the Indenture
and the Convertible Junior Subordinated Debentures, no default or Event of
Default shall exist immediately after the transaction, and the surviving
corporation or such Person is a corporation, partnership or trust organized
and validly existing under the laws of the United States of America, any state
thereof or the District of Columbia.
EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events, which has occurred and is continuing, constitutes an "Event of
Default" with respect to the Convertible Junior Subordinated Debentures: (i)
failure for 30 days to pay interest on the Convertible Junior Subordinated
Debentures, including any Additional Interest in respect thereof, when due; or
(ii) failure to pay principal of or premium, if any, on the Convertible Junior
Subordinated Debentures when due whether at maturity, upon redemption, by
declaration or otherwise; or (iii) failure by the Company to deliver shares of
Common Stock upon an election by a holder of TIDES to convert such TIDES; or
(iv) failure to observe or perform any other covenant contained in the
Indenture for 90 days after notice; or (v) the dissolution, winding up or
termination of the Issuer, except in connection with the distribution of
Convertible Junior Subordinated Debentures to the holders of TIDES in
liquidation of the Issuer and in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration; or (vi) certain
events in bankruptcy, insolvency or reorganization of the Company.
The Indenture Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of the Convertible Junior Subordinated Debentures
may declare the principal of and interest (including any Additional Interest)
on the Convertible Junior Subordinated Debentures due and payable immediately
on the occurrence of an Event of Default; provided, however, that, after such
acceleration, but before a judgment or decree based on acceleration, the
holders of a majority in aggregate principal amount of outstanding Convertible
Junior Subordinated Debentures may, under certain circumstances, rescind and
annul such acceleration if all Events of Default, other than the nonpayment of
accelerated principal, have been cured or waived as provided in the Indenture.
For information as to waiver of defaults, see "--Modification of the
Indenture."
Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing and such event is attributable to the failure of the Company
to pay interest or principal on the Convertible Junior Subordinated Debentures
on the date such interest or principal is otherwise payable (or in the case of
any redemption, the redemption date), a holder of TIDES may institute a direct
action for payment on or after the respective due date (or redemption date)
specified in the Convertible Junior Subordinated Debentures. The Company may
not amend the Indenture to remove the foregoing right to bring a Direct Action
without the prior written consent of all the holders of TIDES. Notwithstanding
any payment made to such holder of TIDES by the Company in connection with a
Direct Action, the Company shall remain obligated to pay the principal of or
interest on the
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Convertible Junior Subordinated Debentures held by the Issuer or the Trustee
of the Issuer and the Company shall be subrogated to the rights of the holder
of such TIDES with respect to payments on the TIDES to the extent of any
payments made by the Company to such holder in any Direct Action. The holders
of TIDES will not be able to exercise directly any other remedy available to
the holders of the Convertible Junior Subordinated Debentures.
The Trustee is the initial holder of the Convertible Junior Subordinated
Debentures. However, while the TIDES are outstanding, the Trustee has agreed
not to waive an Event of Default with respect to the Convertible Junior
Subordinated Debentures without the consent of holders of a majority in
aggregate liquidation preference of the TIDES then outstanding.
A default under any other indebtedness of the Company or any of its
subsidiaries or joint ventures or the Issuer would not constitute an Event of
Default under the Convertible Junior Subordinated Debentures.
Subject to the provisions of the Indenture relating to the duties of the
Indenture Trustee in case an Event of Default shall occur and be continuing,
the Indenture Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any
holders of Convertible Junior Subordinated Debentures, unless such holders
shall have offered to the Indenture Trustee reasonable indemnity. Subject to
such provisions for the indemnification of the Indenture Trustee, the holders
of a majority in aggregate principal amount of the Convertible Junior
Subordinated Debentures then outstanding will have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Indenture Trustee, or exercising any trust or power conferred on the
Indenture Trustee.
No holder of any Convertible Junior Subordinated Debenture will have any
right to institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such holder shall have previously given to the
Indenture Trustee written notice of a continuing Event of Default and, if the
Issuer is not the sole holder of Convertible Junior Subordinated Debentures,
unless the holders of at least 25% in aggregate principal amount of the
Convertible Junior Subordinated Debentures then outstanding shall also have
made written request, and offered reasonable indemnity, to the Indenture
Trustee to institute such proceeding as Indenture Trustee, and the Indenture
Trustee shall not have received from the holders of a majority in aggregate
principal amount of the outstanding Convertible Junior Subordinated Debentures
a direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days. However, such limitations do not apply to a
suit instituted by a holder of a Convertible Junior Subordinated Debenture for
enforcement of payment of the principal of or interest on such Convertible
Junior Subordinated Debenture on or after the respective due dates expressed
in such Convertible Junior Subordinated Debenture.
The holders of a majority in aggregate outstanding principal amount of
all series of the Convertible Junior Subordinated Debentures affected thereby
may, on behalf of the holders of all the Convertible Junior Subordinated
Debentures of such series, waive any past default, except a default in the
payment of principal, premium, if any, or interest. The Company is required to
file annually with the Indenture Trustee and the Trustee a certificate as to
whether or not the Company is in compliance with all the conditions and
covenants under the Indenture.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the
Indenture Trustee, with the consent of the holders of not less than a majority
in principal amount of the Convertible Junior Subordinated Debentures, to
modify the Indenture or any supplemental indenture, provided that no such
modification may, without the consent of the holder of each outstanding
Convertible Junior Subordinated Debenture affected thereby, (i) extend the
fixed maturity of any Convertible Junior Subordinated Debentures of any
series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon
the redemption thereof, or adversely affect the right to convert Convertible
Junior Subordinated Debentures, without the consent of the holder of each
Convertible Junior Subordinated Debenture so affected, or (ii) reduce the
percentage of Convertible Junior Subordinated Debentures, the holders
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of which are required to consent to any such supplemental indenture, without
the consent of the holders of each Convertible Junior Subordinated Debenture
then outstanding and affected thereby.
In addition, the Company and the Indenture Trustee may execute, without
the consent of any holder of Convertible Junior Subordinated Debentures, any
supplemental indenture to cure any ambiguities, comply with the Trust
Indenture Act and for certain other customary purposes.
SETOFF
Notwithstanding anything contained to the contrary in the Indenture, the
Company has the right to set off any payment with respect to the Convertible
Junior Subordinated Debentures it is otherwise required to make thereunder
with and to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee.
GOVERNING LAW
The Indenture and the Convertible Junior Subordinated Debentures are
governed by, and construed in accordance with, the laws of the State of New
York.
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture Trustee, prior to default, has undertaken to perform only
such duties as are specifically set forth in the Indenture and, after default,
shall exercise the same degree of care as a prudent individual would exercise
in the conduct of his or her own affairs. Subject to such provision, the
Indenture Trustee is under no obligation to exercise any of the powers vested
in it by the Indenture at the request of any holder of Convertible Junior
Subordinated Debentures, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby.
The Indenture Trustee is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties
if the Indenture Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it.
EFFECT OF OBLIGATIONS UNDER THE CONVERTIBLE
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of the Issuer is to
issue the Trust Securities and use the proceeds thereof to purchase from the
Company the Convertible Junior Subordinated Debentures.
As long as payments of interest and other payments are made when due on
the Convertible Junior Subordinated Debentures, such payments will be
sufficient to cover distributions and payments due on the TIDES primarily
because (i) the aggregate principal amount of Convertible Junior Subordinated
Debentures will be equal to the sum of the aggregate stated liquidation
preference of the TIDES and the Common Securities; (ii) the interest rate and
interest and other payment dates on the Convertible Junior Subordinated
Debentures will match the distribution rate and distribution and other payment
dates for the TIDES; (iii) the Declaration provides that the Company, as
originator, shall pay for all, and the Issuer shall not be obligated to pay,
directly or indirectly, for any, costs and expenses of the Issuer; and (iv)
the Declaration further provides that the holders of Common Securities and the
Issuer Trustees shall not cause or permit the Issuer to, among other things,
engage in any activity that is not consistent with the purposes of the Issuer.
If an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on the
Convertible Junior Subordinated Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of TIDES may institute a direct action against
the Company for payment on or after the respective due date for payment (or
redemption date).
Payments of distributions and other payments due on the TIDES out of
moneys held by the Issuer are guaranteed by the Company to the extent set
forth under "Description of the Guarantee." If the Company fails to
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make payments under the Guarantee, a holder of any of the TIDES may institute
a direct action against the Company to enforce its rights under the Guarantee.
DESCRIPTION OF CALENERGY CAPITAL STOCK
The authorized capital stock of the Company consists of 80,000,000
shares of Common Stock, par value $0.0675 per share, and 2,000,000 shares of
Preferred Stock, no par value.
COMMON STOCK
As of June 30, 1996, there were 52,176,408 shares of Common Stock
outstanding (not including 15,159,700 shares issuable pursuant to
outstanding stock options and upon conversion of all outstanding 5%
convertible debentures and 9.5% exchangeable subordinated debentures). The
holders of Common Stock are entitled to one vote for each share held of record
on all matters submitted to a vote of stockholders. Holders of the Common
Stock vote together as a single class on all matters. Subject to preferences
that may be applicable to any outstanding Preferred Stock, holders of Common
Stock are entitled to receive ratably such dividends as may be declared by the
Board of Directors out of funds legally available therefor. In the event of a
liquidation, dissolution or winding up of the Company, holders of Common Stock
are entitled to share ratably in all assets remaining after payment of
liabilities and the liquidation preference of any outstanding Preferred Stock.
Subject to certain exceptions, Kiewit Energy has the right to purchase its pro
rata share of any securities convertible to Common Stock or other equity
securities offered or sold by the Company at a price less than the greater of
the current market price of the Common Stock or the exercise price of certain
options granted to Kiewit Energy. No other holders of Common Stock have
preemptive rights and holders of Common Stock have no rights to convert their
Common Stock into any other securities. The outstanding shares of Common Stock
are, and the Common Stock to be issued upon conversion of the TIDES will be,
fully paid and nonassessable.
On December 1, 1988, the Company distributed a dividend of one
Preferred Share Purchase Right (a "Right") for each outstanding share of
Common Stock. The Rights are not exercisable until ten days after a person or
group acquires, or has the right to acquire, beneficial ownership of 20% or
more of the Company's Common Stock or announces a tender or exchange offer for
30% or more of the Company's Common Stock. Each Right entitles the holder to
purchase one one-hundredth of a share of Series A Junior Preferred Stock, no
par value (the "Series A Preferred Stock"), for $52. The Rights may be
redeemed by the Board of Directors up to ten days after an event triggering
the distribution of certificates for the Rights. The Rights Plan pursuant to
which such Rights were issued was amended in February 1991 so that Kiewit
Energy's purchase of Common Stock would not trigger the exercise of the
Rights. The Rights will expire, unless previously redeemed or exercised, on
November 30, 1998. The Rights are automatically attached to, and trade with,
each share of Common Stock.
PREFERRED STOCK
The Board of Directors has the authority to issue 2,000,000 shares of
Preferred Stock in one or more series and to fix the rights, preferences,
privileges and restrictions thereof, including dividend rights, dividend
rates, conversion rights, voting rights, terms of redemption, redemption
prices, liquidation preferences and the number of shares constituting any
series or the designation of such series, without any further action by the
stockholders. The issuance of additional shares of Preferred Stock may have
the effect of delaying, deferring or preventing a change in control of the
Company without further action by the stockholders. The issuance of additional
shares of Preferred Stock with voting and conversion rights may adversely
affect the voting power of the holders of Common Stock, including the loss of
voting control to others. The Company has no present plans to issue any
additional shares of Preferred Stock. As of June 30, 1996, 714,539 shares
of Series A Preferred Stock were subject to issuance if the Rights were
exercised in full.
STOCK OPTIONS
The Company has issued various stock options. As of June 30, 1996,
a total of 7,566,000 shares of Common Stock are reserved for stock options,
of which 7,186,000 have been granted and remain outstanding
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at exercise prices ranging from $3.00 to $19.00 per share. The Company has
stock option plans under which shares were reserved for grant as incentive or
non-qualified stock options, as determined by the Board of Directors. The
plans allow options to be granted at 85% of their fair market value at the
date of grant. Generally, options are issued at 100% of fair market value at
the date of grant. Options granted under the 1996 Plan generally become
exercisable over a period of three to five years and expire if not exercised
within ten years from the date of grant, or in some instances, a lesser term.
TRANSFER AGENT AND REGISTRAR
The Chemical Trust Company of California of San Francisco, California,
has been appointed as the transfer agent and registrar for the Company's
Common Stock and registration of transfer and exchange of shares of Common
Stock may be made at the office maintained for that purpose in San Francisco,
California.
KIEWIT REGISTRATION RIGHTS AGREEMENTS
Under the terms of the Registration Rights Agreement, dated as of
February 18, 1991, between the Company and Kiewit Energy, and the Registration
Rights Agreement, dated as of June 19, 1991, between the Company and Kiewit
Energy, each as amended (collectively, the "Kiewit Registration Rights
Agreements"), subject to certain conditions, Kiewit Energy or its affiliates
may request that the Company register under the Securities Act all or any
portion of certain securities of the Company owned by Kiewit Energy, including
(i) 12,322,312 shares of Common Stock held by Kiewit Energy and any shares of
Common Stock subsequently held by Kiewit Energy (the "Kiewit Shares"), (ii)
options held by Kiewit Energy to purchase 4,289,163 shares of Common Stock
(the "Kiewit Options"), (iii) 4,289,163 shares of Common Stock issuable upon
exercise of the Kiewit Options, and (iv) 3,529,252 shares of Common Stock
issuable upon conversion of the 9.5% Exchangeable Subordinated Debentures
(which were issued upon the exchange of the Series C Preferred Stock) (such
shares are referred to as the "Kiewit Conversion Shares"), in each case,
subject to adjustment as provided in the Kiewit Registration Rights
Agreements. (The Kiewit Shares, the Kiewit Options, the Kiewit Option Shares
and the Kiewit Conversion Shares are collectively referred to as the "Kiewit
Securities"). Subject to certain conditions, the Company is required to use
its diligent efforts to effect such registration. The Company is required to
effect no more than three such registrations (unless Kiewit Energy agrees to
pay all expenses in connection therewith) with respect to the Kiewit Shares,
4,500,000 Kiewit Option Shares and the related Kiewit Options, and two such
registrations (unless Kiewit Energy agrees to pay all expenses in connection
therewith) with respect to the Kiewit Conversion Shares, 1,000,000 Kiewit
Option Shares and the related Kiewit Options. If the Company proposes to
register any of its securities under the Securities Act, either for its own
account or for the account of other stockholders, the Company is required
under the Kiewit Registration Rights Agreements, subject to certain conditions
and at Kiewit Energy's (or its affiliate's) option, to include the Kiewit
Securities specified by Kiewit Energy or its affiliates in the registration
statement. If the underwriters selected for underwriting determine that
marketing factors require a limitation on the number of shares to be
underwritten, the underwriters may (subject to the allocation priority set
forth in the Kiewit Registration Rights Agreements) limit the number of Kiewit
Securities included in the registration statement and underwriting. Generally,
the Company is required to bear the expenses of all such registrations.
UNITED STATES TAXATION
GENERAL
The following is a summary of certain of the material United States
federal income tax consequences of the purchase, ownership, disposition and
conversion of TIDES. Unless otherwise stated, this summary deals only with
TIDES held as capital assets by holders and does not deal with special classes
of holders such as banks, thrifts, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or
currencies, tax-exempt investors, or persons that will hold the TIDES as other
than a capital asset. This summary also does not address the tax consequences
to persons that have a functional currency other than the U.S. Dollar or the
tax consequences to shareholders, partners or beneficiaries of a holder of
TIDES. Further, it does not include any description of any alternative minimum
tax consequences or the tax laws of any state or local government or of any
foreign government that may be applicable to the TIDES. This summary is
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based on the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
regulations thereunder and administrative and judicial interpretations
thereof, as of the date hereof, all of which are subject to change, possibly
on a retroactive basis.
TREATMENT BY THE COMPANY
The Company intends to treat the Convertible Junior Subordinated
Debentures as debt for United States federal income tax purposes and each
holder of TIDES as the owner of an undivided interest in the Convertible
Junior Subordinated Debentures. The Company and the Trust will therefore
report any payments on the Convertible Junior Subordinated Debentures to the
Internal Revenue Service in a manner consistent with such characterization.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the TIDES, Willkie Farr & Gallagher,
special counsel to the Company and the Trust, rendered its opinion generally
to the effect that, under then current law and assuming full compliance with
the terms of the Declaration and the Convertible Junior Subordinated Debenture
Indenture (and certain other documents), and based on certain facts and
assumptions contained in such opinion, the Trust will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation. Accordingly, for United States federal
income tax purposes, each holder of TIDES generally will be considered the
owner of an undivided interest in the Convertible Junior Subordinated
Debentures, and each holder will be required to include in its gross income
any OID accrued with respect to its allocable share of those Convertible
Junior Subordinated Debentures.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Because the Company has the option, under the terms of the Convertible
Junior Subordinated Debentures, to defer payments of interest by extending
interest payment periods for up to 20 quarters, all of the stated interest
payments on the Convertible Junior Subordinated Debentures will be treated as
"original issue discount." Holders of debt instruments issued with OID must
include that discount in income on an economic accrual basis before the
receipt of cash attributable to the interest, regardless of their method of
tax accounting. Generally, all of a holder's taxable interest income with
respect to the Convertible Junior Subordinated Debentures will be accounted
for as OID. Actual payments and distributions of stated interest will not,
however, be separately reported as taxable income. The amount of OID that
accrues in any quarter will approximately equal the amount of the interest
that accrues on the Convertible Junior Subordinated Debentures in that quarter
at the stated interest rate. In the event that the interest payment period is
extended, holders will continue to accrue OID approximately equal to the
amount of the interest payment due at the end of the extended interest payment
period on an economic accrual basis over the length of the extended interest
payment period.
Holders purchasing TIDES at an "acquisition premium" for United States
federal income tax purposes (i.e., for an amount greater than its adjusted
issue price as of the purchase date but less than or equal to the sum of all
amounts payable on the TIDES) will be required to include a reduced amount of
OID in income. The reduction in includable OID is determined by multiplying
the amount of OID otherwise includable by a fraction, the numerator of which
is the excess, if any, of the price paid by the holder over the adjusted issue
price of the TIDES and the denominator of which is the excess of the sum of
all amounts payable on the TIDES after the purchase date over the adjusted
issue price of the TIDES. For this purpose, the adjusted issue price of TIDES
generally is equal to its issue price, increased by the amount of OID that has
accrued on the TIDES. In lieu of applying this acquisition premium fraction, a
holder may elect to include OID in income on a constant yield method,
determined as if the holder had purchased the TIDES at original issuance.
Because income on the TIDES will constitute OID, corporate holders of
TIDES will not be entitled to a dividends-received deduction with respect to
any income recognized with respect to the TIDES.
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MARKET DISCOUNT
Generally, market discount will exist to the extent the purchase price
paid by a holder for TIDES is less than the revised issue price of the TIDES
at the time of purchase, subject to a statutory de minimis exception. The
revised issue price of TIDES generally equals its issue price, increased by
the amount of OID that has accrued for periods prior to a holder's
acquisition.
A holder of TIDES who acquires the TIDES with market discount will be
required to treat any payment on, or any gain realized on the sale, exchange,
retirement or other disposition of, the TIDES as ordinary income to the extent
of the market discount that accrued (but was not previously included in
income) during the period such holder held the TIDES. Market discount will be
considered to accrue ratably during the period from the date of acquisition to
the maturity date of the TIDES, unless the holder elects to accrue market
discount on the basis of semiannual compounding.
Alternatively, a holder may elect to include market discount in income
currently as it accrues (either on a ratable or semiannual compounding basis),
in which case the rules described above regarding the treatment as ordinary
income of gain upon disposition of the TIDES would not apply. Generally, such
currently included market discount is treated as ordinary interest for United
States federal income tax purposes. Such an election will apply to all debt
instruments acquired by a holder on or after the first day of the taxable year
to which such election applies and may be revoked only with the consent of the
IRS.
A holder may be required to defer the deduction of all or a portion of
the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry TIDES with market discount until the maturity of the TIDES
or certain earlier dispositions.
RECEIPT OF CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION
OF THE ISSUER
Under certain circumstances, as described under the caption "Description
of the TIDES--Tax Event or Investment Company Event Redemption or
Distribution," Convertible Junior Subordinated Debentures may be distributed
to holders in exchange for the TIDES and in liquidation of the Trust. Under
current law, such a distribution to holders, for United States federal income
tax purposes, would be treated as a nontaxable event to each holder, and each
holder would receive an aggregate tax basis in the Convertible Junior
Subordinated Debentures equal to such holder's aggregate tax basis in its
TIDES. A holder's holding period in the Convertible Junior Subordinated
Debentures so received in liquidation of the Trust would include the period
during which the TIDES were held by such holder. If, however, the related
Special Event is a Tax Event which results in the Trust being treated as an
association taxable as a corporation, the distribution would likely constitute
a taxable event to holders of the TIDES.
Under certain circumstances described herein (see "Description of the
TIDES"), the Convertible Junior Subordinated Debentures may be redeemed for
cash and the proceeds of such redemption distributed to holders in redemption
of their TIDES. Under current law, such a redemption would, for United States
federal income tax purposes, constitute a taxable disposition of the redeemed
TIDES, and a holder would recognize gain or loss as if it sold such redeemed
TIDES for cash. See "--Disposition of TIDES."
DISPOSITION OF TIDES
A holder that sells TIDES will recognize gain or loss equal to the
difference between the amount realized on the sale of the TIDES and the
holder's adjusted tax basis in such TIDES. A holder's adjusted tax basis in
the TIDES generally will be its initial purchase price increased by OID
previously includible in such holder's gross income to the date of disposition
and decreased by payments received on the TIDES to the date of disposition.
Such gain or loss will be a capital gain or loss and will be a long-term
capital gain or loss if the TIDES have been held for more than one year at the
time of sale.
The TIDES may trade at a price that does not accurately reflect the
value of accrued but unpaid interest with respect to the underlying
Convertible Junior Subordinated Debentures. A holder who disposes of or
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converts his TIDES between record dates for payments of distributions thereon
will be required to include accrued but unpaid interest on the Convertible
Junior Subordinated Debentures through the date of disposition in income as
ordinary income, and to add such amount to his adjusted tax basis in his pro
rata share of the underlying Convertible Junior Subordinated Debentures deemed
disposed of. To the extent the selling price is less than the holder's
adjusted tax basis (which basis will include, in the form of OID, all accrued
but unpaid interest), a holder will recognize a capital loss. Subject to
certain limited exceptions, capital losses cannot be applied to offset
ordinary income for United States Federal income tax purposes.
CONVERSION OF TIDES INTO COMMON STOCK
A holder of TIDES will not recognize gain or loss upon the exchange,
through the Conversion Agent, of TIDES for a proportionate share of the
Convertible Junior Subordinated Debentures held by the Issuer.
A holder of TIDES will not recognize income, gain or loss upon the
conversion, through the Conversion Agent, of Convertible Junior Subordinated
Debentures into the Common Stock. A holder of TIDES will, however, recognize
gain upon the receipt of cash in lieu of a fractional share of the Common
Stock equal to the amount of cash received less such holder's tax basis in
such fractional share. A holder of TIDES' tax basis in the Common Stock
received upon exchange and conversion should generally be equal to such
holder's tax basis in the TIDES delivered to the Conversion Agent for exchange
less the basis allocated to any fractional share for which cash is received
and a holder of TIDES' holding period in the Common Stock received upon
exchange and conversion should generally begin on the date such holder
acquired the TIDES delivered to the Conversion Agent for exchange.
ADJUSTMENT OF CONVERSION PRICE
Treasury Regulations promulgated under Section 305 of the Code would
treat holders of TIDES as having received a constructive distribution from the
Company in the event the conversion ratio of the Convertible Junior
Subordinated Debentures were adjusted if (i) as a result of such adjustment,
the proportionate interest (measured by the quantum of Common Stock into or
for which the Convertible Junior Subordinated Debentures are convertible or
exchangeable) of the holders of the TIDES in the assets or earnings and
profits of the Company were increased, and (ii) the adjustment was not made
pursuant to a bona fide, reasonable antidilution formula. An adjustment in the
conversion ratio would not be considered made pursuant to such a formula if
the adjustment was made to compensate for certain taxable distributions with
respect to the Common Stock. Thus, under certain circumstances, a reduction in
the conversion price for the holders may result in a deemed distribution. The
fair market value of such distribution will be taxable as dividend income to
holders to the extent of the current or accumulated earnings and profits of
the Company. Holders of the TIDES would be required to include their allocable
share of such deemed dividend income in gross income but will not receive any
cash related thereto.
PROPOSED TAX LEGISLATION
On March 19, 1996, as part of President Clinton's Fiscal 1997 Budget
Proposal, the Treasury Department proposed legislation (the "Proposed
Legislation") which, among other things, would treat as equity for United
States federal income tax purposes instruments with a maximum term of more
than 20 years that are not shown as indebtedness on the consolidated balance
sheet of the issuer. On March 29, 1996, Senate Finance Committee Chairman
William V. Roth, Jr. and House Ways and Means Committee Chairman Bill Archer
issued a joint statement (the "Joint Statement") indicating their intent that
certain legislative proposals initiated by the Clinton administration,
including the Proposed Legislation, that may be adopted by either of the
tax-writing committees of Congress, would have an effective date that is no
earlier than the date of "appropriate Congressional action." Based on the
Joint Statement, it is expected that if the Proposed Legislation were enacted,
such legislation would not apply to the Convertible Junior Subordinated
Debentures. Furthermore, even if the Proposed Legislation were enacted in its
current form with effective date provisions making it applicable to the
Convertible Junior Subordinated Debentures, it would not cause the TIDES to be
treated as equity for United States federal income tax purposes since the
maximum term of the TIDES will not exceed 20 years. There can be no
assurances, however, that the effective date guidance contained in the Joint
Statement
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will be incorporated into any enacted legislation or that other legislation
enacted after the date hereof will not otherwise adversely affect the tax
treatment of the TIDES. If legislation is enacted that adversely affects the
tax treatment of the TIDES, such legislation could result in the distribution
of the TIDES to holders of the TIDES or, in certain limited circumstances, the
redemption of such securities by the Company and the distribution of the
resulting cash in redemption of the TIDES. See "Description of the TIDES--Tax
Event or Investment Company Event Redemption or Distribution."
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is, as to the
United States, a foreign corporation, a non-resident alien individual, a
foreign partnership, or a nonresident fiduciary of a foreign estate or trust.
Under present United States federal income tax law, (i) payments by the
Trust or any of its paying agents to any holder of TIDES who or which is a
United States Alien Holder will not be subject to withholding of United States
Federal income tax; provided that, (a) the beneficial owner of the TIDES does
not actually or constructively (including by virtue of its interest in the
underlying Convertible Junior Subordinated Debentures) own 10% or more of the
total combined voting power of all classes of stock of the Company entitled to
vote, (b) the beneficial owner of the TIDES is not a controlled foreign
corporation that is related to the Company through stock ownership, and (c)
either (A) the beneficial owner of the TIDES certifies to the Trust or its
agent, under penalties of perjury, that it is not a United States holder and
provides its name and address or (B) a securities clearing organization, bank
or other financial institution that holds customers' securities in the
ordinary course of its trade or business (a "Financial Institution"), and
holds the TIDES in such capacity, that certifies to the Trust or its agent,
under penalties of perjury, that such statement has been received from the
beneficial owner by it or by a Financial Institution between it and the
beneficial owner and furnishes the Trust or its agent with a copy thereof; and
(ii) a United States Alien Holder of TIDES will not be subject to withholding
of United States Federal income tax on any gain realized upon the sale or
other disposition of the TIDES.
If a United States Alien Holder is treated as receiving a deemed dividend
as a result of an adjustment of the conversion price of the TIDES, as
described above under "Adjustment of Conversion Price," such deemed dividend
will be subject to United States federal withholding tax at a 30% (or lower
treaty) rate.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Subject to the qualifications discussed below, income on the TIDES will
be reported to holders on Forms 1099, which forms should be mailed to holders
of TIDES by January 31 following each calendar year.
The Trust will be obligated to report annually to Cede & Co., as holder
of record of the TIDES, the OID related to the TIDES that accrued during the
year. The Trust currently intends to report such information on Form 1099
prior to January 31 following each calendar year even though the Trust is not
legally required to report to record holders until April 15 following each
calendar year. The Placing Agents have indicated to the Trust that, to the
extent that they hold TIDES as nominees for beneficial holders, they currently
expect to report to such beneficial holders on Forms 1099 by January 31
following each calendar year. Under current law, holders of TIDES who hold as
nominees for beneficial holders will not have any obligation to report
information regarding the beneficial holders to the Trust. The Trust,
moreover, will not have any obligation to report to beneficial holders who are
not also record holders. Thus, beneficial holders of TIDES who hold their
TIDES through the Initial Purchasers will receive Forms 1099 reflecting the
income on their TIDES from such nominee holders rather than the Trust.
Payments made on, and proceeds from the sale of, the TIDES may be subject
to a "backup" withholding tax of 31% unless the holder complies with certain
identification requirements. Any withheld amounts will be allowed as a credit
against the holder's United States federal income tax, provided the required
information is provided to the Internal Revenue Service.
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THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON
A HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS
WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE TIDES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED
STATES FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Generally, employee benefit plans that are subject to the Employee
Retirement Income Security Act of 1974 ("ERISA"), or Section 4975 of the Code
("Plans"), may purchase TIDES, subject to the investing fiduciary's
determination that the investment in TIDES satisfies ERISA's fiduciary
standards and other requirements applicable to investments by the Plan.
In any case, the Company and/or any of its affiliates may be considered a
"party in interest" (within the meaning of ERISA) or a "disqualified person"
(within the meaning of Section 4975 of the Code) with respect to certain Plans
(generally, Plans maintained or sponsored by, or contributed to by, any such
persons). The acquisition and ownership of TIDES by a Plan (or by an
individual retirement account or other plans described in Section
4975(E)(1) of the Code) with respect to which the Company or any of its
affiliates is considered a party in interest or a disqualified person, may
constitute or result in a prohibited transaction under ERISA or Section 4975
of the Code, unless such TIDES are acquired pursuant to and in accordance with
an applicable exemption.
As a result, Plans with respect to which the Company or any of its
affiliates is a party in interest or a disqualified person should not acquire
TIDES other than in accordance with an applicable exemption. Plans or other
entities whose assets include Plan assets subject to ERISA proposing to
acquire TIDES should consult with their own ERISA counsel.
SELLING HOLDERS
The TIDES were originally issued by the Trust and sold by CS First
Boston Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Initial Purchasers"), in a transaction exempt from the registration
requirements of the Securities Act, to persons reasonably believed by such
Initial Purchasers to be "qualified institutional buyers" (as defined in Rule
144A under the Securities Act), and to a limited number of institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act). The Selling Holders may from time to time offer and sell
pursuant to this Prospectus any or all of the TIDES, any Convertible Junior
Subordinated Debentures and Common Stock issued upon conversion of the TIDES.
The term Selling Holders includes the holders listed below and the
beneficial owners of the TIDES and their transferees, pledgees, donees or
other successors.
The following table sets forth information with respect to the Selling
Holders of the TIDES as of August 23, 1996.
Number of
Selling Holder TIDES
Bank of Nova Scotia - N.Y. Agency 210,000
Alpine Associates 200,000
Oregon Equity Fund 70,000
Pacific Horizon Capital Income Fund 60,000
Investors Fiduciary Trust 49,000
Putnam Convertible Income-Growth Trust 45,000
N.B. Convertible Arbitrage Partners, L.P. 40,000
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OCM Convertible Trust 39,700
Bottle & Co. 35,000
UBS Securities LLC 35,000
Pondwave & Co. 32,800
San Diego County Convertible 32,670
PRIM Board 30,000
Delta Airlines Master Trust 29,800
State Employees' Retirement Fund of the State of Delaware 28,100
Nicholas-Applegate Income & Growth Fund 27,380
Pacific Mutual 20,000
Ashore & Co. 15,000
Franklin Investors Securities Trust Convertible Securities Fund 13,000
The Putnam Advisory Company, Inc. on behalf of New Hampshire
State Retirement System 11,350
Allstate Insurance Company 10,000
ICI American Holdings Pension 10,000
Putnam Convertible Opportunities and Income Trust 10,000
Zeneca Holdings Pension 10,000
The Putnam Advisory Company, Inc. on behalf of Massachusetts
Medical Professional Insurance Association (Promutual) 9,500
San Diego City 9,270
Sage Capital 8,300
Wafra Discretionary 8,000
Colonial Penn Insurance Co. 7,500
Colonial Penn Life Insurance 7,500
Wake Forest University 7,230
Hillside Capital Inc. 7,000
Presbyterian Health Care 6,090
Bank of America Convertible Securities Fund 5,000
Engineers Joint Pension Fund 4,510
The Putnam Advisory Company, Inc. on behalf of
Boston College Endowment 4,350
First Hawaiian Bank Custodian for Kapiolani
Medical Center for Women & Children 4,000
Austin Firefighters 3,300
How & Co. 3,000
Investors Fiduciary Trust 3,000
Nalco Chemical Retirement 3,000
Occidental College 2,780
Baptist Health of Miami 2,300
The Putnam Advisory Company, Inc. on behalf of the
Boston Museum of Fine Art 1,900
Dunham & Associates 1,100
British Bank of Middle East 1,000
Boston Museum of Fine Art 970
Royal Trust Corporation of Canada 900
Any other holder of TIDES 903,300
---------
Total 2,078,600
None of the Selling Holders has, or within the past three years has had,
any position, office or other material relationship with the Trust or the
Company or any of their predecessors or affiliates, except as noted above.
Because the Selling Holders may, pursuant to this Prospectus, offer all or
some portion of the TIDES, the Convertible Junior Subordinated Debentures or
the Common Stock issuable upon conversion of the TIDES, no estimate can be
given as to the amount of the TIDES, the Convertible Junior Subordinated
Debentures or the Common Stock issuable upon conversion of the TIDES that will
be held by the Selling Holders upon termination
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of any such sales. In addition, the Selling Holders identified above may have
sold, transferred or otherwise disposed of all or a portion of their TIDES
since the date on which they provided the information regarding their TIDES
pursuant to transactions exempt from the registration requirements of the
Securities Act.
PLAN OF DISTRIBUTION
The Offered Securities may be sold from time to time to purchasers
directly by the Selling Holders. Alternatively, the Selling Holders may from
time to time offer the Offered Securities to or through underwriters,
broker/dealers or agents, who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Holders or
the purchasers of such securities for whom they may act as agents. The Selling
Holders and any underwriters, broker/dealers or agents that participate in the
distribution of Offered Securities may be deemed to be "underwriters" within
the meaning of the Securities Act and any profit on the sale of such
securities and any discounts, commissions, concessions or other compensation
received by any such underwriter, broker/dealer or agent may be deemed to be
underwriting discounts and commissions under the Securities Act.
The Offered Securities may be sold from time to time in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale or at negotiated prices. The
sale of the Offered Securities may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Offered Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or in the over-the-counter
market or (iv) through the writing of options. At the time a particular
offering of the Offered Securities is made, a Prospectus Supplement, if
required, will be distributed which will set forth the aggregate amount and
type of Offered Securities being offered and the terms of the offering,
including the name or names of any underwriters, broker/dealers or agents, any
discounts, commissions and other terms constituting compensation from the
Selling Holders and any discounts, commissions or concessions allowed or
reallowed or paid to broker/dealers.
Pursuant to the Registration Rights Agreement, the Company is required to
use its reasonable best efforts to keep the Registration Statement
continuously effective for a period of three years from its effective date or
such shorter period that will terminate upon the earlier of the date on which
the Offered Securities shall have been sold pursuant to the Registration
Statement or the date on which the Offered Securities are permitted to be
freely sold or distributed to the public pursuant to any exemption from the
registration requirements of the Securities Act (excluding in reliance on Rule
144A under the Securities Act). Notwithstanding the foregoing obligations, the
Company may, under certain circumstances, postpone or suspend the filing or
the effectiveness of the Registration Statement (or any amendments or
supplements thereto) or the sale of Offered Securities thereto.
To comply with the securities laws of certain jurisdictions, if
applicable, the Offered Securities will be offered or sold in such
jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain jurisdictions the Offered Securities may not be offered
or sold unless they have been registered or qualified for sale in such
jurisdictions or any exemption from registration or qualification is available
and is complied with.
The Selling Holders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, which provisions may
limit the timing of purchases and sales of any of the Offered Securities by
the Selling Holders. The foregoing may affect the marketability of such
securities.
Pursuant to the Registration Rights Agreement, all expenses of the
registration of the Offered Securities will be paid by the Company, including,
without limitation, SEC filing fees and expenses of compliance with state
securities or "blue sky" laws; provided, however, that the Selling Holders
will pay all underwriting discounts and selling commissions, if any. The
Selling Holders will be indemnified by the Company and the Trust, jointly and
severally against certain civil liabilities, including certain liabilities
under the Securities Act, or will be entitled to contribution in connection
therewith. The Company and the Trust will be indemnified by the Selling
Holders severally against certain civil liabilities, including certain
liabilities under the Securities Act, or will be entitled to contribution in
connection therewith.
49
<PAGE>
LEGAL MATTERS
The validity of the TIDES will be passed upon for the Issuer by Morris,
Nichols, Arsht & Tunnell. The validity of the Convertible Junior Subordinated
Debentures, the Guarantee and any Common Stock issuable upon conversion of
such Convertible Junior Subordinated Debentures will be passed upon for the
Company and the Issuer by Steven A. McArthur, Senior Vice President and
General Counsel of the Company, and by Willkie Farr & Gallagher. As of March
31, 1996, Mr. McArthur beneficially owned 155,498 shares of Common Stock.
EXPERTS
The financial statements and the related financial statement schedules of
the Company and its subsidiaries incorporated in this Registration Statement
by reference to the Company's 1995 Form 10-K have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports (which reports
express an unqualified opinion and include an explanatory paragraph referring
to the Company's adoption effective January 1, 1993, of Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes") which are
incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
The financial statements of Falcon Seaboard Resources, Inc.
incorporated in this Registration Statement by reference to the Company's Form
8-K/A, dated August 22, 1996, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report which is incorporated herein
by reference, and have been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
With respect to the Company's unaudited interim financial information
for the three month periods ended March 31, 1996 and 1995 and for the three
and six month periods ended June 30, 1996 and 1995, incorporated herein by
reference, Deloitte & Touche LLP have applied limited procedures in accordance
with professional standards for a review of such information. However, as
stated in their report included in the Company's report on Form 10-Q for the
quarters ended March 31, 1996 and June 30, 1996 and incorporated by reference
herein, they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their reports
on such information should be restricted in light of the limited nature of the
review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act for their reports
on the unaudited interim financial information because Those reports are not
"reports" or a "part" of a registration statement prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the Securities Act.
The balance sheets of BN Geothermal Inc., Conejo Energy Company, San
Felipe Energy Company and Niguel Energy Company as of December 31, 1995 and
December 31, 1994 and the related statements of operations, shareholder's
equity and cash flows for each of the three years in the period ended December
31, 1995, incorporated by reference into this Registration Statement on Form
S-3, have been audited by Arthur Andersen LLP, independent public accountants,
as stated in their reports, and have been referred to herein in reliance upon
the authority of said firm as experts in giving said reports.
The consolidated balance sheet of Magma Power Company, and
subsidiaries as of December 31, 1994 and the related consolidated statements
of operations, changes in stockholders' equity, and cash flows for each of the
two years in the period ended December 31, 1994, incorporated by reference in
this Prospectus have been incorporated herein in reliance on the reports of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
50
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE ISSUER OR ANY OF THEIR
AGENTS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR THE
ISSUER SINCE SUCH DATE.
---------------------------
TABLE OF CONTENTS
PAGE
Available Information........................................5
Incorporation Of Certain Documents By Reference..............5
Risk Factors.................................................7
CalEnergy Capital Trust.....................................14
The Company.................................................15
Recent Developments.........................................16
Ratio Of Earnings To Fixed Charges..........................16
Capitalization..............................................17
Accounting Treatment........................................18
Use Of Proceeds.............................................18
Description Of The Tides....................................18
Description Of The Guarantee................................31
Description Of The Convertible Junior
Subordinated Debentures ................................. 34
Effect Of Obligations Under The Convertible
Junior Subordinated Debentures And The
Guarantee ................................................40
Description Of CalEnergy Capital Stock......................41
United States Taxation......................................42
ERISA Considerations........................................47
Selling Holders.............................................47
Plan Of Distribution........................................49
Legal Matters...............................................50
Experts.....................................................50
CALENERGY
CAPITAL TRUST
(Graphic)
2,078,600 TIDES(SM)
guaranteed to the extent
set forth herein by,
and convertible into
Common Stock of,
CALENERGY COMPANY, INC.
-----------------
PROSPECTUS
----------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses in connection with the
distribution of the securities being registered hereunder, other than
underwriting discounts and commissions.
AMOUNT
SEC registration fee........................................... $37,675
Printing, shipping and engraving expenses...................... 130,000
Legal fees and expenses........................................ 200,000
Accounting fees and expenses................................... 100,000
Transfer Agent, Registrar and trustee fees and expenses........ 15,000
Miscellaneous expenses......................................... 17,325
========
Total..................................................... $500,000
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
THE COMPANY
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") grants each corporation organized thereunder, such as the
Company, the power to indemnify its directors and officers against liabilities
for certain of their acts. Article EIGHTH of the Company's Restated
Certificate of Incorporation and Article V of the Company's By-Laws provides
for indemnification of directors and officers of the Company to the extent
permitted by the DGCL. Article V of the Company'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 Company 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
Company, 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 Company'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
Sections 145 and 102(b)(7) of the DGCL, Article EIGHTH of the Company's
Restated Certificate of Incorporation and Article V of the Company's By-Laws.
Section 145 of the DGCL empowers a Delaware corporation to indemnify
any persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was
an officer or director of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided that such officer or director acted in
good faith and in a manner reasonably believed to be in or not opposed to the
corporation's best interests, and, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation
under the same conditions, except that no indemnification is permitted without
judicial
II-1
<PAGE>
approval if the officer or director is adjudged to be liable to the
corporation in the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such
officer or director actually and reasonably incurred.
THE TRUST
The Declaration of Trust (the "Declaration") provides that no Trustee,
affiliate of any Regular Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agent of the Trust, or any
employee or agent of the trust or its affiliates (each an "Indemnified
Person") shall be liable, responsible or accountable in damages or otherwise
to the Trust or any employee or agent of the trust or its affiliates for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by the such Indemnified Person in good faith on behalf of the Trust
and in a manner such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by the Declaration
or by law, except that an Indemnified Person shall be liable for any such
loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Trustee, negligence) or willful misconduct
with respect to such act or omissions. The Declaration also provides that to
the fullest extent permitted by applicable law, the Company shall indemnify
and hold harmless each Indemnified Person from and against any loss, damage or
claim incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by the
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
Trustee, negligence) or willful misconduct with respect to such acts or
omissions. The Declaration further provides that, to the fullest extent
permitted by applicable law, expenses (including legal fees) incurred by an
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
or an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not entitled
to be indemnified for the underlying cause of action as authorized by the
Declaration. The directors and officers of the Company and the Regular
Trustees are covered by insurance policies indemnifying them against certain
liabilities, including certain liabilities arising under the Securities Act of
1933, as amended (the "Securities Act"), which might be incurred by them in
such capacities and against which they cannot be indemnified by the Company or
the Trust. The Selling Holders will be indemnified by the Company and the
Trust, jointly and severally, against certain civil liabilities, including
certain liabilities under the Securities Act, or will be entitled to
contribution in connection therewith. The Company and the Trust will be
indemnified by the Selling Holders severally against certain civil
liabilities, including certain liabilities under the Securities Act, or will
be entitled to contribution in connection therewith.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
A. Exhibits
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
4.1* Certificate of Trust of CalEnergy Capital Trust
4.2* Amended and Restated Declaration of Trust of CalEnergy Capital Trust,
dated as of April 4, - 1996, among CalEnergy Company, Inc., as Sponsor,
The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee and Steven A. McArthur, John G. Sylvia
and Gregory Abel, as Trustees
4.3* Indenture for the 6 1/4% Convertible Junior Subordinated Debentures,
dated as of April 1, 1996, - among CalEnergy Company, Inc., as Issuer,
and The Bank of New York, as Trustee
II-2
<PAGE>
4.4* Form of 6 1/4% Convertible Preferred Securities Term Income Deferrable
Equity Securities (TIDES)SM (included in Exhibit 4.2 above)
4.5* Form of 6 1/4% Convertible Junior Subordinated Debentures (included in
Exhibit 4.3 above)*
4.6* CalEnergy Company, Inc. Preferred Securities Guarantee, dated as of
April 10, 1996, between
CalEnergy Company, Inc., as Guarantor, and The Bank of New York, as
Preferred Guarantee Trustee
4.7* CalEnergy Company, Inc. Common Securities Guarantee, dated as of April
10, 1996, by CalEnergy Company, Inc., as Guarantor
5.1 Opinion of Willkie Farr & Gallagher as to the legality of the
Convertible Junior Subordinated Debentures and Preferred Securities
Guarantee being registered hereby
5.2 Opinion of Steven A. McArthur, General Counsel of CalEnergy Company,
Inc., as to the legality of the Common Stock of CalEnergy Company, Inc.,
being registered hereby
5.3 Opinion of Morris, Nichols, Arsht & Tunnell as to the legality of the
TIDES being registered hereby
8.1 Opinion of Willkie Farr & Gallagher as to certain tax matters
10.1* Registration Rights Agreement, dated April 10, 1996, by and among
CalEnergy Capital Trust, - CalEnergy Company, Inc., CS First Boston
Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated
12.1 Statement on Ratio of Earnings to Fixed Charges of CalEnergy Company,
Inc.
15.1 Awareness letter of Deloitte & Touch LLP
23.1 Consent of Deloitte & Touche LLP, Omaha, Nebraska, independent public
accountants
23.2 Consent of Deloitte & Touche LLP, Houston, Texas, independent public
accountants
23.3 Consent of Arthur Andersen LLP, independent public accountants
23.4 Consent of Coopers & Lybrand L.L.P., independent public accountants
23.5 Consent of Willkie Farr & Gallagher is contained in the opinions of
counsel filed as Exhibits 5.1 and 8.1
23.6 Consent of Steven A. McArthur, General Counsel of CalEnergy Company,
Inc., is contained in the opinion filed as Exhibit 5.2
23.7 Consent of Morris, Nichols, Arsht & Tunnell is contained in the opinion
of counsel filed as Exhibit 5.3
24.1* Power of Attorney
25.1* Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Trustee under the 6 1/4
Convertible Junior Subordinated Debentures Indenture
25.2* Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Property Trustee under the
Amended and Restated Declaration of Trust
25.3* Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Preferred Guarantee Trustee
under the Preferred Securities Guarantee
* Previously filed.
B. Financial Statements and Schedules
All schedules for which provision is made in Regulation S-X of the
Securities and Exchange Commission either are not required under the related
instructions or the information required to be included therein has been
included in the financial statements and schedule of CalEnergy Company, Inc.
included in its Form 10-K.
ITEM 17. UNDERTAKINGS.
II-3
<PAGE>
(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, as amended (the "Securities Act").
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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
the registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Securities and Exchange Commission ("SEC") by such
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the provisions described in Item 15 or
otherwise, the Registrant has been advised that in the opinion of the SEC,
such indemnification is against public policy as expressed in the Securities
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.
(d) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the SEC under Section 305(b)(2) of the
Trust Indenture Act.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
II-4
<PAGE>
in a form of Prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of Prospectus 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CalEnergy
Company, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Omaha, State of
Nebraska, on August 29, 1996.
CALENERGY COMPANY, INC.
By: /s/ David L. Sokol
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
AMENDMENT TO THE Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- ------------------------------------------------------------------------------
/s/ David L. Sokol Chairman of the Board, August 29, 1996
- ------------------ Chief Executive Officer, and
David L. Sokol Director
/s/ John G. Sylvia Senior Vice President, August 29, 1996
- ------------------ Chief Financial Officer and
John G. Sylvia Treasurer
/s/ Gregory E. Abel Senior Vice President, Controller August 29, 1996
- ------------------- and Chief Accounting Officer
Gregory E. Abel
*
- ------------------- Director August 29, 1996
Edgar D. Aronson
*
- ------------------- Director August 29, 1996
Judith E. Ayres
*
- ------------------- Director August 29, 1996
James Q. Crowe
*
- ------------------- Director August 29, 1996
Richard K. Davidson
* By /s/ Steven A. McArthur
----------------------
Attorney-In-Fact
II-6
<PAGE>
*
- ------------------- Director August 29, 1996
Richard R. Jaros
*
- ------------------- Director August 29, 1996
Ben Holt
*
- ------------------- Director August 29, 1996
John R. Shiner
*
- ------------------- Director August 29, 1996
Bernard W. Reznicek
*
- ------------------- Director August 29, 1996
Walter Scott, Jr.
*
- ------------------- Director August 29, 1996
David E. Wit
* By /s/ Steven A. McArthur
Attorney-In-Fact
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CalEnergy
Capital Trust certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Omaha, State of
Nebraska, on August 29, 1996.
CALENERGY CAPITAL TRUST
By: /s/ Steven A. McArthur
----------------------
Trustee
By: /s/ John G. Sylvia
----------------------
Trustee
By: /s/ Gregory E. Abel
----------------------
Trustee
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION PAGE
<S> <C> <C>
4.1* Certificate of Trust of CalEnergy Capital Trust
4.2* Amended and Restated Declaration of Trust of CalEnergy Capital Trust,
dated as of April 4, 1996, among CalEnergy Company, Inc., as Sponsor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware),
as Delaware Trustee and Steven A. McArthur, John G. Sylvia and Gregory
Abel, as Trustees
4.3* Indenture for the 6 1/4% Convertible Junior Subordinated Debentures,
dated as of April 1, 1996, among CalEnergy Company, Inc., as Issuer, and
The Bank of New York, as Trustee
4.4* Form of 6 1/4% Convertible Preferred Securities Term Income Deferrable
Equity Securities (TIDES) SM (included in Exhibit 4.2 above)
4.5* Form of 6 1/4% Convertible Junior Subordinated Debentures (included in
Exhibit 4.3 above)
4.6* CalEnergy Company, Inc. Preferred Securities Guarantee, dated as of April
10, 1996, between CalEnergy Company, Inc., as Guarantor, and The Bank of
New York, as Preferred Guarantee Trustee
4.7* CalEnergy Company, Inc. Common Securities Guarantee, dated as of April
10, 1996, by CalEnergy Company, Inc., as Guarantor
5.1 Opinion of Willkie Farr & Gallagher as to the legality of the Convertible
Junior Subordinated Debentures and Preferred Securities Guarantee being
registered hereby
5.2 Opinion of Steven A. McArthur, General Counsel of CalEnergy Company,
Inc., as to the legality of the Common Stock of CalEnergy Company, Inc.,
being registered hereby
5.3 Opinion of Morris, Nichols, Arsht & Tunnell as to the legality of the
TIDES being registered hereby
8.1 Opinion of Willkie Farr & Gallagher as to certain tax matters
10.1* Registration Rights Agreement, dated April 10, 1996, by and among
CalEnergy Capital Trust, CalEnergy Company, Inc., CS First Boston
Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
the Initial Purchasers
12.1 Statement on Ratio of Earnings to Fixed Charges of CalEnergy Company,
Inc.
15.1 Awareness letter of Deloitte & Touche LLP
23.1 Consent of Deloitte & Touche LLP, Omaha, Nebraska, independent public
accountants
23.2 Consent of Deloitte & Touche LLP, Houston, Texas, independent public accountants
23.3 Consent of Arthur Andersen LLP, independent public accountants
23.4 Consent of Coopers & Lybrand L.L.P., independent public accountants
23.5 Consent of Willkie Farr & Gallagher is contained in the opinions of
counsel filed as Exhibits 5.1 and 8.1
23.6 Consent of Steven A. McArthur, General Counsel of CalEnergy Company,
Inc., is contained in the opinion filed as Exhibit 5.2
23.7 Consent of Morris, Nichols, Arsht & Tunnell is contained in the opinion
of counsel filed as Exhibit 5.3
24.1* Power of Attorney
<PAGE>
25.1* Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Trustee under the 6 1/4%
Convertible Junior Subordinated Debentures Indenture
25.2* Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Trustee under the Amended and
Restated Declaration of Trust
25.3* Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Preferred Guarantee Trustee under
the Preferred Securities Guarantee
- ------------------
* Previously filed.
</TABLE>
EXHIBIT 5.1
[Willkie Farr & Gallagher Letterhead]
August 29, 1996
CalEnergy Capital Trust
c/o CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
Re: CalEnergy Company, Inc.;
CalEnergy Capital Trust;
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to CalEnergy Company, Inc., a Delaware
corporation (the "Company"), and CalEnergy Capital Trust, a statutory business
trust formed under the laws of the State of Delaware (the "Trust"), in
connection with the preparation of a Registration Statement on Form S-3 (File
No. 333-08315), as filed by the Company and the Trust with the Securities and
Exchange Commission (the "Commission") on July 17, 1996 under the Securities
Act of 1933, as amended (the "Act") and Amendment No. 1 thereto, as filed on
the date hereof (such Registration Statement, as so amended, being hereinafter
referred to as the "Registration Statement"), relating to the registration
under the Act of (i) 2,078,600 6 1/4% Convertible Preferred Securities Term
Income Deferrable Equity Securities (TIDES)SM or TIDES SM (liquidation
preference $50 per each of the TIDES) (the "TIDES") representing undivided
beneficial ownership interests in the assets of the Trust; (ii) 6 1/4%
Convertible Junior Subordinated Debentures Due 2016 (the "Convertible Junior
Subordinated Debentures") of the Company, which may be distributed under
certain circumstances to the holders of the TIDES; (iii) the shares of common
stock, par value $0.0675 per share (the "Common Stock"), of the Company
issuable upon conversion of the TIDES and the Convertible Junior Subordinated
Debentures; and (iv) the Preferred Securities Guarantee of the Company (as
defined below).
<PAGE>
CalEnergy Capital Trust
August 29, 1996
page 2
The TIDES were issued pursuant to the Amended and Restated Declaration of
Trust (the "Declaration"), dated as of April 4, 1996, among the Company, as
sponsor, The Bank of New York, as property trustee (the "Property Trustee"),
The Bank of New York (Delaware), as the Delaware trustee (the "Delaware
Trustee"), and Steven A. McArthur, John G. Sylvia and Gregory Abel, as regular
trustees (together, the "Regular Trustees"). Capitalized terms used but not
otherwise defined herein have the meanings ascribed to them in the
Registration Statement.
This opinion is being delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the certificate
of trust (the "Certificate of Trust") filed by the Property Trustee, the
Delaware Trustee and the Regular Trustees with the Secretary of State of the
State of Delaware on April 3, 1996; (ii) the Declaration (including the form
of the terms of the TIDES annexed thereto); (iii) specimens of the TIDES; (iv)
the preferred securities guarantee agreement, dated as of April 10, 1996 (the
"Preferred Securities Guarantee"), between the Company and The Bank of New
York, as trustee; (v) specimens of the Convertible Junior Subordinated
Debentures, which were issued pursuant to an indenture dated as of April 1,
1996 (the "Indenture"), between the Company and The Bank of New York, as
trustee; (vi) the Indenture; and (vii) certain resolutions of the Board of
Directors of the Company relating to the issuance of the Convertible Junior
Subordinated Debentures and the shares of Common Stock issuable upon
conversion thereof. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies. In making our examination of documents executed by
parties other than the Trust and the Company, we have assumed that such
-2-
<PAGE>
CalEnergy Capital Trust
August 29, 1996
page 3
parties had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties of such documents and that such documents constitute valid and binding
obligations of such parties. As to any facts material to the opinions
expressed herein which were not independently established or verified, we have
relied upon oral or written statements and representations of officers,
trustees and other representatives of the Company, the Trust and others.
The opinions expressed herein are limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the federal
laws of the United States of America, and we express no opinion with respect
to the laws of any other country, state or jurisdiction.
Based on and subject to the foregoing and to the other qualifications and
limitations set forth herein, we are of the opinion that:
1. The Preferred Securities Guarantee is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that (a) enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating
to creditor's rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity).
2. The Convertible Junior Subordinated Debentures are valid
and binding obligations of the Company, entitled to the benefits of
the Indenture and enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity).
This opinion is furnished to you solely for your benefit in connection with
the filing of the Registration Statement and, except as set forth in the next
sentence, is not to be
-3-
<PAGE>
CalEnergy Capital Trust
August 29, 1996
page 4
used, circulated, quoted or otherwise referred to for any other purpose or
relied upon by any other person for any purpose without our prior written
consent. We also consent to the use of our name under the heading "Legal
Matters" in the Registration Statement and in the related Prospectus. We
hereby consent to the filing of this opinion with the Commission as Exhibit 5
to the Registration Statement. In giving this consent, we do not thereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission promulgated
thereunder. This opinion is expressed as of the date hereof unless otherwise
expressly stated and we disclaim any undertaking to advise you of any
subsequent changes of the facts stated or assumed herein or any subsequent
changes in applicable law.
Very truly yours,
/s/ Willkie Farr & Gallagher
-4-
EXHIBIT 5.2
[Letterhead of CalEnergy Company, Inc.]
August 29, 1996
CalEnergy Capital Trust
c/o CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
Ladies and Gentlemen:
I am the Senior Vice President and General Counsel of CalEnergy
Company, Inc., a Delaware corporation (the "Company"). This opinion is being
furnished in accordance with the requirements of Item 601(b)(5) of Regulation
S-K under the Securities Act of 1933, as amended (the "Act"), in connection
with the registration under the Act of (i) 2,078,600 6 1/4% Convertible
Preferred Securities Term Income Deferrable Equity Securities (TIDES)SM or
TIDES SM (liquidation preference $50 per each of the TIDES) (the "TIDES")
representing undivided beneficial ownership interests in the assets of
CalEnergy Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"); (ii) 6 1/4% Convertible Junior
Subordinated Debentures Due 2016 (the "Convertible Junior Subordinated
Debentures") of the Company, which may be distributed under certain
circumstances to the holders of the TIDES; (iii) the shares of common stock,
par value $0.0675 per share (the "Common Stock"), of the Company issuable upon
conversion of the TIDES and the Convertible Junior Subordinated Debentures;
and (iv) the Preferred Securities Guarantee of the Company (as defined below).
The TIDES were issued pursuant to the amended and restated
declaration of trust of the Trust, dated as of April 4, 1996 (the
"Declaration") among the Company, as sponsor, Steven A. McArthur, John G.
Sylvia and Gregory E. Abel, as regular trustees, The Bank of New York
(Delaware), as Delaware trustee, and The Bank of New York, as property
<PAGE>
CalEnergy Capital Trust
CalEnergy Company, Inc.
August 29, 1996
page 2
trustee, and guaranteed by the Company as to the payment of distributions and
as to payments on liquidation, redemption and otherwise pursuant to the
Preferred Securities Guarantee Agreement, dated as of April 10, 1996 (the
"Preferred Securities Guarantee"), between the Company and The Bank of New
York, as trustee. The proceeds from the sale by the Trust of the TIDES were
invested in the Convertible Junior Subordinated Debentures, which were issued
pursuant to an Indenture, dated as of April 1, 1996 (the "Indenture"), between
the Company and The Bank of New York, as trustee.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of (i) the Registration
Statement on Form S-3 (File No. 333-08315), as filed by the Company and the
Trust with the Securities and Exchange Commission (the "Commission") on July
17, 1996 under the Act and Amendment No. 1 thereto, as filed on the date
hereof (the Registration Statement, as so amended, being hereinafter referred
to as the "Registration Statement") relating to the TIDES, the Preferred
Securities Guarantee, the Convertible Junior Subordinated Debentures and the
Common Stock; (ii) an executed copy of the Declaration filed as an exhibit to
the Registration Statement; (iii) the form of the Common Stock filed as an
exhibit to the Registration Statement and a specimen certificate thereof; (iv)
the Restated Certificate of Incorporation of the Company as currently in
effect; (v) the By-laws of the Company as currently in effect; (vi) certain
resolutions of the Board of Directors of the Company relating to the issuance
of the Convertible Junior Subordinated Debentures and the shares of Common
Stock issuable upon conversion; (vii) an executed copy of the Preferred
Securities Guarantee; (viii) the form of TIDES filed as an exhibit to the
Registration Statement and a specimen certificate thereof; (ix) the
designation of the terms of the TIDES; (x) the form of the Convertible Junior
Subordinated Debentures filed as an exhibit to the Registration Statement and
a specimen certificate thereof; (xi) an executed copy of the Indenture; and
(xii) an executed copy of the Registration Rights Agreement, dated April 10,
1996, by and among the Trust and CS First Boston Corporation and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as the initial purchasers, filed
as an exhibit to the Registration Statement.
<PAGE>
CalEnergy Capital Trust
CalEnergy Company, Inc.
August 29, 1996
page 3
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, the conformity to original document of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making my
examination of documents executed by parties other than the Company, I have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by
such parties of such documents and that such documents constitute valid and
binding obligations of such parties. In addition, I have assumed that the
Common Stock as executed will be in the form reviewed by me. As to any facts
material to the opinions expressed herein which were not independently
established or verified, I have relied upon oral or written statements and
representations of officers, trustees and other representatives of the
Company, the Trust and others.
The opinions expressed herein are limited to the Federal laws of the
United States of America, the laws of the State of New York and the General
Corporation Law of the State of Delaware, and I express no opinion with
respect to the laws of any other country, state or jurisdiction.
Based upon and subject to the foregoing, I am of the opinion that the
shares of Common Stock initially issuable upon conversion of the TIDES and the
Convertible Junior Subordinated Debentures, have been duly authorized and
reserved for issuance upon conversion and, when certificates representing the
Common Stock in the form of the specimen certificate examined by me have been
manually signed by an authorized officer of the transfer agent and registrar
for the Common Stock and, if and when issued upon conversion of the TIDES and
the Convertible Junior Subordinated Debentures, such Common Stock will be
validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. I also consent to the reference to
me under the heading "Legal Matters" in the Registration Statement and in the
related Prospectus. In giving this consent, I do not
<PAGE>
CalEnergy Capital Trust
CalEnergy Company, Inc.
August 29, 1996
page 4
thereby admit that I am included in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission.
This letter is being delivered to you in my capacity as the Senior
Vice President and General Counsel of the Company and addresses matters only
as of the date hereof and is solely for the benefit of the addressees hereof
and may not be relied upon in any manner by any other person without my prior
written consent.
Sincerely,
/s/ Steven A. McArthur
Steven A. McArthur
Senior Vice President
and General Counsel
EXHIBIT 5.3
[Morris, Nichols, Arsht & Tunnell Letterhead]
August 29, 1996
CalEnergy Capital Trust
c/o CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, NE 68131
Re: CalEnergy Capital Trust
-----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to CalEnergy Capital Trust,
a Delaware statutory business trust (the "Trust"), in connection with certain
matters of Delaware law relating to (i) the issuance of the 6 1/4% Convertible
Preferred Securities Term Income Deferrable Equity Securities (the "Preferred
Securities") to the several initial purchasers named on Schedule A (the
"Initial Purchasers") to the Purchase Agreement dated April 4, 1996 (the
"Purchase Agreement") among CS First Boston Corporation, as representative of
the Initial Purchasers, the Trust and CalEnergy Company, Inc., a Delaware
corporation (the "Company") and (ii) the registration of 2,078,600 Preferred
Securities pursuant to Registration Statement No. 333-08315 on Form S-3 as
filed by the Trust and the Company with the Securities and Exchange Commission
on July 17, 1996 and Amendment No. 1 thereto as filed on the date hereof (as
so amended, the "Registration Statement").
The Preferred Securities have been issued pursuant to the Purchase
Agreement and the Amended and Restated Declaration of Trust of the Trust dated
as of April 4, 1996 (the "Governing Instrument"). Capitalized terms used
herein and not otherwise herein defined are used as defined in the Governing
Instrument.
In rendering this opinion, we have examined and relied upon copies of
the following documents in the forms provided to us: the Certificate of Trust
of the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on April 3, 1996 (the
<PAGE>
CalEnergy Capital Trust
August 29, 1996
Page 2
"Certificate"); a Declaration of Trust dated as of April 3, 1996 (the
"Original Governing Instrument"); the Governing Instrument; the form of
Indenture dated as of April 1, 1996 between the Company and The Bank of New
York, as Trustee; the Purchase Agreement; the Trust's Confidential Offering
Circular dated April 4, 1996 relating to the Preferred Securities (the
"Prospectus"); the Registration Rights Agreement dated April 10, 1996 among
the Trust, the Company, CS First Boston Corporation and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Registration Rights Agreement"); and a
certificate of good standing of the Trust obtained as of a recent date from
the State Office. In such examinations, we have assumed the genuineness of all
signatures, the conformity to original documents of all documents submitted to
us as drafts or copies or forms of documents to be executed and the legal
capacity of natural persons to complete the execution of documents. We have
further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity (other than the
Trust) that is a party to any of the documents reviewed by us under the laws
of the jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the parties
thereto of the above-referenced documents (including, without limitation, the
due authorization, execution and delivery of the Governing Instrument and the
Purchase Agreement by the parties thereto); (iii) that no event has occurred
subsequent to the filing of the Certificate that would cause a dissolution or
liquidation of the Trust under the Original Governing Instrument or the
Governing Instrument, as applicable; (iv) that the activities of the Trust
have been and will be conducted in accordance with the Original Governing
Instrument or the Governing Instrument, as applicable, and the Delaware
Business Trust Act, 12 Del. C. ss.ss. 3801 et seq. (the "Delaware Act"); (v)
that each Holder OF Preferred Securities has made payment of the required
consideration therefor and received a Preferred Securities Certificate in
consideration thereof in accordance with the terms and conditions of the
Governing Instrument, the Prospectus and the Purchase Agreement; (vi) that the
Preferred Securities have been issued and sold to, and held or transferred by,
the Preferred Securities Holders (and any subsequent transferee), and all
transfers have been made, in accordance with the terms, conditions,
requirements and procedures set forth in the Governing Instrument, the
Prospectus and the Purchase Agreement; (vii) that none of the Preferred
Securities has been called for redemption,
<PAGE>
CalEnergy Capital Trust
August 29, 1996
Page 3
redeemed, converted or canceled (except in connection with a permitted
transfer) and all of the Preferred Securities remain outstanding; (viii) that
the Sponsor has directed the Regular Trustees to take the actions contemplated
by Section 3.6(b) of the Governing Instrument; and (ix) that the documents
examined by us are in full force and effect, express the entire understanding
of the parties thereto with respect to the subject matter thereof and have not
been modified, supplemented or otherwise amended, except as herein referenced.
No opinion is expressed with respect to the requirements of, or compliance
with, federal or state securities or blue sky laws. We have not participated
in the preparation of the Prospectus, the Registration Statement or any other
offering materials relating to the Securities and we assume no responsibility
for their contents. As to any fact material to our opinion, other than those
assumed, we have relied without independent investigation on the
above-referenced documents and on the accuracy, as of the date hereof, of the
matters therein contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that the Preferred Securities
constitute validly issued and, subject to the qualifications set forth below,
fully paid and nonassessable beneficial interests in the assets of the Trust.
We note that pursuant to Section 11.04 of the Governing Instrument, the Trust
may withhold amounts otherwise distributable to a Holder and pay over such
amounts to the applicable jurisdictions in accordance with federal, state and
local law and any amount withheld will be deemed to have been distributed to
such Holder and that, pursuant to the Governing Instrument, Preferred Security
Holders may be obligated to make payments or provide indemnity or security
under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "LEGAL
MATTERS" in the Prospectus. In giving this consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. This opinion
speaks only as of the date hereof and is based on our understandings and
assumptions as to present facts, and on our review of the above-referenced
documents and the application of Delaware law as the same exist as of the
<PAGE>
CalEnergy Capital Trust
August 29, 1996
Page 4
date hereof, and we undertake no obligation to update or supplement this
opinion after the date hereof for the benefit of any person or entity with
respect to any facts or circumstances that may hereafter come to our attention
or any changes in facts or law that may hereafter occur or take effect. This
opinion is intended solely for the benefit of the addressee hereof in
connection with the matters contemplated hereby and may not be relied on by
any other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
EXHIBIT 8.1
[Letterhead of Willkie Farr & Gallagher]
August 29, 1996
CalEnergy Capital Trust
c/o CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
Re: CalEnergy Company, Inc.;
CalEnergy Capital Trust;
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to CalEnergy Company, Inc., a Delaware
corporation (the "Company"), and CalEnergy Capital Trust, a statutory business
trust formed under the laws of the State of Delaware (the "Trust"), in
connection with the preparation of a Registration Statement on Form S-3 (File
No. 333-08315), as filed by the Company and the Trust with the Securities and
Exchange Commission (the "Commission") on July 17, 1996 under the Securities
Act of 1933, as amended (the "Act") and Amendment No. 1 thereto, as filed on
the date hereof (such Registration Statement, as so amended, being hereinafter
referred to as the "Registration Statement"), relating to the registration
under the Act of (i) 2,078,600 6 1/4% Convertible Preferred Securities Term
Income Deferrable Equity Securities (TIDES)SM or TIDES SM (liquidation
preference $50 per each of the TIDES) (the "TIDES") representing undivided
beneficial ownership interests in the assets of the Trust; (ii) 6 1/4%
Convertible Junior Subordinated Debentures Due 2016 (the "Convertible Junior
Subordinated Debentures") of the Company, which may be distributed under
certain circumstances to the holders of the TIDES; (iii) the shares of common
stock, par value $0.0675 per share (the "Common Stock"), of the Company
issuable upon conversion of the TIDES and the Convertible Junior Subordinated
Debentures; and (iv) the Preferred Securities Guarantee of the Company (as
defined in the Registration Statement).
We hereby confirm that, although the discussion set forth in the above
captioned registration statement under the heading "UNITED STATES TAXATION"
does not purport to
<PAGE>
CalEnergy Capital Trust
August 29, 1996
page 2
discuss all possible United States federal income tax consequences of the
purchase, ownership and disposition of the TIDES, in our opinion such
discussion constitutes, in all material respects, a fair and accurate summary
of the United States federal income tax consequences of the purchase,
ownership and disposition of the TIDES under current law. It is possible
that contrary positions may be taken by the Internal Revenue Service and
that a court may agree with such contrary positions.
This opinion is furnished to you solely for your benefit in connection with
the filing of the Registration Statement and, except as set forth in the next
sentence, is not to be used, circulated, quoted or otherwise referred to for
any other purpose or relied upon by any other person for any purpose without
our prior written consent. We also consent to the use of our name under the
heading "Legal Matters" in the Registration Statement and in the related
Prospectus. We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving this consent,
we do not thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Commission promulgated thereunder. This opinion is expressed as of the
date hereof unless otherwise expressly stated and we disclaim any undertaking
to advise you of any subsequent changes of the facts stated or assumed herein
or any subsequent changes in applicable law.
Very truly yours,
/s/ Willkie Farr & Gallagher
EXHIBIT 12.1
CALENERGY COMPANY, INC.
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS, EXCEPT RATIO)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
---------------------- -------------------------------------------
1996 1995 1995 1994 1993 1992 1991
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
PRE-TAX INCOME FROM
CONTINUING OPERATIONS ..... $ 49,270 $ 38,297 $ 97,051 $ 55,836 $ 61,258 $ 50,732 $ 34,866
LOSS ON EQUITY INVESTMENT IN
UNCONSOLIDATED SUBSIDIARY . 2,774 -- 362 -- -- -- --
CAPITALIZED INTEREST, NET
OF AMORTIZATION ........... (22,701) (9,479) (31,160) (9,196) (6,174) (5,202) (4,979)
--------- --------- --------- --------- --------- --------- ---------
29,343 28,818 66,253 46,640 55,084 45,530 29,887
--------- --------- --------- --------- --------- --------- ---------
FIXED CHARGES:
INTEREST EXPENSE AND
AMORTIZATION OF DEFERRED
FINANCE CHARGES ON ALL
INDEBTEDNESS ............. 71,504 65,295 134,637 62,837 30,205 20,459 29,814
INTEREST PORTION OF LEASE
RENTALS .................. 30 30 60 109 247 253 217
--------- --------- --------- --------- --------- --------- ---------
TOTAL FIXED CHARGES ...... 71,534 65,325 134,697 62,946 30,452 20,712 30,031
--------- --------- --------- --------- --------- --------- ---------
EARNINGS BEFORE INCOME TAXES,
AND FIXED CHARGES ......... $ 100,877 $ 94,143 $ 200,950 $ 109,586 $ 85,536 $ 66,242 $ 59,918
========= ========= ========= ========= ========= ========= =========
RATIO OF EARNINGS TO FIXED
CHARGES ................... 1.410 1.441 1.492 1.741 2.809 3.198 1.995
========= ========= ========= ========= ========= ========= =========
</TABLE>
EXHIBIT 15.1
CalEnergy Company, Inc.
Omaha, Nebraska
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of CalEnergy Company, Inc. for the periods ended
March 31, 1996 and 1995 and June 30, 1996 and 1995 as indicated in our reports
dated April 18, 1996 and July 17, 1996, respectively; because we did not perform
an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which are included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996 and June
30, 1996, are incorporated by reference in this Amendment No. 1 to
Registration Statement No. 333-08315 on Form S-3.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and 11
of that Act.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
August 28, 1996
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Amendment No. 1 to
Registration Statement No. 333-08315 of CalEnergy Company, Inc. on Form S-3
of our reports dated January 26, 1996, appearing in and incorporated by
reference in the Annual Report on Form 10-K of CalEnergy Company, Inc. for
the year ended December 31, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is a part of such Registration Statement.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
August 28, 1996
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Amendment No. 1 to
Registration Statement No. 333-08315 of CalEnergy Company, Inc. on Form S-3 of
our report dated March 29, 1996 appearing in the report on Form 8-K/A dated
August 27, 1996, incorporated by reference herein, and to the reference to us
under the heading "Experts" in the Prospectus, which is a part of such
Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
August 28, 1996
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Amendment No. 1 to the
Registration Statement of CalEnergy Company, Inc. on Form S-3 of our reports
dated June 7, 1996 on the financial statements of BN Geothermal, Inc., Conejo
Energy Company, San Felipe Energy Company and Niguel Energy Company
incorporated by reference in the Registration Statement and to all references
to our Firm included in this Amendment No. 1 to the Registration Statement.
ARTHUR ANDERSEN LLP
Orange County, California
August 28, 1996
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment No. 1 to this
Registration Statement of CalEnergy Company, Inc. (the "Company") and
CalEnergy Capital Trust on Form S-3 of our report dated March 10, 1995 on our
audits of the consolidated financial statements of Magma Power Company and
subsidiaries as of December 31, 1994 and for each of the two years in the
period ended December 31, 1994 which report is included in the Company's Form
10-K for the year ended December 31, 1995. We also consent to the reference to
our Firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
San Diego, California
August 28, 1996
