As filed with the Securities and Exchange Commission on June 30, 1997
Registration No. 33-___
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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 (IRS Employer
jurisdiction of incorporation Identification Number)
or organization)
302 South 36th Street
Suite 400
Omaha, Nebraska 68131
(Address, including Zip code
of principal executive offices)
CalEnergy Company, Inc. 1996 Stock Option Plan
CalEnergy Company, Inc. Non-Employee Director Stock Option Election Plan,
Nonqualified Employee Stock Options and
CalEnergy Company, Inc. Money Purchase Pension Plan
(Full title of the plan)
Steven A. McArthur, Esq.
Senior Vice President, General Counsel and Secretary
CalEnergy Company, Inc.
302 South 36th Street
Omaha, Nebraska 68131
(402) 341-4500
(Name, address 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
(212) 821-8000
CALCULATION OF REGISTRATION FEE
____________________________________________________________________________
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered (1) per share (2) price (2) fee _____
Common Stock,
$0.0675 par
value per share 3,089,165 $40.625 $125,497,328 $38,029.49
(1) This Registration Statement covers 2,739,165 shares authorized under the
CalEnergy Company, Inc. 1996 Stock Option Plan (the "Option Plan"),
100,000 shares authorized under the CalEnergy Company, Inc. Non-Employee
Director Stock Option Election Plan (the "Director Plan"), 200,000
shares authorized under Nonqualified Employee Stock Options and 50,000
shares authorized under the CalEnergy Company, Inc. Money Purchase
Pension plan (the "Money Purchase Plan"). In addition, pursuant to Rule
416(c) under the Securities Act of 1933, as amended (the "Securities
Act"), this Registration Statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the Money Purchase Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by CalEnergy Company, Inc., a Delaware
corporation ("Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q, filed with the
Commission on May 14, 1997;
(c) The Company's Current Reports on Form 8-K, filed with the
Commission on February 18, 1997, February 25, 1997, February 26, 1997,
March 28, 1997 and May 7, 1997; and
(d) The description of Company's Common Stock, par value $0.0675
per share (the "Common Stock"), which is contained in the Company's
Registration Statement on Form 8-A, filed pursuant to the Exchange Act
on July 28, 1993, as updated in the Company's Registration Statement on
Form S-3, Registration No. 333-8315, filed pursuant to the Securities
Act on August 29, 1996, under the heading "Description of CalEnergy
Capital Stock."
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable (See Item 3(d) above).
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being
passed upon for the Company by Steven A. McArthur. As of the date of this
Registration Statement, Steven A. McArthur is the Senior Vice President,
General Counsel and Secretary of the Company and beneficially owns
approximately 116,797 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") grants each corporation organized thereunder, such as the 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 further provides that the
Company may enter into contracts providing indemnification to the fullest
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 fullest 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 action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
4.1 Specimen certificate for shares of the Common Stock,
(incorporated by reference to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, Exhibit 4.1).
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1992, Exhibit 3.1).
4.3 Certificate of Amendment of the Company's Restated
Certificate of Incorporation, dated June 23, 1993 (incorporated by
reference to Company's Form 8-A, dated July 28, 1993).
4.4 Certificate of Amendment of the Company's Restated
Certificate of Incorporation, dated February 23, 1995 (incorporated by
reference to the Company's Form 10-K/A Amendment, dated March 31, 1995,
to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, Exhibit 3.3).
4.5 By-Laws of the Company (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1996, Exhibit 3.6).
5. Opinion of Steven A. McArthur as to the validity of the
securities being registered pursuant to the Option Plan.
15.1 Letter to Deloitte & Touche LLP, regarding unaudited
financial information
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Steven A. McArthur (contained in Exhibit 5).
24.1 Power of Attorney.
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being, made a post effective amendment to the Registration Statement:
(i) to including any prospectus required by Section 10 (a)
(3) of 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 statement;
provided, however, that paragraphs (a) (i) and (a) (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15 (d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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 the time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company'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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provision, or otherwise, the Company
has been advised that in the opinion of the Commission 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed
by the final adjudication of such issue.
4. The undersigned registrant has submitted the Money Purchase Plan
to the Internal Revenue Services (the "IRS") in a timely manner and it hereby
undertakes that it will make all changes required by the IRS in order to
qualify the Money Purchase Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska, on the 30th day of June,
1997.
CALENERGY COMPANY, INC.
By: /s/ David L. Sokol
David L. Sokol
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
/s/ David L. Sokol
David L. Sokol Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer) June 30, 1997
/s/ Gregory E. Abel
Gregory E. Abel Chief Accounting Officer
(Principal Accounting Officer) June 30, 1997
/s/ Craig M. Hammett
Craig M. Hammett Vice President and Chief
Financial Officer (Principal
Financial Officer) June 30, 1997
/s/ Edgar D. Aronson*
Edgar D. Aronson Director June 30, 1997
/s/ Judith E. Ayres*
Judith E. Ayres Director June 30, 1997
/s/ James Q. Crowe*
James Q. Crowe Director June 30, 1997
/s/ Richard K. Davidson*
Richard K. Davidson Director June 30, 1997
/s/ David H. Dewhurst*
David H. Dewhurst Director June 30, 1997
/s/ Richard R. Jaros*
Richard R. Jaros Director June 30, 1997
/s/ David R. Morris*
David R. Morris Director June 30, 1997
/s/ Bernard W. Reznicek*
Bernard W. Reznicek Director June 30, 1997
/s/ Walter Scott, Jr.*
Walter Scott, Jr. Director June 30, 1997
/s/ John R. Shiner*
John R. Shiner Director June 30, 1997
Neville G. Trotter Director June 30, 1997
/s/ David E. Wit*
David E. Wit Director June 30, 1997
/s/ Steven A. McArthur
* By Steven A. McArthur, Attorney-In-Fact June 30, 1997
Pursuant to the requirements of the Securities Act, the administrator of the
Money Purchase Plan has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of
Omaha, State of Nebraska, on June 30, 1997.
CalEnergy Company, Inc.
Money Purchase Pension Plan
By: /s/ Edward F. Bazemore
Edward F. Bazemore
Vice President
Exhibit 5
June 30, 1997
CalEnergy Company, Inc.
302 South 36 Street, Suite 400
Omaha, NE 68131
Attention: Board of Directors
Ladies and Gentlemen:
In my capacity as Senior Vice President and General Counsel of CalEnergy
Company, Inc. (the "Company"), I have examined the Company's Registration
Statement on Form S-8 to be filed with the Securities and Exchange Commission
on June 30, 1997 in connection with the registration under the Securities Act
of 1933, as amended, of 3,089,165 shares of the Company's Common Stock,
$0.0675 par value (the "Stock"), for use in connection with the CalEnergy
Company Inc. 1996 Stock Option Plan and the CalEnergy Company, Inc. Money
Purchase Pension Plan (the "Plans").
As the Company's counsel, I have examined the registration statement and other
documents relating to the issuance of the 3,089,165 shares (the "Shares"). In
addition, I have examined and relied upon originals or copies of documents,
records, certificates (including certificates of public officials and of
officers of the Company) and other instruments, have made such inquiries as to
questions of fact of representatives of the Company and relied to the extent I
deemed appropriate upon the responses to such inquiries and have made such
examinations of law as in my judgment are necessary or appropriate to enable
me to render the opinion expressed below. In all such examinations, I have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to me as originals and the conformity with the originals of all
documents submitted to me as copies. 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 and
other representatives of the Company and others. The opinion below is
restricted to matters controlled by the federal laws of the United States and
the General Corporation Law of the State of Delaware.
Based on the subject to the foregoing, it is my opinion that (i) the Company
has been duly incorporated and is validly existing under the laws of the State
of Delaware, and (ii) to the extent that the operation of the Plans result in
the issuance of stock, such shares of stock will be, when issued in accordance
with the terms of such Plans, legally and validly issued, fully paid and non-
assessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to me in the Registration
Statement and any amendments thereto. In giving my consent, I do not admit
that I am in the category of persons whose consent is required under Section 7
of the Securities Act of 1933 nor the rules and regulations of the Commission
thereunder.
June 30, 1997
Page 2
The opinion is delivered in my capacity as Senior Vice President and General
Counsel of the Company, addresses matters only as of the date hereof and is
solely for your benefit and may not be relied upon by you for any purpose
other than in connection with the Company's registration statement and may not
be relied upon by any other person or provided to any other party without my
prior written consent.
Very truly yours,
/s/ Steven A. McArthur
Steven A. McArthur
Senior Vice President and General Counsel
Exhibit 15.1
June 30, 1997
CalEnergy Company, Inc.
302 South 36th Street - Suite 400
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. and subsidiaries for the
periods ended March 31, 1997 and 1996, as indicated in our report dated April
29, 1997; because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is being
used in this Registration Statement.
We are also aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is 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.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
CalEnergy Company, Inc. on Form S-8 of our report dated January 31, 1997
(February 27, 1997 as to Notes 6 and 20 to the consolidated financial
statements), appearing in and incorporated by reference in the Annual Report
on Form 10-K of CalEnergy Company, Inc. for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Omaha, Nebraska
June 30, 1997
POWER OF ATTORNEY
The Undersigned, a member of the Board of Directors CalEnergy Company,
Inc., a Delaware corporation (the "Company"), hereby constitutes and appoints
Steven A. McArthur, John G. Sylvia and Douglas L. Anderson and each of them,
as his/her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for and in his/her stead, in any and all
capacities, to sign on his/her behalf any and all Registration Statements
filed by the Company on Form S-8 as they may be amended from time to time and
to execute any amendments thereto (including post-effective amendments) or
certificates that may be required in connection with such Registration
Statement, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange
Commission, with the full power and authority to do and perform each and every
act and thing necessary or advisable to all intents and purposes as he/she
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his/her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
/s/ David L. Sokol Director
David L. Sokol
/s/ Edgar D. Aronson Director
Edgar D. Aronson
/s/ Judith E. Ayres Director
Judith E. Ayres
/s/ James Q. Crowe Director
James Q. Crowe
/s/ Richard K. Davidson Director
Richard K. Davidson
/s/ David H. Dewhurst Director
David H. Dewhurst
/s/ Richard J. Jaros Director
Richard J. Jaros
/s/ David Morris Director
David Morris
/s/ Walter Scott, Jr. Director
Walter Scott, Jr.
/s/ Bernard W. Reznicek Director
Bernard W. Reznicek
/s/ John R. Shiner Director
John R. Shiner
/s/ David E. Wit Director
David E. Wit
The treasury shares being registered with respect to the Directors Plan and
the Non-Qualified Employee Stock Options will not be newly issued securities.
