<PAGE>
As filed with the Securities and Exchange Commission on August 30, 1996
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DESTEC ENERGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-2875546
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2500 CITYWEST BOULEVARD, SUITE 150
HOUSTON, TEXAS 77042
(Address of Principal Executive Offices Including Zip Code)
DESTEC ENERGY, INC. EMPLOYEES' STOCK PURCHASE PLAN
(Full title of the Plan)
MARIAN M. DAVENPORT With a copy to:
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY JOHN R. BRANTLEY
DESTEC ENERGY, INC. BRACEWELL & PATTERSON, L.L.P.
2500 CITYWEST BOULEVARD, SUITE 150 711 LOUISIANA STREET, SUITE 2900
HOUSTON, TEXAS 77042 HOUSTON, TEXAS 77002-2781
(713) 735-4000 (713) 223-2900
(Name, address and telephone
number of agent for service)
<TABLE>
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CALCULATION OF REGISTRATION FEE
=======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares $13.4375 $6,718,750 $2,317
$0.01 par value
=======================================================================================================================
</TABLE>
(1) The proposed maximum offering price per share and the proposed maximum
aggregate offering price are (a) calculated, pursuant to Rule 457(h)(1), by
multiplying the number of shares to be registered by the average of the
high and low prices of a share of Common Stock, as reported on The New York
Stock Exchange, Inc., on August 27, 1996, which was $13.4375, and (b)
provided herein for the sole purpose of determining the registration fee.
(2) This Registration Statement shall also include any additional shares of
Common Stock issuable pursuant to the antidilution provisions of the Plan.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The information required by Items 1 and 2 of Part I of Form S-8 is omitted
from this Registration Statement in accordance with the Note to Part 1 of Form
S-8 and Rule 428 promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Destec Energy, Inc., a Delaware
corporation (the "Company"), (Commission File No. 1-10592) with the Securities
and Exchange Commission (the "Commission") are incorporated by reference into
this Registration Statement as of their respective dates:
1. Annual Report on Form 10-K for the year ended December 31, 1995, as
amended by the Company's Form 10-K/A filed June 14, 1996;
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996; and
3. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, dated March 13, 1991.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment hereto which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing such documents. Any statement contained herein or in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Certificate of Incorporation and
By-laws incorporate substantially the provisions of the Delaware General
Corporation Law ("DGCL") providing for indemnification of directors and officers
of the Company against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
officer or director of the Company if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company may also
provide indemnification, under certain circumstancs, for certain employees or
agents who were serving at the request of the Company as a director, officer,
partner, member, employee or agent of another corporation, partnership, joint
venture, trust, committee or other enterprise.
As permitted by Section 102 of the DGCL, the Company's Amended and
Restated Certificate of Incorporation, as amended, contains provisions
eliminating a director's personal liability for monetary damages to the Company
and its stockholders arising from a breach of a director's fiduciary duty except
for liability (a) for any breach of the director's duty of loyalty to the
Company or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL, or (d) for any transaction from which the director
derived an improper personal benefit.
The Company has purchased liability insurance policies covering its
directors and officers.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference from Exhibit 3.1 to the Company's
Registration Statement on Form S-1 Registration No. 33-36086).
4.2 By-laws of the Company (incorporated by reference from Exhibit 3.2 of
the Company's Annual Report on Form 10-K for the year ended December 31,
1995).
4.3* Destec Energy, Inc. Employees' Stock Purchase Plan.
5* Opinion and Consent of Bracewell & Patterson, L.L.P. as to the validity
of the Common Stock registered hereunder.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Bracewell & Patterson, L.L.P. (included in the opinion filed
as Exhibit 5 hereto).
II-2
<PAGE>
24* Powers of Attorney.
--------
* Filed herewith.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of 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 this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs
(1)(i) and (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 by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment should 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) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 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.
II-3
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on the 30th day of
August, 1996.
DESTEC ENERGY, INC.
(Registrant)
By: /s/ Charles F. Goff
------------------------------------------
Charles F. Goff
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment has been signed by the following persons in
the capacities indicated and on the 30th day of August, 1996.
Signature Title
--------- -----
/s/ Charles F. Goff Chairman of the Board and Chief Executive Officer
---------------------- (Principal Executive Officer)
Charles F. Goff
/s/ Keys A. Curry, Jr. President and Chief Operating Officer and
---------------------- Director
Key a. Curry, Jr.
/s/ Enrique M. Larroucau Senior Vice President, Chief Financial Officer
------------------------ and Treasurer
Enrique M. Larroucau (Principal Financial Officer)
/s/ Craig E. Hess* Vice President and Controller
----------------- (Principal Accounting Officer)
Craig E. Hess
/s/ Cassandra C. Carr* Director
----------------------
Cassandra C. Carr
/s/ Jack E. Earnest* Director
--------------------
Jack E. Earnest
/s/ Jack G. Helfenstein* Director
-----------------------
Jack G. Helfenstein
<PAGE>
Signature Title
--------- -----
/s/ Robert W. Gallant* Director
----------------------
Robert W. Gallant
/s/ Michael D. Parker* Director
----------------------
Michael D. Parker
/s/ J. Pedro Reinhard* Director
----------------------
J. Pedro Reinhard
/s/ Joel V. Staff* Director
------------------
Joel V. Staff
*By: /s/ Charles F. Goff
------------------------
Charles F. Goff
(Attorney-in-fact for persons indicated)
<PAGE>
INDEX TO EXHIBITS
<TABLE>
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Sequentially
Numbered
Page
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference from Exhibit 3.1 to the
Company's Registration Statement on Form S-1 Registration
No. 33-36086).
4.2 By-laws of the Company (incorporated by reference from
Exhibit 3.2 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
4.3* Destec Energy, Inc. Employees' Stock Purchase Plan.
5* Opinion and Consent of Bracewell & Patterson, L.L.P. as to the
validity of the Common Stock registered hereunder.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Bracewell & Patterson, L.L.P. (included in the opinion
filed as Exhibit 5 hereto).
24* Powers of Attorney.
- --------
* Filed herewith.
</TABLE>
<PAGE>
EXHIBIT 4.3
DESTEC ENERGY, INC.
EMPLOYEES' STOCK PURCHASE PLAN
The purpose of the Destec Energy, Inc. (the "Company") Employees'
Stock Purchase Plan (the "Plan") is to provide eligible employees with an
opportunity to purchase shares of common stock, par value $.01 ("Common Stock"),
of the Company at a discount from the prevailing stock market price through a
payroll deduction system.
1. IMPLEMENTATION OF PLAN. The Board of Directors of the Company
(the "Board") may, pursuant to the terms hereof, make available to all eligible
employees the opportunity to purchase shares of Common Stock at a discount
through a payroll deduction system. Each year the Board shall determine whether
it will make the Plan available to eligible employees (a "Plan Year") and will
offer Common Stock for subscription by all eligible employees pursuant to the
terms of this Plan.
2. ELIGIBLE EMPLOYEES. The Plan will be made available to employees
who are full-time U.S. or non-U.S. employees whose normal work week is twenty
hours or more and who are on the payroll of the Company or any corporation or
partnership in which the Company owns directly or indirectly ninety percent or
more of the voting power of such entity. Employees under majority age may
subscribe under the Plan if they meet the other requirements outlined above. An
eligible employee who accepts an offer of subscription for shares of Common
Stock under the Plan shall be referred to herein as a "Subscriber."
3. ADMINISTRATION AND INTERPRETATION. The Plan shall become
effective as of the date of its adoption by resolution of the Board and shall
remain in effect thereafter, unless terminated by the Company. Deloitte &
Touche, L.L.P., or any successor determined by the Vice President of Human
Resources, will administer the Plan ("Third Party Plan Administrator") with the
assistance of the Vice President of Human Resources and payroll personnel of the
Company. The Vice President of Human Resources shall supervise the
administration and enforcement of the Plan according to its terms and shall have
all powers necessary to accomplish these purposes and discharge the duties
imposed hereby, including, but not limited to, the power to (i) construe and
interpret the Plan, (ii) determine all questions of eligibility, and (iii)
compute the amount and determine the manner and time of payment of all benefits
under the Plan. The Vice President of Human Resources' (or his or her
designee's) interpretation of any provision of the Plan will be final and
binding upon all parties concerned unless otherwise determined by the Board.
4. STOCK SUBJECT TO PLAN. There is hereby established a Stock
Purchase Plan Reserve (the "Reserve"), to which shall be allocated 500,000
shares of Common Stock. Upon the sale of shares of Common Stock pursuant to
this Plan, the Reserve shall be reduced by the number of shares so sold. Sales
hereunder may be made from authorized but unissued shares or from shares
reacquired by the Company.
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5. PARTICIPATION AND DURATION OF THE OFFER. Participation in the
Plan is completely voluntary. In any Plan Year, the Board shall advise
eligible employees in writing of the terms of the offer of subscription,
including the total number of shares of Common Stock available during the Plan
Year, the purchase price of the shares, any other terms, conditions and
restrictions relating thereto, and that such employee shall have a minimum of
twenty (20) days from the date of the writing to accept such offer of
subscription in the manner set forth in the offer. The Board may, in the
exercise of its discretion, extend the term of the offer of subscription.
6. THE PURCHASE PRICE. The purchase price of the shares of Common
Stock being offered under the Plan shall be determined by the resolution of the
Board designating a Plan Year and will be based on a discount from the market
price for the Common Stock over a ten day period in the month immediately
preceding the designation of the Plan Year (the "Plan Price"). In each Plan
Year, the Board shall also designate a date for the determination of the Market
Price for the Common Stock (the "Market Price Date"). The Market Price shall be
the average of the high and low trading prices of the Company's Common Stock as
reported in The Wall Street Journal on the Market Price Date. If on the Market
Price Date, the Market Price is less than the Plan Price, the purchase price to
Subscribers under subscriptions still in effect under the Plan at the Plan
Completion Date, as defined below, shall be the Market Price rather than the
Plan Price. In that event, any amount by which the total withheld from the pay
of each Subscriber still participating in the Plan exceeds the total Market
Price of the shares for which his or her subscription is then in effect, shall
be refunded to the Subscriber.
7. NUMBER OF SHARES WHICH AN EMPLOYEE MAY PURCHASE. The Board may
set a minimum subscription which will be accepted for purchase of shares of
Common Stock. No employee may enter into a subscription for shares of Common
Stock having a total purchase price (based on the Plan Price) in excess of ten
percent of such employee's gross annual salary. For this purpose, "annual
salary" consists of regular base pay only and does not include any overtime pay,
cash awards or award and option plan compensation. The Board shall set the date
for determination of any eligible employee's annual salary and the size of an
eligible employee's permissible subscription in the Plan Year.
8. PRORATION IN THE EVENT OF OVERSUBSCRIPTION. The number of shares
of Common Stock which any individual employee may purchase pursuant to the Plan
in any Plan Year may be reduced in the unlikely event that the aggregate number
of shares that are purchased by all Subscribers in the Plan Year exceeds the
number of shares reserved by the Board for purposes of the Plan during a Plan
Year. Such reductions, if required, will be accomplished by prorating the
shares available for such Plan Year among the subscriptions received.
2
<PAGE>
9. METHOD OF PAYMENT.
(A) PAYROLL DEDUCTIONS. Subject to a Subscriber's right to
prepayment as described in Paragraph 10 below, subscriptions will be
payable by means of payroll deductions on an after-tax basis only. No
Subscriber may satisfy his or her subscription by the payment of a "lump
sum" of cash at the commencement of any Plan Year.
During any Plan Year, the Board shall designate the dates on
which payroll deductions pursuant to the Plan will begin ("Plan Year
Commencement Date") and end ("Plan Year Completion Date"). Each Subscriber
will authorize such payroll deductions during the applicable period by
executing an authorization form in the time and manner determined by the
Company, and such amounts will be deducted in conformity with the Company's
payroll deduction schedule. The amount of deduction necessary for the
purchase of Common Stock by each Subscriber shall be determined by the
Third Party Plan Administrator. If a Subscriber misses any payment because
of being temporarily off the payroll and does not make up such payments, he
or she shall be required to make, on or before the Plan Year Completion
Date, one of the elections listed under Paragraph 12 below. Otherwise the
Company shall deliver the shares of Common Stock paid for up to that time
(based on the purchase price as set forth in Paragraph 6) and refund in
cash any excess remaining out of the amount deducted.
(B) PAYMENT TERMS APPLICABLE TO EMPLOYEES OUTSIDE OF THE UNITED
STATES. Subscribers residing outside the United States during any portion
of a Plan Year shall pay for their subscriptions by payroll deduction in
the currency in which they are paid. On the first day of each calendar
month during a Plan Year payment period, the Human Resources Department of
the Company (the "Human Resources Department") will calculate a new
conversion rate for converting the applicable currencies to U.S. dollars
based on the prevailing rates of exchange. Such conversion rates will be
used to determine the amount deducted from Subscribers' pay that month,
sufficient for their individual subscriptions based on the Plan Price. If
a subscription is reduced or canceled, or if the applicable purchase price
is the Market Price on the Plan Year Completion Date, any refund due the
Subscriber shall be paid in the currency in which the Subscriber is paid,
based on the then current conversion rate.
10. PREPAYMENT. The Board during a Plan Year shall set a date on and
after which a Subscriber may prepay, without penalty, the entire balance of his
or her subscription amount (the "Prepayment Date"). No prepayments will be
accepted before the Prepayment Date. Any such prepayment shall be based upon the
Plan Price, shall be final and shall not thereafter benefit from any terms of
the Plan or any Plan Year with respect to the Market Price.
11. CANCELLATION OR REDUCTION OF RIGHT TO PURCHASE. At any time before
final payment for shares of the Common Stock is completed (by payroll deduction,
prepayment or both) any
3
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Subscriber, other than an employee who is deemed to be an affiliate of the
Company under Paragraph 16, may cancel his or her subscription for a Plan Year
in its entirety or, once and once only, reduce (but not increase) such
subscription to a lesser number of shares of Common Stock which shall not be
less than ten shares. If a Subscriber cancels his or her subscription in any
Plan Year in its entirety, he or she shall receive a cash refund of the entire
amount deducted for his or her subscription up to the time of cancellation. If
a Subscriber reduces his or her subscription in a Plan Year and if the sum of
prior deductions equals or exceeds the total purchase price (based on the Plan
Price) of the reduced subscription, such Subscriber may instruct the Third Party
Plan Administrator to reduce the number of shares of Common Stock for which he
or she has subscribed and to refund any excess of the prior deductions over the
purchase price of the reduced subscription. If the amount of prior deductions
is less than the total purchase price (based on the Plan Price) of the reduced
subscription, the Subscriber may:
(1) beginning on the Prepayment Date, immediately pay the
new unpaid balance and instruct the Third Party Plan
Administrator to issue the reduced number of shares of Common
Stock;
(2) leave the amount previously deducted with the Company
and instruct the Third Party Plan Administrator to reduce future
deductions in proportion to the subscription reduction; or
(3) instruct the Third Party Plan Administrator to refund
deductions previously made for the number of shares by which the
subscription is reduced and to reduce the amount of future
deductions to that necessary to pay for the reduced subscription.
All elections concerning the cancellation or reduction of subscriptions in a
Plan Year shall be made on appropriate forms to be provided by the Third Party
Plan Administrator. Any cancellation or reduction of a subscription or any
prepayment in connection with a reduction of a subscription shall be final and
shall not thereafter benefit from any terms of the Plan or any Plan Year with
respect to the Market Price. All repayments and cash refunds will be paid
without interest.
12. RETIREMENT, LONG-TERM DISABILITY, ENTRY INTO MILITARY SERVICE OR
DEATH. If during the administration of any Plan Year, a Subscriber retires under
the Company's retirement plan, becomes a participant of a long-term disability
plan maintained by the Company, enters military service or dies, such Subscriber
or his or her executor, administrator or heirs, as the case may be, shall have
the following four options:
(1) to receive delivery of the shares of Common Stock paid
for up to that time (based on the Plan Price) if ten or more
shares have been paid for, and to receive in cash any excess
remaining out of the amount deducted;
4
<PAGE>
(2) to receive a lesser number of shares (at least ten shares) of
Common Stock (based on the Plan Price) and a refund of the balance
in cash;
(3) to receive a cash refund of the entire amount previously
deducted; or
(4) to pay up the balance of his or her subscription in full and
receive delivery of the total number of shares of Common Stock
paid for by him or her (based on the Plan Price).
Such options by a retired or disabled Subscriber, a Subscriber who has entered
the military service, or on behalf of a deceased Subscriber must be exercised
not later than the Plan Year Completion Date. In the event no election is made
by the Plan Year Completion Date, the Company shall deliver the shares of Common
Stock paid for up to that time (based on the purchase price as set forth in
Paragraph 6) and refund in cash any excess amount that was deducted. All
elections with respect to the options available to Subscribers under the Plan
who retire, become disabled or who enter the military service or on behalf of
deceased Subscribers shall be made on appropriate forms, to be provided by the
Third Party Plan Administrator. Any prepayment shall be final and shall not
thereafter benefit from any terms of the Plan with respect to the Market Price.
13. SEPARATION FROM EMPLOYMENT. If a Subscriber for shares of Common
Stock during a Plan Year leaves the employment of the Company or a Company
subsidiary (except in the case of transfer from one of such companies to another
in which case there will be no change, or except in cases of retirement, long-
term disability, entry into military service or death, which latter four cases
are governed by Paragraph 12, or except if such termination of employment is the
result of the Company closing a facility, which case is governed by Paragraph
such departing Subscriber shall at that time have the first three options set
forth in Paragraph 12. If such departing Subscriber leaves such employment on
or after the Prepayment Date, option 4 in Paragraph 12 is also available.
A departing Subscriber must elect one of the available options not later than
the day prior to the last day of such departing Subscriber's employment. In the
event no election is made by a departing Subscriber's last day of employment,
the Company shall treat such failure as an election to exercise option 3 above
and shall refund the entire amount accordingly. All elections with respect to
the foregoing options upon termination of employment shall be made on
appropriate forms to be provided by the Third Party Plan Administrator. Any
prepayment shall be final and shall not thereafter benefit from any terms of the
Plan with respect to the Market Price.
14. CLOSING A FACILITY. If a Subscriber for shares of Common Stock
under the Plan has his or her employment terminated by the Company during any
Plan Year, as a result of the Company closing a facility, such Subscriber shall
have the same four options as a departing Subscriber who leaves his or her
employment due to retirement, long-term disability, entry into military service
or
5
<PAGE>
death, as set out in Paragraph 12, except that the Subscriber shall have a
period of 30 days prior to his or her termination of employment to elect an
option.
15. CHANGE IN CONTROL.
(A) EFFECT OF CHANGE IN CONTROL. Upon the occurrence of a Change
in Control, unless the Board determines otherwise, all payroll
deductions under the Plan will cease, and each Subscriber in the
Plan will have the opportunity to elect in writing, within 30
days following the Change in Control Date, one of the four
options specified in Section 12 of the Plan. If no election is
made by a Subscriber within such 30-day period, option 3 of
Section 12 shall apply. For purposes of option 4, any additional
payment required from the Subscriber shall be made by no later
than the end of such 30-day period.
(B) DEFINITIONS. "Change in Control" shall mean a change in
control of the Company of a nature that would be required to be
reported in response to Item 14 of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), whether or not the Company is then subject
to such reporting requirement; provided; however, without
limitation, that a Change in Control shall be deemed to occur if:
(i) with the exception of The Dow Chemical Company, any
individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity or person, or any
syndicate or group deemed to be a person under Section 14(d)(2)
of the Exchange Act, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 of the General Rules and Regulations under
the Exchange Act), directly or indirectly, of securities of the
Company representing 20 percent or more of the combined voting
power of the Company's then outstanding securities entitled to
vote in the election of directors of the Company;
(ii) during any period of two consecutive years (not
including any period prior to the execution of this Plan)
individuals who at the beginning of such period constituted the
Board and any new directors, whose election by the Board or
nomination for election by the Company's stockholders was
approved by a vote of at least three quarters of the directors
then still in office who either were directors at the beginning
of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority thereof;
(iii) there occurs a reorganization, merger, consolidation
or other corporate transaction involving the Company (a
"Transaction"), in each case, with
6
<PAGE>
respect to which the stockholders of the Company immediately
prior to such Transaction do not, immediately after the
Transaction, own more than 50% of the combined voting power of
the Company or other corporation resulting from such Transaction;
or
(iv) all or substantially all of the assets of the Company
are sold, liquidated or distributed.
"Change in Control Date" shall mean the earliest of (i) the date on which a
Change in Control occurs, (ii) the date on which the Company executes an
agreement, the consummation of which would result in the occurrence of a Change
in Control, and (iii) the date the Board approves a transaction or series of
transactions, the consummation of which would result in a Change in Control.
16. EMPLOYEES DEEMED "AFFILIATES" OF THE COMPANY. Under the Rules of
the Securities and Exchange Commission, the term "affiliates" includes
directors, officers and substantial stockholders of the Company. As
participation in the Plan in any Plan Year is limited to full-time employees of
the Company, the term "affiliates" refers to those employee officers of the
Company who are subject to the reporting requirements of Section 16 of the
Exchange Act.
Subscriptions during a Plan Year by those employees who are "affiliates" of
the Company will be deemed to be irrevocable elections to participate in the
Plan during the Plan Year. Other than the circumstances described in Sections
12 and 13, or in the event of a Change in Control, such employees may not reduce
or prepay their subscriptions after the Prepayment Date but must allow for their
subscribed for shares to be paid for by payroll deduction over the entire term
of the Plan Year.
17. ISSUANCE OF STOCK CERTIFICATES. After a subscription under the
Plan is fully paid (or, at the Subscriber's option, upon prepayment, or
reduction and prepayment, of his or her subscription), the Subscriber will
receive a certificate for the number of shares of Common Stock for which he or
she has paid and shall then become a stockholder and have all the rights
incident thereto, including the right to such future dividends as may be from
time to time declared by the Board. No certificate shall be issued for less than
ten shares, and not more than one certificate shall be issued pursuant to any
one subscription. An election to receive such delivery shall be irrevocable.
Before the certificate is issued, the Subscriber will not be entitled to any
dividends on Common Stock subscribed for under the Plan, and he or she will not
receive any interest on subscription payments.
18. ASSIGNMENT. No eligible employee may assign his or her right to
subscribe to any other person, and no Subscriber may assign his or her
subscription to any other person. Any attempt to do so will provide cause for
the Vice President of Human Resources on behalf of the Company to treat the
action as if it were a withdrawal from the Plan for the Plan Year. After a stock
certificate has been issued, such certificate may be assigned the same as any
other stock certificate.
7
<PAGE>
19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. If the Company
should declare a stock dividend or distribution (as distinguished from a cash
dividend) on its issued and outstanding Common Stock, or if the Common Stock is
in any manner reclassified, the price per share and the number of shares covered
by any subscription under the Plan, but unissued at the record date of such
stock dividend, distribution or reclassification, will be changed
proportionately. No fractional shares of Common Stock shall be issued pursuant
to such an adjustment, however, and the fair market value of any fractional
shares resulting from adjustments pursuant to this paragraph shall be paid in
cash to the Subscriber.
20. ADDITIONAL CONDITIONS FOR NON-U.S. SUBSCRIBERS. Additional
conditions may be incorporated in related agreements with eligible employees or
Subscribers residing in countries outside the United States, as may be required
to comply with the laws and regulations of such countries relating to the
purchase or taxation of U.S. securities.
21. AMENDMENT. The Board may amend, alter or discontinue the Plan, but
no amendment or alteration shall be made during the administration of any Plan
Year which would impair the rights of any Subscriber, without his or her
consent.
22. EMPLOYMENT RIGHTS. The Plan shall neither impose any obligation on
the Company to continue the employment of any employee, nor impose any
obligation on any employee to remain in the employ of the Company.
23. WITHHOLDING OF TAXES. The Third Party Plan Administrator, in
conjunction with the Human Resources Department, may make such provisions as it
may deem appropriate for the withholding of any taxes which it determines is
required in connection with the purchase of Common Stock under the Plan.
24. GOVERNING LAW. The Plan and rights to purchase Common Stock that
may be granted hereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Texas.
8
<PAGE>
EXHIBIT 5
[Bracewell & Patterson, L.L.P. Letterhead]
August 30, 1996
Destec Energy, Inc.
2500 CityWest Boulevard
Houston, Texas 77042
Ladies and Gentlemen:
We have represented Destec Energy, Inc. (the "Company") in connection with its
Registration Statement on Form S-8 (the "Registration Statement"), relating to
the offering of 500,000 shares (the "Shares") of the Company's common stock, par
value $0.01 per share (the "Common Stock"), pursuant to the Destec Energy, Inc.
Employees' Stock Purchase Plan (the "Plan").
In connection therewith, we have examined, among other things, the Amended and
Restated Certificate of Incorporation and the By-laws of the Company, the
corporate proceedings taken to date with respect to the authorization of the
Plan, the authorization and offer of shares of Common Stock pursuant thereto and
such other documents and records as we have deemed necessary and relevant for
purposes hereof. In addition, we have relied on certificates and telegrams of
public officials as to certain matters of fact relating to the opinion contained
herein and have made such investigations of law as we have deemed necessary and
relevant as a basis hereof. We have assumed the genuineness of all signatures,
the authenticity of all documents and records submitted to us as originals, the
conformity to authentic original documents and records of all documents and
records submitted to us as copies, and the truthfulness of all statements of
fact contained therein. Moreover, we have assumed the due authorization,
execution and delivery of all instruments and documents by all parties thereto
other than the Company, and the legality, validity, binding effect on and
enforceability against all such parties of such instruments and documents.
Based upon the foregoing and subject to the limitations, qualifications and
assumptions set forth herein, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the issuance of
the Shares pursuant to the Plan has been duly authorized, and (subject to the
Registration Statement becoming effective and compliance with any applicable
Blue Sky laws) upon the issuance and delivery of the Shares in accordance with
the terms of the Plan against receipt by the Company of the purchase price
thereof, the Shares will be validly issued, fully paid, and nonassessable.
<PAGE>
Destec Energy, Inc.
August 30, 1996
Page 2
The opinion set forth above is limited in all respects to the laws of the State
of Texas, the General Corporation Law of the State of Delaware and the relevant
law of the United States of America, and we render no opinion with respect of
the law of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent we do not admit that we are
experts with respect to any part of the Registration Statement, including this
exhibit, within the meaning of the term "expert" as used in the Securities Act
of 1933, as amended, or the rules and regulations of the Securities and Exchange
Commission issued thereunder.
Very truly yours,
/s/ Bracewell & Patterson, L.L.P.
Bracewell & Patterson, L.L.P.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Destec Energy, Inc., of our report dated February 7, 1996, except
for note 18, which the date is February 28, 1996, appearing in the Annual Report
on Form 10-K and 10-K/A for the year ended December 31, 1995 of Destec Energy,
Inc.
DELOITTE & TOUCHE LLP
Houston, Texas
August 30, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Cassandra C. Carr
---------------------
Cassandra C. Carr
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Jack E. Earnest
-------------------
Jack E. Earnest
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Jack G. Helfenstein
-----------------------
Jack G. Helfenstein
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Robert W. Gallant
---------------------
Robert W. Gallant
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Michael D. Parker
---------------------
Michael D. Parker
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ J. Pedro Reinhard
---------------------
J. Pedro Reinhard
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Joel V. Staff
-----------------
Joel V. Staff
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Enrique M. Larroucau
------------------------
Enrique M. Larroucau
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff and Keys A. Curry, Jr., with full power to each of
them to act without the other, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorneys-in-fact and agents,
or each of them, or their or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as the undersigned might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or each of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 19th day of August, 1996.
/s/ Craig E. Hess
------------------------
Craig E. Hess
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Keys A. Curry, Jr., the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorney-in-fact and agent, or
his substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes as
the undersigned might or could do if personally present, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
/s/ Charles F. Goff
-------------------
Charles F. Goff
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of
Destec Energy, Inc., a Delaware corporation (the "Company"), hereby constitutes
and appoints Charles F. Goff, the undersigned's true and lawful attorney-in-
fact and agent, with full power of substitution and resubstitution, for the
undersigned and in the undersigned's name, place and stead, in any and all
capacities (until revoked in writing), to sign, execute and file with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 (or other appropriate form), together with all amendments thereto, with all
exhibits and any and all documents required to be filed with respect thereto
with any regulatory authority, granting unto said attorney-in-fact and agent, or
his substitute or substitutes, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes as
the undersigned might or could do if personally present, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 13th day of August, 1996.
Keys A. Curry, Jr.
------------------
Keys A. Curry, Jr.
