Case No. CV94-06432
Dept. No. 5
IN THE SECOND JUDICIAL DISTRICT COURT FOR THE STATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
REW HOLT, an individual
and shareholder of
Magma Power Company,
Plaintiff,
vs. ORDER GRANTING MOTION FOR ACCESS
TO SHAREHOLDER INFORMATION
MAGMA POWER COMPANY, a
Nevada corporation
Defendant.
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Plaintiff having filed its Complaint to Compel Access to Shareholder List
Pursuant to NRS 78.105(3), and Plaintiff having filed its Motion to Compel
Defendant to Provide Access to Shareholder Information, and supporting
affidavits and memoranda, and the Court having entered an Order on October 14,
1994, providing that briefing on the Motion to Compel proceed on an expedited
schedule, and Defendant having filed its Memorandum of Opposition to the Motion
to Compel, and Plaintiff having filed its Reply to the Memorandum in Opposition,
in accordance with the schedule ordered by the Court, and the Motion to Compel
having been submitted to the Court for decision pursuant to the Court's October
14, 1994 Order, and good cause appearing therefor,
IT IS ORDERED:
1. That Plaintiff's Motion To Compel Defendant To Provide Access To
Shareholder Information is granted, the Court sending as reasons for such:
(a) Plaintiff is a shareholder of Defendant and has been for more than
six months prior to September 27, 1994;
(b) On October 5, 1994, Plaintiff made a written request of Defendant
pursuant to NRS 78.105(3) for access to the shareholder information
hereinafter ordered to be provided;
(c) On October 7, 1994, Defendant requested that Plaintiff provide an
affidavit authorized by NRS 78.105(4) and Plaintiff immediately provided an
affidavit complying with the requirements of NRS 78.105(4);
(d) On October 12, 1994, Defendant refused Plaintiff's entire request
for shareholder information;
(e) California Energy Company, Inc. ("California Energy") has commenced
a tender offer for a majority of the common stock of Defendant, to be
followed by a proposed merger;
(f) Plaintiff believes that acceptance of the tender offer is in the
best interests of the Defendant, and of himself, as a shareholder of the
Defendant;
(g) Plaintiff wishes to provide the shareholder information to
california Energy Company, Inc. so that California Energy Company, Inc. may
solicit Defendant's shareholders for their votes in various ways in support
of the tender offer and may otherwise communicate with Defendant's
shareholders in respect to the tender offer of California Energy Company,
Inc.;
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(h) It would be in the proper business interest of the Plaintiff to
communicate, and the shareholders of Defendant to receive, information from
California Energy Company, Inc. respecting the tender offer and
solicitations in support thereof, and to otherwise consider and act upon
the tender offer and such solicitations;
(i) The purpose for which Plaintiff seeks the shareholder information
is a proper purpose;
(j) Plaintiff is entitled to the shareholder information and their is
no reason to delay providing such information, the tender offer and the
practices of the market requiring prompt action in respect to the tender
offer;
(k) Plaintiff does not have an adequate remedy at law;
(l) The public interest will be served in requiring the furnishing of
the shareholder information to Defendant's shareholders.
2. Defendant shall forthwith and without delay:
i. Advise counsel for Plaintiff where the following described
shareholder information is available; and
ii. Permit Plaintiff and the agents and attorneys of Plaintiff to
inspect and to copy:
(a) a complete record or list of the Company's shareholders, certified
by its transfer agent, showing the names and addresses of each shareholder
and the member and class of shares of stock registered in the name of each
such shareholder, as of the most recent data available;
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(b) a complete list of the participants in any employee benefit plan
of the Company that owns the Company's shares, including the name and
address of each participant and the number and class of shares owned by the
participant, and a description of the voting and dispositive rights of the
participants and/or any administrator or trustee of each such employee
benefit plan;
(c) a magnetic computer tape list of the Company's shareholders
showing the names and addresses of each shareholder and number and class of
shares registered in the name of each such shareholder as of the most
recent data available, such computer processing data as is necessary for
the undersigned to make use of such magnetic computer tape, and a printout
of such magnetic computer tape for verification purposes;
(d) a magnetic computer tape list of the participants in any employee
benefit plan of the Company that owns the Company's shares, including the
name and address of each participant and the number and class of shares
owned by the participant as of the most recent date available, such
computer processing data as is necessary for the undersigned to make use of
such magnetic computer tape, and a printout of such magnetic computer tape
for verification purposes;
(e) all daily transfer sheets showing changes in the list of the
Company's shareholders referred to in paragraph (a) above, which are in or
come into possession of the Company or its transfer agent from the data of
such list to such date as California Energy communicate or withdraws its
proposal to purchase
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Defendant (the "Proposal Expiry Data"), which daily transfer sheets should
be provided on a weekly basis;
(f) all information in or which comes into the Company's possession or
which can reasonably be obtained from brokers, dealers, banks, clearing
agencies or voting trustees or their nominees concerning the names,
addresses and number of shares held by the participating brokers and banks
named in the individual nominee of Cede & Co., Kray & Co., Philadep, DLJ
and any other or similar nominees;
(g) all information in or which comes into the Company's possession or
which can reasonably be obtained from brokers, dealers, banks, clearing
agencies or voting trustees relating to the names of the non-objecting
beneficial owners of the Company's stock ("NOBOS") in the format of a
printout in descending order balance;
(h) a stop list or stop lists relating to any shares of stock of the
Company as of the date of the list referred to in paragraph (a) above; and
(i) all information requested in paragraphs (a), (b), (c), (d), (f)
and (g) as of the Record Data (as the same may be determined) of that
certain request solicitation of the Company's shareholders, preliminary
materials as to which California Energy has filed with the Securities and
Exchange Commission;
(j) all modifications or additions to or deletions from any and all
records referred to in paragraphs (a) through (i) above from the data of
the list referred to in paragraph (a) above to the Proposal Expiry Data (as
defined herein) as such
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modifications, additions or deletions become available to the Company or
its agents or representatives.
3. Plaintiff shall, after the foregoing shareholder information has been
fully supplied, pay Defendant the reasonable costs incurred by Defendant in
furnishing such shareholder information. Any dispute in this respect shall be
resolved by the Court upon motion of either party made after the shareholder
information has been fully supplied.
4. This is a final order and judgment, granting final relief on the basis
of plaintiff's right to the relief set forth herein, pursuant to NRS 78.105.
Dated this 25th day of October, 1994
Mark Handelman
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District Judge
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