As filed with the Securities and Exchange Commission on August , 1996
Registration No. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DESTEC ENERGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 38-2875546
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
2500 CITYWEST BOULEVARD, SUITE 150
HOUSTON TX 77042
(713) 735-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDINGAREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MARIAN M. DAVENPORT Copy to:
VICE PRESIDENT, GENERAL COUNSEL JOHN R. BRANTLEY
AND SECRETARY 2500 CITYWEST BRACEWELL & PATTERSON, L.L.P.
BOULEVARD, SUITE 150 711 LOUISIANA STREET, SUITE 2900
HOUSTON TX 77042 HOUSTON TX 77002-2781
(713) 735-4000
(NAME, ADDRESS, INCLUDING ZIP
CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR
SERVICE)
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable 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. [_]
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. [_]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE OFFERING PRICE OFFERING PRICE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) (1) FEE(1)
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Common Stock, par value
$.01 per share......... 177,287 shares $8.15 $1,444,889 $499
37,571 shares 9.44 354,670 122
84,205 shares 11.85 997,829 344
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Total: $965
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(1) Calculated pursuant to Rule 457(j).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 29, 1996
Prospectus
DESTEC ENERGY, INC.
299,063 SHARES
OF COMMON STOCK, $.01 PAR VALUE
RESCISSION OFFER
Destec Energy, Inc. (the "Company") offers, upon the terms and conditions set
forth in this Prospectus, to rescind the sales of its shares of common stock,
$.01 par value per share (the "Common Stock"), pursuant to the 1993-1994 Destec
Energy, Inc. Employees' Stock Purchase Plan, the 1994-1995 Destec Energy, Inc.
Employees' Stock Purchase Plan and the 1995-1996 Destec Energy, Inc. Employees'
Stock Purchase Plan (collectively, the "Plans"), by paying the participants in
the Plans who purchased such shares (i) the consideration paid under the Plans
for such Common Stock, plus interest at the applicable rate from the date of
purchase, or (ii) in the event the participant has sold such Common Stock, the
consideration paid under the Plans for such Common Stock, less the proceeds
from the sale, plus interest at the applicable rate (the "Rescission Offer").
The Rescission Offer is being made to all participants under the Plans who
purchased Common Stock pursuant to the Plans ("Rescission Offerees"). The
Company estimates that approximately 560 participants purchased shares pursuant
to the Plans at prices of $9.44 under the 1993-1994 Plan, $8.15 under the 1994-
1995 Plan and $11.85 under the 1995-1996 Plan. The closing sales price of the
Common Stock (as reported on the Composite Tape for The New York Stock
Exchange, Inc. under the symbol "ENG") on August 28, 1996 was $13.375.
THE RESCISSION OFFER WILL EXPIRE AT 11:59 P.M.,
HOUSTON, TEXAS TIME, ON , 1996.
RESCISSION OFFEREES ARE NOT REQUIRED TO ACCEPT THE RESCISSION OFFER.
Rescission Offerees who do not accept the Rescission Offer will be deemed to
have purchased registered Common Stock under the Securities Act of 1933, as
amended (the "Securities Act"), effective as of the date of this Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
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 , 1996.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE +
+WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES +
+LAWS OF ANY SUCH JURISDICTION. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
TABLE OF CONTENTS
PAGE
----
Available Information...................................................... 2
Incorporation by Reference................................................. 3
The Company................................................................ 4
The Rescission Offer....................................................... 4
Validity of Common Stock................................................... 7
Experts.................................................................... 7
AVAILABLE INFORMATION
The Company, a Delaware corporation, is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices located at: Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Copies of such
information may be accessed through the Commission's Internet web site at
http://www.sec.gov. Such materials can also be inspected at the offices of The
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form S-
3 (together with all amendments, schedules and exhibits, referred to as the
"Registration Statement") under the Securities Act relating to the Rescission
Offer. As permitted by the rules and regulations of the Commission, this
Prospectus does not contain all of the information set forth in the
Registration Statement, of which this Prospectus is a part. For further
information with respect to the Company, the Rescission Offer and the Common
Stock, reference is made to the Registration Statement, including the exhibits,
annexes and schedules thereto, which may be inspected, without charge, at the
public reference facilities of the Commission referred to above, and copies of
which may be obtained therefrom upon payment of the Commission's customary
charges.
2
INCORPORATION BY REFERENCE
This Prospectus incorporates by reference the following documents:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, as amended by the Company's Form 10-K/A filed June 14,
1996;
(ii) the Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1996;
(iii) the Company's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1996;
(iv) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, dated March 13, 1991; and
(v) all other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the Rescission Offer.
Any statement contained in this Prospectus or in a document incorporated by
reference in this Prospectus will be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained in this
Prospectus or in any other subsequently filed document which is also
incorporated by reference in this Prospectus modifies or supersedes such
statement. Any statement so modified or superseded will not be deemed, except
as modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy
of any and all of the information that has been incorporated by reference in
this Prospectus, excluding exhibits to such documents, unless such exhibits
are specifically incorporated by reference into the documents so incorporated.
Requests for copies of such documents should be addressed to the Company at
its principal executive offices as follows: Destec Energy, Inc., 2500 CityWest
Boulevard, Suite 150, Houston, Texas 77042, Attention: Human Resources
Department (telephone: (713) 735-4365). In order to ensure timely delivery of
the documents, any such request should be made by , 1996.
NO PERSON HAS BEEN AUTHORIZED, IN CONNECTION WITH THIS OFFERING, TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION THAT IS NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED ON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE OF
SECURITIES HEREUNDER SHALL UNDER ANY CIRCUMSTANCES BE DEEMED TO IMPLY THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF
OR THAT THE INFORMATION SET FORTH HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
3
THE COMPANY
The Company, together with its subsidiaries, is one of the largest
independent producers of electricity in the world. The Company is in the
business of (i) developing, operating and managing projects which produce
electricity, thermal energy and syngas; (ii) marketing and selling
electricity, thermal energy, natural gas and lignite; and (iii) investing in
projects, entities and natural resources which support its strategic
objectives. As an independent power company, the Company has interests in
twenty-one operating facilities, the majority of which the Company operates
and manages. All of the Company's facilities, except the Company's Wabash
Project, produce and sell electric power, and the majority of these facilities
produce thermal energy, principally steam, to electric utilities and energy
intensive industries. The combined capacity of these facilities is
approximately 3,286 megawatts of electricity and over three million pounds per
hour of steam.
THE RESCISSION OFFER
Background and Reasons for the Rescission Offer
The purpose of the Plans and the Destec Energy, Inc. 1992-1993 Employees'
Stock Purchase Plan (the "1992 Plan") was to provide an opportunity for full-
time employees of the Company to participate in the ownership of the Company
through the ownership of Common Stock. From 1992 through 1996, the Company
made available to its eligible employees the opportunity to purchase shares of
Common Stock pursuant to the 1992 Plan and the Plans through a payroll
deduction system.
The 1992 Plan and the Plans were all substantially identical in features.
The Plan Price for shares of Common Stock sold under the Plans was determined
by the Stock Award Committee of the Board of Directors and was based on the
average of the high and low prices of the Common Stock during a five day
period in the month preceding implementation of the relevant Plan.
Participants were eligible to purchase shares having a total purchase price of
up to ten percent of their annual salary, as defined in the Plans. Payments
for shares of Common Stock purchased under the Plans were made through payroll
deductions, except for any permitted prepayments. Participants were able to
purchase shares of Common Stock under the Plans at the lower of (i) the Plan
Price described above or (ii) the Market Price, which was the average of the
high and low prices of the Company's Common Stock for a specified date in July
following implementation of each Plan. The sales of Common Stock under the
Plans were made exclusively to persons who were, at the time of enrollment in
the Plans, full-time employees of the Company.
The Securities Act requires that the sales of shares of Common Stock under
the Plans be registered under that Act. The Company has determined that the
Registration Statement filed in connection with the 1992 Plan referenced only
the 1992 Plan and may not have registered all shares of Common Stock sold
under the 1994-1995 and 1995-1996 Plans. Consequently, the Company believes
that although all of the sales by the Company pursuant to the Plans were made
in conformity with the respective terms of the Plans, 299,063 shares of Common
Stock purchased by participants under the Plans may not have been properly
registered under the Securities Act. The Company does not believe that
registration of the shares of Common Stock sold under the Plans was required
under the laws of any State in which such shares were sold.
If violations of the registration provisions of the Securities Act occurred,
participants who purchased Common Stock under the Plans (the Rescission
Offerees to whom this Rescission Offer is made) may have the right to have
such shares of Common Stock repurchased by the Company or, if the Rescission
Offeree has already sold such shares of Common Stock, other relief. This offer
is made to ensure compliance with the registration provisions of the
Securities Act.
For purposes of the federal securities laws, nonacceptance of the Rescission
Offer may not terminate a Rescission Offeree's right to bring a civil action
against the Company before expiration of the applicable statute of limitations
for failure to register the shares under the Securities Act. The statute of
limitations under the Securities Act for enforcement of such rights by a
stockholder is one year after the date of the sale of Common
4
Stock sold in violation of the federal registration requirements, but in no
event later than three years after the Common Stock was offered to the
participants. The Company intends to assert, among other defenses, in any
litigation initiated by a Rescission Offeree who does not accept the
Rescission Offer, that such Rescission Offeree is estopped from asserting such
claims.
The maximum estimated amount that the Company would be required to pay if
all Rescission Offerees accept the Rescission Offer is approximately $3.0
million. At June 30, 1996, the Company had approximately 55.9 million shares
of Common Stock outstanding and its stockholders' equity was approximately
$755 million.
Terms of the Rescission Offer
Pursuant to this Prospectus, the Company hereby offers:
(i) to repurchase, from each Rescission Offeree, all shares of Common Stock
held by such Rescission Offeree that were purchased pursuant to the Plans at
the price paid by such Rescission Offeree for such shares of Common Stock,
plus interest at the applicable rate, upon receipt by the Company of (A) a
properly completed and executed Acceptance of Rescission Offer in the form of
Annex I to this Prospectus and (B) certificates representing such shares of
Common Stock purchased pursuant to the Plans; and
(ii) to pay to each Rescission Offeree who purchased shares of Common Stock
pursuant to the Plans and resold such shares of Common Stock at a loss prior
to the date hereof an amount equal to the price paid by such Rescission
Offeree for such shares of Common Stock, less the proceeds from the sale of
such shares, plus interest at the applicable rate, upon receipt by the Company
of (A) a properly executed Acceptance of Rescission Offer and (B) proof
reasonably satisfactory to the Company evidencing the sale of such shares of
Common Stock at a loss.
Satisfactory proof of sale at a loss may take the form of appropriate
confirmations of sale from brokers or dealers. If the proof of sale at a loss
is not reasonably satisfactory to the Company, the Company may require
additional proof. The Company may also require that an improperly completed
Acceptance of Rescission Offer form be properly completed. Persons who accept
any portion of the Rescission Offer and who do not desire the Company to
withhold any amount for federal income taxes should complete the Form W-9
which is included with the acceptance materials and which is included with the
materials contained in Annex I.
Interest to be paid on the amounts described above will be calculated, in
the case of shares of Common Stock repurchased, for the period from the date
of purchase by the Rescission Offeree pursuant to the relevant Plan to the
date of repurchase by the Company, and in the case of reimbursement for loss,
for the period from the date of sale by the Rescission Offeree to the date of
reimbursement by the Company. The interest rate per annum to be paid is
determined by reference to state law and therefore will depend on the state of
residence of the Rescission Offerees. The interest rate for each relevant
state is reflected in Annex II.
The following table summarizes the amount per share that the Company
estimates that it will pay for shares of Common Stock purchased by the Company
in the Rescission Offer.
RESCISSION
PURCHASE OFFER PRICE
PRICE PAID INCLUDING
PURCHASE PLAN UNDER PLAN INTEREST*
------------- ---------- -----------
1993-1994 Plan..................................... $ 9.44 $10.61
1994-1995 Plan..................................... $ 8.15 $ 8.64
1995-1996 Plan .................................... $11.85 $11.85
- --------
* Assuming an interest rate of 6% and payment by the Company on August 1,
1996. The rate of interest will vary according to an offeree's state of
residence. See Annex II.
5
As of the date of this Prospectus, the market value of one share of Common
Stock exceeds the price at which any participants purchased pursuant to the
Plans and exceeds each of the Rescission Offer Prices. You are urged to obtain
current quotations of the market price of the Common Stock on The New York
Stock Exchange, Inc. (Symbol: "ENG"). As of August 28, 1996, the closing sale
price for the Common Stock on The New York Stock Exchange, Inc. (as reported
on the Composite Tape for the New York Stock Exchange) was $13.375. For the
one year period ending on such date, the sales price of the Common Stock
ranged from a high of $16.00 to a low of $11.50.
How to Accept or Decline the Rescission Offer
A RESCISSION OFFEREE IS NOT REQUIRED TO ACCEPT THE RESCISSION OFFER.
Acceptance of the Rescission Offer is optional for each Rescission Offeree who
purchased shares covered by the Rescission Offer. In the event the Rescission
Offeree elects to accept the Rescission Offer, the Rescission Offeree must
complete the "Acceptance of Rescission Offer" form, a copy of which has been
included for convenience and the form of which is attached hereto as Annex I,
and mail or return it to the Company, Attention: Human Resources Department,
K. Argueta, 2500 CityWest Boulevard, Suite 150, Houston, Texas 77042, as soon
as practicable after the date of receipt of this Prospectus, but in no event
having a postmark later than the Expiration Date of 11:59 p.m., Houston, Texas
time on , 1996.
ANY RESCISSION OFFEREE WHO FAILS TO NOTIFY THE COMPANY IN WRITING OF HIS OR
HER ACCEPTANCE OF THE RESCISSION OFFER, ON OR PRIOR TO THE EXPIRATION DATE,
WILL BE DEEMED TO HAVE REJECTED THE RESCISSION OFFER; SUCH REJECTION MAY NOT
BE DETERMINATIVE OF ACTUAL LEGAL RIGHTS.
You are urged to consider this Prospectus carefully before reaching a
decision. The form of Acceptance of Rescission Offer for persons desiring to
accept all or any portion of the Rescission Offer is attached hereto as Annex
I, and an additional copy accompanies this Prospectus. If you do not wish to
accept any portion of the Rescission Offer made to you, you may do nothing and
allow the Rescission Offer to expire. If you wish to accept all or only a
portion of the Rescission Offer made to you, you should complete and execute
the appropriate sections of the Acceptance of Rescission Offer form enclosed
with this Prospectus and return it to the Company as provided above.
Questions about the Rescission Offer
Rescission Offerees who have questions about the Rescission Offer may call
K. Argueta ((713) 735-4365) on weekdays between 9:00 a.m. and 5:00 p.m.,
Houston, Texas time.
Use of Common Stock Repurchased by the Company in the Rescission Offer
The shares of Common Stock purchased by the Company pursuant to the
Rescission Offer, if any, will become treasury shares. Shares of Common Stock
repurchased by the Company will become available for use by the Company
pursuant to employee benefit plans and may be used by the Company for general
corporate purposes.
Federal Income Tax Consequences of the Rescission Offer
The following is a general summary of the likely federal income tax
consequences to the Rescission Offerees who elect to participate in the
Rescission Offer and who have held their shares of Common Stock as a capital
asset. This summary is not a complete analysis of the potential tax
considerations, and does not discuss all aspects of federal income taxation
that may be relevant to a particular Rescission Offeree. Moreover, no
information is provided with respect to the consequences of any applicable
state, local or foreign tax laws. The accuracy of this summary is not free
from doubt and there can be no assurance that the Internal Revenue Service
will agree with the conclusions stated. Accordingly, each Rescission Offeree
should consult his or her own tax advisor to determine his or her actual tax
consequences attributable to the Rescission Offer.
6
Amounts received by a Rescission Offeree who accepts the Rescission Offer
and tenders his or her shares to the Company will first constitute a tax-free
return of basis up to the amount of cash such Rescission Offeree paid for the
Common Stock with the remaining amount taxable as ordinary income. In
addition, a Rescission Offeree will realize a capital loss to the extent his
or her tax basis in the tendered Common Stock exceeds the amount of cash paid
for such stock. A Rescission Offeree's tax basis in the tendered Common Stock
will generally equal the amount of cash paid for the Common Stock plus
compensation income recognized (if any) by the Rescission Offeree as a result
of his or her purchase of the Common Stock.
Amounts received by a Rescission Offeree who accepts the Rescission Offer
and who resold his or her shares of Common Stock at a loss prior to the date
hereof (the "Sold Common Stock") will constitute taxable income. The taxable
income will be characterized as capital gain up to an amount equal to the
difference between the amount of cash the Rescission Offeree paid for the Sold
Common Stock and the amount realized upon the prior sale of such stock. The
characterization of such capital gain as long-term or short-term is dependent
upon the length of time the Rescission Offeree held the Sold Common Stock. All
additional amounts received by a Rescission Offeree will be taxable as
ordinary income.
Funding the Rescission Offer
The Company has sufficient funds on hand to pay to Rescission Offerees the
purchase price of any shares which may be tendered to it pursuant to the
Rescission Offer.
VALIDITY OF COMMON STOCK
The validity of the Common Stock offered pursuant to the Rescission Offer
will be passed upon for the Company by Bracewell & Patterson, L.L.P., Houston,
Texas.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report on Form 10-K and 10-K/A for the fiscal year ended
December 31, 1995, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report included therein, and have been
incorporated herein by reference in reliance upon such report given upon the
authority of that firm as experts in accounting and auditing. See
"Incorporation by Reference."
7
Annex I
RESCISSION OFFEREE'S
ACCEPTANCE OF RESCISSION OFFER
----------------
YOU MAY ELECT TO ACCEPT OR REJECT THE RESCISSION OFFER. IF YOU WISH TO REJECT
THE RESCISSION OFFER, DO NOT EXECUTE AND RETURN THIS FORM. YOU NEED TO DO
NOTHING TO REJECT THE RESCISSION OFFER.
IF YOU WISH TO ACCEPT THE RESCISSION OFFER, PLEASE EXECUTE AND RETURN THIS
FORM, PURSUANT TO THE INSTRUCTIONS SET FORTH BELOW.
----------------
To: Destec Energy, Inc.
Human Resources Department
2500 CityWest Boulevard, Suite 150
Houston, Texas 77042
Attention: K. Argueta
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus dated , 1996,
of Destec Energy, Inc. (the "Company"), together with the Annexes thereto (the
"Prospectus"), pursuant to which the Company offers, upon the terms and
conditions set forth herein and in the Prospectus, to rescind sales (the
"Rescission Offer") of its shares of common stock, par value $.01 per share
("Common Stock") pursuant to the 1993-1994 Destec Energy, Inc. Employees' Stock
Purchase Plan, the 1994-1995 Destec Energy, Inc. Employees' Stock Purchase Plan
and the 1995-1996 Destec Energy, Inc. Employees' Stock Purchase Plan (the
"Plans").
I hereby accept the Rescission Offer for the Common Stock listed below, which
I represent were purchased pursuant to the Plans, on the terms set forth in
this form and in the Prospectus. I direct that all of the payment to be made
for shares of Common Stock surrendered herewith be made to the address
appearing at the end of this Rescission Offer Acceptance form. I understand
that as a result of accepting the Rescission Offer, I will no longer hold the
shares of Common Stock represented by the certificates tendered herewith.
The following certificates representing shares of Common Stock purchased
pursuant to the Plans are enclosed herewith:
CERTIFICATE
PLAN YEAR NUMBER OF SHARES NUMBERS
--------- ---------------- -----------
1993-1994
1994-1995
1995-1996
*If you require additional space, please complete an additional sheet, sign
it and attach it to this form.
1. Guarantees of Signatures. Except as set forth below, signatures on the
Acceptance of Rescission Offer form need not be guaranteed.
2. Delivery of Acceptance of Rescission Offer Forms and Certificates.
Rescission Offerees must properly complete and duly execute and mail or deliver
this Acceptance of Rescission Offer form, together with the certificate(s)
representing shares of Common Stock to be surrendered in acceptance of the
offer to rescind and other required documents to the Company at the address set
forth above. IN ORDER TO ACCEPT THE RESCISSION OFFER, ALL MATERIALS MUST HAVE A
POSTMARK NO LATER THAN 11:59 P.M., HOUSTON, TEXAS TIME, ON , 1996.
The Company reserves the absolute right to reject any and all surrenders of
shares of Common Stock (i) that are not in proper form or otherwise not valid
or (ii) the acceptance of which would be, in the opinion of the Company's
counsel, unlawful. The Company's interpretation of the terms and conditions of
the Rescission Offer, this Acceptance of Rescission Offer form and the
Instructions thereto will be final and binding. The Company reserves the
absolute right to waive any defect or irregularity in the surrender of shares
of Common Stock.
3. Signatures on the Rescission Offer Acceptance Form. If the shares of
Common Stock surrendered hereby are owned of record by two or more joint
owners, all such owners must sign this Acceptance of Rescission Offer form. If
any of the shares of Common Stock are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate Acceptance of Rescission Offer forms as there are different
registrations of certificates.
When this Acceptance of Rescission Offer form is signed by the registered
holder(s) of the certificate(s) listed and transmitted hereby, no endorsement
of certificates or separate instruments of transfer are required, except as
provided below. If this Acceptance of Rescission Offer form is signed by a
person other than the participant as registered holder of the certificate(s)
surrendered, such certificate(s) must be endorsed or accompanied by an
appropriate instrument of transfer, in either case signed exactly as the name
or names of the registered holder or holders appear on the certificate(s).
Signatures on such certificate(s) or transfer instruments must be guaranteed.
4. Mutilated, Lost, Destroyed or Stolen Certificates. If any certificate has
been mutilated, lost, destroyed or stolen, the holder should promptly notify
the Company. The holder will then be directed as to the steps that must be
taken in order to replace the certificate. The Acceptance of Rescission Offer
form and related documents cannot be processed until the procedures for
replacing lost, mutilated, destroyed or stolen certificate(s) have been
followed.
5. Questions and Requests for Assistance or Additional Copies. Questions and
requests for assistance may be directed to the Company, at the address and
telephone number set forth in the Prospectus.
6. Form W-9 and Taxpayer Identification Number. Federal income tax law
requires any Rescission Offeree accepting the Rescission Offer to provide the
Company with a correct Taxpayer Identification Number ("TIN") by completing a
Form W-9. In the case of a Rescission Offeree who is an individual, the TIN is
his or her social security number. Failure to provide the Company with a
correct TIN may subject the Rescission Offeree to backup withholding at a rate
of 31% on any payments made to the Rescission Offeree. A Form W-9 has been
included with this Acceptance of Rescission Offer form for convenience.
THE METHOD OF DELIVERY OF THIS ACCEPTANCE OF RESCISSION OFFER FORM, THE
CERTIFICATES FOR SHARES OF COMMON STOCK, AND ALL OTHER REQUIRED DOCUMENTS IS AT
THE ELECTION AND RISK OF THE HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE COMPANY. IF DELIVERY IS TO BE MADE BY MAIL,
REGISTERED MAIL, WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED.
DELIVERY OF THIS ACCEPTANCE OF RESCISSION OFFER FORM TO AN ADDRESS OTHER THAN
2500 CITYWEST BOULEVARD, SUITE 150, HOUSTON, TEXAS 77042, ATTENTION: HUMAN
RESOURCES DEPARTMENT--K. ARGUETA, WILL NOT CONSTITUTE A VALID ACCEPTANCE. THIS
ACCEPTANCE OF RESCISSION OFFER IS TO BE COMPLETED AND SIGNED BY EACH RESCISSION
OFFEREE WHO SURRENDERS HEREWITH COMMON STOCK PURCHASED PURSUANT TO THE PLANS
FOR ACCEPTANCE OF THE RESCISSION OFFER.
2
Therefore, I hereby accept the Rescission Offer for the above Common Stock
purchased by me under the Plans. I direct that all payments be made to the
undersigned at the address set forth below. I understand and agree that as a
result of such acceptance, I will no longer hold the shares of Common Stock in
the Company.
- ------------------------- -------------------------
Name (Please Print) Signature
- ------------------------- -------------------------
Street Address Date
- ------------------------- -------------------------
City, State and Zip Code of Residence Social Security or
Taxpayer Identification
Number
THIS FORM SHOULD BE MAILED TO THE COMPANY AS SOON AS PRACTICABLE, BUT IN NO
EVENT
HAVING A POSTMARK LATER THAN, THE EXPIRATION DATE OF THIS
RESCISSION OFFER, WHICH IS , 1996.
3
Annex II
STATE LEGAL INTEREST RATES
STATE LEGAL INTEREST RATE STATE LEGAL INTEREST RATE
- ----- ------------------- ----- -------------------
Alabama 6% Montana 10%
Alaska 10.5% Nebraska 6%
Arizona 10% Nevada 12%
Arkansas 6% New Hampshire 10%
California 7% New Jersey 6%
Colorado 8% New Mexico 8%
Connecticut 8% New York 16%
Delaware 5% + Federal Discount Rate North Carolina 8%
District of Columbia 6% North Dakota 6%
Florida 12% Ohio 8%
Georgia 7% Oklahoma 6%
Hawaii 10% Oregon 9%
Idaho 12% Pennsylvania 6%
Illinois 5% Rhode Island 12%
Indiana 10% South Carolina 8%
Iowa 5% South Dakota 15%
Kansas 10% Tennessee 10%
Kentucky 8% Texas 6%
Louisiana 12% Utah 10%
Maine 6% Vermont 12%
Maryland 6% Virginia 8%
Massachusetts 6% Washington 12%
Michigan 5% West Virginia 6%
Minnesota 6% Wisconsin 5%
Mississippi 8% Wyoming 7%
Missouri 9%
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the shares of
Common Stock being registered. All amounts shown below are estimates, except
the registration fee:
Registration fee of Securities and Exchange Commission.................... $965
Accountants' fees and expenses............................................ $ *
Legal fees and expenses................................................... $ *
Miscellaneous............................................................. $ *
----
Total................................................................... $ *
====
- --------
* To be supplied by amendment.
ITEM 15. 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 16. 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).
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, independent auditors.
23.2* Consent of Bracewell & Patterson, L.L.P. (included in the opinion
filed as Exhibit 5 hereto).
24 Powers of Attorney.
- --------
* To be filed by amendment.
II-1
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) 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.
(b) 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-2
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-3 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 29TH DAY OF AUGUST, 1996.
DESTEC ENERGY, INC.
(Registrant)
/s/ Charles F. Goff
By: _________________________________
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 29TH DAY OF AUGUST, 1996.
SIGNATURE TITLE
--------- -----
/s/ Charles F. Goff
- -------------------------------------------
Charles F. Goff Chairman of the Board and Chief Executive
Officer (Principal Executive Officer)
/s/ Keys A. Curry, Jr.
- -------------------------------------------
Keys A. Curry, Jr. President and Chief Operating Officer and
Director
/s/ Enrique M. Larroucau
- -------------------------------------------
Enrique M. Larroucau Senior Vice President, Chief Financial
Officer and Treasurer (Principal Financial
Officer)
/s/ Craig E. Hess*
- -------------------------------------------
Craig E. Hess Vice President and Controller
(Princpal Accounting Officer)
/s/ Cassandra C. Carr*
- -------------------------------------------
Cassandra C. Carr Director
/s/ Jack E. Earnest*
- -------------------------------------------
Jack E. Earnest Director
/s/ Jack G. Helfenstein*
- -------------------------------------------
Jack G. Helfenstein Director
/s/ Robert W. Gallant*
- -------------------------------------------
Robert W. Gallant Director
II-3
SIGNATURE TITLE
--------- -----
/s/ Michael D. Parker*
- -------------------------------------------
Michael D. Parker Director
/s/ Pedro Reinhard*
- -------------------------------------------
Pedro Reinhard Director
/s/ Joel V. Staff*
- -------------------------------------------
Joel V. Staff Director
/s/ Charles F. Goff
*By__________________________________
Charles F. Goff
(Attorney-in-fact for persons
indicated)
II-4
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NO.
------- ---------------------- ----
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).
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, independent auditors.
23.2* Consent of Bracewell & Patterson, L.L.P. (included in the
opinion filed as Exhibit 5 hereto).
24 Powers of Attorney.
- --------
* To be filed by amendment.