AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 14, 1995
REGISTRATION NO. 33-59401
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CALIFORNIA ENERGY COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2213782
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION) IDENTIFICATION NO.)
302 SOUTH 36TH STREET, SUITE 400, OMAHA, NEBRASKA 68131
(402) 341-4500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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STEVEN A. MCARTHUR, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CALIFORNIA ENERGY COMPANY, INC.
302 SOUTH 36TH STREET, SUITE 400, OMAHA, NEBRASKA 68131
(402) 341-4500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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WITH COPIES TO:
PETER J. HANLON, ESQ. STACY J. KANTER, ESQ.
WILLKIE FARR & GALLAGHER SKADDEN, ARPS, SLATE, MEAGHER & FLOM
ONE CITICORP CENTER 919 THIRD AVENUE
153 EAST 53RD STREET NEW YORK, NEW YORK 10022
NEW YORK, NEW YORK 10022 (212) 735-3000
(212) 821-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE 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, please 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. [ ]
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 THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement on Form S-3 of
California Energy Company, Inc. is being made solely for the purpose of
filing the exhibits attached thereto. No changes have been made to the
Prospectus included therein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered which will be paid
solely by the Company. All the amounts shown are estimates, except the
Commission registration fee and the NASD filing fee:
Commission Registration Fee ... $ 68,966
NASD Fees ...................... 20,500
Trustee Fees ................... 5,000
Rating Agency Fees ............. 185,000
Printing and Engraving Expenses 185,000
Legal Fees and Expenses ........ 500,000
Accounting Fees and Expenses .. 150,000
Blue Sky Fees and Expenses .... 20,000
Miscellaneous Expenses ......... 65,534
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Total ........................ $1,200,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") grants each corporation organized thereunder, such as the Company,
the power to indemnify its directors and officers against liabilities for
certain of their acts. Article EIGHTH of the Company's Restated Certificate
of Incorporation and Article V of the Company's By-Laws provide for
indemnification of directors and officers of the Company to the fullest
extent permitted by the DGCL. Article V of the Company's By-Laws further
provides that the Company may enter into contracts providing indemnification
to the full extent authorized or permitted by the DGCL and that the Company
may create a trust fund, grant a security interest and/or use other means to
ensure the payment of such amounts as may become necessary to effect
indemnification pursuant to such contracts or otherwise.
Section 102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder, such as the Company,
eliminating or limiting, with certain exceptions, the personal liability of a
director to the corporation or its stockholders for monetary damages for
certain breaches of fiduciary duty as a director. Article EIGHTH of the
Company's Restated Certificate of Incorporation eliminates the personal
liability of directors to the full extent permitted by the DGCL.
The foregoing statements are subject to the detailed provisions of
Sections 145 and 102(b)(7) of the DGCL, Article EIGHTH of the Company's
Restated Certificate of Incorporation and Article V of Company's By-Laws.
II-1
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
A. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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1.1 Form of Underwriting Agreement between the Registrant and CS First Boston.
*2.1 Agreement and Plan of Merger, dated as of December 5, 1994, among California Energy Company,
Inc., CE Acquisition Company, Inc., and Magma Power Company (incorporated by reference to Exhibit
2.1 of the Registrant's Registration Statement on Form S-4 filed with the Commission on December
23, 1994, File No. 33-57053).
4.1 Form of Indenture between The Bank of New York, as Trustee and California Energy Company, Inc.
4.2 Form of Note (included in 4.1).
5.1 Opinion of Willkie Farr & Gallagher regarding the legality of the Notes offered hereby.
12.1 Statement re: Computation of Consolidated Ratio of Earnings to Fixed Charges--The Company.
*12.2 Statement re: Computation of Consolidated Ratio of Earnings to Fixed Charges-- Magma.
*15.1 Awareness Letter for Review Reports of Deloitte & Touche LLP.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Coopers & Lybrand L.L.P.
*23.3 Consent of Stone & Webster Engineering Corporation.
23.4 Consent of Willkie Farr & Gallagher (set forth in their opinion filed as Exhibit 5.1 to this
Registration Statement).
*24.1 Power of Attorney.
25.1 Statement of Eligibility on Form T-1.
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* Previously filed.
ITEM 17. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
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
Securities Act and will be governed by the final adjudication of such issue.
II-2
(3) The undersigned Registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
Registration Statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Amendment No. 2
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Omaha, State of Nebraska, on July
14, 1995.
CALIFORNIA ENERGY COMPANY, INC.
By: /s/ David L. Sokol
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David L. Sokol
Chairman of the Board of
Directors and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ David L. Sokol Chairman of the Board of Directors and July 14, 1995
- ------------------------ Chief Executive Officer (Principal
David L. Sokol Executive Officer)
/s/ John G. Sylvia Senior Vice President, Chief Financial July 14, 1995
- ------------------------ Officer and Treasurer (Principal
John G. Sylvia Financial Officer)
/s/ Greg Abel Vice President, Controller and Chief July 14, 1995
- ------------------------ Accounting Officer
Greg Abel
* Director July 14, 1995
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Edgar D. Aronson
* Director July 14, 1995
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Judith E. Ayers
Director
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James Q. Crowe
II-4
SIGNATURE TITLE DATE
- ----------------------- ---------------------------------------- ----------------
* Director July 14, 1995
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Richard K. Davidson
* Director July 14, 1995
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Ben M. Holt
* Director July 14, 1995
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Richard R. Jaros
* Director July 14, 1995
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Walter Scott, Jr.
- ------------------------ Director
Bernard W. Reznicek
* Director July 14, 1995
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John R. Shiner
* Director July 14, 1995
- ------------------------
David E. Wit
* By: /s/ Steven A. McArthur
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Steven A. McArthur
Attorney-in-fact
II-5
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE
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1.1 Form of Underwriting Agreement between the Registrant and CS First
Boston.
*2.1 Agreement and Plan of Merger, dated as of December 5, 1994, among
California Energy Company, Inc., CE Acquisition Company, Inc., and Magma
Power Company (incorporated by reference to Exhibit 2.1 of the
Registrant's Registration Statement on Form S-4 filed with the
Commission on December 23, 1994, File No. 33-57053).
4.1 Form of Indenture between The Bank of New York, as Trustee and
California Energy Company, Inc.
4.2 Form of Note (included in 4.1).
5.1 Opinion of Willkie Farr & Gallagher regarding the legality of the Notes
offered hereby.
12.1 Statement re: Computation of Consolidated Ratio of Earnings to Fixed
Charges -- The Company.
*12.2 Statement re: Computation of Consolidated Ratio of Earnings to Fixed
Charges -- Magma.
*15.1 Awareness Letter for Review Reports of Deloitte & Touche LLP.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Coopers & Lybrand L.L.P.
*23.3 Consent of Stone & Webster Engineering Corporation.
23.4 Consent of Willkie Farr & Gallagher (set forth in their opinion filed as
Exhibit 5.1 to this Registration Statement).
*24.1 Power of Attorney.
25.1 Statement of Eligibility of Trustee on Form T-1.
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* Previously filed.