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As filed with the Securities and Exchange Commission on November 28, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SEMPRA ENERGY
(Exact name of registrant as specified in its charter)
California 33-0732627
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
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101 Ash Street
San Diego, California 92101
(619) 696-2034
(Address of principal executive offices, Zip Code, and telephone number)
SEMPRA ENERGY
CONSOLIDATED UNREGULATED BUSINESSES LONG TERM INCENTIVE PLAN
(Full title of the plan)
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Copies to:
JOHN R. LIGHT, ESQ. BARRY M. CLARKSON, ESQ.
Sempra Energy Latham & Watkins
101 Ash Street 701 "B" Street, Suite 2100
San Diego, California 92101 San Diego, California 92101
(619) 696-2034 (619) 236-1234
(Name, address including zip code,
and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Title of Each Amount Maximum Aggregate Amount of
Class of Securities To Be Offering Offering Registration
to be Registered Registered(1) Price Per Share Price(2) Fee
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Stock Appreciation
Units 1,500,000 $119.90(2) $179,850,000 $47,481
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(1) A maximum of 1,500,000 Units were reserved for issuance under the
Sempra Energy Consolidated Unregulated Businesses Long Term Incentive
Plan (the "Plan"). All Units reserved for issuance under the Plan are
being registered hereunder.
(2) Estimated in accordance with Rule 457(h) solely for purposes of
computing the registration fee for securities for which the offering
price cannot be presently determined and for which there is no market
for the securities to be offered. The Proposed Maximum Offering Price
is $119.90 per Unit, which is based on the estimated book value of a
Unit as of September 30, 2000, the latest practicable date.
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Part I
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
Part II
Item 3. Incorporation of Documents by Reference
The SEC allows us to "incorporate by reference" information into
this Registration Statement, which means that we can disclose
important information to you by referring you to another document
filed separately with the SEC. The information incorporated by
reference is deemed to be part of this Registration Statement, except
for any information superseded by information subsequently filed and
incorporated by reference in this Registration Statement. This
Registration Statement incorporates by reference the documents set
forth below that we have previously filed with the SEC. These
documents contain important information about our companies and their
finances.
- -- Annual Report on Form 10-K of Sempra Energy for the year ended
December 31, 1999, filed with the SEC on March 29, 2000;
- -- Quarterly Report on Form 10-Q of Sempra Energy for the quarter
ended March 31, 2000, filed with the SEC on May 5, 2000;
- -- Quarterly Report on Form 10-Q of Sempra Energy for the quarter
ended June 30, 2000, filed with the SEC on August 14, 2000;
- -- Quarterly Report on Form 10-Q of Sempra Energy for the quarter
ended September 30, 2000, filed with the SEC on November 13, 2000;
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
January 28, 2000 and Amendment No. 1 thereto filed on Form 8-K/A with
the SEC on February 8, 2000;
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
February 18, 2000;
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
February 22, 2000;
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
March 9, 2000;
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
March 30, 2000;
- -- Current Report on From 8-K of Sempra Energy filed with the SEC on
April 28, 2000;
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
August 2, 2000; and
- -- Current Report on Form 8-K of Sempra Energy filed with the SEC on
October 27, 2000.
We are also incorporating by reference all additional documents
that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), between the date of this Registration Statement and
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, which shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of it from
the respective dates of filing of those documents.
If you are a shareholder, we may have sent you some of the
documents incorporated by reference, but you can obtain any of them
through us or the SEC. Documents incorporated by reference are
available from us without charge, excluding all exhibits unless we
have specifically incorporated by reference an exhibit in this
Registration Statement. Plan participants may obtain documents
incorporated by reference in this Registration Statement by requesting
them in writing or by telephone from us at the following address:
Sempra Energy
Attn: Secretary
101 Ash Street
San Diego, California 92101
Telephone: (877) SEMPRA7
A statement contained in a document incorporated by reference
herein shall be deemed to be modified or superceded for purposes of
this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which is also
incorporated herein modifies or replaces such statement. Any
statements so modified or superceded shall not be deemed, except as so
modified or superceded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
The securities being registered are unsecured obligations of
Sempra Energy to pay cash to the holder of the securities upon the
exercise thereof. The securities are based upon hypothetical units of
beneficial ownership interest in a group of certain unregulated
corporate subsidiaries and businesses of Sempra Energy ("Units") to be
issued under The Sempra Energy Consolidated Unregulated Businesses Long
Term Incentive Plan (the "Plan"). Awards of Units will be subject to
individual unit award agreements. A committee constituted under the
Plan will have sole discretion in deciding when awards of Units will be
granted, to whom they will be granted, and how many Units will be
awarded to each participant. Any officer or other employee of Sempra
Energy or any affiliate, other than a regulated utility, will be
eligible to be granted an award of Units under the Plan.
The term of each award will be eight years from the date of grant,
unless a lesser term is determined by the committee and set forth in
the participant's unit award agreement. The term of the award may
expire earlier in connection with the participant's termination of
employment, death, disability, retirement or upon the occurrence of a
change in control. To the extent not exercised, awards will become null
and void upon expiration or termination.
All outstanding awards that have not expired or terminated will
vest on the third anniversary of the date of grant, unless otherwise
provided in the participant's unit award agreement. Awards and Units
granted under the Plan and the rights and privileges conferred thereby
may not be transferred, assigned, pledged, or hypothecated in any
manner other than by will or by similar process. If a participant
attempts to transfer, assign, pledge or hypothecate any awards or
Units, the awards or Units will terminate and become null and void.
In consideration for the granting of an award under the Plan, a
participant must agree to remain in our employ (or the employ of any of
our unregulated corporate subsidiaries or businesses) for at least one
year. However, nothing in the Plan confers on any participant the right
to remain in the employ of Sempra Energy or an affiliate. Sempra Energy
and its affiliates retain the right to discharge any participant at any
time for any reason whatsoever, with or without cause.
A participant may exercise any or all of the vested portion of an
award solely during a specified exercise period, and before the
expiration or termination of the award, by delivery to the committee of
written notice of the number of Units to be exercised. The exercise
period is the 60-day period following the committee's approval of the
annual or more frequent valuation of the Units. An award shall not be
exercisable, however, until the fair value of the companies covered by
the Units as determined by the committee in accordance with the rules
under the Plan is greater than zero as of the most recent valuation.
Upon exercise, each exercised Unit will entitle the participant to
receive from us a cash payment in an amount equal to the excess, if
any, of the fair market value of a Unit on the date we receive notice
of the exercise, over the fair market value of the Unit on the date it
was awarded. The fair market value of a Unit will be determined, in
accordance with the rules and regulations of the Plan, by the
committee.
Subject to the terms and conditions and within the limitations of
the Plan, the committee may modify or amend outstanding awards granted
under the Plan. However, modification or amendment of an outstanding
award may not, without the consent of the participant, alter, impair or
diminish any of the participant's rights under the award. The committee
will act by a majority of its members in attendance at a meeting at
which a quorum is present or by a memorandum or other written
instrument signed by all members of the committee.
No participant in the Plan will have any rights or privileges of a
shareholder.
The Board of Directors may at any time suspend, amend or terminate
the Plan. No award may be granted after termination, or during any
suspension of the Plan. No amendment or termination of the Plan will,
without the consent of the participant, alter or impair any awards or
obligations under any award previously granted under the Plan. The Plan
will automatically terminate on December 31, 2004. At the discretion of
the Board of Directors, all outstanding awards will terminate in
conjunction with the termination of the Plan. If the Board decides to
terminate the Plan, the awards outstanding will be deemed to be fully
vested immediately before the termination and will automatically be
exercised for payment. All payments in connection with such termination
must be completed within 30 days or as soon as practicable following a
special valuation with respect to such termination.
Our obligations under the Plan and any awards granted pursuant to
the Plan will be unfunded and unsecured. All amounts payable under the
Plan will be paid from the general assets of Sempra Energy. We will
have no obligation to establish any fund or to set aside any assets to
provide benefits under the Plan.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 317 of the Corporations Code of the State of California
permits a corporation to provide indemnification to its directors and
officers under certain circumstances. The Sempra Energy Amended and
Restated Articles of Incorporation and Bylaws eliminate the liability of
directors for monetary damages to the fullest extent permissible under
California law and provide that indemnification for liability for
monetary damages incurred by directors, officers and other agents of
Sempra Energy shall be allowed, subject to certain limitations, in excess
of the indemnification otherwise permissible under California law. In
addition, Sempra Energy has entered into indemnification agreements with
its directors and officers which generally provide for indemnification of
the officers and directors to the fullest extent permitted under
California law. We maintain liability insurance and we are insured
against loss for which we may be required or permitted by law to
indemnify our directors and officers for their related acts.
Our directors and officers are covered by insurance policies
indemnifying them against certain liabilities, including certain
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"), which might be incurred by them in such capacities and
against which they cannot be indemnified by Sempra Energy.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Securities and
Exchange Commission (the "Commission") such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of the Registration Statement:
5.1 Opinion of Latham & Watkins.
23.1 Independent Auditors' Consent.
23.2 Consent of Latham & Watkins. Reference is made to Exhibit 5.1.
24.1 Powers of Attorney (included in signature page).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
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) 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 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.
(c) 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 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.
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-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Diego, County
of San Diego, State of California, on this 28th day of November, 2000.
SEMPRA ENERGY
By: /s/ STEPHEN L. BAUM
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Stephen L. Baum
Chairman, Chief Executive Officer
and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Stephen L. Baum, Neal
E. Schmale and John R. Light and each of them, as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments, exhibits thereto and other documents in connection
therewith) and supplements to this Registration Statement, and any
related registration statements necessary to register additional
securities, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agents, or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
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/ STEPHEN L. BAUM Chairman, Chief November 28, 2000
- ------------------- Executive Officer,
Stephen L. Baum President and Director
/s/ NEAL E. SCHMALE Executive Vice November 28, 2000
- ------------------- President and Chief
Neal E. Schmale Financial Officer
/s/ FRANK H. AULT Vice President November 28, 2000
- ------------------- and Controller
Frank H. Ault
/s/ HYLA H. BERTEA Director November 28, 2000
- -------------------
Hyla H. Bertea
/s/ ANN L. BURR Director November 28, 2000
- -------------------
Ann L. Burr
/s/ HERBERT L. CARTER Director November 28, 2000
- -------------------
Herbert L. Carter
/s/ RICHARD A. COLLATO Director November 28, 2000
- -------------------
Richard A. Collato
/s/ DANIEL W. DERBES Director November 28, 2000
- -------------------
Daniel W. Derbes
/s/ WILFORD D. GODBOLD, JR. Director November 28, 2000
- -------------------
Wilford D. Godbold, Jr.
/s/ WILLIAM D. JONES Director November 28, 2000
- -------------------
William D. Jones
/s/ RALPH R. OCAMPO Director November 28, 2000
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Ralph R. Ocampo
/s/ WILLIAM G. OUCHI Director November 28, 2000
- -------------------
William G. Ouchi
/s/ RICHARD J. STEGEMEIER Director November 28, 2000
- -------------------
Richard J. Stegemeier
/s/ THOMAS C. STICKEL Director November 28, 2000
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Thomas C. Stickel
Director November , 2000
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Diana L. Walker
EXHIBIT INDEX
EXHIBIT
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5.1 Opinion of Latham & Watkins.
23.1 Independent Auditors' Consent.
23.2 Consent of Latham & Watkins. Reference is made to Exhibit 5.1.
24.1 Powers of Attorney (included in signature page).
EXHIBIT 5.1
LATHAN & WATKINS
Attorneys at Law
701 "B" Street, Suite 2100
San Diego, California 92101-8197
Telephone (619)236-1234
Fax (619)696-7419
November 28, 2000
Sempra Energy
101 Ash Street
San Diego, California 92101
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
In connection with the registration by Sempra Energy, a California
corporation (the "Company"), of 1,500,000 stock appreciation units
(the "Units") of the Company to be issued pursuant to the Sempra
Energy Consolidated Unregulated Businesses Long Term Incentive Plan
(the "Plan") under the Securities Act of 1933, as amended (the
"Act"), on a Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on November 28, 2000 (as amended
from time to time, the "Registration Statement"), you have requested
our opinion with respect to the matters set forth below.
In our capacity as your special counsel in connection with such
registration, we are familiar with the proceedings taken and
proposed to be taken by the Company in connection with the
authorization and issuance of the Units, and for purposes of this
opinion, have assumed the terms of such issuance will otherwise be
in compliance with law. As such counsel, we have made such legal
and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments,
as we have deemed necessary or appropriate for purposes of this
opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all
documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction
only of the internal laws of the State of California, and we express
no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing, it is our opinion that the Units, when
granted by the Company in accordance with the terms of the Plan,
will constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms.
The opinions rendered above relating to the enforceability of the
Units are subject to the following exceptions, limitations and
qualifications:
- -- the effect of bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors;
- -- the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; and
- -- to the extent that enforceability may be limited due to the
existence of an untrue statement of a material fact in the
Registration Statement or omission to state a material fact therein
necessary to make the statements in the Registration Statement not
misleading; it being understood that we express no view with respect
thereto.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
LATHAM & WATKINS
Exhibit 23.1
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration
Statement of Sempra Energy on Form S-8 of our report dated February 4,
2000 (February 25, 2000 as to Note 17), appearing in and incorporated
by reference in the Annual Report on Form 10-K of Sempra Energy for the
year ended December 31, 1999.
Deloitte & Touche LLP
San Diego, California
November 27, 2000