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10-K/A 1 a97569e10vkza.htm AMENDMENT NO. 2 TO FORM 10-K e10vkza

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K/A

(Amendment No. 2)

(Mark One)


x		ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended July 31, 2002

or

o		TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from to

Commission File Number: 000-33069

COMMONWEALTH ENERGY

CORPORATION

(Exact name of registrant as specified in its charter)


California		33-0769555
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

15901 Red Hill Avenue, Suite 100, Tustin, California 92780

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (714) 258-0470

Securities registered pursuant to Section 12(b) of the Act: None

Securities registered pursuant to Section 12(g) of the Act:

Common Stock

(Title of class)

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for at least the past 90 days: Yes x No o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (Paragraph 229.405 of this Chapter) is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

As of October 18, 2002, 27,334,032 shares of the registrant’s common stock were outstanding. There was no market for the registrant’s shares at such date.

TABLE OF CONTENTS


EXPLANATORY NOTE
SIGNATURES
EXHIBIT 10.23
EXHIBIT 31.3
EXHIBIT 31.4

EXPLANATORY NOTE

This Amendment No. 2 on Form 10-K/A is being filed solely to file an amended Exhibit 10.23 in connection with the Registrant’s Application for Confidential Treatment for certain portions thereof. In accordance with Rule 12b-15 promulgated under the Securities Exchange Act of 1934, as amended, the Registrant has included in the Amendment No. 2 only Item 15 of Part IV. The remainder of the information contained in the original filing is not amended hereby.


Item 15.	*Exhibits, Financial Statements and Reports on Form 8-K*

(a)(1) Index to Consolidated Financial Statements:


	Page*

Report of Ernst & Young LLP, independent auditors		F-1
Consolidated balance sheets at July 31, 2001 and 2002		F-2
Consolidated statements of operations for the three years in the period ended July 31, 2002		F-3
Consolidated statements of shareholders’ equity for the three years in the period ended July 31, 2002		F-4
Consolidated statements of cash flows for the three years in the period ended July 31, 2002		F-5
Notes to consolidated financial statements		F-6

* Page references refer to pages in the original filing.

(a)(2) Schedule II — Valuation and Qualifying Accounts

All other schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable and therefore have been omitted.

(b) Reports on Form 8-K.

No reports on Form 8-K were filed during the fourth quarter of the fiscal year covered by this Report.


Exhibit
Number		Title of Exhibit

	3.1	Articles of Incorporation of Commonwealth Energy Corporation dated August 14, 1997 and filed with the Secretary of State of the State of California on August 15, 1997(1)
	3.2	Certificate of Amendment of Articles of Incorporation of Commonwealth Energy Corporation dated December 31, 1998 and filed with the Secretary of State of the State of California on February 19, 1999(1)
	3.3	Certificate of Determination of Commonwealth Energy Corporation dated September 22, 1997 and filed with the Secretary of State of California on March 13, 1998(2)
	3.4	Bylaws of Commonwealth Energy Corporation, as amended*
Material Contracts Relating to Management Compensation Plans or Arrangements
	10.1	Severance Agreement dated June 1, 2000, among Commonwealth Energy Corporation, electricAmerica, Inc. and Frederick M. Bloom(1)
	10.2	Employment Agreement dated January 1, 2000, between Commonwealth Energy Corporation and Ian Carter, as modified by an Addendum to Employment Agreement dated as of November 1, 2000(1)
	10.3	Employment Agreement dated November 1, 2000, between Commonwealth Energy Corporation and Richard Paulsen(2)


Exhibit
Number		Title of Exhibit

	10.4	Employment Agreement dated November 1, 2000, between Commonwealth Energy Corporation and James Oliver(2)
	10.5	Employment Agreement dated November 1, 2000, between Commonwealth Energy Corporation and John Barthrop(2)
	10.6	Commonwealth Energy Corporation 1999 Equity Incentive Plan for Employees(1)
	10.7	Change of Control Agreement dated November 1, 2000 between Commonwealth Energy Corporation and Scott A. Petterson*
Other Material Contracts
	10.8	Power Purchase Agreement dated July 27, 1999, between Commonwealth Energy Corporation and Calpine Power Services Company(3)
	10.9	First Amendment to Power Purchase Agreement dated as of July 29, 1999(3)
	10.10	Second Amendment to Power Purchase Agreement dated as of May 28, 1999, between Commonwealth Energy Corporation and Calpine Power Services Company(4)
	10.11	Loan and Security Agreement dated June 28, 2000 between Commonwealth Energy Corporation, electricAmerica, Inc. and electric.com, Inc. and Coast Business Credit(1)
	10.12	Warrant dated June 28, 2000, issued by Commonwealth Energy Corporation in favor of Coast Business Credit(1)
	10.13	Limited Liability Company Agreement of Summit Energy Ventures, LLC, as amended by the First Amendment to the Limited Liability Company Agreement of Summit Energy Ventures, LLC, dated August 2001(2)
	10.14	PECO Energy Company Confirmation Agreement dated January 30, 2001(1)
	10.15	Exelon Generation Company, LLC Confirmation Agreement dated May 13, 2001(1)
	10.16	Standard Office Lease — Gross dated July 1, 1997, for property located at 15941 Redhill Avenue, Suite 200, Tustin, California, together with Rules and Regulations and Work Letter attached thereto(1)
	10.17	Standard Sublease Dated November 12, 1998, Between Kurt Busch And Commonwealth Energy Corporation, For Property Located At 15991 Redhill Avenue, Suite 200, Tustin, California(1)
	10.18	Amendment Number 6 to lease by and between Warner/ Redhill Associates and Frederick Michael Bloom(2)
	10.19	Commonwealth vs. Bloom Settlement Agreement Terms dated August 10, 2001(5)
	10.20	Second Amendment to the Limited Liability Company Agreement of Summit Energy Ventures, LLC(4)
	10.21	Commonwealth Energy Corporation Summary of Rights to Purchase Preferred Stock(4)
	10.22	Confirmation Letter dated May 23, 2002 between Commonwealth Energy Corporation and Reliant Energy Services, Inc.†*
	10.23	Confirmation of Transaction between Commonwealth Energy Corporation and DTE Energy Trading, Inc. dated July 25, 2002†
	10.24	Confirmation of Multi-Block Electric Power Transaction between Commonwealth Energy Corporation and TransAlta Energy Marketing (U.S.) Inc. dated March 1, 2002†*
	10.25	Lease Agreement dated August 9, 2002, between Commonwealth Energy Corporation and Cherry Tree Investors, L.P.*
	21.1	Subsidiaries of the Registrant(1)
	31.1	Certification of Chief Executive Officer of Commonwealth Energy Corporation pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934*


Exhibit
Number		Title of Exhibit

	31.2	Certification of Chief Financial Officer of Commonwealth Energy Corporation pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934*
	31.3	Certification of Chief Executive Officer of Commonwealth Energy Corporation, Pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934
	31.4	Certification of Chief Financial Officer of Commonwealth Energy Corporation, Pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934
	99.1	Certification of Chief Executive Officer of Commonwealth Energy Corporation, Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*
	99.2	Certification of Chief Financial Officer of Commonwealth Energy Corporation, Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

(1) Each of these exhibits is incorporated herein by reference to Commonwealth Energy Corporation’s Form 10 filed with the Securities and Exchange Commission on August 9, 2001 (File No. 000-33069).

(2) Each of these exhibits is incorporated by reference to Commonwealth Energy’s Form 10/A filed with the Securities and Exchange Commission on November 14, 2001 (File No. 000-33069).

(3) Each of these exhibits is incorporated by reference to Commonwealth Energy Corporation’s Form 10/A filed with the Securities and Exchange Commission on June 10, 2002.

(4) Each of these exhibits is incorporated by reference to Commonwealth Energy’s Form 10/A filed with the Securities and Exchange Commission on April 10, 2002 (File No. 000-33069).

(5) Each of these exhibits is incorporated by reference to Commonwealth Energy’s Form 10-Q filed with the Securities and Exchange Commission on December 17, 2001 (File No. 000-33069).

† Confidential treatment is being sought with respect to certain portions of this agreement. Such portions have been omitted from this filing and have been filed separately with the Securities and Exchange Commission.

* previously filed with the original filing.

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.



Dated: March 23, 2004		COMMONWEALTH ENERGY CORPORATION
		By: /s/ IAN B. CARTER Ian B. Carter Chairman of the Board and Chief Executive Officer

EXHIBIT INDEX


Exhibit
Number		Title of Exhibit

	3.1	Articles of Incorporation of Commonwealth Energy Corporation dated August 14, 1997 and filed with the Secretary of State of the State of California on August 15, 1997(1)
	3.2	Certificate of Amendment of Articles of Incorporation of Commonwealth Energy Corporation dated December 31, 1998 and filed with the Secretary of State of the State of California on February 19, 1999(1)
	3.3	Certificate of Determination of Commonwealth Energy Corporation dated September 22, 1997 and filed with the Secretary of State of California on March 13, 1998(2)
	3.4	Bylaws of Commonwealth Energy Corporation, as amended.*
Material Contracts Relating to Management Compensation Plans or Arrangements
	10.1	Severance Agreement dated June 1, 2000, among Commonwealth Energy Corporation, electricAmerica, Inc. and Frederick M. Bloom(1)
	10.2	Employment Agreement dated January 1, 2000, between Commonwealth Energy Corporation and Ian Carter, as modified by an Addendum to Employment Agreement dated as of November 1, 2000(1)
	10.3	Employment Agreement dated November 1, 2000, between Commonwealth Energy Corporation and Richard Paulsen(2)
	10.4	Employment Agreement dated November 1, 2000, between Commonwealth Energy Corporation and James Oliver(2)
	10.5	Employment Agreement dated November 1, 2000, between Commonwealth Energy Corporation and John Barthrop(2)
	10.6	Commonwealth Energy Corporation 1999 Equity Incentive Plan for Employees(1)
	10.7	Change of Control Agreement dated November 1, 2000 between Commonwealth Energy Corporation and Scott A. Petterson.*
Other Material Contracts
	10.8	Power Purchase Agreement dated July 27, 1999, between Commonwealth Energy Corporation and Calpine Power Services Company(3)
	10.9	First Amendment to Power Purchase Agreement dated as of July 29, 1999(3)
	10.10	Second Amendment to Power Purchase Agreement dated as of May 28, 1999, between Commonwealth Energy Corporation and Calpine Power Services Company(4)
	10.11	Loan and Security Agreement dated June 28, 2000 between Commonwealth Energy Corporation, electricAmerica, Inc. and electric.com, Inc. and Coast Business Credit(1)
	10.12	Warrant dated June 28, 2000, issued by Commonwealth Energy Corporation in favor of Coast Business Credit(1)
	10.13	Limited Liability Company Agreement of Summit Energy Ventures, LLC, as amended by the First Amendment to the Limited Liability Company Agreement of Summit Energy Ventures, LLC, dated August 2001(2)
	10.14	PECO Energy Company Confirmation Agreement dated January 30, 2001(1)
	10.15	Exelon Generation Company, LLC Confirmation Agreement dated May 13, 2001(1)
	10.16	Standard Office Lease — Gross dated July 1, 1997, for property located at 15941 Redhill Avenue, Suite 200, Tustin, California, together with Rules and Regulations and Work Letter attached thereto(1)
	10.17	Standard Sublease Dated November 12, 1998, Between Kurt Busch And Commonwealth Energy Corporation, For Property Located At 15991 Redhill Avenue, Suite 200, Tustin, California(1)


Exhibit
Number		Title of Exhibit

	10.18	Amendment Number 6 to lease by and between Warner/ Redhill Associates and Frederick Michael Bloom(2)
	10.19	Commonwealth vs. Bloom Settlement Agreement Terms dated August 10, 2001(5)
	10.20	Second Amendment to the Limited Liability Company Agreement of Summit Energy Ventures, LLC(4)
	10.21	Commonwealth Energy Corporation Summary of Rights to Purchase Preferred Stock(4)
	10.22	Confirmation Letter dated May 23, 2002 between Commonwealth Energy Corporation and Reliant Energy Services, Inc.†*
	10.23	Confirmation of Transaction between Commonwealth Energy Corporation and DTE Energy Trading, Inc. dated July 25, 2002†
	10.24	Confirmation of Multi-Block Electric Power Transaction between Commonwealth Energy Corporation and TransAlta Energy Marketing (U.S.) Inc. dated March 1, 2002†*
	10.25	Lease Agreement dated August 9, 2002, between Commonwealth Energy Corporation and Cherry Tree Investors, L.P.*
	21.1	Subsidiaries of the Registrant(1)
	31.1	Certification of Chief Executive Officer of Commonwealth Energy Corporation pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934*
	31.2	Certification of Chief Financial Officer of Commonwealth Energy Corporation pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934*
	31.3	Certification of Chief Executive Officer of Commonwealth Energy Corporation, Pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934
	31.4	Certification of Chief Financial Officer of Commonwealth Energy Corporation, Pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934
	99.1	Certification of Chief Executive Officer of Commonwealth Energy Corporation, Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*
	99.2	Certification of Chief Financial Officer of Commonwealth Energy Corporation, Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002*

* Previously filed with the original filing.

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(1)	Each of these exhibits is incorporated herein by reference to Commonwealth Energy Corporation’s Form 10 filed with the Securities and Exchange Commission on August 9, 2001 (File No. 000-33069).

(2)	Each of these exhibits is incorporated by reference to Commonwealth Energy’s Form 10/A filed with the Securities and Exchange Commission on November 14, 2001 (File No. 000-33069).

(3)	Each of these exhibits is incorporated by reference to Commonwealth Energy Corporation’s Form 10/A filed with the Securities and Exchange Commission on June 10, 2002.

(4)	Each of these exhibits is incorporated by reference to Commonwealth Energy’s Form 10/A filed with the Securities and Exchange Commission on April 10, 2002 (File No. 000-33069).

(5)	Each of these exhibits is incorporated by reference to Commonwealth Energy’s Form 10-Q filed with the Securities and Exchange Commission on December 17, 2001 (File No. 000-33069).


†	Confidential treatment is being sought with respect to certain portions of this agreement. Such portions have been omitted from this filing and have been filed separately with the Securities and Exchange Commission.