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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 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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NRG ENERGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1724239
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1221 NICOLLET MALL, SUITE 700
MINNEAPOLIS, MINNESOTA 55403
(Address of Principal Executive Offices) (Zip Code)
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NRG ENERGY, INC.
2000 LONG-TERM INCENTIVE COMPENSATION PLAN
(Full titles of the Plans)
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JAMES J. BENDER, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
NRG ENERGY, INC.
1221 NICOLLET MALL, SUITE 700
MINNEAPOLIS, MINNESOTA 55403
(Name and Address of Agent for Service)
(612) 373-5300
(Telephone number, including area code, of agent for service)
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COPIES TO:
RICHARD M. RUSSO, ESQ.
GIBSON, DUNN & CRUTCHER LLP
1801 CALIFORNIA STREET, SUITE 4100
DENVER, COLORADO 80202
(303) 298-5700
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price per Aggregate Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee(2)
------------------- ------------- ------------------ ------------------ -------------
<S> <C> <C> <C> <C>
Common stock, par
value $0.01 per share(3) 4,364,182 shares N/A $41,547,013 $10,968.41
Common stock, par 4,635,818 shares N/A $76,490,997 $20,193.62
value $0.01 per share(4)
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Total 9,000,000 shares N/A $118,038,010 $31,162.03
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(1) This Registration Statement shall also cover any additional shares of
common stock that become issuable under the NRG Energy, Inc. 2000
Long-Term Incentive Compensation Plan (the "Plan") by reason of any
stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration that results
in an increase in the number of the outstanding shares of common stock.
(2) Calculated solely for purposes of calculating the amount of the
registration fee.
(3) Pursuant to Rule 457(h)(1), the filing fee for the 4,364,182 shares
subject to options that have been approved is calculated based upon the
weighted average of the various exercise prices for such shares, which
is $9.52 per share.
(4) Pursuant to Rule 457(h)(1), the filing fee for the 4,635,818 shares
subject to options that have not yet been approved is calculated based
upon the average high and low prices of our common stock reported on
June 1, 2000, which is $16.50 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, including all
material incorporated by reference therein;
(b) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000;
(c) The Registrant's Current Reports on Form 8-K filed
with the Commission on March 30, 2000, April 7, 2000
and April 20, 2000;
(d) The description of the Registrant's Common Stock to
be offered hereby contained in the Registrant's
Registration Statement on Form 8-A filed with the
Commission on May 17, 2000;
All documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act") after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any document, and any statement contained in a document, incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in any other subsequently filed document that
also is incorporated or deemed to be incorporated by reference herein, modifies
or supersedes such document or statement. Any such document or statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement. Subject to the foregoing,
all information appearing in this Registration Statement is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best
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interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards to
those set forth above, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsection (a) and (b) of Section 145 or in
the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation may purchase and maintain insurance on behalf
of a director or officer of the corporation against any liability asserted
against such officer or director and incurred by him or her in any such capacity
or arising out of his or her status as such, whether or not the corporation
would have the power to indemnify him or her against such liabilities under
Section 145.
As authorized by Section 145 of the DGCL, each director and officer of
NRG may be indemnified by NRG against expenses (including attorney's fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred in connection with the defense or settlement of any threatened, pending
or completed legal proceedings in which he is involved by reason of the fact
that he is or was a director or officer of NRG if he acted in good faith and in
a manner that he reasonably believed to be in or not opposed to the best
interest of NRG and, with respect to any criminal action or proceeding, if he
had no reasonable cause to believe that his conduct was unlawful. However, if
the legal proceeding is by or in the right of NRG, the director or officer may
not be indemnified in respect of any claim, issue or matter as to which he shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to NRG unless a court determines otherwise.
In addition, Article VI of NRG's By-Laws provides that NRG shall
indemnify and hold harmless, to the fullest extent permitted by applicable law,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding") by reason of the fact that he
or she, or a person for whom he or she is the legal representative, is or was a
director, officer, employee or agent of NRG or is or was serving at the request
of NRG as a director, officer, employee or agent of another company or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. NRG shall be required
to indemnify a person in connection with a Proceeding initiated by such person
only if the Proceeding was authorized by the Board of Directors of NRG.
All of NRG's directors have entered into indemnity agreements that
obligate NRG to indemnify such directors to the fullest extent permitted by the
DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
Exhibit Number Exhibit
4.1 The description of the Registrant's Common Stock. Reference is made to
the description of the Registrant's Common Stock included in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on May 17, 2000.
4.2 Specimen Certificate of the Registrant's Common Stock (incorporated by
reference to Exhibit 4.1 of Registrant's Registration Statement on Form
S-1 (333-35096)).
5.1 Opinion and consent of Gibson, Dunn & Crutcher LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Public Accountants.
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on the signature pages to this Registration
Statement on Form S-8).
ITEM 9. UNDERTAKING
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 1933 Act; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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; and (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 clauses (1)(i) and (l)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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, and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold upon the termination of the
offering under the Assumed Option Plans.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnity provisions incorporated by reference in
Item 6, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
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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-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Minneapolis, State of Minnesota, on this 7th day
of June, 2000.
NRG ENERGY, INC.
By: /s/ Leonard A. Bluhm
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Leonard A. Bluhm
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Executive Vice President and Chief
Financial Officer (Principal Financial
Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Leonard Bluhm and James J. Bender, and
each of them, his true and lawful attorney-in-fact and agent, 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) to this Registration Statement, 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 attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ David H. Peterson
-------------------------------- Chairman of the Board, President and June 7, 2000
David H. Peterson Chief Executive Officer (Principal
Executive Officer)
/s/ Leonard A. Bluhm
-------------------------------- Executive Vice President and Chief June 7, 2000
Leonard A. Bluhm Financial Officer (Principal Financial
Officer)
/s/ David E. Ripka
-------------------------------- Controller (Principal Accounting June 7, 2000
David E. Ripka Officer)
/s/ Gary R. Johnson
-------------------------------- Director June 7, 2000
Gary R. Johnson
/s/ Cynthia L. Lesher
-------------------------------- Director June 7, 2000
Cynthia L. Lesher
/s/ Edward J. McIntyre
-------------------------------- Director June 7, 2000
Edward J. McIntyre
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EXHIBIT INDEX
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Exhibit Number Exhibit
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<S> <C>
4.1 The description of the Registrant's Common Stock. Reference is
made to the description of the Registrant's Common Stock
included in the Registrant's Registration Statement on Form
8-A filed with the Commission on May 17, 2000.
4.2 Specimen Certificate of the Registrant's Common Stock
(incorporated by reference to Exhibit 4.1 of Registrant's
Registration Statement on Form S-1 (333-35096)).
5.1 Opinion and consent of Gibson, Dunn & Crutcher LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Public
Accountants.
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit
5.1).
24.1 Power of Attorney (included on the signature pages to this
Registration Statement on Form S-8).
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