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As filed with the Securities and Exchange Commission on December 27, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act Of 1933
______________________
CATALYTICA ENERGY SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
______________________
DELAWARE 77-0410420
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
430 Ferguson Drive
Mountain View, CA 94043-5272
(Address, including zip code, of Registrant's Principal Executive Offices)
______________________
CATALYTICA ENERGY SYSTEMS, INC.
(formerly Catalytica Combustion Systems, Inc.)
1995 STOCK PLAN (as amended and restated October 26, 2000)
2000 EMPLOYEE STOCK PURCHASE PLAN
______________________
Craig N. Kitchen
President and Chief Executive Officer
Catalytica Energy Systems, Inc.
430 Ferguson Drive
Mountain View, CA 94043-5272
(650) 960-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________________
Copy to:
August J. Moretti
Kyle Guse
Heller Ehrman White & McAuliffe
2500 Sand Hill Road, Suite 100
Menlo Park, California 94025-7063
(650) 234-4229
______________________
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock of the Registrant to be issued upon:
exercise of options granted under the 1995 Stock Plan
(as amended and restated October 26, 2000) 2,000,000 shares $ 9.59 $ 19,180,000 $ 4,795.00
exercise of options granted under the
2000 Employee Stock Purchase Plan 1,500,000 shares $13.19 $ 19,785,000 $ 4,946.25
Total 3,500,000 shares $ 38,965,000 $ 9,741.25
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) The Proposed Maximum Offering Price Per Share represents the following
estimates calculated in accordance with Rule 457(h) under the Securities
Act of 1933, as amended (the "Securities Act"). With respect to 1,236,108
shares subject to outstanding options to purchase Common Stock under the
1995 Stock Plan described above, the Proposed Maximum Offering Price Per
Share is equal to the weighted average exercise price of $7.37 per share
pursuant to Rule 457(h) under the Securities Act. With respect to 2,263,892
shares of Common Stock available for future grant under the 1995 Stock Plan
and the 2000 Employee Stock Purchase Plan, the estimated Proposed Maximum
Offering Price Per Share of $13.19, which was the average of the high and
low prices of the Registrant's Common Stock on the Nasdaq National Market
on December 18, 2000, as determined pursuant to Rule 457(c) under the
Securities Act solely for the purpose of calculating the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission") by Catalytica Energy Systems, Inc., a
Delaware corporation (the "Registrant"):
1. The Registrant's Prospectus, filed with the Commission on November 21,
2000, pursuant to Rule 424(b) promulgated under the Securities Act of
1933, as amended (the "Securities Act"), and as supplemented by the
Prospectus Supplement filed with the Commission on December 11, 2000.
2. The description of Registrant's Common Stock contained in Registrant's
Registration Statement on Form 8-A filed with the Commission on
November 15, 2000, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment indicating that all securities
offered have been sold or deregistering all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Certificate of Incorporation
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article XI of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
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Article VIII of the Registrant's Amended and Restated Bylaws provides for
the indemnification of officers, directors and third parties acting on behalf of
the Registrant to the fullest extent authorized by the Delaware General
Corporation Law if authorized by the Board of Directors.
The Registrant has entered into indemnification agreements with its
directors, in addition to indemnification provided for in the Registrant's
Bylaws, and intends to enter into indemnification agreements with any new
directors in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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5.1 Opinion of Heller Ehrman White McAuliffe LLP
10.1* 1995 Stock Plan (as amended and restated October 26, 2000)
10.18* Employee Stock Purchase Plan
10.20* Catalytica Energy Systems, Inc. 1995 Stock Plan (as amended and
restated October 26, 2000)
23.1 Independent Auditors' Consent of Ernst & Young LLP
23.2 Independent Accountants' Consent of PricewaterhouseCoopers, LLP
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see the signature page hereto).
*Previously filed as an exhibit to Registrant's Registration Statement on
Form S-1 (File No. 333-44772), declared effective November 20, 2000.
ITEM 9. UNDERTAKINGS.
(a) The 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 to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information 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 Section
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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 provisions described in Item 6 hereof, 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 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.
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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 Mountain View, California on December 19, 2000.
CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ Craig M. Kitchen
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Craig M. Kitchen, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Craig M. Kitchen and Dennis Riebe
and each of them acting individually, as his attorneys-in-fact, each with full
power of substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorney to any and all amendments said Registration
Statement.
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:
<TABLE>
<CAPTION>
Signature Title Title
----------------------------- ------------------------------------------------- -----------
<S> <C> <C>
/s/ Ricardo B. Levy Director and Chairman of the Board December 19, 2000
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Ricardo B. Levy
/s/ Craig M. Kitchen Chief Executive Officer (Principal Executive December 19, 2000
--------------------------- Officer) and Director
Craig M. Kitchen
/s/ Dennis Riebe Chief Financial Officer December 19, 2000
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Dennis Riebe
/s/ Lawrence W. Briscoe Director December 19, 2000
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Lawrence W. Briscoe
/s/ William B. Ellis Director December 19, 2000
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William B. Ellis
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/s/ Frederick M. O'Such Director December 19, 2000
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Frederick M. O'Such
/s/ John A. Urquhart Director December 19, 2000
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John A. Urquhart
/s/ Thomas E. White Director December 19, 2000
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Thomas E. White
/s/ Ernest Mario Director December 19, 2000
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Ernest Mario
/s/ Howard I. Hoffen Director December 19, 2000
---------------------------
Howard I. Hoffen
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Heller Ehrman White McAuliffe LLP.
10.1* 1995 Stock Plan (as amended and restated October 26, 2000)
10.18* Employee Stock Purchase Plan
10.20* Catalytica Energy Systems, Inc. 1995 Stock Plan (as amended and
restated October 26, 2000)
23.1 Independent Auditors' Consent of Ernst & Young LLP
23.2 Independent Accountants' Consent of PricewaterhouseCoopers, LLP
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see the signature page hereto).
* Previously filed as an exhibit to Registrant's Registration
Statement on Form S-1 (File No. 333-44772), declared effective November 20,
2000.
