<PAGE>
As filed with the Securities and Exchange Commission on January 12, 2001
Registration No. 333-44772
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________
CATALYTICA ENERGY SYSTEMS, INC.
(Exact Name of Corporation as Specified in Its Charter)
______________
<TABLE>
<S> <C> <C>
Delaware 3629 77-0410420
(State or other jurisdiction Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
CATALYTICA ENERGY SYSTEMS, INC.
430 FERGUSON DRIVE
MOUNTAIN VIEW, CA 94043-5273
(650) 960-3000
(Address, including zip code, and telephone number, including area code,
of Catalytica Energy Systems, Inc.'s principal executive offices)
CRAIG N. KITCHEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CATALYTICA ENERGY SYSTEMS, INC.
430 FERGUSON DRIVE
MOUNTAIN VIEW, CA 94043-5273
(650) 960-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________
Copies to:
AUGUST J. MORETTI
KYLE GUSE
Heller Ehrman White & McAuliffe LLP
2500 Sand Hill Road, Suite 100
Menlo Park, California 94025-7063
Telephone: (650) 234-4229
Facsimile: (650) 234-4299
______________
Approximate date of commencement of proposed sale to the public: As soon as
practicable following the effectiveness of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration 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 of 1933, 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: [_]
______________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities Aggregate Offering Amount of
to be Registered Price(1) Registration Fee (2)
----------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, par value $ 0.001 $62,548,000 $16,513
========================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(f) under the Securities Act of 1933,
as amended. In accordance with SEC Staff Legal bulletin No. 4 dated
September 16, 1997, the proposed maximum aggregate offering price is based
on the pro forma book value of the assets of the registrant as of September
30, 2000.
(2) Amount previously paid.
______________
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 which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(A) of
the Securities Act or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(A), may determine.
_____________________________________________________________________
Explanatory Note
The purpose of the Post-Effective Amendment No.1 to Form S-1
Registration Statement is to refile certain exhibits to the Registration
Statement, as set forth below in Item 16(a) of Part II.
<PAGE>
Part II
Information Not Required In Prospectus
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses to be paid by Catalytica Energy
Systems, Inc., other than the underwriting discounts and commissions payable by
us in connection with the sale of the common stock being registered. All amounts
shown are estimates except for the registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT
----------
TO BE
----------
PAID
----------
<S> <C>
Registration fee .................................. $ 16,513
NASDAQ National Market............................. 5,000
Blue sky qualification fees and expenses........... 50,000
Legal fees and expenses............................ 500,000
Accounting fees and expenses....................... 500,000
Transfer agent and registrar fees.................. 100,000
Miscellaneous expenses............................. 50,000
---------------------- ----------
Total.............................................. 1,221,513
==========
</TABLE>
Item 14. Indemnification of Officers and Directors.
Section 145 of the Delaware General Corporation Law permits indemnification
of officers and directors and other corporate agents under certain circumstances
and subject to certain limitations. Our Certificate of Incorporation and Bylaws
provide that we will indemnify our directors, officers, employees and agents to
the full extent permitted by Delaware General Corporation Law, including in
circumstances in which indemnification is otherwise discretionary under Delaware
law. The indemnification provisions in our Certificate of Incorporation and
Bylaws and the indemnification of our officers and directors for liabilities
(including reimbursement of expenses incurred) include indemnification for
liabilities arising under the Securities Act.
We intend to maintain director and officer liability insurance, if
available on reasonable terms, to insure our directors and officers against the
cost of defense, settlement or payment of a judgment under certain
circumstances. We also intend to enter into indemnification agreements with
each of our directors providing indemnification for each of them.
Item 15. Recent Sales of Unregistered Securities.
Since May 1997, we have sold and issued the following securities:
1. Since our incorporation in July 1995, we have from time to time
issued, and there remain outstanding, options to purchase an aggregate of
1,257,272 shares of common stock with exercise prices ranging from $0.40 to
$30 per share. Since our incorporation, options to purchase 16,856
shares of common stock have been exercised for aggregate consideration of
$8,354.
2. In January 1998, we issued to Enron Ventures Corp. (a subsidiary of
Enron Corp.) a total of 1,339,286 shares of Series B preferred stock for
aggregate consideration of $30,000,000. This transaction also conveyed to
Enron Ventures Corp. a three-year option to purchase up to an additional
535,715 shares of Series B preferred stock for $14.4 million, and a right
to purchase shares in certain future offerings. All of the shares of Series
B preferred stock and the options to purchase additional stock have been
transferred to Sundance Assets, L.P., an affiliate of Enron Corp. Under
the omnibus agreement with Sundance Assets, the option can be exercised on
a cashless basis beginning ten days after the distribution by Catalytica.
There were no underwriters employed in connection with any of the items set
forth in Item 15.
II-1
<PAGE>
The issuances of securities described in Item 15(1) were deemed to be
exempt from registration under the Securities Act in reliance on Rule 701
promulgated thereunder as transactions pursuant to compensatory benefit plans
approved by the registrant's board of directors. With respect to the grant of
stock options described in Item 15(1), an exemption from registration was
unnecessary in that none of the transactions involved a "sale" of securities as
this term is used in Section 2(3) of the Securities Act. The issuances of
securities described in Item 15(2) were deemed to be exempt from registration
under the Securities Act in reliance on Section 4(2) of the Securities Act and
Regulation D promulgated thereunder as transactions by an issuer not involving a
public offering. The recipients of securities in each such transaction
represented their intention to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and other instruments
issued in such transactions. All recipients either received adequate information
about us or had access, through employment or other relationships, to such
information.
There were no underwriters employed in connection with any of the
transactions set forth in Item 15.
Item 16. Exhibits and Financial Statement Schedules.
(A) EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
-------- -----------
<S> <C>
2.1(1) Assignment and Assumption Agreement between Catalytica, Inc. and the registrant effective as of July 25, 1995.
2.2 Employee Matters Agreement between Catalytica, Inc. and the registrant.
2.3 Master Trademark Ownership and License Agreement between Catalytica, Inc. and the registrant.
2.4 Tax Sharing Agreement between Catalytica, Inc., Synotex, Inc. and the registrant.
2.5 Master Confidential Disclosure Agreement between Catalytica, Inc. and the registrant.
2.6(1) Cross-License Agreement between Catalytica, Inc. and the registrant effective as of July 1995.
2.7(1) Cross-License Agreement between Catalytica Advanced Technologies, Inc. and Catalytica, Inc. dated July 1995.
2.8 Indemnification Agreement among Catalytica, Inc. and the registrant.
2.9 Master Transitional Services Agreement between Catalytica, Inc. and the registrant.
2.10 Real Estate Matters Agreement between Catalytica, Inc. and the registrant.
2.11 Master Separation Agreement between Catalytica, Inc. and the registrant.
3.1 Amended and Restated Certificate of Incorporation to be effective upon completion of the distribution of the Registrant's
Common Stock.
3.2(1) Amended and Restated Bylaws to be effective upon completion of the distribution of the Registrant's Common Stock.
4.1 Stock Certificate specimen of the Registrant.
5.1(1) Opinion of Heller Ehrman White & McAuliffe LLP.
8.1 Opinion of Heller Ehrman White & McAuliffe LLP regarding certain tax consequences of the distribution.
8.2 Opinion of Wilson Sonsini Goodrich & Rosati Professional Corporation regarding certain tax consequences of the
distribution.
10.1(2) 1995 Catalytica Combustion Systems, Inc. Stock Option Plan with agreements thereunder.
10.2(1) Promissory Notes and security documents issued to registrant from Dennis A. Orwig.
10.3(1) Promissory Note from Patrick T. Conroy issued to GENXON Power Systems LLC dated November 1997.
10.4(1) Promissory Notes from Peter B. Evans issued to registrant both dated July 20, 1999.
10.5(1) Form of Change of Control Severance Agreements between Ralph A. Dalla Betta and Catalytica, Inc. dated May 26, 1999,
Ricardo B. Levy and Catalytica, Inc. dated April 30, 1999, between Lawrence W. Briscoe and Catalytica, Inc. dated May 5,
1999, and between Dennis A. Orwig and Catalytica, Inc. dated April 15, 1999.
10.6(3) Limited Liability Company Operating Agreement of GENXON Power Systems, LLC, dated October 21, 1996.
10.7(4) Amendment No. 1, dated December 4, 1997, to the Operating Agreement of GENXON Power Systems, LLC.
10.8(5)+ Agreement, dated as of July 18, 1988, between Catalytica, Inc. and Tanaka Kikinzoku Kogyo K.K.
10.9(6)+ Agreement, dated as of January 31, 1995, between Catalytica, Inc. and Tanaka Kikinzoku Kogyo K.K.
10.10(1) Series B Preferred Stock Purchase Agreement, dated December 9, 1997, between Catalytica, Inc., Enron Ventures Corp. and
the registrant.
10.11(1) Omnibus Agreement, dated August 29, 2000, by and among Catalytica, Inc., Sundance Assets, L.P., Enron North America Corp.
and the registrant.
10.12+ Collaborative Commercialization and License Agreement among General Electric Co., GENXON Power System, LLC and the
registrant dated as of November 19, 1998.
10.13(1) Letter Agreement with Craig N. Kitchen dated June 6, 2000.
10.14(1) Letter Agreement with Peter B. Evans dated March 26, 1999.
10.15(1) Letter Agreement with Lawrence W. Briscoe dated June 3, 1994.
10.16(1) Form of Indemnification Agreement for directors of the registrant.
10.17(1) Registration Rights Agreement between Morgan Stanley Dean Witter Capital Partners and its affiliates and the registrant.
10.18(1) Employee Stock Purchase Plan of the Registrant.
10.19(1) Letter Agreement with Dennis S. Riebe dated August 29, 2000.
10.20(1) Catalytica Energy Systems, Inc. 1995 Stock Plan (as amended and restated October 26, 2000).
21.1(1) Subsidiaries of registrant.
23.1(1) Independent Auditors' Consent of Ernst & Young LLP.
23.2(1) Independent Accountants' Consent of PricewaterhouseCoopers, LLP.
23.3(1) Consent of Heller Ehrman White & McAuliffe LLP (included in Exhibit 5.1)
24.1(1) Power of Attorney (contained on page II-4).
27.1(1) Financial Data Schedule.
</TABLE>
-------------
+ Confidential treatment has been granted for portions of these agreements.
II-2
<PAGE>
(1) Previously filed as an exhibit to this registration statement.
(2) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-Q for the quarter ended September 30, 1998 (Commission File No. 0-20966).
(3) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-K for the year ended December 31, 1996 (Commission File No. 0-20966).
(4) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-K for the year ended December 31, 1997 (Commission File No. 0-20966).
(5) Incorporated by reference to exhibits filed with Catalytica, Inc.'s
Registration Statement on Form S-1 (Registration Statement No. 33-55696).
(6) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-K for the year ended December 31, 1994 (Commission File No. 0-20966).
(B) FINANCIAL STATEMENT SCHEDULE (none required).
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
Item 17. Undertakings.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement 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 hereunder, 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.
The undersigned registrant hereby undertakes that:
(1) 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 this Registration
Statement as of the time it was declared effective; and
(2) 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 the time shall be deemed to be the
initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post - Effective Amendment No. 1 to Form S-1 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Mountain View, California, on the 11th day of January, 2001.
CATALYTICA ENERGY SYSTEMS, INC.
By: /s/ Craig N. Kitchen
--------------------
Craig N. Kitchen
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Post Effective
Amendment No. 1 to Form S-1 Statement has been signed by the following persons
in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ricardo B. Levy* Director and Chairman of the January 11, 2001
------------------------------------------ Board
Ricardo B. Levy
/s/ Craig N. Kitchen* Chief Executive Officer January 11, 2001
------------------------------------------ (Principal Executive Officer)
Craig N. Kitchen
/s/ Dennis Riebe* Chief Financial Officer and January 11, 2001
------------------------------------------ Director
Dennis Riebe
/s/ Lawrence W. Briscoe* Director January 11, 2001
------------------------------------------
Lawrence W. Briscoe
/s/ William B. Ellis* Director January 11, 2001
------------------------------------------
William B. Ellis
/s/ Frederick M. O'Such* Director January 11, 2001
------------------------------------------
Frederick M. O'Such
/s/ John A. Urquhart* Director January 11, 2001
------------------------------------------
John A. Urquhart
/s/ Thomas E. White* Director January 11, 2001
------------------------------------------
Thomas E. White
/s/ Ernest Mario* Director January 11, 2001
------------------------------------------
Ernest Mario
/s/ Howard I. Hoffen* Director January 11, 2001
------------------------------------------
Howard I. Hoffen
*By: /s/ Craig N. Kitchen January 11, 2001
------------------------------------------
Craig N. Kitchen
Attorney-in-fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
2.1(1) Assignment and Assumption Agreement between Catalytica, Inc. and the registrant effective as of July 25, 1995.
2.2 Employee Matters Agreement between Catalytica, Inc. and the registrant.
2.3 Master Trademark Ownership and License Agreement between Catalytica, Inc. and the registrant.
2.4 Tax Sharing Agreement between Catalytica, Inc., Synotex, Inc. and the registrant.
2.5 Master Confidential Disclosure Agreement between Catalytica, Inc. and the registrant.
2.6(1) Cross-License Agreement between Catalytica, Inc. and the registrant effective as of July 1995.
2.7(1) Cross-License Agreement between Catalytica Advanced Technologies, Inc. and Catalytica, Inc. dated July 1995.
2.8 Indemnification Agreement among Catalytica, Inc. and the registrant.
2.9 Master Transitional Services Agreement between Catalytica, Inc. and the registrant.
2.10 Real Estate Matters Agreement between Catalytica, Inc. and the registrant.
2.11 Master Separation Agreement between Catalytica, Inc. and the registrant.
3.1 Amended and Restated Certificate of Incorporation to be effective upon completion of the distribution of the Registrant's
Common Stock.
3.2(1) Form of Amended and Restated Bylaws to be effective upon completion of the distribution of the Registrant's Common Stock.
4.1 Stock Certificate specimen of the Registrant.
5.1(1) Opinion of Heller Ehrman White & McAuliffe LLP.
8.1 Opinion of Heller Ehrman White & McAuliffe LLP regarding certain tax consequences of the distribution.
8.2 Opinion of Wilson Sonsini Goodrich & Rosati Professional Corporation regarding certain tax consequences of the
distribution.
10.1(2) 1995 Catalytica Combustion Systems, Inc. Stock Option Plan with agreements thereunder.
10.2(1) Promissory Notes and security documents issued to registrant from Dennis A. Orwig.
10.3(1) Promissory Note from Patrick T. Conroy issued to GENXON Power Systems LLC dated November 1997.
10.4(1) Promissory Notes from Peter B. Evans issued to registrant both dated July 20, 1999.
10.5(1) Form of Change of Control Severance Agreements between Ralph A. Dalla Betta and Catalytica, Inc. dated May 26, 1999,
Ricardo B. Levy and Catalytica, Inc. dated April 30, 1999, between Lawrence W. Briscoe and Catalytica, Inc. dated May 5,
1999, and between Dennis A. Orwig and Catalytica, Inc. dated April 15, 1999.
10.6(3) Limited Liability Company Operating Agreement of GENXON Power Systems, LLC, dated October 21, 1996.
10.7(4) Amendment No. 1, dated December 4, 1997, to the Operating Agreement of GENXON Power Systems, LLC.
10.8(5)+ Agreement, dated as of July 18, 1988, between Catalytica, Inc. and Tanaka Kikinzoku Kogyo K.K.
10.9(6)+ Agreement, dated as of January 31, 1995, between Catalytica, Inc. and Tanaka Kikinzoku Kogyo K.K.
10.10(1) Series B Preferred Stock Purchase Agreement, dated December 9, 1997, between Catalytica, Inc., Enron Ventures Corp. and
the registrant.
10.11(1) Omnibus Agreement, dated August 29, 2000, by and among Catalytica, Inc., Sundance Assets, L.P., Enron North America Corp.
and the registrant.
10.12+ Collaborative Commercialization and License Agreement among General Electric Co., GENXON Power System, LLC and the
registrant dated as of November 19, 1998.
10.13(1) Letter Agreement with Craig N. Kitchen dated June 6, 2000.
10.14(1) Letter Agreement with Peter B. Evans dated March 26, 1999.
10.15(1) Letter Agreement with Lawrence W. Briscoe dated June 3, 1994.
10.16(1) Form of Indemnification Agreement for directors of the registrant.
10.17(1) Registration Rights Agreement between Morgan Stanley Dean Witter Capital Partners and its affiliates and the registrant.
10.18(1) Employee Stock Purchase Plan of the Registrant.
10.19(1) Letter Agreement with Dennis S. Riebe dated August 29, 2000.
10.20(1) Catalytica Energy Systems, Inc. 1995 Stock Plan (as amended and restated October 26, 2000).
21.1(1) Subsidiaries of registrant.
23.1(1) Independent Auditors' Consent of Ernst & Young LLP.
23.2(1) Independent Accountants' Consent of PricewaterhouseCoopers, LLP.
23.3(1) Consent of Heller Ehrman White & McAuliffe LLP (included in Exhibit 5.1)
24.1(1) Power of Attorney (contained on page II-4).
27.1(1) Financial Data Schedule.
</TABLE>
_____________
+ Confidential treatment has been granted for portions of these agreements.
(1) Previously filed as an exhibit to this registration statement.
(2) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-Q for the quarter ended September 30, 1998 (Commission File No. 0- 20966).
(3) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-K for the year ended December 31, 1996 (Commission File No. 0-20966).
(4) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-K for the year ended December 31, 1997 (Commission File No. 0-20966).
(5) Incorporated by reference to exhibits filed with Catalytica, Inc.'s
Registration Statement on Form S-1 (Registration Statement No. 33-55696).
(6) Incorporated by reference to exhibits filed with Catalytica, Inc.'s Form
10-K for the year ended December 31, 1994 (Commission File No. 0-20966).
