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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 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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TNPC, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2208601
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 GLENVILLE STREET
GREENWICH, CONNECTICUT 06831
(Address of principal executive offices, including zip code)
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TNPC 2000 STOCK PLAN
(Full title of the plan)
MARC E. MANLY
MANAGING DIRECTOR, LAW AND GOVERNMENT AFFAIRS
10 GLENVILLE STREET
GREENWICH, CONNECTICUT 06831
(Name and address of agent for service)
(203) 531-0400
(Telephone number, including area code, of agent for service)
COPIES TO:
Scott N. Wulfe
Vinson & Elkins L.L.P.
2300 First City Tower, 1001 Fannin
Houston, Texas 77002
(713) 758-2222
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CALCULATION OF REGISTRATION FEE
================================================ ================== =================== =================== ==================
TITLE OF MAXIMUM PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE REGISTRATION FEE
------------------------------------------------ ------------------ ------------------- ------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share.......... 1,316,600 shares $3.88 $323,802,692 $85,484
Common Stock, par value $.01 per share.......... 1,430,000 shares $9.69
Common Stock, par value $.01 per share.......... 8,611,400 shares $21.00
Common Stock, par value $.01 per share.......... 7,061,400 shares $17.56
================================================ ================== =================== =================== ==================
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement shall also cover any additional shares of Common Stock
which become issuable under the TNPC 2000 Stock Plan by reason of any stock
dividend, stock split, recapitalization or any 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) As to all shares of Common Stock or options to acquire Common Stock issued
as of the date hereof, the maximum offering price per share has been calculated
in accordance with Rule 457(h) under the Securities Act of 1933, as amended. As
to all shares of common stock or options to acquire Common Stock to be issued
after the date hereof, the maximum offering price per share has been estimated
in accordance with Rule 457(h) under the Securities Act of 1933, as amended,
solely for the purpose of calculating the registration fee. The offering price
per share for options to acquire Common Stock is based on the price at which the
options may be exercised.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following are incorporated by reference and made a part of this
registration statement: (i) our latest prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) on October 5, 2000; and (ii) the
description of our common stock contained in our registration statement on Form
8-A, as filed with the Securities and Exchange Commission on October 2, 2000.
All documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the effective date of this registration statement, prior to the
filing of a post-effective amendment which indicates that all securities offered
by this registration statement have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference and to be a part of this registration statement from the date of
filing of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in any other subsequently filed document which also
is or is deemed to be incorporated by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this registration statement, except as so modified or
superseded.
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 of the Delaware General Corporation Law ("DGCL") provides
that a 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
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corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. Section 145 further provides that a corporation
similarly may indemnify any such person serving in any such capacity 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 the corporation to procure a
judgment in its favor 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, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of 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 Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Our certificate of incorporation, as amended, provides we shall
indemnify all of our current or former directors or officers to the fullest
extent permitted by the DGCL.
As permitted by the DGCL, our certificate of incorporation provides
that our directors shall have no personal liability to us or our stockholders
for monetary damages for breach of fiduciary duty as a director, except (1) for
any breach of the director's duty of loyalty to us or our stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (3) under Section 174 of the DGCL or (4) for any
transaction from which a director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Certain shares of restricted common stock issued under the TNPC 2000
Stock Plan are deemed to be exempt from registration pursuant to Section 4(2) of
the Securities Act of 1933, as amended, as a transaction by an issuer not
involving a public offering.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
4.1 Second Amended and Restated Certificate of Incorporation
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4.2 Amended and Restated Bylaws of TNPC (incorporated by reference
to Exhibit 3.2 filed with our registration statement on Form
S-1 (Registration No. 333-41412))
4.3 Form of common stock certificate (incorporated by reference to
Exhibit 4.1 filed with our registration statement on Form S-1
(Registration No. 333-41412))
4.4 Form of Class A warrant (incorporated by reference to Exhibit
4.2 filed with our registration statement on Form S-1
(Registration No. 333-41412))
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto)
24.1 Powers of Attorney (included on the signature page to this
registration statement)
UNDERTAKINGS
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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) 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 hereof) 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 Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(c) 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 (1)(a) and (1)(b) do 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 Exchange Act that are incorporated by
reference in this registration statement.
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(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.
(4) That, for the purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 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 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.
(5) 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 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 the City of Greenwich, State of Connecticut, on the 18th day of
October, 2000.
TNPC, INC.
By: /s/ H. EUGENE LOCKHART
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H. Eugene Lockhart
President, Chief Executive Officer and
Director (Principal Executive Officer)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints H. Eugene Lockhart, William I Jacobs and
Marc E. Manly, and each of them, with full power of substitution, their true and
lawful attorneys-in-fact and agents to do any and all acts and things in the
undersigned's name and on the undersigned's behalf in the undersigned's capacity
as an officer or director of TNPC, Inc. in connection with, and only in
connection with, the filing of this registration statement (including, but not
limited to, the execution of any and all instruments for the undersigned in the
undersigned's name which such person may deem necessary or advisable to enable
TNPC to comply with the Securities Act of 1933, as amended (the "Act") and
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with the filing of this registration statement), including
specifically, but not limited to, the power and authority to sign for the
undersigned any and all amendments, including post-effective amendments; and the
undersigned does hereby ratify and confirm all that such person or persons shall
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the 18th day of October, 2000.
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SIGNATURE TITLE
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<S> <C>
/s/ LOU L. PAI Chairman and Director
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Lou L. Pai
/s/ H. EUGENE LOCKHART President, Chief Executive Officer and Director
------------------------------------------ (Principal Executive Officer)
H. Eugene Lockhart
/s/ WILLIAM I JACOBS Managing Director, Chief Financial Officer and
------------------------------------------ Director (Principal Financial Officer)
William I Jacobs
/s/ STEPHEN NOLAN Controller (Principal Accounting Officer)
------------------------------------------
Stephen Nolan
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/s/ KENNETH L. LAY Director
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Kenneth L. Lay
/s/ JAMES V. DERRICK Director
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James V. Derrick
/s/ RICHARD A. CAUSEY Director
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Richard A. Causey
/s/ PETER T. GRAUER Director
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Peter T. Grauer
/s/ RAY J. GROVES Director
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Ray J. Groves
/s/ LINDA G. ALVARADO Director
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Linda G. Alvarado
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INDEX TO EXHIBITS
4.1 Second Amended and Restated Certificate of Incorporation
4.2 Amended and Restated Bylaws of TNPC (incorporated by reference
to Exhibit 3.2 filed with our registration statement on Form
S-1 (Registration No. 333-41412))
4.3 Form of common stock certificate (incorporated by reference to
Exhibit 4.1 filed with our registration statement on Form S-1
(Registration No. 333-41412))
4.4 Form of Class A warrant (incorporated by reference to Exhibit
4.2 filed with our registration statement on Form S-1
(Registration No. 333-41412))
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto)
24.1 Powers of Attorney (included on the signature page to this
registration statement)
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