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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALPINE CORPORATION
[EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER]
<TABLE>
<S> <C>
DELAWARE 4911
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
</TABLE>
50 WEST SAN FERNANDO STREET
SAN JOSE, CA 95113
(408) 995-5115
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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PETER CARTWRIGHT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CALPINE CORPORATION
50 WEST SAN FERNANDO STREET
SAN JOSE, CA 95113
(408) 995-5115
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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<S> <C>
SCOTT D. LESTER, ESQ. JOSEPH A. COCO, ESQ.
BROBECK, PHLEGER & HARRISON LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ONE MARKET 919 THIRD AVENUE
SPEAR STREET TOWER NEW YORK, NY 10022-3897
SAN FRANCISCO, CA 94105 (212) 735-3000
(415) 442-0900
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] 333-72583
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, 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. [ ]
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(c) OF THE SECURITIES ACT OF 1933, AS AMENDED.
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of each class of Amount to Be Aggregate Offering Aggregate Offering Amount of
Securities To Be Registered Registered Price Per Unit Price(1) Registration Fee
- --------------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
7-5/8% Senior Notes Due
2006 and 7-3/4% Senior
Notes Due 2009............. $100,000,000 -- $100,000,000 $27,800
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(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement is filed with the Securities and Exchange
Commission (the "Commission") pursuant to Rule 462(b) under the Securities Act
of 1933, as amended (the "Securities Act"), by Calpine Corporation (the
"Company"). In accordance with Rule 429 under the Securities Act, this
Registration Statement incorporates by reference the contents of the
Registration Statement on Form S-3 (Registration No. 333-72583) which was
declared effective by the Commission on March 22, 1999 relating to the offering
of $500,000,000 of Senior Notes and 6,900,000 shares of Common Stock.
CERTIFICATION
The Company hereby certifies to the Commission that (i) it has instructed
its bank to pay the Commission the filing fee set forth on the cover page of
this Registration Statement by a wire transfer of such amount to the
Commission's account at Mellon Bank as soon as practicable (but no later than
the close of business on March 25, 1999), (ii) it will not revoke such
instructions, (iii) it has sufficient funds in the relevant account to cover
the amount of such filing fee, and (iv) it will confirm receipt of such
instructions by its bank during the bank's regular business hours no later than
March 25, 1999.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
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<CAPTION>
EXHIBIT
NO. DESCRIPTION
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5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of Arthur Andersen LLP, independent accountants
23.2 Consent of Moss Adams LLP, independent accountants
23.3 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit
5.1).
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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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of San Jose, State of California, on this 24th day of
March, 1999.
CALPINE CORPORATION
By /s/ ANN B. CURTIS
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Ann B. Curtis
Executive Vice President and Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this the registration statement has been signed below by the following persons
on behalf of Calpine and in the capacities and on the dates indicated:
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman, President, March 24, 1999
- ------------------------------ Chief Executive Officer,
Peter Cartwright and Director
(Principal Executive Officer)
/s/ ANN B. CURTIS Executive Vice President March 24, 1999
- ------------------------------ and Director
Ann B. Curtis (Principal Financial and
Accounting Officer)
* Director March 24, 1999
- ------------------------------
Jeffrey E. Garten
* Director March 24, 1999
- ------------------------------
Susan C. Schwab
* Director March 24, 1999
- ------------------------------
George J. Stathakis
* Director March 24, 1999
- ------------------------------
John O. Wilson
* Director March 24, 1999
- ------------------------------
V. Orville Wright
*By: /s/ ANN B. CURTIS Attorney-in-fact March 24, 1999
- ------------------------------
Ann B. Curtis
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
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<S> <C>
5.1 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of Arthur Andersen LLP, independent accountants
23.2 Consent of Moss Adams LLP, independent accountants
23.3 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit
5.1).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
March 24, 1999
Calpine Corporation
50 West San Fernando Street
San Jose, CA 95113
Re: Calpine Corporation
Registration Statement on Form S-3 for 6,900,000 Shares of
Common Stock and $600.0 million of Senior Notes
Ladies and Gentlemen:
We have acted as counsel to Calpine Corporation, a Delaware
corporation (the "Company"), in connection with the proposed issuance and sale
by the Company of up to 6,900,000 shares of the Company's Common Stock (the
"Shares") and $600.0 million in aggregate principal amount of Senior Notes (the
"Senior Notes") pursuant to the Company's Registration Statement on Form S-3
(the "Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act").
This opinion is being furnished in accordance with the
requirements of Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the
corporate proceedings taken by the Company in connection with the issuance and
sale of the Shares and the Senior Notes. Based on such review, we are of the
opinion that:
1. The Shares have been duly authorized, and if, as and when
issued in accordance with the Registration Statement and the related prospectus
(as amended and supplemented through the date of issuance) will be legally
issued, fully paid and nonassessable; and
2. The Senior Notes have been duly authorized, and, when duly
executed by the Company and duly authenticated by the trustee in accordance with
the provisions of the Indenture, will constitute valid and legally binding
obligations of the Company.
We consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" in
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Calpine Corporation
Page 2
the prospectus which is part of the Registration Statement. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act, the rules and regulations
of the Securities and Exchange Commission promulgated thereunder, or Item 509 of
Regulation S-K.
This opinion letter is rendered as of the date first written
above and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above and we render no opinion,
whether by implication or otherwise, as to any other matters relating to the
Company or the Shares and the Senior Notes.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February 5,
1999 in Calpine Corporation's Form 10-K for the year ended December 31, 1998 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
March 24, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Calpine Corporation for the registration of 6,900,000 shares of
its common stock and 7 5/8% Senior Notes due 2006 and 7 3/4% Senior Notes due
2009, of our report of Sumas Cogeneration Company, L.P. and Subsidiary dated
January 20, 1999, on our audits of the consolidated financial statements of
Sumas Cogeneration Company, L.P. and Subsidiary as of December 31, 1998 and
1997, and for each of the three years ended December 31, 1998, which report is
included in Calpine Corporation's 1998 Annual Report on Form 10-K, filed with
the Securities and Exchange Commission. We also consent to the reference to our
firm under the caption "Experts."
MOSS ADAMS LLP
Everett, Washington
March 24, 1999
