As filed with the Securities and Exchange Commission on April 4, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALPINE CORPORATION
(Exact name of Corporation as specified in its charter)
DELAWARE 77-02112977
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
50 WEST SAN FERNANDO STREET, SAN JOSE, CALIFORNIA 95113
(Address of principal executive offices) (Zip Code)
CALPINE CORPORATION RETIREMENT SAVINGS PLAN
(Full title of the plan)
ANN B. CURTIS
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND
CORPORATE SECRETARY
CALPINE CORPORATION
50 WEST SAN FERNANDO STREET, SAN JOSE, CALIFORNIA 95113
(Name and address of agent for service)
(408) 995-5115
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S>
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
- ------------ ---------------- ---------------- ----------- ----------------
<C> <C> <C> <C>
Common Stock, 750,000 shares $83.3125 $62,484,375 $16,496
par value $.001
per share (3)
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "1933 Act"), the number of shares of Common Stock registered
hereby is subject to adjustment to prevent dilution by reason of any
stock dividend, stock split, recapitalization or other similar
transaction that results in an increase in the number of the
outstanding shares of Common Stock of Calpine Corporation.
(2) Calculated in accordance with Rule 457(h) under the 1933 Act on the
basis of the average of the high and low sales prices per share of
Common Stock on March 28, 2000, as reported by the New York Stock
Exchange.
(3) Pursuant to Rule 416(c) under the 1933 Act, this Registration Statement
also registers an indeterminate amount of participation interests in
the Calpine Retirement Savings Plan.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Calpine Corporation (the "Corporation") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Corporation's Annual Report on Form 10-K
for the fiscal year ended December 31, 1999,
filed with the Commission on February 29,
2000.
(b) The Corporation's Current Reports on Form
8-K as filed with the Commission on February
9, 2000 (two reports), March 30, 2000 and
April 3, 2000.
(c) The description of the Common Stock
contained in Corporation's Registration
Statement on Form 8-A, filed with the
Commission on August 20, 1996, pursuant to
Section 12 of the Securities Act of 1934, as
amended (the "1934 Act").
(d) The Annual Report of Form 11-K of the
Calpine Corporation Retirement Savings Plan
(the "Plan") for the fiscal year ended
December 31, 1998, filed with the Commission
on the date of this Form S-8.
All documents filed by the Corporation or by the Plan pursuant
to Section 13(a), 13(c), 14 or 15(d) of 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 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 subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Corporation's Certificate of Incorporation limits the
liability of directors to the maximum extent permitted by Delaware law. Delaware
law provides that a director of a corporation will not be personally liable for
monetary damages for breach of such individual's fiduciary duties as a director
except for liability (i) for any breach of such director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation Law,
or (iv) for any transaction from which a director derives an improper personal
benefit.
The Corporation's Bylaws provide that the Corporation is
required to indemnify its directors, and that the Board of Directors in its
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discretion has the power on behalf of the Corporation to indemnify the officers,
employees and other agents of the Corporation, in each case to the full extent
permitted by law. The Corporation believes that indemnification under its Bylaws
covers at least negligence and gross negligence on the part of an indemnified
party and permits the Corporation to advance expenses incurred by an indemnified
party in connection with the defense of any action or proceeding arising out of
such party's status or service as a director, officer, employee or other agent
of the Corporation upon an undertaking by such party to repay such advances if
it is ultimately determined that such party is not entitled to indemnification.
The Corporation has entered into separate indemnification
agreements with each of its directors and officers. These agreements require the
Corporation, among other things, to indemnify such director or officer against
expenses (including attorneys' fees), judgments, fines and settlements
(collectively, "Liabilities") paid by such individual in connection with any
action, suit or proceeding arising out of such individual's status or service as
a director or officer of the Corporation (other than Liabilities arising from
willful misconduct or conduct that is knowingly fraudulent or deliberately
dishonest) and to advance expenses incurred by such individual in connection
with any proceeding against such individual with respect to which such
individual may be entitled to indemnification by the Corporation. The
Corporation believes that its Certificate of Incorporation and Bylaw provisions
and indemnification agreements are necessary to attract and retain qualified
persons as directors and officers.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) Number Exhibit
4.1 The Amended and Restated Certificate of Incorporation of the
Corporation is incorporated by reference to the Corporation's Registration
Statement on Form S-1 (Registration Statement No. 33-73160).
4.2 The Amended and Restated Bylaws of the Corporation are
incorporated by reference to the Corporation's Registration Statement on
Form S-1 (Registration Statement No. 33-73160).
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney of Susan C. Schwab
24.2 Power of Attorney of George J. Stathakis
24.3 Power of Attorney of Jeffrey E. Garten
24.4 Power of Attorney of John O. Wilson
24.5 Power of Attorney of V. Orville Wright
No opinion of counsel as to the legality of the Common Stock
being registered is included in this Registration Statement because no original
issue shares will be offered and sold under the Plan.
The Corporation has obtained from the Internal Revenue Service
a determination letter that the Plan is qualified under Section 401 of the
Internal Revenue Code of 1986, as amended, and hereby undertakes to submit any
amendments to the Plan to the IRS in a timely manner and to make any changes
required by the IRS to maintain the qualification of the Plan under Section 401.
Item 9. Undertakings.
A. The undersigned registrants hereby undertake: (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 (1)(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 a 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 at the termination of the offering.
B. The undersigned registrants hereby undertake 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 (where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
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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 foregoing provisions, or otherwise, the
registrants have 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 a registrant of expenses incurred or
paid by a director, officer, or controlling person of a registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer registrant, or controlling person in connection with the
securities being registered, a 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 San Jose, State of California, on this
4th day of April, 2000.
CALPINE CORPORATION
By: /s/Peter Cartwright
--------------------
Peter Cartwright
President, Chief Executive Officer and
Chairman of the Board
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.
Signature Title Date
----------- ----- ----
/s/ Peter Cartwright President, Chief Executive Officer April 4, 2000
- -------------------- and Chairman of the Board
Peter Cartwright (Principal Executive Officer)
/s/ Ann B. Curtis Executive Vice President, April 4, 2000
- ----------------- Chief Financial Officer, and
Ann B. Curtis Corporate Secretary and Director
(Principal Financial Officer
and Principal Accounting Officer)
* Director April 4, 2000
- -------------------
Susan C. Schwab
* Director April 4, 2000
- -------------------
George J. Stathakis
* Director April 4, 2000
- -------------------
Jeffrey E. Garten
* Director April 4, 2000
- -------------------
John O. Wilson
* Director April 4, 2000
- -------------------
V. Orville Wright
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*By Power of Attorney
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned has duly caused this Registration Statement to be
signed Calpine Corporation Retirement Savings Plan, thereunto duly authorized,
in the City of San Jose, State of California, on the 4th day of April, 2000.
CALPINE CORPORATION
RETIREMENT SAVINGS PLAN
By: /s/ Peter Cartwright
-------------------
Peter Cartwright
Chairman of the Board
7
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 28, 2000,
included in Calpine Corporation Retirement Savings Plan Form 11-K for the year
ended December 31, 1998, and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
San Jose, California,
March 28, 2000
8
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned director of Calpine Corporation, a Delaware
corporation, does hereby constitute and appoint Peter Cartwright and Ann B.
Curtis, and each of them, the lawful attorneys-in-fact and agents of the
undersigned, each with the power of substitution and resubstitution, with full
power and authority to execute a Registration Statement on Form S-8 for
registration in connection with the Calpine Corporation Retirement Savings Plan
(the "Plan") shares of Calpine Corporation common stock, par value $.001 per
share ("Calpine Common Stock"), and Plan participation interests ("Plan
Participation Interests"), and to do any and all other acts and things and to
execute any and all other instruments that said attorneys and agents, or any one
of them, determine may be necessary, advisable or required to enable the
corporation to comply with the Securities Act of 1933, as amended, and the
rules, regulations and requirements of the Securities and Exchange Commission
thereunder, and with the related securities laws of any state or other
jurisdiction, in connection with the registration of said shares of Calpine
Common Stock and Plan Participation Interests. Without limiting the generality
of the foregoing, the powers and authority granted include the power and
authority to sign on behalf of the undersigned director the Registration
Statement any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and the undersigned hereby ratifies and
confirms all that said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 8th day of December 1999.
/s/ Susan C. Schwab
-------------------
Susan C. Schwab
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EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned director of Calpine Corporation, a Delaware
corporation, does hereby constitute and appoint Peter Cartwright and Ann B.
Curtis, and each of them, the lawful attorneys-in-fact and agents of the
undersigned, each with the power of substitution and resubstitution, with full
power and authority to execute a Registration Statement on Form S-8 for
registration in connection with the Calpine Corporation Retirement Savings Plan
(the "Plan") shares of Calpine Corporation common stock, par value $.001 per
share ("Calpine Common Stock"), and Plan participation interests ("Plan
Participation Interests"), and to do any and all other acts and things and to
execute any and all other instruments that said attorneys and agents, or any one
of them, determine may be necessary, advisable or required to enable the
corporation to comply with the Securities Act of 1933, as amended, and the
rules, regulations and requirements of the Securities and Exchange Commission
thereunder, and with the related securities laws of any state or other
jurisdiction, in connection with the registration of said shares of Calpine
Common Stock and Plan Participation Interests. Without limiting the generality
of the foregoing, the powers and authority granted include the power and
authority to sign on behalf of the undersigned director the Registration
Statement any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and the undersigned hereby ratifies and
confirms all that said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 8th day of December 1999.
/s/ George J. Stathakis
-----------------------
George J. Stathakis
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EXHIBIT 24.3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned director of Calpine Corporation, a Delaware
corporation, does hereby constitute and appoint Peter Cartwright and Ann B.
Curtis, and each of them, the lawful attorneys-in-fact and agents of the
undersigned, each with the power of substitution and resubstitution, with full
power and authority to execute a Registration Statement on Form S-8 for
registration in connection with the Calpine Corporation Retirement Savings Plan
(the "Plan") shares of Calpine Corporation common stock, par value $.001 per
share ("Calpine Common Stock"), and Plan participation interests ("Plan
Participation Interests"), and to do any and all other acts and things and to
execute any and all other instruments that said attorneys and agents, or any one
of them, determine may be necessary, advisable or required to enable the
corporation to comply with the Securities Act of 1933, as amended, and the
rules, regulations and requirements of the Securities and Exchange Commission
thereunder, and with the related securities laws of any state or other
jurisdiction, in connection with the registration of said shares of Calpine
Common Stock and Plan Participation Interests. Without limiting the generality
of the foregoing, the powers and authority granted include the power and
authority to sign on behalf of the undersigned director the Registration
Statement any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and the undersigned hereby ratifies and
confirms all that said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 8th day of December 1999.
/s/ Jeffrey E. Garten
---------------------
Jeffrey E. Garten
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EXHIBIT 24.4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned director of Calpine Corporation, a Delaware
corporation, does hereby constitute and appoint Peter Cartwright and Ann B.
Curtis, and each of them, the lawful attorneys-in-fact and agents of the
undersigned, each with the power of substitution and resubstitution, with full
power and authority to execute a Registration Statement on Form S-8 for
registration in connection with the Calpine Corporation Retirement Savings Plan
(the "Plan") shares of Calpine Corporation common stock, par value $.001 per
share ("Calpine Common Stock"), and Plan participation interests ("Plan
Participation Interests"), and to do any and all other acts and things and to
execute any and all other instruments that said attorneys and agents, or any one
of them, determine may be necessary, advisable or required to enable the
corporation to comply with the Securities Act of 1933, as amended, and the
rules, regulations and requirements of the Securities and Exchange Commission
thereunder, and with the related securities laws of any state or other
jurisdiction, in connection with the registration of said shares of Calpine
Common Stock and Plan Participation Interests. Without limiting the generality
of the foregoing, the powers and authority granted include the power and
authority to sign on behalf of the undersigned director the Registration
Statement any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and the undersigned hereby ratifies and
confirms all that said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 8th day of December 1999.
/s/ John O. Wilson
------------------
John O. Wilson
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EXHIBIT 24.5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned director of Calpine Corporation, a Delaware
corporation, does hereby constitute and appoint Peter Cartwright and Ann B.
Curtis, and each of them, the lawful attorneys-in-fact and agents of the
undersigned, each with the power of substitution and resubstitution, with full
power and authority to execute a Registration Statement on Form S-8 for
registration in connection with the Calpine Corporation Retirement Savings Plan
(the "Plan") shares of Calpine Corporation common stock, par value $.001 per
share ("Calpine Common Stock"), and Plan participation interests ("Plan
Participation Interests"), and to do any and all other acts and things and to
execute any and all other instruments that said attorneys and agents, or any one
of them, determine may be necessary, advisable or required to enable the
corporation to comply with the Securities Act of 1933, as amended, and the
rules, regulations and requirements of the Securities and Exchange Commission
thereunder, and with the related securities laws of any state or other
jurisdiction, in connection with the registration of said shares of Calpine
Common Stock and Plan Participation Interests. Without limiting the generality
of the foregoing, the powers and authority granted include the power and
authority to sign on behalf of the undersigned director the Registration
Statement any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and the undersigned hereby ratifies and
confirms all that said attorneys and agents, or any one of them, shall do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 8th day of December 1999.
/s/ V. Orville Wright
---------------------
V. Orville Wright
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