As filed with the Securities and Exchange Commission on May 18, 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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CALPINE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 77-0212977
(State or other jurisdiction of (IRS employer identification
incorporation or organization) number)
50 West San Fernando Street
San Jose, California 95113
(Address, including zip code, of registrant's principal executive offices)
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2000 EMPLOYEE STOCK PURCHASE PLAN
(full title of plan)
--------------------------------------------
ANN B. CURTIS
Executive Vice President, Chief Financial Officer and Corporate Secretary
Calpine Corporation
50 West San Fernando Street
San Jose, California 95113
(408) 995-5115
(Name, address and telephone number, including area code, of agent for service)
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With copy to:
D. Michael Lefever, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 662-6000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title Of Each Proposed Proposed
Class Of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered Share Price Fee
- ------------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $104.7188 (2) $104,718,750 $27,646
$.001 par shares(1)
value.......
</TABLE>
(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 May 11, 2000, as reported by the New York Stock Exchange.
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<PAGE>
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 Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000, as filed with the Commission on May 15, 2000.
(c) 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.
(d) The description of the Common Stock contained in the Corporation's
Registration Statement on Form 8-A, filed with the Commission on
August 20, 1996, pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange 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, consistent with the
provisions of the Delaware General Corporation Law, provides that a director of
the 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
Certificate of Incorporation further provides that, if the Delaware General
Corporation Law is amended to reduce further the liability of a corporation's
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directors for breaches of fiduciary duty, then a director of the Corporation
shall not be liable for any such breach to the fullest extent permitted by the
law as so amended.
The Corporation's Bylaws provide that the Corporation is required to
indemnify its directors, and that the Board of Directors in its 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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
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 5.1 Opinion of Lisa M.
Bodensteiner, General Counsel of the Corporation, regarding
validity of
23.2 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
</TABLE>
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes 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 1933
Act;
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<PAGE>
(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 thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(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.
(2) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933 , as amended (the
"1933 Act"), each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) The undersigned registrant hereby undertakes 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) The undersigned registrant hereby undertakes 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 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 herein,
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 1933 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 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 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 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 18th day
of May, 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 and May 18, 2000
- -------------------- Chairman of the Board (Principal
Peter Cartwright Executive Officer)
/s/ Ann B.Curtis Executive Vice President, Chief Financial May 18, 2000
- -------------------- Officer, and Corporate Secretary and
Ann B. Curtis Director (Principal Officer and
Principal Accounting Officer)
*
----------------
Susan B. Schwab Director May 18, 2000
*
----------------
George J. Stathakis Director May 18, 2000
*
----------------
Jeffrey E. Garten Director May 18, 2000
*
----------------
John O. Wilson Director May 18, 2000
*
----------------
V. Orville Wright Director May 18, 2000
*By Power of Attorney
/s/ Ann B. Curtis
- -----------------
Ann B. Curtis
5
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
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 5.1 Opinion of Lisa M.
Bodensteiner, General Counsel of the Corporation, regarding
validity of Common Stock.
23.2 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
</TABLE>
6
Exhibit 5.1
[LETTERHEAD OF CALPINE CORPORATION]
May 18, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act"), of 1,000,000 shares of common stock, par value $.001 per
share (the "Shares"), of Calpine Corporation, a Delaware corporation (the
"Company"), issuable upon the exercise of stock purchase rights to be granted
pursuant to the 2000 Employee Stock Purchase Plan (the "Plan"), I have reviewed
such corporate records, certificates and other documents, and such questions of
law, as I have deemed necessary or appropriate for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that the Shares have been
duly authorized and reserved for issuance pursuant to the Plan, and, when the
Shares have been duly issued in accordance with the terms of the Plan, the
Shares will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of the opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, I do not admit that I am in the
category of persons where consent is required under Section 7 of the Act.
CALPINE CORPORATION
/s/ Lisa M. Bodensteiner
- ------------------------
Vice President and General Counsel
7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated January
31, 2000, included in Calpine Corporation's Form 10-K for the year ended
December 31, 1999, and to all references to our firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
San Francisco, California
May 16, 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 the
registration of 1,000,000 shares of Calpine Corporation common stock, par value
$.001 per share ("Calpine Common Stock"), to be issued under the Calpine
Corporation 2000 Employee Stock Purchase Plan, 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. 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 the Registration
Statement, and 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 18th day of May 2000.
/s/ Susan C. Schwab
-------------------
Susan C. Schwab
9
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 the
registration of 1,000,000 shares of Calpine Corporation common stock, par value
$.001 per share ("Calpine Common Stock"), to be issued under the Calpine
Corporation 2000 Employee Stock Purchase Plan, 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. 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 the Registration
Statement, and 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 18th day of May 2000.
/s/ George J. Stathakis
-----------------------
George J. Stathakis
10
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 the
registration of 1,000,000 shares of Calpine Corporation common stock, par value
$.001 per share ("Calpine Common Stock"), to be issued under the Calpine
Corporation 2000 Employee Stock Purchase Plan, 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. 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 the Registration
Statement, and 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 18th day of May 2000.
/s/ Jeffrey E. Garten
---------------------
Jeffrey E. Garten
11
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 the
registration of 1,000,000 shares of Calpine Corporation common stock, par value
$.001 per share ("Calpine Common Stock"), to be issued under the Calpine
Corporation 2000 Employee Stock Purchase Plan, 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. 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 the Registration
Statement, and 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 18th day of May 2000.
/s/ John O. Wilson
------------------
John O. Wilson
12
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 the
registration of 1,000,000 shares of Calpine Corporation common stock, par value
$.001 per share ("Calpine Common Stock"), to be issued under the Calpine
Corporation 2000 Employee Stock Purchase Plan, 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. 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 the Registration
Statement, and 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 18th day of May 2000.
/s/ V. Orville Wright
---------------------
V. Orville Wright
13
