As filed with the Securities and Exchange Commission on September 17, 1999
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________________________
TRIGEN ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3378939
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Water Street 10601
White Plains, New York (Zip Code)
(Address of principal executive offices)
1994 Employee Stock Purchase Plan
(Full Title of the Plan)
EUGENE E. MURPHY
Vice President, General Counsel
and Secretary
Trigen Energy Corporation
One Water Street
White Plains, New York 10601
(Name and address of agent for service)
(914) 286-6600
(Telephone number, including area code, of agent for service)
-----------------
Copies to:
E. WILLIAM BATES, II
King & Spalding
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2100
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CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------
Title of Securities to Amount Proposed Proposed Amount of
be Registered to be Maximum Maximum Registra
Registered Offering Aggregate tion
Price Offering Fee
Per Unit (1) Price (1)
- ---------------------------------------------------------------------------
Common Stock, $.01 par 200,000 $ 18.31 $3,662,000 $1,018.04
value
- ---------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) based upon the average of the high and low
reported sales price of Registrant's common stock on the New York Stock
Exchange as of September 14, 1999.
- ----------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents have been previously filed by Trigen Energy
Corporation (the "Company") with the Securities and Exchange Commission and
are hereby incorporated by reference into this Registration Statement as of
their respective dates:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(2) All reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1998; and
(3) The description of the Company's common stock, par value
$.01, contained in the Company's Form 10 Registration Statement (File
No. 1-13264) filed under the Securities and Exchange Act of 1934 (the
"Exchange Act"), including any amendment or report filed for the
purposes of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereunder have been sold or that deregisters all such
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 the filing of such documents.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interest of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
On August 10, 1994 the Company adopted a Restated Certificate of
Incorporation (the "Restated Certificate") and Restated and Amended Bylaws
(the "Bylaws"). The Restated Certificate and Bylaws, as well as the
Delaware General Corporation Law (the "DGCL"), provide for the
indemnification by the Company of, and advancement of expenses to, its
directors, officers, employees and agents. The Company maintains insurance
coverage for its directors and officers with respect to certain liabilities
incurred in their capacities as such and insuring the Company against
payments which it becomes obligated to make to such persons under the
foregoing indemnification provisions.
In accordance with Section 102(b)(7) of the DGCL, Article VIII of the
Restated Certificate provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages
for violations of the director's fiduciary duty, except (i) for any breach
of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) pursuant to Section 174 of
the DGCL (which provides for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
The personal liability of a director shall be further limited in the event
of and to the extent of any amendment to the DGCL.
In accordance with Section 145 of the DGCL, Article VI of the bylaws
provides that the Company shall indemnify any person who was or is made a
party to or is threatened to be made a party to or is otherwise involved
in, any action, suit or proceeding, whether civil, criminal, administrative
or investigative by reason of the fact that such person, or a person for
whom he is a legal representative, was or is a director of the Company, or
is or was serving at the request of the Company as director of another
corporatio or enterprise, against all expense, liability and loss
(including attorneys' fees, judgements, fines, ERISA excise taxes or
penalties and amounts to be paid in settlement) reasonably incurred by such
person in connection therewith. The Company has the power to indemnify any
officer, employee or agent of the Company under the same conditions as
specified for directors.
To the extent that a director or, if applicable, an officer, employee
or agent, of the Company is successful (on the merits or otherwise) in the
defense of any action referred to above, the Company must indemnify such
person against the expenses actually and reasonably incurred.
Item 7. Exemptions from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
Exhibit Description
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4.1 Restated Certificate of Incorporation
(incorporated by reference to
Exhibit 3.1 to the Company's
Registration Statement on Form S-1
(File No. 33-80410)).
4.2 Restated and Amended Bylaws
(incorporated by reference to
Exhibit 3.2 to the Company's
Registration Statement on Form S-1
(File No. 33-80410)).
23.1 Consent of KPMG LLP.
23.2 Consent of Arthur Andersen LLP.
99.1 Trigen Energy Corporation 1994
Employee Stock Purchase Plan
(incorporated by reference to Exhibit
99.2 of the Company's Registration
Statement on Form S-8 (File No. 33-
83736)).
99.2 Amendment No. 1 to Trigen Energy
Corporation 1994 Employee Stock
Purchase Plan.
Item 9. Undertakings.
(a) 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:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the 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 the 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 Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-
3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for purposes of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 of 1933
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 Act and will be
governed by the final adjudication of such issue.
EXPERTS
The consolidated financial statements of the Company as of
December 31, 1998 and for the year ending December 31, 1998 have been
audited by Arthur Andersen LLP, independent auditors, as set forth in their
report thereon filed with the Company's Form 10-K for the year ended
December 31, 1998, incorporated by reference herein. The consolidated
financial statements of the Company as of December 31, 1997 and for each of
the years in the two-year period ending December 31, 1997 have been audited
by KPMG LLP, independent auditors, as set forth in their report thereon
filed with the Company's Form 10-K for the year ended December 31, 1998,
incorporated by reference herein. Such financial statements are, and
audited financial statements to be included in subsequently filed documents
will be, incorporated herein in reliance upon the reports of Arthur
Andersen LLP and KPMG LLP pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange
Commission) given on the authority of such firms as experts in accounting
and auditing.
<PAGE>
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 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 White Plains, State of New York
on this 17th day of September, 1999.
TRIGEN ENERGY CORPORATION
By: /s/ Thomas R. Casten
--------------------------
Thomas R. Casten
Director, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mr. Thomas R. Casten and Mr.
Richard E. Kessel and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution for such
person and in his or her name, place and stead, in any and all capacities,
to sign any and all amendments to this Registration Statement, and to file
the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully and to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully 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 below by the following persons in
the capacities and on the date indicated.
Signature Title Date
/s/ Thomas R. Casten Director, President and Chief Executive 9/10/99
- ----------------------- Officer (Principal Executive Officer)
Thomas R. Casten
/s/ Richard E. Kessel Director, Executive Vice President, 9/10/99
- ------------------------ Chief Operating Officer
Richard E. Kessel
/s/ Martin S. Stone Vice President-Finance, Chief Financial 9/13/99
- ------------------------ Officer (Principal Financial Officer)
Martin S. Stone
/s/ Daniel J. Samela Controller (Principal Accounting Officer)9/13/99
- ------------------------
Daniel J. Samela
/s/ George F. Keane Director and Chairman of the Board 9/14/99
- ------------------------
George F. Keane
______________________ Director _____
Michel Bleitrach
/s/ Olivier Degos Director 9/17/99
- ----------------------
Olivier Degos
_______________________ Director _____
Dominique Mangin d'Ouince
______________________ Director _____
Patrick Buffet
______________________ Director _____
Philippe Brongniart
/s/ Charles E. Bayless Director 9/16/99
- -----------------------
Charles E. Bayless
<PAGE>
EXHIBIT INDEX
Exhibit Description
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4.1 Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to
the Company's Registration Statement on
Form S-1 (File No. 33-80410)).
4.2 Restated and Amended Bylaws (incorporated by
reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (File No.
33-80410)).
23.1 Consent of KPMG LLP.
23.2 Consent of Arthur Andersen LLP.
99.1 Trigen Energy Corporation 1994 Employee Stock
Purchase Plan (incorporated by reference to
Exhibit 99.2 of the Company's Registration
Statement on Form S-8 (File No. 33-83736)).
99.2 Amendment No. 1 to Trigen Energy Corporation
1994 Employee Stock Purchase Plan.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Trigen Energy Corporation
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" herein.
/s/ KPMG LLP
September 14, 1999
Stamford, CT
<PAGE>
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 8,
1999 included in Trigen Energy Corporation and subsidiaries' Form 10-K for
the year ended December 31, 1998 and to all references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
Stamford, Connecticut
September 14, 1999
<PAGE>
EXHIBIT 99.2
AMENDMENT NUMBER ONE TO
TRIGEN ENERGY CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
Pursuant to the power reserved in Section 18 of the Trigen Energy
Corporation 1994 Employee Stock Purchase Plan, Section 5 of the Plan is
amended to read as follows:
SECTION 5. Stock Available for Options.
There shall be 400,000 shares of Stock available for
purchase from Trigen upon the exercise of options granted
under Section 12 of this Plan, 200,000 of which shall be the
shares initially made available under this Plan. Any shares
of Stock which are subject to options granted as of the
first day of a Purchase Period but which are not purchased
on the related Exercise Date shall again become available
under this Plan.
This Amendment Number One shall be effective as of September 8, 1999
subject to the approval of this Amendment Number One by Trigen Energy
Corporation's shareholders at the Annual Meeting of such shareholders in
2000.
Adopted by the Board of Directors on September 8, 1999.
