-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E4uEvX80IufLCqChnTmRIqxhXU0wt7xZEeCJjyk+EAEwCkd4FQJTPEW/JLyCh9RM vT9ItSa0ICX3L/G7PCTB4g== 0000891618-99-001020.txt : 19990322 0000891618-99-001020.hdr.sgml : 19990322 ACCESSION NUMBER: 0000891618-99-001020 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990319 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CALPINE CORP CENTRAL INDEX KEY: 0000916457 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 770212977 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-72583 FILM NUMBER: 99568653 BUSINESS ADDRESS: STREET 1: 50 WEST SAN FERNANDO ST CITY: SAN JOSE STATE: CA ZIP: 95113 BUSINESS PHONE: 4089955115 MAIL ADDRESS: STREET 1: 50 W SAN FERNANDO STREET 2: SUITE 500 CITY: SAN JOSE STATE: CA ZIP: 95113 S-3/A 1 AMENDMENT #2 TO THE FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 19, 1999 REGISTRATION NO. 333-72583 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 2 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CALPINE CORPORATION [EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER] DELAWARE 4911 (STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
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) ------------------------ 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) ------------------------ COPIES TO: 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
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. [ ] 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. [ ] THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION ------- ----------- +1.1 Form of Underwriting Agreement (Common Stock) +1.2 Form of Underwriting Agreement (Senior Notes) +3.1 Amended and restated Certificate of Incorporation of Calpine Corporation, a Delaware corporation(a) +3.2 Amended and restated By-laws of Calpine Corporation, a Delaware corporation(a) +4.1 Form of Indenture +4.2 Indenture dated as of February 17, 1994 between the Company and Shawmut Bank of Connecticut, National Association, as Trustee, including form of Notes.(b) +4.3 Indenture dated as of May 16, 1996 between the Company and Fleet National Bank, as Trustee, including form of Notes.(c) +4.4 Indenture dated as of July 8, 1997 between the Company and The Bank of New York, as Trustee, including form of Notes.(d) +4.5 Indenture dated as of March 31, 1998 between the Company and The Bank of New York, as Trustee, including form of Senior Notes.(e) +4.6 Form of Senior Note (included in Exhibit 4.1) +5.1 Opinion of Brobeck, Phleger & Harrison LLP *12.1 Statement as to Computation of Ratio of Earnings to Fixed Charges +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). +24.1 Powers of Attorney (included in the signature page of this Registration Statement). *25.1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Trustee (Form T-1).
- --------------- * Filed herewith. + Previously filed. (a) Incorporated by reference to registrant's Registration Statement on Form S-1 (Registration Statement 33-07497). (b) Incorporated by reference to registrant's Registration Statement on Form S-1 (Registration Statement No. 33-73160). (c) Incorporated by reference to registrant's Current Report on Form 8-K dated August 29, 1996 and filed on September 13, 1996. (d) Incorporated by reference to registrant's Quarterly Report on Form 10-Q dated June 30, 1997 and filed on August 14, 1997. (e) Incorporated by reference to registrant's Registration Statement on Form S-4 (Registration Statement No. 333-61047). II-1 3 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 Amendment No. 2 to the 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 19th day of March, 1999. CALPINE CORPORATION By /s/ ANN B. CURTIS ------------------------------------ Ann B. Curtis Executive Vice President and Director Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 2 to the registration statement has been signed below by the following persons on behalf of Calpine and in the capacities and on the dates indicated:
SIGNATURE TITLE DATE --------- ----- ---- * Chairman, President, March 19, 1999 - --------------------------------------------- Chief Executive Officer, Peter Cartwright and Director (Principal Executive Officer) /s/ ANN B. CURTIS Executive Vice President March 19, 1999 - --------------------------------------------- and Director Ann B. Curtis (Principal Financial and Accounting Officer) * Director March 19, 1999 - --------------------------------------------- Jeffrey E. Garten * Director March 19, 1999 - --------------------------------------------- Susan C. Schwab * Director March 19, 1999 - --------------------------------------------- George J. Stathakis * Director March 19, 1999 - --------------------------------------------- John O. Wilson * Director March 19, 1999 - --------------------------------------------- V. Orville Wright *By: /s/ ANN B. CURTIS Attorney-in-fact March 19, 1999 --------------------------------------- Ann B. Curtis
II-2 4 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION ------- ----------- +1.1 Form of Underwriting Agreement (Common Stock) +1.2 Form of Underwriting Agreement (Senior Notes) +3.1 Amended and restated Certificate of Incorporation of Calpine Corporation, a Delaware corporation(a) +3.2 Amended and restated By-laws of Calpine Corporation, a Delaware corporation(a) +4.1 Form of Indenture +4.2 Indenture dated as of February 17, 1994 between the Company and Shawmut Bank of Connecticut, National Association, as Trustee, including form of Notes.(b) +4.3 Indenture dated as of May 16, 1996 between the Company and Fleet National Bank, as Trustee, including form of Notes.(c) +4.4 Indenture dated as of July 8, 1997 between the Company and The Bank of New York, as Trustee, including form of Notes.(d) +4.5 Indenture dated as of March 31, 1998 between the Company and The Bank of New York, as Trustee, including form of Senior Notes.(e) +4.6 Form of Senior Note (included in Exhibit 4.1) +5.1 Opinion of Brobeck, Phleger & Harrison LLP *12.1 Statement as to Computation of Ratio of Earnings to Fixed Charges +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). +24.1 Powers of Attorney (included in the signature page of this Registration Statement). *25.1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Trustee (Form T-1).
- --------------- * Filed herewith. + Previously filed. (a) Incorporated by reference to registrant's Registration Statement on Form S-1 (Registration Statement 33-07497). (b) Incorporated by reference to registrant's Registration Statement on Form S-1 (Registration Statement No. 33-73160). (c) Incorporated by reference to registrant's Current Report on Form 8-K dated August 29, 1996 and filed on September 13, 1996. (d) Incorporated by reference to registrant's Quarterly Report on Form 10-Q dated June 30, 1997 and filed on August 14, 1997. (e) Incorporated by reference to registrant's Registration Statement on Form S-4 (Registration Statement No. 333-61047). EX-12.1 2 STATEMENT OF COMPUTATION 1 EXHIBIT 12.1 PRO FORMA CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED DECEMBER 31, ------------------------------------------------------------------ 1994 1995 1996 1997 1998 -------- -------- -------- --------- --------- (IN THOUSANDS, EXCEPT RATIOS) COMPUTATION OF EARNINGS: Income before provision for income taxes $ 9,874 $ 12,427 $ 27,756 $ 53,159 $ 73,373 Income from unconsolidated investments in power projects, net of distributions 2,754 2,854 (5,757) (1,554) 2,275 Net fixed charges 24,108 32,903 48,673 66,518 93,014 -------- -------- -------- --------- --------- Total earnings $ 36,736 $ 48,184 $ 70,672 $ 118,123 $ 168,662 ======== ======== ======== ========= ========= COMPUTATION OF FIXED CHARGES: Interest expense $ 23,887 $ 32,154 $ 45,294 $ 61,466 $ 86,726 Capitalized interest -- -- -- 5,308 7,388 1/3 of operating lease expense 221 749 3,378 5,052 6,288 -------- -------- -------- --------- --------- Total fixed charges $ 24,108 $ 32,903 $ 48,672 $ 71,826 $ 100,402 ======== ======== ======== ========= ========= Ratio of earnings to fixed charges 1.52x 1.46x 1.45x 1.64x 1.68x
EX-25.1 3 STATEMENT OF ELIGIBILITY & QUALIFICATION 1 Exhibit 25.1 ================================================================================ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |__| --------------- THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code)
--------------- CALPINE CORPORATION (Exact name of obligor as specified in its charter) Delaware (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 50 West San Fernando Street San Jose, CA 95113 (Address of principal executive offices) (Zip code)
------------- Debt Securities (Title of the indenture securities) ================================================================================ 2 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
- -------------------------------------------------------------------------------- Name Address - -------------------------------------------------------------------------------- Superintendent of Banks of the 2 Rector Street, New York, State of New York N.Y. 10006, and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. Yes. 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. None. 16. LIST OF EXHIBITS. EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(D). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. 2 3 SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 16th day of March, 1999. THE BANK OF NEW YORK By: /s/ REMO J. REALE ----------------------------- Name: REMO J. REALE Title: ASSISTANT VICE PRESIDENT 3 4 EXHIBIT 7 - -------------------------------------------------------------------------------- Consolidated Report of Condition of THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1998, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts in Thousands ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin. $3,951,273 Interest-bearing balances.......................... 4,134,162 Securities: Held-to-maturity securities........................ 932,468 Available-for-sale securities...................... 4,279,246 Federal funds sold and Securities purchased under agreements to resell............................... 3,161,626 Loans and lease financing receivables: Loans and leases, net of unearned income...........................37,861,802 LESS: Allowance for loan and lease losses........................619,791 LESS: Allocated transfer risk reserve...............................3,572 Loans and leases, net of unearned income, allowance, and reserve........................... 37,238,439 Trading Assets........................................ 1,551,556 Premises and fixed assets (including capitalized leases)............................................ 684,181 Other real estate owned............................... 10,404 Investments in unconsolidated subsidiaries and associated companies............................... 196,032 Customers' liability to this bank on acceptances outstanding........................................ 895,160 Intangible assets..................................... 1,127,375 Other assets.......................................... 1,915,742 Total assets.......................................... $60,077,664 LIABILITIES Deposits: In domestic offices................................ $27,020,578 Noninterest-bearing................11,271,304 Interest-bearing...................15,749,274 In foreign offices, Edge and Agreement subsidiaries, and IBFs........................... 17,197,743 Noninterest-bearing...................103,007 Interest-bearing...................17,094,736 Federal funds purchased and Securities sold under agreements to repurchase........................... 1,761,170 Demand notes issued to the U.S.Treasury............... 125,423 Trading liabilities................................... 1,625,632 Other borrowed money: With remaining maturity of one year or less........ 1,903,700 With remaining maturity of more than one year through three years.............................. 0 With remaining maturity of more than three years... 31,639 Bank's liability on acceptances executed and outstanding........................................ 900,390 Subordinated notes and debentures..................... 1,308,000 Other liabilities..................................... 2,708,852 Total liabilities..................................... 54,583,127 EQUITY CAPITAL Common stock.......................................... 1,135,284 Surplus............................................... 764,443 Undivided profits and capital reserves................ 3,542,168 Net unrealized holding gains (losses) on available-for-sale securities...................... 82,367 Cumulative foreign currency translation adjustments... ( 29,725) ------------- Total equity capital.................................. 5,494,537 Total liabilities and equity capital.................. $60,077,664 =============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Thomas J. Mastro We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. Thomas A. Reyni ) Gerald L. Hassell ) Directors Alan R. Griffith ) - -------------------------------------------------------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----