-----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, OFsvdSM8IqAzwCrZTE6epx1NcneARto8r7impsZsaB9Qr+ijauKeE69Lpy3FaCtj pyBMSN+YPis0Kvl6Yxxp8Q== 0000916457-00-000012.txt : 20000405 0000916457-00-000012.hdr.sgml : 20000405 ACCESSION NUMBER: 0000916457-00-000012 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000404 EFFECTIVENESS DATE: 20000404 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CALPINE CORP CENTRAL INDEX KEY: 0000916457 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 770212977 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-34002 FILM NUMBER: 593446 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-8 1 CALPINE CORP. FORM S-8 REGISTRATION 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) CALCULATION OF REGISTRATION FEE
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 - ------------ ---------------- ---------------- ----------- ---------------- 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.
1 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 2 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. 3 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. 4 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. 5 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 6 *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 EX-23.1 2 CONSENT OF ARTHUR ANDERSEN LLP 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 EX-24.1 3 POWER OF ATTORNEY 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 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 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 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 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 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 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 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 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 13 -----END PRIVACY-ENHANCED MESSAGE-----