As filed
with the Securities and Exchange Commission on August 12, 2008
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
________________________________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
________________________________
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CALPINE
CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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77-0212977
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(State
or other jurisdiction of
incorporation
or organization
)
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(I.R.S. Employer
Identification
No.)
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________________________________
50
West San Fernando Street, San Jose, California 95113
717
Texas Avenue, Houston, Texas 77002
(713)
830-8775
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
________________________________
W.
Thaddeus Miller
Executive
Vice President, Chief Legal Officer and Secretary
Calpine
Corporation
717
Texas Avenue
Houston,
Texas 77002
(713)
830-2000
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
________________________________
Copies
to:
Joseph
A. Coco,
Peter
C. Krupp,
Richard
C. Witzel, Jr.
Skadden,
Arps, Slate, Meagher & Flom LLP
333
West Wacker Drive
Chicago,
Illinois 60606
(312)
407-0700
Approximate date of commencement of
proposed sale to the public
: From time to time 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. [X]
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 this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [ ]
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “larger accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer
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[X]
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Accelerated
filer [ ]
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Non-accelerated
filer
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[ ] (Do
not check if a smaller reporting company)
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Smaller
reporting
company [ ]
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________________________________________________________________
CALCULATION
OF REGISTRATION FEE
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Proposed
Maximum
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Proposed
Maximum
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Title
of Each Class of
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Amount
to be
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Offering
Price
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Aggregate
Offering
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Amount
of
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Securities
to be Registered
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Registered
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Per
Unit
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Price
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Registration
Fee
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Common
Stock, $0.001 par value per share
(2)
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166,924,198
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$15.74
(1)
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$2,627,386,877
(1)
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$103,256
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(1)
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Estimated
solely for the purpose of computing the amount of the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, based on
$15.74, the average of the high and low sale prices for shares of common
stock as reported on the New York Stock Exchange on August 8
,
2008.
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(2)
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Pursuant
to Rule 416 under the Securities Act of 1933, this registration
statement also covers such additional shares as may hereafter be offered
or issued to prevent dilution resulting from stock splits, stock
dividends, recapitalizations or certain other capital
adjustments.
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_____________________________________
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 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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The
information in this prospectus is not complete and may be changed. The
selling stockholders named in this prospectus may not sell the securities
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy the securities
in any state where the offer or sale is not
permitted.
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Subject
to completion, dated August 12, 2008
PROSPECTUS
CALPINE
CORPORATION
166,924,198
Shares
COMMON
STOCK
_____________________________________
This
prospectus covers 166,924,198 shares of our common stock that may be offered for
resale by the selling stockholders named in this prospectus and the persons to
whom the selling stockholders may transfer their shares. The shares
include 165,715,835 outstanding shares of common stock and 1,208,363 shares of
common stock issuable upon the exercise of warrants that we previously issued to
certain of the selling stockholders. No securities are being offered
or sold by us pursuant to this prospectus. We will not receive any of
the proceeds from the sale of these shares by the selling
stockholders.
Our
common stock is listed on the New York Stock Exchange under the symbol
“CPN.” On August 8, 2008, the last reported sale price of our
common stock on the New York Stock Exchange was $15.99 per share.
The
selling stockholders and their successors, which term includes the selling
stockholders’ pledgees, donees, transferees, assignees or other successors, may
from time to time sell, transfer or otherwise dispose of any or all of their
shares of common stock directly to purchasers or through broker-dealers or
agents. The common stock may be sold in one or more transactions at
fixed prices, prevailing market prices at the time of sale, prices related to
the prevailing market prices, varying prices determined at the time of sale or
negotiated prices. See “Plan of Distribution” beginning on page 16
for more information about how the selling stockholders may sell or dispose of
their shares of common stock. We do not know when or in what amount
the selling stockholders or their successors may offer the shares for
sale. The selling stockholders or their successors may sell any, all
or none of the shares offered by the prospectus.
_____________________________________
Investing
in our common stock involves risks. See “Risk Factors” beginning on
page 2 of this prospectus and those set forth under the heading “Risk
Factors” in our most recent Annual Report on Form 10-K, as well as any of
our subsequently filed quarterly or current reports.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is ___________, 2008
TABLE
OF CONTENTS
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Page
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CALPINE
CORPORATION
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1
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RISK
FACTORS
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2
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USE
OF PROCEEDS
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7
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DESCRIPTION
OF CAPITAL STOCK
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8
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SELLING
STOCKHOLDERS
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12
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PLAN
OF DISTRIBUTION
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14
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LEGAL
MATTERS
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16
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EXPERTS
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16
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WHERE
YOU CAN FIND MORE INFORMATION
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17
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_______________
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a “shelf” registration
process. Under this shelf registration process, the selling
stockholders or their succesors may from time to time sell the shares of common
stock described in this prospectus in one or more offerings.
We have
not authorized anyone to give any information or to make any representation
other than those contained or incorporated by reference in this
prospectus. You must not rely upon any information or representation
not contained or incorporated by reference in this prospectus. The
selling stockholders are offering to sell, and seeking offers to buy, shares of
our common stock only in jurisdictions where it is lawful to do
so. This prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any shares other than the registered shares to
which they relate, nor does this prospectus constitute an offer to sell or the
solicitation of an offer to buy shares in any jurisdiction to any person to whom
it is unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information contained in
this prospectus is accurate on any date subsequent to the date set forth on the
front of the document or that any information we have incorporated by reference
is correct on any date subsequent to the date of the document incorporated by
reference, even though this prospectus is delivered or shares are sold on a
later date.
In this
prospectus, the words “we,” “us,” “our,” and “Calpine” refer to Calpine
Corporation and its subsidiaries.
_______________
This
summary highlights information about Calpine Corporation. Because it
is a summary, it does not contain all the information you should consider before
investing in our common stock. You should read carefully this entire prospectus
and the documents that we incorporate herein by reference, including the section
entitled “Risk Factors” and our financial statements and related
notes. You may obtain a copy of the documents that we incorporate by
reference without charge by following the instructions in the section below
entitled “Where You Can Find More Information.”
Our
Business
We are an independent power producer
that operates and develops clean and reliable power generation facilities
primarily in the U.S. Our fleet of power generation facilities, with
nearly 24,000 megawatts of capacity as of June 30, 2008, makes us one
of the largest independent power producers in the U.S. Our portfolio
is comprised of two power generation technologies: natural gas-fired
combustion (primarily combined-cycle) and renewable geothermal. We
operate 60 natural
gas-fired power plants capable of
producing approximately 23,000 megawatts and 17 geothermal facilities in the
Geysers region of northern California capable of producing 725
megawatts. Our renewable geothermal facilities are the largest
producing geothermal resource in the U.S.
We are
focused on maximizing value by leveraging our portfolio of power plants, our
geographic diversity and our operational and commercial expertise to provide the
optimal combination of products and services to our customers. To
accomplish this goal, we seek to maximize asset performance, optimize the
management of our commodity exposure and take advantage of growth and
development opportunities that fit our core business and are accretive to
earnings.
Corporate
Information
Our
principal executive offices are located at 50 West San Fernando Street, San
Jose, California 95113 and 717 Texas Avenue, Suite 1000, Houston, Texas 77002,
and our telephone number is (713) 830-8775. Our website is
www.calpine.com. The content of our website is not a part of this
prospectus.
Investing
in our common stock involves risk. Before you decide whether to purchase any of
our common stock, in addition to the other information in this prospectus and in
the documents incorporated herein by reference, you should carefully consider
the risk factors below and those set forth under the heading “Risk Factors” in
our most recent Annual Report on Form 10-K, as well as any of our
subsequently filed quarterly or current reports. For more
information, see the section entitled “Where You Can Find More
Information.”
Risks
Related to our Common Stock
The
market pricing of our common stock may be volatile.
Our
common stock began trading on the NYSE on a “when issued” basis on
January 16, 2008, and began “regular way” trading on the NYSE on
February 7, 2008. The liquidity of any market for our common
stock will depend, among other things, upon the number of holders of our common
stock and on our and our subsidiaries’ financial performance. The
market price for our common stock has been volatile in the past, and the price
of our common stock could fluctuate substantially in the
future. Factors that could affect the price of our common stock in
the future include general conditions in our industry, in the power markets in
which we participate and in the world, including environmental and economic
developments, over which we have no control, as well as developments specific to
us, including fluctuations in our results of operations, our ability to comply
with the covenants under our credit agreements and other debt instruments, our
ability to execute our business plan, and other matters discussed in the risk
factors set forth under the heading “Risk Factors” in our most recent Annual
Report on Form 10-K.
In
addition, the sale of a substantial number of shares of our common stock in the
public market, or the perception that such sales could occur, could
significantly and negatively affect the market price for our common
stock. Pursuant to our plan of reorganization, all shares of our
common stock outstanding prior to the effective date of our plan of
reorganization were canceled, and we authorized the issuance of 485
million shares of reorganized Calpine Corporation common stock, of which
approximately 421 million shares have been distributed to holders of allowed
unsecured claims, approximately 10 million shares are being held in escrow
pending resolution of certain intercreditor matters and approximately 54
million shares remain in reserve for distribution to holders of disputed claims
whose claims ultimately become allowed. We have also reserved 48.5
million shares for issuance upon exercise of the warrants distributed to the
holders of our previously outstanding common stock and 15 million shares for
issuance under our equity incentive plans. These warrants will expire
on August 25, 2008. The distribution of these additional
shares could have a dilutive effect on our current holders and may adversely
affect the market price of our common stock. Accordingly, trading in
our securities is highly speculative and poses substantial risks.
Transfers
of our equity, or issuances of equity in connection with our reorganization, may
impair our ability to utilize our federal income tax net operating loss
carryforwards in the future.
Under
federal income tax law, net operating loss (“NOL”) carryforwards can be utilized
to reduce future taxable income subject to certain limitations if we were to
undergo an ownership change as defined by the Internal Revenue
Code. We experienced an ownership change on the effective date of our
plan of reorganization as a result of the distribution of our new common stock
pursuant to our plan of reorganization. We do not expect the annual
limitation from this ownership change to result in the expiration of the NOL
carryforwards if we are able to generate sufficient future taxable income within
the carryforward periods. If a subsequent ownership change were to
occur as a result of future transactions in our stock, accompanied by a
significant reduction in our market value immediately prior to the ownership
change, our ability to utilize the NOL carryforwards may be significantly
limited.
In
accordance with our plan of reorganization, our common stock is subject to
certain transfer restrictions contained in our amended and restated certificate
of incorporation. These restrictions are designed to minimize the
likelihood of any potential adverse federal income tax consequences resulting
from an ownership change; however, these restrictions may not prevent an
ownership change from occurring. These restrictions, which are
designed to minimize the likelihood of an ownership change occurring and thereby
preserve our ability to utilize our NOLs, are
not
currently operative but could become operative in the future if certain events
occur and the restrictions are imposed by our board of
directors. However, there can be no assurance that our board of
directors would choose to impose these restrictions or that such restrictions,
if imposed, would prevent an ownership change from occurring.
Our
principal stockholders own a significant amount of our common stock, giving them
influence over corporate transactions and other matters.
The
selling stockholders named in this prospectus, who together beneficially own
approximately 40% of our common stock, may be able to exercise substantial
influence over all matters requiring stockholder approval, including the
election of directors and approval of significant corporate action, such as
mergers and other business combination transactions should these stockholders
retain a significant ownership interest in us. If two or more of
these stockholders (or groups of stockholders) vote their shares in the same
manner, their combined stock ownership may effectively give them the power to
elect our entire board of directors and control our management, operations and
affairs. Currently, two members of our board of directors, including
the Chairman of our board of directors, are affiliated, directly or indirectly,
with SPO Advisory Corp., one of these stockholders.
Circumstances
may occur in which the interests of these stockholders could be in conflict with
the interests of our other stockholders. This concentration of
ownership may also have the effect of delaying or preventing a change in control
over us unless it is supported by these stockholders, or could result in our
entering into a change of control or other transaction supported by these
stockholders. Accordingly, your ability to influence us through
voting your shares may be limited or the market price of our common stock may be
adversely affected.
We do not intend
to pay cash dividends on our common stock in the foreseeable
future
.
We do not
anticipate paying cash dividends on our common stock in the foreseeable
future. Any payment of cash dividends will depend upon our financial
condition, results of operations, capital requirements and other factors and
will be at the discretion of our board of directors. In addition, our
exit credit facility and certain of our other debt instruments restrict our
ability to pay dividends and other distributions with respect to our
stock. We may incur additional indebtedness that may further restrict
or prohibit the payment of dividends.
Provisions
of our amended and restated certificate of incorporation, amended and restated
bylaws and Delaware law could delay or prevent an acquisition of us, even if the
acquisition would be beneficial to our stockholders, and could make it more
difficult for our stockholders to change management.
Provisions
of our amended and restated certificate of incorporation and amended and
restated bylaws may discourage, delay or prevent a merger, acquisition or other
change in control that stockholders may consider favorable, including a proposal
that might result in the payment of a premium over prevailing market prices for
our common stock. In addition, these provisions may frustrate or
prevent any attempt by our stockholders to replace or remove our current
management by making it more difficult to replace or remove our board of
directors. These provisions include:
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a
prohibition on stockholder action through written
consent;
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limitation
of our stockholders entitled to call special meetings of
stockholders;
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an
advance notice requirement for stockholder proposals and nominations;
and
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the
authority of our board of directors to issue preferred stock with such
terms as our board of directors may
determine.
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In
addition, Delaware law prohibits a publicly-held Delaware corporation from
engaging in a business combination with an interested stockholder, generally a
person who, together with its affiliates, owns or within the last three years
has owned 15% of our voting stock, for a period of three years after the date of
the transaction in
which the
person became an interested stockholder, unless the business combination is
approved in a prescribed manner. Accordingly, Delaware law may
discourage, delay or prevent a change in control of our company.
Provisions
in our amended and restated certificate of incorporation, amended and restated
bylaws and other provisions of Delaware law could limit the price that investors
are willing to pay in the future for shares of our common stock.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING INFORMATION
In
addition to historical information, this prospectus contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”) and Section 21E of the Exchange
Act. We use words such as “believe,” “intend,” “expect,”
“anticipate,” “plan,” “may,” “will” and similar expressions to identify
forward-looking statements. Such statements include, among others,
those concerning our expected financial performance and strategic and
operational plans, as well as all assumptions, expectations, predictions,
intentions or beliefs about future events. You are cautioned that any
such forward-looking statements are not guarantees of future performance and
that a number of risks and uncertainties could cause actual results to differ
materially from those anticipated in the forward-looking statements. Such risks
and uncertainties include, but are not limited to:
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our
ability to implement our business
plan;
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financial
results that may be volatile and may not reflect historical
trends;
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seasonal
fluctuations of our results and exposure to variations in weather
patterns;
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potential
volatility in earnings associated with fluctuations in prices for
commodities such as natural gas and
power;
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our
ability to manage liquidity needs and comply with covenants related to our
exit credit agreement and other existing financing
obligations;
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our
ability to complete the implementation of our plan of reorganization and
the discharge of our cases under Chapter 11 of the United States
Bankruptcy Code (“Chapter 11”), including successfully resolving any
remaining claims;
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disruptions
in or limitations on the transportation of natural gas and transmission of
electricity;
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the
expiration or termination of our power purchase agreements and the related
results on revenues;
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risks
associated with the operation of power plants, including unscheduled
outages;
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factors
that impact the output of our geothermal resources and generation
facilities, including unusual or unexpected steam field well and pipeline
maintenance and variables associated with the waste water injection
projects that supply added water to the steam
reservoir;
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risks
associated with power project development and construction
activities;
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our
ability to attract, retain and motivate key employees, including filling
certain significant positions within our management
team;
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our
ability to attract and retain customers and
counterparties;
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risks
associated with marketing and selling power from plants in the evolving
energy markets;
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present
and possible future claims, litigation and enforcement
actions;
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effects
of the application of laws or regulations, including changes in laws or
regulations or the interpretation thereof;
and
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other
risks identified in our most recent Annual Report on Form 10-K, which
is incorporated herein by reference, as well as any of our subsequently
filed quarterly or current reports, all of which are incorporated by
reference into this prospectus.
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You
should also carefully review other reports that we file with the
SEC. We undertake no obligation to update any forward-looking
statements, whether as a result of new information, future developments or
otherwise.
The
selling stockholders will receive all of the proceeds from the sale of the
shares of our common stock offered by this prospectus, and we will not receive
any of such proceeds.
Our
authorized capital stock consists of 1,400,000,000 shares of common stock,
$0.001 par value, and 100,000,000 shares of preferred stock, $0.001 par
value. As of August 8, 2008, there were 422,969,381 shares of
our common stock outstanding that were held of record by approximately 129
stockholders. No shares of our preferred stock are
outstanding.
The
following is a summary of the material rights of our capital stock and related
provisions of our amended and restated certificate of incorporation, amended and
restated bylaws and the provisions of applicable law. The following
description of our capital stock does not purport to be complete and is subject
to, and qualified in its entirety by, our amended and restated certificate of
incorporation and amended and restated bylaws, which we have included as
exhibits to our most recent Annual Report on Form 10-K.
Common
Stock
Dividends.
The
holders of common stock are entitled to receive dividends, paid from our assets
legally available for that purpose if and when declared from time to time by our
board of directors.
Liquidation.
Upon
our liquidation, dissolution and/or winding up, after all securities ranking
senior to our common stock have been paid in full, the holders of our
outstanding common stock will be entitled to receive, pro rata, our remaining
assets available for distribution to our stockholders.
Voting
Rights.
Each outstanding share of common stock entitles the
holder thereof to one vote on each matter on which stockholders generally are
entitled to vote.
Potential Trading
Restrictions.
Our amended and restated certificate of
incorporation provides that prior to the fifth anniversary of our emergence from
Chapter 11 bankruptcy protection, which occurred January 31, 2008, in the
event that both (i) the Market Capitalization (which means, as of any date, our
market capitalization calculated using the rolling 30-day weighted average
trading price of our common stock) has decreased (as adjusted for any
extraordinary dividends, as determined in good faith by our board of directors)
by at least 35% from the Emergence Date Market Capitalization (which means our
market capitalization calculated using the weighted average trading price of our
common stock over the 30-day period following the date on which we emerge from
Chapter 11 bankruptcy protection (which we determined to be approximately $8.6
billion, as reported on our Current Report on Form 8-K filed with the SEC
on March 25, 2008)) and (ii) at least 25 percentage points of “owner shift”
(for purposes of Section 382 of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated thereunder (collectively,
“Section 382”)) has occurred with respect to our equity since our most
recent “owner shift” as reasonably determined by us (in consultation with
outside counsel) in accordance with Section 382, then our board of
directors shall meet on an expedited basis to determine whether to impose
restrictions on the trading of our stock in accordance with our amended and
restated certificate of incorporation and to determine the definitive and
ancillary terms of such restrictions, so long as such terms are consistent with
the provisions of our amended and restated certificate of
incorporation. In accordance with our amended and restated
certificate of incorporation, we will make a prompt announcement if our board of
directors determines that trading restrictions are required and the terms of
such trading restrictions, which we expect would include:
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any
acquisition of our stock by a person or entity who is not a 5% stockholder
will be null and void
ab
initio
as to the purchaser to the extent such acquisition causes
such person or entity to become a 5% stockholder, unless the acquisition
of such stock (i) was previously approved in writing by our board of
directors or (ii) will not result in an increase in an “owner shift” for
purposes of Section 382 in excess of any “owner shift” that would
have occurred if the seller had sold the same amount of stock through
general public market transactions (e.g., because the stock is purchased
from another 5% stockholder whose stock acquisition had caused an “owner
shift”) (a “Permitted Acquisition”);
and
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any
person or entity who is a 5% stockholder shall not be permitted to acquire
any additional stock without the prior written consent of our board of
directors, unless the acquisition is a Permitted Acquisition, and any such
acquisition of stock that is not a Permitted Acquisition will be null and
void
ab initio
as
to the purchaser.
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In
accordance with our amended and restated certificate of incorporation, if
trading restrictions are applied, we will make a prompt announcement if our
board of directors determines that trading restrictions are no longer required
or if the trigger provisions are no longer satisfied; provided that if trading
restrictions shall be imposed following a decline in the value of our Market
Capitalization, any increase in the value of our stock shall not result in the
lapse of such trading restrictions unless such increase (calculated using the
rolling 30-day weighted average trading price of our common stock) shall be at
least 10% greater than the trigger price.
Shares of Common Stock Not Subject
to Calls or Assessments.
No personal liability will attach to
holders of our common stock under the laws of the State of Delaware (our state
of incorporation) or of the State of Texas (the state in which our principal
place of business is located).
Other.
Our common
stock is not convertible into, or exchangeable for, any other class or series of
our capital stock. Holders of our common stock have no preemptive or
other rights to subscribe for or purchase additional securities. Our amended and
restated certificate of incorporation does not contain any sinking fund
provisions or redemption provisions with respect to our common
stock. There is no classification of our board of
directors.
Preferred
Stock
Our board
of directors is authorized to provide for the issuance of shares of preferred
stock in one or more series, and to fix for each series the associated powers
(including voting rights, if any), preferences and relative, participating,
optional or other special rights, if any, and such qualifications, limitations
or restrictions as provided in a resolution or resolutions adopted by our board
of directors.
Holders
of preferred stock are not entitled to vote on any matter except as required by
law or as is expressly granted by our amended and restated certificate of
incorporation.
The
purpose of authorizing our board of directors to issue preferred stock and
determine its rights and preferences is to eliminate delays associated with a
stockholder vote on specific issuances. The issuance of preferred
stock, while providing flexibility in connection with possible acquisitions,
future financings and other corporate purposes, may have the effect of making it
more difficult for a third party to acquire, or could discourage a third party
from seeking to acquire, a majority of our outstanding voting
stock.
Certain
Anti-Takeover Provisions
Effect of Delaware Anti-Takeover
Statute.
We are subject to Section 203 of the Delaware
General Corporation Law, an anti-takeover law. In general,
Section 203 prohibits a publicly held Delaware corporation from engaging in
a merger or other business combination with any interested stockholder for a
period of three years following the date that the stockholder becomes an
interested stockholder, unless:
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|
·
|
prior
to the time the stockholder becomes an interested stockholder, the board
of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested
stockholder;
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|
|
·
|
upon
consummation of the transaction that resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, subject to certain exclusions;
or
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|
|
·
|
on
or subsequent to the time the stockholder becomes an interested
stockholder, the business combination is approved by the board of
directors of the corporation and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative
vote of at least 66⅔% of the outstanding voting stock that is not owned by
the interested stockholder.
|
In
general, Section 203 of the Delaware General Corporation Law defines an
“interested stockholder” as: any entity or person beneficially owning 15% or
more of the outstanding voting stock of the corporation; any entity or person
that is an affiliate or associate of the corporation and was the owner of 15% or
more of the outstanding voting stock of the corporation at any time within the
three-year period prior to the date on which it is sought to be determined
whether such person is an interested stockholder; and the affiliates or
associates of any such entities or persons.
The
provisions of Section 203 of the Delaware General Corporation Law described
above could have the effect of:
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·
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delaying,
deferring or preventing our change in
control;
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|
·
|
delaying,
deferring or preventing the removal of our existing
management;
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|
·
|
deterring
potential acquirers from making an offer to our stockholders;
and
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|
·
|
limiting
any opportunity of our stockholders to realize premiums over prevailing
market prices of our common stock in connection with offers by potential
acquirers.
|
This
could be the case even if a majority of our stockholders might benefit from a
change of control or offer.
Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws.
Our amended and
restated certificate of incorporation and amended and restated bylaws include
provisions that may have the effect of discouraging, delaying or preventing a
change of control or an unsolicited acquisition proposal that a stockholder
might consider favorable, including a proposal that might result in the payment
of a premium over prevailing market prices for our common stock. In
addition, these provisions may adversely affect the prevailing market prices
of our common stock. These provisions are summarized in the
following paragraphs.
No Stockholder Action by Written
Consent.
Our amended and restated certificate of incorporation
and amended and restated bylaws provide that stockholder action can be taken
only at an annual or special meeting of stockholders and precludes stockholders
from initiating or effecting any action by written consent in lieu of a
meeting.
Special Meetings of
Stockholders.
Our amended and restated bylaws provide that
special meetings of our stockholders may be called only by the Chairman of our
board of directors, by order of a majority of our whole board of directors or by
the holders of a majority of our outstanding common stock entitled to vote
generally in the election of directors. Stock ownership for these
purposes may be evidenced in any manner prescribed by Rule 14a-8(b)(2) of
the Exchange Act.
Advance Notice
Procedures.
Our amended and restated bylaws provide an advance
notice procedure for stockholder proposals to be brought before an annual
meeting of stockholders, including proposed nominations of persons for election
to our board of directors. Stockholders at an annual meeting will
only be able to consider proposals or nominations specified in the notice of
meeting or brought before the meeting by or at the direction of our board of
directors or by a stockholder who was a stockholder of record on the record date
for the meeting, who is entitled to vote at the meeting and who has given our
corporate secretary timely written notice, in proper form, of the stockholder’s
intention to bring that business before the meeting. Although our
amended and restated bylaws will not give our board of directors the power to
approve or disapprove stockholder nominations of candidates or proposals
regarding
other
business to be conducted at a special or annual meeting, our amended and
restated bylaws may have the effect of precluding the conduct of certain
business at a meeting if the proper procedures are not followed or may
discourage or deter a potential acquiror from conducting a solicitation of
proxies to elect its own slate of directors or otherwise attempting to obtain
control of us.
Authorized but Unissued
Shares.
Our authorized but unissued shares of common stock and
preferred stock will be available for future issuance without stockholder
approval, subject to the rules and regulations of the New York Stock
Exchange. These additional shares may be utilized for a variety of
corporate purposes, including future public offerings to raise additional
capital, corporate acquisitions and employee benefit plans. The
existence of authorized but unissued shares of common stock and preferred stock
could render more difficult or discourage an attempt to obtain control of a
majority of our common stock by means of a proxy contest, tender offer, merger
or otherwise.
Potential Trading
Restrictions.
As described under “—Common Stock—Potential
Trading Restrictions,” under certain circumstances our board of directors may
impose trading restrictions on our common stock which may prevent a change in
control.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare
Inc.
Listing
Our
common stock is listed on the New York Stock Exchange under the symbol
“CPN.”
In
connection with our plan of reorganization, we entered into a registration
rights agreement on January 31, 2008, with certain of
our stockholders who, together with their affiliates, received shares of
our common stock constituting 10% or more of the issued and outstanding shares
of our common stock immediately following the consummation of our plan
of reorganization. Pursuant to the registration rights agreement, we
agreed, among other things, to file a shelf registration statement covering the
resale on a delayed or continuous basis of the common stock received by such
stockholders. This prospectus covers 166,924,198 shares of our common
stock that may be offered for resale by the selling stockholders named in this
prospectus and the persons to whom the selling stockholders may transfer their
shares. The shares include 165,715,835 outstanding shares of common
stock and 1,208,363 shares of common stock issuable upon the exercise of
warrants that we previously issued to certain of the selling
stockholders.
In
accordance with our plan of reorganization, the warrants were issued to the
selling stockholders on February 15, 2008, in respect of shares of our
previously outstanding common stock held by such stockholders that was canceled
on the effective date of our plan of reorganization. Each warrant
represents the right to purchase a single share of our common stock at $23.88
per share and will expire on August 25, 2008.
Information
below with respect to beneficial ownership has been furnished by each selling
stockholder and we have not sought to verify such information. Except
as stated in the footnotes below, none of the selling stockholders nor any of
their affiliates, officers, directors or principal equity holders has held any
position or office or has had any material relationship with us or any of our
predecessors or affiliates within the past three years.
The
following table sets forth information with respect to the selling stockholders
and the shares of our common stock beneficially owned by the selling
stockholders as of August 12, 2008 that may from time to time be offered or
sold pursuant to this prospectus. Unless otherwise indicated, we deem
warrants that are exercisable within 60 days of August 12, 2008, to be
outstanding and beneficially owned by the person holding the warrants for the
purpose of computing percentage ownership of that person, but we do not treat
them as outstanding for the purpose of computing the ownership percentage of any
other person.
Information
concerning the selling stockholders may change from time to time and any changed
information will be set forth in supplements to this prospectus if and when
necessary. The selling stockholders may offer all, some or none of
their shares of common stock. We cannot advise you as to whether the
selling stockholders will in fact sell any or all of such shares of common
stock. In addition, the selling stockholders listed in the table
below may have sold, transferred or otherwise disposed of, or may sell, transfer
or otherwise dispose of, at any time and from time to time, shares of our common
stock in transactions exempt from the registration requirements of the
Securities Act after the date on which they provided the information set forth
on the table below.
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Shares
Beneficially Owned
|
|
|
Number
|
|
|
Shares
Beneficially Owned
|
|
|
|
|
Before
the Offering
|
|
|
of
Shares
|
|
|
After
the Offering
(1)
|
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|
Name
of Selling Stockholder
|
|
Number
|
|
|
Percent
(2)
|
|
|
Being
Offered
|
|
|
Number
|
|
|
Percent
(2)
|
|
|
Harbinger
Capital Partners
Master
Fund I, Ltd.
(3)
|
|
|
68,463,000
|
|
|
|
16.2
|
%
|
|
|
68,463,000
|
|
|
|
—
|
|
|
|
—
|
|
|
Harbinger
Capital Partners
Special
Situations Fund L.P.
(4)
|
|
|
34,361,237
|
|
|
|
8.1
|
%
|
|
|
34,361,237
|
|
|
|
—
|
|
|
|
—
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|
|
SPO
Partners II, L.P.
(5)
|
|
|
60,895,208
|
|
|
|
14.4
|
%
|
|
|
60,895,208
|
|
|
|
—
|
|
|
|
—
|
|
|
San
Francisco Partners II, L.P.
(6)
|
|
|
3,204,753
|
|
|
|
0.8
|
%
|
|
|
3,204,753
|
|
|
|
—
|
|
|
|
—
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|
___________
|
(1)
|
Assumes
that the applicable stockholder exercise all warrants and sells all of the
shares of our common stock set forth in the column entitled “Number of
Shares Being Offered” and does not acquire any additional
shares.
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|
(2)
|
Calculated
based on 422,969,381 shares of our common stock outstanding as of
August 8, 2008.
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|
(3)
|
The
address for Harbinger Capital Partners Master Fund I, Ltd. (the “Master
Fund”), is c/o International Fund Services (Ireland) Limited, Third Floor,
Bishop’s Square, Redmond’s Hill, Dublin 2, Ireland. The
indicated
|
amount
includes (i) 61,556,337 shares of common stock registered in the name of the
Master Fund, (ii) 6,189,645 shares of common stock registered in the name of
Kelson Investments, Sàrl, an indirect wholly owned subsidiary of the Master Fund
and Harbinger Capital Partners Special Situations Fund, L.P. (discussed in
footnote (4) below), and (iii) 717,018 shares of common stock issuable upon
exercise of warrants held by the Master Fund. Harbinger Capital
Partners Offshore Manager, L.L.C. (“Harbinger Management”) is the investment
manager of the Master Fund. HMC Investors, L.L.C. (“HMC Investors”)
is the managing member of Harbinger Management. Philip Falcone,
Raymond J. Harbert and Michael D. Luce are members of HMC Investors and have
shared power to vote or direct the vote of the shares. Mr. Falcone is
also the portfolio manager of the Master Fund. Each of Harbinger
Management, HMC Investors, Philip Falcone, Raymond J. Harbert and Michael D.
Luce disclaims beneficial ownership of these shares, except to the extent of
their pecuniary interest therein.
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(4)
|
The
address for Harbinger Capital Partners Special Situations Fund, L.P. (the
“Special Fund”) is 555 Madison Avenue, 16th Floor, New York, New York
10022. The indicated amount includes (i) 30,777,289 shares of
common stock registered in the name of the Special Fund, (ii) 3,092,603
shares of common stock registered in the name of Kelson Investments, Sàrl,
an indirect wholly owned subsidiary of the Special Fund and Harbinger
Capital Partners Master Fund I, Ltd. (discussed in footnote (3) above),
and (iii) 491,345 shares of common stock issuable upon exercise of
warrants held by the Special Fund. Harbinger Capital Partners
Special Situations GP, LLC (“HCPSS”) is the general partner of the Special
Fund. HMC-New York, Inc. (“HMCNY”) is the managing member of
HCPSS. Harbert Management Corporation (“HMC”) wholly owns
HMCNY. Philip Falcone, Raymond J. Harbert and Michael D. Luce
are shareholders of HMC and have shared power to vote or direct the vote
of the shares. Mr. Falcone is also the portfolio manager of the
Special Fund. Each of HCPSS, HMCNY, HMC, Philip Falcone,
Raymond J. Harbert and Michael D. Luce disclaims beneficial ownership of
these shares, except to the extent of their pecuniary interest
therein.
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|
(5)
|
The
address for SPO Partners II, L.P., or SPO, is 591 Redwood Highway, Suite
3215, Mill Valley, California 94941. SPO Advisory Partners,
L.P. is the sole general partner of SPO. SPO Advisory Corp. is the sole
general partner of SPO Advisory Partners, L.P. John H. Scully,
William E. Oberndorf, William J. Patterson and Edward H. McDermott are the
four controlling persons of SPO Advisory Corp. and share voting and
investment control over the shares held by SPO. Mr. Patterson
is the chairman of the board of directors of Calpine
Corporation. J. Stuart Ryan serves in an advisory capacity to
SPO Advisory Corp. with respect to investments by SPO and is also on the
board of directors of Calpine Corporation. Each of these
individuals disclaims beneficial ownership of these shares, except to the
extent of their pecuniary relationship
therein.
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|
(6)
|
The
address for San Francisco Partners II, L.P., or SFP, is 591 Redwood
Highway, Suite 3215, Mill Valley, California 94941. SF Advisory
Partners, L.P. is the sole general partner of SFP. SPO Advisory Corp. is
the sole general partner of SF Advisory Partners, L.P. John H.
Scully, William E. Oberndorf, William J. Patterson and Edward H.
McDermott are the four controlling persons of SPO Advisory
Corp. Mr. Patterson is also the chairman of the board of
directors of Calpine Corporation. J. Stuart Ryan serves in an
advisory capacity to SPO Advisory Corp. with respect to investments by SFP
and is also on the board of directors of Calpine
Corporation. Each of these individuals disclaims beneficial
ownership of these shares, except to the extent of their pecuniary
relationship therein.
|
The
selling stockholders and their successors, which term includes their pledges,
donees, transferees, assignees or their respective successors, may from time to
time sell, transfer or otherwise dispose of any or all of their shares of common
stock directly to purchasers or through broker-dealers or agents. The
common stock may be sold in one or more transactions at fixed prices, prevailing
market prices at the time of sale, prices related to the prevailing market
prices, varying prices determined at the time of sale or negotiated
prices. The selling stockholders may use any one or more of the
following methods when disposing of the shares or interests
therein:
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|
·
|
on
any national securities exchange or quotation service on which our common
stock may be listed or quoted at the time of sale, including the New York
Stock Exchange;
|
|
|
·
|
in
the over-the-counter market;
|
|
|
·
|
in
transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
|
|
|
·
|
through
the writing of options.
|
These
transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as agent on both sides of the
trade.
The
selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the selling stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated.
The
selling stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell shares of common stock from time to time under this
prospectus, or under a supplement to this prospectus amending the list of
selling stockholders to include the pledgee, transferee or other
successors-in-interest as selling stockholders under this
prospectus.
The
selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the pledgees, donees, transferees, assignees or
other successors will be the selling beneficial owners for purposes of this
prospectus and may sell the shares of common stock from time to time under this
prospectus after we have filed a supplement to this prospectus amending the list
of selling stockholders to include such pledgee, donee, transferee, assignee or
other successor as a selling stockholder under this prospectus.
Upon our
being notified in writing by a selling stockholder that any material arrangement
has been entered into with a broker-dealer for the sale of common stock through
a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, pursuant to Rule 424(b) under the Securities Act,
disclosing the name of each such selling stockholder and of the participating
broker-dealers, the number of shares involved, the price at which such shares of
common stock were sold, the commissions paid or discounts or concessions allowed
to such broker-dealers, where applicable, that such broker-dealers did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus, and other facts material to the
transaction.
In
connection with the sale of the shares of common stock or interests in shares of
common stock, the selling stockholders may enter into hedging transactions after
the effective date of the registration statement of which this prospectus is a
part with broker-dealers or other financial institutions, which may in turn
engage in short sales of the common stock in the course of hedging the positions
they assume. The selling stockholders may also sell shares of common
stock short after the effective date of the registration statement of which this
prospectus is a
part and
deliver these securities to close out their short positions, or loan or pledge
the common stock to broker-dealers that in turn may sell these
securities. The selling stockholders may also enter into option or
other transactions after the effective date of the registration statement of
which this prospectus is a part with broker-dealers or other financial
institutions or participated in the creation of one or more derivative
securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
Selling
stockholders and any broker-dealers or agents that are involved in selling the
shares may be deemed to be “underwriters” within the meaning of the Securities
Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
Two of
the selling securityholders are affiliates of broker-dealers. Each of
these selling securityholders has informed us that: (1) such selling
securityholder purchased its notes in the ordinary course of business and (2) at
the time that the notes were purchased, the selling securityholder had no
agreements or understandings, directly or indirectly, with any person to
distribute the notes.
In order
to comply with the securities laws of some states, if applicable, the shares
must be sold in those states only through registered or licensed brokers or
dealers. In addition, some states may restrict the selling
stockholders from selling shares unless the shares have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
We have
advised the selling stockholders that they are required to comply with
Regulation M promulgated under the Exchange Act during such time as they may be
engaged in a distribution of the shares. The foregoing may affect the
marketability of the common stock.
We are
required to pay all expenses arising from or incident to the registration of the
shares of common stock held by the selling stockholders, exclusive of
underwriting fees, discounts, selling commissions and applicable stock transfer
taxes, and certain other expenses of the selling stockholders. We
have agreed to indemnify the selling stockholders against certain losses,
claims, damages and liabilities, including liabilities under the Securities Act
or otherwise.
We have
agreed with the selling stockholders to keep the registration statement of which
this prospectus is a part effective until December 31,
2018. However, a selling stockholder’s right to sell shares of our
common stock pursuant to the registration statement of which this prospectus is
a part will terminate as to such selling stockholder at such time as such
selling stockholder can sell all of its remaining securities under Rule 144
of the Securities Act within a three month period.
We cannot
assure you that the selling stockholders will sell all or any of the common
stock offered under the registration statement.
The
validity of the shares of common stock will be passed upon for us by Skadden,
Arps, Slate, Meagher & Flom LLP.
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year
ended December 31, 2007 have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
We have
filed with the SEC a registration statement on Form S-3 under the
Securities Act that registers the common stock to be sold by the selling
stockholders. This prospectus does not contain all of the information
set forth in the registration statement and the exhibits filed as part of the
registration statement. For further information with respect to us
and our common stock, we refer you to the registration statement and the
exhibits filed as part of the registration statement. Statements
contained or incorporated by reference in this prospectus concerning the
contents of any agreement or any other document are not necessarily
complete. If an agreement or document that has been filed as an
exhibit to the registration statement, we refer you to the copy of such
agreement or document that has been filed. Each statement in this
prospectus relating to an agreement or document filed as an exhibit is qualified
in all respects by the filed exhibit.
In
addition, we file annual, quarterly and periodic reports, proxy statements and
other information with the SEC. You may read and copy any document we
file with the SEC at the SEC’s public reference room at 100 F Street NE, Room
1580, Washington, D.C. 20549. You may obtain information on the
operation of the SEC’s public reference facilities by calling the SEC at
1-800-SEC-0330. You can request copies of these documents, upon
payment of a duplicating fee, by writing to the SEC at its principal office at
100 F Street NE, Room 1580, Washington, D.C. 20549-1004. The SEC
maintains an Internet website at http://www.sec.gov that contains reports, proxy
and information statements, and other information regarding issuers that file
electronically with the SEC. Our SEC filings are accessible through
the Internet at that website. Our reports on Forms 10-K, 10-Q
and 8-K, and amendments to those reports, are also available for download, free
of charge, as soon as reasonably practicable after these reports are filed with
the SEC, at our website at www.calpine.com. The content of our
website is not a part of this prospectus.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. The following documents are incorporated by
reference in this prospectus:
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|
·
|
Our
Annual Report on Form 10-K for the year ended December 31,
2007;
|
|
|
·
|
Our
Quarterly Reports on Form 10-Q for the quarters ended March 31,
2008 and June 30, 2008;
|
|
|
·
|
Our
Current Reports on Form 8-K filed with the SEC on February 1,
2008 (excluding Item 7.01 and related exhibits), February 6,
2008, February 22, 2008, March 18, 2008, March 25,
2008, May 8, 2008, May 28, 2008, June 5, 2008, July 3,
2008, July 14, 2008, July 22, 2008, and
August 12, 2008; and
|
|
|
·
|
The
description of our common stock set forth in our registration statement on
Form 8-A filed with the SEC on January 15,
2008.
|
We also
incorporate by reference all documents we may subsequently file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial
filing date of the registration statement of which this prospectus is a part and
prior to the termination of the offering. The most recent information
that we file with the SEC automatically updates and supersedes older
information. The information contained in any such filing will be
deemed to be a part of this prospectus, commencing on the date on which the
document is filed.
Information
furnished under Items 2.02 or 7.01 (or corresponding information furnished
under Item 9.01 or included as an exhibit) in any past or future current
report on Form 8-K that we file with the SEC, unless otherwise specified in
such report, is not incorporated by reference in this prospectus.
We will
provide to each person, including any beneficial owner, to whom this prospectus
is delivered a copy of any or all of the information that we have incorporated
by reference into this prospectus but not delivered with this prospectus, at no
cost to the requestor. To receive a free copy of any of the documents
incorporated by reference in this prospectus, other than exhibits, unless they
are specifically incorporated by reference in those documents, call or
write:
Calpine
Corporation
717 Texas
Avenue, Suite 1000
Houston,
Texas 77002
Attention:
Corporate Communications
Tel:
(713) 830-8775
CALPINE
CORPORATION
COMMON
STOCK
_____________
PROSPECTUS
_____________
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
estimated expenses in connection with this offering to be paid by us are as
follows:
|
|
|
Amount
|
|
|
|
|
To
Be Paid
|
|
|
SEC
registration fee
|
|
$
|
103,256
|
|
|
Legal
fees and expenses
|
|
|
100,000
|
|
|
Accounting
fees and expenses
|
|
|
40,000
|
|
|
Miscellaneous
(including any applicable listing fees and transfer agent’s fees and
expenses)
|
|
|
6,744
|
|
|
Total
|
|
$
|
250,000
|
|
Item
15. Indemnification of Directors and Officers
The
registrant’s amended and restated certificate of incorporation and amended and
restated bylaws provide that the registrant will indemnify its directors and
officers, and may indemnify its employees and agents, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
in such capacities as a result of being a party, or being threatened to be made
a party, to any threatened, pending or completed action, suit or proceeding,
including liabilities under the Securities Act of 1933, as amended, to the
fullest extent permitted by the Delaware General Corporation Law; provided,
however, that, except with respect to proceedings to enforce rights to
indemnification, the registrant will only indemnify a proceeding initiated by a
director, officer, employee or agent if the proceeding was authorized by the
registrant’s board of directors. The registrant’s amended and
restated bylaws also require that the registrant (in the case of a director or
officer) and permit the registrant (in the case of an employee or agent) to
advance, to the maximum extent permitted by law, expenses incurred in connection
with any such action, suit or proceeding so long as the director or officer
undertakes to repay any advanced amounts if it is ultimately determined that he
or she is not entitled to be indemnified.
Under
Delaware General Corporation Law section 145, the registrant may indemnify its
directors and officers (other than in connection with actions by the registrant
or on behalf of the registrant) only if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the registrant and, in the case of a criminal proceeding (including
preliminary), had no reason to believe his or her conduct was
unlawful. The registrant may not indemnify a director or officer for
expenses of an action brought by the registrant or on behalf of the registrant
if the director or officer is adjudged liable to the corporation, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he or she is entitled to indemnification of such
expenses.
In
addition to the indemnification rights described above, the registrant’s amended
and restated certificate of incorporation eliminates, in certain circumstances,
a director’s liability for monetary damages for breach of fiduciary duty as a
director. These provisions do not eliminate a director’s liability for the
following: any breach of the director’s duty of loyalty to us or our
stockholders; acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; unlawful payment of dividends or
unlawful stock repurchases or redemptions; and any transaction from which the
director derived an improper personal benefit.
The
registrant maintains standard policies of insurance under which coverage is
provided to its directors, officer, employees and agents to insure them against
liability for actions or omissions occurring in their capacity as a director,
officer, employee or agent, subject to certain exclusions and
limitations.
Item
16. Exhibits
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Exhibit
No.
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Document
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2.1
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Debtors’
Sixth Amended Joint Plan of Reorganization Pursuant to Chapter 11 of
the United States Bankruptcy Code (incorporated by reference to
Exhibit 2.1 to the Company’s Current Report on Form 8-K filed
with the SEC on December 27, 2007).
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2.2
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Findings
of Fact, Conclusions of Law, and Order Confirming Sixth Amended Joint Plan
of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code
(incorporated by reference to Exhibit 2.2 to the Company’s Current
Report on Form 8-K filed with the SEC on December 27,
2007).
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4.1
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Registration
Rights Agreement, dated January 31, 2008, among the Company and each
Participating Shareholder named therein (incorporated by reference to
Exhibit 10.1 to the Company’s Current Report on Form 8-K filed
with the SEC on February 6, 2008).
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4.2
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Series
A Warrant Agreement, dated February 15, 2008, among the Company,
Computershare Inc. and Computershare Trust Company, N.A., as warrant
agent, including form of warrants (incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed
with the SEC on February 22, 2008).
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5.1
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Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP.
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23.1
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Consent
of PricewaterhouseCoopers LLP.
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23.2
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Consent
of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1).
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Item
17. 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 this 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 and of the
estimated maximum offering price 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; 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 paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in 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, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is a part of the registration
statement.
(2)
That, for the purpose 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 to be deemed 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.
(4)
That, for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is a part of the registration statement will, as to a
purchaser with a time of contract sale prior to such effective date, supersede
or modify any statement that was made in the registration statement or
prospectus that was a part of the registration statement or made in any such
document immediately prior to such effective date.
(b)
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 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 Act and will be governed by the final adjudication of
such issue.
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on August 12,
2008.
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CALPINE
CORPORATION
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By:
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Name:
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Zamir
Rauf
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Title:
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Interim
Executive Vice President and
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Interim
Chief Financial Officer
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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
dates indicated.
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Signature
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Title
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Date
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/s/ JACK A. FUSCO
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President,
Chief Executive Officer and Director
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Jack
A. Fusco
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(principal
executive officer)
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August 12,
2008
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Interim
Executive Vice President and
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/s/ ZAMIR RAUF
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Interim
Chief Financial Officer
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Zamir
Rauf
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(principal
financial officer)
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August 12,
2008
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/s/ STEVEN F. HODKINSON
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Interim
Corporate Controller
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Steven
F. Hodkinson
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(principal
accounting officer)
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August 12,
2008
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/s/ FRANK CASSIDY
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Frank
Cassidy
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Director
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August 12,
2008
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/s/ ROBERT C. HINCKLEY
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Robert
C. Hinckley
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Director
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August 12,
2008
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/s/ DAVID C. MERRITT
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David
C. Merritt
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Director
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August 12,
2008
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/s/ W. BENJAMIN MORELAND
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W.
Benjamin Moreland
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Director
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August 12,
2008
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/s/ DENISE M. O'LEARY
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Denise
M. O’Leary
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Director
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August 12,
2008
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/s/ WILLIAM J. PATTERSON
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William
J. Patterson
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Director
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August 12,
2008
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/s/ J. STUART RYAN
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J.
Stuart Ryan
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Director
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August 12,
2008
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EXHIBIT
INDEX
|
Exhibit
No.
|
|
Document
|
|
|
|
|
|
2.1
|
|
Debtors’
Sixth Amended Joint Plan of Reorganization Pursuant to Chapter 11 of
the United States Bankruptcy Code (incorporated by reference to
Exhibit 2.1 to the Company’s Current Report on Form 8-K filed
with the SEC on December 27, 2007).
|
|
|
|
|
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2.2
|
|
Findings
of Fact, Conclusions of Law, and Order Confirming Sixth Amended Joint Plan
of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code
(incorporated by reference to Exhibit 2.2 to the Company’s Current
Report on Form 8-K filed with the SEC on December 27,
2007).
|
|
|
|
|
|
4.1
|
|
Registration
Rights Agreement, dated January 31, 2008, among the Company and each
Participating Shareholder named therein (incorporated by reference to
Exhibit 10.1 to the Company’s Current Report on Form 8-K filed
with the SEC on February 6, 2008).
|
|
|
|
|
|
4.2
|
|
Series
A Warrant Agreement, dated February 15, 2008, among the Company,
Computershare Inc. and Computershare Trust Company, N.A., as warrant
agent, including form of warrants (incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed
with the SEC on February 22, 2008).
|
|
|
|
|
|
5.1
|
|
Opinion
of Skadden, Arps, Slate, Meagher & Flom LLP.
|
|
|
|
|
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23.1
|
|
Consent
of PricewaterhouseCoopers LLP.
|
|
|
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|
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23.2
|
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Consent
of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1).
|