As
filed with the Securities and Exchange Commission on October 3,
2008
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 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
(Address
of Principal Executive Offices and zip codes)
Calpine
Corporation Executive Sign On Non-Qualified Stock Option Agreement
(Fusco)
Calpine
Corporation Executive Sign On Non-Qualified Stock Option Agreement
(Miller)
Calpine
Corporation Executive Sign On Non-Qualified Stock Option Agreement
(Hill)
(Full
Title of the Plan)
W.
Thaddeus Miller, Esq.
Executive
Vice President, Chief Legal Officer and Secretary
Calpine
Corporation
717
Texas Avenue
Houston,
Texas 77002
(713) 830-2000
(Name
and address, including zip code, and telephone number, including area code, of
agent for services)
Copies
to:
Eulalia
M. Mack, Esq.
Thelen
LLP
875
Third Avenue
New
York, New York 10019
(212)
603-2000
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 “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
accelerated filer
T
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Accelerated
filer
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Non-accelerated
filer
(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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Title
of securities to be registered
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Amount
to be
registered
(1)
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Proposed
maximum offering
price
per
share
(2)
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Proposed
maximum aggregate
offering
price
(2)
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Amount
of
Registration
Fee
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Common
Stock, $0.001 par value per share
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4,144,000
shares
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(3)
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$
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11.93
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$
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49,437,920
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$
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1,943
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Common
Stock, $0.001 par value per share
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428,000
shares
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(4)
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$
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11.93
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$
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5,106,040
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$
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201
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Common
Stock, $0.001 par value per share
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64,734
shares
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(5)
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$
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11.93
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$
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772,277
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$
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31
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Total
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4,636,734
shares
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$
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11.93
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$
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55,316,237
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$
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2,175
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the above-named plan by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of outstanding shares of Common Stock.
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(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(h) under the Securities Act based on the average of the high
and low sale prices of the Registrant’s common stock on the New York Stock
Exchange as of October 2, 2008.
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(3)
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Represents
4,144,000 shares issuable under the Calpine Corporation Executive Sign On
Non-Qualified Stock Option Agreement with Jack A.
Fusco.
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(4)
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Represents
428,000 shares issuable under the Calpine Corporation Executive Sign On
Non-Qualified Stock Option Agreement with W. Thaddeus
Miller.
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(5)
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Represents
64,734 shares issuable under the Calpine Corporation Executive Sign On
Non-Qualified Stock Option Agreement with John B. (Thad)
Hill.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan
Information.*
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Item 2.
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Registrant
Information and Employee Plan Annual
Information.*
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*
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Information
required by Part I to be contained in the Section 10(a) prospectus is
omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form
S-8.
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The
documents containing the information specified in Part I will be delivered in
accordance with Rule 428(b)(1) of the Securities Act of 1933, as amended
(the “Securities Act”). Such documents are not required to be, and are not,
filed with the Securities and Exchange Commission (“Commission”) either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents, and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation
of Documents by Reference.
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The
following documents, which have been filed by Calpine Corporation (the
“Company”) with the Commission, are incorporated in this Registration Statement
by reference to:
(a) the
Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2007, filed on February 29, 2008;
(b) the
Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 2008, filed on May 12, 2008, and June 30, 2008,
filed on August 11, 2008;
(c) the
Company’s Current Reports on Form 8-K filed 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, August 12, 2008, August 14, 2008,
August 29, 2008, September 4, 2008, and October 2, 2008,
(excluding Item 7.01 and related exhibits); and
(d) The
description of the Company’s Common Stock, par value $0.001 per share, set forth
in its Registration Statement on Form 8-A filed on January 15,
2008.
All
reports and documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) (other than portions of these documents that are
either (1) described in paragraphs (d)(1), (d)(2), (d)(3) or (e)(5) of
Regulation S-K promulgated by the Commission or (2) furnished under
Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless
otherwise indicated therein) after the date of this Registration Statement, but
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 herein
and to be part hereof from the date of the 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration
Statement.
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Item 4.
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Description
of Securities.
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Not
Applicable.
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Item 5.
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Interests
of Named Experts and Counsel.
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Not
Applicable.
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Item 6.
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Indemnification
of Directors and Officers.
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The
Company is incorporated under the laws of the State of Delaware.
Section 102
of the Delaware General Corporation Law permits a corporation to eliminate the
personal liability of its directors to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except for
liability for: (i) any breach of the director’s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which a director derived an improper personal
benefit. The Company’s Amended and Restated Certificate of Incorporation
provides that no director will be personally liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability in the instances enumerated in clauses (i) through
(iv) of the preceding sentence.
Section 145
of the Delaware General Corporation Law provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action, suit or
proceeding, provided the person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation’s best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was unlawful. A similar standard of care is
applicable in the case of actions by or in the right of the corporation, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action was brought determines that, despite the adjudication of
liability but in view of all of the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for expenses that the Delaware Court
of Chancery or other court shall deem proper.
The
Company’s Amended and Restated Bylaws (the “Bylaws”) provide that the Company
shall indemnify any director or “executive officer” (as such term is defined in
Rule 405 promulgated under the Securities Act) of the Company, and may indemnify
any employee or agent of the Company who is not a director or executive officer,
who was or is a party or is threatened to be made a party to, or testifies in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, by reason of the fact that
such person is or was a director, officer, employee or agent of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another corporation, limited liability company, partnership, joint
venture, employee benefit plan, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person’s conduct was unlawful, to the fullest
extent permitted by law as the same exists or may hereafter be amended;
provided, however, that, except with respect to proceedings to enforce rights to
indemnification, the Company shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the board of directors of the
Company. The Company may enter into agreements with any such person for the
purpose of providing for such indemnification.
To the
extent that an employee or agent of the Company who is not a director or
executive officer has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in the paragraph above, or in defense
of any claim, issue or matter therein, the Bylaws provide that such person may
be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith.
The
Bylaws further state that expenses incurred by a director, executive officer,
employee or agent in defending or testifying in a civil, criminal,
administrative or investigative action, suit or proceeding shall (in the case of
a director or executive officer of the Company) and may (in the case of an
employee or agent of the Company who is not a director or executive officer of
the Company) be paid by the Company in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director, executive officer, employee or agent to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Company against such expenses as authorized by the Bylaws,
and the Company may enter into agreements with such persons for the purpose of
providing for such advances.
The right
to indemnification set forth in the Bylaws shall not be deemed exclusive of any
other rights to which any person may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another capacity while holding an
office, and shall continue as to a person who has ceased to be a director,
executive officer, employee or agent of the Company and shall inure to the
benefit of the heirs, executors and administrators of such person.
In
addition, the Bylaws provide that the Company shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, executive
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, employee benefit plan trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person’s status as such, whether or
not the Company would have the power to indemnify such person against such
liability under the Bylaws or otherwise.
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Item 7.
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Exemption
from Registration Claimed.
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Not
applicable.
See the
accompanying Exhibit Index for a list of Exhibits to this Registration
Statement.
(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 the Registration Statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% 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 the Registration Statement or any material change to
such information in the Registration Statement;
provided, however
, that
paragraphs (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are incorporated by reference in the
Registration Statement;
(2) that,
for the purpose of determining any liability under the Securities 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 registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities 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 Securities 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-8 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 October 3,
2008.
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CALPINE
CORPORATION
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By:
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/s/ Jack A.
Fusco
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Name:
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Jack
A. Fusco
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Title:
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENT, that each person whose signature appears below
constitutes and appoints Jack A. Fusco and W. Thaddeus Miller, and each or
either of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities indicated
on October 3, 2008.
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Signature
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Title
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President,
Chief Executive Officer and Director
(Principal
Executive Officer)
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Jack
A. Fusco
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Interim
Executive Vice President and
Interim
Chief Financial Officer
(Principal
Financial Officer)
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Zamir
Rauf
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Interim
Corporate Controller and
Principal
Accounting Officer
(Principal
Accounting Officer)
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Kenneth
A. Graves
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Director
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Frank
Cassidy
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Director
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Robert
C. Hinckley
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Director
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David
C. Merritt
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Director
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W.
Benjamin Moreland
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Director
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Denise
M. O’Leary
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Director
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William
J. Patterson
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6
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Director
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J.
Stuart Ryan
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EXHIBIT
INDEX
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Exhibit
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Number
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Description
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3.1
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Amended
and Restated Certificate of Incorporation of Calpine Corporation
(incorporated by reference to Exhibit 3.1 to the Company’s Current Report
on Form 8-K filed with the SEC on February 1,
2008).
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3.2
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Amended
and Restated Bylaws of Calpine Corporation (incorporated by reference to
Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC
on February 1, 2008).
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4.1
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Specimen
Common Stock Certificate representing shares of common stock, $0.001 par
value per share (incorporated by reference to Exhibit 4.3 to the Company’s
Registration Statement on Form S-8 (No. 333-149074) filed with the
SEC on February 6, 2008).
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4.2
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Calpine
Corporation 2008 Equity Incentive Plan (incorporated by reference to
Exhibit 4.5 to the Company’s Registration Statement on Form S-8 (No.
333-149074) filed with the SEC on February 6,
2008).
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4.3
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Calpine
Corporation Executive Sign On Non-Qualified Stock Option Agreement (Fusco)
(incorporated by reference to Exhibit 10.2 to the Company’s Current Report
on Form 8-K filed with the SEC on August 12,
2008).
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4.4
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Calpine
Corporation Executive Sign On Non-Qualified Stock Option Agreement
(Miller).*
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4.5
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Calpine
Corporation Executive Sign On Non-Qualified Stock Option Agreement (Hill)
(incorporated by reference to Exhibit 10.2 to the Company’s Current Report
on Form 8-K filed with the SEC on September 4,
2008).
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5.1
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Opinion
of Thelen LLP with respect to the legality of Common Stock being
registered hereby.*
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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 Thelen LLP (included in Exhibit 5.1).*
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24
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Power
of Attorney (contained on the signature page to this Registration
Statement).*
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__________
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