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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CAPSTONE TURBINE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4180883
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
21211 NORDHOFF STREET
CHATSWORTH, CALIFORNIA 91311
(818) 734-5300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DEFERRED COMPENSATION PLAN OF CAPSTONE TURBINE CORPORATION
(FULL TITLE OF THE PLAN)
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DR. AKE ALMGREN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CAPSTONE TURBINE CORPORATION
21211 NORDHOFF STREET
CHATSWORTH, CALIFORNIA 91311
(818) 734-5300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
BRIAN CARTWRIGHT
LATHAM & WATKINS
633 WEST 5TH STREET, SUITE 4000
LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE AMOUNT OF REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE(2) FEE
- --------------------------- ------------ ----------------- ----------------------
Deferred Compensation
Obligations (1).......... $2,713,500 $2,713,500 $678.38
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(1) The deferred compensation obligations to which this Registration
Statement relates (the "Deferred Compensation Obligations") arise under
the Deferred Compensation Plan of Capstone Turbine Corporation (the
"Plan") and are unsecured obligations of Capstone Turbine Corporation
("Capstone") to pay deferred compensation in the future pursuant to
compensation deferral elections made by participants in the Plan in
accordance with the terms of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933, as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference
in, and shall be deemed to be a part of, this Registration Statement:
(a) Capstone's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000; and
(b) Capstone's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001.
All documents filed by Capstone pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold are incorporated by reference in this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein, or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The following description of the deferred compensation obligations of
Capstone under the Deferred Compensation Plan of Capstone Turbine Corporation
(the "Plan") is qualified by reference to the Plan. Capitalized terms used in
this Item 4 and not otherwise defined in this Registration Statement shall have
the respective meanings attributed to such terms in the Plan.
The deferred compensation obligations incurred by Capstone under the
Plan are unsecured general obligations of Capstone, and will rank equally with
other unsecured and unsubordinated indebtedness of Capstone, from time to time
outstanding, payable from the general assets of Capstone.
Under the Plan, Capstone selects each Eligible Participant among the
Executives by resolution of the Board of Directors and provides the Eligible
Participant with the opportunity in each Plan Year to elect to defer up to 90%
of his base Compensation and up to 90% of his bonus, if any. The portion of the
Participant's Compensation and bonus that is deferred depends on the
Participant's election in effect at the beginning of each Plan Year as set forth
in a Deferral Agreement entered into with Capstone before the first day of each
Plan Year. In addition, Capstone may make a matching contribution for a Plan
Year and contribute an additional amount at any time or times during a Plan
Year. Capstone maintains a separate bookkeeping Deferral Account and Employer
Contribution Account for each Participant.
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The amounts in each Participant's Deferral Account and Employer
Contribution Account represent an obligation of Capstone to pay to the
Participant at some time in the future. The amount that Capstone is required to
pay under the terms of the Plan is equal to (a) the deferrals made by the
Participants, (b) the contributions made by Capstone, (c) the interest earnings
on the Participants' Accounts at prime interest rate set by Wells Fargo Bank
plus one percent (1%) per year (the "Earnings Rate"), plus (d) in the event the
Participants choose an investment option that Capstone may offer from time to
time, in lieu of the Earnings Rate, hypothetical gains or losses attributable
to the deemed investment of such investment option which are credited to the
Participants' Accounts. Currently, no investment options are offered under the
Plan.
Each Participant is immediately vested in the Deferral Account (and
income and gain attributable thereto). A Participant becomes vested in the
Employer Contribution Account (and income and gain attributable thereto) upon
completing three (3) Years of Vesting Service, subject to earlier vesting in
certain circumstances.
The amounts payable to the Participants under the Plan are distributed
in accordance with the distribution provisions of the Plan. Generally, such
distributions are made upon termination of employment, death, disability, a
Change in Control or an Unforeseeable Emergency. A Participant must execute an
Agreement Against Unfair Competition prior to distribution of any amounts in the
Employer Contribution Account.
Capstone reserves the right to amend the Plan, provided that such
amendment does not result in any reduction of amounts in the Participants'
Accounts, as of the date of such amendment. Capstone also reserves the right to
terminate the Plan, provided that Capstone makes a single lump sum distribution
of the amounts in the Participants' Accounts within fifteen (15) days of the
Plan's termination date.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
generally allows Capstone to indemnify directors and officers for all expenses,
judgments, fines and amounts in settlement actually paid and reasonably incurred
in connection with any proceedings so long as such party acted in good faith and
in a manner reasonably believed to be in or not opposed to Capstone's best
interests and, with respect to any criminal proceedings, if such party had no
reasonable cause to believe his or her conduct to be unlawful. Indemnification
may only be made by Capstone if the applicable standard of conduct set forth in
Section 145 has been met by the indemnified party upon a determination made (i)
by the Board of Directors by a majority vote of the directors who are not
parties to such proceedings, even though less than a quorum, or (ii) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (iv)
by the stockholders.
Capstone has adopted provisions in its Second Amended and Restated
Certificate of Incorporation (the "Certificate"), which require Capstone, to the
fullest extent permitted by the
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DGCL, to indemnify all directors and officers of Capstone, and such other
persons as may be required by statute or by Capstone's bylaws (the "Bylaws"),
against any liability and to advance indemnification expenses on behalf of all
directors and officers of Capstone. The Certificate further requires Capstone to
eliminate, to the fullest extent permitted by the DGCL, the liability for
monetary damages of directors of Capstone for actions or inactions taken by them
as directors. If the DGCL is later amended to authorize corporate action further
limiting or eliminating the personal liability of directors, then the
Certificate provides that the liability of a director to Capstone shall be
limited or eliminated to the fullest extent permitted by the DGCL, as so amended
from time to time.
The Certificate also empowers Capstone, to the fullest extent permitted
by the DGCL, to purchase and maintain insurance on behalf of any director or
officer, or such other person as may be permitted by statute or the Bylaws,
against any liability which may be asserted against any director, officer or
such other person.
In addition, the Bylaws require that Capstone indemnify, in the manner
and to the full extent permitted by law, any person (or the estate of any
person) who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether or not by
or in the right of Capstone, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such person is a director
or officer of Capstone, and at the discretion of the board of directors may
indemnify any person (or the estate of any person) who is such a party or
threatened to be made such a party by reason of the fact that such person is or
was an employee or agent of Capstone or is or was serving at Capstone's request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. Capstone may, to the full extent
permitted by law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against him and may enter into
contracts providing for the indemnification of such person to the full extent
permitted by law. To the full extent permitted by law, the indemnification
provided under the Bylaws shall include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, and, in the manner provided by
law, any such expenses may be paid by Capstone in advance of the final
disposition of such action, suit or proceeding. The indemnification provided
under the Bylaws shall not be deemed to limit Capstone's right to indemnify any
other person for any such expenses to the full extent permitted by law, nor
shall it be deemed exclusive of any other rights to which any person seeking
indemnification from Capstone may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Capstone has entered into indemnity agreements (the "Indemnity
Agreements") with each director of Capstone, including directors who are also
officers and employees of Capstone, and certain senior officers of Capstone. The
Indemnity Agreements provide that Capstone will pay any expenses which an
indemnitee is or becomes legally obligated to pay in connection with any
proceeding, including any threatened, pending or completed claim, action, suit
or proceeding, whether brought by or in the right of Capstone or otherwise and
whether of a civil, criminal, administrative or investigative nature, in which
the indemnitee may be or may have been involved as a party or otherwise, by
reason of the fact that the indemnitee is or was, or has agreed to become, a
director or officer of Capstone, by reason of any actual or alleged error or
misstatement or misleading statement made or suffered by the indemnitee, by
reason of any
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action taken by him or of any inaction on his part while acting as such director
or officer, or by reason of the fact that he was serving at the request of
Capstone as a director, trustee, officer, employee or agent of Capstone or
another corporation, partnership, joint venture, trust or other enterprise;
provided, that in each such case the indemnitee acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of Capstone, and, in the case of a criminal proceeding, in addition
had no reasonable cause to believe that his conduct was unlawful.
The payments to be made under the Indemnity Agreements include, but are
not limited to, damages, judgments, fines, penalties, settlements and costs,
attorneys' fees and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under the Indemnity Agreement, except Capstone is not liable to make any payment
under the Indemnity Agreements in connection with any claim made against an
indemnitee (a) to the extent that payment is actually made to the indemnitee
under a valid, enforceable and collectible insurance policy, (b) to the extent
that the indemnitee is indemnified and actually paid otherwise than pursuant to
the Indemnity Agreement, (c) in connection with a judicial action by or in the
right of Capstone, in respect of any claim, issue or matter as to which the
indemnitee shall have been adjudged to be liable for negligence or misconduct in
the performance of his duty to Capstone unless and only to the extent that any
court in which such action was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the indemnitee is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper, (d) if it is proved by final judgment
in a court of law or other final adjudication to have been based upon or
attributable to the indemnitee's in fact having gained any personal profit or
advantage to which he was not legally entitled, (e) for a disgorgement of
profits made from the purchase and sale by the indemnitee of securities pursuant
to Section 16(b) of the Exchange Act and amendments thereto or similar
provisions of any state statutory law or common law, (f) brought about or
contributed to by the dishonesty of the indemnitee seeking payment pursuant to
the Indemnity Agreement; however, notwithstanding the foregoing, the indemnitee
shall be protected under the Indemnity Agreement as to any claims upon which
suit may be brought against him by reason of any alleged dishonesty on his part,
unless a judgment or other final adjudication thereof adverse to the indemnitee
shall establish that he committed (i) acts of active and deliberate dishonesty,
(ii) with actual dishonest purpose and intent, (iii) which acts were material to
the cause of action so adjudicated, or (g) for any judgment, fine or penalty
which Capstone is prohibited by applicable law from paying as indemnity or for
any other reason.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
+ 4.1 Deferred Compensation Plan of Capstone Turbine
Corporation.
+ 5.1 Opinion of Latham & Watkins.
+ 23.1 Consent of Deloitte & Touche LLP.
+ 23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
+ 24.1 Power of Attorney with respect to Capstone (see page S-1).
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+ Filed herewith.
ITEM 9. UNDERTAKINGS.
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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to
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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.
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant'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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 Securities and Exchange 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.
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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 Chatsworth, State of California, on July 31,
2001.
CAPSTONE TURBINE CORPORATION
By: /s/ AKE ALMGREN
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Name: Dr. Ake Almgren
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below on this Registration Statement hereby constitutes and appoints Dr. Ake
Almgren and Jeffrey Watts their true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for them and in their name,
place and stead, in any and all capacities (unless revoked in writing) to sign
any and all amendments to this Registration Statement to which this power of
attorney is attached, including any post-effective amendments as well as any
related registration statement (or amendment thereto) filed in reliance upon
Rule 462(b) 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 to such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in connection therewith,
as fully to all intents and purposes as they might and could do in person hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
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 and on the date indicated.
Signature Title Date
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/s/ AKE ALMGREN President, Chief Executive Officer and July 27, 2001
- ------------------------------- Director
Dr. Ake Almgren (Principal Executive Officer)
/s/ JEFFREY WATTS Secretary and Chief Financial Officer July 27, 2001
- ------------------------------- (Principal Financial Officer and
Jeffrey Watts Principal Accounting Officer)
/s/ RICHARD AUBE Director July 27, 2001
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Richard Aube
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/s/ JOHN JAGGERS Director July 27, 2001
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John Jaggers
/s/ JEAN-RENE MARCOUX Director July 27, 2001
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Jean-Rene Marcoux
/s/ JOHN G. MCDONALD Director July 27, 2001
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John G. McDonald
/s/ BENJAMIN M. ROSEN Director July 27, 2001
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Benjamin M. Rosen
/s/ ERIC YOUNG Director July 27, 2001
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Eric Young
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INDEX TO EXHIBITS
SEQUENTIALLY NUMBERED
EXHIBIT DESCRIPTION
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+4.1 Deferred Compensation Plan of Capstone Turbine
Corporation.
+5.1 Opinion of Latham & Watkins.
+23.1 Consent of Deloitte & Touche LLP.
+23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
+24.1 Power of Attorney with respect to Capstone (see page
S-1).
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+ Filed herewith.