As filed with the Securities and Exchange Commission on June 17, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Capstone Turbine Corporation
(Exact name of registrant as specified in its charter)
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Delaware |
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95-4180883 |
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(State or other jurisdiction of |
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(I.R.S. Employer |
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incorporation or organization) |
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Identification No.) |
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21211 Nordhoff Street |
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Chatsworth, California |
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91311 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
CAPSTONE TURBINE CORPORATION INDUCEMENT AWARDS
CAPSTONE TURBINE CORPORATION AMENDED AND RESTATED 2000 EQUITY INCENTIVE PLAN
(Full title of the plan)
Edward I. Reich
Executive Vice President, Chief Financial Officer and Secretary
Capstone Turbine Corporation
21211 Nordhoff Street
Chatsworth, California 91311
(818) 734-5300
(Name, address and telephone number, including area code, of agent for service)
with copies to:
J. Chase Cole, Esq.
Waller Lansden Dortch & Davis, LLP
511 Union Street, Suite 2700
Nashville, Tennessee 37219
(615) 244-6380
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.
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Large accelerated filer o |
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Accelerated filer x |
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Non-accelerated filer o (Do not check if a smaller reporting company) |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered (1) |
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Amount
to be
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Proposed
maximum
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Proposed
maximum
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Amount
of
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Capstone
Turbine Corporation Inducement Awards
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4,550,000 shares |
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$ |
0.73 |
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$ |
3,321,5000 |
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$ |
185.34 |
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Capstone
Turbine Corporation Amended and Restated 2000 Equity Incentive Plan
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5,100,000 shares |
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$ |
0.73 |
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$ |
3,723,000 |
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$ |
207.74 |
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Aggregate Registration Fee |
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$ |
393.08 |
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(1) |
Includes rights to purchase shares of preferred stock (the “Rights”) of Capstone Turbine Corporation (“Capstone”) which are issuable pursuant to Capstone’s stockholder rights plan. Until the occurrence of certain prescribed events, the Rights are not exercisable and will be transferable along with and only with the common stock. |
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(2) |
The shares registered hereunder include (i) 4,550,000 shares of common stock of Capstone issuable upon exercise of options or vesting of restricted stock units granted or to be granted as inducement awards and (ii) 5,100,000 shares of common stock of Capstone reserved for issuance pursuant to future grants under the Capstone Turbine Corporation Amended and Restated 2000 Equity Incentive Plan (the “2000 Plan”). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (the “Registration Statement”) also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein. The 2000 Plan authorizes the issuance of a maximum of (i) 11,180,000 shares of common stock of Capstone, plus (ii) up to 7,800,000 shares of common stock of Capstone previously authorized under the Capstone Turbine Corporation 1993 Incentive Stock Plan, as amended (the “1993 Plan”). Capstone previously registered with the Securities and Exchange Commission (the “Commission”) (i) 6,080,000 shares of common stock available for issuance under the 2000 Plan and (ii) 5,992,389 shares available for issuance under the 1993 Plan. |
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(3) |
The proposed maximum offering price per share is based upon the average of the high and low trading prices per share of Capstone’s common stock reported on June 10, 2009, as reported by the Nasdaq Global Market, pursuant to Rule 457(h) of the Securities Act. |
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(4) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act. |
EXPLANATORY NOTE
The contents of (i) Capstone’s registration statement on Form S-8 (File No. 333-40868) registering shares of common stock issuable pursuant to the 2000 Plan and filed with the Commission on July 6, 2000; (ii) Capstone’s registration statement on Form S-8 (File No. 333-101201) registering shares of common stock issuable pursuant to the 2000 Plan and filed with the Commission on November 14, 2002; and (iii) Capstone’s registration statement on Form S-8 (File No. 333-131431) registering shares of common stock issuable pursuant to the 2000 Plan and filed with the Commission on February 1, 2006 are hereby incorporated by reference pursuant to Instruction E to Form S-8. Also pursuant to Instruction E to Form S-8, the portion of the filing fee applicable to the 2000 Plan is being paid only with respect to the 5,100,000 shares authorized for issuance pursuant to the 2000 Plan not previously registered.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act. Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in the Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Capstone will provide participants, upon written or oral request and without charge, a copy of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, which are incorporated by reference in the Section 10(a) prospectus, and all documents required to be delivered to employees pursuant to Rule 428(b) under the Securities Act. Requests for such documents should be directed to Capstone Turbine Corporation, 21211 Nordhoff Street, Chatsworth, California 91311, Attention: Edward I. Reich, Executive Vice President, Chief Financial Officer and Secretary, telephone number: (818) 734-5300.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Capstone hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
(a) Capstone’s Annual Report on Form 10-K for the fiscal year ended March 31, 2009; and
(b) The description of Capstone’s common stock contained in Capstone’s Registration Statement on Form 8-A, filed with the Commission on June 22, 2000, including any subsequent amendment or report filed for the purpose of amending such description, and the description of Capstone’s Preferred Stock purchase rights contained in Capstone’s Registration Statement on Form 8-A, filed with the Commission on July 8, 2005, including any subsequent amendment or report filed for the purpose of amending such description.
All documents subsequently filed by Capstone pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein and to be a part hereof shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the General Corporation Law of the State of Delaware (“DGCL”) provides that a corporation may eliminate or limit the personal liability of directors to a corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law or obtained an improper personal benefit. Under Section 145 of the DGCL, a 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 he or she 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, partnership, joint venture, 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 (i) if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe such conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of Chancery or other such court shall deem proper. To the extent that such person has been successful on the merits or otherwise in defending any such action, suit or proceeding referred to above or any claim, issue or matter therein, he or she is entitled to indemnification for expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. The indemnification and advancement of expenses provided for or granted pursuant to Section 145 is not exclusive of any other rights of indemnification or advancement of expenses to which those seeking indemnification or advancement of expenses may be entitled, and a corporation may purchase and maintain insurance against liabilities asserted against any former or current director, officer, employee or agent of the corporation, or a person who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether or not the power to indemnify is provided by the statute.
Capstone has adopted provisions in its second amended and restated certificate of incorporation which requires it, to the fullest extent permitted by the DGCL, to indemnify all directors and officers of Capstone, and such other persons as may be required by statute or by its amended and restated bylaws, against any liability and to advance indemnification expenses on behalf of all directors and officers of Capstone. The certificate further requires Capstone to limit, 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 second amended and restated certificate of incorporation 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 Capstone’s amended and restated bylaws, against any liability which may be asserted against any director, officer or such other person.
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In addition, Capstone’s amended and restated 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, Capstone 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 Capstone’s amended and restated 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 amended and restated 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 Capstone director, 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, as defined within such Indemnity Agreements, 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 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, and (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.
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Number |
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Exhibit |
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4.1 |
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Specimen Stock Certificate (a) |
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4.2 |
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Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock (b) |
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4.3 |
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Rights Agreement, dated as of July 7, 2005, by and between Capstone Turbine Corporation and Mellon Investor Services LLC (b) |
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4.4 |
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Amendment No. 1 to Rights Agreement, dated July 3, 2008, between Capstone Turbine Corporation and Mellon Investor Services LLC (c) |
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5 |
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Opinion of Waller Lansden Dortch & Davis, LLP |
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10.1 |
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Form of Inducement Stock Option Agreement |
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10.2 |
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Form of Inducement Restricted Stock Unit Agreement |
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10.3 |
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Amended and Restated 2000 Equity Incentive Plan (d) |
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10.4 |
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Amendment to the Capstone Turbine Corporation Amended and Restated 2000 Equity Incentive Plan (e) |
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23.1 |
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
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23.2 |
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Consent of Waller Lansden Dortch & Davis, LLP (included in Exhibit 5) |
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24 |
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Power of Attorney (included on the signature page) |
(a) Incorporated by reference to Capstone Turbine Corporation’s Registration Statement on Form S-1 (File No. 333-33024).
(b) Incorporated by reference to Capstone Turbine Corporation’s Current Report on Form 8-K filed on July 8, 2005 (File No. 001-15957).
(c) Incorporated by reference to Capstone Turbine Corporation’s Current Report on Form 8-K filed on July 10, 2008 (File No. 001-15957).
(d) Incorporated by reference to Capstone Turbine Corporation’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2007 (File No. 001-15957).
(e) Incorporated by reference to Appendix B to Capstone Turbine Corporation’s Definitive Proxy Statement filed on July 18, 2008 (File No. 001-15957).
Item 9. 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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however , that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 this 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 registrant’s annual report pursuant to Section 13(a) or 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 into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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 indemnification provisions summarized in Item 6, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-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 June 17, 2009.
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CAPSTONE TURBINE CORPORATION |
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By: |
/s/ EDWARD I. REICH |
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Edward I. Reich |
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Executive Vice President, Chief Financial Officer |
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(Principal Financial Officer) |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Edward I. Reich and Darren R. Jamison, and each of them acting individually, his or her true and lawful attorney-in-fact and agent, each 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 and all amendments (including post-effective amendments) to this registration statement and to sign any and all registration statements, and any and all amendments thereto (including post-effective amendments) relating to the offering of securities as this registration statement that are filed pursuant to Rule 462(b) promulgated 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 and any other regulatory authority, 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 connection therewith, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Date |
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/s / DARREN R. JAMISON |
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Chief Executive Officer and Director |
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June 9, 2009 |
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Darren R. Jamison |
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(Principal Executive Officer) |
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/s/ EDWARD I. REICH |
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Chief Financial Officer |
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June 9, 2009 |
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Edward I. Reich |
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(Principal Financial Officer) |
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/s/ JAYME L. BROOKS |
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Chief Accounting Officer |
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June 9, 2009 |
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Jayme L. Brooks |
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(Principal Accounting Officer) |
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/s/ ELIOT G. PROTSCH |
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Chairman of the Board of Directors |
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June 9, 2009 |
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Eliot G. Protsch |
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/s/ RICHARD K. ATKINSON |
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Director |
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June 9, 2009 |
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Richard K. Atkinson |
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/s/ JOHN V. JAGGERS |
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Director |
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June 9, 2009 |
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John V. Jaggers |
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/s/ NOAM LOTAN |
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Director |
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June 9, 2009 |
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Noam Lotan |
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/s/ GARY J. MAYO |
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Director |
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June 9, 2009 |
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Gary J. Mayo |
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/s/ GARY D. SIMON |
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Director |
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June 9, 2009 |
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Gary D. Simon |
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/s/ HOLLY A. VAN DEURSEN |
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Director |
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June 9, 2009 |
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Holly A. Van Deursen |
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/s/ DARRELL J. WILK |
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Director |
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June 9, 2009 |
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Darrell J. Wilk |
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EXHIBIT INDEX
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Number |
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Exhibit |
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4.1 |
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Specimen Stock Certificate (a) |
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4.2 |
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Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock (b) |
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4.3 |
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Rights Agreement, dated as of July 7, 2005, by and between Capstone Turbine Corporation and Mellon Investor Services LLC (b) |
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4.4 |
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Amendment No. 1 to Rights Agreement, dated July 3, 2008, between Capstone Turbine Corporation and Mellon Investor Services LLC (c) |
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5 |
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Opinion of Waller Lansden Dortch & Davis, LLP |
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10.1 |
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Form of Inducement Stock Option Agreement |
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10.2 |
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Form of Inducement Restricted Stock Unit Agreement |
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10.3 |
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Amended and Restated 2000 Equity Incentive Plan (d) |
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10.4 |
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Amendment to the Capstone Turbine Corporation Amended and Restated 2000 Equity Incentive Plan (e) |
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23.1 |
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
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23.2 |
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Consent of Waller Lansden Dortch & Davis, LLP (included in Exhibit 5) |
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24 |
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Power of Attorney (included on the signature page) |
(a) Incorporated by reference to Capstone Turbine Corporation’s Registration Statement on Form S-1 (File No. 333-33024).
(b) Incorporated by reference to Capstone Turbine Corporation’s Current Report on Form 8-K filed on July 8, 2005 (File No. 001-15957).
(c) Incorporated by reference to Capstone Turbine Corporation’s Current Report on Form 8-K filed on July 10, 2008 (File No. 001-15957).
(d) Incorporated by reference to Capstone Turbine Corporation’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2007 (File No. 001-15957).
(e) Incorporated by reference to Appendix B to Capstone Turbine Corporation’s Definitive Proxy Statement filed on July 18, 2008 (File No. 001-15957).
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Exhibit 5
June 17, 2009
Capstone Turbine Corporation
21211 Nordhoff Street
Chatsworth, CA 91311
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel to Capstone Turbine Corporation, a Delaware corporation (the “Company”), in connection with the registration under the Securities Act of 1933 (the “Act”) pursuant to a Registration Statement on Form S-8 (the “Registration Statement”) of an aggregate of 9,650,000 shares of the Company’s Common Stock, par value $0.001 per share and the related rights to purchase Series A Junior Participating Preferred Stock of the Company, par value $0.001 per share (the “Shares”).
In connection with this opinion, we have examined and relied upon such records, documents and other instruments as in our judgment are necessary and appropriate in order to express the opinion hereinafter set forth, and have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, when issued and delivered in the manner and on the terms described in the Registration Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5 to the Registration Statement. This consent is not to be construed as an admission that we are a party whose consent is required to be filed with the Registration Statement under the provisions of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
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Very truly yours, |
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/s/ Waller Lansden Dortch & Davis, LLP |
Exhibit 10.1
CAPSTONE TURBINE CORPORATION
INDUCEMENT STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into on this day of [date of agreement] by and between Capstone Turbine Corporation (the “Company”) with [name] (the “Optionee”) to evidence the award of an option to purchase the common stock of the Company that was made on [grant date].
RECITALS:
WHEREAS, the Company, through action of the compensation committee of its board of directors taken on [date of committee action], made a conditional option award to Optionee to purchase the Company’s Common Stock (the “Option”) as an inducement to encourage Optionee to accept an offer of employment as the Company’s [title of Optionee];
WHEREAS, the parties, in connection therewith, entered into a letter agreement dated [letter agreement date], that sets forth the general terms of employment of the Optionee by the Company, including the terms of the Option that is evidenced by this Agreement; and
WHEREAS, the parties further acknowledge that this Option is granted separately from the Capstone Turbine Corporation 2000 Equity Incentive Plan (the “2000 Plan”), but desire that this Option be subject to the terms contained in the 2000 Plan, except as otherwise provided for herein;
NOW, THEREFORE, in consideration of these premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree to the following terms and conditions regarding the Option covered hereby:
I. NOTICE OF STOCK OPTION GRANT
Notice is hereby given of the grant of the Option, subject to the following terms. References in this Agreement to certain terms of the Option shall be as defined in this Article I:
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Date of Grant: |
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Exercise Price: |
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$ per Share |
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Total Number of Shares: |
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Total Exercise Price: |
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$ |
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Type of Option: |
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Non-Qualified Stock Option |
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Term: |
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10 years commencing on Date of Grant |
Exercise and Vesting Schedule:
This Option shall vest and become exerciseable on the dates and as described in this paragraph, subject to the Optionee continuing to be either an Employee or a Consultant to the Company on such vesting dates. On [1 year anniversary of grant date] , Optionee shall be vested in and have the right to exercise the Option with respect to [ ] Shares. Thereafter, Optionee shall become vested in and have the right to exercise this Option with respect to 1/48 th of the number of Shares subject to the Option on the day of each month corresponding to the Date of Grant, so that the Option shall be fully vested and exercisable on the fourth anniversary of the Date of Grant. However, if Optionee is terminated by the Company other than for Cause prior to the one-year anniversary of the Date of Grant, Optionee shall become vested in and have the right to exercise this Option with respect to 1/48 th of the number of Shares subject to the Option for each full month of employment following the Date of Grant, based on the day of the month corresponding to the Date of Grant, through the date of such termination.
Option Termination:
The Option shall terminate on [ten year anniversary of grant date] ; provided, however, that if Optionee ceases to be either an Employee or a Consultant prior thereto, then the Option shall terminate earlier pursuant to the terms of Sections 10(d), 10(e), and 10(f) of the 2000 Plan.
II. AGREEMENT
1. Grant of Option . The Option to purchase the Shares of Common Stock is subject to the terms set forth in Article I of this Agreement. Except as expressly provided for herein, this Option is also subject to the terms, definitions and provisions of the 2000 Plan, which are incorporated herein by reference. All capitalized terms used in this Agreement shall have the meanings ascribed to such terms in the 2000 Plan, except as may be otherwise defined herein. The Option evidenced in this Agreement is intended by the parties to be granted in fulfillment of the Company’s obligation to award a stock option pursuant to the letter agreement between the parties dated [date of letter agreement]; the terms of this Agreement completely replace and supersede the terms addressing the subject matter contained in such letter agreement.
2. Exercise of Option . The Option shall be exercisable cumulatively according to the vesting schedule set forth in Article I of this Agreement, based on Optionee’s continued status as an Employee or a Consultant, and subject to the procedures and methods for payment set forth in the 2000 Plan. Any portion of the exercisable portion of the Option may be exercised at any time by the Optionee until the Option has terminated.
3. Lock-Up Period . Optionee hereby agrees that if so requested by the Company or any representative of the underwriters (the “Managing Underwriter”) in connection with any registration of the offering of any securities of the Company under the Securities Act of 1933, as amended (“Securities Act”), or any applicable state laws, Optionee shall not sell or otherwise transfer any Shares or other securities of the Company during the 180-day period (or such longer period as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company) (the “Market Standoff Period”) following the effective date of a registration statement of the Company filed under the Securities Act. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Standoff Period.
4. Non-Transferability of Option . The Option may not be transferred in any manner except by will or by the laws of descent or distribution. It may be exercised during the lifetime of Optionee only by Optionee. The terms of the Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute one document.
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CAPSTONE TURBINE CORPORATION |
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By: |
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE OPTION HEREOF IS EARNED ONLY BY CONTINUING EMPLOYMENT OR CONSULTANCY AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS STOCK OPTION AGREEMENT, NOR IN THE CAPSTONE TURBINE CORPORATION 2000 EQUITY INCENTIVE PLAN, WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE OPTIONEE’S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee hereby acknowledges receipt of the 2000 Plan and a current prospectus for the offering represented by the grant of this Option. Optionee represents that he is familiar with the terms and provisions of the 2000 Plan and this Agreement and does hereby accept the Option subject to all of its terms. Optionee has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of this Agreement and the Option granted hereunder. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the 2000 Plan or this Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below.
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Dated: |
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Optionee |
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Exhibit 10.2
CAPSTONE TURBINE CORPORATION
INDUCEMENT RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT is entered into on this day of [date of agreement] by and between Capstone Turbine Corporation (the “Company”) with [name] (“Executive”) to evidence the award of the common stock of the Company that was made on [date of grant].
RECITALS:
WHEREAS, the Company, through action of the compensation committee of its board of directors taken on [date of committee meeting], made a conditional award of the Company’s Common Stock (the “Award”) as an inducement to encourage Executive to accept an offer of employment as the Company’s [title of Executive];
WHEREAS, the parties, in connection therewith, entered into a letter agreement dated [date of letter agreement], that sets forth the general terms of employment of the Executive by the Company, including the terms of the Award that is evidenced by this Agreement; and
WHEREAS, the parties further acknowledge that this Award is granted separately from the Capstone Turbine Corporation 2000 Equity Incentive Plan (the “2000 Plan”), but desire that this Award be subject to the terms contained in the 2000 Plan, except as otherwise provided for herein;
NOW, THEREFORE, in consideration of these premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree to the following terms and conditions regarding the Award covered hereby:
I. NOTICE OF STOCK AWARD
Notice is hereby given of the grant of the Award, subject to the following terms. References in this Agreement to certain terms of the Award shall be as defined in this Article I:
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Date of Grant: |
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Total Number of Shares: |
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Type of Award: |
Restricted Stock Units |
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Term for Vesting: |
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Transfer of Shares; Vesting Schedule:
Pursuant to the Award, ownership of the Common Stock shall be transferred to Executive on the dates and in the amounts described in this paragraph, subject to the Executive continuing to be either an Employee or a Consultant to the Company on such dates:
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Transfer Date |
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Shares Transferred |
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The Common Stock transferred to Executive pursuant to this Award shall be fully vested and not subject to restrictions or forfeiture on the respective transfer dates, except as provided in this Agreement. If Executive’s employment is terminated by the Company other than for Cause prior to the one-year anniversary of the Date of Grant, Executive shall become vested in and have the vested right to receive a transfer of the Common Stock under this Award with respect to 1/48 th of the number of Shares subject to the Award for each full month of employment following the Date of Grant, based on the day of the month corresponding to the Date of Grant, through the date of such termination.
Award Termination:
The Award shall terminate on the date that Executive ceases to be either an Employee or a Consultant of the Company. Upon termination, any unvested portion of the Award will lapse.
II. AGREEMENT
1. Grant of Award . This Award is subject to the terms set forth in Article I of this Agreement and, except as expressly provided for herein, the terms, definitions and provisions of the 2000 Plan regarding awards of Common Stock (including Stock Bonus grants), which are incorporated herein by reference. All capitalized terms used in this Agreement shall have the meanings ascribed to such terms in the 2000 Plan, except as may be otherwise defined herein. The Award evidenced in this Agreement is intended by the parties to be granted in fulfillment of the Company’s obligation to award restricted stock pursuant to the letter agreement between the parties dated [date of letter agreement]; the terms of this Agreement completely replace and supersede the terms addressing the subject matter contained in such letter agreement.
2. Status of Executive . The Executive shall not be deemed a stockholder of the Company with respect to Common Stock covered by this Award and shall not be entitled to receive dividends and exercise voting rights with respect thereto until such Shares are Transferred to Executive on the dates described in Article I of this Agreement. The Company is not required to deliver shares of Common Stock to the Participant until all applicable requirements of law have been complied with and such shares shall have been duly listed on any securities exchange on which the Common Stock may then be listed. Any certificates representing the shares of Common Stock awarded pursuant to this Agreement shall be issued in the Participant’s name.
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3. Tax Withholding . At the time that any portion of the Award becomes vested and Shares are transferred to the Executive, the Company shall withhold from the Shares to be delivered to Executive a number of Shares that have a Fair Market Value equivalent to the tax withholdings that are required to be remitted by the Company to the appropriate governmental entity or entities on behalf of the Executive with respect to such transaction. The parties may make different arrangements for tax withholdings through a written agreement.
5. Committee Authority . Any question concerning the interpretation of this Agreement, any adjustments required to be made under the Plan and any controversy that may arise under the Plan or this Agreement shall be determined by the Committee in its sole discretion. Such decision by the Committee shall be final and binding.
6. Lock-Up Period . Executive hereby agrees that if so requested by the Company or any representative of the underwriters (the “Managing Underwriter”) in connection with any registration of the offering of any securities of the Company under the Securities Act of 1933, as amended (“Securities Act”), or any applicable state laws, Executive shall not sell or otherwise transfer any Shares or other securities of the Company during the 180-day period (or such longer period as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company) (the “Market Standoff Period”) following the effective date of a registration statement of the Company filed under the Securities Act. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Standoff Period.
7. Non-Transferability of Award . The Award may not be transferred in any manner except by will or by the laws of descent or distribution. It may be exercised during the lifetime of Executive only by Executive. The terms of the Award shall be binding upon the executors, administrators, heirs, successors and assigns of the Executive.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute one document.
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CAPSTONE TURBINE CORPORATION |
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By: |
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EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE TRANSFER AND VESTING OF SHARES PURSUANT TO THIS AWARD IS EARNED ONLY BY CONTINUING EMPLOYMENT OR CONSULTANCY AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING
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HIRED, BEING GRANTED THE AWARD OR ACQUIRING SHARES HEREUNDER). EXECUTIVE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE CAPSTONE TURBINE CORPORATION 2000 EQUITY INCENTIVE PLAN, WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON EXECUTIVE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH EXECUTIVE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE EXECUTIVE’S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT CAUSE.
Executive hereby acknowledges receipt of the 2000 Plan and a current prospectus for the offering represented by the grant of this Award. Executive represents that he is familiar with the terms and provisions of the 2000 Plan and this Agreement and does hereby accept the Award subject to all of its terms. Executive has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of this Agreement and the Award granted hereunder. Executive hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the 2000 Plan or this Agreement. Executive further agrees to notify the Company upon any change in the residence address indicated below.
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Dated: |
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[name] |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated June 15, 2009, relating to the financial statements and financial statement schedule of Capstone Turbine Corporation, and the effectiveness of Capstone Turbine Corporation’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Capstone Turbine Corporation for the year ended March 31, 2009.
DELOITTE & TOUCHE LLP
Los Angeles, California
June 17, 2009