S-8
As filed with the Securities and Exchange Commission on June 27 2008
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
NRG ENERGY, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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41-1724239 |
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(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
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211 Carnegie Center |
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Princeton, NJ
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08540 |
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(Address of principal executive offices)
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(Zip Code) |
NRG ENERGY, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
J. Andrew Murphy
Executive Vice President and General Counsel
NRG Energy, Inc.
211 Carnegie Center
Princeton, New Jersey 08540
(609) 524-4500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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 þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Title of |
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Amount to |
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Maximum |
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Maximum |
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Securities to be |
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be |
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Offering Price |
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Aggregate |
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Registered |
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Registered |
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Per Share(1) |
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Offering Price |
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Amount of Registration Fee |
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Common Stock, par
value $.01 per
share |
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500,000 |
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$43.52 |
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$21,760,000 |
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$856 |
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(1) |
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Estimated pursuant to Rule 457(h) solely for the purposes of calculating the aggregate
offering price and the amount of the registration fee based upon the average of the high and
low prices of the Registrants common stock as reported on the New York Stock Exchange on June
25, 2008. |
TABLE OF CONTENTS
PART I
All information required by Part I to be contained in the prospectus is omitted from this
Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended.
PART II
Item 3. Incorporation of Documents by Reference.
The documents listed in clauses 1 through 5 below are incorporated herein by this reference
thereto, and all documents subsequently filed (other than respective filings or portions of filings
that are furnished, under applicable Securities and Exchange Commission (SEC) rules, rather than
filed) by NRG Energy, Inc. (the Registrant) pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended, 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, shall be deemed to be incorporated by this reference in this registration
statement and to be a part hereof from the date of filing of such documents:
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1. |
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Annual Report on Form 10-K for the fiscal year ended December
31, 2007, filed with the SEC on February 28, 2008; |
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2. |
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Current Reports on Form 8-K, filed with the SEC on March 25,
2008, April 7, 2008, and May 22, 2008; |
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3. |
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Quarterly Report on Form 10-Q for the quarter ended March 31,
2008, filed with the SEC on May 1, 2008; |
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4. |
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Proxy Statement, dated April 2, 2008, for the Registrants 2008
annual meeting of stockholders, filed with the SEC on April 2, 2008; and |
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5. |
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The description of the Registrants common stock contained in
the Registrants registration statement on Form 8-A filed on December 10, 2003,
as amended by Form 8-A/A filed on March 22, 2004. |
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the Common Stock offered hereby have been passed upon
for the Registrant by J. Andrew Murphy, Executive Vice President and General Counsel for the
Registrant. Mr. Murphy is eligible to participate in the NRG Energy, Inc. Employee Stock Purchase
Plan and as of June 25, 2008, Mr. Murphy held options to purchase 28,132 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145(a) of the Delaware General Corporation Law provides that a corporation shall have
the power to 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 such 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, 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
if such person acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such persons conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such 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, partnership, joint venture, trust or
other enterprise 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 such person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall 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 or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court
shall deem proper.
Section 145(c) of the Delaware General Corporation Law provides that to the extent that a
present or former director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 145(a) and (b), or in
defense of any claim, issue or matter therein, such person shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by such person in connection
therewith.
Section 145(d) of the Delaware General Corporation Law provides that any indemnification under
Section 145(a) and (b) (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 145(a) and (b). Such determination shall be
made with respect to a person who is a director or officer at the time of such determination (1) by
a majority vote of the directors who were not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145(e) of the Delaware General Corporation Law provides that expenses (including
attorneys fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation as authorized in
Section 145. Such expenses (including attorneys fees) incurred by former directors and officers
or other employees and agents may be so paid upon such terms and conditions, if any, as the
corporation deems appropriate.
Section 145(f) of the Delaware General Corporation Law provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed
exclusive
of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such persons official capacity and as to action in another
capacity while holding such office.
Section 145(g) of the Delaware General Corporation Law provides that a corporation shall have
the power to purchase and maintain insurance on behalf of any person who 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 any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such persons capacity as such, whether or
not the corporation would have the power to indemnify such person against such liability under
Section 145.
NRG Energy, Inc. Amended and Restated Certificate of Incorporation and By-laws
The Amended and Restated Certificate of Incorporation of the Registrant provides, to the
fullest extent permitted by Delaware law and except as otherwise provided in its by-laws, no
director of the Registrant shall be liable to it or its stockholders for monetary damages for
breach of fiduciary duty. Furthermore, the Amended and Restated By-laws of the Registrant provide
that each person who was or is made a party or is threatened to be made a party to or is otherwise
involved (including involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a
director or officer of the Registrant or a wholly owned subsidiary of the Registrant or, while a
director or officer of the Registrant or a wholly owned subsidiary of the Registrant, is or was
serving at the request of the Registrant or a wholly owned subsidiary of the Registrant as a
director, officer, employee, partner, member, manager, trustee, fiduciary or agent of another
corporation or of a partnership, joint venture, limited liability company, trust or other entity or
enterprise, including service with respect to an employee benefit plan (an indemnitee), shall be
indemnified and held harmless by the Registrant to the fullest extent authorized by Delaware Law,
against all expense, liability and loss (including attorneys fees, judgments, fines, excise taxes
or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to an indemnitee who has ceased to
be a director, officer, employee, partner, member, manager, trustee, fiduciary or agent and shall
inure to the benefit of the indemnitees heirs, executors and administrators. This right of
indemnification includes our obligation to provide an advance of expenses, although the indemnitee
may be required to repay such an advance if there is a judicial determination that the indemnitee
was not entitled to the indemnification.
The Amended and Restated By-laws of the Registrant also permits the Registrant to purchase and
maintain insurance on its own behalf and on behalf of any other person who is or was a director,
officer, employee or agent of the Registrant or a subsidiary of the Registrant or was serving at
request of the Registrant or a subsidiary of the Registrant.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of the registration statement:
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3.1 |
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Amended and Restated Certificate of Incorporation of NRG Energy, Inc., incorporated by
reference to Exhibit 3.1 of NRG Energy, Inc.s Current Report on Form 8-K filed on May 24, 2005. |
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3.2 |
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Amended and Restated Bylaws of NRG Energy, Inc., incorporated by reference to Exhibit 3.2
of NRG Energy, Inc.s Annual Report on Form 10-K filed on February 28, 2008. |
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NRG Energy, Inc. Employee Stock Purchase Plan, incorporated
by reference to Appendix A of NRG Energy, Inc.s Proxy Statement on Schedule
14A filed on April 2, 2008. |
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5 |
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Opinion of General Counsel. |
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23.1 |
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Consent of KPMG LLP. |
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23.2 |
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Consent of General Counsel (contained in Exhibit No. 5). |
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Power of Attorney (included on signature page of the registration statement). |
Item 9. Undertakings.
(a) Rule 415 Offering. 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;
(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; and
(iii) To include any material information with respect to the plan of distribution
not previously disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(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 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.
(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) Subsequent Exchange Act Documents. The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the
Registrants annual report pursuant to Section 13(a) or 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.
(c) Indemnification. 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.
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,
thereunder duly authorized, in the City of Princeton, State of New Jersey, on June 27, 2008.
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NRG ENERGY, INC.
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By: |
/s/ David W. Crane
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David W. Crane |
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President and Chief Executive Officer |
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By: |
/s/ Clint Freeland
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Clint Freeland |
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Chief Financial Officer
(Principal Financial Officer) |
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By: |
/s/ James J. Ingoldsby
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James J. Ingoldsby |
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Chief Accounting Officer
(Principal Accounting Officer) |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby makes,
constitutes and appoints David W. Crane, J. Andrew Murphy and Tanuja M. Dehne and each of them,
with full power to act without the other, his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for him and in his name, place and stead, in any and
all capacities to sign any and all amendments to this registration statement on Form S-8, including
post-effective amendments, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said
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 he might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or any 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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Signature |
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Date |
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/s/ Howard E. Cosgrove |
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Chairman of the Board |
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June 27, 2008 |
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Howard E. Cosgrove |
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/s/ David W. Crane |
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President and |
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June 27, 2008 |
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David W. Crane |
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Chief Executive Officer |
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and Director |
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/s/ John F. Chlebowski |
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Director |
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June 27, 2008 |
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John F. Chlebowski |
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Signature |
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Date |
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/s/ Lawrence S. Coben |
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Director |
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June 27, 2008 |
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Lawrence S. Coben |
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/s/ Stephen L. Cropper |
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Director |
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June 27, 2008 |
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Stephen L. Cropper |
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/s/ William E. Hantke |
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Director |
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June 27, 2008 |
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William E. Hantke |
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/s/ Paul W. Hobby |
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Director |
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June 27, 2008 |
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Paul W. Hobby |
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/s/ Anne C. Schaumburg |
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Director |
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June 27, 2008 |
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Anne C. Schaumburg |
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/s/ Herbert H. Tate |
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Director |
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June 27, 2008 |
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Herbert H. Tate |
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/s/ Thomas H. Weidemeyer |
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Director |
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June 27, 2008 |
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Thomas H. Weidemeyer |
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/s/ Walter R. Young |
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Director |
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June 27, 2008 |
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Walter R. Young |
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EXHIBIT INDEX
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Exhibit No. |
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Exhibit |
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3.1
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Amended and Restated Certificate of Incorporation of NRG Energy, Inc., incorporated by
reference to Exhibit 3.1 of NRG Energy, Inc.s Current Report on Form 8-K filed on May 24, 2005. |
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3.2
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Amended and Restated Bylaws of NRG Energy, Inc., incorporated
by reference to Exhibit 3.2 of NRG Energy, Inc.s Annual Report on Form 10-K
filed on February 28, 2008. |
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4
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NRG Energy, Inc. Employee Stock Purchase Plan, incorporated
by reference to Appendix A of NRG Energy, Inc.s Proxy Statement on Schedule
14A filed on April 2, 2008. |
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5
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Opinion of General Counsel. |
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23.1
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Consent of KPMG LLP. |
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23.2
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Consent of General Counsel (contained in Exhibit No. 5). |
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24
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Power of Attorney (included on signature page of the registration statement). |