UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported) October 11, 2005 (October 7, 2005)
CAPSTONE TURBINE CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware
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001-15957
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95-4180883 |
| (State or other jurisdiction
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(Commission file number)
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(I.R.S. Employer |
| of incorporation)
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Identification No.) |
21211 Nordhoff Street, Chatsworth, California 91311
(Address of principal executive offices)
(818) 734-5300
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Precommencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Precommencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Section 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement
Effective
as of October 7, 2005 Capstone Turbine Corporation (the “Company” or “Capstone”)
entered into Subscription Agreements (the “Subscription Agreements”) relating to a registered
direct offering pursuant to which Capstone will sell up to 17,000,000 shares of the Company’s
common stock. Monarch Pointe Fund, Ltd., which is a private investment
fund managed by M.A.G. Capital, LLC, and Asset Managers International
Ltd, a wholly owned subsidiary of Pentagon Special Purpose Fund, Ltd.
(the “Purchasers”) committed up to $20,000,000 and
$34,000,000, respectively, in purchase price for shares of Capstone
common stock to be issued pursuant to the Subscription Agreements. The financing will support management’s long-term plans
to capitalize on the Company’s unique patented alternative energy products by investing in its
efforts to pursue opportunities in the alternative energy and secure power marketplace.
On
each of the ten (10) trading days following October 7, 2005 (the “Offering Period”),
the Purchasers will purchase, and Capstone will sell, shares at a purchase price (the “Purchase
Price”) equal to 96% of the volume weighted average price of the common stock on the Nasdaq
National Market, as reported by Bloomberg on the day of the purchase (the “Market Price”), provided
that no purchase shall take place on Thursday, October 13, 2005 and such date shall not be
considered a trading day for purposes of calculating the Offering Period. The number of shares
purchased shall be determined by dividing (i) $10,000,000 by the Purchase Price on the first
trading day following October 7, 2005 and (ii) $4,888,888.89 by the Purchase Price on each
trading day thereafter during the Offering Period. On any day during the Offering Period beginning
on the second trading day after October 7, 2005,
however, Capstone may require the Purchasers to purchase
shares with an aggregate purchase price of up to $7,500,000, provided that the total number of
shares purchased during the Offering Period shall not exceed 17,000,000 shares or a number of
shares having an aggregate Purchase Price of $54,000,000. If, on any day during the Offering
Period, the volume weighted average price of the common stock on the Nasdaq National Market, as
reported by Bloomberg, is at any time prior to 11:00 a.m. Pacific Time below 90% of the volume weighted
average price of the common stock on the Nasdaq National Market, as reported by Bloomberg, for the
previous day, no purchase shall take place on that day, unless
Capstone, before 11 a.m. Pacific Time, elects to require the
Purchasers to purchase the number of shares previously indicated to
be purchased on that day. For each day during the Offering Period that a
purchase does not occur, an additional day will be added to the end of the Offering Period, up to a
maximum of ten (10) additional trading days, during which purchases may occur subject to the terms
set forth above.
The
Subscription Agreements also provide that in no event will the number
of shares to be acquired by either Purchaser pursuant to the
Subscription Agreements cause the aggregate
number of shares of common stock beneficially owned (calculated in
accordance with Section 13(d) of the Securities Exchange Act of 1934,
as amended) by that Purchaser and its affiliates to exceed 9.99% of
the then outstanding common stock of the Company.
The common stock will be issued pursuant to a prospectus supplement filed with the Securities
and Exchange Commission pursuant to Rule 424(b) of the Securities Act of 1933, as amended, in
connection with a takedown from the Company’s registration statement on Form S-3 (File No.
333-128164).
Section 8 – Other Events
Item 8.01 Other Events
On September 11, 2005, Capstone gave notice to UTC Power, LLC (“UTCP”) pursuant to the OEM
Agreement (the “Agreement”) with UTCP, dated March 23, 2005, of certain breaches of the Agreement by
UTCP and called upon UTCP to cure those breaches or the Agreement will terminate. UTCP filed suit
in the United States District Court for the District of Connecticut on September 16, 2005, denying
that it is in breach of the Agreement and seeking to enjoin Capstone from terminating or attempting
to terminate the Agreement; monetary damages were not sought. The Agreement provides for
arbitration of all disputes between the parties. Capstone has not withheld sales of products or
parts to UTCP during the cure period. Capstone believes that the UTCP complaint is premature,
failing to present a case or controversy for the courts. Meanwhile, Capstone has invited UTCP to
cure its performance failures under the Agreement and to meet with Capstone to determine if the
parties can resolve the matters in dispute.
Section 9 – Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits
(c) Exhibits.
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5.2 |
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Opinion
of Waller Lansden Dortch & Davis, PLLC |
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