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): December 5, 2005
CALPINE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or Other Jurisdiction of Incorporation)
Commission File Number: 001-12079
I.R.S. Employer Identification Number: 77-0212977
50 West San Fernando Street
San Jose, California 95113
Telephone: (408) 995-5115
(Address of principal executive offices and telephone number)
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:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.02 -- DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF
DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS.
(b) On December 5, 2005, Gerald Greenwald resigned from the Company's
Board of Directors.
ITEM 8.01 -- OTHER EVENTS
On December 8, 2005, the Company issued a press release entitled "Calpine
Provides Update on Delaware Litigation," a copy of which is attached hereto as
Exhibit 99.1.
ITEM 9.01 -- FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits.
99.1 Press Release dated December 8, 2005.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CALPINE CORPORATION
By: /s/ Charles B. Clark, Jr.
-------------------------------------
Charles B. Clark, Jr.
Senior Vice President, Controller and
Chief Accounting Officer
Date: December 8, 2005
EXHIBIT INDEX
Exhibit Description
------- ------------------------------------
99.1 Press release dated December 8, 2005
================================================================================
EXHIBIT 99.1
NEWS RELEASE
Media Relations: Katherine Potter Investor Relations: Rick Barraza
408-792-1168 408-792-1125
kpotter@calpine.com rickb@calpine.com
Karen Bunton
408-792-1121
kbunton@calpine.com
Calpine Provides Update on Delaware Litigation
(SAN JOSE, Calif.) /PR Newswire -- First Call/ December 8, 2005 -- Calpine
Corporation [OTC Pink Sheets:CPNL] provided the following update in connection
with Calpine's action in the Delaware Court of Chancery against The Bank of New
York, as collateral trustee for Calpine's Senior Secured Note Holders, and
Wilmington Trust Company, as indenture trustee for Calpine's First Lien Note
Holders and Second Lien Note Holders.
On December 5, 2005, Vice Chancellor Leo E. Strine, Jr. entered a Final
Order and Judgment in the Chancery Court action affording Calpine until January
22, 2006 to restore to the Bank of New York collateral account $311,782,955.55
plus interest from the date any portion of the funds was withdrawn from the
account to the date of redeposit, at the rate accruing in the account during
such period.
On December 5 and 6, several parties appealed the Final Order and Judgment
as follows: Calpine filed a notice of appeal of the Chancery Court's decision
that storage gas is not a Designated Asset under the Indentures, the Second Lien
Trustee filed a notice of appeal of the Chancery Court's decision insofar as it
granted Calpine until January 22, 2006 to restore monies to the Bank of New York
collateral account, and the First Lien Trustee filed a notice of appeal of the
Chancery Court's decision that it lacked standing to object to Calpine's
purchases of storage gas. The Supreme Court of the State of Delaware has granted
expedited review and has scheduled oral arguments on the appeals for December
15, 2005.
Also on December 5, the Second Lien Trustee sent a letter to Calpine
purporting to constitute a notice of default based on Calpine's use of proceeds
from the sale of Designated Assets. The letter further characterized
counterclaims filed by the Second Lien Trustee in the Delaware litigation on
November 7, 2005 as an earlier notice of default, notwithstanding the Second
Lien Trustee's having implied in a brief filed with the court in late November
that it had not previously declared a "default under the Indentures." The Second
Lien Trustee stated in the letter that if Calpine did not cure its breach within
30 days after the purported earlier notice (namely, by December 7, 2005) the
Second Lien Trustee, or the holders of the requisite percentage of any series of
Second Lien Notes, could respectively elect to declare all of the Second Lien
Notes, or a series of Notes, to be due and payable immediately.
Calpine believes that the Second Lien Trustee's December 5 letter does not
constitute a valid notice of default and is contrary to the terms of the
Chancery Court's Final Order and Judgment, as well as statements made in the
Second Lien Trustee's briefs. On December 6, 2005, Calpine filed a motion in the
Chancery Court for a temporary restraining order seeking to enjoin the Second
Lien Trustee from either accelerating the Second Lien Notes on or before January
22, 2006 or otherwise attempting to circumvent the Court's Final Order and
Judgment. Acceleration of the Second Lien Notes would constitute a default under
other debt obligations of Calpine, which could allow such other debt obligations
to also be accelerated.
On December 8, 2005, Calpine agreed to withdraw its motion for a temporary
restraining order under a stipulation reached with the Second Lien Trustee and
an Unofficial Steering Committee of Second Lien Debtholders of Calpine. Calpine
has been advised that the Unofficial Steering Committee currently includes the
holders of over 50% of each of the Second Lien Notes due 2010, the Second Lien
Notes due 2011, and the Second Lien Notes due 2013, and the holders of over 30%
of the Second Lien Notes due 2007.
Under the stipulation, the Second Lien Trustee and the members of the
Unofficial Steering Committee have agreed that they will not accelerate any of
the Second Lien Notes on or before January 22, 2006 based upon the breach found
by the Chancery Court. The members of the Unofficial Steering Committee have
further agreed that they will not directly or indirectly encourage any other
Second Lien Noteholder to accelerate any of the Second Lien Notes on or before
January 22, 2006 based upon the breach found by the Chancery Court, and, in the
event of any such purported acceleration, will use commercially reasonable
efforts, consistent with the Second Lien Indentures, to cause such purported
acceleration to be rescinded. The stipulation is subject to modification to
conform to any reversal or modification by the Delaware Supreme Court of the
Chancery Court's Final Order and Judgment.
A major power company, Calpine Corporation supplies customers and
communities with electricity from clean, efficient, natural gas-fired and
geothermal power plants. Calpine owns, leases and operates integrated systems of
plants in 21 U.S. states and in three Canadian provinces and is building a plant
in Mexico. Calpine was founded in 1984. For more information, visit
www.calpine.com.
This news release discusses certain matters that may be considered
"forward-looking" statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended, including statements regarding the intent, belief or current
expectations of Calpine Corporation ("the Company") and its management.
Prospective investors are cautioned that any such forward-looking statements are
not guarantees of future performance and involve a number of risks and
uncertainties that could materially affect actual results including the risks
identified from time-to-time in the Company's reports and registration
statements filed with the SEC, including the risk factors identified in its
Annual Report on Form 10-K for the year ended December 31, 2004, and in its
Quarterly Report on Form 10-Q for the three months ended September 30, 2005,
which can also be found on the Company's website at www.calpine.com.. All
information set forth in this news release is as of today's date, and the
Company undertakes no duty to update this information.