EXHIBIT 1.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as of
September 28, 2004, is between Calpine Corporation, a Delaware corporation (the
"Company"), and EquiServe Trust Company, N.A., as rights agent (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent are parties to an Amended and
Restated Rights Agreement (the "Rights Agreement"), dated as of September 19,
2001, between the Company and the Rights Agent; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent desire to amend the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 1.
Section 1 of the Rights Agreement is amended by adding thereto
subsection (mm) which shall read as follows:
"(mm) "Share Lending Agreement" shall mean the Share Lending
Agreement, dated as of September 28, 2004, between the Company and
Deutsche Bank AG London (the "Borrower"), through Deutsche Bank
Securities Inc., as agent for Borrower ("Agent")."
Section 1 of the Rights Agreement is amended by adding the following
at the end of subsection (d):
"Notwithstanding anything herein to the contrary, neither the
Borrower nor Agent shall be deemed to be the "Beneficial Owner" of,
or to "beneficially own", any Loaned Shares (as defined in the Share
Lending Agreement) for purposes of this Agreement."
2. Addition of New Section 35.
The Rights Agreement is amended by adding Section 35 thereof which
shall read as follows:
"Section 35. Exception For The Share Lending Agreement.
Notwithstanding any provision of this Agreement to the contrary,
neither a Distribution Date, a Triggering Event nor a Shares
Acquisition Date shall be deemed to have occurred, none of the
Borrower, Agent or any of the affiliates of the Borrower or Agent
shall be deemed to have become an Acquiring Person, and no
holder of any Rights shall be entitled to exercise such Rights
under, or be entitled to any rights pursuant to, any section of this
Agreement, in any such case by reason of the approval, execution or
delivery of the Share Lending Agreement or any amendments thereof
approved in advance by the Board of Directors of the Company or the
consummation of any of the transactions contemplated thereby."
4. Effectiveness.
This Amendment shall be deemed effective as of the date set forth above as
if executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. Miscellaneous.
This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
CALPINE CORPORATION
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Senior Vice President
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxxx XxXxxxxxx
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Name: Xxxxxx XxXxxxxxx
Title: Senior Acct. Mgr.
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