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EXHIBIT 4.8.5
CALPINE CAPITAL TRUST II
UP TO 7,200,000 HIGH TIDES
5 1/2% Convertible Preferred Securities
Remarketable Term Income Deferrable Equity Securities (HIGH TIDES)
(Liquidation Preference $50 per HIGH TIDES)
Guaranteed to the extent set forth in the
Preferred Securities Guarantee Agreement
by, and convertible into
Common Stock of,
Calpine Corporation
REGISTRATION RIGHTS AGREEMENT
January 31, 2000
Credit Suisse First Boston Corporation
ING Barings LLC
Acting on behalf of itself and
the several Purchasers
pursuant to the Purchase Agreement
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
Calpine Capital Trust II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust") by, inter alia, Calpine Corporation, a
Delaware corporation (the "Company"), proposes to issue and sell (the "Initial
Placement") to Credit Suisse First Boston Corporation and the other initial
purchasers (collectively, the "Purchasers") named in Schedule A to the Purchase
Agreement dated January 31, 2000 (the "Purchase Agreement"), among the
Purchasers, the Company and the
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Trust, upon the terms set forth in the Purchase Agreement, up to 6,000,000 (or
up to 7,200,000 to the extent the option granted by the Trust to the Purchasers
pursuant to the Purchase Agreement is exercised in full) of its Remarketable
Term Income Deferrable Equity Securities (HIGH TIDES)_, liquidation preference
$50 per security (the "Preferred Securities"). The proceeds of the sale by the
Trust of the Preferred Securities and the Common Securities of the Trust,
liquidation preference $50 per Common Security (the "Common Securities"), are to
be invested in the Convertible Subordinated Debentures due 2030 of the Company
issued pursuant to the Indenture dated January 31, 2000 between the Company and
The Bank of New York, as Trustee (the "Debentures") having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and the Common Securities. As an inducement to you to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Trust and the Company agree with you, (i) for the benefit of the
Purchasers and (ii) for the benefit of the registered holders, including the
Purchasers (each of the foregoing a "Holder" and together the "Holders"), from
time to time of the Preferred Securities, the Debentures and the Common Stock of
Calpine Corporation, par value $.001 per share (such Common Stock being referred
to as the "Common Stock"), of the Company issuable upon conversion of the
Debentures, for which the Preferred Securities are exchangeable, as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or, if not defined therein, in the Offering Circular dated January 25,
2000, in respect of the Preferred Securities or, if not defined therein, in the
Amended and Restated Declaration of Trust dated as of January 31, 2000 (the
"Declaration") relating to the Trust. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Rate" means the rate at which the Preferred Securities accrue
distributions and the Debentures accrue interest. The Applicable Rate shall be
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5.50% per annum from the date of original issuance of the Preferred Securities
to (but excluding) the Reset Date. From the Reset Date, the Applicable Rate will
be the Term Rate established by the Remarketing Agent to be effective on the
Reset Date. The Applicable Rate will be increased upon the occurrence of a
Registration Default, as set forth in Section 7(a) hereof.
"Business Day" means any day other than (i) a Saturday or Sunday,
(ii) a day on which banking institutions in The City of New York are authorized
or required by law to close or (iii) a day on which the corporate trust office
of the Debenture Trustee or the Property Trustee is closed for business.
"Closing Date" has the meaning given such term in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the first paragraph
to this Agreement.
"Company" has the meaning set forth in the first paragraph to
this Agreement.
"Debentures" has the meaning set forth in the first paragraph to
this Agreement.
"Debenture Trustee", "Guarantee Trustee" and "Property Trustee"
each means The Bank of New York.
"Effectiveness Deadline" means the 150th day following the
Closing Date.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Filing Deadline" means the 60th day following the Closing Date.
"Guarantee" means the guarantee by the Company of the Preferred
Securities pursuant to a Guarantee Agreement dated as of January 31, 2000
between the Company and the Guarantee Trustee.
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"Holder" and "Holders" each has the meaning set forth in the
first paragraph to this Agreement.
"Initial Placement" has the meaning set forth in the first
paragraph to this Agreement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"Preferred Securities" has the meaning set forth in the first
paragraph to this Agreement.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), with
respect to the terms of the offering of any portion of the Securities covered by
such Shelf Registration Statement, as amended or supplemented by all amendments
(including post-effective amendments) and supplements to the Prospectus.
"Purchase Agreement" has the meaning set forth in the first
paragraph to this Agreement.
"Purchasers" has the meaning set forth in the first paragraph to
this Agreement.
"Registrable Securities" has the meaning specified in the
Indenture.
"Registration Default" has the meaning given to such term in
Section 7(a) hereof.
"Remarketing Agent" has the meaning specified in the Indenture.
"Reset Date" means February 1, 2005 (or, if such day is not a
Business Day, the next succeeding Business Day), or such earlier day as may be
determined by the Remarketing Agent, in its sole discretion, for settlement of a
successful remarketing.
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"Securities" means the Preferred Securities, the Debentures, the
Common Stock and the Guarantee, individually and collectively.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement filed under the Securities Act on an appropriate form providing for
the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission,
filed by the Company and the Trust pursuant to the provisions of Section 2 of
this Agreement, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such registration
statement.
"Suspension Period" has the meaning set forth in Section 7(b)
hereof.
"Term Rate" means the rate established by the Remarketing Agent
(as defined in the Indenture) in connection with the Remarketing (as defined in
the Indenture) at which interest will accrue on the Debentures and distributions
will accrue on the Preferred Securities on and after the Reset Date.
"Trust" has the meaning set forth in the first paragraph to this
Agreement.
"Trustee" means the Guarantee Trustee, the Debenture Trustee or
the Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration. (a) The Trust and the Company shall as promptly as
practicable prepare and, not later than the Filing Deadline, shall file with the
Commission and thereafter shall each use their best efforts to cause to be
declared effective under the Act as soon as practicable, but in no event later
than the Effectiveness Deadline, a Shelf Registration Statement relating to the
offer and sale of the Securities by the Holders from time to time in accordance
with the methods of
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distribution elected by such Holders and set forth in such Shelf Registration
Statement; provided, however, that no Holder (other than a Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(1) The Trust and the Company shall each use its best efforts
(1) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus included therein to
be lawfully delivered by the Holders of the relevant Securities,
for a period of two years (or for such other period as shall be
required under Rule 144(k) of the Securities Act or any successor
rule thereto) from the date of its effectiveness or such shorter
period that will terminate upon the earlier of the following (in
any such case, such period being called the "Shelf Registration
Period"):
(A) when all the Preferred Securities covered by the Shelf
Registration Statement have been sold pursuant to the
Shelf Registration Statement,
(B) when all Debentures issued to Holders in respect of
Preferred Securities that had not been sold pursuant to
the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, or
(C) when all shares of Common Stock issued upon conversion
of any such Preferred Securities or any such Debentures
that had not been sold pursuant to the Shelf Registration
Statement have been sold pursuant to the Shelf
Registration Statement and
(2) during the Shelf Registration Period, promptly upon
the request of any Holder to take any action reasonably necessary
to register the sale of any Securities of such Holder and to
identify such Holder as a selling securityholder.
The Trust and the Company shall be deemed not to have used their best
efforts to keep the Shelf Registration Statement effective during the Shelf
Registration Period if they voluntarily take any action that would result in
Holders of
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Securities covered thereby not being able to offer and sell such Securities
during such period, unless such action is required by applicable law.
(2) Notwithstanding any provisions of this Agreement to the
contrary, the Trust and the Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement, (i)
to comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(1) The Trust and the Company shall furnish to (i) the
Purchasers, and (ii) any other Holders who so request, and their respective
counsel and accountants, prior to the filing thereof with the Commission, a copy
of any Shelf Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and shall
each use its best efforts to reflect in each such document, when so filed with
the Commission, such comments as the Purchasers and such other Holders
reasonably may propose.
(2) The Trust and the Company shall give written notice to the
Purchasers and the Holders:
(1) when the Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective; and
(2) of any written request by the Commission for
amendments or supplements to the Shelf Registration Statement or
the Prospectus included therein or for additional information.
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
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(4) of the receipt by the Trust or the Company of any
notification with respect to the suspension of the qualification
of the Securities included therein for sale in any state or the
initiation or threatening of any proceeding for such purpose; and
(5) of the happening, during the Shelf Registration
Period, of any event that requires the making of any changes in
the Shelf Registration Statement or the Prospectus so that, as of
such date, the Registration Statement and the Prospectus do not
contain an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes
have been made).
(3) Each of the Trust and the Company shall use its best efforts
to prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the earliest
possible time.
(4) The Trust and the Company shall furnish to each Purchaser and
each requesting Holder of Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto (including, to
any such Purchaser or Holder who so requests, any reports or other documents
incorporated therein by reference), including financial statements and schedules
included therein, and, if such Holder so requests, all exhibits (including those
incorporated by reference).
(5) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and each of the Trust and the Company consents to the
use, in accordance with the terms of this Agreement, of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities covered by the
Prospectus or any amendment or supplement thereto during the Shelf Registration
Period.
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(6) Prior to any offering of Securities pursuant to any Shelf
Registration Statement, the Trust and the Company shall register or qualify, or
shall cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification of, such
Securities for offer and sale under the securities or blue sky laws of such
states as any such Holders reasonably request in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
states of the Securities covered by such Shelf Registration Statement; provided,
however, that neither the Trust nor the Company will be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(7) Unless the applicable Securities shall be in book-entry only
form, the Trust and the Company shall cooperate with the Holders of Securities
to facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such permitted denominations and registered in such
names as Holders may request in connection with the sale of Securities pursuant
to such Shelf Registration Statement.
(8) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 3(b) above (other than a request by the Commission
solely for additional information as referred to in Section 3(b)(ii) and unless
directed otherwise by the Commission), the Trust and the Company shall promptly
prepare and file a post-effective amendment to any Shelf Registration Statement
or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Holders or purchasers of
the Securities included therein, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company or the
Trust notifies the Purchasers or the Holders of the Securities in accordance
with paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made, then
the Purchasers and the Holders of the Securities shall suspend use of the
Prospectus for such time.
(9) Not later than the effective date of any Shelf Registration
Statement hereunder, the Trust and the Company shall provide a CUSIP number for
the Preferred Securities (and, in the event of and at the time of any
distribution thereof to Holders, the Debentures,) registered under such Shelf
Registration
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Statement, and provide the applicable Trustee with certificates for such
Securities, in a form eligible for deposit with The Depository Trust Company.
(10) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and shall
make generally available to their security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) as soon as practicable
after the effective date of the applicable Shelf Registration Statement an
earning statement satisfying the provisions of Section 11(a) of the Securities
Act, but in no event later than 45 days after the end of a 12-month period (or
90 days, if such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(11) The Trust and the Company shall cause the Indenture, the
Declaration and the Guarantee to be qualified under the Trust Indenture Act in a
timely manner and containing such changes, if any, as shall be necessary for
such qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, Declaration or Guarantee, the
Company or Trust (as applicable) shall appoint a new trustee thereunder pursuant
to the applicable provisions of such agreement.
(12) The Trust and the Company may require each Holder of
Securities to be sold pursuant to any Shelf Registration Statement as a
condition to the registration of such Holder's Securities thereunder to furnish
to the Trust and the Company such information regarding the Holder and the
distribution of such Securities as the Trust and the Company may from time to
time reasonably require for inclusion in such Shelf Registration Statement. Each
Holder who offers and sells Securities by means of the Shelf Registration
Statement shall do so in accordance with the terms thereof and the requirements
of the Securities Act.
(13) The Trust and the Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters, if any,
reasonably agree should be included therein and to which the Trust and the
Company do not reasonably object and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
they are notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
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(14) The Trust and the Company shall enter into such customary
agreements (including underwriting agreements in customary form) to take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof (or such other customary provisions and procedures
acceptable to the Managing Underwriters, if any) with respect to all parties to
be indemnified pursuant to Section 5 hereof.
(15) The Trust and the Company shall (i) make reasonably
available for inspection by the Holders of Securities to be registered
thereunder, any underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Trust and the
Company and its subsidiaries as shall be requested in connection with the
discharge of their due diligence obligations; (ii) cause the Company's officers,
directors, employees and independent public accountants and any relevant
Trustees to supply at the Company's expense all relevant information reasonably
requested by such Holders or any such underwriter, attorney, accountant or agent
in connection with any such Shelf Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information that
is designated in writing by the Trust and the Company in good faith as
confidential at the time of delivery of such information shall be kept
confidential by such Holders or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;
and provided further that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders and the other parties entitled
thereto by one counsel who shall be Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
unless another nationally-recognized law firm with specialization in securities
laws shall be chosen by the Company; (iii) make such representations and
warranties to the Holders of Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made by
the issuers to underwriters in primary underwritten offerings and covering
matters as are customarily covered in representations and warranties requested
in primary underwritten offerings including, but not limited to, those set forth
in the Purchase Agreement; (iv) obtain opinions of counsel to the Trust and the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters, if
any) addressed to each
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selling Holder and the underwriters, if any, thereof and dated, in the case of
the initial opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall include,
without limitation, the due incorporation and good standing of the Trust, the
Company and its Subsidiaries; the due authorization, execution and delivery of
the relevant agreement of the type referred to in Section 3(n) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material legal or
governmental proceedings involving the Trust, the Company and its Subsidiaries;
the absence of governmental approvals required to be obtained in connection with
the Shelf Registration Statement, the offering and sale of the applicable
Securities, or any agreement of the type referred to in Section 3(n) hereof; the
compliance as to form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture, the Declaration and the
Guarantee with the requirements of the Securities Act and the Trust Indenture
Act; and, as of the date of the opinion and as of the effective date of the
Shelf Registration Statement or most recent post-effective amendment thereto, as
the case may be, that such counsel do not believe that such Shelf Registration
Statement and the prospectus included therein, as then amended or supplemented,
and any documents incorporated by reference therein contain an untrue statement
of a material fact or omit to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of any such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the Exchange
Act); (v) cause its officers to execute and deliver all customary documents and
certificates and updates thereof requested by such Holders and any underwriters
of the applicable Securities and (vi) cause its independent public accountants
and the independent public accountants with respect to any other entity for
which financial information is provided in the Shelf Registration Statement to
provide to the Holders of the applicable Securities and any underwriter therefor
a comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72. The foregoing actions set
forth in clauses (iii), (iv), (v) and (vi) of this Section 3(o) shall be
performed at (A) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any underwritten
offering of the Securities to the extent required under any related underwriting
or similar agreement.
(16) Each of the Trust and the Company will use its best efforts to cause
the Common Stock relating to such Shelf Registration Statement to be listed
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on each securities exchange, over-the-counter market, or respective counterpart
if any, on which any shares of Common Stock are then listed.
(17) The Trust and the Company shall, in the event that any
broker-dealer registered under the Exchange Act shall underwrite any Securities
or participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the Rules of Fair Practice
and the By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of such
Rules and By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules of Fair Practice of the NASD.
(18) The Trust and the Company shall use their best efforts to
take all other steps necessary to effect the registration, offering and sale of
the Securities covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the
Company's and the Trust's performance of and compliance with this Agreement will
be borne by the Company, regardless of whether a Shelf Registration Statement is
ever filed or becomes effective, including without limitation;
(1) all registration and filing fees and expenses;
(2) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(3) all expenses of printing (including printing
certificates for the Securities without the Restrictive Legend to
be issued and printing of Prospectuses), messenger and delivery
services and telephone;
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(4) all fees and disbursements of counsel for the Company
and the Trust;
(5) all application and filing fees in connection with
listing the Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof;
and
(6) all fees and disbursements of independent certified
public accountants of the Company and the Trust (including the
expenses of any special audit and comfort letters required by or
incident to such performance).
The Company and the Trust will bear their internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any person, including special experts,
retained by the Company or the Trust.
(2) In connection with any Shelf Registration Statement required
by this Agreement, the Company and the Trust will reimburse the Purchasers and
the Holders who are selling or reselling Securities pursuant to the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel, who shall be Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP unless
another nationally-recognized law firm with specialization in securities laws
shall be chosen by the Company.
5. Indemnification and Contribution. (a) In connection with any Shelf
Registration Statement, the Trust and the Company, jointly and severally, agree
to indemnify and hold harmless the Purchasers, each Holder of Securities covered
thereby (including the Purchasers), their respective partners, directors, and
officers and each person, if any, who controls the Purchasers or any such Holder
within the meaning of Section 15 of the Securities Act (each Purchaser, Holder
and such controlling persons are referred to collectively as the "Indemnified
Parties") against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of
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or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment or supplement thereof, or in any preliminary Prospectus or Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in the light of the circumstances under which they were made, and shall
reimburse each such Indemnified Party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company and the Trust will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Purchasers or any
such Holder specifically for inclusion therein and (ii) the foregoing indemnity,
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary Prospectus relating to a Shelf
Registration Statement, shall not inure to the benefit of any Holder (or any
person controlling such Holder) from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the extent
that a Prospectus relating to such Securities was required to be delivered by
such Holder under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
Prospectus if the Company had previously furnished copies thereof to such Holder
at or prior to the written confirmation of the sale of such Securities to such
person and the untrue statement or alleged untrue statement or omission or
alleged omission contained in the preliminary prospectus was corrected in the
final prospectus (or the final prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company or the Trust
may otherwise have.
The Trust and the Company, jointly and severally, shall also
indemnify underwriters, their officers, directors and each person who controls
such underwriters within the meaning of the Securities Act or the Exchange Act
to the same extent as provided above with respect to the indemnification of the
Holders of the Securities and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(n)
and Section 6 hereof.
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(1) Each Holder of Securities covered by a Shelf Registration
Statement (including the Purchasers) severally, and not jointly, agrees to
indemnify and hold harmless (i) the Trust and the Company, (ii) each of the
directors of the Company, (iii) each of its officers who signs such Shelf
Registration Statement and (iv) each person who controls the Trust or the
Company within the meaning of either the Securities Act or the Exchange Act to
the same extent as the foregoing indemnity from the Trust and the Company, but
only in respect of written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(2) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve the indemnifying party from
any liability it may have to any indemnified party otherwise than under
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action and does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(3) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b)
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above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the Initial Placement and the Shelf
Registration Statement, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Trust or the Company on the
one hand or such Holder or such other indemnified party, as the case may be, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 5(d), the Holders of the Securities shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Trust or the Company
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Trust and the Company.
(4) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Registration Statement and shall remain in full
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force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Underwritten Offering. If, pursuant to written notice delivered to
the Company by the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, a majority in aggregate principal amount of the Debentures
or a majority of holders of the Common Stock, as the case may be, registered
pursuant to a Shelf Registration, such Holders so elect, the offer and sale of
any such Preferred Securities, Debentures and/or Common Stock may be effected in
the form of an underwritten offering. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by, the Company; provided, however, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Holders of a majority of the Securities to be included in
such offering. No Holder may participate in any underwritten offering
contemplated hereby unless such Holder (a) agrees to sell such Holder's
Securities in accordance with any approved underwriting arrangements, and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements.
7. Changes to the Applicable Rate Under Certain Circumstances. (a) The
Applicable Rate at which interest is paid on the Debentures (including in
respect of amounts accruing during any Deferral Period), and distributions are
paid on the Preferred Securities shall be adjusted as follows, if any of the
following events occur (each such event in clauses (i) through (iii) below, a
"Registration Default"):
(1) if a Shelf Registration Statement is not filed with
the Commission on or prior to the Filing Deadline;
(2) if the Shelf Registration Statement is not declared
effective by the Commission on or prior to the Effectiveness
Deadline;
(3) if (A) after the Shelf Registration Statement is
declared effective, such Shelf Registration Statement ceases
to be effective prior to the end of the Shelf Registration
Period or (B) such Shelf Registration Statement or the related
Prospectus ceases to be usable in connection with resales of
Securities covered by such Shelf Registration Statement prior
to the end of the Shelf Registration Period be-
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cause either (1) any event occurs as a result of which the
related Prospectus forming part of such Shelf Registration
Statement would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances in which
they were made not misleading or (2) it shall be necessary to
amend such Shelf Registration Statement, or supplement the
related Prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default
whatever the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company or pursuant to operation of
law or as a result of any action or inaction by the Commission.
Additional Interest shall accrue on the Securities over and above
the interest set forth in the title of the Securities from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all such Registration Defaults have been cured, at a rate of 0.50%
per annum (the "Additional Interest Rate"). The increase in the Applicable Rate
attributable to any Registration Default shall cease to be effective from the
date such Registration Default is cured, and the Applicable Rate shall be
reduced at such time to the Applicable Rate in effect immediately prior to such
Registration Default; provided, however, in the event a Registration Default
occurs prior to the Reset Date and is cured on or after the Reset Date, the
Applicable Rate shall be the Term Rate from the date such Registration Default
is cured.
(2) A Registration Default referred to in Section 7(a)(iii) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Trust or the Company that would need
to be described in such Registration Statement or the related Prospectus and
(ii) in the case of clause (y), the Trust and the Company are proceeding
promptly and in good faith to amend or supplement such Registration Statement
and related Prospectus to describe such events; provided, however, that in any
case if such Registration Default occurs for a continuous period in excess of
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30 days, Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurred until such
Registration Default is cured.
(3) Any amounts of Additional Interest due pursuant to Section
7(a) will be payable in cash on the regular interest payment dates (or such
other time as provided in the Indenture or Declaration, as applicable, for the
payment of interest or distributions) with respect to the Securities. The amount
of Additional Interest will be determined by multiplying the applicable
Additional Interest Rate by the principal amount of the Securities and further
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest Rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the denominator
of which is 360.
8. Rules 144 and 144A. The Company and the Trust shall use their best
efforts to file the reports required to be filed by them under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Company or
the Trust is not required to file such reports, it will, upon the request of any
Holder of Securities, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A of
the Securities Act, or any successor regulation or statute thereto. The Company
and the Trust covenant that they will take such further action as any Holder of
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4)). The Company and the Trust
will provide a copy of this Agreement to prospective purchasers of Securities
identified to the Company or the Trust by the Purchasers upon request. Upon the
request of any Holder of Securities, the Company and the Trust shall deliver to
such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company and the Trust to register any of their securities
pursuant to the Exchange Act.
9. Miscellaneous.
(1) Remedies. The Company and the Trust each acknowledge and agree
that any failure by either of them to comply with their respective obligations
under Section 2 hereof may result in material irreparable injury to the
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such
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failure, the Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's and the Trust's obligations under Section
2 hereof. The Company and the Trust each further agree to waive the defense in
any action for specific performance of Section 2 hereof that a remedy at law
would be adequate.
(2) No Inconsistent Agreements. The Trust and the Company have
not, as of the date hereof, entered into, nor shall they on or after the date
hereof, enter into, any agreement with respect to their securities or otherwise
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(3) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of a majority in principal amount, liquidation
preference or voting rights (as applicable ) of the Securities affected by such
amendment, qualification, modification, supplement, waiver or consent.
(4) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be mailed, delivered,
telegraphed and confirmed or faxed and confirmed:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with respect to the Debentures; or the Declaration, with respect to the
Preferred Securities; with a copy in a like manner to Credit Suisse
First Boston Corporation;
(2) if to any or all of the Purchasers, initially at the address
set forth in the Purchase Agreement; and
(3) if to the Trust or the Company, initially at its address set
forth in the Purchase Agreement.
The Purchaser or the Trust and the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
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(5) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and/or the
Trust, on the one hand, and the Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(6) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including, without the need for an express assignment or any
consent by the Trust or the Company thereto, subsequent Holders of Securities.
The Trust and the Company hereby agree to extend the benefits of this Agreement
to any Holder of Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(7) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(8) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(9) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(10) Securities Held by the Company or the Trust. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company, the Trust or
their affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be considered to be outstanding and shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(11) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining
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provisions hereof shall not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(Signature page follows.)
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Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Trust and you.
Very truly yours,
CALPINE CAPITAL TRUST II
By: ___________________________
Name:
Title: Administrative Trustee
CALPINE CORPORATION
By: ___________________________
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
ING BARINGS LLC
Acting on behalf of itself and
the several Purchasers
pursuant to the Purchase Agreement
By: ___________________________
Name:
Title:
