Exhibit 1.1
CALPINE CORPORATION
Debt Securities
Preferred Stock
Common Stock
UNDERWRITING AGREEMENT
, 200-
Dear Sirs:
1. Introductory. Calpine Corporation, a Delaware
corporation (the "COMPANY"), proposes, subject to the terms and conditions
stated herein, to issue and sell, among other securities, from time to time
certain of its debt securities (the "DEBT SECURITIES"), preferred stock, par
value $0.001 per share (the "PREFERRED STOCK"), and common stock, par value
$0.001 per share (the "COMMON STOCK"), registered under the registration
statement referred to in Section 2(a) (collectively, the "REGISTERED
SECURITIES"), the proceeds of which will not exceed in the aggregate $ . The
Debt Securities will be issued pursuant to a certificate of the board of
directors of the Company and under an indenture, dated as of August 10, 2000, as
amended to the date hereof and by such director's certificate (the "INDENTURE"),
between the Company and Wilmington Trust Company, as Trustee, in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms. The Preferred Stock may be issued in
one or more series, which series may vary as to dividend rates, redemption
provisions, selling prices and other terms. Particular offerings of the
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of the offering determined at the
time of the sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 is hereinafter
referred to as the "REPRESENTATIVE"; provided, however, that if the Terms
Agreement does not specify any representatives of the Underwriters, the term
"Representative," as used in this Agreement (other than in Sections 2(b), 5(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters. The
Offered Securities shall consist of firm commitment securities ("FIRM
SECURITIES") and may, except in the case of Debt Securities, consist of
additional securities that the Underwriters may purchase pursuant to an
over-allotment option ("OPTIONAL
SECURITIES") described in Section 3, as set forth in the Terms Agreement. The
Company agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The
Company, as of the date of each Terms Agreement referred to in Section 3,
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333- ),
including a form of prospectus, relating to the Registered Securities has been
filed with the Securities and Exchange Commission (the "COMMISSION"), such
registration statement, as it may have been amended prior to the date of any
Terms Agreement, has become and has been declared effective under the Securities
Act of 1933 (the "SECURITIES ACT") on , 200-. Such registration
statement, as amended at the time of any Terms Agreement referred to in Section
3, is hereinafter referred to as the "REGISTRATION STATEMENT," and the
prospectus included in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the offering of the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("RULE 424(b)") under the Securities Act, including all
material incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS." No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act.
(b) On the effective date of the registration
statement relating to the Offered Securities, such Registration Statement
conformed in all respects to the requirements of the Securities Act, the Trust
Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and regulations of
the Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
on the date of each Terms Agreement referred to in Section 3, the Registration
Statement and Prospectus will conform in all respects to the requirements of the
Securities Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any 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 not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through the
Representative, if any, specifically for use therein, it being understood and
agreed that the only such information is that described as such in the Terms
Agreement.
(c) The Company has been duly incorporated and
is an existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification.
(d) Each Subsidiary of the Company (x) other
than those Subsidiaries specified in clause (y) of this subparagraph has been
duly incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in the
Prospectus; or (y) that is not a corporation is a limited partnership, a limited
liability company or business trust, has been duly formed and is validly
existing as a limited partnership, a limited liability company or a business
trust, as the case may be, in good standing under the laws of the jurisdiction
of its formation, and has full power and authority to own its properties and
conduct its business as described in the Prospectus; each Subsidiary of the
Company is duly qualified to do business as a foreign corporation, limited
partnership, limited liability company or business trust, as the case may be, in
good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the condition (financial or other), business, properties or
results of operations of the Company and its Subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT"); all of the issued and outstanding capital stock of
each Subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; except as set forth on Schedule B to the
applicable Terms Agreement, the capital stock of each Subsidiary owned by the
Company, directly or through Subsidiaries, is owned free from liens,
encumbrances and defects; and the Company is not a general partner in any
partnership. For purposes of this agreement, "SUBSIDIARY" means, as applied to
any person, any corporation, limited or general partnership, trust, association
or other business entity of which an aggregate of at least 50% of the
outstanding Voting Shares or an equivalent controlling interest herein, of such
person is, at any time, directly or indirectly, owned by such person and/or one
or more subsidiaries of such person. For purposes of the definition of
"Subsidiary," "VOTING SHARES" means, with respect to any corporation, the
capital stock having the general voting power under ordinary circumstances to
elect at least a majority of the board of directors (irrespective of whether or
not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
(e) If the Offered Securities are Debt
Securities: the Indenture has been duly authorized and has been duly qualified
under the Trust Indenture Act; the Offered Securities have been duly authorized;
the Indenture has been duly executed and delivered and conforms to the
description thereof contained in the Prospectus and when the Offered Securities
are delivered and paid for pursuant to the Terms Agreement on the Closing Date
(as defined below) or pursuant to Delayed Delivery Contracts (as hereinafter
defined), such Offered Securities will have been duly executed, authenticated,
issued and delivered and will conform to the description thereof contained in
the Prospectus and the Indenture and such Offered Securities will constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(f) If the Offered Securities are Preferred
Stock: the Offered Securities have been duly authorized and, when the Offered
Securities have been delivered and paid for in accordance with the Terms
Agreement on the Closing Date (as defined below), such Offered Securities will
be validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock:
the Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of the capital stock
of the Company are, and, when the Offered Securities have been delivered and
paid for in accordance with the Terms Agreement on the Closing Date, such
Offered Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities.
(h) If the Offered Securities are convertible
into Common Stock: when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date, such Offered Securities
will be convertible into Common Stock in accordance with their terms (if the
Offered Securities are shares of Preferred Stock) or the Indenture (if the
Offered Securities are Debt Securities); the shares of Common Stock initially
issuable upon conversion of such Offered Securities have been duly
authorized and reserved for issuance upon such conversion and, when issued upon
such conversion, will be validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the Common
Stock.
(i) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment.
(j) Except as (1) set forth on Schedule B to the
applicable Terms Agreement, and (2) provided for in the Terms Agreement, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
(k) If the Offered Securities constitute Common
Stock or are convertible into Common Stock, the outstanding shares of Common
Stock are listed on the New York Stock Exchange (the "STOCK EXCHANGE") and the
Offered Securities (if they are Common Stock) or the Common Stock into which the
Offered Securities are convertible (if they are convertible) have been approved
for listing on the Stock Exchange, subject to notice of issuance. If the Offered
Securities are Debt Securities or Preferred Stock, they have been approved for
listing on the stock exchange indicated in the Terms Agreement, subject to
notice of issuance.
(l) No consent, approval, authorization, or
order of, or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as have
been obtained and made under the Securities Act and, if the Offered Securities
are Debt Securities, the Trust Indenture Act and such as may be required under
state securities laws.
(m) The execution, delivery and performance of
the Indenture (if the Offered Securities are Debt Securities), the Terms
Agreement (including the provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities and, if the
Offered Securities are Debt Securities or Preferred Stock, compliance with the
terms and provisions thereof and the consummation by the Company of the
transactions contemplated herein and therein will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or any
Subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such Subsidiary is a party or by which
the Company or any such Subsidiary is bound or to which any of the properties of
the Company or any such Subsidiary is subject, or the charter, by-laws,
memorandum of association, articles of association or other organizational
document of the Company or any such Subsidiary, and the Company has full power
and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement).
(n) The Terms Agreement (including the
provisions of this Agreement) and, if the Offered Securities are Debt Securities
or Preferred Stock, any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company.
(o) Except as disclosed in the Prospectus, the
Company and its Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by them;
and except as disclosed in the Prospectus, the Company and its Subsidiaries hold
any leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(p) The Company and its Subsidiaries possess
adequate certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them and
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its Subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(q) No labor dispute with the employees of the
Company or any Subsidiary exists or, to the knowledge of the Company, is
imminent that might have a Material Adverse Effect.
(r) The Company and its Subsidiaries own,
possess or can acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect.
(s) Except as disclosed in the Prospectus,
neither the Company nor any of its Subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any Environmental Laws, is
liable for any off-site disposal or contamination pursuant to any Environmental
Laws, or is subject to any claim relating to any Environmental Laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(t) Except as disclosed in the Prospectus, there
are no pending actions, suits or proceedings against or affecting the Company,
any of its Subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
respective obligations under, or as contemplated by, the Terms Agreement
(including the provisions of this Agreement), or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the knowledge of the Company, contemplated.
(u) The financial statements included in the
Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis; and the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly attributable to
the transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma columns therein
reflect the proper application of those adjustments to the corresponding
historical financial statement amounts.
(v) The statistical and market-related data
(other than market-related data and statistical data provided by the Company)
included in the Registration Statement and Prospectus are based on or derived
from sources which the Company believes to be reliable and accurate, it being
understood, however, that the Company has conducted no independent investigation
of the accuracy thereof.
(w) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and its
Subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(x) The Company is not and, after giving effect
to the offering, the sale of the Offered Securities, and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(y) Neither the Company nor any of its
Subsidiaries is (i) a "holding company" or a "subsidiary" of a holding company
or a "public utility company" under Section 2(a) of the Public Utility Holding
Company Act of 1935 ("PUHCA") (except that certain Subsidiaries that are EWGs
(as defined herein) or QFs (as defined herein) and Cogeneration Corporation of
America are subsidiaries of a holding company), (ii) subject to regulation under
the Federal Power Act, as amended ("FPA"), other than as a power marketer or an
"exempt wholesale generator" ("EWG") that is a "public utility" under the FPA or
as a "qualifying facility" ("QF") under the Public Utility Regulatory Policies
Act of 1978, as amended (16 U.S.C. Section 796 et seq.) ("PURPA"), as
contemplated by 18 C.F.R. Section 292.601(c) or (iii) with respect to each of
the power generation projects in which the Company or its Subsidiaries has an
interest that is a QF, subject to any state law or regulation with respect to
rates or the financial or organizational regulation of electric utilities, other
than as contemplated by 18 C.F.R. Section 292.602(c).
(z) Each of the power generation projects in
which the Company or its Subsidiaries has an interest which is subject to the
requirements under PURPA and the regulations of the Federal Energy Regulatory
Commission ("FERC") promulgated thereunder, as amended from time to time,
necessary to be a "qualifying cogeneration facility" and/or a "qualifying small
power production facility" meets such requirements.
(aa) The Company is subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
3. Purchase, Sale and Delivery of Offered Securities.
The obligation of the Underwriters to purchase the Offered Securities will be
evidenced by an agreement or exchange of other written communications ("TERMS
AGREEMENT") at the time the Company determines to sell the Offered Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the name of
any Representative, the principal amount or number of shares to be purchased by
each Underwriter, including, but not limited to, the purchase price to be paid
by the Underwriters and (if the Offered Securities are Debt Securities or
Preferred Stock) the terms of the Offered Securities not already specified,
including, but not limited to, interest rate (if Debt Securities), dividend rate
(if Preferred Stock), maturity (if Debt Securities), any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representative and the Company agree
as the time for payment and delivery (being herein and in the Terms Agreement
referred to as the "CLOSING DATE"), the place of delivery and payment and any
details of the terms of the offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the
otherwise applicable settlement date) shall be the date for payment of funds and
delivery of securities for all the Offered Securities sold pursuant to the
offering, other than Contract Securities (as defined below) for which payment of
funds and delivery of securities shall be as hereinafter provided. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("DELAYED
DELIVERY CONTRACTS") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date, the Company will pay, as compensation, to the Representative for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent the Representative determines
that such reduction shall be otherwise than pro rata and so advises the Company.
The Company will advise the Representative not later than the business day prior
to the Closing Date of the principal amount or number of shares of Contract
Securities.
In addition, upon written notice from the Representative given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of any Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees that it shall sell to the Underwriters the number
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Unless the
Terms Agreement provides otherwise, such Optional Securities shall be purchased
for the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by the Representative to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time
to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by the Representative to the Company. Each
time for the delivery of and payment for the Optional Securities, being herein
referred to as an "Optional Closing Date," which may be the First Closing Date
(the First Closing Date and each Optional Closing Date, if any, being sometimes
referred to as a "Closing Date"), shall be determined by the Representative but
shall be not later than five full business days after written notice of election
to purchase Optional Securities is given.
If the Offered Securities are Preferred Stock or Common Stock, the
certificates for the Offered Securities delivered to the Underwriters on the
Closing Date will be in definitive form, and if the Offered Securities are Debt
Securities, the Offered Securities delivered to the Underwriters on the Closing
Date will be in definitive fully registered form, in each case in such
denominations and registered in such names as the Representative requests.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global securities in definitive form (the "GLOBAL
SECURITIES") deposited with the Property Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for
DTC. Interests in any permanent global securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for Offered Securities shall be made by the Underwriters
in Federal (same day) funds by official bank check or checks or wire transfer to
an account previously designated by the Company at a bank acceptable to the
Representative, in each case drawn to the order of Calpine Corporation at the
office of Xxxxxxxxx & Xxxxxxx (or such other location as the Representative may
direct) on the Closing Date, against delivery to the Trustee as custodian for
DTC of the Global Securities representing all of the Offered Securities. The
forms of the Global Securities will be made available for checking at the office
of Xxxxxxxxx & Xxxxxxx at least 24 hours prior to the Closing Date.
4. Certain Agreements of the Company. The Company agrees
with the several Underwriters that it will furnish to counsel to the
Underwriters one signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) not
later than the second business day following the execution and delivery of the
Terms Agreement.
(b) The Company will advise the Representative
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus and will afford the Representative a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will also
advise the Representative promptly of the effectiveness of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating
to the Offered Securities is required to be delivered under the Securities Act
in connection with sales by any Underwriter or dealer, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Securities Act and the Company will promptly notify the
Representative of such event and will promptly prepare and file with the
Commission, at their own expense, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
Neither the Representative's consent to, nor the Underwriters' delivery to
offerees or investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than
16 months, after the date of each Terms Agreement, the Company will make
generally available to their security holders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the effective date
of the registration statement relating to the Registered Securities; (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such Terms Agreement; and
(iii) the date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to date of such Terms Agreement, which will satisfy
the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the
Representative copies of each Registration Statement (three of which will be
signed and will include all exhibits), any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as the
Representative requests, so long as a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act in connection
with sales by any Underwriter or dealer. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following the later of
the execution and delivery of each Terms Agreement. All other documents shall be
so furnished as soon as available. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Company will arrange for the
qualification of the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in effect so
long as required for the distribution, provided that the Company will not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such state.
(g) During the period of five years after the
date of any Terms Agreement, the Company will furnish to the Representative and,
upon request, to each of the other Underwriters, as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to the Representative and, upon request,
to each of the other Underwriters (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from time
to time, such other information concerning the Company as the Representative may
reasonably request.
(h) During the period of two years after the
later of the Closing Date and the last Optional Closing Date, the Company will
not be or become an "investment company" as defined in the Investment Company
Act of 1940.
(i) The Company will pay all expenses incident
to the performance of its obligations under the Terms Agreement (including this
Agreement), for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Registered Securities for sale and any determination of their eligibility for
investment, under the laws of such
jurisdictions as the Representative designates and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Offered Securities, for the filing fee incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. of the
Registered Securities and related securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers of the
Registered Securities and for expenses incurred in distributing the Prospectus,
any preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters. The
Company will reimburse the Underwriters for all travel expenses of the
Underwriters and any other expenses of the Underwriters in connection with
attending or hosting meetings with prospective purchasers of the Registered
Securities.
(j) Unless otherwise specified in the applicable
Terms Agreement, for a period of days after the date of any public offering of
the Offered Securities, the Company will not, and will not permit its
Subsidiaries to, offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration statement
under the Securities Act (other than one or more registration statements (x) on
Form S-3 relating solely to the registration of shares issuable upon the sale of
transferred employee stock options or (y) on Form S-8) relating to (A) any debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from date of issue (if the Offered Securities are Debt
Securities), (B) any preferred securities, any preferred stock or any other
securities of a trust (if the Offered Securities are Preferred Stock), (C) any
Preferred Stock or any other security of the Company that is substantially
similar to the Offered Securities (if the Offered Securities are Preferred
Stock), (D) any shares of common stock of the Company other than shares of
common stock issuable upon conversion of the Offered Securities (if the Offered
Securities are Common Stock or Preferred Stock) or (E) any other securities
which are convertible into, or exchangeable or exercisable for, any of (A) (if
the Offered Securities are Debt Securities), (B) or (C) (if the Offered
Securities are Preferred Stock), or (D) (if the Offered Securities are Common
Stock or Preferred Stock, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written consent of
the Representative except (i) grants of employee stock options pursuant to the
terms of a plan in effect on the date hereof, (ii) issuances of Company Common
Stock pursuant to the exercise of such options, (iii) the exercise of any other
employee stock options outstanding on the date hereof, or (iv) the issuance and
sale of securities pursuant to this Underwriting Agreement simultaneously with
or subsequent to the offering of the Offered Securities.
5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms
Agreement, the Representative shall have received a letter, dated the date of
delivery thereof, of Xxxxxx Xxxxxxxx LLP confirming that they are independent
public accountants within the meaning of the Securities Act and the applicable
published Rules and Regulations and stating to the effect that:
(i) in their opinion the financial
statements and schedules examined by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the related published Rules and Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified Public Accountants for
a review of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements included in the Registration Statements
and in the Exchange Act Reports;
(iii) on the basis of the review referred
to in clause (ii) above, a reading of the unaudited pro forma financial
statements, selected consolidated financial data and ratio of earnings
to fixed charges included in or incorporated by reference in the
Registration Statement and inquiries of officials of the Parent who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited pro forma financial,
selected consolidated financial data and ratio of
earnings to fixed charges statements included in or
incorporated by reference in the Registration
Statement do not each comply as to form in all
material respects with the applicable accounting
requirements under the Securities Act;
(B) the unaudited consolidated net revenue,
net operating income and summary of earnings, net
income and net income per share amounts included in
the Prospectus do not agree with the amounts set
forth in the unaudited consolidated financial
statements for those same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of such letter, there
was any change in the capital stock or any increase
in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus or the Exchange Act
Reports; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net revenues, or net operating income or
in the total or per share amounts of consolidated net
income or in the ratio of earnings to fixed charges
and Preferred Stock dividends combined, except in all
cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(iv) on the basis of their review of the
unaudited
pro forma financial statements, selected consolidated financial data
and ratio of earnings to fixed charges included in the Registration
Statement and inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that the unaudited pro forma financial, selected consolidated financial
data and ratio of earnings to fixed charges statements included in the
Registration Statement do not each comply as to form in all material
respects with the applicable accounting requirements under the
Securities Act; and
(v) they have compared specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statement (in each
case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records
of the Company and its Subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 4(a) of
this Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company or
any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of
the Terms Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition (financial
or other), business, properties or results of operations of the Company and the
Subsidiaries taken as one enterprise which, in the judgment of a majority in
interest of the Underwriters including the Representative, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any Debt Securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any Debt
Securities of the Company (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Parent on any exchange or in the over-the-counter market; (iv)
any banking moratorium declared by U.S. Federal or New York authorities; (v) any
major disruption of settlements of book-entry securities in DTC which, in the
judgment of a majority in interest of the Underwriters including the
Representative, makes it impractical to proceed with sale of and payment for the
Offered Securities; or (vi) any outbreak or escalation of major hostilities
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representative, the
effect of any such outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representative shall have received an
opinion, dated the Closing
Date, of Xxxxxxxxx & Xxxxxxx, counsel for the Company, to the effect that:
(i) The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Delaware and has the corporate power and authority to own
its properties and conduct its business as described in the Prospectus
and to issue the Offered Securities;
(ii) (A) If the Offered Securities are
Debt Securities: the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act, (B) if the Offered Securities are Common Stock: the
Offered Securities (other than any Contract Securities) have been duly
authorized, are fully paid and nonassessable and conform to the
description contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities, (C) if the Offered Securities are Debt Securities: the
Offered Securities and the Indenture delivered on the Closing Date
conform, and the Contract Securities when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts will conform, to the respective
descriptions thereof contained in the Prospectus; (D) if the Offered
Securities are Debt Securities: the Indenture delivered on such Closing
Date constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms and conforms to the
description thereof contained in the Prospectus; (E) the Offered
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts constitute the valid and binding obligations of the
Company, enforceable in accordance with their respective terms; and (F)
all conditions precedent (including covenants, compliance with which
constitutes conditions precedent) provided for in the Indenture to the
authentication and delivery of the Offered Securities have been
complied with, and the forms and terms of the Offered Securities have
been established in conformity with the provisions of the Indenture;
subject, in the case of clauses (D) and (E), to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(iii) If the Offered Securities are
convertible: the Offered Securities, other than any Contract Securities
are, and any Contract Securities, when (if the Offered Securities are
Debt Securities) executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed Delivery
Contracts or (if the Offered Securities are Preferred Stock) when
issued, delivered and sold pursuant to Delayed Delivery Contracts, will
be convertible into Common Stock of the Company in accordance with (if
they are Debt Securities) the Indenture or (if they are Preferred
Stock) their terms; the shares of Common Stock initially issuable upon
conversion of the Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; and
the stockholders of the Company have no preemptive rights with respect
to the Common Stock into which the Offered Securities are convertible;
(iv) Except as set forth on Schedule B
to any
Terms Agreement relating to common stock or preferred stock, there are
no contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(v) The Company is not and, after
giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" within the meaning of the
Investment Company Act of 1940;
(vi) No consent, approval, authorization
or order of, or filing with, any governmental agency or body or any
court is required for the consummation by the Company of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Offered Securities by the Company, except such as have been
obtained and made under the Securities Act, and, if the Offered
Securities are Debt Securities, the Trust Indenture Act and the
respective rules and regulations promulgated under the foregoing, and
except for any of the foregoing as may be required under State
securities or blue sky laws and the rules and regulations promulgated
thereunder;
(vii) Except as set forth in the
Prospectus, to such counsel's knowledge, there are no pending or
threatened actions, suits or proceedings against or affecting the
Company, any of its Subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect or would materially and adversely affect the ability of
the Company to perform its obligations under the Terms Agreement
(including the provisions of this Agreement);
(viii) The execution, delivery and
performance of the Indenture (if the Offered Securities are Debt
Securities), the Terms Agreement (including the provisions of this
Agreement), and, if the Offered Securities are Debt Securities or
Preferred Stock, any Delayed Delivery Contracts, the issuance and sale
of the Offered Securities and compliance with the terms and provisions
thereof will not (A) violate any statute, rule, regulation or order of
which such counsel is aware of any governmental agency or body or any
court having jurisdiction over the Company or any Subsidiary of the
Company or any of their respective properties, (B) to such counsel's
knowledge, breach the provisions of, or cause a default under, any
agreement or instrument to which the Company or any such Subsidiary is
a party or by which the Company or any such Subsidiary is bound or to
which any of the properties of the Company or any such Subsidiary is
subject, or (C) violate any provision of the charter, by-laws or any
other constitutive document of the Company or any such Subsidiary;
(ix) The Registration Statement was
declared effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein, and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act, and the
registration statement relating to the Registered Securities, as of its
effective date, the Registration Statement and the Prospectus, as of
the date of the Terms Agreement, and each amendment or supplement
thereto, as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the
Securities Act, the Trust Indenture Act and the Rules and Regulations;
such counsel, while not passing upon and not assuming responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement, any amendment thereto or the Prospectus
except to the extent specifically set forth in this paragraph (ix),
does not believe that any part of the Registration Statement or any
amendment thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein not misleading
or that any part of the Prospectus, as of the date of the Terms
Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
statements in the Registration Statement and the Prospectus under the
captions "Certain United States Federal Income Tax Considerations,"
"Description of Capital Stock," "Description of the Debt Securities,"
"Description of Depository Shares," "Description of Purchase
Contracts," "Description of Units," "Description of Warrants" and
"Description of Trust Preferred Securities," insofar as such statements
constitute summaries of the laws, regulations, legal matters,
agreements or other legal documents referred to therein, are accurate
in all material respects and fairly summarize the matters referred to
therein; and such counsel do not know of any legal or governmental
proceedings required to be described in the Registration Statement or
the Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no opinion
or belief as to the financial statements or other financial or
statistical data derived therefrom contained in the Registration
Statements or the Prospectus;
(x) The Terms Agreement (including the
provisions of this Agreement) and, if the Offered Securities are Debt
Securities or Preferred Stock, any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
(xi) This Agreement has been duly
authorized, executed and delivered by the Company.
For the purposes of this subsection (d) only, the term "Subsidiary"
shall have the meaning given to the term "significant subsidiary" in Rule
1-02(w) of Regulation S-X under the Securities Act.
(e) The Representative shall have received an
opinion, dated such Closing Date, of Xxxx Xxxxxxxxxxxx, Senior Vice President
and General Counsel of the Company, to the effect that:
(i) Each Subsidiary (x) other than
those Subsidiaries specified in clause (y) of this Section 6(e)(i) has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, and
has corporate power and authority to own its property and to conduct
its business as described in the Prospectus or (y) that is not a
corporation is a limited partnership, a limited liability company or a
business trust, has been duly formed and is validly existing as a
limited partnership, a limited liability company or a business trust,
as the case may be, in good standing under the laws of the jurisdiction
of its formation, and has full power and authority to own its property
and to conduct its business as described in the Prospectus; and, in
each case, is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and its Subsidiaries taken as a whole; and the Company is
not a general partner in any partnership;
(ii) The Company and each of its
Subsidiaries possess adequate certificates, authorities, licenses or
permits issued by appropriate governmental agencies or bodies necessary
to conduct the business as now operated by them as described in the
Prospectuses and such counsel is not aware of the receipt of any notice
of proceedings relating to the revocation or modification of any such
certificate, authority, license or permit that, if determined adversely
to the Company or any of its Subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and its Subsidiaries taken as a whole;
(iii) The contracts and agreements of the
Company and its Subsidiaries and affiliates incorporated by reference
in the Prospectus (including in the Exchange Act Reports incorporated
by reference in the Prospectus) under the captions "Recent
Developments" and "Business - Description of Facilities" conform in all
material respects to the descriptions thereof contained in the
Prospectus (or such Exchange Act Reports), and the statements under the
captions "Executive Officers, Directors and Key Employees," "Executive
Compensation," "Business - Project Development," "Legal Proceedings"
and "Business - Governmental Regulation," insofar as such statements
constitute summaries of the legal matters, documents and governmental
proceedings referred to therein are accurate in all material respects
and fairly summarize and present the information referred to therein.
(iv) To such counsel's knowledge, the
Company (i) is in compliance with any and all applicable Environmental
Laws, (ii) has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and (iii) is in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company
and the Subsidiaries taken as a whole; and
(v) To such counsel's knowledge, based
on the conduct of the Company's business as described in the
Prospectus, neither the Company
nor any of its Subsidiaries is (i) a "holding company" or a
"subsidiary" of a holding company or a "public utility company" under
Section 2(a) of the Public Utility Holding Company Act of 1935
("PUHCA") (except that certain Subsidiaries that are EWGs (as defined
herein) or QFs (as defined herein) and Cogeneration Corporation of
America are subsidiaries of a holding company), (ii) subject to
regulation under the Federal Power Act, as amended ("FPA"), other than
as a power marketer or an "exempt wholesale generator" ("EWG") that is
a "public utility" under the FPA or as a "qualifying facility" ("QF")
under the Public Utility Regulatory Policies Act of 1978 ("PURPA")
contemplated by 18 C.F.R. Section 292.601(c) or (iii) with respect to
each of the power generation projects in which the Company or its
Subsidiaries has an interest that is a "qualifying facility" under
PURPA, subject to any state law or regulation with respect to rates or
the financial or organizational regulation of electric utilities, other
than as contemplated by 18 C.F.R. Section 292.602(c).
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the corporate law of the
State of Delaware, upon opinions of other counsel, who shall be counsel
reasonably satisfactory to counsel for the Underwriters, in which case the
opinion of such other counsel shall also be addressed to the Underwriters.
(f) The Representative shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on the Closing
Date, Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Representative shall have received
letters dated no later than the date of the Terms Agreement from the persons
specified in the section entitled "Lock-Up" of the Terms Agreement whereby each
such person agrees, for the period commencing on such date and ending 90 days
after the Closing Date, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Company Common Stock
or other securities convertible into or exchangeable or exercisable for any
shares of Company Common Stock, or publicly disclose the intention to make any
such offer, sale, pledge or disposal (1) other than as bona fide gift or gifts,
provided the donee or donees thereof agree to be bound by the section entitled
"Lock-Up" of the Terms Agreement or (2) without the prior written consent of the
Representative.
(h) The Representative shall have received a
certificate, dated the Closing Date, of the President or any Vice President and
a principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and satisfied
all conditions on their part to be performed or satisfied hereunder at or prior
to the Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; and, subsequent to the
date of the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries taken as
a whole except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(i) The Representative shall have received a
letter, dated such Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the
requirements of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
The Company will furnish the Representative with such
conformed copies of such opinions, certificates, letters and documents as the
Representative reasonably request. the Representative may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, 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 in order to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement.
(b) Each Underwriter will severally and not
jointly indemnify and hold harmless the Company, and their respective directors
and officers and trustees and each person, if any who controls the Company
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified
party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, 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 which it may have to any indemnified
party otherwise than under subsection (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 satisfactory to such indemnified party (who shall not, except with the
consent of the 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 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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) 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 referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above 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 Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters from the Company under this Agreement.
The relative fault 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 Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue 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 the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has 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. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this
Section shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Securities Act or
the Exchange Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act.
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Offered Securities under
the Terms Agreement and the aggregate principal amount (if Debt Securities) or
number of shares (if Preferred Stock or Common Stock) of Offered Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount (if Debt Securities) or number of
shares (if Preferred Stock or Common Stock) of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representative
may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount (if Debt Securities)
or number of shares (if Preferred Stock or Common Stock) of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount (if Debt Securities) or number of shares (if Preferred Stock or
Common Stock) of Offered Securities that the Underwriters are obligated to
purchase on the Closing Date and arrangements satisfactory to the Representative
and the Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, the Terms Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 8 provided that if such default occurs with
respect to Optional Securities after the First Closing Date, this Agreement will
not terminate as to the Firm Securities or any Optional Securities purchased
prior to such termination. As used in this Agreement, the term "UNDERWRITER"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amount (if Debt Securities)
or numbers of shares (if Preferred Stock) of Offered Securities set forth
opposite their names in the Terms Agreement as a result of Delayed Delivery
Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Company or their officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter and the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Offered Securities by
the Underwriters is not consummated for any reason
other than solely because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in clause (ii), (iii), (iv),
(v) or (vi) of Section 5(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed, delivered, telegraphed
and confirmed or faxed and confirmed to the Representative, c/o ,
Attention: , or, if sent to the Company, will be mailed, delivered,
telegraphed and confirmed or faxed and confirmed to it at Calpine Corporation,
00 Xxxx Xxx Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered, telegraphed and confirmed or faxed and
confirmed to such Underwriter.
10. Successors. The Terms Agreement (including the
provisions of this Agreement) will inure to the benefit of and be binding upon
the Company and such Underwriters as are identified in the Terms Agreement and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Representation of Underwriters. The Representative
will act for the several Underwriters in connection with the financing described
in the Terms Agreement, and any action under such Terms Agreement taken by the
Representative jointly or by the Representative will be binding upon all the
Underwriters.
12. Counterparts. The Terms may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS
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.
The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
hereby.
[Signature page follows.]
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the Underwriters in accordance with its terms.
Very truly yours,
CALPINE CORPORATION
By:
--------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Acting on behalf of itself and as the Representative of the several Underwriters
By:
-----------------------------
Name:
Title:
