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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
Dated as of July_21, 1998
by and between
CALPINE CORPORATION
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
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7-7/8% Senior Notes Due 2008
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of July 21, 1998, by and between Calpine Corporation, a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (the
"Purchaser").
This Agreement is made pursuant to the Placement Agreement, dated
of even date herewith (the "Placement Agreement"), between the Company and the
Purchaser, which provides for the sale by the Company to the Purchaser of an
additional aggregate of $100,000,000 principal amount of the Company's 7-7/8%
Senior Notes Due 2008 (the "Senior Notes") to be issued under an Indenture dated
March 31, 1998, to be supplemented by the First Supplemental Indenture to be
dated as of July 24, 1998. In order to induce the Purchaser to enter into the
Placement Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the Closing under the Placement Agreement.
The parties hereby agree as follows:
1. Definitions
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Advice: See Section 4(o).
Closing Date: July 24, 1998, or such other date as may be agreed
upon for the sale and purchase of the Senior Notes pursuant to the Placement
Agreement.
Company: Calpine Corporation, a Delaware corporation.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: The exchange offer by the Company of Exchange
Notes for Registrable Securities pursuant to Section 3(d) hereof.
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Exchange Offer Registration: A registration under the Securities
Act effected pursuant to Section 3(d) hereof.
Exchange Offer Registration Statement: An exchange offer
registration statement on Form S-4 or Form S-1 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference or deemed to be incorporated
by reference therein.
Exchange Notes: Securities issued by the Company under an
indenture containing terms identical to the Senior Notes (except that such
Exchange Notes (i) shall have been issued on an Exchange Offer and (ii) shall
have an interest rate of 7-7/8% per annum, without provision for adjustment as
provided in paragraph 1 on the reverse of the Senior Notes), to be offered to
holders of Senior Notes in exchange for Senior Notes pursuant to the Exchange
Offer.
Indenture: The Indenture, dated as of March 31, 1998, to be
supplemented by the First Supplemental Indenture to be dated as of July 24,
1998, between the Company and The Bank of New York, as Trustee, pursuant to
which the Senior Notes are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Prospectus: The prospectus included in any 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), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement or of the
Exchange Notes, as the case may be, and all other amendments and supplements to
the Prospectus, including post-effective amendments and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Registrable Securities: All Senior Notes which are Restricted
Securities.
Registration Expenses: See Section 5 hereof.
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Registration Statement: Any registration statement of the Company
which covers any of the Exchange Notes or Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Restricted Securities: Any and all Senior Notes upon original
issuance thereof and at all times subsequent thereto until, as to any Senior
Note, (i) the sale of such Senior Note has been effectively registered under the
Securities Act and such Senior Note has been disposed of in accordance with the
Registration Statement relating thereto or (ii) it is distributed to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or (iii) an Exchange Offer Registration has been
declared effective and such Senior Note has been exchanged for an Exchange Note
by a person who is not then deemed to be an Underwriter as defined in Section
2(11) of the Securities Act.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 3 hereof.
Shelf Registration Statement: See Section 3 hereof.
Special Counsel: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel to the Purchaser or such other special counsel as may be
designated by the holders of a majority in aggregate principal amount of
Registrable Securities outstanding.
TIA: The Trust Indenture Act of 1939, as amended.
2. Securities Subject to this Agreement; Holders
(a) The securities entitled to the benefits of this
Agreement are the Registrable Securities.
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(b) A Person is deemed to be a holder of Registrable
Securities whenever such Person beneficially owns Registrable Securities;
provided, that only Registrable Securities of holders who are registered holders
of Registrable Securities shall be counted for purposes of calculating any
proportion of holders of Registrable Securities entitled to take action or give
notice pursuant to this Agreement.
3. Shelf Registrations; Exchange Offers
(a) Shelf Registrations. As promptly as practicable and in
no event later than September 27, 1998, the Company shall prepare and file with
the SEC a Registration Statement under the Securities Act (the "Shelf
Registration Statement") for an offering to be made on a continuous basis
pursuant to Rule 415 (or any similar rule that may be adopted by the SEC) under
the Securities Act covering all the Registrable Securities (the "Shelf
Registration").
(b) The Shelf Registration Statement shall be on Form S-1
or another appropriate form permitting registration of such Registrable
Securities for resale by such holders in the manner or manners designated by
them.
(c) The Company shall use its best efforts to cause the
Shelf Registration Statement to become effective under the Securities Act in
accordance with Section 3(a) hereof and shall keep the Shelf Registration
continuously effective for a period of two years from the Closing Date or such
shorter period which will terminate when all Registrable Securities covered by
the Shelf Registration Statement are no longer Restricted Securities. The
Company shall also supplement or make amendments to any Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company or if required by the Securities Act
or if reasonably requested by holders of a majority of the principal amount of
the Registrable Securities then outstanding covered by the Shelf Registration
Statement.
(d) Exchange Offer. Notwithstanding the provisions of
Section 3(a), at the option of the Company, to the extent any applicable law or
applicable interpretation of the staff of the SEC would permit holders
thereafter to resell Exchange Notes without
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restriction, the Company may, in lieu of complying with Section 3(a), cause to
be filed an Exchange Offer Registration Statement covering the offer by the
Company to the holders of Senior Notes to exchange all of the Registrable
Securities for Exchange Notes and to have such Exchange Offer consummated not
later than September 27, 1998. The Company shall commence the Exchange Offer
promptly after the Exchange Offer Registration Statement has been declared
effective by the SEC by mailing the related exchange offer Prospectus and
accompanying documents to each holder of Senior Notes stating, in addition to
such other disclosures required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered
will be accepted for exchange;
(ii) the date of acceptance for exchange (which shall be a
period of at least 30 days from the date such notice is mailed)
(the "Exchange Date");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but, except as set
forth in the last paragraph of this Section 3(d), will not
retain any rights under this Agreement;
(iv) that holders of Senior Notes electing to have a
Registrable Security exchanged pursuant to the Exchange Offer
will be required to surrender such Registrable Security,
together with the enclosed letters of transmittal, to the
institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior
to the close of business on the last Exchange Date; and
(v) that holders of Senior Notes will be entitled to
withdraw their election not later than the close of business on
the last Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New
York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such holder,
the principal amount of Registrable Securities delivered for
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exchange and a statement that such holder is withdrawing its
election to have such Senior Notes exchanged.
As soon as practicable after the Exchange Date, the Company
shall:
(i) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the
trustee under the indenture governing the Exchange Notes to
promptly authenticate and mail to each holder, a new Exchange
Note, as the case may be, equal in principal amount to the
principal amount of the Registrable Securities surrendered by
such Holder.
The Company shall use its best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the SEC. The Company shall inform the
Purchaser of the names and addresses of the holders of Senior Notes to whom the
Exchange Offer is made, and the Purchaser shall have the right to contact such
holders and otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
In connection with the Exchange Registration, the Company will
provide a letter to the staff of the SEC that contains statements and
representations substantially in the form set forth in ▇▇▇▇ ▇▇▇ Cosmetics, Inc.
(no-action letter available June 5, 1991), Morqan ▇▇▇▇▇▇▇ & Co. Incorporated
(no-action letter available June 5, ▇▇▇▇), ▇▇▇▇▇▇▇, Inc. (no-action letter
available October 11, 1991), Shearman & Sterling (no-action letter available
July 2, 1993), Grupo Financiero InverMexico, S.A. (no-action letter available
April 4, 1995) and no-action letters to similar effect.
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As provided in the Indenture, in the event that neither the Shelf
Registration Statement is declared effective nor the Exchange Offer is
consummated by September 27, 1998, the interest payable on the Senior Notes
shall be increased, beginning at such time, by one-half of one percent per annum
until the Exchange Offer is consummated or the Shelf Registration Statement is
declared effective.
4. Registration Procedures
In connection with the Company's registration obligations
pursuant to Section 3 hereof, the Company shall use its best efforts to effect
such registrations to permit the consummation of the Exchange Offer or the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company shall as expeditiously
as possible:
(a) prepare and file with the SEC, within the time period
specified in Section 3, a Registration Statement or Registration Statements on
any appropriate form under the Securities Act, which form, in the case of a
Shelf Registration Statement, shall be available for the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof, and use its best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto (including documents which
would be incorporated or deemed to be incorporated therein by reference and
amendments to such documents, other than documents required to be filed pursuant
to the Exchange Act), the Company shall furnish to the Special Counsel copies of
the Registration Statement or Prospectus and all such documents in the form
proposed to be filed at least five business days prior thereto and with respect
to amendments or supplements thereof, at least two business days prior thereto,
which documents will be subject to the review of the Special Counsel, and the
Company shall not file any such Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (including such documents which, upon
filing, would be incorporated or deemed to be incorporated by reference therein
and amendments to such documents, other than documents required to be filed
pursuant to
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the Exchange Act) to which the Special Counsel shall reasonably object on a
timely basis, unless the Company is advised by its counsel that such
Registration Statement or amendment thereto or any Prospectus or supplement
thereto is required to be filed by applicable law;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act;
(c) notify the selling holders of Registrable Securities
(except in the cases of clauses (ii) and (iii) hereof) and their Special Counsel
promptly, and (if requested by any such person) confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
related to such Registrable Securities has been filed, and, with respect to a
Registration Statement or any post-effective amendment related to such
Registrable Securities, when the same has become effective, (ii) of the receipt
of any comments from the SEC, (iii) of any request by the SEC for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (iv) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (v) if at any time the representations and warranties of the
Company contained in any agreement contemplated by paragraph (1) below in
connection with the sale of Restricted Securities by selling holders thereof
cease to be true and correct, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale or exchange in
any jurisdiction of the United States of America or the initiation of any
proceeding for such purpose, (vii) of the happening of any event which makes any
statement of a material fact made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which requires the making of any changes in a Registration
Statement or related Prospectus so that such documents will not contain any
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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 light of
the circumstances under which they were made, not misleading, and (viii) of the
Company's determination that a post-effective amendment to a Registration
Statement would be appropriate;
(d) use every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale or exchange in any jurisdiction of
the United States of America, as promptly as practicable;
(e) if reasonably requested by any holder of Registrable
Securities covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as such
holder reasonably requests to be included therein as may be required by
applicable law, (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has received notification
of the matters to be incorporated in such Prospectus supplement or such
post-effective amendment, and (iii) supplement or make amendments to any
Registration Statement if reasonably requested by any holder of Registrable
Securities covered by such Registration Statement as may be required by
applicable law;
(f) in the case of a Shelf Registration, furnish to each
selling holder of Registrable Securities and the Special Counsel, without
charge, at least one conformed copy of the Registration Statement or Statements
and any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference or deemed
incorporated therein by reference and all exhibits (including those previously
furnished or incorporated by reference), at the earliest practicable time under
the circumstances after the filing of such documents with the SEC;
(g) in the case of a Shelf Registration, deliver to each
selling holder of Registrable Securities and the Special Counsel, without
charge, as many copies of the Prospectus or Prospectuses (including each pre-
liminary prospectus) and any amendment or supplement
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thereto as such Persons may reasonably request; the Company consents to the use
of such Prospectus or any amendment or supplement thereto in accordance with
applicable law by each of the selling holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in accordance with
applicable law;
(h) prior to any public offering or exchange of
Registrable Securities, to use its best efforts to register or qualify or
cooperate with the selling holders of Registrable Securities and their Special
Counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale or exchange, as the case may be, under the securities or blue sky laws of
such state or local jurisdictions as any seller reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the Company will not
be required to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(C) register or qualify securities prior to the effective date of any
Registration Statement under Section 3 hereof;
(i) in the case of a Shelf Registration, cooperate with
the selling holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates shall not bear any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in such
names, in all cases consistent with the requirements set forth in the Indenture,
as the holders may request;
(j) subject to the exceptions contained in (A), (B) and
(C) of subsection (h) hereof, cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by
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such other federal, state and local governmental regulatory agencies or
authorities in the United States as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities
and cooperate with each seller of Registrable Securities in connection with any
filings required to be made with the National Association of Securities Deal-
ers, Inc.;
(k) upon the occurrence of any event contemplated by
Section 4(c)(vii) or 4(c)(viii) above, as promptly as practicable thereafter,
prepare and file with the SEC a supplement or post-effective amendment to the
applicable Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(l) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection therewith
(including those reasonably requested by the holders of a majority of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
underwritten offering and in such connection, (i) to the extent possible, make
such representations and warranties to the holders and any underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Company (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to Special Counsel) addressed
to each selling holder and underwriter of Registrable Securities, covering the
matters customarily covered in opinions requested in underwritten offerings,
(iii) obtain "cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary,
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any other certified public accountant of any subsidiary of the Company, or of
any business acquired by the Company for which financial statements and
financial data is or is required to be included in the Registration Statement)
addressed to each selling holder and underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may be reasonably requested by
the holders of a majority in principal amount of the Registrable Securities
being sold to evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an underwriting agreement;
(m) in the case of a Shelf Registration, make available
for inspection by a representative of the holders of Registrable Securities
being sold, Special Counsel and an accountant retained by such selling holders,
in a manner designed to permit underwriters to satisfy their due diligence
investigation under the Securities Act, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, attorney or
accountant in connection with such registration; provided, however, that any
records, information or documents that are designated by the Company as
confidential at the time of delivery of such records, information or documents
shall be kept confidential by such persons, unless (i) such records, information
or documents are in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required by court or
administrative order, (iii) disclosure of such records, information or
documents, in the written opinion of counsel to such person, is otherwise
required by law (including, without limitation, pursuant to the requirements of
the Securities Act) or (iv) disclosure of such records, information or document
is necessary to avoid or correct a misstatement or omission in the Registration
Statement, Prospectus supplement or any post-effective amendment;
(n) provide an indenture trustee for the Registrable
Securities or Exchange Notes, as the case may be, and cause the indenture (or
the indenture gov-
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erning the Exchange Notes) to be qualified under the TIA not later than the
effective date of any registration; and in connection therewith, cooperate with
the trustee to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA and
execute, and use its best efforts to cause the trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so qualified in
a timely manner; and
(o) comply with all applicable rules and regulations of
the SEC and, in the case of a Shelf Registration, make generally available to
its security holders an earnings statement satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder no later than 45 days after
the end of any 12-month period (or 90 days after the end of any 12-month period
if such period is a fiscal year), commencing on the first day of the first
fiscal quarter of the Company commencing after the effective date of a
Registration Statement, which statement shall cover said 12-month period.
The Company may require each seller of Registrable Securities
under a Shelf Registration Statement to furnish to the Company such information
regarding the distribution of such Registrable Securities as the Company may
from time to time reasonably request in writing and each holder in acquiring
such Registrable Securities agrees to supply such information to the Company
promptly upon such request.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, in the event of a Shelf Registration, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 4(c)(iii), 4(c)(iv), 4(c)(vi), 4(c)(vii) or 4(c)(viii)
hereof, such holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(k) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are
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incorporated or deemed to be incorporated by reference in such Prospectus.
5. Registration Expenses
The Company shall pay all fees and expenses incident to the
performance of or compliance with this Agreement by the Company including,
without limitation, (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or holders in connection with blue sky qualification of any of the
Exchange Notes or Registrable Securities), (iii) all expenses of any persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees and (v) the fees and disbursements of counsel for
the Company, Special Counsel to the holders of Registrable Securities and of the
independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees of counsel to the underwriters
and underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a holder of Registrable
Securities.
6. Indemnification
The Company agrees to indemnify and hold harmless the Purchaser
and each holder of Registrable Securities and each person, if any, who controls
the Purchaser or any holder of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended and supplemented if the Company
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shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Purchaser or any holder of Registrable
Securities furnished to the Company in writing by such Purchaser or holder of
Registrable Securities expressly for use therein.
In connection with any Shelf Registration in which a holder of
Registrable Securities is participating, in furnishing information relating to
such holder of Registrable Securities to the Company in writing expressly for
use in such Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto, the holders of such Registrable
Securities agree severally and not jointly, to indemnify and hold harmless the
Purchaser and each person, if any, who controls the Purchaser within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act and
the Company, its directors, its officers who sign a Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to such information relating to such holder of Registrable
Securities furnished in writing by or on behalf of such holder of Registrable
Securities expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
The Purchaser agrees to indemnify and hold harmless the Company,
the holders of Registrable Securities, the directors of the Company, the
officers of the
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Company who sign the Registration Statement and each person, if any, who
controls the Company or any holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to the Purchaser furnished to the Company in
writing expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to the actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdic-
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tion, be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Purchaser and all persons, if any, who
control the Purchaser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, (b) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section and (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all holders of Registrable Securities and all persons, if any, who
control any holders of Registrable Securities within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Purchaser and such control persons of the
Purchaser, such firm shall be designated in writing by the Purchaser. In such
case involving the holders of Registrable Securities and such controlling
persons of holders of Registrable Securities, such firm shall be designated in
writing by holders of a majority in aggregate principal amount of Registrable
Securities. In all other cases, such firm shall be designated by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent, provided that (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement unless the indemnifying party has contested such obligation and
provides reasonable assurances that such payment can be made upon resolution of
such dispute. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemni-
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fied 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 claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first, second or third
paragraph of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
holders of Registrable Securities on the one hand and the Purchaser on the other
hand 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 holders
of Registrable Securities or by the Purchaser and the parties', relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The parties hereto agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no holder of Registrable
Securities shall be required to indemnify or contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such
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holder of Registrable Securities and distributed to the public were offered to
the public exceeds the amount of any damages that such holder of Registrable
Securities 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 remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Purchaser or any person controlling
the Purchaser, any holder of Registrable Securities or any person controlling
the holder of Registrable Securities, or the Company, its officers or directors
or any person controlling the Company.
7. Miscellaneous
(a) Remedies. In the event of a breach by the Company of
any of its obligations under this Agreement, each holder of Registrable
Securities, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, they
shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on
or after the date of this Agreement, enter into any agreement with respect to
its securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supple-
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mented, and waivers or consents to departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of holders of a
majority of the then outstanding aggregate principal amount of Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter which relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and which does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least a majority in aggregate principal amount of the Registrable
Securities being sold by such holders.
(d) Notices. All notices and other communications
provided or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, or telecopier:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in
accordance with the provisions of this Section 7(d), which
address initially is, with respect to the Purchaser, the ad-
dress set forth on the first page of the Placement Agreement;
and
(ii) if to the Company, initially at its address set forth
on the first page of the Placement Agreement and thereafter by
such other address, notice of which is given in accordance with
the provision of this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being sent by next-day solvent air courier; when answered back, if
telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon
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the successors and assigns of each of the parties, including without limitation
and without the need for an express assignment, subsequent holders of
Registrable Securities.
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) 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.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the securities sold pursuant to the Purchase Agreement.
This Agreement supersedes all prior agreements and under-
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standings between the parties with respect to such subject matter.
(k) Securities Held by the Company or its Affiliates.
Whenever the consent or approval of holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Purchaser or subsequent holders of Registrable
Securities if such subsequent holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the holders of such
required percentage or amount.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
CALPINE CORPORATION
By:______________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:_______________________________
Name:
Title:
