Exhibit 4.4
BID SOLICITATION AGREEMENT
This Bid Solicitation Agreement (as the same may be amended or modified
from time to time and including any and all written instructions given to the
Bid Solicitation Agent (as defined below) pursuant hereto, this "Bid
Solicitation Agreement") is made and entered into as of January 9, 2004, by and
among Calpine Corporation, a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Company, as bid solicitation agent (the "Bid Solicitation
Agent").
WHEREAS, this Bid Solicitation Agreement is being entered into in
connection with the the Company's 4.75% Contingent Convertible Senior Notes due
2023 (the "Notes") pursuant to an Indenture, dated as of November 14, 2003 (the
"Indenture"), among the Company and Wilmington Trust Company (the "Trustee");
and
WHEREAS, the Company wishes to engage the Bid Solicitation Agent to act,
and the Bid Solicitation Agent is willing to act, as bid solicitation agent
hereunder and, in that capacity, to determine the "Trading Price" (as defined
below) of the Notes if requested to do so in writing by the Company in
accordance with, and subject to, the terms of this Bid Solicitation Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the parties hereto hereby agree as follows:
1. Appointment of Bid Solicitation Agent. The Company hereby
appoints American Stock Transfer & Trust Company as the Bid Solicitation Agent
hereunder, and American Stock Transfer & Trust Company hereby accepts such
appointment.
2. Trading Price. (a) The Bid Solicitation Agent will determine the
Trading Price of the Notes if requested to do so in writing by the Company. Such
written notice will advise the Bid Solicitation Agent as to (i) the date or
dates on which it is to make a Trading Price determination and (ii) and the
identity of at least three independent nationally recognized securities dealers
(each, a "Dealer") from which quotations are to be solicited.
(b) The "Trading Price" of the Notes for each day of determination
means the average of the secondary market bid quotations per $1,000 principal
amount of Notes obtained by the Bid Solicitation Agent for $5,000,000 principal
amount of the Notes at approximately 3:30 p.m., New York City time, on such
determination date from three Dealers identified by the Company pursuant to
Section 2(a); provided that if three such bids cannot reasonably be obtained by
the Bid Solicitation Agent, but two such bids are obtained, then the average of
the two bids shall be the Trading Price, and if only one such bid can reasonably
be obtained by the Bid Solicitation Agent, then this one bid shall be the
Trading Price. The Bid Solicitation Agent shall solicit bids from the Dealers
identified by the Company in the order in which such Dealers are listed until
the requisite number of bids are obtained.
(c) If the Bid Solicitation Agent cannot reasonably obtain at least
one such bid or if the Company informs the Bid Solicitation Agent that it
believes that the bid quotations are not
indicative of the secondary market value of the Notes, then the Trading Price
shall be determined in good faith by the Bid Solicitation Agent, taking into
account in such determination such factors as it, in its sole discretion after
consultation with the Company, deems appropriate.
3. Indemnification. The Company hereby agrees to indemnify the Bid
Solicitation Agent and its officers, directors, partners, employees and agents
(each herein called an "Indemnified Party") against, and hold each Indemnified
Party harmless from, any and all reasonable expenses (including, without
limitation, reasonable attorneys' fees and court costs), losses, costs, damages
and claims, including, without limitation, costs of investigation, litigation
and arbitration suffered or incurred by an Indemnified Party in connection with
or arising from or out of this Bid Solicitation Agreement, except such acts or
omissions as may result from the bad faith, willful misconduct or gross
negligence of such Indemnified Party.
4. Compensation. The Company hereby agrees to pay the Bid
Solicitation Agent for its services hereunder as set forth in Schedule A hereto.
5. Notices. Any notice or other communication required or permitted
to be given under this Bid Solicitation Agreement shall be considered properly
given if in writing and (a) delivered against receipt therefor, (b) mailed by
registered or certified mail, return receipt requested and postage prepaid or
(c) sent by facsimile, in each case to the address or facsimile number, as the
case may be, set forth below:
If to the Bid Solicitation Agent:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (000) 000 0000
Facsimile: (000) 000-0000
If to the Company:
Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Except as otherwise provided herein, delivery of any communication given in
accordance herewith shall be effective only upon actual receipt thereof by the
party or parties to whom such communication is directed. Any party to this Bid
Solicitation Agreement may change the address to which communications hereunder
are to be directed by giving written notice to the other party hereto in the
manner provided in this section.
6. Rights of Bid Solicitation Agent. (a) The Bid Solicitation Agent
may consult with its counsel or other counsel satisfactory to it concerning any
question relating to its duties or
2
responsibilities hereunder or otherwise in connection herewith and shall not be
liable for any action taken, suffered or omitted by it in good faith upon the
advice of such counsel.
(b) In acting under this Bid Solicitation Agreement, the Bid
Solicitation Agent is acting solely as agent of the Company and does not assume
any obligations to or relationship of agency or trust for or with the Trustee or
any of the owners or holders of the Notes.
(c) In the absence of bad faith, willful misconduct or gross
negligence on its part, the Bid Solicitation Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted to be taken
or anything suffered by it in reliance upon the terms of the Notes, any notice,
direction, certificate, affidavit, statement or other paper, document or
communication reasonably believed by it to be genuine and to have been approved
or signed by the proper party or parties.
(d) The Bid Solicitation Agent, its officers, directors, employees
and shareholders may become the owners of, or acquire any interest in, any
Notes, with the same rights that it or they would have if it were not the Bid
Solicitation Agent, and may engage or be interested in any financial or other
transaction with the Company as freely as if it were not the Bid Solicitation
Agent. However, in the event that the Bid Solicitation Agent acquires any
conflicting interest it must eliminate such conflict within 60 days after
ascertaining it has such conflicting interest or resign to the extent and in the
manner provided by this Bid Solicitation Agreement.
(e) Neither the Bid Solicitation Agent nor its officers, directors,
employees, agents or attorneys shall be liable to the Company for any act or
omission hereunder, or for any error of judgment made in good faith by it or
them, except in the case of its or their bad faith, gross negligence or willful
misconduct.
(f) The Bid Solicitation Agent shall be obligated to perform such
duties and only such duties as are herein specifically set forth, and no implied
duties or obligations shall be read into this Bid Solicitation Agreement against
the Bid Solicitation Agent.
(g) Unless herein otherwise specifically provided, any order,
certificate, notice, request, direction or other communication from the Company
made or given by it under any provision of this Bid Solicitation Agreement shall
be sufficient if signed by any officer of the Company.
(h) The Bid Solicitation Agent may perform any duties hereunder
either directly or by or through agents or attorneys, and the Bid Solicitation
Agent shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
(i) In no event shall the Bid Solicitation Agent be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Bid Solicitation Agent shall use
3
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
7. Choice of Laws; Cumulative Rights. This Bid Solicitation
Agreement shall be construed under, and governed by, the laws of the State of
New York. All of the Bid Solicitation Agent's rights hereunder are cumulative of
any other rights it may have at law, in equity or otherwise.
8. Resignation; Removal. (a) The Bid Solicitation Agent shall have
the right at any time to resign hereunder by giving written notice of its
resignation to the Company at the address set forth herein, or at such other
addresses as the Company shall provide, at least 30 calendar days prior to the
date specified for such resignation to take effect. The Company shall have the
right at any time to remove the Bid Solicitation Agent by giving written notice
thereof to the Bid Solicitation Agent at the address set forth herein, or at
such other addresses as the Bid Solicitation Agent shall provide, at least 30
calendar days prior to the date specified for such removal to take effect. The
Company shall promptly appoint a successor bid solicitation agent following
receipt or delivery by the Company, as the case may be, of any such written
notice. Such resignation or removal shall not be effective until the acceptance
of appointment by a successor bid solicitation agent. If no successor bid
solicitation agent is appointed and has accepted its appointment within 30 days
(a) after the Bid Solicitation Agent has given notice of its resignation or (b)
after the Company has given notice of the removal of the Bid Solicitation Agent
as aforesaid, the Bid Solicitation Agent or the Company, as the case may be, may
apply to a court of competent jurisdiction for such appointment.
9. Assignment. This Bid Solicitation Agreement shall not be
assigned by either party hereto without the prior written consent of the other
party hereto.
10. Severability. If one or more of the provisions hereof shall for
any reason be held to be invalid, illegal or unenforceable in any respect under
applicable law, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and this Bid Solicitation Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein, and the remaining provisions hereof shall be given full force
and effect.
11. Termination. This Bid Solicitation Agreement shall terminate
upon the discharge of the Indenture in accordance with its terms; provided,
however, that in the event all fees, expenses, costs and other amounts required
to be paid to the Bid Solicitation Agent hereunder are not fully and finally
paid prior to termination, the provisions of Section 3 above shall survive the
termination hereof; provided further, however, that the provisions of Section 4
hereof shall, in any event, survive the termination hereof.
12. General. The section headings contained in this Bid Solicitation
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Bid Solicitation Agreement. This Bid
Solicitation Agreement and any other document required to be provided hereunder
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute but one and the same
instrument. Unless the context shall otherwise require, the singular shall
include the plural and
4
vice-versa, and each pronoun in any gender shall include all other genders. The
terms and provisions of this Bid Solicitation Agreement constitute the entire
agreement among the parties hereto in respect of the subject matter hereof, and
neither the Company nor the Bid Solicitation Agent has relied on any
representations or agreements of the other, except as specifically set forth in
this Bid Solicitation Agreement. This Bid Solicitation Agreement or any
provision hereof may be amended, modified, waived or terminated only by written
instrument duly signed by each of the parties hereto. This Bid Solicitation
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective assigns. This Bid Solicitation Agreement is for the sole
and exclusive benefit of the Company and the Bid Solicitation Agent, and nothing
in this Bid Solicitation Agreement, express or implied, is intended to confer or
shall be construed as conferring upon any other person any rights, remedies or
any other type or types of benefits.
13. Waiver of Jury Trial. Each of the Company and the Bid
Solicitation Agent hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Bid Solicitation Agreement or the Notes.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Bid
Solicitation Agreement duly executed as of the date first above written.
CALPINE CORPORATION
By: /s/ XXX X. XXXXXX
--------------------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President,
Vice Chairman and Secretary
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Bid Solicitation Agent
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
6
