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Exhibit 1.1
CALPINE CORPORATION
Debt Securities
Preferred Stock
Common Stock
UNDERWRITING AGREEMENT
[ ], 20-
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Calpine Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell from time to time certain of its debt securities (the "DEBT
SECURITIES"), preferred stock, par value $.001 (the "PREFERRED STOCK"), and
common stock, par value $.001 (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 $1,000,000,000,
plus the proceeds from any over-allotment options. The Debt Securities will be
issued under an indenture, dated as of August 10, 2000 (the "INDENTURE"),
between the Company and The Bank of New York, 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
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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. 333-48274), 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,
became and was declared effective under the Securities Act of 1933 (the
"SECURITIES ACT") on ________, 2000. 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
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or the conduct of its business requires such qualification; 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 - 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; 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), the Indenture will have been duly executed and delivered,
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.
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(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 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
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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 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").
(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
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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 Registrations 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, except for the stock dividends that
became effective on June 8, 2000 and November 14, 2000.
(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, and the consummation of the transactions
contemplated by the Company Agreements, 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
(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 (the "PROJECTS") 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,
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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 Credit Suisse First Boston Corporation ("CSFBC") 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 CSFBC determines that such
reduction shall be otherwise than pro rata and so advises the Company. The
Company will advise CSFBC 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 CSFBC 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 CSFBC 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 CSFBC to the Company. Each time for the delivery of and payment
for the Optional Securities, being herein referred to as an "Optional Closing
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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 CSFBC 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 CSFBC 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 check or checks or wire transfer to an
account previously designated by the Company at a bank acceptable to CSFBC, in
each case drawn to the order of Calpine Corporation at the office of Skadden,
Arps, Slate, Meagher & Flom LLP (or such other location as CSFBC 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.
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 CSFBC, subparagraph (5)) not later than the second business day
following the execution and delivery of the Terms Agreement.
(b) The Company will advise CSFBC promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and will
afford CSFBC a reasonable opportunity to comment on any such proposed amendment
or supplement; and the Company will also advise CSFBC 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 CSFBC 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 CSFBC'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.
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(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 CSFBC 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 Term
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 CSFBC 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 CSFBC 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 CSFBC 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 CSFBC 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 CSFBC 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
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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) For a period of 60 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
United States dollar-denominated 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 CSFBC 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 Arthur Andersen 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;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial statements
of the
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Company, 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:
(A) the unaudited financial statements included in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related published Rules and Regulations or any material modifications
should be made to such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(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
(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
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<PAGE> 12
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 its
Subsidiaries taken as one enterprise which, in the judgment of a majority in
interest of the Underwriters including CSFBC, 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 or preferred stock 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 or preferred stock 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 Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including CSFBC, the
effect of any such outbreak, escalation, 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 Covington & Burling, 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;
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(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 and validly issued, 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 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
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 (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; 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 ___ to such
opinion, 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;
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<PAGE> 14
(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 State securities or blue sky
laws and the rules and regulations promulgated under the foregoing;
(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 a 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 a 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 the Prospectus, as
of the date of the Terms
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<PAGE> 15
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 "Description of the Debt Securities," "Certain United States
Federal Income Tax Consequences," "Description of Preferred Stock" and
"Description of Capital Stock," insofar as such statements constitute
summaries of the laws, regulations, legal matters, agreements or other
legal documents referred to therein, fairly summarize and the
descriptions in the Registration Statements and Prospectus of statutes,
legal and governmental proceedings and contracts and other documents
are accurate and fairly present the information required to be shown;
and such counsel do not know of any legal or governmental proceedings
required to be described in a 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 a Registration Statement or the
Prospectus or to be filed as exhibits to a 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 Lisa Bodensteiner, Vice President and General Counsel of the
Company, to the effect that:
(i) Each Subsidiary of the Company (x) other than those
Subsidiaries specified in clause (y) of this Section 5(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 or a limited liability company,
has been duly formed and is validly existing as a limited partnership
or a limited liability company, 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 either 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;
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<PAGE> 16
(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 from the Company's Annual Report on Form 10-K under
"Business - Description of Facilities" conform in all material
respects to the descriptions thereof contained in the Prospectus, and
the statements under the captions "Management", "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 fairly summarize and present the information required to be
shown;
(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
(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 (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. Section292.601(c) or (iii) with respect to each of the
power generation projects in which the Company or its Subsidiaries has
an interest that is "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.
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<PAGE> 17
(f) The Representative shall have received from Skadden,
Arps, Slate, Meagher & Flom 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 60 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 CSFBC.
(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 any 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 Arthur Andersen 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. CSFBC 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
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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 CSFBC 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,
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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, CSFBC 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
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Common Stock) of Offered Securities that the Underwriters are obligated to
purchase on the Closing Date and arrangements satisfactory to CSFBC 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 (iii), (iv) or (v) 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 Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered, telegraphed and confirmed or faxed and confirmed to it at
Calpine Corporation, 50 West San Fernando Street, San Jose, California 95113,
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 7, 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 CSFBC will be binding upon all the Underwriters.
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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.]
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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 several 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.
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself and as the
Representative of the several
Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
Name:
Title:
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