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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
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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
59 Maiden Lane
New York, NY 10038
Attention: Corporate Trust Department
Telephone: (718) 921 8209
Facsimile: (718) 331-1852
If to the Company:
Calpine Corporation
50 West San Fernando Street
San Jose, CA 95113
Attention: General Counsel
Telephone: (408) 792-1226
Facsimile: (408) 794-2434
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
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responsibilities hereunder or otherwise in
connection herewith and shall not be
liable
