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EXHIBIT 1
4,070,000 AMERICAN DEPOSITARY SHARES
EACH REPRESENTING ONE ORDINARY SHARE
INDEPENDENT ENERGY HOLDINGS PLC
UNDERWRITING AGREEMENT
March o, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
PRUDENTIAL SECURITIES
INCORPORATED
▇▇▇▇▇▇▇ RICE & COMPANY L.L.C.
As representatives of the several Underwriters
named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Independent Energy Holdings PLC, an English public limited company (the
"COMPANY"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "UNDERWRITERS"), and certain stockholders of the Company
named in Schedule II hereto (the "SELLING STOCKHOLDERS") severally propose to
sell to the several Underwriters, an aggregate of 4,070,000 ordinary shares,
nominal value 1 p per share ("ORDINARY SHARES"), of the Company, of which
3,200,000 shares are to be issued and sold by the Company and 870,000 shares are
to be sold by the Selling Stockholders, each Selling Stockholder selling the
amount set forth opposite such Selling Stockholder's name in Schedule II hereto.
It is understood that the 4,070,000 Ordinary Shares will be deposited by the
Company and the Selling Stockholders with The Bank of New York, as depositary
(the "DEPOSITARY"), if requested by the Underwriters. Upon deposit of the
Ordinary Shares, and upon appropriate instructions, the Depositary proposes to
issue up to 4,070,000 American Depositary Receipts ("FIRM ADRS") evidencing
American Depositary Shares which represent the 4,070,000 Ordinary Shares, to
the several
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Underwriters. The 4,070,000 American Depositary Shares are hereinafter called
the "FIRM ADSS" and the 4,070,000 Ordinary Shares underlying the Firm ADSs are
referred to herein as "FIRM SHARES".
The Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇, a Selling Stockholder, also severally
propose to sell to the several Underwriters not more than an additional 610,500
Ordinary Shares (the "ADDITIONAL SHARES"), if requested by the Underwriters as
provided in Section 2 hereof. It is understood that the Additional Shares will
be deposited by the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ with the Depositary. Upon deposit
of the Additional Shares with the Depositary, and upon appropriate instructions,
the Depositary proposes to issue up to 610,500 additional ADRs (the "ADDITIONAL
ADRS," and together with the Firm ADRs, the "ADRS") evidencing not more than an
additional 610,500 American Depositary Shares (the "ADDITIONAL ADSS") to the
Underwriters. The Firm ADSs and the Additional ADSs are hereinafter referred to
collectively as the "ADSS". The Firm Shares and the Additional Shares are
hereinafter referred to as the "SHARES". The Company and the Selling
Stockholders are hereinafter sometimes referred to collectively as the
"SELLERS." It is understood that the Shares may be sold in the form of Ordinary
Shares in the United Kingdom or ADRs evidencing ADSs. Unless the context
requires otherwise, references to ADSs shall include any Shares sold in the form
of Ordinary Shares.
The ADRs are issuable in accordance with a Deposit Agreement dated as
of April 17, 1998 (the "DEPOSIT AGREEMENT") among the Company, the Depositary
and all holders from time to time of the ADRs. The ADRs will be issued by the
Depositary to the Underwriters upon deposit of the Shares underlying the ADSs
with the Depositary. Unless the context otherwise requires, references herein to
the ADSs shall include the ADRs evidencing the ADSs.
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form F-3, including a
prospectus, relating to the ADSs. The registration statement, as amended at the
time it became effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is hereinafter referred to as the "REGISTRATION STATEMENT"; and
the prospectus in the form first used to confirm sales of ADSs is hereinafter
referred to as the "PROSPECTUS" (including, in the case of all references to the
Registration Statement and the Prospectus, documents incorporated therein by
reference). If the Company has filed or is required pursuant to the terms hereof
to file a registration statement pursuant to Rule 462(b) under the Act
registering additional
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Ordinary Shares (a "RULE 462(b) REGISTRATION STATEMENT"), then, unless otherwise
specified, any reference herein to the term "Registration Statement" shall be
deemed to include such Rule 462(b) Registration Statement. The Company has also
filed with the Commission in accordance with the provisions of the Act a
registration statement on Form F-6, as amended (the "ADS REGISTRATION
STATEMENT") relating to the ADSs. Unless the context otherwise requires, any
reference herein to the "REGISTRATION STATEMENT" shall include the ADS
Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, (i) the Company agrees to issue and sell
3,200,000 Firm Shares to the several Underwriters and if requested by the
Underwriters, to deposit such 3,200,000 Firm Shares with the Depositary, (ii)
each Selling Stockholder agrees, severally and not jointly, to sell the number
of Firm Shares set forth opposite such Selling Stockholder's name in Schedule II
hereto to the several Underwriters and deposit, if requested, such Firm Shares
with the Depositary, so that, in each case under foregoing clauses (i) and (ii),
the Depositary, upon appropriate instructions, may issue ADRs evidencing the
Firm ADSs to the Underwriters, and (iii) each Underwriter agrees, severally and
not jointly, to purchase from each Seller the number of Firm Shares (subject to
such adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Firm Shares to be sold by such Seller
as the number of Firm Shares set forth opposite the name of such Underwriter in
Schedules I hereto bears to the total number of Firm Shares. In the case of
Shares to be sold in the form of ADSs, the Underwriters agree to purchase such
ADSs at a price per ADS of $o (the "PURCHASE PRICE"). In the case of Shares to
be sold in the form of Ordinary Shares, the Underwriters agree, to procure
subscribers for such Ordinary Shares and failing that, to severally subscribe
and pay for Ordinary Shares at the Purchase Price per Ordinary Share in UK Pound
Sterling equal to (pound)o.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and ▇▇▇▇ ▇.
▇▇▇▇▇▇ agree to sell the Additional Shares and the Underwriters shall have the
right to purchase, severally and not jointly, up to 535,500 Additional Shares
from the Company and up to 75,000 Additional Shares from ▇▇▇▇ ▇. ▇▇▇▇▇▇ to the
extent set forth in Schedule II, in each case at the Purchase Price. In
addition, the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ agree that if so requested by the
Underwriters, to deposit such Additional Shares with the Depositary so that the
Depositary, upon appropriate instructions, may issue ADRs evidencing the
Additional ADSs to the Underwriters and the Underwriters shall have the right to
purchase, severally and not jointly, the Additional Shares, in the form of
Ordinary Shares (on the basis set
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forth above) or ADRs evidencing ADSs, from the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ at the
Purchase Price. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional Shares
in whole or in part from time to time by giving written notice thereof to the
Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ within 30 days after the date of this Agreement. You
shall give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof, which date shall be
a business day (i) no earlier than two business days after such notice has been
given (and, in any event, no earlier than the Closing Date (as hereinafter
defined)) and (ii) no later than ten business days after such notice has been
given. If any Additional Shares are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) which bears the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares. Any election to purchase Additional Shares shall be allocated among
the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ in proportion to the maximum number of Additional
Shares to be sold by each of the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇ as set forth herein.
Each Seller hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any Ordinary Shares, ADSs or ADRs or any
securities convertible into or exercisable or exchangeable for Ordinary Shares,
ADSs or ADRs or (ii) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the ownership of any
Ordinary Shares, ADSs or ADRs (regardless of whether any of the transactions
described in clause (i) or (ii) is to be settled by the delivery of Ordinary
shares, ADSs or ADRs, or such other securities, in cash or otherwise), except to
the Underwriters pursuant to this Agreement, for a period of 90 days after the
date of the Prospectus without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation. Notwithstanding the foregoing, during such
period the Company may issue Ordinary Shares upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and may
grant stock options to purchase Ordinary Shares to employees and consultants of
the Company and its subsidiaries; provided, however, that such options do not
vest within 90 days after the date of the Prospectus. The Company also agrees
not to file any registration statement with respect to any shares of Ordinary
Shares, ADSs or ADRs or any securities convertible into or exercisable or
exchangeable for Ordinary Shares, ADSs or ADRs for a period of 90 days after the
date of the
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Prospectus without the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation; provided, however, that the Company may file and cause
to become effective under the Act one or more registration statements on Form S-
8 or similar form available for use by foreign private issuers relating to the
offer, sale and delivery of Ordinary Shares pursuant to stock options or other
employee benefit plans. In addition, each Selling Stockholder agrees that, for a
period of 90 days after the date of the Prospectus without the prior written
consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, it will not make
any demand for, or exercise any right with respect to, the registration of any
shares of Ordinary Shares, ADSs or ADRs or any securities convertible into or
exercisable or exchangeable for Ordinary Shares, ADSs or ADRs. The Company
shall, prior to or concurrently with the execution of this Agreement, deliver an
agreement executed by each of the directors and officers of the Company who is
not a Selling Stockholder to the effect that such person will not, during the
period commencing on the date such person signs such agreement and ending 90
days after the date of the Prospectus, without the prior written consent of
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, (A) engage in any of the
transactions described in the first sentence of this paragraph or (B) make any
demand for, or exercise any right with respect to, the registration of any
shares of Ordinary Shares, ADSs or ADRs or any securities convertible into or
exercisable or exchangeable for Ordinary Shares, ADSs or ADRs.
SECTION 3. Terms of Public Offering. The Sellers are advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the ADSs and Shares, as the case may be, as soon after the execution
and delivery of this Agreement as in your judgment is advisable and (ii)
initially to offer the ADSs and Shares, as the case may be, upon the terms set
forth in the Prospectus.
SECTION 4. Delivery and Payment. Payment for the ADSs shall be made by
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation on behalf of the several
Underwriters in U.S. dollars (in the case of Shares to be sold in the form of
Ordinary Shares, in UK Pound Sterling) to the Sellers (such payment being
received by the Sellers in satisfaction for the purchase price of the Shares) by
wire transfer in same day funds on the Closing Date or the applicable Option
Closing Date, as the case may be, against, in the case of Shares being sold in
the form of Ordinary Shares, delivery of such Shares as directed by the
Underwriters, and the Company procuring that the relevant number of Shares to be
sold in the form of Ordinary Shares to be issued in uncertificated form are
credited by the registrar of the Shares to a CREST stock account of ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation notified to the Company by ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation who will hold such Shares on behalf of
the subscribers of such Shares, in the proportions or otherwise as directed by
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
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Securities Corporation and the Company procuring that such registrar shall
register the relevant holders of such Shares in the register of members of the
Company, and, in the case of Shares being sold in the form of ADSs, deposit of
the Ordinary Shares underlying such ADSs with the London office of The Bank of
New York, as custodian for the Depositary (the "CUSTODIAN"), instruction by the
Custodian to the Depositary to issue such ADSs and delivery of ADRs evidencing
all such ADSs. The ADRs shall be in definitive form and shall be in such names
and in such denominations as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
shall request not later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), with any transfer or other
taxes and stamp duty or stamp duty reserve tax payable in connection with the
sale of the Shares or deposit by the Company of the Shares with the Depositary
or the Custodian against the issuance of ADRs evidencing ADSs duly paid. The
certificates for the ADRs will be made available for inspection and packaging
not later than 8:00 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The time
and date of delivery of the ADSs and Ordinary Shares shall be on or before 8:00
A.M., New York City time, on March o, 2000 or such other time on the same or
such other date as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and the
Company shall agree in writing. The time and date of delivery and payment for
the ADSs and Ordinary Shares are hereinafter referred to as the "CLOSING DATE."
The time and date of delivery and payment for any Additional Shares to be
purchased by the Underwriters shall be 8:00 A.M., New York City time, on the
date specified in the applicable exercise notice given to you pursuant to
Section 2 hereof or such other time on the same or such other date as ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and the Company shall agree in writing.
The time and date of delivery and payment for any Additional Shares are
hereinafter referred to as an "OPTION CLOSING DATE".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) of any request by the Commission
for amendments to the Registration Statement or the ADS Registration
Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the ADS Registration Statement or of the suspension of qualification
of the
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ADSs for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, (iii) when any amendment to the
Registration Statement or the ADS Registration Statement becomes
effective, (iv) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, when
the Rule 462(b) Registration Statement has become effective and (v) of
the happening of any event during the period referred to in Section
5(d) below which makes any statement of a material fact made in the
Registration Statement or the ADS Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the ADS Registration Statement or the
Prospectus in order to make the statements therein not misleading. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will use its
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you four signed copies of the Registration
Statement and the ADS Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits and four
conformed copies of the documents incorporated by reference thereto,
and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed
and of each amendment to it, without exhibits, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which
shall be satisfactory to you, and to file the Prospectus in such form
with the Commission within the applicable period specified in Rule
424(b) under the Act; during the period specified in Section 5(d)
below, not to file any further amendment to the Registration Statement
and the ADS Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have
been advised or to which you shall reasonably object after being so
advised; and, during such period, to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement and the ADS Registration Statement or amendment
or supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the ADSs by you, and to use its
best efforts to cause any such amendment to the Registration Statement
and the ADS Registration Statement to become promptly effective.
(d) Promptly after the execution of this Agreement and from
time to time thereafter for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection
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with sales by an Underwriter or a dealer, to furnish in New York City
to each Underwriter and any dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the
opinion of counsel for the Underwriters, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with applicable law,
and to furnish to each Underwriter and to any dealer as many copies
thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the ADSs, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the ADSs for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request, to continue such
registration or qualification in effect so long as required for
distribution of the ADSs and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company
shall not be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or
to take any action that would subject it to general consent to service
of process or taxation other than as to matters and transactions
relating to the Prospectus, the Registration Statement, the ADS
Registration Statement, any preliminary prospectus or the offering or
sale of the ADSs, in any jurisdiction in which it is not now so
subject.
(g) To mail and make generally available to its stockholders
as soon as practicable an earnings statement covering the twelve-month
period beginning after the effective date of the Registration Statement
that shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
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(h) Prior to the Closing Date or the Option Closing Date, as
the case may be, to make Ordinary Shares available to the Depositary in
accordance with the provisions of the Deposit Agreement, and otherwise
to comply with the Deposit Agreement so that ADRs evidencing ADSs will
be executed (and, if applicable, countersigned) and issued by the
Depositary against receipt of such Ordinary Shares and delivered to the
Underwriters at such Closing Date.
(i) During the period of three years after the date of this
Agreement, to furnish to you as soon as available copies of all reports
or other communications furnished to the record holders of Ordinary
Shares or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed and such other publicly available information concerning the
Company and its subsidiaries as you may reasonably request.
(j) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of the
Sellers' obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's
accountants and any Selling Stockholder's counsel (in addition to the
Company's counsel) in connection with the registration and delivery of
the Shares and the ADSs under the Act and all other fees and expenses
in connection with the preparation, printing, filing and distribution
of the Registration Statement (including financial statements and
exhibits), the ADS Registration Statement, any preliminary prospectus,
the Prospectus and all amendments and supplements to any of the
foregoing, including the mailing and delivering of copies thereof to
the Underwriters and dealers in the quantities specified herein, (ii)
all costs and expenses related to the transfer and delivery of the ADSs
and Ordinary Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) all costs of printing or producing
this Agreement and any other agreements or documents in connection with
the offering, purchase, sale or delivery of the ADSs and Ordinary
Shares, (iv) all expenses, if any, in connection with the registration
or qualification of the Shares and the ADSs for offer and sale under
the securities or Blue Sky laws of the several states and all costs of
printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees
and disbursements of counsel for the Underwriters in connection with
such registration or qualification and memoranda relating thereto), (v)
the filing fees and disbursements of counsel for the Underwriters in
connection with the review and clearance of the offering of the ADSs
and Ordinary Shares
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by the National Association of Securities Dealers, Inc., (vi) all costs
and expenses incident to the supplemental listing of the ADSs on the
Nasdaq National Market and the supplemental listing of the Ordinary
Shares on the London Stock Exchange ("LSE"), (vii) the cost of printing
certificates if any representing Ordinary Shares and ADR certificates
representing the ADSs, (viii) the costs and charges if any of
depositing Ordinary Shares under the Deposit Agreement against issuance
of ADRs evidencing the ADSs, (ix) the fees and expenses (including fees
and disbursements of counsel), if any, of the Depositary and any
custodian appointed under the Deposit Agreement, (x) the cost and
charges of any transfer agent or registrar, (xi) all stamp duty or
stamp duty reserve tax arising as a result of sale of the Shares or
deposit of the Shares with the Depositary, (xii) the costs and expenses
of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the ADSs
and Ordinary Shares, and (xiii) all other costs and expenses incident
to the performance of the obligations of the Company and the Selling
Stockholders hereunder for which provision is not otherwise made in
this Section 5(j). The provisions of this section shall not supercede
or otherwise affect any agreement that the Company and the Selling
Stockholders may otherwise have for allocation of such expenses among
themselves. Except as expressly otherwise provided in this Section 5 or
in Section 8 of this Agreement, the Underwriters shall pay all of their
own costs, expenses, fees and taxes incurred in connection with the
offer, sale and delivery of the ADSs and Ordinary Shares, including the
costs and expenses of the Underwriters relating to investor
presentations on the "road show" described in the preceding sentence,
the fees and expenses of their counsel and any advertising expenses
incurred by them; provided, however, that the cost of any aircraft
chartered in connection with the "road show" shall be paid one-half by
the Company and one-half by the Underwriters.
(k) To use its best efforts to list for quotation, subject to
notice of issuance, the ADSs on the Nasdaq National Market and to
maintain the listing of the ADSs on the Nasdaq National Market for a
period of three years after the date of this Agreement.
(l) To use its best efforts to list for quotation, subject to
notice of issuance, the Ordinary Shares on the LSE and to maintain the
listing of the Ordinary Shares on the LSE for a period of three years
after the date of this Agreement.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company
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prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the
ADSs.
(n) To designate CT Corporation System, New York, New York, a
Delaware corporation, as the Company's authorized agent for service of
process, upon which process may be served in any action, suit or
proceeding which may be instituted in any state or federal court in the
State of New York by the Underwriters or person controlling the
Underwriters asserting a claim for indemnification or contribution
under or pursuant to Section 8 hereof, and the Company will accept the
jurisdiction of such court in such action, and waive, to the fullest
extent permitted by applicable law, any defense based upon lack of
personal jurisdiction or venue. A copy of any such process shall be
sent or given to the Company at the address for notices specified in
Section 12 hereof.
(o) To use the proceeds from the offering in a manner
consistent with the terms of the agreement dated March 6, 2000 among
Barclays Bank PLC, Independent Energy UK Limited, Independent Energy
Holdings PLC and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇, Inc.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each of the Registration Statement and the ADS
Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement or the ADS
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the
applicable rules and regulations thereunder, (ii) each of the
Registration Statement and the ADS Registration Statement, when it
became effective, did not contain and, as amended, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each of the Registration
Statement, the ADS Registration Statement and the Prospectus comply as
to form and, as amended or supplemented, if applicable, will comply as
to form in all material respects with the Act and (iv) the Prospectus
does not contain and, as amended or supplemented, if
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applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement, the ADS Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for
use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a limited company under the
laws of England and Wales, with the corporate power and authority to
carry on its business and to own, lease and operate its properties as
described in the Prospectus and each is duly qualified as a foreign
corporation authorized to do business and is in good standing in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
(e) The authorized share capital of the Company conforms as to
legal matters in all material respects to the description thereof set
forth in the Registration Statement and the Prospectus, and all of the
issued and outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been
duly authorized and validly issued, and are fully-paid and not subject
to calls for further funds and are not subject to any pre-emptive or
similar rights; and, except as described in the Prospectus, there are
no outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity
interest in the Company or any of its subsidiaries, or
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any contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the Company
or any such subsidiary, any such convertible or exchangeable securities
or any such rights, warrants or option.
(f) All of the outstanding shares of capital stock of each of
the Company's subsidiaries have been authorized and validly issued and
are fully paid and not subject to calls for further funds, and are
owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature, except for security
existing pursuant to the Company's outstanding credit facility with
Barclays Bank PLC.
(g) The Shares to be sold by the Company have been duly
authorized, and, when delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be duly issued and
fully paid and not subject to calls for further funds and will conform
in all material respects to the descriptions thereof in the Prospectus,
and the issuance of such Shares is not subject to any preemptive or
similar right that has not been duly and validly waived.
(h) Upon the deposit of the Shares to be sold by the Company
with the Custodian pursuant to the Deposit Agreement against issuance
of the ADRs evidencing the ADSs, all right, title and interest in such
Shares, subject to the Deposit Agreement, will be transferred to the
Depositary free and clear of all liens, encumbrances or claims.
(i) Upon the sale and delivery of the Shares to be sold by the
Company and payment therefor against deposit thereof with the Custodian
and delivery of ADRs evidencing all such ADSs by the Depositary as
contemplated by this Agreement and in accordance with the terms of the
Deposit Agreement, good and valid title to the ADSs representing such
Shares, free and clear of all liens, encumbrances or claims, will be
transferred to the Underwriters and the ADSs to be delivered hereunder
will be freely transferable to or for the account of the several
Underwriters; upon delivery by the Depositary of the ADRs evidencing
the ADSs against deposit of the Shares in accordance with the Deposit
Agreement, the ADSs will be duly and validly issued; the ADSs and the
ADRs conform as to legal matters in all material respects to the
description thereof set forth in the Registration Statement and the
Prospectus.
(j) Neither the Company nor any of its subsidiaries is in
violation of its respective Memorandum or Articles of Association or in
default in
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the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this Agreement
and the Deposit Agreement by the Company, the compliance by the Company
with all the provisions hereof and of the Deposit Agreement and the
consummation of the transactions contemplated hereby and thereby will
not (i) require any consent, approval, authorization or other order of,
or qualification with, any court or governmental body or agency (except
orders of the Commission declaring the Registration Statement and the
ADS Registration Statement effective under the Act and such as may be
required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the Memorandum or Articles of
Association of the Company or any of its subsidiaries or any indenture,
loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective property or (iv) result in the
suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization.
(l) The information underlying the estimates of the net proved
reserves of natural gas of the Company and the present value of the
future net cash flows therefrom, which was supplied by the Company to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Associates, independent petroleum consultants, for
purposes of preparing the reserve reports and estimates of the Company
described in the Prospectus, was supplied in accordance with customary
industry practices; ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Associates were, as of the date of
the reserve report, and are, as of the date hereof, independent
petroleum consultants with respect to the Company; other than as set
forth or contemplated in the Prospectus, the Company is not aware of
any facts or circumstances that would result in a material adverse
change in the reserves or the present value of future net cash flows
therefrom as described in the Prospectus and as reflected in the
reserve report.
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(m) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement, the ADS Registration Statement
or the Prospectus and are not so described; nor are there any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement, the ADS Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not so described or filed as required.
(n) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("ENVIRONMENTAL LAWS"), the protection of
human health and safety, or the U.S. Foreign Corrupt Practices Act, as
amended (the "FCPA") or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company
and its subsidiaries, taken as a whole.
(o) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with
and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, as
are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole. Each such
Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to
the Company or any of its subsidiaries; except where such
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failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any
such restriction would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole.
(q) This Agreement has been duly authorized, executed and
delivered by the Company.
(r) The Deposit Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(s) ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, chartered accountants, are
independent public accountants with respect to the Company and its
subsidiaries as required by the Act.
(t) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on
the basis stated therein at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles in the U.K. consistently applied and reconciled
to the generally accepted accounting principles in the United States;
the supporting schedules, if any, included in the Registration
Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein;
and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
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supplement thereto) are, in all material respects, accurately presented
and prepared.
(u) The Company is not and, after immediately giving effect to
the offering and sale of the ADSs and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(v) 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 Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares and ADSs registered pursuant to
the Registration Statement.
(w) Since the respective dates as of which information is
given in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), (i) there has not
occurred any material adverse change or any development involving a
prospective material adverse change in the condition, financial or
otherwise, or the results of operations, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii)
there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or
in the long-term debt of the Company or any of its subsidiaries and
(iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, except for
contracts entered into in the ordinary course of business.
(x) The Company has filed a supplemental application to list
the ADSs on the Nasdaq National Market and a supplemental application
to list the Ordinary Shares on the LSE.
(y) The form of certificate for the Shares conforms to the
requirements of U.K. law and the Memorandum and Articles of Association
of the Company and the ADSs and the ADRs conform to the requirements of
the Deposit Agreement and the Nasdaq National Market.
(z) Other than as set forth or contemplated in the Prospectus,
no ad valorem stamp duty, stamp duty reserve tax or issue, documentary,
certification or other similar tax imposed by any government department
or other taxing authority of or in the U.K. is payable in connection
with (A)
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the deposit with the Depositary or the Custodian of the Shares to be
sold by the Company against the issuance of the ADRs evidencing ADSs in
accordance with the Deposit Agreement, (B) the issue of the ADRs
evidencing ADSs by the Depositary to or for the respective accounts of
the Underwriters, in accordance with the terms of this Agreement or (C)
the sale by the Underwriters of the Shares (in the form of Ordinary
Shares or ADSs) to the initial purchasers thereof, in accordance with
the terms of this Agreement and in the manner contemplated in the
Prospectus.
(aa) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(bb) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with UK GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(cc) Neither the Company nor any of its subsidiaries nor any
person acting on its or their behalf has taken, directly or indirectly,
any action which caused or resulted, or was designed or might
reasonably be expected to cause or result in, the stabilization or
manipulation of the price of the Ordinary Shares to facilitate the sale
or resale of the Shares or ADSs.
SECTION 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement and
has, and on the Closing Date will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever;
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(b) The Shares to be sold by such Selling Stockholder have
been duly authorized and, are validly issued, fully paid and not
subject to calls for further funds;
(c) Such Selling Stockholder has, and on the Closing Date will
have, full legal right and power, and all authorization and approval
required by law (including without limitation any spousal consent
necessary), to enter into this Agreement, the Custody Agreement signed
by such Selling Stockholder and The Bank of New York, as Custodian,
relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such
Selling Stockholder appointing certain individuals as such Selling
Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set
forth therein, relating to the transactions contemplated hereby and by
the Registration Statement and the Custody Agreement (the "POWER OF
ATTORNEY") and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder in the manner provided herein and
therein.
(d) This Agreement has been duly executed and delivered and,
in the case of non-individual Selling Stockholders, duly authorized, by
or on behalf of each such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been
duly executed and delivered and, in the case of non-individual Selling
Stockholders, duly authorized, by each such Selling Stockholder and is
a valid and binding agreement of such Selling Stockholder, enforceable
in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been
duly executed and delivered and, in the case of non-individual Selling
Stockholders, duly authorized, by each such Selling Stockholder and is
a valid and binding instrument of such Selling Stockholder, enforceable
in accordance with its terms, and, pursuant to such Power of Attorney,
such Selling Stockholder has, among other things, authorized the
Attorneys, or any one of them, to execute and deliver on such Selling
Stockholder's behalf this Agreement and any other document that they,
or any one of them, may deem necessary or desirable in connection with
the transactions contemplated hereby and thereby and to deliver the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement.
(g) Upon the deposit of the Shares to be sold by each of the
Selling Stockholders with the Custodian pursuant to the Deposit
Agreement against issuance of the ADRs evidencing the ADSs, all right,
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title and interest in such Shares, subject to the Deposit Agreement,
will be transferred to the Depositary free and clear of all liens,
encumbrances or claims.
(h) Upon the sale and delivery of the Shares to be sold by
each of the Selling Stockholders and payment therefor against deposit
thereof with the Custodian and delivery of ADRs evidencing all such
ADSs by the Depositary as contemplated by this Agreement and in
accordance with the terms of the Deposit Agreement, good and valid
title to the ADSs representing such Shares, free and clear of all
liens, encumbrances or claims, will be transferred to the Underwriters
and the ADSs to be delivered by each of the Selling Stockholders will
be freely transferable to or for the account of the several
Underwriters.
(i) Upon the sale and delivery of the Shares to be sold by
each of the Selling Stockholders in the form of Ordinary Shares and
payment therefor as contemplated by this Agreement, good and valid
title to the Shares, free and clear of all liens, encumbrances or
claims, will be transferred to the Underwriters and the Shares to be
delivered by each of the Selling Stockholders will be freely
transferable to or for the account of the several Underwriters.
(j) The execution, delivery and performance of this Agreement
and the Custody Agreement and Power of Attorney of such Selling
Stockholder by or on behalf of such Selling Stockholder, the compliance
by such Selling Stockholder with all the provisions hereof and thereof
and the consummation of the transactions contemplated hereby and
thereby will not (i) require any consent, including any spousal
consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such
Selling Stockholder, if such Selling Stockholder is not an individual,
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder or any property of such Selling Stockholder is
bound or (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or any
property of such Selling Stockholder.
(k) The information in the Registration Statement under the
caption "Principal and Selling Stockholders" which specifically relates
to
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such Selling Stockholder does not, and will not on the Closing Date,
contain 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, in the light of the circumstances under which they
were made, not misleading.
(l) At any time during the period described in Section 5(d),
if there is any change in the information referred to in Section 7(j),
such Selling Stockholder will immediately notify you of such change.
(m) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by
such Selling Stockholder to the Underwriters as to the matters covered
thereby.
(n) Other than as set forth or contemplated in the Prospectus,
no ad valorem stamp duty, stamp duty reserve tax or issue, documentary,
certification or other similar tax imposed by any government department
or other taxing authority of or in the U.K. is payable in connection
with (A) the deposit with the Depositary or the Custodian of the Shares
to be sold by each of the Selling Stockholders against the issuance of
the ADRs evidencing ADSs in accordance with the Deposit Agreement, (B)
the issue of the ADRs evidencing ADSs by the Depositary to or for the
respective accounts of the Underwriters, in accordance with the terms
of this Agreement or (C) the sale by the Underwriters of the Shares (in
the form of Ordinary Shares or ADSs) to the initial purchasers thereof,
in accordance with the terms of this Agreement and in the manner
contemplated in the Prospectus.
(o) Neither the Selling Stockholders nor any person acting on
its or their behalf has taken, directly or indirectly, any action which
caused or resulted, or was designed or might reasonably be expected to
cause or result in, the stabilization or manipulation of the price of
the Ordinary Shares to facilitate the sale or resale of the Shares or
ADSs, except in the case of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
("DLJ INTERNATIONAL") as may be permitted under the applicable US
securities laws.
SECTION 8. Indemnification. (a) The Sellers, jointly and severally,
agree to indemnify and hold harmless each Underwriter, its directors, its
officers and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
legal or other expenses
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incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus (as then
amended or supplemented, provided by the Company to the several Underwriters in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims, damages
and liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in such Prospectus and such Prospectus was required by law to
be delivered at or prior to the written confirmation of sale to such person.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to this Section 8(a) shall be limited to an amount equal to
the total proceeds (before deducting underwriting discounts and commissions and
expenses) received by such Selling Stockholder from the Underwriters for the
sale of the ADSs sold by such Selling Stockholder hereunder.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Sellers to such Underwriter
but only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
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"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the reasonable fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) for all Underwriters, their
officers and directors and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and all persons, if any, who control the Company
within the meaning of either such Section and (iii) the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in writing by
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. In the case of any such
separate firm for the Company and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Stockholders and such control
persons of any Selling
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24
Stockholders, such firm shall be designated in writing by the Attorneys. The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been 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 the indemnified party.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the offering
of the ADSs or (ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the
relative fault of the Sellers on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Sellers on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions but before deducting expenses) received
by the Sellers, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the ADSs, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a
24
25
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the ADSs 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective number
of ADSs purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the ADSs under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
(b) The Registration Statement shall have become effective not
later than 5:00 P.M., New York City time, on the date of this Agreement
or at such later date and time as you may approve; and no stop order
suspending the effectiveness of the Registration Statement shall have
been
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26
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, in their capacities as the Non-Executive Chairman and
Chief Executive Officer of the Company, confirming the matters set
forth in Sections 6(u), 6(w), 9(a) and 9(b) and that the Company has
complied with all of the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change
or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii)
there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor
any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause 9(d)(i), 9(d)(ii) or 9(d)(iii), in your judgment,
is material and adverse and, in your judgment, makes it impracticable
to market the ADSs and the Ordinary Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct on
the Closing Date with the same force and effect as if made on and as of
the Closing Date and you shall have received on the Closing Date a
certificate dated the Closing Date from each Selling Stockholder to
such effect and to the effect that such Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied by such
Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Masons, English counsel for the Company, to the effect
that:
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27
(i) each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a public limited
company, in the case of the Company, and a limited company, in
the case of its subsidiaries, under the laws of England and
Wales and has the power under its Memorandum and Articles of
Association to carry on its business and to own, lease and
operate its properties as described in the Prospectus;
(ii) all the issued shares of the Company (including
the shares to be sold by the Selling Stockholders) have been
duly authorized and validly issued and are fully paid and not
subject to calls for further funds, or subject to any
preemptive or similar rights under the Company's Memorandum or
Articles of Association or English law, and no partner of
Masons has any actual knowledge of any agreement or contract
entered into by the Company which may subject the issued
shares to any such preemptive or similar rights;
(iii) the Shares to be sold by the Company have been
duly authorized, and, when delivered to and paid for by the
Underwriters, in accordance with the terms of this Agreement,
will be duly issued and fully paid and not subject to calls
for further funds and will conform to the description thereof
in the Prospectus; and the issuance of such Shares is not
subject to any preemptive or similar right that has not been
duly and validly waived;
(iv) upon the deposit of the Shares to be sold by the
Company with the Custodian and the registration in the
register of members of the Company of the Shares underlying
the ADSs (not including the Shares to be sold by the Selling
Stockholders which are addressed in a separate opinion) in the
name of the Custodian pursuant to the Deposit Agreement, all
legal right, title and interest in such Shares, subject to the
Deposit Agreement, will vest in the Custodian, free and clear
of all equitable liens, encumbrances or claims;
(v) all of the issued shares of each of the Company's
subsidiaries have been duly authorized and validly issued and
are fully paid, and are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse
interest of a security nature which are registrable as charges
pursuant to the English Companies Act of 1985, other than
security in favor of Barclays Bank plc granted by the Company
or its subsidiaries over its assets;
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28
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding agreement of the Company enforceable in accordance
with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally, (ii) the availability of
equitable remedies may be limited by equitable principles of
general applicability and (iii) claims may be barred by
relevant limitations relating to effluxion of time or may be
subject to defenses of set off or counterclaim;
(viii) the authorized share capital of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(ix) the statements identified in the attached
extracted sections from (A) the Prospectus under the captions
"Description of Share Capital" and "Taxation" and certain
other sections and (B) Item 14 of Part II of the Registration
Statement, in each case insofar as such statements are of
English law or the Memorandum and Articles of Association of
the Company, are accurate;
(x) no partner of Masons has actual knowledge of the
Company or any of its subsidiaries being in violation of its
respective Memorandum or Articles of Association, except that
such counsel expresses no opinion with respect to Article 107
of the Articles of Association of the Company and, Masons has
received a certificate from the Company, attached hereto as
Exhibit A, stating that neither the Company nor any of its
subsidiaries is in default in the performance of any agreement
that is filed as an exhibit to the Registration Statement;
(xi) the execution, delivery and performance of this
Agreement and the Deposit Agreement by the Company, the
compliance by the Company with all the provisions hereof and
of the Deposit Agreement and the consummation of the
transactions contemplated hereby and thereby will not (A)
require any consent, approval, authorization or other order
of, or qualification with, any U.K. court or governmental body
or agency, (B) conflict with or constitute a breach of any of
the terms or provisions of, or a default
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29
under, the Memorandum or Articles of Association of the
Company or any of its subsidiaries or any agreement that is
filed as an exhibit to the Registration Statement, or (C)
violate or conflict with any applicable law affecting the
Company, any of its subsidiaries or their respective property;
(xii) no partner of Masons has actual knowledge of
any legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could
be subject which, if determined adversely to the Company or
any such subsidiary could individually or in the aggregate be
expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(xiii) in order to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement
and the Deposit Agreement in England, it is not necessary that
any document be filed, recorded or enrolled with any public
authority, governmental agency or governmental department of
England;
(xiv) the Company has the power to submit and has
taken all necessary corporate action to submit, to the
non-exclusive jurisdiction of any United States Federal or
state court in the County of New York, State of New York and
to appoint CT Corporation System as the authorized agent of
the Company, in each case with respect to legal proceedings in
the United States; and there is no provision of English law
which would render service of process invalid with respect to
legal proceedings in the United States;
(xv) the Company can ▇▇▇ and be sued under its own
name in England and Wales;
(xvi) under the laws of England and under current
practice of courts in England, (A) the Underwriters would be
permitted to commence proceedings against the Company in
English courts based on actions under this Agreement, (B) the
Depositary would be permitted to commence proceedings against
the Company in English courts based on actions under the
Deposit Agreement, (C) the owners of ADSs issued under the
Deposit Agreement would be permitted to commence proceedings
against the Company in English courts based on actions under
the Deposit Agreement and
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30
(D) such courts in England would accept jurisdiction over any
such action or proceedings, subject to any application being
made by the Company to stay proceedings on the grounds of
forum non-conveniens;
(xvii) under the laws of England, the choice of the
law of the State of New York as the law expressed to govern
this Agreement and the Deposit Agreement is valid and binding
on the Company and the courts of England will give effect to
each such choice of law upon proof of the relevant provisions
of such foreign laws, subject, however, to the qualification
that foreign laws will not be applied to the extent contrary
to English public policy; any judgment obtained in a New York
court arising out of or based upon this Agreement that is for
a definite sum of money, is given on the merits and is
recognized as final and conclusive would be enforceable
against the Company in the courts of England, provided that:
(A) the judgment was not obtained by fraud, (B) recognition or
enforcement of the judgment is not contrary to English public
policy or in breach of the rules of natural justice, and is
not contrary to the provisions of the Protection of Trading
Interests Act 1980, (C) the judgment does not cover matters
which relate to issues raised in proceedings in England or
which have previously been determined by an English court, and
(D) the judgment does not determine the proprietary or
possessory rights in immovable property situated outside the
State of New York.
(xviii) except as may be described in the Prospectus
under the heading "Taxation", under the laws of England, cash
dividends and other distributions declared and payable in
English sterling may be converted into any other convertible
currency in England and may be transferred from England, and
all such dividends made to holders of the ADSs who are
non-residents of England may be made without the necessity of
obtaining any consents, approvals, authorizations, orders or
clearances from or registering with any English governmental
agency or body or any stock exchange authority;
(xix) other than as set forth or contemplated in the
Prospectus, no ad valorem stamp duty, stamp duty reserve tax
or issue, documentary, certification or other similar tax
imposed by any government department or other taxing authority
of or in the U.K. is payable in connection with (A) the
deposit with the Depositary or the Custodian of the Shares
against the issuance of
30
31
the ADRs evidencing ADSs in accordance with the Deposit
Agreement, (B) the issue of the ADRs evidencing ADSs by the
Depositary to or for the account of the Underwriters in
accordance with the terms of this Agreement or (C) the sale by
the Underwriters of the Shares (in the form of Ordinary Shares
or ADSs) to the initial purchasers thereof in accordance with
the terms of this Agreement and in the manner contemplated in
the Prospectus.
In giving such opinion, such counsel will state that it has not
investigated the laws of any jurisdiction other than England and the European
Union as it applies in the U.K. as they stand and have been interpreted in
published case law of the courts in England and of the European Union as of the
date of such opinion, and that it does not express or imply an opinion on the
laws of any other jurisdiction.
(g) The Underwriters shall have received on the Closing Date
an opinion of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., U.S. counsel
for the Company, dated the Closing Date, substantially in the form
attached hereto as Exhibit A.
(h) You shall have received an opinion on the Closing Date,
dated the Closing Date, of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.,
U.S. counsel for the Selling Stockholders to the effect set forth
below:
(i) this Agreement has been duly executed and
delivered and, in the case of non-individual Selling
Stockholders, duly authorized, by or on behalf of each such
Selling Stockholder;
(ii) pursuant to the Custody Agreement between each
Selling Stockholder and the Custodian, the Custodian's nominee
is the record holder, on behalf of each Selling Stockholder,
of the Shares to be sold by such Selling Stockholder pursuant
to this Agreement;
(iii) each Selling Stockholder, who is resident in
the U.S., has the legal right, to enter into this Agreement
and the Custody Agreement and the Power of Attorney of each
such Selling Stockholder and to sell, assign, transfer and
deliver the Shares to be sold by each such Selling Stockholder
in the manner provided herein and therein;
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32
(iv) the Custody Agreement of each of the Selling
Stockholders has been duly executed and delivered and, in the
case of non-individual Selling Stockholders, duly authorized,
by each such Selling Stockholder and is a valid and binding
agreement of each such Selling Stockholder, enforceable in
accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(v) the Power of Attorney of each of the Selling
Stockholders has been duly executed and delivered and, in the
case of non-individual Selling Stockholders, duly authorized,
by each such Selling Stockholder and is a valid and binding
instrument of each such Selling Stockholder, enforceable in
accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability, and, pursuant to such
Power of Attorney, each such Selling Stockholder has, among
other things, authorized the Attorneys, or any one of them, to
execute and deliver on such Selling Stockholder's behalf this
Agreement and any other document they, or any one of them, may
deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver
the Shares to be sold by such Selling Stockholder pursuant to
this Agreement;
(vi) upon deposit of the Shares to be sold by the
Selling Stockholders with the Depositary pursuant to the
Deposit Agreement, and compliance with the terms of the
Deposit Agreement by the Depositary, any action based on an
adverse claim to such Shares, whether framed in conversion,
replevin, constructive trust, equitable lien or other theory,
may not be asserted successfully against the Depositary with
respect to any Shares to which the Depositary acquires a
security entitlement;
(vii) upon the sale and delivery of the Shares to be
sold by each of the Selling Stockholders in the form of
Ordinary Shares and against payment therefor by the
Underwriters as contemplated by this Agreement, under the
United States federal law and the laws of the State of New
York, any action based on an adverse claim to such Shares,
whether framed in conversion, replevin, constructive trust,
equitable lien or other theory, may not be asserted
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33
successfully against either ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation ("DLJ SECURITIES CORP.") or ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ International ("DLJ INTERNATIONAL") with
respect to any Shares to which either DLJ Securities Corp. or
DLJ International acquires a security entitlement;
(viii) the execution, delivery and performance of
this Agreement and the Custody Agreement and Power of Attorney
of each Selling Stockholder by such Selling Stockholder, the
compliance by such Selling Stockholder with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any
consent, including any spousal consent, approval,
authorization or other order of, or qualification with, any
court or governmental body or agency of the United States
federal government or the government of the State of New York
(except such as may be required under the securities or Blue
Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual,
any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which such Selling Stockholder is a
party or by which any property of such Selling Stockholder is
bound or (C) violate or conflict with any United States
federal law or the laws of the State of New York, or to such
counsel's knowledge, any statute, or order, rule or regulation
of any court or any governmental body or agency of the United
States federal government or the government of the State of
New York having jurisdiction over the Company; and
(ix) Under the laws of the State of New York relating
to submission of personal jurisdiction, each Selling
Stockholder who is not a resident of the United States,
pursuant to Section 11 of the Agreement, has validly and
irrevocably submitted to the personal jurisdiction of any
state or federal court in the County of New York, the State of
New York, in any action arising out of or based upon the
Agreement or the transactions contemplated thereby, has
validly and irrevocably waived any objection to the venue of a
proceeding in any such court and any immunity to jurisdiction
of any such court, to which it may be or become entitled, and
has validly and irrevocably appointed CT Corporation System as
its authorized agent for the purposes described in Section 11
of the Agreement.
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34
With respect to Section 9(h) above, Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P., may rely upon an opinion or opinions of counsel for any Selling
Stockholders; provided that (A) each such counsel for the Selling Stockholders
is satisfactory to your counsel, (B) a copy of each opinion so relied upon is
delivered to you and is in form and substance satisfactory to your counsel and
(C) Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., shall state in their opinions
that they are justified in relying on each such other opinion.
(i) You shall have received an opinion on the Closing Date,
dated the Closing Date, of Masons, English counsel for the Selling
Stockholders to the effect set forth below:
(i) Assuming the Underwriters are bona fide
purchasers for value and the Underwriters (and any nominees
therefor) are without notice (actual or constructive) of any
prior equitable or legal interest and that the relationship of
the Custodian to the Underwriters is that of nominee for
purposes of holding its Shares, subject to the terms of this
Agreement, upon the deposit of the Shares to be sold by the
Selling Stockholders with the Custodian together with the
transfer form duly signed and stamped and the registration in
the register of members of the Company of such Shares
underlying the ADSs in the name of the Custodian pursuant to
the Deposit Agreement, all legal right, title and interest in
such Shares will vest in the Custodian, free and clear of all
equitable liens, encumbrances or claims;
(ii) Assuming the Underwriters are bona fide
purchasers for value and the Underwriters (and any nominees
therefor) are without notice (actual or constructive) of any
prior equitable or legal interest, subject to the terms of
this Agreement, upon the sale and delivery of the Shares (in
the form of certificates or through CREST) to be sold by the
Selling Stockholders in the form of Ordinary Shares, and the
transfer form duly signed and stamped and the registration of
the Underwriters (or their nominees) in the register of
members of the Company, all legal right, title and interest in
such Shares will be transferred to the Underwriters, free and
clear of all equitable liens, encumbrances or claims;
(iii) each Selling Stockholder who is a resident of
the United Kingdom has the power to submit and has taken all
necessary corporate action to submit, to the non-exclusive
jurisdiction of any United States Federal or state court in
the
34
▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ and to appoint CT
Corporation System as the authorized agent of such Selling
Stockholder, in each case with respect to legal proceedings in
the United States; and there is no provision of English law
which would render service of process invalid with respect to
legal proceedings in the United States;
(iv) each Selling Stockholder, who is resident in the
United Kingdom, has the legal right, to enter into this
Agreement and the Custody Agreement and the Power of Attorney
of each such Selling Stockholder and to sell, assign, transfer
and deliver the Shares to be sold by each such Selling
Stockholder in the manner provided herein and therein;
(v) under the laws of England and under current
practice of courts in England, (A) the Underwriters would be
permitted to commence proceedings against each Selling
Stockholder who is a resident of the United Kingdom in English
courts based on actions under this Agreement and (B) such
courts in England would accept jurisdiction over any such
action or proceedings, subject to any application being made
by any such Selling Stockholder to stay proceedings on the
grounds of forum non-conveniens;
(vi) under the laws of England, the choice of the law
of the State of New York as the law expressed to govern this
Agreement, the Custody Agreement and the Power of Attorney of
each Selling Stockholder is valid and binding on each Selling
Stockholder and the courts of England will give effect to each
such choice of law upon proof of the relevant provisions of
such foreign laws, subject, however, to the qualification that
foreign laws will not be applied to the extent contrary to
English public policy; any judgment obtained in a New York
court arising out of or based upon this Agreement that is for
a definite sum of money, is given on the merits and is
recognized as final and conclusive would be enforceable
against each such Selling Stockholder in the courts of
England, provided that: (A) the judgment was not obtained by
fraud, (B) recognition or enforcement of the judgment is not
contrary to English public policy or in breach of the rules of
natural justice, and is not contrary to the provisions of the
Protection of Trading Interests Act 1980, (C) the judgment
does not cover matters which relate to issues raised in
proceedings in England or which have previously been
determined by an English court, and (D) the judgment does not
35
36
determine the proprietary or possessory rights in immovable
property situated outside the State of New York.
(j) You shall have received on the Closing Date an opinion,
dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, in such form as is reasonably satisfactory to you.
(k) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Depositary
and the Custodian, shall have furnished to you their written opinion,
dated such Closing Date, in form and substance satisfactory to you,
substantially to the effect that:
(i) The Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and, assuming due
authorization, execution and delivery by the Company and
further assuming that the Deposit Agreement is a valid and
binding agreement of the Company, constitutes a valid and
legally binding obligation of the Depositary;
(ii) The Custody Agreement of each Selling
Stockholder has been duly authorized, executed and delivered
by the Custodian and, assuming due authorization, execution
and delivery by each Selling Stockholder and further assuming
that each Custody Agreement is a valid and binding agreement
of the relevant Selling Stockholder, constitutes a valid and
legally binding obligation of the Custodian;
(iii) Upon the issuance by the Depositary of ADRs
evidencing ADSs against the deposit of the Shares in
accordance with the provisions of the Deposit Agreement
(assuming such Ordinary Shares were, at the time of such
deposit, (a) duly authorized and validly issued, fully paid
and non-assessable and (b) registered in compliance with the
Act), such ADRs will be duly and validly issued and will
entitle the holders thereof to the rights specified therein
and in the Deposit Agreement; and
(iv) The ADS Registration Statement has been filed on
Form F-6 and has been declared effective under the Act and, to
the best of such counsel's knowledge, no stop order suspending
the effectiveness of the ADS 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 Act, and the ADS Registration Statement, and each
amendment as of their
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respective effective dates, complied as to form and in all
material respects with the requirements of the Act and the
rules and regulations thereunder.
(l) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to you, from
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, chartered public accountants, containing the
information and statements of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(m) The Company shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force
and effect on the Closing Date.
(n) The ADSs shall have been duly listed for quotation,
subject to notice of issuance, on the Nasdaq National Market and the
Ordinary Shares shall have been duly listed for quotation, subject to
notice of issuance, on the LSE.
(o) The Depositary shall have furnished or caused to be
furnished to you on the Closing Date evidence satisfactory to you
evidencing the deposit with it of the Ordinary Shares being so
deposited against issuance of ADRs evidencing the ADSs at the Closing
Date, and the execution, countersignature (if applicable), issuance and
delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement.
(p) The Company and the Selling Stockholders shall not have
failed on or prior to the Closing Date to perform or comply with any of
the agreements herein contained and required to be performed or
complied with by the Company or the Selling Stockholders on or prior to
the Closing Date.
(q) Any preemptive or other such rights granted to the
Company's shareholders shall be duly and validly waived by such
shareholders in accordance with all applicable law in order to complete
the offering, sale and delivery of the ADSs contemplated hereby.
(r) You shall have received on the Closing Date, a certificate
of each Selling Stockholder who is not a U.S. Person (as defined under
applicable U.S. federal tax legislation) to the effect that such
Selling
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38
Stockholder is not a U.S. Person, which certificate may be in the form
of a properly completed and executed United States Treasury Department
Form W-8 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
ADSs.
SECTION 10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
ADSs on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market, the London Stock Exchange or limitation on prices
for securities or other instruments on any such exchange or trading system,
(iii) the suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market or trading system, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State or English authorities or
(vi) the taking of any action by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in your opinion has a
material adverse effect on the financial markets in the United States or the
U.K.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm ADSs or Additional ADSs, as the case may be, which it has or they have
agreed to
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purchase hereunder on such date and the aggregate number of Firm ADSs or
Additional ADSs, as the case may be, which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the total number of Firm ADSs or Additional ADSs, as the case may be, to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm ADSs
set forth opposite its name in Schedule I bears to the total number of Firm ADSs
which all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as you may specify, to purchase the Firm ADSs or Additional
ADSs, as the case may be, which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Firm ADSs or Additional ADSs, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such number
of Firm ADSs or Additional ADSs, as the case may be, without the written consent
of such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Firm ADSs and the aggregate number of Firm ADSs
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm ADSs to be purchased by all Underwriters and
arrangements satisfactory to you, the Company and the Selling Stockholders for
purchase of such Firm ADSs are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Stockholders. In any such case which
does not result in termination of this Agreement, either you or the Sellers
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional ADSs and the aggregate number of
Additional ADSs with respect to which such default occurs is more than one-tenth
of the aggregate number of Additional ADSs to be purchased on such date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase such Additional ADSs or (ii) purchase not less
than the number of Additional ADSs that such non- defaulting Underwriters would
have been obligated to purchase on such date in the absence of such default. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of any such Underwriter under this
Agreement.
SECTION 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
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40
(a) To pay or to cause to be paid all transfer taxes payable
in connection with the transfer of the Shares to be sold by such
Selling Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by
such Selling Stockholder under this Agreement prior to the Closing Date
and to satisfy all conditions precedent to the delivery of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement.
(c) Each Selling Stockholder hereby designates CT Corporation
Systems, New York, New York, a Delaware corporation, as its authorized
agent, upon which process may be served in any action which may be
instituted in any state or federal court in the State of New York by
any Underwriter, any director or officer of any Underwriter or any
person controlling any Underwriter asserting a claim for
indemnification or contribution under or pursuant to Section 8 hereof,
and each Selling Stockholder will accept the jurisdiction of such court
in such action, and waives, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or
venue. A copy of any such process shall be sent or given to such
Selling Stockholder, at the address for notices specified in Section 12
hereof.
SECTION 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Independent Energy Holdings plc, Radcliffe House, Blenheim Court, Solihull, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (ii) if to any Selling Stockholders (other
than DLJ International), c/o Independent Energy Holdings plc, Radcliffe House,
Blenheim Court, Solihull, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and (iii) if to
any Underwriter or to DLJ International, c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the ADS, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, (ii) acceptance of the ADS and payment for them hereunder and (iii)
termination of this Agreement.
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41
If for any reason the Shares or the ADSs are not delivered by or on
behalf of any Seller as provided herein (other than the failure to deliver
Shares by ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International or as a result of any
termination of this Agreement pursuant to Section 10), the Company agrees,
subject to the subrogation of the Underwriters' rights against such defaulting
Seller, to reimburse the several Underwriters for all out-of-pocket expenses
(including the reasonable fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(j) hereof. The
Company also agrees, subject to the subrogation of the Underwriters' rights
against such defaulting Seller, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the reasonable
fees and disbursements of counsel) incurred by them in connection with enforcing
their rights hereunder (including, without limitation, pursuant to Section 8
hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
Each party to this Agreement hereby irrevocably agrees that any legal
suit, action or proceeding brought by any Underwriter or by any person
controlling any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended,
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any state or federal court in the County of New
York, the State of New York, United States of America, and irrevocably waives,
to the fullest extent permitted by law, any objection which such party may now
or hereafter have to the laying of the venue in such courts of any such suit,
action or proceeding, and irrevocably submits to the non-exclusive jurisdiction
of any such court in any such suit, action or proceeding. Each party waives any
immunity to jurisdiction to which such party may otherwise be entitled or become
entitled (including immunity to pre-judgment attachment and execution) in any
legal suit, action or proceeding against such party arising out of this
Agreement or the transactions contemplated hereby which is instituted in any
state or federal court in the County of New York, the State of New York, United
States of America, or in any foreign court. To the extent permitted by law, each
party hereby waives any objection to the
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enforcement by any competent foreign court of any judgment validly obtained in
any such proceeding. Each party hereby designates and appoints CT Corporation
System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ as the authorized agent of such party
(the "AUTHORIZED AGENT") to accept and acknowledge on behalf of such party
service of any and all process which may be served in any such suit, action or
proceeding in any such court. Such appointments shall be irrevocable subject to
the appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 11 as reasonably satisfactory to DLJ.
Each party agrees that service of process upon the Authorized Agent of such
party at such address (or such other address in the United States as the parties
may designate by written notice to the Representatives) and written notice of
such service to such party shall be deemed in every respect effective service of
process upon such party. Each party represents and warrants that the Authorized
Agent of such party has agreed to act as said agent for service of process and
agrees to take all action that may be necessary to continue such appointment (or
the appointment of a successor agent in the United States). Notwithstanding the
foregoing, any action arising out of or based on this Agreement or the
transactions contemplated hereby may be instituted by any Underwriter or by any
person controlling any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act in any competent foreign
court.
Each Underwriter has undertaken to the Company that it (i) has not
offered or sold and prior to the date six months after their date of issue will
not offer or sell any ADSs to persons in the U.K. except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which do not constitute an offer to the public in the
U.K. within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied with and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to
the ADSs offered hereby in, from or otherwise involving the U.K.; and (iii) it
has only issued or passed on and will only issue or pass on in the U.K. any
document received by it in connection with the offering to a person who is of a
kind described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
INDEPENDENT ENERGY HOLDINGS PLC
By:
-------------------------------------
Name:
Title:
44
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE II
HERETO, ACTING SEVERALLY
By:
-----------------------------------------
▇▇▇▇▇▇▇▇-▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇ RICE & COMPANY L.L.C.
PRUDENTIAL SECURITIES
INCORPORATED
Acting severally on behalf of themselves and the
several Underwriters named in Schedule I
hereto
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
---------------------------------------
Name:
Title:
46
SCHEDULE I
NUMBER OF FIRM SHARES
UNDERWRITERS TO BE PURCHASED
------------ -----------------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities o
Corporation
Prudential Securities Incorporated ▇
▇▇▇▇▇▇▇ Rice & Company L.L.C. o
--------------
Total 4,070,000
47
SCHEDULE II
SELLING STOCKHOLDERS
NUMBER OF FIRM NUMBER OF ADDITIONAL
NAME SHARES BEING SOLD SHARES BEING SOLD
---- ----------------- --------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ 500,000 75,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 60,000 --
▇▇▇▇ ▇. ▇▇▇▇▇▇ 60,000 --
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International 250,000 --
------------ -----------
Total 870,000 75,000