EXHIBIT 1
8,815,000 AMERICAN DEPOSITARY SHARES
EACH REPRESENTING ONE ORDINARY SHARE
INDEPENDENT ENERGY HOLDINGS PLC
UNDERWRITING AGREEMENT
September __, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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, and certain stockholders of the Company
named in Schedule II hereto (the "SELLING STOCKHOLDERS") severally propose to
sell, an aggregate of 8,815,000 ordinary shares, nominal value 1 p per share
("ORDINARY SHARES"), of the Company to The Bank of New York, as depositary
("DEPOSITARY"), of which 7,000,000 shares are to be issued and sold by the
Company and 1,815,000 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. Upon deposit of the Ordinary Shares,
and upon appropriate instructions, the Depositary proposes to issue 8,815,000
American Depositary Receipts ("FIRM ADRS") evidencing American Depositary Shares
which represent the 8,815,000 Ordinary Shares, to the several underwriters named
in Schedule I hereto (the "UNDERWRITERS"). The 8,815,000 American Depositary
Shares are hereinafter called the "FIRM ADSS" and the 8,815,000 Ordinary Shares
underlying the Firm ADSs are referred to herein as "FIRM
SHARES". The Firm Shares to be sold by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will be issued upon the
exercise of the options (the "OPTIONS") outstanding under the Company's stock-
based incentive compensation plan which exercise will occur immediately prior to
the purchase of such Firm Shares by the Underwriters on the Closing Date. The
Company also proposes to issue to the Depositary not more than an additional
1,322,250 Ordinary Shares (the "ADDITIONAL SHARES"), and upon appropriate
instructions, the Depositary proposes to issue 1,322,250 additional ADRs (the
"ADDITIONAL ADRS," and together with the Firm ADRs, the "ADRS") evidencing not
more than an additional 1,322,250 American Depositary Shares (the "ADDITIONAL
ADSS") to the Underwriters, if requested by the Underwriters as provided in
Section 2 hereof. 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."
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 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
2
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
7,000,000 Firm Shares to 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 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 at a price per ADS of $______ (the "PURCHASE PRICE")
the number of Firm ADSs (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 ADSs set forth
opposite the name of such Underwriter in Schedules I hereto bears to the total
number of Firm ADSs.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
the Additional ADSs to 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, up to 1,322,250 Additional ADSs from the Company at the Purchase Price.
Additional ADSs may be purchased solely for the purpose of covering over-
allotments made in connection with the offering of the Firm ADSs. The
Underwriters may exercise their right to purchase Additional ADSs in whole or in
part from time to time by giving written notice thereof to the Company 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 ADSs 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 ADSs are
to be purchased, each Underwriter, severally and not jointly, agrees to purchase
from the Company the number of Additional ADSs (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional ADSs to be purchased from the
Company as the number of Firm ADSs set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm ADSs.
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
3
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 120 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 180 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 120 days after
the date of the 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 120 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 120 days after the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
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 as soon after the execution and delivery of this Agreement
as in your
4
judgment is advisable and (ii) initially to offer the ADSs 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 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 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 stamp duty or stamp duty reserve tax payable
in connection with the 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 shall be 8:00 A.M., New York City time, on
September __, 1999 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 are
hereinafter referred to as the "CLOSING DATE." The time and date of delivery
and payment for any Additional ADSs 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 ADSs 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
5
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 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.
6
(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
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.
7
(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
(including the Alternative Investment Market of the London Stock Exchange)
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 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, (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
8
of the ADSs 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, (vii) the cost of printing 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 the 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 (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,
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 do and perform all things required
or necessary to be done and performed under this Agreement by the Company
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.
(m) To designate CT Corporation Systems, 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
9
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.
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 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
10
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 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 liens existing pursuant to the Company's
outstanding credit facility with Barclys Bank plc and [list any other debt
financing facilities].
(g) The Shares to be sold by the Company have been duly authorized,
and, when delivered to and paid for by the Underwriters in
11
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) The Shares to be issued upon the exercise of the Options by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ have been duly authorized and, when issued upon exercise
of and full payment of the applicable exercise price for the options and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) 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.
(j) 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.
(k) Neither the Company nor any of its subsidiaries is in violation
of its respective Memorandum or Articles of Association or in default in
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.
(l) The execution, delivery and performance of this Agreement and
the Deposit Agreement by the Company, the compliance by the
12
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.
(m) The information underlying the estimates of the net proved
reserves of natural gas of the Company as of June 30, 1999 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.
(n) 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
13
or to be filed as exhibits to the Registration Statement that are not so
described or filed as required.
(o) 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.
(p) 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 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.
(q) 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
14
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.
(r) This Agreement has been duly authorized, executed and delivered
by the Company.
(s) 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.
(t) ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, chartered accountants, are independent
public accountants with respect to the Company and its subsidiaries as
required by the Act.
(u) 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 supplement thereto) are, in all material respects, accurately presented
and prepared.
(v) 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.
15
(w) 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.
(x) 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 the contracts for differences dated as of August 10,
1999 and [list any other specific agreements].
(y) The Company has filed a supplemental application to list the
ADSs on the Nasdaq National Market.
(z) 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.
(aa) 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 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 ADSs to the initial purchasers thereof, in
accordance with the terms of this Agreement and in the manner contemplated
in the Prospectus.
(bb) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
16
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(cc) 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.
(dd) 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) Except for the Shares to be sold by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ upon the
exercise of the Options which is expected to occur immediately prior to the
purchase of the Firm Shares by the Underwriters on the Closing Date, 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; and, on the Closing Date, after giving effect to the
exercise of the Options, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will be the lawful owner of the
Shares to be sold by him pursuant to this Agreement and will have good and
clear title to such Shares, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been
duly authorized and, except for the Shares to be sold by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
upon the exercise of the Options, are validly issued, fully paid and not
subject to calls for further funds; and, upon the exercise of the Options
on the Closing Date, the Shares to be sold by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will be
validly issued, fully paid and not subject to calls for further funds.
17
(c) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority, and all authorization and
approval required by law, 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 authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by 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
authorized, executed and delivered by 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 Shareholders 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.
(h) Upon the sale and delivery of the Shares to be sold by each of
the Selling Shareholders and payment therefor against deposit thereof with
the Custodian and delivery of ADRs evidencing all such ADSs by the
18
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 Shareholders will be freely transferable
to or for the account of the several Underwriters.
(i) 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, 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.
(j) The information in the Registration Statement under the caption
"Principal and Selling Shareholders" which specifically relates to 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.
(k) 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.
(l) 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.
19
(m) 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 Shareholders 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 ADSs to the initial
purchasers thereof, in accordance with the terms of this Agreement and in
the manner contemplated in the Prospectus.
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 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
20
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
"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
21
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 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
22
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 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
23
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
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
24
impracticable to market the ADSs 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:
(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
and transfer of such Shares is not subject to any preemptive or
similar right that has not been duly and validly waived;
25
(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 in the name
of the Custodian pursuant to the Deposit Agreement, 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;
(v upon the sale and delivery of the Shares (including the
Shares to be sold by the Selling Stockholders) and payment therefore
against deposit thereof with the Depositary, pursuant to the Deposit
Agreement, and delivery of the ADRs evidencing the ADSs as
contemplated by this Agreement and the Deposit Agreement, insofar as
English law is concerned, 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;
(vi 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 other than [liens pursuant to the Company's debt
financing facilities and] security in favor of Barclays Bank plc and
Barclays Commercial Services Ltd. granted by the Company over its
assets;
(vii this Agreement has been duly authorized, executed and
delivered by the Company;
(viii 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;
(ix the authorized share capital of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus;
26
(x the statements (A) in the Prospectus under the captions
"Description of Share Capital" and "Taxation" and identified in the
attached extracted sections from the Prospectus 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;
(xi 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;
(xii 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 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;
(xiii 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;
(xiv 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
27
filed, recorded or enrolled with any public authority, governmental
agency or governmental department of England;
(xv 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;
(xvi the Company can ▇▇▇ and be sued under its own name in
England and Wales;
(xvii 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 (D0 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;
(xviii 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,
28
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.
(xix 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;
(xx 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 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 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.
29
(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 authorized, executed and
delivered by the ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Trust, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust (collectively, the "TRUSTS"), and
duly executed and delivered by each of the other Selling Stockholders;
(ii each Selling Stockholder is the record holder of the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has good and clear title to such Shares;
(iii each of the Trusts has full trust power and authority,
and each of the other Selling Stockholders 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;
(iv the Custody Agreement of each of the Selling
Stockholders has been duly executed and delivered by such Selling
Stockholder (and duly authorized in the case of the Trusts) and is a
valid and binding agreement of each such Selling Stockholder,
enforceable in accordance with its terms;
(v the Power of Attorney of each of the Selling
Stockholders has been duly executed and delivered by such Selling
Stockholder (and duly authorized in the case of the Trusts) and is a
valid and binding instrument of each such Selling Stockholder,
enforceable in accordance with its terms, 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 the deposit of the Shares to be sold by the
Selling Stockholders (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇) with the Custodian
pursuant to the Deposit Agreement, all right, title and
30
interest in such Shares, subject to the Deposit Agreement, will be
transferred to the Depositary free and clear of all liens,
encumbrances or claims; and
(vii 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, 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, or 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 applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency of the
United States federal government or the government of the State of New
York.
(viii 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.
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
Shareholders; provided that (A) each such counsel for the Selling Shareholders
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,
31
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 upon the deposit of the Shares to be sold by the ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ with the Custodian pursuant to the Deposit Agreement, 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
(ii 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 County of New York, State
of New York 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;
(iii 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, (B) the Depositary would be permitted to
commence proceedings against each such Selling Stockholder 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 each such Selling Stockholder in English courts
based on actions under the Deposit Agreement and (D) 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;
(iv 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
Deposit 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
32
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 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:
33
(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
34
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 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.
(o The Depositary shall have furnished or caused to be furnished
to you on the Closing Date evidence satisfactory to you evidencing the
35
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
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
36
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
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
37
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:
(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, Dominion Court, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, (ii) if to the Selling Stockholders, to [NAME OF ATTORNEY-IN-
FACT] c/o [ADDRESS OF ATTORNEY-IN-FACT] and (iii) if to any Underwriter or to
you, to you c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
38
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.
If for any reason the ADSs are not delivered by or on behalf of any Seller
as provided herein (other than as a result of any termination of this Agreement
pursuant to Section 10), the Sellers agree, jointly and severally, to reimburse
the several Underwriters for all out-of-pocket expenses (including the 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 Sellers also agree, jointly and
severally, 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 fees 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
39
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 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
40
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.
41
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:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II HERETO, ACTING
SEVERALLY
By:
-----------------------------
Attorney-in-fact
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
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:
42
SCHEDULE I
UNDERWRITERS NUMBER OF FIRM SHARES
TO BE PURCHASED
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
Prudential Securities Incorporated
▇▇▇▇▇▇▇ Rice & Company L.L.C.
Total
43
SCHEDULE II
SELLING STOCKHOLDERS
NAME NUMBER OF FIRM
SHARES BEING SOLD
▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,200,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 250,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 125,000
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Trust 80,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust 80,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust 80,000
Total 1,815,000
44
EXHIBIT A
FORM OF AKIN GUMP OPINION
1. Assuming the Agreement has been duly authorized, executed and delivered
by the Company under the laws of all applicable jurisdictions (except that no
assumption is made as to the federal laws of the United States or the laws of
the State of New York), this Agreement has been duly executed and delivered by
the Company.
2. Assuming the Deposit Agreement has been duly authorized, executed and
delivered by the Company under the laws of all applicable jurisdictions (except
that no such assumption is made as to the federal laws of the United States or
the laws of the State of New York), the Deposit Agreement has been duly executed
and delivered by the Company and, assuming that the Depositary and the Company
have taken all action required by them under applicable law to make the Deposit
Agreement a valid and binding obligation (except that no such assumption is made
as to the Company regarding the federal laws of the United States or the laws of
the State of New York), the Deposit Agreement constitutes a valid and binding
agreement of the Company enforceable against the Company in according with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and to general equity principles, including, without limitation, principles of
commercial reasonableness, good faith and fair dealing (whether enforcement is
sought in law or equity) and the discretion of the court before which any
proceedings therefor may be brought; provided, however, we do not express any
opinion with respect to any provisions contained in the Deposit Agreement
providing for indemnification against liabilities under the United States
federal or state securities or Blue Sky laws contained therein or public policy
relating thereto.
3. The issue and sale of the Shares and ADSs and the performance by the
Company of its other obligations under the Agreement and the Deposit Agreement,
will not conflict with or result in a breach of any of the terms or provisions
of any agreement filed as an exhibit to the Registration Statement (assuming, in
the case of any agreement that is not governed by the laws of a United States
jurisdiction that such agreement were so governed), nor will any such action
result in any violation of any applicable United States federal or New York or
Texas state law or, to our knowledge, any statute or any order, rule or
regulation of any United States federal or New York or Texas state court or
governmental agency or body having jurisdiction over the Company, its
Page 2
subsidiaries or any of their respective properties; provided, however, we do not
express any opinion with respect to the Securities Act or the Exchange Act
(which are addressed in B.4 below) or any United States state securities or Blue
Sky laws.
4. No consent, approval, authorization, order, registration or
qualification of or with any New York state or United States federal
governmental agency or body is required for the issue and sale of the Shares and
ADSs by the Company or the performance by the Company of its other obligations
under the Agreement and the Deposit Agreement, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained under the
Securities Act and the Exchange Act and except as may be required under United
States state securities or Blue Sky laws (as to which we express no opinion).
5. Upon delivery by the Depositary, in accordance with the Deposit
Agreement, of the American Depositary Receipts ("ADRs") evidencing the ADSs
against the deposit of duly authorized, validly issued, fully paid and non-
assessable Shares, the preemptive rights, if any, with respect to which have
been validly waived or exercised, the ADSs will be duly and validly issued and
the persons in whose names such ADRs are registered will be entitled to the
rights specified therein and in the Deposit Agreement, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general equity
principles, including, without limitation, principles of commercial
reasonableness, good faith and fair dealing (whether enforcement is sought in
law or equity), and to the discretion of the court before which any proceedings
therefor may be brought.
6. Under the laws of the State of New York relating to submission of
personal jurisdiction, the Company, pursuant to Section 5 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 5 of the Agreement.
2
Page 3
7. The statements in the Prospectus under the captions "Description of
American Depositary Receipts," insofar as such statements summarize the
agreements referred to therein, fairly summarize agreements in all material
respects.
8. The statements in Item 15 of Part II of the Registration Statement,
insofar as such statements summarize the Federal laws of the United States,
fairly summarize such laws.
9. The statements in the Prospectus under the caption "Taxation," insofar
as such statements pertain to United States federal income tax matters currently
applicable to U.S. Holders (as such term is defined in the Prospectus) of ADRs
evidencing ADSs or Shares, accurately summarize the principal tax consequences
referred to therein.
10. To our knowledge, there are no (i) legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or (ii) contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are not described or
filed as required.
11. The Company is not, and immediately after giving effect to the
offering and sale of ADSs and the use of 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.
12. (a) Each document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus and the Registration Statement (other than in
each instance, the financial statements and notes thereto and the other
financial information and oil and gas reserve and other geological data
contained therein, if any, as to which we express no opinion) complied when so
filed as to form in all material respects with the Exchange Act and applicable
rules and regulations thereunder.
3
Page 4
(b) The Registration Statement and the ADS Registration Statement,
each as of its effective date, and the Prospectus, as of its date (other than,
in each instance, the financial statements and notes thereto and the other
financial information and oil and gas reserve and other geological data
contained therein as to which we express no opinion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
13. To the best of our knowledge, 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 Ordinary Shares and the ADSs registered pursuant to the
Registration Statement.
4