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EXHIBIT 1.1
NRG Energy, Inc.(1)
16,000,000 Shares
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
March 7, 2001
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
ABN AMRO Rothschild LLC
Banc of America Securities LLC
As Representatives of the several Underwriters,
c/o Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
NRG Energy, Inc., a Delaware corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 16,000,000 shares of Common Stock, $.01 par value ("Common
Stock"), of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to 2,400,000 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the
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(1) Plus an option to purchase from the Company up to 2,400,000
additional Securities to cover over-allotments.
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Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the Commission a
registration statement (Registration Statement No. 333-52508) on Form
S-3, including a related basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission the Final Prospectus in
accordance with Rules 424(b). The Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Final Prospectus. As filed, such Final Prospectus shall contain all
Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act, and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives
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specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business
as described in the Final Prospectus and to enter into and perform its
obligations under this Agreement, and is duly qualified to do business
as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to be so qualified or in good standing is not reasonably likely
to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its Subsidiaries (as defined below) taken as a whole (a "Material
Adverse Effect"). Each of the significant subsidiaries of the Company,
all of which are set forth in Schedule II (the "Subsidiaries"), has
been duly organized and is validly existing in good standing under the
laws of its jurisdiction of organization, with full corporate, limited
partnership or limited liability company power and authority to own or
lease, as the case may be, and to operate its properties and conduct
its business, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to be so
qualified or in good standing is not reasonably likely to have a
Material Adverse Effect.
(d) The Company's authorized equity capitalization is as
set forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of capital stock have
been duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange; the certificates for the
Securities comply with the requirements of Delaware law; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities which have
not been waived; and, except as set forth in the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding; all of the outstanding shares
of capital stock or other interests of the Subsidiaries held by the
Company, directly or indirectly through other Subsidiaries, have been
duly and validly authorized and issued and, if applicable, are fully
paid and non-assessable, and are owned of record by the Company or a
Subsidiary free and clear of any security interest, claim, lien or
encumbrance, other than such liens or other security interests granted
or created in connection with indebtedness of the projects owned by
such Subsidiaries.
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(e) There is no franchise, contract or other document of
a character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms.
(g) None of the Company and the Subsidiaries is or, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final
Prospectus, will be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(h) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act or otherwise and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus.
(i) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or constitute a default under (i) the charter or
by-laws (or other similar documents) of the Company or any Subsidiary,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any
Subsidiary is a party or is bound or to which their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any Subsidiary of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or any
Subsidiary or any of their properties, except in the cases of clauses
(ii) and (iii) above for any such conflict, breach, violation or
default that is not reasonably likely to have a Material Adverse
Effect.
(j) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
(k) The consolidated historical financial statements of
the Company and its consolidated subsidiaries included in the Final
Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
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(l) The Company has not paid or agreed to pay to any
person any compensation for soliciting another to purchase any
Securities (except as contemplated by this Agreement).
(m) The Company and the Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses now being operated by them,
except where the failure to possess such licenses, certificates,
permits or other authorizations is not reasonably likely to have a
Material Adverse Effect, and neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect; except in all
cases as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(n) No action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary or its property is pending or, to the
knowledge of the Company, threatened that (i) is reasonably likely to
have a material adverse effect on the performance of this Agreement or
the consummation of any of the transactions contemplated hereby or (ii)
is reasonably likely to have a Material Adverse Effect, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(o) Except as set forth in the Final Prospectus
(exclusive of any supplement thereto), neither the Company nor any
Subsidiary is in violation or default of (i) any provision of its
charter or bylaws (or other similar document), (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such Subsidiary or any of its properties, as
applicable, except in the cases of clauses (ii) and (iii) above for any
such violation or default that is not reasonably likely to have a
Material Adverse Effect.
(p) PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited
consolidated financial statements included in the Final Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(q) No labor problem or dispute with the employees of the
Company or any Subsidiary exists or, to the Company's knowledge, is
threatened that is reasonably likely to have a Material Adverse Effect,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
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(r) The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any Subsidiary or
their respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and the Subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any
Subsidiary under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause.
(s) The Company and each Subsidiary maintain 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 generally accepted accounting principles 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.
(t) The Company has not taken, directly or indirectly,
any action that has constituted or that was designed to or might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(u) The Company and each Subsidiary are (i) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received and are in
compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability (A) would not, individually or in the
aggregate, have a Material Adverse Effect, or (B) is set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto). Except as set forth in the Final Prospectus, neither the
Company nor any Subsidiary has been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended.
(v) Except as set forth in the Final Prospectus and
except for (i) San Francisco Thermal, Limited Partnership, (ii)
Pittsburgh Thermal, Limited Partnership, and (iii) RSD Power Partners,
L.P. (each of which is subject to regulation by virtue of its steam
sales), none of the Company or the Subsidiaries is subject to
regulation as a "steam corporation", "electric utility", "electric
utility company", "utility company" or "public utility company"
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(collectively, "Regulated Utilities") or any similar term by any
federal, state, local or foreign public utility commission or
regulatory body or under any applicable federal, state, local or
foreign law as a Regulated Utility other than as public utilities that
have been granted market-based rates under the Federal Power Act or any
state regulation applicable to "exempt wholesale generators," as
defined in Section 32 of the Public Utility Holding Company Act of
1935, as amended ("PUHCA").
(w) None of the Company or the Subsidiaries is an
"electric utility company", a "public utility company", a "holding
company", a "subsidiary company" of any of the foregoing or an
"affiliate" of any of the foregoing or an "affiliate" of a "subsidiary"
of a "holding company" (except insofar as the Company is a subsidiary
of a registered holding company), each as defined in PUHCA.
(x) The Company's percentage ownership interest in its
facilities, operations or projects under construction as set forth in
the Final Prospectus are true and accurate in all material respects as
of the date presented and any changes in the Company's percentage
ownership interest in its facilities, operations or projects under
construction which have occurred between such date and the date of this
Agreement are as set forth on Schedule III hereto.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $25.78 per share, the amount of the Underwritten Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
2,400,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time on or before the 30th day after the date of the Final Prospectus
upon written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
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3. Delivery and Payment. Delivery of and payment for the
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on March 13,
2001, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives, of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the Representatives
(which shall be within three Business Days after exercise of said option) for
the respective accounts of the several Underwriters, against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the Representatives
on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the
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Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to
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service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(f) Except as contemplated by the Underwriting Agreement
dated as of March 7, 2001 between the Company and the Underwriters
named therein relating to the sale by the Company of its Equity Units
consisting of its senior debentures and contracts to purchase Common
Stock, the Company will not, without the prior written consent of
Credit Suisse First Boston Corporation and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common
Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an
intention to effect any such transaction, for a period of ninety days
after the date of the Underwriting Agreement, provided, however, that
the Company may issue and sell Common Stock pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan
of the Company in effect at the Execution Time and the Company may
issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(h) The Company agrees to pay the costs and expenses
relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), each
Preliminary Final Prospectus, the Final Prospectus, and each amendment
or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement,
each Preliminary Final Prospectus, the Final Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale
of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original issuance and
sale of the Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the listing of the
Securities on the New York Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the securities
or blue sky laws of the several states (including filing fees and the
reasonable fees
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and expenses of counsel for the Underwriters relating to such
registration and qualification); (vii) any filings required to be made
with the National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings up to but not exceeding an
aggregate of $10,000 in the case of (vi) and (vii)); (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; and (x) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Underwritten Securities and
the Option Securities, as the case may be, shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx,
Xxxx & Xxxxxxxx LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities are duly listed, and
admitted and authorized for trading, subject to official
notice of issuance and evidence of satisfactory distribution,
on the New York Stock Exchange; the certificates for the
Securities comply with the requirements of Delaware law; the
holders of outstanding shares of capital stock of the Company
are not entitled to preemptive or other rights to subscribe
for the
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Securities pursuant to the Company's Certificate of
Incorporation or Delaware law;
(ii) the Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) have been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein,
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules
thereunder;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company; and
(iv) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" required to be registered
under the Investment Company Act of 1940, as amended;
Furthermore, following the opinion paragraphs, such counsel shall state
the following:
"We have participated in conferences with officers and other
representatives of the Company, representatives of the independent
auditors of the Company and your representatives and counsel at which
the contents of the Registration Statement, Final Prospectus and
related matters were discussed. Because the purpose of our professional
engagement was not to establish or confirm factual matters and because
the scope of our examination of the affairs of the Company did not
permit us to verify the accuracy, completeness or fairness of the
statements set forth in the Registration Statement and/or Final
Prospectus, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and/or Final
Prospectus, except to the extent set forth below in the last sentence
of the immediately following paragraph.
On the basis of the foregoing, and except for the financial statements
and schedules and other financial and statistical data included
therein, as to which we express no opinion or belief, no facts have
come to our attention that lead us to believe that the Registration
Statement, on the Effective Date or on the date the Registration
Statement was last deemed amended, contained any untrue statement of a
material
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fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Final Prospectus, as of its date and as of the Closing Date, contained
or contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading."
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Company shall have furnished to the
Representatives the opinion of Xxxxx X. Xxxxxx, Esq., general counsel
of the Company, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and the Subsidiaries has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or
in good standing is not reasonably likely to have a Material
Adverse Effect;
(ii) all the outstanding shares of capital stock of
the Company and of each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Prospectus,
all outstanding shares of capital stock of each of the
Subsidiaries are owned of record by the Company either
directly or through wholly owned Subsidiaries free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interest,
claim, lien or encumbrance, other than such liens or other
security interests granted or created in connection with
indebtedness of the projects owned by such Subsidiaries;
(iii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; the capital stock of
the Company conforms in all material respects to the
description thereof contained in the Final Prospectus; and,
except as set forth in the Final Prospectus, no options,
warrants or other
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rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
(iv) there is no pending or, to the knowledge of
such counsel, threatened action, suit or proceeding by or
before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries or its or their property of a character required
to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required;
(v) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters (about which such
counsel need express no opinion) in the manner contemplated in
this Agreement and in the Final Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(vi) neither the issuance and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or
violation or constitute a default under (i) the charter or
by-laws of the Company or its Subsidiaries, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its
Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the
Company or its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its
Subsidiaries or any of its or their properties, except in the
cases of clauses (ii) and (iii) above, such conflict, breach,
violation or default which is not reasonably likely to have a
Material Adverse Effect;
(vii) except as set forth in the Final Prospectus and
except for (i) San Francisco Thermal, Limited Partnership,
(ii) Pittsburgh Thermal, Limited Partnership, and (iii) RSD
Power Partners, L.P., (each of which is subject to regulation
by virtue of its steam sales) none of the Company or its
Subsidiaries is subject to regulation as a Regulated Utility
or any similar term by any federal law, law of the state of
Minnesota or Minnesota public utility commission or federal
regulatory body or under any such law as a Regulated
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Utility other than as public utilities that have been granted
market-based rates under the Federal Power Act or any state
regulation applicable to "exempt wholesale generators," as
defined in Section 32 of PUHCA;
(viii) none of the Company or its Subsidiaries is an
"electric utility company", a "public utility company", a
"holding company", a "subsidiary company" of any of the
foregoing, an "affiliate" of any of the foregoing, or an
"affiliate" of a "subsidiary" of a "holding company" (except
insofar as the Company is a subsidiary of a registered holding
company), each as defined in PUHCA;
(ix) except as set forth in the Final Prospectus,
the Company and its Subsidiaries possess and are in compliance
with all approvals, certificates, authorizations, licenses and
permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct their
business as described in the Final Prospectus, except where
the failure to possess such approvals, certificates,
authorizations, licenses and permits or be in compliance
therewith would not be reasonably likely to have a Material
Adverse Effect and to the knowledge of such counsel, none of
the Company or its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any
such approval, certificate, authorization, license or permit
which, individually or in the aggregate, if it became the
subject of an unfavorable decision, ruling or finding, would
be reasonably likely to have a Material Adverse Effect; and
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement that have not been waived with respect
to the offering of the Securities.
(d) The Representatives shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of
the Board or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
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(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), earnings, prospects, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, dated respectively
as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have audited the consolidated
financial statements of the Company for the years in the period ended
December 31, 2000, December 31, 1999 and December 31, 1998 and as at
December 31, 2000, December 31, 1999 and December 31, 1998,
respectively, in accordance with generally accepted auditing standards,
and stating in effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedules
included or incorporated by reference in the Registration
Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the unaudited
consolidated financial statements for January of both 2000 and
2001 made available by the Company and its subsidiaries,
having been advised by officials of the Company that no
financial statements as of any date or for any period
subsequent to January 31, 2001 were available; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
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of the minutes of the meetings of the stockholders, directors
and committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to December 31, 2000 and as to whether the
unaudited consolidated financial statements for January of
both 2000 and 2001 are stated on a basis substantially
consistent with that of the audited consolidated financial
statements in the Registration Statement, nothing came to
their attention which caused them to believe that, with
respect to the period subsequent to December 31, 2000, there
were, at January 31, 2001, any increases in the long-term debt
or total current liabilities of the Company and its
subsidiaries or decreases in the stockholders' equity of the
Company or decreases in total current assets or total assets
of the Company and its subsidiaries as compared with the
amounts shown on the December 31, 2000 consolidated balance
sheet included or incorporated by reference in the
Registration Statement and the Final Prospectus, or for the
period from January 1, 2001 to January 31, 2001 there were any
decreases, as compared with the corresponding period in the
previous year, in consolidated operating revenues or income
before income taxes or net income of the Company and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(iii) on the basis of a reading of the minutes of the
meetings of the stockholders, directors and committees of the
Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31, 2000,
nothing came to their attention which caused them to believe
that, with respect to the period subsequent to January 31,
2001, there were, at a specified date not more than five days
prior to the date of the letter, any increases in the
long-term debt or total current liabilities of the Company and
its subsidiaries or decreases in the stockholders' equity of
the Company or decreases in total current assets or total
assets of the Company and its subsidiaries as compared with
the amounts shown on the December 31, 2000 consolidated
balance sheet included or incorporated by reference in the
Registration Statement and the Final Prospectus, or for the
period from February 1, 2001 to such specified date there were
any decreases, as compared with the corresponding period in
the previous year, in consolidated operating revenues or
income before income taxes or net income of the Company and
its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Representatives;
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(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus, including the financial
information set forth under the captions "Summary and
Consolidated Financial and Operating Data", (i) certain
information included or incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended
December 31, 1999, incorporated by reference in the
Registration Statement and the Final Prospectus, (ii) certain
information included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q, incorporated by
reference in the Registration Statement and the Final
Prospectus, and (iii) certain information included or
incorporated by reference in the Company's Current Report on
Form 8-K dated March 5, 2001, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
(g) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease in the items specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(h) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
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(j) The Securities shall have been listed and admitted
and authorized for trading, subject to official notice of issuance and
evidence of satisfactory distribution, on the New York Stock Exchange,
and satisfactory evidence of such actions shall have been provided to
the Representatives.
(k) At the Execution Time, the Company shall have
furnished to the Representatives a letter substantially in the form of
Exhibit A hereto from each officer of the Company and from Xcel Energy
Inc. addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of the Company, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Credit Suisse First Boston Corporation on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and
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agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein; provided, further, that with respect to any untrue
statement or omission of a material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall
not inure to the benefit of any Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the Securities
concerned, to the extent that any such loss, claim, damage or liability of
such Underwriter occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Company had previously furnished copies of the Final
Prospectus to the Representatives, (x) delivery of the Final Prospectus was
required to be made to such person, (y) the untrue statement or omission of
a material fact contained in the Preliminary Final Prospectus was corrected
in the Final Prospectus, and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such
Securities to such person, a copy of the Final Prospectus. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities, and,
under the heading "Underwriting", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Final Prospectus or the Final
Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
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relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on
the other from the offering of the Securities; provided, however, that in
no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall
be deemed
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to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus.
Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on
the other. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange, trading of any
securities
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of the Company shall have been suspended on any exchange or in any
over-the-counter market or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities, (iii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) shall have occurred, or
(iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the reasonable judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telefaxed to Credit Suisse First Boston Corporation,
Transactions Advisory Group (fax no.: (000) 000-0000) and confirmed to the
Transactions Advisory Group, Credit Suisse First Boston Corporation, at 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention: Transactions Advisory
Group and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Attention: Xxxxxx
Xxxxx (fax no.: (000) 000-0000) and confirmed to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, at 4 World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxxxx Xxxxx; or, if sent to the Company, will be
mailed, delivered or telefaxed to Xxxxx X. Xxxxxx, Vice President and General
Counsel (fax no: (000) 000-0000) and confirmed to it at NRG Energy, Inc., 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
General Counsel.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
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15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law, executive order or
regulation to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b)
24
25
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
NRG Energy, Inc.
By:
------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first
above written.
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
ABN AMRO Rothschild LLC
Banc of America Securities LLC
By: Credit Suisse First Boston Corporation
By:
---------------------------
Name:
Title:
27
SCHEDULE I
Number of
Underwritten
Securities to
Underwriters be Purchased
------------ -------------
Credit Suisse First Boston Corporation................................4,872,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated....................4,872,000
Xxxxxxx, Sachs & Co...................................................1,392,000
Xxxxxxx Xxxxx Xxxxxx Inc..............................................1,392,000
ABN AMRO Rothschild LLC.................................................696,000
Banc of America Securities LLC..........................................696,000
CIBC World Markets Corp.................................................160,000
Credit Lyonnaise Securities (USA) Inc...................................160,000
Xxxx Xxxxxxxx Incorporated..............................................160,000
X.X. Xxxxxxxx & Co.......................................................80,000
Dresdner Kleinwort Xxxxxx North America LLC.............................160,000
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc........................................80,000
Invemed Associates LLC..................................................160,000
Lazard Freres & Co. LLC.................................................160,000
X.X. Xxxxxx Securities Inc..............................................160,000
Prudential Securities Incorporated......................................160,000
Xxxxx XxxXxxxxx Incorporated.............................................80,000
Xxxxxxx Xxxxx & Associates, Inc..........................................80,000
Xxxxxxx Xxxxxx Xxxxxx Inc................................................80,000
U.S. Bancorp Xxxxx Xxxxxxx Inc..........................................160,000
UBS Warburg LLC.........................................................160,000
The Xxxxxxxx Capital Group, L.P..........................................80,000
TOTAL................................................................16,000,000
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SCHEDULE II
Significant Subsidiaries
Xxxxxx Kill Power LLC
COBEE Holdings Inc.
Devon Power LLC
Flinders Coal Pty Ltd
Granite Power Partners II, X.X.
Xxxxxxx Power LLC
Killingholme Generation Limited
Killingholme Holdings Limited
Killingholme Power Limited
Lambique Beheer B.V.
Louisiana Generating LLC
Middletown Power LLC
Montville Power LLC
NEO Corporation
NEO Landfill Gas Inc.
Norwalk Power LLC
NRG International, Inc.
NRG Northeast Generating LLC
NRG South Central Generating LLC
NRG Thermal Corporation
NRG West Coast Inc.
NRGenerating Holdings (No. 15) B.V.
NRGenerating Holdings (No. 4) B.V.
NRGenerating International B.V.
NRGenerating, Ltd.
Sterling Luxembourg (No. 1) s.a.r.l.
Sunshine State Power (No. 2) B.V.
Sunshine State Power B.V.
Tosli Investments N.V.
29
SCHEDULE III
Changes in Percentage Ownership Interest
None
30
[FORM OF LOCK-UP AGREEMENT] EXHIBIT A
[LETTERHEAD OF OFFICER OR MAJOR SHAREHOLDER OF
NRG ENERGY, INC.]
NRG Energy, Inc.
Public Offering of Common Stock
________, 2001
Credit Suisse First Boston Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx, Inc.
ABN AMRO Rothschild LLC
Banc of America Securities LLC
As Representatives of the several Underwriters,
c/o Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between NRG
Energy, Inc., a Delaware corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of Credit Suisse First Boston Corporation and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned) directly or
indirectly, including the filing (or participation in the filing of) a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 60 days after the date
of the Underwriting Agreement, other than shares of Common Stock disposed of as
bona fide gifts.
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If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER OR MAJOR STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER OR MAJOR
STOCKHOLDER]
