EXHIBIT 1
PRIVATE PLACING AGREEMENT
Credit Suisse First Boston (Equities) Limited
One Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Date
Dear Sirs:
A. Nortel Networks Optical Components Limited ("NNOCL") and Nortel Networks
Limited ("NNL") (together the "Selling Shareholders") currently own 61
million shares in Bookham Technology plc (the "Company"), a company
incorporated under the laws of England and Wales. NNOCL is a wholly owned
indirect subsidiary of NNL. NNL shall, and undertakes to procure that NNOCL
shall, appoint Credit Suisse First Boston Equities Limited and its U.S.
broker-dealer affiliate ("CSFB" or the "Placing Agent") to act as agent for
the Selling Shareholders in identifying and procuring purchasers (the
"Purchasers") for 30 million ordinary shares of one third of a xxxxx each
of the Company (the "Offered Shares") subject to the terms and conditions
contained herein and that NNL shall, and undertakes to procure that NNOCL
shall, comply with the obligations of the Selling Shareholders set out
herein.
B. The Placing Agent agrees to identify and procure Purchasers for the Offered
Shares at a price per Offered Share of 67 xxxxx (the "Purchase Price"), by
7pm on 3rd July 2003, 2003. Subject to the terms and conditions of this
Private Placing Agreement, the Selling Shareholders sell the Offered Shares
to the Purchasers so identified and procured by the Placing Agent. The
Placing Agent and the Selling Shareholders shall procure that the Offered
Shares owned by NNOCL are sold to the Purchasers in priority to those owned
by NNL but this shall in no way limit the obligation of the Placing Agent
to identify and procure Purchasers for all of the Offered Shares.
C. On 8th July 2003 (the "Settlement Date" (T+3)) the Selling Shareholders
shall procure that the appropriate share transfer forms are transferred and
delivered to the Purchasers in respect of the Offered Shares, and shall use
all reasonable commercial efforts to procure that all relevant entries are
made in the statutory books of the Company and that all relevant share
certificates are issued by the Company in respect of the Offered Shares and
shall make a book entry credit to an account specified by the Placing Agent
against payment of the Purchase Price by the Purchasers net of the fees
referred to in 2 below.
D. The Placing Agent undertakes to ensure that any Purchaser procured by the
Placing Agent which purchases more than 15 million of the Offered Shares
shall, prior to completion of the purchase by it of such Offered Shares,
enter into an agreement, in a form to be agreed with the Selling
Shareholders pursuant to which such Purchaser shall agree:
(i) not to pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, more than fifteen million of the
Offered Shares during four consecutive three month periods;
(ii) not to enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated
with the ownership of more than 15 million of the Offered Shares
during any four consecutive three month periods.
1. Selling Shareholders Representations and Warranties
The Selling Shareholders warrant to, and agree with the Placing
Agent that:
(a) as at the date hereof the Selling Shareholders own 100% of
the Offered Shares;
(b) this Private Placing Agreement has been duly authorized,
executed and delivered by the Selling Shareholders;
(c) the Selling Shareholders have full right, authority and power
to enter into and perform their respective obligations under this Private
Placing Agreement and to sell, assign, transfer and deliver the Offered Shares
owned by each of them respectively to the Purchasers procured by the Placing
Agent;
(d) the Selling Shareholders have good and valid title to the
Offered Shares to be sold by the Selling Shareholders to the Purchasers, free
and clear of all liens and encumbrances; and immediately prior to the Settlement
Date the Selling Shareholders will have good and valid title to the Offered
Shares to be sold by the Selling Shareholders at such Settlement Date, free and
clear of all liens and encumbrances, and upon delivery of such Offered Shares to
the Purchasers by the Selling Shareholders at the Settlement Date pursuant to
this Private Placing Agreement and payment therefor as provided herein, good and
valid title thereto, free and clear of all liens and encumbrances, will, as far
as the Selling Shareholders are able to procure, be transferred to the
Purchasers;
(e) the compliance by the Selling Shareholders with the
applicable provisions of this Private Placing Agreement and the consummation by
the Selling Shareholders of the transactions contemplated by this Private
Placing Agreement do not require any consent, approval, authorization, or other
order of any court or governmental body or governmental agency not already
obtained;
(f) the execution of this Private Placing Agreement and the
consummation of the transactions contemplated by this Private Placing Agreement
do not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument, decree, regulation or
law to which the Selling Shareholders are a party or by which the Selling
Shareholders are bound, or any of the provisions of the Articles of Association
(or similar instrument) of the Selling Shareholders or any statute or any order,
existing law, rule or regulation, judgement, order or decree of any court,
government or governmental agency or body having jurisdiction over the Selling
Shareholders.
(g) during the period beginning 10 days prior to and ending on
the date 30 days subsequent to the date hereof, neither the Selling Shareholders
nor, as far as the Selling Shareholders are aware having made due inquiry, any
of their wholly owned subsidiaries nor, any person acting on their direct
instructions has or will have, as far as the Selling Shareholders are able to
procure, directly or indirectly, bid for, purchased or induced any person to bid
for or purchase any Offered Shares or any securities which may, in the whole or
in part, directly affect the value of the Offered Shares;
(h) neither the Selling Shareholders, nor, as far as the Selling
Shareholders are aware having made due inquiry, any of their wholly owned
subsidiaries nor any person acting on their direct instructions has engaged or
will, as far as the Selling Shareholders are able to procure, engage in any
directed selling efforts (as such term is defined in Regulation S under the
Securities Act ("Regulation S")) in connection with the offer and sale of the
Offered Shares, and, as far as the Selling Shareholders are aware, having made
due inquiry all such persons have complied and will comply, as far as the
Selling Shareholders are able to procure, in all material respects with the
offering restrictions requirement of Regulation S to the extent applicable to
the offer and sale of the Offered Shares; provided that this representation
shall not be deemed to be made in respect of actions taken by the Placing Agent
regarding the Offered Shares;
(i) the Selling Shareholders are not aware of any material
information (including, without limitation, any information regarding any
material adverse change or prospective material adverse change in the condition
of, or any actual, pending or threatened litigation, arbitration or similar
proceeding involving the Company and material information relating to the
ongoing commercial relationship between the Selling Shareholders and the Company
to the extent only that the Selling Shareholders are aware of it after making
due inquiry of the President and senior financial officer of the business unit
responsible for the purchase of products from the Company by the Selling
Shareholders) that is not described in the Company's most recent filings with
the United States Securities and Exchange Commission, its annual report or
subsequent public information releases (the "Company Information") which
information is necessary to enable investors to make an informed assessment of
the assets and liabilities, financial position, profits and losses and prospects
of the Company and its subsidiaries, the Selling Shareholders have read the
Company Information and, as far as they are aware, it does not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading.
(j) neither the Selling Shareholders nor, as far as the Selling
Shareholders are aware having made due inquiry, any of their wholly owned
subsidiaries nor any other person acting on their direct instructions has
engaged, in connection with the offer and sale of the Offered Shares, in any
material form of general solicitation or general advertising within the meaning
of Regulation D under the Securities Act; the Selling Shareholders further agree
not to, and to cause their wholly owned subsidiaries not to, and not knowingly
to authorize or knowingly permit any person acting on their behalf to, solicit
any offer to buy or offer to sell the Offered Shares by means of any form of
general solicitation or general advertising within the meaning of Regulation D
under the Securities Act or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; provided that this representation
shall not be deemed to be made in respect of actions taken by the Placing Agent
regarding the Offered Shares;
(k) neither the Selling Shareholders nor, as far as the Selling
Shareholders are aware having made due inquiry, any of their wholly owned
subsidiaries have, directly or through any agent, sold, offered for sale or
solicited offers to buy any security (as such term is defined in the Securities
Act) which is or will be integrated with the distribution of the Offered Shares
in a manner that would require registration of the Offered Shares under the
Securities Act; the Selling Shareholders further agree not to, and to cause
their wholly owned subsidiaries not to, sell, offer for sale or solicit offers
to buy any security (as such term is defined in the Securities Act) which could
be integrated with the distribution of the Offered Shares in a manner that would
require registration of the Offered Shares under the Securities Act; and
(l) subject to compliance by the Placing Agent with the
undertaking in D above, and provided that the sale of the Offered Shares to the
Purchasers procured by the Placing Agent is by way of privately negotiated
transaction not involving a public offering of securities, the execution of this
Private Placing Agreement does not conflict with or result in a breach of any of
the terms or provisions of any agreement with the Company to which the Selling
Shareholders are parties.
2. Placing Agent representations and warranties
(a) The Placing Agent warrants to, and agrees with the Selling
Shareholders that:
(i) All persons solicited or otherwise contacted by the
Placing Agent, including without limitation the Purchasers,
pursuant to this Private Placing Agreement or in connection with
the Offered Shares shall be persons:
(A) whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses, or
(B) who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent) for
the purposes of their businesses,
or are otherwise offered to persons in the context of their
trades, professions or occupations.
(ii) Neither the Placing Agent, nor any of its affiliates,
nor any person acting on its or their behalf has offered or sold
the Offered Securities except in accordance with Regulation S
under the Securities Act.
(iii) Neither the Placing Agent, nor any of its affiliates,
nor any person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the
Offered Shares, as defined in Regulation S.
3. Fees and Commissions
The Selling Shareholders shall pay the Placing Agent a commission
equal to 3.5% of the number of the Offered Shares multiplied by the Purchase
Price.
4. Expenses
(a) The Selling Shareholders will pay, directly or indirectly, or
provide reimbursement for, the reasonable expenses of the Placing Agent (but
excluding any stamp duty or stamp duty reserve tax, or any similar transfer tax)
incurred in connection with the transactions contemplated by this Private
Placing Agreement to the extent that all such expenses incurred by the Placing
Agent are approved in advance by the Selling Shareholders. The agreements and
covenants of the Selling Shareholders in this Section "Expenses" shall survive
termination of this Private Placing Agreement.
(b) All expenses borne initially by the Placing Agent that are to
be paid or reimbursed by the Selling Shareholders may, to the extent that such
expenses have been approved in writing in advance by the Selling Shareholders,
be deducted from the proceeds payable to the Selling Shareholders.
5. Conditions Precedent
The obligations of the Placing Agent hereunder shall be subject
in its discretion to (i) the condition that all warranties and other statements
of the Selling Shareholders herein are, at and as of the Settlement Date, true
and correct, and (ii) the condition that the Selling Shareholders shall have
performed, their respective obligations hereunder theretofore to be performed.
6. Indemnity
(a) The Selling Shareholders agree to indemnify and hold harmless
the Placing Agent and each other member of its Group and all directors,
officers, employees and agents of its Group (the "Indemnified Person") against
any losses, claims, damages, demands or liabilities incurred by the Placing
Agent subject insofar as such losses, claims, damages or liabilities relate to
or arise directly as a result of the breach by the Selling Shareholders of any
of their respective obligations contained herein or the performance by an
Indemnified Person of its obligations hereunder or any warranty given by the
Selling Shareholders hereunder being materially untrue as at the Settlement Date
including losses suffered or incurred by an Indemnified Person as a person who
has communicated or approved the contents of any financial promotion made at the
request and with the approval of the Selling Shareholders other than any losses,
claims, damages or liabilities that result directly from the Indemnified
Person's willful default or gross negligence, provided that this clause shall
not apply in relation to a material breach by the Indemnified Person of the
applicable provisions of the Financial Services and Markets Xxx 0000 or the
applicable rules of the Financial Services Authority; and the Seller will
reimburse the Indemnified Person for any reasonable expenses suffered or
incurred in investigating, disputing or defending any such claims. The indemnity
in this Section 6 shall exclude any stamp taxes and duties and stamp duty
reserve tax incurred in connection with the transactions incurred in connection
with the transactions contemplated by this Private Placing Agreement, or in
respect of any other transaction;
(b) The Placing Agent agrees to indemnify and hold harmless each of the Selling
Shareholders and each other member of the Nortel Group and all directors,
officers, employees and agents of the Nortel Group (the "Indemnified Person")
against any losses, claims, damages, demands or liabilities incurred by the
Selling Shareholders subject insofar as such losses, claims, damages or
liabilities relate to or arise directly as a result of the breach of the Placing
Agent of any of its obligations contained herein or the performance by an
Indemnified Person of its obligations hereunder or any warranty or
representation made by the Placing Agent in connection herewith being materially
untrue as at the Settlement Date including losses suffered or incurred by an
Indemnified Person as a result of any announcement or communication made by the
Placing Agent without the approval of the Selling Shareholders other than any
losses, claims, damages or liabilities that result directly from the Indemnified
Person's wilful default or gross negligence.
(c) the obligations of the Selling Shareholders and the Placing Agent under this
Section 6 shall be in addition to any liability which the Selling Shareholders
and the Placing Agent may otherwise have hereunder.
Each of the obligations set forth in this Section "Indemnity" shall survive
termination of this Private Placing Agreement.
"Group" means Credit Suisse Group and any subsidiary or branch of the Credit
Suisse Group.
"Nortel Group" means Nortel Networks Corporation and subsidiary or branch of the
Nortel Networks group.
7. Termination
(a) Notwithstanding anything contained herein, the Placing Agent
may by notice to the Selling Shareholders terminate this Agreement if any of the
following shall occur on or after the date of this Agreement
(i) a material breach by the Selling Shareholders of any of the
warranties contained herein or any failure by the Selling Shareholders to
perform in any material respect any of the undertakings or agreement in this
Agreement
(ii) any material change or development in national or
international monetary, financial, political or economic conditions including
any disruption to trading generally (or trading in any of the Company's
securities) on the London Stock Exchange, the New York Stock Exchange or NASDAQ
or currency exchange rates or foreign exchange rates or foreign exchange
controls which would materially adversely affect the financial position of the
Company, the Offered Shares or the transactions contemplated by this Agreement;
(iii) a general moratorium on commercial banking activities in
London or New York declared by the relevant authorities or a material disruption
in commercial banking or securities settlement or clearance services in the
United Kingdom or the United States;
(iv) a material adverse change in the condition, result of
operations or prospects of the Company;
(v) a material change or development involving a prospective
change in taxation materially adversely affecting the Company, the Offered
Shares or the transfer thereof;
(vi) any material outbreak or escalation of hostilities or act of
terrorism involving the United Kingdom or the United States or the declaration
by the United Kingdom or the United States of a national emergency or war
which in the case of clauses (ii) and (vi) would in CSFB's
reasonable view prejudice materially the success of the offer and distribution
of the Offered Shares.
(b) Each of the respective indemnities, agreements, warranties
and other statements by or on behalf of the Selling Shareholders and by or on
behalf of the Placing Agent, as set forth in this Private Placing Agreement,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Placing Agent or any controlling person of the Placing
Agent, or the Selling Shareholders or any officer or director or any controlling
person of the Selling Shareholders, and shall survive delivery of and payment
for the Offered Shares or termination of this Private Placing Agreement.
(c) The Placing Agent shall have the right to terminate its
obligations by reasonable notice in writing under this Private Placing Agreement
if the Offered Shares are not delivered to the Purchasers by or on behalf of the
Selling Shareholders as provided herein or to effect the purchase by the
Purchasers of such Offered Shares as are delivered without relieving the Selling
Shareholders from liability for default.
(d) The Selling Shareholders shall have the right to terminate
their obligations under this Private Placing Agreement at any time prior to
receiving notice in writing from the Placing Agent of any Purchasers of the
Offered Shares and for any reason if the transfer of Offered Shares to a
Purchaser has not been completed within 24 hours of receipt by the Selling
Shareholders of notification of such Purchaser.
8. Selling Shareholders Covenants
The Selling Shareholders covenant and agree with the Placing
Agent that:
(a) They will not knowingly offer, sell, contract to sell,
pledge or otherwise dispose of, any additional shares in the
capital of the Company or securities convertible into or
exchangeable or exercisable for such shares or any
derivative instruments relating to such shares, deposit any
such securities in an American Depositary Receipt facility
during the period commencing on the date hereof and ending
on the date 180 days after the date of the Settlement Date,
in each case without the prior written consent (not to be
unreasonably withheld) of the Placing Agent
(b) the Selling Shareholders will promptly pay or transfer to or
to the order of the Placing Agent on behalf of the
Purchasers of the Offered Shares, upon receipt, any dividend
or distribution declared by the Company in respect of the
Offered Shares for which a record date occurs on or after
the Closing Date; and
(c) the Selling Shareholders shall as soon as reasonably
practicable notify the Placing Agent of any material change
of which it becomes aware affecting any of the warranties
contained in Section 1 which occur at any time before the
Closing Date.
9. Notices
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Placing Agent shall be delivered or sent by mail,
telex or facsimile transmission. The address and facsimile number of CSFB and
the Selling Shareholders are as follows (unless modifications are notified to
each of the parties hereto upon not less than five Business Days' notice):
(a) CSFB: Xxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx X00 0XX, Attention:
Company Secretary, facsimile transmission no. x00 00 0000
1600;
(b) Selling Shareholders: Nortel Networks Corporation, 0000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxx, X0X 0X0, Xxxxxx,
Attention: Secretary, facsimile transmission no. + 1 905 863
8386 with a copy, which does not constitute notice to Xxxxxx
Xxxxxxxx Xxxxx and Xxxxxxxx, City Place House, 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, XX0X 0XX, Attention: Xxxxxx Xxxxxx facsimile
transmission no. x00 00 0000 0000.
10. Miscellaneous
This Private Placing Agreement shall be binding upon, and inure
solely to the benefit of, the Placing Agent and the Selling Shareholders and, to
the extent provided herein, any directors, officers, employees and controlling
persons of the Placing Agent, and their heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Private Placing Agreement. No Purchaser of any of the
Offered Shares from the Placing Agent shall be deemed a successor or assign by
reason merely of such purchase.
Pursuant to Section 1(2) of the Contracts (Rights of Third
Parties) Xxx 0000 (the "Contracts Act") the parties intend that a person who is
not a party to this Agreement has no right under the Contracts Act to enforce
any term of this Agreement but this does not affect any right or remedy of a
third party which exists or is available apart form the Contracts Act.
11. Announcements
11.1 No announcement, statement, press conference or other
communication shall be (or be authorised to be) made, released,
issued or held by or on behalf of the parties hereto or their respective
directors, officers,
employees, agents or advisers before, on or after the date hereof or the subject
matter or provisions of, or transactions or matters referred to in or
contemplated by, or negotiations leading to, this Private Placing Agreement,
save:
(a) as may be agreed in writing by the other party hereto (such
agreement not to be unreasonably withheld or delayed); or
(b) pursuant to any announcement required to be made by any
applicable law or regulation or court or governmental,
administrative, regulatory or other authority (including the
UK Listing Authority, London Stock Exchange Limited and the
Panel on Takeovers and Mergers) provided that such
announcement is only made:-
(i) to the extent required by such law or regulation or
court or authority; and
(ii) (unless prohibited by such law or regulation or court
or authority) after being discussed and agreed with the
non-disclosing party (such agreement not to be
unreasonably withheld or delayed).
12. Variation
No variation of this Private Placing Agreement shall be effective
unless made in writing and signed by or on behalf of each of the parties to this
Private Placing Agreement.
13. Invalidity
If for any reason one or more of the provisions or undertakings
of this Private Placing Agreement shall be held to be invalid but would have
been held to be valid if part of the wording of the same was deleted or the
period or scope of the same reduced then the said provisions or undertakings
shall apply with such deletion or modification as may be necessary to make them
valid and effective.
14. Illegality of Provisions
Without prejudice to Clause 13, each of the provisions of this
Private Placing Agreement is severable. If any such provision or undertaking or
part thereof is or becomes illegal, invalid or unenforceable in any respect,
such provision or undertaking or part shall to that extent be deemed not to form
part of this Private Placing Agreement but the legality, validity and
enforceability of the remaining provisions and undertakings hereunder shall not
in any way be affected or impaired thereby.
15. Entire Agreement
This Agreement constitutes the entire agreement between the
parties hereto in relation to the subject matter hereof and supersedes any
existing wishes, and each party in entering into this Agreement agrees that it
does not rely on and shall have no remedy in respect of, all prior agreements,
understandings, undertakings, arrangements, representations and warranties of
any nature whatsoever whether written or oral in relation to such subject matter
other than as expressly set out in the Agreement, save that nothing herein shall
exclude or limit any liability or remedy arising as a result of fraud.
16. Jurisdictions
The Selling Shareholders and the Placing Agent irrevocably submit
to the non-exclusive jurisdiction of the courts of England and New York in any
legal suit, action or proceeding arising out of or based upon this Private
Placing Agreement, and the Selling Shareholders and the Placing Agent
irrevocably waive any objection which they may now or hereafter have to the
service of process or the laying of venue in connection with any such
proceeding.
17. Governing Law
This Private Placing Agreement shall be governed by and construed
in accordance with the laws of England and Wales. The Selling Shareholders
irrevocably appoint the Company Secretary, Nortel Networks Optical Components
Limited, Maidenhead Office Park, Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxxxxxx, XX0 0XX
as its agent to receive service of process in England and Wales of any
proceedings arising out of or in connection with this Private Placing Agreement.
18. Execution
This Private Placing Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us three (3) original counterparts hereof, and upon the
acceptance hereof by you, this Private Placing Agreement and such acceptance
hereof shall constitute a binding agreement between the Selling Shareholders and
the Placing Agent.
Very truly yours,
NORTEL NETWORKS LIMITED
By: /s/ Xxxx Xxxxxxx
-------------------------
Title: Director, Mergers
& Acquisitions
Accepted and Agreed:
CREDIT SUISSE FIRST BOSTON (EQUITIES) LIMITED
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------
Title: Managing Director
