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EXHIBIT 1.1
XXXXX HOLDINGS PLC
AND
XXXXXXX XXXXX INTERNATIONAL
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PURCHASE AGREEMENT
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TABLE OF CONTENTS
SECTION 1. Representations and Warranties..................................... 4
SECTION 2. Sale and Delivery to Managers; Closing.............................13
SECTION 3. Covenants..........................................................17
SECTION 4. Payment of Expenses................................................22
SECTION 5. Conditions of Managers' Obligations................................23
SECTION 6. Indemnification....................................................26
SECTION 7. Contribution.......................................................29
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.....30
SECTION 9. Termination of Agreement...........................................30
SECTION 10. Default by One or More of the Managers............................31
SECTION 11. Default by one or more of the Selling Shareholders................31
SECTION 12. Notices...........................................................32
SECTION 13. Parties...........................................................32
SECTION 14. Definition of the Term "Business Day..............................32
SECTION 15. Governing Law.....................................................32
SECTION 16. Consent to Jurisdiction...........................................32
SECTION 17. Counterparts......................................................33
SECTION 18. Effect of Headings................................................33
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Draft of June 25, 2001
XXXXX HOLDINGS PLC
(a Northern Ireland company)
[o] Ordinary Shares
(Par Value 10 xxxxx Per Share)
in the form of Ordinary Shares or American Depositary Shares
PURCHASE AGREEMENT
o, 2001
XXXXXXX XXXXX INTERNATIONAL
as Representative of the several Managers
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Ladies and Gentlemen:
Xxxxx Holdings PLC, a Northern Ireland Public Limited Company (the
"Company"), and The XxXxxx Trust, Xx. Xxxxx XxXxxx, Mr. R. Xxxxxxxx Xxxxxxx and
Dr. Xxxx Xxxx (each, a "Selling Shareholder", and together, the "Selling
Shareholders") confirm their respective agreements with Xxxxxxx Xxxxx
International, ("Xxxxxxx Xxxxx") and each of the other Managers named in
Schedule A hereto (collectively, the "Managers", which term shall also include
any Manager substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx is acting as representative (in such capacity, the
"Representative"), with respect to (i) the sale by the Company and the Selling
Shareholders, acting severally and not jointly, and the purchase or procurement
of initial purchasers by the Managers, acting severally and not jointly, of the
respective numbers of Ordinary Shares, par value 10 xxxxx per share, of the
Company ("Ordinary Shares") set forth in Schedules A and B hereto and (ii) the
grant by the Selling Shareholders to the Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of [o] additional Ordinary Shares to cover over-allotments, if any. The
aforesaid [o] Ordinary Shares (the "Initial Securities") to be purchased by the
Managers or which the Managers will procure purchasers for pursuant to Section
2(a) and all or any part of the [o] Ordinary Shares subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "International Securities."
The initial purchasers procured by the Managers or, if and to the
extent that the Managers have not procured such initial purchasers, the
Managers, may elect to have all or a portion of the International Securities
deposited by the Company or the Selling Shareholders, as the case may be,
pursuant to the Deposit Agreement (as defined herein) and to receive in lieu
thereof American Depositary Shares ("ADSs"). Unless the context otherwise
requires, references herein to "Initial Securities," "New Securities," (as
defined below) "Option
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Securities," "Open Offer Securities" (as defined below), "International
Securities" or "Securities" (as defined below) shall be deemed to include ADSs
representing any such Initial Securities, Option Securities, Open Offer
Securities, International Securities, New Securities or Securities,
respectively, and references to ADSs include American Depositary Receipts
("ADRs"), which evidence the ADSs, in each case unless the context otherwise
requires.
The ADSs will be issued in accordance with the Amended and Restated
Deposit Agreement dated September 29, 2000 (the "Deposit Agreement"), by and
among the Company, Xxxxxx Xxxxxxxx PLC, The Bank of New York, as depositary (the
"Depositary"), and the holders and beneficial owners from time to time of ADRs
issued thereunder. Each ADS will represent four Ordinary Shares deposited
pursuant to the Deposit Agreement and delivered to the London office of The Bank
of New York (the "Custodian"), as agent for the Depositary.
The Company has also entered into an agreement dated o, 2001 (the
"Sponsor's and Open Offer Agreement") with Xxxxxxx Xxxxx (in such capacity, the
"Sponsor") pursuant to which the Sponsor, as agent for the Company, has made an
offer on a pre-emptive basis to certain qualifying shareholders of the Company
in the United Kingdom and other permitted jurisdictions to subscribe for
Ordinary Shares of the Company (the "U.K. Open Offer"). In addition, the Company
is making an offer on a pre-emptive basis to qualifying shareholders in the
United States to subscribe for Ordinary Shares of the Company (the "U.S. Open
Offer"). The U.K. Open Offer and the U.S. Open Offer are hereinafter
collectively called the "Open Offer." Pursuant to the Open Offer, the Company
shall issue, on and subject to the occurrence of the Closing Time referred to
herein, [o] Ordinary Shares (the "Open Offer Securities") in the form of
Ordinary Shares or ADSs. The International Securities and the Open Offer
Securities are hereinafter collectively called the "Securities." The
International Securities (excluding the International Securities to be sold by
the Selling Shareholders) and the Open Offer Securities are collectively
referred to as the "New Securities."
The Company and the Selling Shareholders understand that the Managers
propose to make a public offering of the International Securities as soon as the
Representative deems advisable after this Agreement has been executed and
delivered by means of (A) a public offering in the United States and (B) an
offering to certain investors outside the United States in reliance upon
Regulation S under the 1933 Act (as defined below) (the "International Offer"
and, together with the Open Offer, the "Offers"). All sales in the United States
by the Managers will be made through their U.S. broker-dealer affiliates, which
persons shall be registered as broker-dealers under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
The Company and the Selling Shareholders understand that in connection
with the International Offer, each Manager has agreed that:
(A) it has not offered or sold and, prior to the expiration of
the period of six months from the closings of the Offers, will not
offer or sell (other than in connection with the Open Offers to
qualifying shareholders) any Ordinary Shares of the Company to persons
in the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business
or otherwise in circumstances which do not constitute an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
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(B) it has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 (as amended) with respect
to anything done by it in relation to the Ordinary Shares of the
Company in, from or otherwise involving the United Kingdom; and
(C) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issuance of the Company's Ordinary Shares to a person who is
of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investments Advertisements) (Exemptions) Order 1996 (as amended) or is
a person to whom such document may otherwise lawfully be issued or
passed on.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-1 (No. 333-o) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses. The
registration statement contains two prospectuses: the U.S. Prospectus (as
defined below), to be used in connection with the public offering of
International Securities in the United States, and the U.S. Open Offer
Prospectus (as defined below) to be used in connection with the U.S. Open Offer.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from the registration statement at the time it became effective but that
is deemed to be part of the registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information."
The Company has prepared three prospectuses in connection with the
International Offer:
(A) A U.S. prospectus (the "U.S. Prospectus") relating to the
public offering in the United States.
(B) an international prospectus (the "International
Prospectus") which is identical to the U.S. Prospectus, with the
exception of the front cover page and the back cover page, relating to
the offering to certain investors outside the United States; and
(C) a Canadian prospectus (the "Canadian Prospectus") which
consists of the U.S. Prospectus wrapped by an additional disclosure
document relating to an offering to institutional investors in Canada.
The Company has prepared two prospectuses in connection with the Open
Offer:
(A) a prospectus relating to the U.S. Open Offer (the "U.S.
Open Offer Prospectus"); and
(B) a prospectus and a U.K pricing prospectus relating to the
U.K. Open Offer (the "U.K. Open Offer Prospectus" and together with the
U.S. Open Offer Prospectus, the "Open Offer Documents").
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Each International Prospectus and Canadian Prospectus used in
connection with the International Offer prior to the execution and delivery of
this Agreement is hereinafter called a "Preliminary International Prospectus"
and "Preliminary Canadian Prospectus", respectively. Each U.S. Prospectus and
U.S. Open Offer Prospectus used before the registration statement became
effective, and any U.S. Prospectus that omitted, as applicable, the Rule 430A
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "U.S. Preliminary
Prospectus." Each U.S. Preliminary Prospectus, Preliminary International
Prospectus and Preliminary Canadian Prospectus are herein collectively referred
to as the "Preliminary Prospectuses."
The final forms of the U.S. Prospectus and the U.S. Open Offer
Prospectus are collectively referred to herein as the "U.S. Final Prospectuses."
The registration statement, including the exhibits thereto, and the
schedules thereto, if any, at the time it became effective and including the
Rule 430A Information is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final forms of the U.S. Prospectus, U.S. Open Offer
Prospectus, International Prospectus and Canadian Prospectus furnished to the
Managers for use in connection with the offering of the Securities are herein
called the "Prospectuses." For purposes of this Agreement, all references to the
Registration Statement, any Preliminary U.S. Prospectus, the U.S. Prospectus,
the U.S. Open Offer Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX"). The
Registration Statement, the Preliminary Prospectuses, the Prospectuses and the
Open Offer Documents are collectively referred to as the "Offer Documents."
SECTION 1. Representations and Warranties
(a) Representations and Warranties by the Company. The Company represents and
warrants to each Manager as of the date hereof, as of the Closing Time referred
to in Section 2(d) hereof, and as of each Date of Delivery (if any) referred to
in Section 2(b) hereof, and agrees with each Manager, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form F-1 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the
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applicable requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. None of the
U.S. Preliminary Prospectuses as of their respective dates and, if
amended or supplemented as of the date of such amendment or supplement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. None of the U.S. Final Prospectuses nor any
amendments or supplements thereto, at the time such U.S. Final
Prospectuses or any such amendment or supplement were issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement, U.S. Preliminary Prospectuses or U.S. Final Prospectuses
made in reliance upon and in conformity with information furnished to
the Company in writing by any Manager through Xxxxxxx Xxxxx expressly
for use in the Registration Statement, U.S. Preliminary Prospectuses or
U.S. Final Prospectuses.
Each Preliminary U.S. Prospectus, and U.S. Final Prospectuses,
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424(b)
complied when so filed in all material respects with the 1933 Act
Regulations and each Preliminary U.S. Final Prospectus and the U.S.
Prospectus delivered to the Managers for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) UK Open Offer Documents and International and Canadian
Prospectus. None of the UK Open Offer Documents, the International
Prospectus or Canadian Prospectus as of their respective dates and, if
amended or supplemented as of the date of such amendment or supplement,
contained or will contain an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(iii) Independent Accountants. To the knowledge and belief of
the Company, the accountants who certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectuses are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly (and in the case of audited
financial statements, show a true and fair view of) the financial
position of the Company and its consolidated subsidiaries, and of
Xxxxxx Xxxxxxxx PLC and its consolidated subsidiaries, at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries, and of
Xxxxxx Xxxxxxxx PLC and its consolidated subsidiaries,
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for the periods specified; said financial statements have been prepared
in conformity with the applicable generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved except as otherwise disclosed in the Prospectuses. The
supporting schedules, if any, included in the Registration Statement
and the Prospectuses present fairly in accordance with the applicable
GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines and, with respect to the pro forma
financial statements for the period ended March 31, 2001, the listing
rules of the U.K. Listing Authority, with respect to pro forma
financial statements and have been properly compiled on the bases
described therein (which is consistent with the accounting principles,
standards and practices normally applied by the Company), and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular dividends on the Ordinary Shares
in amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a public limited company under the
laws of Northern Ireland and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company has been duly organized and is validly existing as a
corporation under the laws of the jurisdiction of its incorporation or
formation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business in each
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jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement and the Prospectuses, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary. The only subsidiaries of the
Company are the subsidiaries listed in the Prospectuses.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred
to in the Prospectuses). The shares of issued and outstanding capital
stock, including the Securities to be purchased by the Managers or
initial purchasers procured by the Managers from the Selling
Shareholders, have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock, including the Securities to be purchased by the Managers
or initial purchasers procured by the Managers from the Selling
Shareholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization of the Deposit Agreement. The Deposit
Agreement constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to rights to
indemnities thereunder that may be limited by law and, subject as to
enforcement to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(xi) Authorization and Description of Securities. The New
Securities to be purchased by the Managers or initial purchasers
procured by the Managers from the Company have been duly authorized for
issuance and sale to the Managers or to initial purchasers procured by
the Managers pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid
and non-assessable; and the ADSs, when the International Securities to
be deposited pursuant to the Deposit Agreement are so deposited in
accordance with the terms of the Deposit Agreement and upon payment by,
or at the direction of, the Managers for the ADSs, will be validly
issued and fully paid and non-assessable and, except as disclosed in
the Prospectuses, there are no pre-emptive or other rights to subscribe
for or to purchase, nor any restrictions upon the voting or transfer
of, any of the International Securities pursuant to the Articles of
Association of the Company or the laws of Northern Ireland, other than
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such rights that have been effectively complied with, disapplied or
otherwise waived in accordance with the laws or regulations of Northern
Ireland; and the International Securities and ADSs each will conform in
all material respects to the respective descriptions thereof contained
in the Prospectuses; and no further approval or authority of the
shareholders or the Board of Directors of the Company will be required
for the issuance and sale of the International Securities and the ADSs
or the deposit of the International Securities as contemplated herein
and in the Deposit Agreement.
(xii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such violations
or defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectuses (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any material amount of any
note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xiii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, which, may reasonably be expected to
result in a Material Adverse Effect.
(xiv) Absence of Proceedings. Other than as set forth in the
Registration Statement and the Prospectuses there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement or the Prospectuses, or which might reasonably
be expected to
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result in a Material Adverse Effect or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement or the Prospectuses, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except as may have been
made or obtained or required by the 1933 Act, U.S. state securities
laws or the U.K. Listing Authority.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate regulatory agencies or bodies in the United Kingdom,
the Republic of Ireland, the United States and elsewhere as is
necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and
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good title to all other properties owned by them, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Registration Statement or the Prospectuses or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Registration Statement or the Prospectuses, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xx) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Registration Statement and the Prospectuses will not be, an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxi) Environmental Laws. Except as described in the
Registration Statement and the Prospectuses and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (a)
neither the Company nor any of its subsidiaries is in violation of any
United Kingdom, Republic of Ireland or United States federal or state,
or of any other jurisdiction, statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (b) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(c) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (d) there are no events or circumstances that
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might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxii) No Registration Rights. Except as disclosed in the
Registration Statement or the Prospectuses, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or any material
amount of securities otherwise registered by the Company under the 1933
Act.
(xxiii) Passive Foreign Investment Company. After due inquiry,
the Company does not expect to be a "passive foreign investment
company" within the meaning of Section 1297 of the U.S. Internal
Revenue Code of 1986, as amended, in the current taxable year or in
future years.
(xxiv) Taxation. Other than United Kingdom stamp duty or stamp
duty reserve taxes payable in connection with (c) below, no stamp or
other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable by or on behalf of the
Managers in connection with (a) the deposit with the Depositary of
Securities against the issuance of American Depositary Receipts
evidencing ADSs; (b) the issue of the New Securities by the Company to
the Managers or to initial purchasers procured by the Managers in the
manner contemplated herein; or (c) the sale and delivery by the
Managers of the Securities and ADSs to the initial purchasers thereof
in the manner contemplated herein.
(xxv) Dividend Payments. Except as set forth in the
Registration Statement or the Prospectuses, no authorization, approval
or consent of any governmental authority or agency of Northern Ireland
is required to effect dividend payments on any Ordinary Shares,
including any Ordinary Shares held by the Depositary, or for the
Depositary to effect dividend payments in U.S. dollars on any ADSs.
(xxvi) Compliance with Applicable Laws. The Company has
complied, and will comply, in all material respects, with all
applicable laws in connection with the performance of its obligations
under this Agreement and the consummation of the transactions herein
contemplated.
(xxvii) Insurance. Other than as disclosed in the Registration
Statement or the Prospectuses, the Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective businesses and
the value of their respective properties and is customary for companies
engaged in similar businesses in similar industries.
(xxviii) No Stabilization or Manipulation. Neither the Company
nor any of its affiliates (as defined in Rule 501 under the Securities
Act) ("Affiliates") nor any person acting on its or their behalf has
taken, directly or indirectly, any action which was designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any shares of
the Company.
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(b) Representation and Warranties by the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to each Manager as of the
date hereof, as of the Closing Time, and, if the Selling Shareholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with each Manager, as follows:
(i) Accurate Disclosure. Such Selling Shareholder has reviewed
and is familiar with the information contained under the heading
"Selling Shareholders" (the "Selling Shareholder Information") in the
Registration Statement and the Prospectuses and such Selling
Shareholder Information does not contain any untrue statement of a
material fact or omits 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; such Selling Shareholder is not
prompted to sell the Securities to be sold by such Selling Shareholder
hereunder by any information concerning the Company or any subsidiary
of the Company which is not set forth in the Prospectuses.
The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or Prospectuses made by the Company or made in reliance upon and in
conformity with information furnished to the Company in writing by any
Manager through the Representative expressly for use in the
Registration Statement or the Prospectuses.
(ii) Authorization of Agreement. This Agreement when executed
and delivered by such Selling Shareholder, shall constitute a valid and
legally binding obligation of such Selling Shareholders.
(iii) Good and Marketable Title. Such Selling Shareholder has
and will at the Closing Time and, if any Option Securities are
purchased, on the Date of Delivery have good and marketable title to
the Securities to be sold by such Selling Shareholder hereunder, free
and clear of any security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind, other than pursuant to this
Agreement; and upon delivery of such Securities and payment of the
purchase price therefor as herein contemplated, assuming each such
Manager has no notice of any adverse claim, each of the Managers, or
purchasers procured by the Managers will receive good and marketable
title to the Securities purchased by it from such Selling Shareholder,
free and clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind.
(iv) Absence of Manipulation. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(v) No Association with NASD. Neither such Selling Shareholder
nor any of his/her affiliates directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc.
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(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Managers shall be deemed a representation and warranty by the
Company to each Manager as to the matters covered thereby; and any certificate
signed by or on behalf of the Selling Shareholders shall be deemed a
representation and warranty by such Selling Shareholder to the Managers as to
the matter covered thereby.
SECTION 2. Sale and Delivery to Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each Manager, severally and not jointly, and each Manager,
severally and not jointly, agrees to procure, initial purchasers for or, failing
which, itself purchase from the Company and each Selling Shareholder, at the
price per share set forth in Schedule C (the "Purchase Price"), that proportion
of the number of Initial Securities set forth in Schedule B opposite the name of
the Company or such Selling Shareholder, as the case may be, which the number of
Initial Securities set forth in Schedule A opposite the name of such Manager
bears to the total number of Initial Securities, plus any additional number of
Initial Securities which such Manager may become obligated to purchase pursuant
to the provisions of Section 10 hereof, subject, in each case, to such
adjustments among the Managers as the Representative in its sole discretion
shall make to eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholders, acting severally and not jointly, hereby
grant an option to the Representative on behalf of the Managers to purchase up
to an additional [o] shares, in the form of Ordinary Shares or ADSs, (provided,
however, that the number of Option Securities offered and sold into the United
States may not exceed 15% of the Initial Securities) at the price per share set
forth in Schedule C, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities but
not payable on the Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Representative to the Selling Shareholders setting forth the
number of Option Securities as to which the several Managers are then exercising
the option, whether all or a portion of such Option Shares are to be delivered
in the form of ADSs, and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representative, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Managers, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Manager bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representative in its discretion shall make to eliminate any sales or purchases
of fractional shares.
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(c) Pre-Closing Arrangements. The Company undertakes to procure that on
or before the date of this Agreement a securities application form is submitted
by the Company to CRESTCo. ("CREST").
The Representative will provide the Company with a list of the persons
to whom Initial Securities are to be allotted and issued and indicating which of
such Initial Securities are to be allotted in certificated or uncertificated
form.
(d) Taxation. Other than United Kingdom stamp duty or stamp duty
reserve taxes payable in connection with (iii) below, no stamp or other issuance
or transfer taxes or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Managers in connection with (i) the
deposit with the Depositary of Securities against the issuance of American
Depositary Receipts evidencing ADSs; (ii) the issue of the New Securities by the
Company or the sale of Securities by the Selling Shareholders to the Managers or
to initial purchasers procured by the Managers in the manner contemplated
herein; or (iii) the sale and delivery by the Managers of the Securities and
ADSs to the initial purchasers thereof in the manner contemplated herein.
(e) Delivery and Payment. Payment of the purchase price for, and
delivery of the Initial Securities shall be made at the offices of Xxxxxxxx
Chance, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, or at such other place as shall
be agreed upon by the Representative and the Company, at 2:00 P.M. on the third
(fourth, if the pricing occurs after 4:30 P.M. London time on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
and the Selling Shareholders (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Managers, payment of the purchase price for, and delivery of
such Option Securities shall be made at the above-mentioned offices, or at such
other place as shall be agreed upon by the Representative and the Selling
Shareholders, on each Date of Delivery as specified in the notice from the
Representative to the Selling Shareholders.
All International Securities to be delivered in the form of Ordinary
Shares at the Closing Time or on a Date of Delivery, as the case may be, shall
be delivered through the book-entry facilities of CREST by the Company and the
Selling Shareholders to Xxxxxxx Xxxxx Nominees for the account of the initial
purchasers procured by the Managers or, failing which, the Managers, unless
otherwise agreed. If an election has been made to acquire ADSs, the ADRs
evidencing the ADSs to be acquired by each Manager or the initial purchasers
procured by the Managers in such denominations and registered in such names as
the Representative may have requested not later than the Notification Time (as
defined below) by notice to the Depositary, the Company and/or the Selling
Shareholders, as appropriate, shall be delivered to the Representative for the
account of such Manager or the initial purchasers procured by such Manager
through the book entry facilities of The Depository Trust Company in New York
("DTC"). It is understood and agreed by the parties hereto that no delivery or
transfer of International Securities to be purchased under this Agreement on the
Closing Time or on a Date of Delivery, as the case may be, shall be effective
until and unless payment therefor has been made pursuant to this Agreement and
the Company shall have furnished or caused to be
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furnished to the Representative on the Closing Time or on a Date of Delivery, as
the case may be, certificates and other evidence satisfactory to The
Representative of the execution in favor of the initial purchasers procured by
the Managers or, failing which, the Managers, unless otherwise agreed, of the
book-entry transfers.
Payment shall be made to the Company and the Selling Shareholders,
severally, for the Initial Securities and any Option Securities being sold by
them on the Closing Date and any Date of Delivery, as the case may be, in pounds
sterling funds (in the case of International Securities in the form of Ordinary
Shares) and in United States dollars (in the case of International Securities in
the form of ADSs) immediately available, to an account or accounts designated by
the Company and the Selling Shareholders against (i) delivery of such Initial
Securities and Option Securities, if any, by the Company and/or the Selling
Shareholder, as the case may be, or (ii) such evidence as the Managers may
request that proper book entries have been made with respect to such Initial
Securities and Option Securities, if any, in each case, for the respective
accounts of the several Managers. It is understood that each Manager has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the subscription price for the Initial Securities and
the Option Securities, if any, for which it has agreed to procure initial
purchasers, or failing which, to purchase itself. Xxxxxxx Xxxxx, individually
and not as representative of the Managers, may (but shall not be obligated to)
make payment of the purchase price for the Initial Securities or the Option
Securities, if any, on behalf of any Manager whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Manager from its obligations hereunder.
Certificates may be delivered for the Initial Securities and the Option
Securities, if any, only with the prior written consent of the Representative.
Any certificates delivered for the Initial Securities and Option Securities, if
any, shall be in definitive form and registered in such names and in such
denominations as the Representative shall request in writing not later than one
full business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be. Any certificates evidencing the Initial Securities and Option
Securities, if any, shall be delivered to the Representative on the Closing Time
or the relevant Date of Delivery, as the case may be, for the respective
accounts of the initial purchasers procured by the Managers or, failing which,
the several Managers, with any stamp duty, stamp duty reserve tax or other
transfer tax in respect of the issue and delivery of such Securities to the
initial purchasers procured by the Managers or, failing which, to the Managers,
duly paid by the Company or the Selling Shareholder (as the case may be) against
payment of the subscription price therefor.
The offer price (the "Offer Price") for both the Initial Securities and
any Option Securities purchased from the Company and the Selling Shareholders in
the form of Ordinary Shares shall be (pound)o per Initial Security or Option
Security and the Offer Price for both Initial Securities and any Option
Securities purchased from the Company and the Selling Shareholders in the form
of ADSs shall be $o per ADS, in each case before underwriting discounts and
commissions.
(f) Compensation. As compensation to the Managers for their commitments
hereunder, the Company and the Selling Shareholders, severally and not jointly,
will at the Closing Time or the relevant Date of Delivery pay to the
Representative for the accounts of the Managers, underwriting discounts and
commissions (the "Commissions") of [o]% of the Offer
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Price of each Ordinary Share or ADS (being (pound) o per Ordinary Share or $ o
per ADS) to be delivered by the Company and the Selling Shareholders,
respectively, at the Closing Time or the relevant Date of Delivery (plus any
applicable value added tax). The Commission comprises (i) a base commission of
4% of the offer price per Ordinary Share or ADS in the International Offering,
plus (ii) an incentive fee (the "Incentive Fee") of 1% of the Offer Price per
Ordinary Share or ADS of the Securities. The Incentive Fee has been determined
by the Company, at its discretion after consultation with the Representative, in
accordance with the agreement between them that the Company would pay to the
Representative, at its discretion, an incentive fee of up to 1% of the Offer
Price per Ordinary Share or ADS. The Representative shall be entitled to deduct
the Commission (and any applicable value added tax) from the proceeds to be paid
to the Company and the Selling Shareholders for such Ordinary Shares or ADSs.
As compensation to the Sponsor and its agents for their participation
as agents in the Open Offer, the Company will, at Closing Time, pay to the
Sponsor, for its sole account, an amount equal to [o], being the Agency
Commissions owed to the Sponsor under Section 5 of the Sponsor's and Open Offer
Agreement ("Agency Commission") together with any Open Offer Incentive Fee (as
defined in Section 5 of the Sponsor's and Open Offer Agreement) agreed to be
paid in respect thereof. The Representative (in its capacity as Sponsor) shall
be entitled to deduct this amount, for its sole account, from the proceeds to be
paid to the Company for the Initial Securities issued at Closing Time, provided
that, if the Agency Commissions and Open Offer Incentive Fee (if any) owed to
the Sponsor exceed the aggregate proceeds due to the Company from the several
Managers, the Representative, on behalf of the Sponsor, shall be entitled to
recover such shortfall from the Company in full at Closing Time. Any such
off-setting shall satisfy the obligations of the Company in full and the Company
will not be responsible for the application of the funds off-set by the
Representative in paying the Sponsor and its agents.
In addition, in accordance with Section 4 hereunder the Representative
shall be entitled to off-set, against payment of the proceeds to the Company for
the Initial Shares issued at Closing Time, any amounts advanced by the
Representative for expenses that the Company has agreed to pay under Section 4.
(g) Denominations; Registration. The Representative, on behalf of the
initial purchasers procured by the Managers, or, if and to the extent the
Managers have not procured such initial purchasers, on behalf of the several
Managers, may elect to have International Securities delivered in the form of
ADSs, evidenced by ADRs. Such delivery will be in satisfaction of the Company's
obligations to sell to initial purchasers procured by the Managers, or, if and
to the extent the Managers have not procured such initial purchasers, to the
several Managers, and the several Managers' obligations to procure initial
purchasers for, or if and to the extent the Managers have not procured such
initial purchasers, to purchase, such International Securities. Notice of such
election with respect to Closing Time or a Date of Delivery shall be given by
the Representative to the Company two full business days prior to Closing Time
or such Date of Delivery (the "Notification Time"). Certificates for the Initial
Securities, and the Option Securities and the ADRs, if any, shall be in such
denominations and registered in such names as the Representative may request in
writing at least one full business day before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Initial
Securities, the ADRs and the Option Securities, if any, will be made available
for examination and packaging by the Representative in The City of London not
later
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than 10:00 A.M. on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants
(a) Covenants of the Company. The Company covenants with each Manager
as follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representative
immediately, and confirm the notice in writing, (a) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the U.S. Final Prospectuses or any
amended U.S. Final Prospectus shall have been filed, (b) of the receipt
of any comments from the Commission, (c) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the U.S. Final Prospectuses or for
additional information, and (d) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company
will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(ii) Filing of Amendments. The Company will give the
Representative notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b)),
or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective
or to the U.S. Final Prospectuses, whether pursuant to the 1933 Act, or
otherwise, will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Managers shall reasonably
object.
(iii) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representative and counsel for the
Managers, without charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to the Representative, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Managers. The copies of the
Registration Statement and each amendment thereto furnished to the
Managers will be
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identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iv) Delivery of Prospectuses. The Company has delivered to
each Manager, without charge, as many copies of each Preliminary
Prospectus as such Manager reasonably requested, and the Company hereby
consents to the use of such copies of the U.S. Preliminary Prospectuses
for purposes permitted by the 1933 Act. The Company will furnish to
each Manager, without charge, during the period when the U.S. Final
Prospectuses are required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of each of the U.S. Final Prospectuses (as amended or supplemented) as
such Manager may reasonably request. The U.S. Final Prospectuses and
any amendments or supplements thereto furnished to the Managers will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
The Company has printed and delivered the Open Offer Documents
in accordance with instructions from the Sponsor and if, before the New
Securities have been admitted to the Official List of the London Stock
Exchange, there is a significant change affecting any matter required
to be included, or a significant new matter arises which would have
been required to be included, in the Open Offer Documents by Section
146 of the Financial Services Xxx 0000 or the listing rules of the
London Stock Exchange, the Company shall immediately (i) disclose the
change or matter to the Sponsor and the Representative in writing; and
(ii) prepare and, through the Sponsor, deliver to the London Stock
Exchange for approval supplementary listing particulars containing
details of the change or matter in a form agreed by the Sponsor and the
Representative and which complies with the listing rules of the London
Stock Exchange.
(v) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and applicable provisions of the 1933 Act
Regulations and the rules and regulations of the Commission under the
1934 Act (the "1934 Act Regulations") so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement
and in the Prospectuses. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result
of which it is necessary, in the opinion of counsel for the Managers or
for the Company, to amend the Registration Statement or amend or
supplement the Prospectuses in order that the U.S. Final Prospectuses
will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the U.S. Final Prospectuses in order
to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the U.S. Final Prospectuses comply
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with such requirements, and the Company will furnish to the Managers
such number of copies of such amendment or supplement as the Managers
may reasonably request.
(vi) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Managers, to qualify the Securities
for offering and sale under the applicable securities laws of such
states of the United States and other jurisdictions as the
Representative may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(vii) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectuses under "Use of Proceeds".
(ix) Listing. The Company will use its best efforts to effect
the admission of the New Securities to the Official Lists of the UK
Listing Authority and the Irish Stock Exchange Limited and for trading
on the London Stock Exchange plc. In addition, the Company will use its
best efforts to maintain the quotation of the ADSs on the Nasdaq
National Market and will file with the Nasdaq National Market all
documents and notices required by the Nasdaq National Market of
companies that have securities that are traded in the over-the-counter
market and quotations for which are reported by the Nasdaq National
Market.
(x) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectuses, the Company will not, without
the prior written consent of The Representative, (a) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (b) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Ordinary
Shares, whether any such swap or transaction described in clause (a) or
(b) above is to be settled by delivery of Ordinary Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold
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hereunder, (B) any Ordinary Shares issued by the Company upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectuses, (C)
any Ordinary Shares issued or options to purchase Ordinary Shares
granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectuses or (D) any Ordinary Shares issued
pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(xi) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(xii) Notification. Between the date hereof and the latest
possible Delivery Date (both dates inclusive), the Company will notify
and to the extent practicable consult with the Representative, and to
cause its subsidiaries and all other parties acting on its or their
behalf to notify and consult with the Representative, prior to issuing
any announcement which could be material in the context of the
distribution of the International Securities;
(xiii) Stabilization. The Company will not take, directly or
indirectly, any action which is designed to stabilize or manipulate, or
which constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation, of the price of any security
of the Company in connection with the offering of the International
Securities;
(xiv) Taxes. The Company will pay to the UK Inland Revenue
within the applicable time limits, and to indemnify and hold harmless
the Managers against, any U.K. stamp duty, SDRT or similar issuance or
transfer tax, including any interest and penalties arising as a result
of: the creation, issuance, sale and delivery by the Company to the
Managers or initial purchasers procured by the Managers of the New
Securities; the issue of the New Securities and deposit of the New
Securities in the form of ADSs with the Depositary. All payments to be
made by the Company to the Managers under this paragraph shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the
Company is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Company shall pay such additional amounts
as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made;
(xv) Regulatory Communications. The Company will promptly
inform the Representative of any communications received by the Company
from any governmental or regulatory agency or authority, including
without limitation, any U.K. regulatory authority, the London Stock
Exchange plc (the "London Stock Exchange") or the Commission relating
to the offering of the Securities and to furnish the Representative
with copies thereof; and
(xvi) Further Assurances. The Company will cooperate with the
Managers and execute and deliver, or use its best efforts to cause to
be executed and delivered, all such other instruments, and take all
such other action as such party may reasonably be
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requested to take by the Managers from time to time, in order to
effectuate the sales of the International Securities in the offering
contemplated hereby.
(b) Covenants of the Selling Shareholders. Each Selling Shareholder
severally covenants with each Manager as follows:
(i) Taxes. To pay to the Inland Revenue within the applicable
time limits, and to indemnify and hold harmless the Managers against,
any U.K. stamp duty, SDRT or similar issuance or transfer tax,
including any interest and penalties arising as a result of: the sale
and delivery by the Selling Shareholders to the Managers or the initial
purchasers procured by the Managers of the Initial Securities or Option
Securities to be sold by such Selling Shareholder, and the deposit of
such Securities in the form of ADSs with the Depositary on the
execution and delivery of this Agreement. All payments to be made by
the Selling Shareholders to the Managers under this paragraph shall be
made without withholding or deduction for or on account of any present
or future taxes, duties or governmental charges whatsoever unless such
Selling Shareholder is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, such Selling Shareholder shall
pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction
had been made;
(ii) Announcements. Between the date hereof and the latest
possible Delivery Date (both dates inclusive), to notify and consult
with the Representative, prior to issuing any announcement which could
be material in the context of the distribution of the Securities; and
(iii) Stabilization. To not take, directly or indirectly, any
action which is designed to stabilize or manipulate, or which
constitutes or which might reasonably be expected to cause or result in
stabilization or manipulation, of the price of any security of the
Company in connection with the offering of the Securities.
(iv) Restriction on Sale of Securities. During a period of 180
days from the date of the Prospectus, such Selling Shareholder, except
for The XxXxxx Trust, will not, without the prior written consent of
the Representative, (a) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any Ordinary Shares or
any securities convertible into or exercisable or exchangeable for
Ordinary Shares or file any registration statement under the 1933 Act
with respect to any of the foregoing or (b) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Ordinary Shares, whether any such swap or transaction described in
clause (a) or (b) above is to be settled by delivery of Ordinary Shares
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to the Securities to be sold pursuant to the terms of
this Agreement.
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SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement and under
the Sponsor's and Open Offer Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Managers of this Agreement, any
Agreement among Managers, the Sponsor's and Open Offer Agreement and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Managers or initial
purchasers procured by the Managers, (iv) all costs incurred by the Company and
the Sponsor in connection with the Sponsor's and Open Offer Agreement, (v) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(vi) the qualification of the Securities under securities laws in accordance
with the provisions of Section 3(a)(vi) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Managers in connection
therewith and in connection with the preparation, printing and delivery to the
Managers of copies of the Blue Sky Survey and any supplement thereto, (vii) the
printing and delivery to the Managers and qualifying shareholders of copies of
each Preliminary Prospectus, and of the Prospectuses and the Open Offer
Documents (as the case may be) and any amendments or supplements thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Managers in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities and (x) the fees and expenses incurred in connection with the
inclusion of the Securities in the form of ADSs, in the Nasdaq National Market,
(xi) the fees and expenses (including fees and disbursements of counsel) of the
Depositary and any nominee or custodian appointed under the Deposit Agreement
other than the fees and expenses to be paid by holders of ADRs (except the
Managers, in connection with the initial purchase of the ADSs), (xii) the fees
and expenses of any Process Agent (as defined in Section 16 hereof), (xiii) the
costs of preparing and distributing ADR certificates evidencing the ADSs and
share certificates in respect of the Securities, (xiv) all expenses and fees in
connection with the listing, or the application for trading of the Securities on
the London Stock Exchange plc and the Irish Stock Exchange Limited, the
quotation of the ADSs on the Nasdaq National Market, and the obtaining of any
approvals in connection with the sale of the Securities from relevant
authorities in the United Kingdom, the Republic of Ireland or the United States,
(xv) any and all U.K. stamp duty, Stamp Duty Reserve Tax or similar issuance or
transfer tax, including any costs, interest and penalties arising from or in
connection with: the creation, issuance, sale and delivery by the Company to the
Managers or the initial purchasers procured by the Managers of the International
Securities; the issue of the International Securities to, and deposit of the
International Securities in the form of ADSs with, the Depositary; (xvi) all
costs and expenses of the Managers; (xvii) all roadshow expenses incurred by the
Representative, (xviii) the costs and charges of any transfer agent, registrar
or receiving bank in connection with the Open Offer, and (xix) any value added
tax properly charged on any of the foregoing items.
(b) Expenses of the Selling Shareholders. Each of the Selling
Shareholders, severally, will pay all expenses incident to the performance of
their respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i)
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any and all U.K. stamp duty, Stamp Duty Reserve Tax or similar issuance or
transfer tax, including any costs, interest and penalties arising from or in
connection with: the creation, issuance, sale and delivery by the Selling
Shareholders to the Managers or the initial purchasers procured by the Managers
of the International Securities; and the issue of the International Securities
to, and deposit of the International Securities in the form of ADSs with, the
Depositary; (ii) the fees and disbursements of their respective counsel and
accountants, and (iii) any value added tax properly charged on any of the
foregoing items.
(c) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9 or
Section 11 hereof, the Company shall reimburse the Managers for all of their
out-of-pocket expenses.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Managers' Obligations.
The obligations of the several Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or the Selling Shareholders
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Shareholders of their covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Managers. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinions, dated as of Closing Time, of
Xxxxxxxx & Xxxxx, London, England, Ashurst Xxxxxx Xxxxx, London, England and
Xxxxx Xxxxx, Belfast, Northern Ireland, counsel for the Company, in form and
substance satisfactory to counsel for the Managers, together with signed or
reproduced copies of such letters for each of the other Managers.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the Representative shall have received the favorable opinions, dated as of
Closing Time, of Xxxxxxxx & Xxxxx, London, England, Ashurst Xxxxxx Xxxxx,
London, England and Xxxxx Xxxxx, Belfast, Northern Ireland, counsel for the
Selling Shareholders, in form and substance satisfactory to counsel for the
Managers, together with signed or reproduced copies of such letters for each of
the other Managers.
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(d) Opinion of Counsel for Managers. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxxx Chance Limited Liability Partnership, counsel for the
Managers, together with signed or reproduced copies of such letter for each of
the other Managers. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York and the federal law of the United States upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of the Selling Shareholders and certificates of public officials.
(e) Opinion of Counsel for Depositary. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, in the form
and substance satisfactory to counsel for the Managers to the effect that;
(i) The Deposit Agreement has been duly authorized, executed
and delivered by the Depositary and constitutes a valid and legally
binding obligation of the Depositary enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; and
(ii) When ADRs have been duly executed and, if applicable,
countersigned, and duly issued and delivered in accordance with the
Deposit Agreement, the ADSs evidenced by ADRs will be validly issued
and will entitle the registered holders thereof to the rights specified
in the ADRs and the Deposit Agreement.
(f) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any change or any development that has a Material
Adverse Effect on the condition, financial or otherwise, or in the earnings,
business affairs, or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate of the
Executive Chairman or Chief Executive Officer of the Company and of the Chief
Financial Officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(g) Certificate of Selling Shareholders. At Closing Time, the
Representative shall have received a certificate from each Selling Shareholder,
dated as of Closing Time, to the effect that (i) the representations and
warranties of each Selling Shareholder contained in Section 1(b) hereof are true
and correct in all respects with the same force and effect as though expressly
made at and as of Closing Time and (ii) each Selling Shareholder has complied in
all
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material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to Closing Time.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from PricewaterhouseCoopers a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Managers containing statements and information of the type
ordinarily included in accountants' "comfort letters" to Managers with respect
to the financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(i) Bring-down Comfort Letters. At Closing Time, the Representative
shall have received from PricewaterhouseCoopers a letter, dated as of the
Closing Time to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the specified
date referred to therein shall be a date not more than three business days prior
to the Closing Time.
(j) Approval of Listing. At Closing Time, the New Securities shall have
been approved for admission to the Official List of the UK Listing Authority and
for trading on the London Stock Exchange, subject only to official notice of
issuance.
(k) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(l) Open Offer. The Sponsor shall not have given notice pursuant to the
Sponsor's and Open Offer Agreement to terminate the same.
(m) Conditions to Purchase of Option Securities. In the event that the
Managers exercise their option provided in Section 2(b) hereof to purchase all
or any portion of the Option Securities, the representations and warranties of
the Company and the Selling Shareholders contained herein and the statements in
any certificates furnished by the Company and the Selling Shareholders hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Executive Chairman or Chief Executive Officer of the
Company and of the Chief Financial Officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section
5(f) hereof remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated
such Date of Delivery from each Selling Shareholder confirming that the
certificate delivered at Closing Time pursuant to Section 5(g) remains
true and correct as of such Date of Delivery.
(iii) Opinion of Counsel for the Selling Shareholders. The
favorable opinions of Xxxxxxxx & Xxxxx, Xxxxxxx Xxxxxx Xxxxx and Xxxxx
Xxxxx, counsel for the Selling Shareholders, in form and substance
satisfactory to counsel for the Managers, dated such Date of Delivery,
relating to the Option Securities to be purchased on such
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Date of Delivery and otherwise to the same effect as the opinions
required by Section 5(c) hereof.
(iv) Opinion of Counsel for Managers. The favorable opinion of
Xxxxxxxx Chance Limited Liability Partnership, counsel for the
Managers, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(v) Opinion of Counsel for Depositary. The favorable opinion
of Xxxxx Xxxxxx & Xxxxxx, LLP, counsel to the Depositary, in form and
substance satisfactory to counsel for the Managers, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same affect as the opinion
required by section 5(e) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers, in form and substance satisfactory to the
Representative and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the Representative
pursuant to Section 5(h) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than three days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Managers shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale, or by the Selling
Shareholders in connection with the sale, of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representative
and counsel for the Managers.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Managers to purchase the relevant Option Securities,
may be terminated by the Representative by notice to the Company at any time at
or prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Managers. The Company agrees to indemnify and
hold harmless each Manager, its officers and employees, and each person, if any,
who controls any Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and in the manner set forth in clauses
(i), (ii) and (iii) below as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any
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amendment thereto), including the Rule 430A Information, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any of the Offer Documents
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company and the Selling Shareholders;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Manager through the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information, or
any Preliminary Prospectus or any of the Prospectuses (or any amendment or
supplement thereto).
(b) Indemnification of Selling Shareholders. The Company agrees to
indemnify and hold harmless each Selling Shareholder against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out of any
liability of each Selling Shareholder by virtue, or as a consequence, of him
being, or alleged to be, a person who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act or otherwise provided
that, (i) in accordance with Article 162(a) of the Companies (Northern Ireland)
Order 1986 (the "ORDER"), this indemnity is given only in respect of the
Company's own neglect or default; and (2) in accordance with Article 318(1) of
the Order, this indemnity shall not apply to any liability which by virtue of
any rule of law would otherwise attach to the relevant Selling Shareholder in
respect of any negligence, default, breach of duty or breach of trust of which
he may be guilty in relation to the Company.
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each Manager severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the
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Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act and each Selling Shareholder against any and all loss liability, claim,
damage and expense described in the indemnity contained in paragraph (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or any
Preliminary Prospectus or any of the Prospectuses (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Manager through the Representative expressly
for use in the Registration Statement (or any amendment thereto) or such
Preliminary Prospectuses or the Prospectuses (or any amendment or supplement
thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by The Representative, and,
in the case of parties indemnified pursuant to Section 6(c) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Managers on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Managers on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Managers on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Managers, in each case as
set forth on the covers of the Prospectuses, bear to the aggregate initial
public offering price of the Securities as set forth on such covers.
The relative fault of the Company on the one hand and the Managers on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Managers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Managers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Managers were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Manager shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of
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any damages which such Manager has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as such Manager, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company or such Selling Shareholder, as the case
may be. The Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial Securities set
forth opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or in certificates of the Selling Shareholders submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Manager or controlling person, or by
or on behalf of the Company or the Selling Shareholders, and shall survive
delivery of the Securities to the Managers.
SECTION 9. Termination of Agreement.
(a) Termination General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectuses, any
change or development resulting in a Material Adverse Effect in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, the United Kingdom, or the international financial markets, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representative, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the London Stock Exchange or the Nasdaq
National Market, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the
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Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either United States federal, New York State or United Kingdom authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Managers.
If one or more of the Managers shall fail at Closing Time or a Date of
Delivery to purchase or procure initial purchasers for the International
Securities which it or they are obligated to purchase or procure initial
purchasers for under this Agreement (the "Defaulted Securities"), the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Managers, or any other
Managers, to purchase or procure initial purchasers for all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting Managers shall be obligated, severally and not jointly, to
purchase or procure initial purchasers for the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Managers to purchase or procure initial purchasers for and of
the Company to sell the Option Securities to be purchased and sold on such Date
of Delivery shall terminate without liability on the part of any non-defaulting
Manager.
No action taken pursuant to this Section shall relieve any defaulting
Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Managers to purchase and the Company to sell the relevant Option Securities, as
the case may be, either (i) the Representative or (ii) the Company and any
Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the term
"Manager" includes any person substituted for an Manager under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders.
If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of International Securities which such
Selling Shareholder is obligated to
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sell hereunder, then the Managers may, at the option of the Representative, by
notice from the Representative to the Company and the non-defaulting Selling
Shareholder, either (a) terminate this Agreement without any liability on the
fault of any non-defaulting party except that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect or (b) elect to purchase the
International Securities which the non-defaulting Selling Shareholder has agreed
to sell hereunder. No action taken pursuant to this Section 11 shall relieve any
Selling Shareholder so defaulting from liability, if any, in respect of such
default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the Representative, the Company and the non-defaulting
Selling Shareholder shall have the right to postpone Closing Time or a Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectuses or in any documents or
arrangements.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Managers shall be directed to the
Representative at Ropemaker Place, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, notices
to the Company shall be directed to it at Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx Xxxxxxx, XX00 0XX, attention of Xxxxxxxx Xxxxxxx; and notices to the
Selling Shareholders shall be directed to Xxxxx Holdings PLC, at Xxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxxx, XX00 0XX, attention of Xxxxxxx
Xxxxxxxx.
SECTION 13. Parties.
This Agreement shall each inure to the benefit of and be binding upon
the Managers and the Company and the Selling Shareholders and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Managers, the Company and the Selling Shareholders and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Managers,
the Company and the Selling Shareholders and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Manager shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Definition of the Term "Business Day".
For purposes of this Agreement, the term "business day" means any day
on which the Nasdaq National Market and the London Stock Exchange are open for
trading.
SECTION 15. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 16. Consent to Jurisdiction.
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Each of the parties hereto hereby irrevocably submits to the
non-exclusive jurisdiction of and venue in any federal court located in the
Borough of Manhattan, City and State of New York, in any suit, action or
proceeding with respect to this Agreement. The Company, and each Selling
Shareholder, to the fullest extent permitted by applicable law, irrevocably and
fully waives the defense of an inconvenient forum to this maintenance of such
suit, action or proceeding and hereby designates and appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (or such other successor
agent as the parties hereto shall mutually agree) (the "Process Agent"), as the
authorized agent of the Company and each Selling Shareholder (as the case may
be), upon whom process may be served in any such suit, action or proceeding. The
Company and each Selling Shareholder represents that it has notified the Process
Agent of such designation and appointment and that the Process Agent has
accepted the same in writing. The Company and each Selling Shareholder hereby
irrevocably authorizes and directs the Process Agent to accept such service. The
Company and each Selling Shareholder further agree that service of process upon
the Process Agent and written notice of such service to the Company and each
Selling Shareholder, mailed by first class mail or delivered to the Process
Agent shall be deemed in every respect effective service of process upon the
Company and each Selling Shareholder in any such suit or proceeding. Nothing
herein shall affect the right of any person to serve process in any other manner
permitted by law. The Company and each Selling Shareholder agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other lawful
manner. The provisions of this Section 16 shall survive the termination of this
Agreement.
The Company and each Selling Shareholder shall indemnify the Managers
against any loss incurred by them as a result of any valid judgment or order
being given or made and expressed and paid in a currency (the "Judgment
Currency") other than U.S. dollars and as a result of any variation as between
(i) the rate of exchange at which the U.S. dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in New York, New York at which such Managers on the date of
payment of such judgment or order are able to purchase U.S. dollars with the
amount of the Judgment Currency actually received by such Managers. If the U.S.
dollars so purchased are greater than the amount originally due to the Managers
hereunder, such Managers agree to pay to the Company an amount equal to the
excess of the U.S. dollars so purchased over the amount originally due to such
Managers hereunder. The foregoing shall constitute a separate and independent
obligation of the Company and the Managers, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into, U.S.
dollars.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
SECTION 18. Effect of Headings.
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The Section and sub-section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and to the Selling Shareholders
a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Managers, the Company and the Selling
Shareholders in accordance with its terms.
Very truly yours,
XXXXX HOLDINGS PLC
By
------------------------------------
Name:
Title:
By
------------------------------------
Name: Dr. Xxxx Xxxx, Selling
Shareholder
By
------------------------------------
Name: Xx. Xxxxx XxXxxx, Selling
Shareholder
By
------------------------------------
Name: Mr. R. Xxxxxxxx Xxxxxxx,
Selling Shareholder
THE XxXXXX TRUST
By
------------------------------------
Name:
Title:
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CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
By
------------------------------------
Authorized Signatory
For itself and as Representative of the other Managers named in Schedule A
hereto.
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SCHEDULE A
NUMBER OF
INITIAL
NAME OF MANAGER SECURITIES
------------------------------------------------- --------------------
Xxxxxxx Xxxxx International....................
ABN AMRO Rothschild............................
Credit Suisse First Boston (Europe) Limited....
CIBC World Markets Inc.........................
Goodbody Corporate Finance.....................
Gruntal & Co., L.L.C...........................
--------------------
Total.......................................... -
====================
X-0
00
XXXXXXXX X
NUMBER OF MAXIMUM NUMBER OF
INITIAL SECURITIES OPTION SECURITIES
TO BE SOLD TO BE SOLD
------------------ ------------------
Xxxxx Holdings PLC...................... - -
Xx. Xxxxx XxXxxx........................ - -
Dr. Xxxx Xxxx........................... - -
Mr R. Xxxxxxxx Xxxxxxx.................. - -
The XxXxxx Trust........................ - -
------------------ ------------------
TOTAL................................. - -
================== ==================
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SCHEDULE C
XXXXX HOLDINGS PLC
- Ordinary Shares
(Par Value 10 xxxxx Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be (pound)o ($o).
2. The purchase price per share for the Securities to be paid by the
several Managers shall be (pound)o ($o, being an amount equal to the initial
public offering price set forth above less (pound)o ($o per share)); provided
that the purchase price per share for any Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be reduced
by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities.
X-0
00
XXXXXXXX X
XXXXX HOLDINGS PLC
List of persons and entities subject to lock-up
1. Xx. Xxxxx XxXxxx
2. Dr. Xxxx Xxxx
3. Mr. R. Xxxxxxxx Xxxxxxx
4. Xxxxx Holdings PLC
D-1
