1
EXHIBIT 1.2
NRG Energy, Inc.
10,000,000 Equity Units(1)
(Initially consisting of 10,000,000 Corporate Units)
Underwriting Agreement
New York, New York
March 7, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
CIBC World Markets Corp.
X. X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representatives of the several Underwriters,
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
NRG Energy, Inc., a corporation organized under the laws of Delaware
(the "Company"), proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, 10,000,000 Equity Units ("Equity Units") of the Company
(such 10,000,000 Equity Units being referred to herein as the "Initial
Securities"). The Equity Units will initially consist of 10,000,000 units
(referred to as "Corporate
--------
(1) Plus an option to purchase from the Company up to 1,500,000
additional Equity Units to cover over-allotments.
2
Units") with a stated amount, per Corporate Unit, of $25 (the "Stated Amount").
The Corporate Units will initially consist of (a) a stock purchase contract (a
"Purchase Contract") under which the holder will agree to purchase from the
Company on May 18, 2004 (the "Purchase Contract Settlement Date"), for an amount
of cash equal to the Stated Amount, a number of newly issued shares of common
stock, $.01 par value ("Common Stock"), of the Company equal to the Settlement
Rate (as defined in the Purchase Contract Agreement referred to below) and (b) a
$25 aggregate principal amount 6.5% senior debenture due May 16, 2006 of the
Company (a "Debenture") issued pursuant to the Indenture (as defined below).
The Company also proposes to grant to the Underwriters an option to
purchase up to 1,500,000 additional Corporate Units to cover over-allotments
(the "Option Securities"; the Option Securities, together with the Initial
Securities, being hereinafter called the "Securities"). The Debentures that will
initially constitute a component of the Corporate Units are hereinafter
sometimes referred to as the "Underlying Debentures". In accordance with the
terms of the Purchase Contract Agreement, to be dated as of March 13, 2001 (the
"Purchase Contract Agreement"), between the Company and The Bank of New York, as
Purchase Contract Agent (the "Purchase Contract Agent"), the Underlying
Debentures will be pledged by the Purchase Contract Agent, on behalf of the
holders of the Securities, to The Chase Manhattan Bank, as Collateral Agent (the
"Collateral Agent"), pursuant to the Pledge Agreement, to be dated as of March
13, 2001 (the "Pledge Agreement"), among the Company, the Purchase Contract
Agent and the Collateral Agent, to secure the holders' obligations to purchase
Common Stock under the Purchase Contracts. The shares of Common Stock issuable
pursuant to the Purchase Contracts are hereinafter called the "Shares".
The Debentures will be issued pursuant to the Indenture, dated as of
March 13, 2001 (the "Base Indenture"), between the Company and The Bank of New
York, as trustee (the "Debt Trustee"), as amended and supplemented by the First
Supplemental Indenture to be dated as of March 13, 2001 (the "First Supplemental
Indenture"), between the Company and the Debt Trustee (the Base Indenture, as
supplemented and amended by the First Supplemental Indenture, being referred to
as the "Indenture").
Pursuant to a Remarketing Agreement (the "Remarketing Agreement") to be
dated as of March 13, 2001, among the Company, the Purchase Contract Agent and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, the Debentures may be
remarketed, subject to certain terms and conditions. The Remarketing Agreement
contemplates that, in connection with any such remarketing, the Company and one
or more remarketing agents will enter into a Supplemental Remarketing Agreement
(the
2
3
"Supplemental Remarketing Agreement") in substantially the form attached as
Exhibit A to the Remarketing Agreement.
As used in this Agreement, the term "Operative Documents" means this
Agreement, the Purchase Contract Agreement (including the Purchase Contracts),
the Pledge Agreement, the Remarketing Agreement, the Debentures, the Indenture
and the Corporate Units.
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration statement
(Registration Statement No. 333-52508) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, including
a Preliminary Final Prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission the Final Prospectus in
accordance with Rule 424(b). The Company has included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such registration statement and the Final Prospectus. As filed, such Final
Prospectus shall contain all Rule 430A Information, together with all other such
required information, and,
3
4
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules thereunder; on
the Effective Date and at the Execution Time, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Closing Date the Indenture will comply
in all material respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; and, on the Effective Date, the Final Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement date, the
Final Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement, or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Final
Prospectus and to enter into and perform its obligations under this Agreement,
and is duly qualified to do
4
5
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure to be
so qualified or in good standing is not reasonably likely to have a material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiaries (as defined below)
taken as a whole (a "Material Adverse Effect"). Each of the significant
subsidiaries of the Company, all of which are set forth in Schedule II (the
"Subsidiaries"), has been duly organized and is validly existing in good
standing under the laws of its jurisdiction of organization, with full
corporate, limited partnership or limited liability company power and authority
to own or lease, as the case may be, and to operate its properties and conduct
its business, and is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or in good standing
is not reasonably likely to have a Material Adverse Effect.
(d) The Company's authorized equity capitalization is as set forth
in the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final Prospectus;
the outstanding shares of capital stock have been duly and validly authorized
and issued and are fully paid and nonassessable; and, except as set forth in the
Final Prospectus, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership interests
in the Company are outstanding; all of the outstanding shares of capital stock
or other interests of the Subsidiaries held by the Company, directly or
indirectly through other Subsidiaries, have been duly and validly authorized and
issued and, if applicable, are fully paid and non-assessable, and are owned of
record by the Company or a Subsidiary free and clear of any security interest,
claim, lien or encumbrance, other than such liens or other security interests
granted or created in connection with indebtedness of the projects owned by such
Subsidiaries.
(e) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms.
(g) The Remarketing Agreement has been duly authorized by the
Company and when executed and delivered by the Company will constitute the valid
and binding obligation of the Company enforceable in accordance with its terms
and
5
6
will conform in all material respects to the description thereof in the Final
Prospectus. The Supplemental Remarketing Agreement has been duly authorized by
the Company and, at the date of the Supplemental Remarketing Agreement and at
the Remarketing Closing Date (as defined in Schedule I to the Supplemental
Remarketing Agreement), will have been duly executed and delivered by the
Company.
(h) Each of the Purchase Contract Agreement, the Pledge Agreement,
the Debentures and the Indenture has been duly authorized and when executed and
delivered by the Company (in the case of the Debentures, in accordance with the
Indenture) will constitute the valid and binding obligation of the Company
enforceable in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity), and will conform in all material respects to the description
thereof in the Final Prospectus. The Debentures will be entitled to the benefits
of the Indenture.
(i) The Corporate Units have been duly authorized and when
executed and delivered by the Company will constitute the valid and binding
obligations of the Company enforceable in accordance with their terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity), and will conform in all material respects
to the description thereof in the Final Prospectus. The Corporate Units and the
Shares have been duly registered under the Exchange Act and have been authorized
for listing on the NYSE, subject to official notice of issuance; and the
issuance of the Corporate Units is not subject to preemptive or other similar
rights.
(j) The Shares issuable pursuant to the Purchase Contract
Agreement have been duly authorized and reserved for issuance by the Company
and, when issued and delivered in accordance with the provisions of the Purchase
Contract Agreement, will be validly issued and fully paid and non-assessable;
and the issuance of such Shares is not and will not be subject to preemptive or
other similar rights.
(k) None of the Company and the Subsidiaries is or, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will be an "investment
company" as defined in the
6
7
Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with the
transactions contemplated herein or in the other Operative Documents, except
such as have been obtained under the Act, the Trust Indenture Act or otherwise
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final Prospectus.
(m) None of the issuance and sale of the Securities pursuant
hereto, the issuance and sale of the Shares pursuant to the Purchase Contracts
and the execution and delivery by the Company of, and performance by the Company
of its obligations under, the Operative Documents will conflict with, result in
a breach or violation or constitute a default under (i) the charter or by-laws
(or other similar documents) of the Company or any Subsidiary, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or any Subsidiary is a party or is bound or to which their
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any Subsidiary of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any Subsidiary or any of their
properties, except in the cases of clauses (ii) and (iii) above for any such
conflict, breach, violation or default that is not reasonably likely to have a
Material Adverse Effect.
(n) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(o) The consolidated historical financial statements of the
Company and its consolidated subsidiaries included in the Final Prospectus and
the Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein).
(p) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any Securities (except as
contemplated by this Agreement).
7
8
(q) The Company and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses now being operated by them, except where the failure to
possess such licenses, certificates, permits or other authorizations is not
reasonably likely to have a Material Adverse Effect, and neither the Company nor
any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect; except in all cases as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary or its property is pending or, to the knowledge of the
Company, threatened that (i) is reasonably likely to have a material adverse
effect on the performance of this Agreement or any other Operative Document or
the consummation of any of the transactions contemplated hereby or thereby or
(ii) is reasonably likely to have a Material Adverse Effect, except as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(s) Except as set forth in the Final Prospectus (exclusive of any
supplement thereto), neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its charter or bylaws (or other similar
document), (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
Subsidiary or any of its properties, as applicable, except in the cases of
clauses (ii) and (iii) above for any such violation or default that is not
reasonably likely to have a Material Adverse Effect.
(t) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated financial
statements included in the Final Prospectus, are independent public accountants
with respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(u) No labor problem or dispute with the employees of the Company
or
8
9
any Subsidiary exists or, to the Company's knowledge, is threatened that is
reasonably likely to have a Material Adverse Effect, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto).
(v) The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as the Company believes are customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds insuring the
Company or any Subsidiary or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and the
Subsidiaries are in compliance with the terms of such policies and instruments
in all material respects; and there are no claims by the Company or any
Subsidiary under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause.
(w) The Company and each Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) The Company has not taken, directly or indirectly, any action
that has constituted or that was designed to or might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(y) The Company and each Subsidiary are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability (A) would not, individually or in the aggregate, have a
9
10
Material Adverse Effect, or (B) is set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto). Except as set forth in the
Final Prospectus, neither the Company nor any Subsidiary has been named as a
"potentially responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(z) Except as set forth in the Final Prospectus and except for (i)
San Francisco Thermal, Limited Partnership, (ii) Pittsburgh Thermal, Limited
Partnership, and (iii) RSD Power Partners, L.P. (each of which is subject to
regulation by virtue of its steam sales), none of the Company or the
Subsidiaries is subject to regulation as a "steam corporation", "electric
utility", "electric utility company", "utility company" or "public utility
company" (collectively, "Regulated Utilities") or any similar term by any
federal, state, local or foreign public utility commission or regulatory body or
under any applicable federal, state, local or foreign law as a Regulated Utility
other than as public utilities that have been granted market-based rates under
the Federal Power Act or any state regulation applicable to "exempt wholesale
generators," as defined in Section 32 of the Public Utility Holding Company Act
of 1935, as amended ("PUHCA").
(aa) None of the Company or the Subsidiaries is an "electric
utility company", a "public utility company", a "holding company", a "subsidiary
company" of any of the foregoing or an "affiliate" of any of the foregoing or an
"affiliate" of a "subsidiary" of a "holding company" (except insofar as the
Company is a subsidiary of a registered holding company), each as defined in
PUHCA.
(bb) The Company's percentage ownership interest in its facilities,
operations or projects under construction as set forth in the Final Prospectus
are true and accurate in all material respects as of the date presented and any
changes in the Company's percentage ownership interest in its facilities,
operations or projects under construction which have occurred between such date
and the date of this Agreement are as set forth on Schedule III hereto.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$24.25 per Equity Unit, the
10
11
amount of the Initial Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
1,500,000 Option Securities at the same purchase price per Equity Unit as the
Underwriters shall pay for the Initial Securities. Said option may be exercised
only to cover over-allotments in the sale of the Initial Securities by the
Underwriters. Said option may be exercised in whole or in part at any time on or
before the 30th day after the date of the Final Prospectus upon written or
telegraphic notice by the Representatives to the Company setting forth the
number of shares of the Option Securities as to which the several Underwriters
are exercising the option and the settlement date. The number of Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Initial
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. (a) Delivery of and payment for the
Initial Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
March 13, 2001, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Underwriters, against payment by the several Underwriters through
the Representatives, of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Initial Securities and the Option Securities shall
be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
(b) If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
World Financial Center, North Tower, New York, New York, on the date specified
by the Representatives (which shall be within three Business Days after exercise
of said option) for the respective accounts of the several Underwriters, against
payment by
11
12
the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any
12
13
proceeding for that purpose and (6) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the suspension of any such qualification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the rules
thereunder, the Company promptly will (1) notify the Representatives of any such
event, (2) prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance; and (3) supply any
supplemented Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in effect so
long as required for the distribution of the Securities; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
13
14
(f) Except as contemplated by the Operative Documents and the
Underwriting Agreement dated as of March 7, 2001 between the Company and the
Underwriters named therein relating to the sale by the Company of shares of
Common Stock, the Company will not, without the prior written consent of Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Credit Suisse First Boston
Corporation, offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any Equity Units, Purchase Contracts, or Common Stock or any
securities substantially similar to Equity Units, Purchase Contracts, or Common
Stock or any securities convertible into, or exercisable, or exchangeable for,
any of the foregoing; or publicly announce an intention to effect any such
transaction, for a period of ninety days after the date of the Underwriting
Agreement, provided, however, that the Company may issue and sell Common Stock
pursuant to any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time and the Company
may issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Final Prospectus, the Final
Prospectus and each amendment or supplement to any of them; (ii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Final Prospectus, the Final Prospectus, and all
amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Securities;
(iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the
printing (or
14
15
reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the
Securities under the Exchange Act and the listing of the Securities on the New
York Stock Exchange; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) any filings
required to be made with the National Association of Securities Dealers, Inc.
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings up to but not exceeding an aggregate of
$10,000 in the case of (vi) and (vii)); (viii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; (x) the cost of printing
the Indenture and certificates representing the Debentures, (xi) the cost and
charges of the Debt Trustee, the Purchase Contract Agent, the Collateral Agent
and any other fiduciary agents; (xii) any fees payable to rating agencies in
connection with the rating of the Securities and (xiii) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder.
(i) The Company will use its best efforts to effect the listing of
the Corporate Units and the Shares on the New York Stock Exchange.
(j) The Company will reserve and keep available at all times, free
of preemptive or other similar rights and liens and adverse claims, sufficient
shares of Common Stock to satisfy its obligations to issue Shares upon
settlement of the Purchase Contracts and shall take all actions necessary to
keep effective the Registration Statement with respect to the Shares.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Initial Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a later
time, the
15
16
Registration Statement will become effective not later than (i) 6:00 PM New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) each of the Purchase Contract Agreement, the
Remarketing Agreement, the Pledge Agreement and the Indenture has been
duly authorized, executed and delivered by the Company, and constitutes
a valid and binding obligation of the Company enforceable Company in
accordance with its terms;
(iii) The Corporate Units (i) are entitled to the benefits
of the Purchase Contract Agreement, (ii) have been duly authorized,
executed and delivered by the Company, and (iii) when authenticated by
the Purchase Contract Agent in the manner provided for in the Purchase
Contract Agreement and delivered to the Underwriters against payment
therefor as set forth in this Agreement and assuming the certificates
evidencing the Corporate Units have been duly executed by the Purchase
Contract Agent as attorney-in-fact of the holders thereof, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms;
(iv) The Debentures (i) are entitled to the benefits of
the Indenture, (ii) have been duly authorized, executed and delivered
by the Company, and (iii) when authenticated by the Debt Trustee in the
manner provided for in the Indenture and delivered to the Underwriters
against payment therefor as set
16
17
forth in this Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms;
(v) the Shares initially subject to the Purchase Contract
Agreement have been duly authorized and reserved for issuance by the
Company and, when issued by the Company in accordance with the
provisions of the Purchase Contract Agreement and the Purchase
Contracts, will be validly issued, fully paid and non-assessable; and
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities pursuant to the Company's Certificate of Incorporation or
Delaware law;
(vi) the issuance of the Corporate Units is not subject to
preemptive or other similar rights pursuant to the Company's
Certificate of Incorporation or Delaware law;
(vii) the certificates for the Corporate Units are in the
respective forms contemplated by the Purchase Contract Agreement, the
certificates for the Debentures are in the forms contemplated by the
Indenture and the certificates for the Shares comply with all
applicable requirements of Delaware law and the applicable requirements
of the New York Stock Exchange;
(viii) the Indenture has been qualified under the Trust
Indenture Act;
(ix) the statements included in the Final Prospectus under
the captions "Description of the Equity Units", "Description of the
Purchase Contracts" (except under the heading "Book-Entry System"),
"Certain Provisions of the Purchase Contract Agreement and the Pledge
Agreement", "Description of the Debentures" and "Description of Debt
Securities", to the extent they purport to summarize the provisions of
the Purchase Contract Agreement, the Remarketing Agreement, the Pledge
Agreement, the Indenture, the Debentures and the Corporate Units,
fairly summarize such provisions;
(x) To the extent that the statements in the Final
Prospectus under the heading "Material Federal Income Tax Consequences"
purport to describe specific provisions of the Internal Revenue Code,
such statements present, in all material respects, an accurate summary
of such provisions.
(xi) Upon the occurrence of a Termination Event (as
defined in the
17
18
Purchase Contract Agreement), Section 365(e)(1) of the Bankruptcy Code
(11 U.S.C. xx.xx. 101-1330, as amended) should not substantively limit
the provisions of Sections 3.15 and 5.8 of the Purchase Contract
Agreement and Section 4.3 of the Pledge Agreement that require
termination of the Purchase Contracts and release of the Collateral
Agent's security interest in the Debentures; provided, however, that
procedural restrictions respecting relief from the automatic stay under
Section 362 of the Code may affect the timing of the exercise of such
rights and remedies.
(xii) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) have been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the Final
Prospectus (other than the financial statements and other financial
information contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act, the Trust Indenture Act and
the respective rules thereunder; and
(xiii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be, an
"investment company" required to be registered under the Investment
Company Act of 1940, as amended.
The foregoing opinions as to enforceability and the legal, valid and
binding nature of obligations may be subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws
affecting the rights and remedies of creditors generally (including, without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or preferential transfers) and (ii) general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance, injunctive
relief or other equitable remedies regardless of whether enforceability is
considered in a proceeding in equity or at law. The opinion of Xxxxxx Xxxx and
Xxxxxxxx LLP may be subject to other customary exceptions, assumptions and
qualifications.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Delaware or the
18
19
State of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel
reasonably satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
Furthermore, following the opinion paragraphs, such counsel shall state
the following:
"We have participated in conferences with officers and other
representatives of the Company, representatives of the independent
auditors of the Company and your representatives and counsel at which
the contents of the Registration Statement and/or Final Prospectus and
related matters were discussed. Because the purpose of our professional
engagement was not to establish or confirm factual matters and because
the scope of our examination of the affairs of the Company did not
permit us to verify the accuracy, completeness or fairness of the
statements set forth in the Registration Statement and/or Final
Prospectus, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and/or Final
Prospectus, except to the extent set forth below in the last sentence
of the immediately following paragraph.
On the basis of the foregoing, and except for the financial statements
and schedules and other financial and statistical data included
therein, as to which we express no opinion or belief, no facts have
come to our attention that lead us to believe that the Registration
Statement, on the Effective Date or on the date the Registration
Statement was last deemed amended, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Final Prospectus, as of its date and as of the Closing Date,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading."
(c) The Company shall have furnished to the Representatives the
opinion of Xxxxx X. Xxxxxx, Esq., general counsel of the Company, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and the Subsidiaries has been duly
19
20
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business
as described in the Final Prospectus and to enter into and perform its
obligations under, and as contemplated under, the Operative Documents
to which it is a party, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to be so qualified or in good standing is not reasonably likely
to have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of the
Company and each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding shares of capital
stock of each of the Subsidiaries are owned of record by the Company
either directly or through wholly owned Subsidiaries free and clear of
any perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interest, claim, lien or
encumbrance other than such liens or other security interests granted
or created in connection with indebtedness of the projects owned by
such Subsidiaries;
(iii) the Company's authorized equity capitalization is as
set forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; and, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding
(iv) there is no pending or, to the knowledge of such
counsel, threatened action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required;
(v) no consent, approval, authorization, filing with or
order of
20
21
any court or governmental agency or body is required in connection with
the transactions contemplated herein and in the other Operative
Documents, except such as have been obtained under the Act, the Trust
Indenture Act or otherwise and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters (about which such
counsel need express no opinion) in the manner contemplated in this
Agreement and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(vi) none of the issuance and sale of the Securities
pursuant hereto, the issuance and sale of the Shares pursuant to the
Purchase Contracts and the execution and delivery by the Company of,
and the performance by the Company of its obligations under, the
Operative Documents will conflict with, result in a breach or violation
of or constitute a default under, (i) the charter or by-laws of the
Company or its Subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or its Subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its Subsidiaries
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Company or its Subsidiaries or any of its or their properties, except
in the cases of clauses (ii) and (iii) above, such conflict, breach,
violation or default which is not reasonably likely to have a Material
Adverse Effect
(vii) except as set forth in the Final Prospectus and
except for (i) San Francisco Thermal, Limited Partnership, (ii)
Pittsburgh Thermal, Limited Partnership, and (iii) RSD Power Partners,
L.P., (each of which is subject to regulation by virtue of its steam
sales) none of the Company or its Subsidiaries is subject to regulation
as a Regulated Utility or any similar term by any federal law, law of
the state of Minnesota or Minnesota public utility commission or
federal regulatory body or under any such law as a Regulated Utility
other than as public utilities that have been granted market-based
rates under the Federal Power Act or any state regulation applicable to
"exempt wholesale generators," as defined in Section 32 of PUHCA;
(viii) none of the Company or its Subsidiaries is an
"electric utility company", a "public utility company", a "holding
company", a "subsidiary company" of any of the foregoing, an
"affiliate" of any of the foregoing, or an "affiliate" of a
"subsidiary" of a "holding company" (except insofar as the
21
22
Company is a subsidiary of a registered holding company), each as
defined in PUHCA;
(ix) except as set forth in the Final Prospectus, the
Company and its Subsidiaries possess and are in compliance with all
approvals, certificates, authorizations, licenses and permits issued by
the appropriate state, Federal or foreign regulatory agencies or bodies
necessary to conduct their business as described in the Final
Prospectus, except where the failure to possess such approvals,
certificates, authorizations, licenses and permits or be in compliance
therewith would not be reasonably likely to have a Material Adverse
Effect and, to the knowledge of such counsel, none of the Company or
its Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such approval, certificate,
authorization, license or permit which, individually or in the
aggregate, if it became the subject of an unfavorable decision, ruling
or finding, would be reasonably likely to have a Material Adverse
Effect; and
(x) no holders of securities of the Company have rights
to the registration of such securities under the Registration Statement
that have not been waived with respect to the offering of the
Securities.
(d) The Representatives shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration Statement,
the Final Prospectus (together with any supplement thereto), the Operative
Documents and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from counsel for The
Bank of New York, as Purchase Contract Agent, such opinion or opinions, dated
the Closing Date and addressed to the Representatives to the effect that:
(i) The Bank of New York is duly incorporated and is
validly existing as a banking corporation with trust powers under the
laws of the United States with all necessary power and authority to
execute, deliver and perform its obligations under the Purchase
Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the
Purchase
22
23
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the Securities have
been duly authorized by all necessary corporate action on the part of
the Purchase Contract Agent. The Purchase Contract Agreement and the
Pledge Agreement have been duly executed and delivered by the Purchase
Contract Agent, and constitute the legal, valid and binding obligations
of the Purchase Contract Agent, enforceable against the Purchase
Contract Agent in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity).
(iii) the execution, delivery and performance of the
Purchase Contract Agreement and the Pledge Agreement by the Purchase
Contract Agent does not conflict with or constitute a breach of the
charter or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal governmental
authority or agency is required for the execution, delivery or
performance by the Purchase Contract Agent of the Purchase Contract
Agreement and the Pledge Agreement.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included
23
24
or incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the
condition (financial or otherwise), earnings, prospects, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and that they have audited the
consolidated financial statements of the Company for the years in the period
ended December 31, 2000, December 31, 1999 and December 31, 1998 and as at
December 31, 2000, December 31, 1999 and December 31, 1998, respectively, in
accordance with generally accepted auditing standards, and stating in effect
that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or incorporated
by reference in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the unaudited
consolidated financial statements for January of both 2000 and 2001
made available by the Company and its subsidiaries, having been advised
by officials of the Company that no financial statements as of any date
or for any period subsequent to January 31, 2001 were available;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the meetings of
the stockholders, directors and committees of the Company and the
Subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the Company
and its subsidiaries as to transactions and events subsequent to
December 31, 2000 and as to whether the unaudited consolidated
financial statements for January of both 2000 and 2001 are stated on a
basis substantially consistent with that of the audited consolidated
financial
24
25
statements in the Registration Statement, nothing came to their
attention which caused them to believe that, with respect to the period
subsequent to December 31, 2000, there were, at January 31, 2001, any
increases in the long-term debt or total current liabilities of the
Company and its subsidiaries or decreases in the stockholders' equity
of the Company or decreases in total current assets or total assets of
the Company and its subsidiaries as compared with the amounts shown on
the December 31, 2000 consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Final
Prospectus, or for the period from January 1, 2001 to January 31, 2001
there were any decreases, as compared with the corresponding period in
the previous year, in consolidated operating revenues or income before
income taxes or net income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation is not
deemed necessary by the Representatives;
(iii) on the basis of a reading of the minutes of the
meetings of the stockholders, directors and committees of the Company
and the Subsidiaries; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent
to December 31, 2000, nothing came to their attention which caused them
to believe that, with respect to the period subsequent to January 31,
2001, there were, at a specified date not more than five days prior to
the date of the letter, any increases in the long-term debt or total
current liabilities of the Company and its subsidiaries or decreases in
the stockholders' equity of the Company or decreases in total current
assets or total assets of the Company and its subsidiaries as compared
with the amounts shown on the December 31, 2000 consolidated balance
sheet included or incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period from February 1,
2001 to such specified date there were any decreases, as compared with
the corresponding period in the previous year, in consolidated
operating revenues or income before income taxes or net income of the
Company and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives;
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting,
25
26
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in
the Registration Statement and the Final Prospectus, including the
financial information set forth under the captions "Summary and
Consolidated Financial and Operating Data", (i) certain information
included or incorporated by reference in the Company's Annual Report on
Form 10-K for the year ended December 31, 1999, incorporated by
reference in the Registration Statement and the Final Prospectus, (ii)
certain information included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q, incorporated by reference in
the Registration Statement and the Final Prospectus, and (iii) certain
information included or incorporated by reference in the Company's
Current Report on Form 8-K dated March 5, 2001, incorporated by
reference in the Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease in the items
specified in the letter or letters referred to in paragraph (e) of this Section
6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction
26
27
of the possible change.
(k) At the date of this Agreement, the Corporate Units and the
Shares shall have been approved for listing, subject to official notice of
issuance and evidence of satisfactory distribution, on the New York Stock
Exchange, and satisfactory evidence of such actions shall have been provided to
the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of the Company, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxxx, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any
27
28
amendment thereof, or in any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein;
provided, further, that with respect to any untrue statement or omission of a
material fact made in any Preliminary Final Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished copies of
the Final Prospectus to the Representatives, (x) delivery of the Final
Prospectus was required to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Final Prospectus was
corrected in the Final Prospectus, and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the Final Prospectus. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances, and
28
29
(iii) the paragraphs related to stabilization, syndicate covering
transactions and penalty bids constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party
29
30
from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
30
31
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange, trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market or trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities, (iii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) shall have occurred, or
(iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or
31
32
crisis the effect of which on financial markets is such as to make it, in the
reasonable judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Attention: Xxxxxx Xxxxx (fax no.: (000) 000-0000) and confirmed to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at 4 World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention: Xxxxxx Xxxxx and Credit Suisse
First Boston Corporation, Transactions Advisory Group (fax no.: (000) 000-0000)
and confirmed to the Transactions Advisory Group, Credit Suisse First Boston
Corporation, at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention:
Transactions Advisory Group; or, if sent to the Company, will be mailed,
delivered or telefaxed to Xxxxx X. Xxxxxx, Vice President and General Counsel
(fax no: (000) 000-0000) and confirmed to it at NRG Energy, Inc., 000 Xxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: General
Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
32
33
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law, executive order or regulation to close in New
York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it
33
34
shall become effective) and, in the event any post-effective amendment thereto
or any Rule 462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated thereunder.
34
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
NRG ENERGY, INC.
By:
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Credit Suisse First Boston Corporation
CIBC World Markets Corp.
X. X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
35
36
SCHEDULE I
NUMBER OF
INITIAL
UNDERWRITERS SECURITIES TO
------------ BE PURCHASED
-------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 4,000,001
Incorporated.......................................
Credit Suisse First Boston Corporation............................ 4,000,001
CIBC World Markets Corp........................................... 666,666
X. X. Xxxxxx Securities Inc....................................... 666,666
Xxxxxxx Xxxxx Xxxxxx Inc.......................................... 666,666
TOTAL.................................................... 10,000,000
37
SCHEDULE II
Significant Subsidiaries
Xxxxxx Kill Power LLC
COBEE Holdings Inc.
Devon Power LLC
Flinders Coal Pty Ltd
Granite Power Partners II, X.X.
Xxxxxxx Power LLC
Killingholme Generation Limited
Killingholme Holdings Limited
Killingholme Power Limited
Lambique Beheer B.V.
Louisiana Generating LLC
Middletown Power LLC
Montville Power LLC
NEO Corporation
NEO Landfill Gas Inc.
Norwalk Power LLC
NRG International, Inc.
NRG Northeast Generating LLC
NRG South Central Generating LLC
NRG Thermal Corporation NRG West Coast Inc.
NRGenerating Holdings (No. 15) B.V.
NRGenerating Holdings (No. 4) B.V.
NRGenerating International B.V.
NRGenerating, Ltd.
Sterling Luxembourg (No. 1) s.a.r.l.
Sunshine State Power (No. 2) B.V.
Sunshine State Power B.V.
Tosli Investments N.V.
38
SCHEDULE III
Changes in Percentage Ownership Interest
None
