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EXHIBIT 1.1
RELIANT RESOURCES, INC.
Common Stock, Par Value $.001 Per Share
Underwriting Agreement
April ___, 2001
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Credit Suisse First Boston Corporation
ABN AMRO Rothschild LLC
Banc of America Securities LLC
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
UBS Warburg LLC
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reliant Resources, Inc., a Delaware corporation (the "Company"), a
subsidiary of Reliant Energy, Incorporated, a Texas corporation (the "Parent"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 52,000,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 7,800,000 additional shares (the "Optional Shares") of
common stock, par value $.001 per share ("Stock"), of the Company (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof being collectively called the "Shares").
1. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-48038),
as amended, with respect to the Shares, copies of which have been
delivered to you, has been prepared and filed by the Company with the
Securities and Exchange Commission (the "Commission") and has been
declared effective under the Securities Act of 1933, as amended (the
"Act"). No stop order suspending the effectiveness of such registration
statement, as amended, has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of the Company,
threatened by the Commission. Any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) under the Act is hereinafter called a "Preliminary
Prospectus." Such registration statement (including all documents filed
as part thereof and all information deemed to be included therein
pursuant to Rule 430A under the Act) as amended, at the time it becomes
effective, or if such registration statement became
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effective prior to the date of this Agreement, as supplemented or
amended at the date of this Agreement, is hereinafter referred to as to
the "Registration Statement." If it is contemplated, at the time this
Agreement is executed, that (i) a post-effective amendment to such
registration statement will be filed and must be declared effective
before the offering of the Shares may commence or (ii) a registration
statement will be filed pursuant to Rule 462(b) under the Act prior to
the First Time of Delivery (as hereinafter defined), the term
"Registration Statement" as used in the Agreement includes such
registration statement as amended by such post-effective amendment and
the Rule 462(b) registration statement, respectively. The form of final
prospectus, in the form first filed with the Commission pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus;"
(b) On the effective date of the Registration Statement, the
Registration Statement, as amended and supplemented at that time,
conformed in all material respects to the requirements of the Act and
the applicable rules and regulations of the Commission thereunder, and
does not and will not, as of the applicable effective date of the
Registration Statement and any amendment thereto, include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; on the date of the Preliminary Prospectus, the
Preliminary Prospectus conformed in all material respects to the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder, and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
no order preventing or suspending the use of the Preliminary Prospectus
has been issued by the Commission; and on the date of this Agreement,
the Registration Statement and the Prospectus conform, and, at the Time
of Delivery (as hereinafter defined), they will conform, in all
material respects to the requirements of the Act and the applicable
rules and regulations of the Commission thereunder, and, on the date of
this Agreement, do not and, at the Time of Delivery, will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading;
(c) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, except for losses or interferences that would not have
a "Material Adverse Effect", which, for purposes of this Agreement,
shall mean any effect that would, individually or in the aggregate,
have a material adverse effect on the business, properties or financial
condition of the Company and its subsidiaries considered as one
enterprise; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or increase in long-term debt of
the Company or any of its subsidiaries or any change that would have a
Material Adverse Effect, or any development involving a prospective
change that would have a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus;
(d) Except as described in the Prospectus or as would not have
a Material Adverse Effect, the Company and its subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned
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by them, including the real properties and facilities described as
being owned by the Company or its subsidiaries in the Prospectus; and
except as described in the Prospectus or as would not have a Material
Adverse Effect, any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases;
(e) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Delaware, with
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus;
(f) The Company has authorized capital stock as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and the Shares conform in all material
respects to the description of the Stock contained in the Prospectus;
(g) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable and will
conform in all material respects to the description of the Stock
contained in the Prospectus;
(h) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement,
the consummation of the transactions herein contemplated and the
execution and delivery by the Company and the Parent of each of the
Transaction Documents (as defined herein) will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company,
the Parent or any of their respective subsidiaries is a party or by
which the Company, the Parent or any of their respective subsidiaries
is bound or to which any of the property or assets of the Company, the
Parent or any of their respective subsidiaries is subject; (ii) result
in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company or the Articles of Incorporation or Bylaws
of the Parent or of the Certificates of Incorporation or Bylaws or
similar organizational and governance documents of their respective
subsidiaries (except, in the case of the Company's and the Parent's
respective subsidiaries, where such violation would not have a Material
Adverse Effect); or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, the Parent or any of their
respective subsidiaries or any of their respective properties, except,
with respect to clauses (i) and (iii) of this paragraph, for such
conflicts, breaches or defaults or violations as would not have a
Material Adverse Effect and would not impair the Company's or the
Parent's ability to perform their respective obligations hereunder or
have any adverse effect upon the consummation of the transactions
contemplated hereby or any Underwriters; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company or the Parent of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals, orders,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
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(i) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or Bylaws or applicable
formation and governance documents (except, in the case of the
Company's subsidiaries, where such violation would not have a Material
Adverse Effect) or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound, which default would have a Material
Adverse Effect;
(j) The statements set forth in the Prospectus under the
caption "Description of Our Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, accurately summarize in
all material respects the terms of the Stock; the description of the
statutes and regulations set forth in the Prospectus under the captions
"Our Business - Regulation" and "Our Business - Environmental" fairly
describe in all material respects the portions of the statutes and
regulations addressed thereby; and the statements set forth in the
Prospectus under the captions "Our Relationship with Reliant Energy and
Related Transactions", "Texas Genco Option", "Agreements Between Us and
Reliant Energy" and "Certain Federal Tax Matters Related to Our
Separation from Reliant Energy", fairly describe in all material
respects the portions of the documents described therein;
(k) Each of the Master Separation Agreement, the Transition
Services Agreement, the Texas Genco Option Agreement, the Retail
Agreement, the Registration Rights Agreement, the Employee Matters
Agreement, the Technical Services Agreement and the Tax Allocation
Agreement, each as more completely described in the Prospectus
(collectively, the "Transaction Documents") is or when executed and
delivered by the Company, the Parent and any applicable subsidiaries
thereof will be, duly and validly authorized, executed and delivered by
the Company, the Parent and any applicable subsidiaries and, when
executed and delivered by the Company, the Parent and any applicable
subsidiaries, will constitute a valid and legally binding obligation of
the Company, the Parent and any applicable subsidiaries enforceable
against the Company, the Parent and any applicable subsidiaries in
accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(l) Except as set forth or contemplated in the Prospectus or
as would not have a Material Adverse Effect, the Company and its
subsidiaries have, such market based rate authority, operating rights,
permits, licenses, franchises and authorizations of governmental or
regulatory authorities (collectively, the "Permits") as are necessary
to own their respective properties and to conduct their respective
businesses in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus; except as set
forth or contemplated in the Prospectus or as would not have a Material
Adverse Effect, the Company and its subsidiaries have, fulfilled and
performed all their respective material obligations with respect to
such Permits and no event has occurred which allows (or after notice or
lapse of time or both would allow) revocation or termination thereof or
results in any other material impairment of the rights of the holder of
any such Permit, subject in each case to such qualification as may be
set forth in the Prospectus (and it being understood that certain
Permits, by their respective terms, lapse as described in the
Prospectus) and other than such revocations
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and terminations which would not, singly or in the aggregate, have a
Material Adverse Effect; and, except as described in the Prospectus,
none of such Permits contains any restriction that would have a
Material Adverse Effect;
(m) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is subject, which,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect;
(n) Pursuant to a Memorandum Opinion and Order Granting
Exemption to Holding Company dated July 24, 1997 issued by the
Commission (Release No. 35-26744), the Parent is exempt from regulation
as a public utility holding company under Section 3(a)(2) of the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"),
except the provisions of Section 9(a)(2) thereof;
(o) Pursuant to an Order dated March 15, 2001 (Docket No.
21956), the Public Utility Commission of Texas (the "Texas Utility
Commission") approved the business separation plan filed by the Parent
in accordance with Section 39.051(e) of the Texas Utilities Code. The
Texas Utility Commission has certified two subsidiaries of the Company
as "retail electric providers" within the meaning of Subtitle B of the
Texas Utilities Code, which subsidiaries are "affiliated retail
electric providers" of Reliant Energy HL&P, a division of the Parent,
within the meaning of Subtitle B of the Texas Utilities Code;
(p) N.V. UNA is a "foreign utility company" as such term is
defined in Section 33(a)(3) of the 1935 Act. The Company is neither a
"holding company" nor a "public utility company" as such terms are
defined in Section 2(a) of the 1935 Act;
(q) Deloitte & Touche L.L.P., who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(r) This Agreement has been duly authorized, executed and
delivered by the Company.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $................, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
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The Company hereby grants to the Underwriters the right to purchase at
their election up to 7,800,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
three or later than ten Business Days after the date of such notice.
3. Offer of Shares.
Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and subject to the conditions and in the manner set forth in the Prospectus.
4. Payment and Delivery.
(a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered
in such names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. request upon at least forty-eight
hours' prior notice to the Company shall be delivered by or on behalf
of the Company to ▇▇▇▇▇▇▇, Sachs & Co., through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least
forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated
custodian, or at the office of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the case may be (the "Designated Office").
The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on May....., 2001 or
such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may
agree upon in writing, and, with respect to the Optional Shares, 9:30
a.m., New York time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in
the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date
as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called
the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 7(l) hereof, will be
delivered at such time and date at the offices of ▇▇▇▇▇ & ▇▇▇▇▇,
L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or such other location
as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree in writing (the
"Closing Location"), and the Shares will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 2:00 P.M., local time or at such other time as
▇▇▇▇▇▇▇, ▇▇▇▇▇
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& Co. and the Company may agree in writing, on the Business Day next
preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this
Section 4, "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
New York, New York or Houston, Texas are generally authorized or
obligated by law or executive order to close.
5. Covenants and Agreements.
The Company covenants and agrees with each of the Underwriters:
(a) To cause the Prospectus to be filed pursuant to, and in
compliance with, Rule 424(b) and to promptly advise the Underwriters
(i) when any amendment to the Registration Statement shall have been
filed, (ii) of any request by the Commission for any amendment of the
Registration Statement, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. So long as any Underwriter is required in the reasonable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. to deliver a Prospectus, the Company
will not file any amendment to the Registration Statement or supplement
to the Prospectus unless the Company has furnished one copy of such
amendment or supplement to ▇▇▇▇▇▇▇, Sachs & Co. and to ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., and, if such amendment or supplement is to be filed on or prior
to the Time of Delivery, or under circumstances where the Underwriters
are required in the reasonable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., to
deliver a Prospectus, the Underwriters or ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., shall
not reasonably have objected thereto. If the Commission shall issue a
stop order suspending the effectiveness of the Registration Statement,
the Company will take such steps to obtain the lifting of that order as
in the best judgment of the Company are not contrary to the interests
of the Company;
(b) To endeavor to qualify, at its expense, the Shares for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as ▇▇▇▇▇▇▇, Sachs & Co. shall reasonably request and to
pay filing fees, reasonable expenses and legal fees in connection
therewith in an amount not exceeding $15,000 in the aggregate
(including filing fees and expenses paid or incurred prior to the date
of this Agreement); provided, that the Company shall not be required to
qualify as a foreign corporation or a dealer in securities or to file
any consents to service of process under the laws of any jurisdiction;
(c) As soon as practicable following the execution of this
Agreement and from time to time during the period mentioned in the
following paragraph, to furnish to the Underwriters, without charge, as
many copies of the Preliminary Prospectus and the Prospectus and any
supplements and amendments thereto as each Underwriter may reasonably
request so long as such Underwriter is required to deliver a
prospectus.
That if, at any time when in the reasonable opinion of ▇▇▇▇▇▇
& ▇▇▇▇▇▇ L.L.P. the Prospectus is required by law to be delivered by an
Underwriter or a dealer, any event shall occur as a result of which it
is necessary, in the reasonable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. or
counsel for the Company, to amend or supplement the Prospectus in order
to make the statements therein, in light of the circumstances existing
when the
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Prospectus is delivered to a purchaser, not misleading, or if it shall
be necessary in the reasonable opinion of any such counsel, to amend or
supplement the Prospectus or modify such information to comply with
law, the Company will forthwith prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to whom Shares
may have been sold by the Underwriters and to any other dealers upon
reasonable request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended, supplemented or
modified will not, in light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(d) To make generally available to its securityholders as soon
as practicable an earnings statement of the Company covering a
twelve-month period beginning after the Time of Delivery which shall
satisfy the provisions of Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158 under the Act);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee or director compensation
plans or employee stock purchase plans existing on, the date of this
Agreement or described in the Prospectus, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement), without the prior written consent of
▇▇▇▇▇▇▇, Sachs & Co.;
(f) To comply with Rule 14a-3 under the Exchange Act;
(g) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(h) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(i) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act;
(j) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 9:00 A.M., Washington,
D.C. time, on the date immediately following the date of this
Agreement, and the Company shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act; and
(k) Upon request of any Underwriter, to furnish, or cause to
be furnished, to such Underwriter an electronic version of the
Company's trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Shares as set forth in the
Prospectus
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(the "License"); provided, however, that the License shall be used
solely for the purpose described above, is granted without any fee and
may not be assigned or transferred.
6. Expenses.
The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses (in an
amount not exceeding $15,000 in the aggregate) in connection with the
qualification of the Shares for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky survey; (iv) all fees and expenses in connection with listing
the Shares on the New York Stock Exchange; (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section 6,
and in Sections 8 and 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 9:00 A.M., Washington, D.C. time, on the date
immediately following the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission;
(b) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Underwriters,
shall have furnished to you such written opinion or opinions addressing
such matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
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(c) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Senior Vice President, General Counsel,
and Corporate Secretary for the Company shall have furnished to you his
written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) No consent, approval, authorization or other
order of, or registration with, any governmental regulatory
body (other than the registration under the Act of the Shares
and such consents, approvals, orders, authorizations,
registrations or qualifications as may be required under
applicable state securities laws, as to which such counsel
need not express an opinion) having jurisdiction over the
Company or any of its subsidiaries is required for the
execution and delivery by the Company and its applicable
subsidiaries of each of the Transaction Documents or for the
issuance and sale of the Shares being delivered at such Time
of Delivery or the consummation by the Company of the
transactions contemplated by this Agreement;
(ii) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is
subject, which, individually or in the aggregate, are expected
to have a Material Adverse Effect;
(iii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company, the
execution, delivery and performance by the Company of this
Agreement and the execution and delivery by the Company of
each of the Transaction Documents will not result in the
breach or violation of, or constitute a default under, (i) the
Restated Certificate of Incorporation or the Amended and
Restated Bylaws of the Company, each as amended to date, (ii)
any indenture, mortgage, deed of trust or other agreement or
instrument for borrowed money to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property of
the Company or any of its subsidiaries is subject or (iii) any
law, order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of its properties except with respect
to clauses (i) and (iii) of this paragraph, for such
conflicts, breaches or defaults or violations as would not
have a Material Adverse Effect;
(iv) The description of the statutes and regulations
set forth in the Prospectus under the captions "Our Business -
Regulation" and "Our Business - Environmental" fairly describe
in all material respects the portions of the statutes and
regulations addressed thereby; and
(v) Each subsidiary of the Company listed on Exhibit
21.1 of the Registration Statement has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and all of
the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel, including counsel
in the Netherlands, and in respect to matters of fact upon
certificates of officers of the Company or its subsidiaries,
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provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions
and certificates);
With respect to certain regulatory matters in California,
Florida, Illinois, Nevada, New Jersey, Pennsylvania and the
Netherlands, such counsel is entitled to rely in respect of the
opinions in clauses (i) and (iii) above upon the opinions of (x)
lawyers who are employed by the Company or the Parent and who exercise
general responsibility for the legal and regulatory affairs of the
Company in jurisdictions or (y) special regulatory counsel to the
Company in such jurisdictions.
(d) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing in good standing under the laws of the State
of Delaware and has corporate power and authority to own its
properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under
this Agreement;
(ii) The Company has authorized capital stock as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform in all material respects to the
description of the Stock contained in the Prospectus;
(iii) Such counsel does not know of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not so
described or filed;
(iv) The statements set forth in the Prospectus under
the caption "Description of Our Capital Stock", insofar as
they purport to constitute a summary of the terms of the
Stock, accurately summarize in all material respects the terms
of the Stock; and the statements set forth in the Prospectus
under the captions "Our Relationship with Reliant Energy and
Related Transactions", "Texas Genco Option", "Agreements
Between Us and Reliant Energy" and "Certain Federal Tax
Matters Related to Our Separation from Reliant Energy", fairly
describe in all material respects the portions of the
documents addressed thereby;
(v) The Company is not an "investment company", as
such term is defined in the Investment Company Act;
(vi) The Registration Statement has become effective
under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted and are
pending or are threatened by the Commission under the Act; the
Registration Statement, as of its effective date, and the
Prospectus, as of its date, and any amendment or supplement
thereto after the date hereof and prior to such Time of
Delivery, as of the date thereof and the date hereof (except
for (A) the financial statements and
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financial statement schedules contained therein (including the
auditors' reports on the financial statements and the notes to
the financial statements), (B) the other financial information
contained therein and (C) the exhibits thereto, as to which
such counsel need not comment) complied as to form in all
material respects with the requirements of Form S-1 under the
Act and the applicable rules and regulations of the Commission
thereunder;
(vii) The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all
necessary corporate action on the part of the Company, and
this Agreement has been duly executed and delivered by the
Company;
(viii) Each of the Transaction Documents, (A) has
been duly authorized by all necessary corporate action on the
part of the Company, the Parent and any applicable subsidiary
signatory thereto, (B) has been duly executed and delivered by
the Company, the Parent and any applicable subsidiary
signatory thereto, and constitutes the valid and legally
binding obligation of the Company, the Parent and any
applicable subsidiary signatory thereto, enforceable against
the Company, the Parent and any applicable subsidiary
signatory thereto in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless
of whether such enforceability is considered in a proceeding
in equity or at law);
(ix) Pursuant to a Memorandum Opinion and Order
Granting Exemption to Holding Company dated July 24, 1997
issued by the Commission (Release No. 35-26744), the Parent is
exempt from regulation as a public utility holding company
under Section 3(a)(2) of the 1935 Act, except the provisions
of Section 9(a)(2) thereof; and
(x) N.V. UNA is a "foreign utility company" as such
term is defined in Section 33(a)(3) of the 1935 Act. The
Company is neither a "holding company" nor a "public utility
company" as such terms are defined in Section 2(a) of the 1935
Act.
In addition, such counsel shall state that no facts have come
to the attention of such counsel that lead them to believe that the
Registration Statement and any amendment made thereto prior to the time
of such Time of Delivery (except for (A) the financial statements and
financial statement schedules contained therein (including the
auditors' reports on the financial statements and the notes to the
financial statements), (B) the other financial information contained
therein and (C) the exhibits thereto, as to which such counsel need not
comment) as of the time such Registration Statement became effective or
such amendment was filed, 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
Prospectus, and any amendment or supplement thereto made prior to such
Time of Delivery (except for (A) the financial statements and financial
statement schedules contained therein (including the auditors' reports
on the financial statements and the notes to the financial statements)
and (B) the other financial information contained therein, as to which
such counsel need not comment), as of the date of the Prospectus or
such amendment or supplement contained, or as of such Time of Delivery
contains, any untrue statement of
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a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Deloitte & Touche LLP shall have furnished to
you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a)
hereto and a draft of the form of letter to be delivered on the
effective date of any post effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto).
(f) (i) Neither the Company nor any of its subsidiaries shall
have experienced a change in or affecting their business, properties,
prospects or financial condition, otherwise than as set forth or
contemplated in the Registration Statement at the time it became
effective, the effect of which is, in the judgment of the
Representatives (acting in good faith, after consultation with the
Company), so material and adverse as to make it impracticable to
proceed with the public offering, the sale of or payment for the
Shares, or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus.
(g) The Shares to be sold at such Time of Delivery shall have
been duly listed, subject to notice of issuance, on the Exchange.
(h) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from those Persons listed on Annex II,
substantially to the effect set forth in Subsection 5(e) hereof in form
and substance satisfactory to you.
(i) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses in a
timely manner sufficient to allow the Underwriters to meet their
prospectus delivery requirements.
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or (iv) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this paragraph (j) in the
judgment of the Representatives (acting in good faith, after
consultation with the Company) makes it impracticable to proceed with
the public offering, the sale of or payment for the Shares, or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus.
(k) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations
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hereunder to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (f) of this Section 7 and
as to such other matters as you may reasonably request.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls each Underwriter
within the meaning of the Act against any losses, claims, damages,
liabilities or expenses (including the reasonable cost of
investigating and defending against any claims therefore and counsel
fees incurred in connection therewith as such costs and fees are
incurred), joint or several, which may be based upon the Act, or any
other statute or at common law, on the ground or alleged ground that
any Preliminary Prospectus, the Registration Statement or the
Prospectus (or any such document, as from time to time amended, or
deemed to be amended, supplemented or modified) includes or allegedly
includes an untrue statement of material fact or omits or allegedly
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
unless such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. specifically for use in the
preparation thereof; provided that in no case is the Company to be
liable with respect to any claims made against any Underwriter or any
such controlling person unless such Underwriter or such controlling
person shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information
of the nature of the claim shall have been served upon such Underwriter
or such controlling person, but failure to notify the Company of any
such claim shall not relieve it from any liability which it may have to
such Underwriter or such controlling person otherwise than on account
of the indemnity agreement contained in this paragraph; and provided,
further, that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter if a copy
of the Prospectus (as amended or supplemented) had not been sent or
given in any case where such delivery is required under the Act to the
person asserting any such losses, claims, damages or liabilities by or
on behalf of such Underwriter concurrently with or prior to delivery of
the written confirmation of the sale of Shares to such person if the
Company has previously furnished copies thereof in sufficient quantity
to such Underwriter and sufficiently in advance of the Time of Delivery
to allow for distribution by the Time of Delivery and the untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact contained in or omitted from any such Preliminary
Prospectus was corrected in the Prospectus (as amended or supplemented)
and such correction would have cured the defect giving rise to such
loss, claim, damage or liability.
The Company will be entitled to participate at its own expense
in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if the Company elects to
assume the defense, such defense shall be conducted by counsel chosen
by it. In the event that the Company elects to assume the defense of
any such suit and retains such counsel, the Underwriter or Underwriters
or controlling person or persons, defendant or defendants in the suit,
may retain additional counsel but shall bear the fees and expenses of
such counsel unless (i) the Company shall have specifically authorized
the retaining of such counsel or (ii) the parties to such suit include
the Underwriter or Underwriters or controlling person or persons and
the Underwriter or Underwriters or controlling person or persons have
been advised by such counsel that
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one or more legal defenses may be available to it or them which may not
be available to the Company, in which case the Company shall not be
entitled to assume the defense of such suit on behalf of such
Underwriter or Underwriters or controlling person or persons,
notwithstanding their obligation to bear the reasonable fees and
expenses of such counsel, it being understood, however, that the
Company shall not, in connection with any one such suit or proceeding
or separate but substantially similar or related actions or proceedings
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for all such
Underwriters and their controlling persons, which firm shall be
designated in writing by ▇▇▇▇▇▇▇, Sachs & Co. The Company shall not be
liable to indemnify any person for any settlement of any such claim
effected without the Company's consent. The Company shall not, without
the written consent of the Underwriter and/or controlling person
entitled to indemnification under this Section 8(a), affect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not such Underwriter or controlling person is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of such
Underwriter and/or controlling person from all liability arising out of
such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
such Underwriter and/or controlling person. This indemnity agreement
will be in addition to any liability, which the Company might otherwise
have.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's
officers who have signed the Registration Statement and each person, if
any, who controls the Company within the meaning of the Act against any
losses, claims, damages, liabilities or expenses (including the
reasonable cost of investigating and defending against any claims
therefor and counsel fees incurred in connection therewith as such
costs and fees are incurred), joint or several, which may be based upon
the Act, or any other statute or at common law, on the ground or
alleged ground that any Preliminary Prospectus, the Registration
Statement or the Prospectus (or any such document, as from time to time
amended, or deemed to be amended, supplemented or modified) includes or
allegedly includes an untrue statement of a material fact or omits or
allegedly omits to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading,
but only insofar as any such statement or omission was made in reliance
upon, and in conformity with, written information furnished to the
Company by such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. specifically
for use in the preparation thereof; provided that in no case is such
Underwriter to be liable with respect to any claims made against the
Company or any such director, officer or controlling person unless the
Company or any such director, officer or controlling person shall have
notified such Underwriter in writing within a reasonable time after the
summons or other first legal process giving information of the nature
of the claim shall have been served upon the Company or any such
director, officer or controlling person, but failure to notify such
Underwriter of any such claim shall not relieve it from any liability
which it may have to the Company or any such director, officer or
controlling person otherwise than on account of the indemnity agreement
contained in this paragraph. Such Underwriter will be entitled to
participate at its own expense in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any such liability,
but, if such Underwriter elects to assume the defense, such defense
shall be conducted by counsel chosen by it.
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In the event that such Underwriter elects to assume the defense of any
such suit and retain such counsel, the Company or such director,
officer or controlling person, defendant or defendants in the suit, may
retain additional counsel but shall bear the fees and expenses of such
counsel unless (i) such Underwriter shall have specifically authorized
the retaining of such counsel or (ii) the parties to such suit include
the Company or any such director, officer or controlling person and
such Underwriter and the Company or such director, officer, trustee or
controlling person have been advised by such counsel that one or more
legal defenses may be available to it or them which may not be
available to such Underwriter, in which case such Underwriter shall not
be entitled to assume the defense of such suit on behalf of the Company
or such director, officer or controlling person, notwithstanding its
obligation to bear the reasonable fees and expenses of such counsel, it
being understood, however, that such Underwriter shall not, in
connection with any one such suit or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one a separate firm of attorneys at any time for all of the
Company and any such director, officer or controlling person, which
firm shall be designated in writing by the Company. Such Underwriter
shall not be liable to indemnify any person for any settlement of any
such claim effected without such Underwriter's consent. Such
Underwriter shall not, without the written consent of the Company or
any such person, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
Company or any such person from all liability arising out of such
action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
the Company or any such person. This indemnity agreement will be in
addition to any liability which such Underwriter might otherwise have.
(c) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (a) or (b) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party 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
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the
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untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (c)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (c). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (c) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (c), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (c)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(d) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company (including any person who,
with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any,
who controls the Company within the meaning of the Act.
9. Substitution of Underwriters.
(a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein; provided, however, that in the case of the substitution of
another party for one of the Representatives, you will arrange for such
substitution in good faith, after consultation with the Company. If
within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Shares, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company
shall have the right to postpone such Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to use reasonable commercial efforts to file promptly any
amendments
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to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section 9
with like effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in Section 9(a) above, the aggregate
number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased
at such Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time
of Delivery and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of
Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in Section 9(a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
Section 9(b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Survival of Indemnities, Representations, Warranties, etc.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, the Company or
the Parent, or any officer or director or controlling person of the Company or
the Parent and shall survive delivery of and payment for the Shares.
11. Termination.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the
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Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 8 hereof.
12. Notices.
In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Registration Department; and if to the Company shall be delivered or sent by
mail to the address of the Company set forth in the Registration Statement,
Attention: Corporate Secretary. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. Binding Agreement.
This Agreement shall inure to the benefit of and be binding upon the
several Underwriters and the Company and their respective successors and the
directors, officers and controlling persons referred to in Section 8 of this
Agreement. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person other that the persons mentioned in the
preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained; this Agreement
and all conditions and provisions hereof being intended to be, and being, for
the sole and exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants, agreements and
indemnities of the Company contained in this Agreement shall also be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of the Act, and the representations, warranties, covenants, agreements
and indemnities of the several Underwriters shall also be for the benefit of
each director of the Company, each person who has signed the Registration
Statement and the person or persons, if any, who control the Company within the
meaning of the Act.
14. Applicable Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. Counterparts.
This Agreement may be executed by any one more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
19
20
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
RELIANT RESOURCES, INC.
By:
----------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
ABN AMRO ROTHSCHILD LLC
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
UBS WARBURG LLC
By:
--------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO...............................................
CREDIT SUISSE FIRST BOSTON CORPORATION
ABN AMRO ROTHSCHILD LLC
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
UBS WARBURG LLC
[NAMES OF OTHER UNDERWRITERS].....................................
---------- --------
TOTAL.........................
========== ========
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ANNEX I
FORM OF COMFORT LETTER
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
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23
(B) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
financial statements included in the Prospectus) or any
increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(C) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit
or the total or per share amounts of consolidated net income
or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representatives, except in each case
for decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(vi) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
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24
ANNEX II
LOCK-UP AGREEMENTS
▇▇▇▇▇ ▇. ▇▇▇▇▇, III
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇. Divine
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. Tees
Ito van Lanschot
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
24
