Exhibit 1.2
KONINKLIJKE PHILIPS ELECTRONICS N.V.
Up to U.S. $[ ]
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
FORM OF DISTRIBUTION AGREEMENT
[ ], 2002
[NAME & ADDRESS OF AGENT(S)]
Ladies and Gentlemen:
Koninklijke Philips Electronics N.V., a public limited company
incorporated under the laws of The Netherlands (the "Issuer"), proposes to issue
and sell from time to time their Medium-Term Notes, [Due 18 Months to 30 Years
From Date of Issue (the "Securities"), at an aggregate initial offering price up
to U.S.$[ ] (or the equivalent thereof at the time of original issuance in one
or more foreign currencies or composite currencies), and each of them agrees
with each of you (individually, an "Agent", and collectively, the "Agents") as
set forth in this Agreement. The Securities are to be issued pursuant to the
provisions of an indenture, dated August 1, 1993, as supplemented by a First
Supplemental Indenture dated May 6, 1994 and a Second Supplemental Indenture
dated [ ], 2002 (the "Indenture"), between Koninklijke Philips Electronics N.V.,
and Citibank, N.A., as Trustee (the "Trustee").
Subject to the terms and conditions stated herein and to the reservation
by the Issuer of the right to sell Securities directly on its own behalf, the
Issuer hereby (i) appoints each Agent as an agent of the Issuer for the purpose
of soliciting and receiving offers to purchase Securities from the Issuer
pursuant to Section II(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Securities directly to any
Agent as principal, it will enter into a separate agreement (each a "Terms
Agreement"), which may be oral and confirmed in writing or which may be
substantially in the form of Annex I hereto, relating to such sale in accordance
with Section II(b) hereof.
The Issuer has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form F-3 (nos. 333-4582 and [-])
including a prospectus relating to the Securities to be issued severally from
time to time by the Issuer.
The Issuer also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), a prospectus supplement specifically relating to the
Securities (the "Prospectus Supplement"). Upon request, but not without the
agreement of each applicable Agent, the applicable Issuer may also file a
registration statement in accordance with Rule 462(b) under the Securities Act.
The registration statements as amended to the Commencement Date (as hereinafter
defined) and any Rule 462(b) Registration Statement that becomes effective
thereafter are hereinafter referred to as the "Registration Statement" and the
related prospectus covering the Securities in the form first used to confirm
sales of the Securities is hereinafter referred to as the "Basic Prospectus".
The Basic Prospectus as supplemented by the Prospectus Supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus". Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, any preliminary
form of prospectus (including the Basic Prospectus, a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 6 of Form F-3 under the Securities Act which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or
before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, the date of the Basic Prospectus, the date
of any preliminary prospectus or the date of the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein. Any reference to "Rule
462(b) Registration Statement" shall be deemed to refer to a registration
statement and any amendments thereto filed pursuant to Rule 429 or Rule 462(b)
relating to the offering covered by the initial Registration Statement.
I.
The Issuer represents and warrants to each of the Agents that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Issuer's knowledge, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement
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of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph I(b)
do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Agent
furnished to the Issuer in writing by such Agent expressly for use
therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the U.S. Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The Issuer is a limited liability stock corporation duly
organized and validly existing under the laws of The Netherlands, has
the power and authority (corporate and other) to own its property and to
conduct its business as described in its Articles of Association and in
the Prospectus.
(d) Each Significant Subsidiary (as such term is defined in
Regulation S-X under the Securities Act) of the Issuer has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the power
and authority to own its property and to conduct its business as
conducted as of the date hereof , is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
incorporated or validly existing, to have such power or to be so
qualified or be in good standing, would not have a material adverse
effect on the consolidated financial position or results of operations
of the Issuer and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Agent or Agents or when
delivered to and paid for by purchasers of the Securities in accordance
with the terms of this Distribution Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Issuer enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(f) This Distribution Agreement has been duly authorized,
executed
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and delivered by the Issuer.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Issuer and is a valid and binding agreement of the Issuer
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(h) The execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, this Distribution
Agreement, the Indenture and the Securities will not contravene (x) any
provision of the Articles of Association of the Issuer or (y) any
provision of applicable Netherlands or United States law or any
agreement or other instrument binding upon the Issuer or any of its
Significant Subsidiaries or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer
or any Significant Subsidiary, in each case with respect to this
sub-clause (y), except for any contravention that would not affect the
validity or enforceability of the Securities or the consummation of the
transactions contemplated hereby or have a Material Adverse Effect; and
no consent, approval, authorization or order of or qualification with
any governmental body in the United States of America or The Netherlands
or agency is required for the performance by the Issuer of its
obligations under this Agreement, the Indenture or the Securities,
except for the announcements and the statements required by section 3 of
the Exemption Regulation pursuant to the Netherlands 1995 Act on the
Supervision of the Securities Trade ("Wet toezicht effectenverkeer
1995"), and except for the registration of the Securities under the
Securities Act and except such as may be required by the securities or
Blue Sky laws of the various states of the United States in connection
with the offer and sale of the Securities.
(i) Since the date as of which information is given in the
Registration Statement and the Prospectus, there has not occurred
anything that would have a material adverse effect, or any development
involving a prospective material adverse effect, on the general affairs,
management, financial position, stockholders' equity or results of
operations of the Issuer and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the date of the Distribution
Agreement).
(j) Other than as set forth or contemplated in the Prospectus,
there are no (i) legal or governmental proceedings pending or threatened
in writing to which the Issuer or any of its subsidiaries is a party or
to which any of the properties of the Issuer or any of its subsidiaries
is subject which (x) would individually have a Material Adverse Effect
or (y) in the judgment of the Issuer
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after reasonable investigation by the Issuer and its subsidiaries,
would, in the aggregate, have a Material Adverse Effect; nor (ii) any
contracts or other documents that are required to be described in the
Registration Statement or Prospectus or to be filed as Exhibits to the
Registration Statement that are not described or filed as required.
(k) The Issuer or one of its subsidiaries owns or possesses
all patents, patent applications, trademarks, service marks, trade
names, trade secrets, licenses and rights in any thereof which are
necessary for the conduct of the business of the Issuer and its
subsidiaries, taken as a whole, substantially in the manner in which it
has been or is being conducted and, except as set forth in the
Prospectus, there are no unresolved assertions that the Issuer or any of
its subsidiaries has infringed the patent or trademark rights of others,
other than assertions which, in the judgment of the Issuer, would not
individually or in the aggregate be likely to have a Material Adverse
Effect.
(l) No stamp or other issuance taxes or duties are payable by
or on behalf of an Agent in The Netherlands in connection with the
issuance of the Securities or the sale and delivery by an Agent of
Securities, all in the manner contemplated in this Agreement.
(m) No authorization, approval or consent of any governmental
authority or agency of or in The Netherlands is required to effect
payments made by the Issuer within or outside The Netherlands in respect
of the Securities.
II.
(a) On the basis of the representations and warranties of the
Issuer, and subject to the terms and conditions herein set forth, each
of the Agents hereby severally and not jointly agrees, as agent of the
Issuer, to use its reasonable best efforts to solicit and receive offers
to purchase the Securities from the Issuer upon the terms and conditions
set forth in the Prospectus as amended or supplemented from time to
time. The Issuer reserves the right (i) to accept offers to purchase
Securities, to solicit offers to purchase Securities and to sell
Securities to or through one or more agents other than the Agents or to
agree with another agent that such agent shall become an Agent
hereunder, in each case, without obtaining the consent of the Agents,
provided, however, that the Issuer will notify the Agents promptly
following the issuance and sale of any Security issued and sold in
respect of any offer so accepted and (ii) to sell, and solicit and
accept offers to purchase, Securities directly on its own behalf; and,
in the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
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If any other agent is to be named as an Agent under this
Agreement, such agent and the Issuer will execute an agreement
substantially in the form of Annex III hereto, whereupon such agent
shall become a party to this Agreement and shall be subject to the same
obligations and receive the same benefits as an Agent would be subject
to or would receive hereunder. If any other agent is to be appointed as
Agent by the Issuer solely in connection with a particular issue of
Securities, such agent and the Issuer will execute an agreement
substantially in the form of Annex IV hereto.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefore shall be as set forth in the
Administrative Procedures, attached hereto as Annex II, as they may be
amended from time to time by written agreement between the Agents and
the Issuer (the "Procedures"). The provisions of the Procedures shall
apply to all transactions contemplated hereunder other than those made
pursuant to a Terms Agreement. Each Agent and the Issuer agrees to
perform the respective duties and obligations specifically provided to
be performed by each of them in the Procedures. The Issuer will furnish
to the Trustee a copy of the Procedures as from time to time in effect.
The Issuer reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities from
the Issuer. As soon as practicable after receipt of notice from the
Issuer, the Agents will suspend solicitation of offers to purchase
Securities from the Issuer until such time as the Issuer has advised the
Agents that such solicitation may be resumed. While such solicitation is
suspended, the Issuer shall not be required to deliver any certificates,
opinions or letters in accordance with Sections V(i), V(j) and V(k);
provided, however, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by
an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities
offered on the Securities or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to
purchase Securities until the Issuer has delivered such certificates,
opinions and letters as such Agent may reasonably request.
Unless otherwise agreed by the Issuer and the applicable Agent at
the time of any sale of a Security by such Issuer through such Agent,
the Issuer agrees to pay each Agent a commission (or grant an equivalent
discount) at the time of settlement of any sale of a Security by the
Issuer as a result of a solicitation made by such Agent, in an amount to
be negotiated.
Each Agent shall communicate to the Issuer, orally or in writing,
each offer to purchase Securities received by such Agent as agent that
in its judgment
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should be considered by the Issuer. The Issuer shall have the sole right
to accept offers to purchase Securities and may reject any offer in
whole or in part. Each Agent shall have the right to reject any offer to
purchase Securities that it considers to be unacceptable, and any such
rejection shall not be deemed a breach of its agreements contained
herein.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the
Issuer and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such Agent.
The commitment of any Agent to purchase Securities as principal, whether
pursuant to any Terms Agreement or otherwise, shall be deemed to have
been made on the basis of the representations and warranties of the
Issuer herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal
amount of Securities to be purchased by any Agent pursuant thereto, the
price to be paid to the Issuer for such Securities, any provisions
relating to rights of, and default by, underwriters acting together with
such Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities. Such Terms
Agreement shall also specify requirements, if any, for opinions of
counsel, accountants' letters and officers' certificates pursuant to
Section VI hereof.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall be
as set forth in the Procedures. For each such sale of Securities to an
Agent as principal, the Issuer agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section II(a) hereof.
Securities may also be sold by any Agent to or through dealers who may
resell to investors. The Agents may pay all or part of their discount or
commission to such dealers.
Each time and date of delivery of and payment for Securities to
be purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Procedures, is referred to herein as
a "Time of Delivery".
(c) The Issuer acknowledges that the obligations of the Agents
under this Agreement are several and not joint.
(d) The documents required to be delivered pursuant to Section
VI hereof on the Commencement Date (as defined below) shall be delivered
to the Agents at the offices of Xxxxxxxx & Xxxxxxxx, 0 Xxx Xxxxxx Xxxx,
Xxxxxx XX0X 0XX at 9:00 a.m., New York City time, on the date of this
Agreement, which date
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and time of such delivery may be postponed by agreement among the Agents
and the Issuer but in no event shall be later than the day prior to the
date on which solicitation of offers to purchase Securities is commenced
or on which any Terms Agreement is executed (such time and date being
referred to herein as the "Commencement Date").
III.
Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
except as permitted by applicable law of the country issuing such currency.
IV.
Each Agent severally represents and agrees that (i) it has not offered
or sold and, prior to the expiry of the period of six months from the date of
issue of the Securities, will not offer or sell any such Securities to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
(ii) it has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (the "FSMA") with respect to anything
done by it in relation to the Securities in, from or otherwise involving the
United Kingdom and (iii) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of Section 21 of
the FSMA) received by it in connection with the issue and sale of such
Securities in circumstances in which Section 21(1) of the FSMA does not apply to
the Issuer.
Each Agent further represents and agrees that from the date of issue of
the Securities or at any time thereafter, that
(a) it has not offered, transferred or sold and will not
offer, transfer or sell any Securities:
(i) before a statement that the laws and regulations
referred to in (c) of this section are complied with, has been
submitted to the Netherlands Authority for the Financial
Markets; or
(ii) to persons who are established, domiciled or
have their residence in The Netherlands; and
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(b) with respect to each offer of Securities, and each
announcement and documents in respect thereof, made by it, it has stated
and will state that the Securities are not and will not be offered to
persons as referred to in (a)(ii) of this section; and
(c) with respect to each offer of Securities, and each
announcement thereof, made by it, it has complied and will comply with
the laws and regulations of any jurisdiction where persons to whom the
offer is made are resident; and
a statement that the laws and regulations referred to in (c) of this
section are complied with, has been and will be included in each announcement
made by it of any offer of Securities.
V.
The Issuer covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus after the date of any Terms Agreement or
other agreement by an Agent to purchase Securities as principal and
prior to the related Time of Delivery which shall have been reasonably
disapproved by any Agent party to such Terms Agreement or otherwise
purchasing as principal promptly after reasonable notice thereof; (ii)
to prepare, with respect to any Securities to be sold through or to such
Agent pursuant to this Agreement, a Pricing Supplement with respect to
such Securities in a form previously approved by such Agent and to file
such Pricing Supplement pursuant to and in accordance with Rule 424(b)
under the Securities Act; (iii) to make no amendment or supplement to
the Registration Statement or Prospectus (other than any Pricing
Supplement), without having afforded each Agent a reasonable opportunity
to review and comment thereon; provided, however, that the requirements
in clauses (i) and (iii) of this Section V(a) shall not apply with
respect to an amendment or supplement which relates to Securities sold
through or to agents other than the Agents or contains no new
information other than the terms of such Securities and the plan of
distribution thereof; (iv) to file promptly all reports or information
statements required to be filed by such Issuer or the Guarantor with the
Commission pursuant to Section 13(a), 13(c), or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period to advise such Agent, promptly after the Issuer receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or has become effective or any supplement to
the Prospectus or any amended Prospectus (other than any Pricing
Supplement that relates to Securities not purchased through or by such
Agent) has been filed with
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the Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request
by the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and (v) in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending
any such qualification, to use promptly its reasonable best efforts to
obtain its withdrawal.
(b) Promptly from time to time to take such action as such
Agent reasonably may request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as such Agent may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein for as long as may be necessary to complete
the distribution or sale of the Securities, provided, however, that in
connection therewith the Issuer shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction.
(c) At the request of such Agent, to furnish such Agent with a
copy of the Registration Statement and each amendment thereto, with a
copy of the Prospectus and each amendment or supplement thereto, and
additional copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except as provided in
the Procedures), in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities as such Agent
may reasonably request; and if at any time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify such Agent promptly and request such
Agent to suspend solicitation of offers to purchase Securities from the
Issuer (and, if so notified, such Agent shall cease such solicitations
as soon as practicable, but in any event not later than one business day
after notification); and if the Issuer shall decide to amend or
supplement the Registration Statement or the Prospectus as then amended
or supplemented, to so advise such Agent promptly and to prepare and to
cause to be filed with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance;
provided,
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however, that if, at any time prior to the expiration of nine months
after the Time of Delivery with respect to any Securities, such Agent
continues to own Securities purchased from the Issuer by such Agent as
principal, the Issuer shall promptly prepare and deliver to such Agent
such an amendment or supplement that will correct such statement or
omission; provided further, however, that if at any time nine months or
more after the Time of Delivery with respect to any Securities, such
Agent continues to own Securities purchased from the Issuer by such
Agent as principal, the Issuer, upon such Agent's request but at the
sole expense of such Agent, shall prepare and deliver to such Agent as
many copies as such Agent shall request of such an amendment or
supplement.
(d) To make generally available to its Security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement an earning
statement of the Issuer and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of
the Commission thereunder (including, at the option of the Issuer, Rule
158).
(e) For a period of three years after the completion of the
sale of all the Securities, to deliver to such Agent as soon as they are
available, copies of any reports and financial statements of the Issuer
furnished to or filed with the Commission or any United States or The
Netherlands or other European national securities exchange on which any
class of securities of the Issuer is listed.
(f) That, from the date of any Terms Agreement with such Agent
and continuing to and including the related Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of in each case in
the United States any debt securities of the Issuer or warrants to
purchase debt securities of the Issuer substantially similar to the
Securities, in each which mature more than one year after such Time of
Delivery, without the Agents' prior written consent such consent not to
be unreasonably withheld.
(g) That each acceptance by the Issuer of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by
the Issuer of a Terms Agreement with such Agent, and each amendment or
supplement of the Registration Statement or the Basic Prospectus by the
Issuer, shall be deemed to be an affirmation to such Agent that the
representations and warranties of the Issuer contained in or made
pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement or of such amendment or
supplement, as the case may be, as though made at and as of such date,
and an undertaking that such representations and warranties will be true
and correct as of the settlement date for the Securities relating to
such acceptance or as of the Time of Delivery relating to such sale, as
the case may be, as though made at and as of
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such date (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to each such date).
(h) That each time the Issuer sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by counsel to the
Agents, as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Issuer shall furnish to such counsel such papers
and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section VI (c)
hereof.
(i) That each time the Issuer's annual report on Form 20-F is
filed and is incorporated by reference into the Prospectus and each time
the Issuer sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an
opinion under this Section V(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Issuer shall notify
each Agent of such filing and furnish or cause to be furnished forthwith
to such agent (but, in the case of the filing of the Issuer's annual
report on Form 20-F, only if so requested in writing by [the Lead
Agent]):
(x) a written opinion of Netherlands legal advisor to the
Issuer, dated the date of such filing or the Time of
Delivery relating to such sale, as the case may be, in
form reasonably satisfactory to such Agent, to the
effect set forth in Section VI(b) hereof; provided,
however, that to the extent appropriate such opinion or
opinions may reconfirm matters set forth in a prior
opinion of Netherlands legal advisor delivered under
Section VI(b) or this Section V(i); and
(y) a written opinion of Xxxxxxxx & Xxxxxxxx, United States
counsel for the Issuer, or other counsel for the Issuer
satisfactory to such Agent, dated the date of such
filing or Time of Delivery relating to such sale, as the
case may be, in form reasonably satisfactory to such
Agent, to the effect set forth in Section VI(a) hereof;
provided, however, that to the extent appropriate such
opinion or opinions may reconfirm matters set forth in a
prior opinion of United States counsel delivered under
Section VI(a) or this Section V(i); and
(j) That each time the Issuer's annual report on Form 20-F is
filed and incorporated by reference into the prospectus and each time
the Issuer sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of a
letter under this Section V(j) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the
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Issuer shall notify each Agent of such filing and (but, in the case of
the filing of the Issuer's annual report on Form 20-F, only if so
requested in writing by [the Lead Agent]) shall cause the independent
auditors who have audited the financial statements of the Issuer and its
subsidiaries included in the Registration Statement and the Prospectus
forthwith to furnish such Agent a letter, dated the date of such filing
or Time of Delivery relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, of the same tenor as the letter
referred to in Section VI(d) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to
the date of such letter, with such changes as may be necessary to
reflect changes in the financial statements and other information
derived from the accounting records of the Issuer, to the extent such
financial statements and other information are available as of a date
not more than three business days prior to the date of such letter;
provided, however, that, in the case of a letter furnished in connection
with a sale of Securities to such Agent as principal, with respect to
any financial information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section
VI(e) hereof which was last furnished to such Agent.
(k) That each time the Issuer's annual report on Form 20-F is
filed and each time the Issuer sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery of a
certificate under this Section V(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement (but, in the case of the
filing of the Issuer's annual report on Form 20-F, only if so requested
in writing by [the Lead Agent]), the Issuer shall furnish or cause to be
furnished forthwith to such Agent a certificate or certificates, dated
the date of such filing or Time of Delivery relating to such sale, as
the case may be, in such form and executed by such officers of the
Issuer as shall be reasonably satisfactory to such Agent, to the effect
that the statements contained in the certificate or certificates
referred to in Section VI(h) hereof which was last furnished to such
Agent are true and correct in all material respects at such date as
though made at and as of such date (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such certificate
or certificates, a certificate or certificates of the same tenor as the
certificate or certificates referred to in said Section VI(i) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; each such officer may certify to
the best of his or her knowledge.
(l) To offer to any person who has agreed to purchase
Securities as the result of an offer to purchase solicited by such Agent
the right to refuse to purchase and pay for such Securities if, on the
related settlement date fixed pursuant to the Procedures, any condition
set forth in Section VI(e), (f), (g) or (i)
-13-
hereof shall not have been satisfied (it being understood that the
judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section V(l), for the respective judgment of an Agent
with respect to certain matters referred to in such Sections VI(e) and
(g), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Section VI(e) and (g) on
behalf of any such person).
(m) The Issuer covenants and agrees with each Agent that the
Issuer will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Issuer's counsel and accountants in
connection with the issuance of the Securities, the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other
amendments and supplements thereto, and the mailing and delivering of
copies thereof to such Agent; (ii) the reasonable fees, direct
disbursements and expenses of counsel for the Agents in connection with
the establishment and updating of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and the transactions
contemplated hereunder; (iii) the cost of printing, preparing by word
processor or reproducing any Terms Agreement, any Indenture, and any
other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section V(b) hereof, including fees and
disbursements of counsel for the Agents in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating services for rating
the Securities; (vi) the cost of preparing the Securities (including any
global Securities); and (vii) the reasonable fees and direct expenses of
the Trustee and any agent of the Trustee and any transfer or paying
agent of the Issuer and the reasonable fees and disbursements of counsel
for the Trustee and any such agent in connection with the Indentures and
the Securities. Except as provided in Sections VII and VIII hereof, each
Agent shall pay all other expenses it incurs.
VI.
The obligation of any Agent, as agent of the Issuer, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Issuer herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section V(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of
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Delivery, as the case may be, the condition that prior to such Solicitation Time
or Time of Delivery, as the case may be, the Issuer shall have performed in all
material respects all of their respective obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) Xxxxxxxx & Xxxxxxxx, United States counsel for the Issuer,
or other counsel for the Issuer satisfactory to such Agent, shall have
furnished to such Agent their written opinion, dated the Commencement
Date and each applicable date referred to in Section V(i) hereof that is
on or prior to such Time of Delivery, in form and substance satisfactory
to such Agent, to the effect that:
(i) assuming that the Indenture has been duly
authorized, executed and delivered by the Issuer insofar as
the laws of the Netherlands are concerned, the Indenture has
been duly qualified under the Trust Indenture Act of 1939 and
constitutes a valid and legally binding obligation of the
Issuer, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(ii) any series of Securities established on or prior to
the date of such opinion has been duly authorized and
established in conformity with the Indenture, and, when the
terms of a particular Security and of its issuance and sale
have been duly authorized and established by all necessary
corporate action in conformity with the Indenture, and such
Security has been duly completed, executed, authenticated and
issued in accordance with the Indenture and delivered against
payment as contemplated by this Agreement, such Security will
constitute a valid and legally binding obligation of the
Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; in rendering such opinion at any time other than
pursuant to a Terms Agreement such counsel may assume that at
the time of issuance, sale and delivery of each particular
Security the authorization of the Securities will not have
been modified or rescinded and, with respect to each Security,
that such Security will conform to the respective forms of the
Securities examined by them (such latter assumption may be
made even if such opinion is rendered pursuant to a Terms
Agreement) and that the Trustee's certificate of
authentication of such Security will be manually signed by one
of the Trustee's authorized officers; such counsel may also
assume that at the time of the issuance, sale and delivery of
each particular Security there will not have occurred any
change in law affecting the validity, legally binding
character or enforceability of such Security and
-15-
that the issuance, sale and delivery of such Security, all of
the terms of such Security and the performance by the Issuer
of its obligations thereunder will comply with applicable law
and with each requirement or restriction imposed by any court
or governmental body having jurisdiction over the Issuer and
will not result in a default under or a breach of any
agreement or instrument then binding upon the Issuer;
(iii) assuming this Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered by
the Issuer insofar as the laws of The Netherlands are
concerned, this Agreement and any applicable Terms Agreement
have been duly executed and delivered by the Issuer;
(iv) the execution and delivery by the Issuer of the
Indenture and the Distribution Agreement do not, and the
completion, execution and issuance of each particular Security
in accordance with the Indenture and the sale by the Issuer of
such Security in accordance with this Agreement and any
applicable Terms Agreement and the performance by the Issuer
of its obligations under the Indenture, the Agreement and any
applicable Terms Agreement and the Securities will not violate
any Federal law of the United States or the law of the State
of New York applicable to the Issuer; provided, however, that,
with respect to this paragraph VI(a)(iv), such counsel need
express no opinion with respect to Federal or state securities
laws, other anti-fraud laws, fraudulent transfer laws and laws
that restrict transactions between United States persons and
citizens or residents of certain foreign countries or
specifically designated nationals and organizations; provided,
further, that insofar as performance by the Issuer of its
obligations under the Indenture, this Agreement, any
applicable Terms Agreement, and the Securities is concerned,
such counsel need express no opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights;
In rendering such opinion, such counsel may state that their opinion is
limited to the Federal laws of the United States and the laws of the State of
New York and such counsel may (i) note that, as to matters of Dutch law, the
Agents have received the opinion of Dutch counsel for the Issuer, rendered
pursuant to Section VI(b); (ii) assume that the Issuer has been duly
incorporated and is an existing company under the laws of The Netherlands, and
(iii) each Security issued by the Issuer will be duly executed and delivered in
accordance with the laws of The Netherlands.
Such counsel may also state that, with your approval, they have relied
as to certain matters or information obtained from public officials, officers of
the Issuer and other sources believed by them to be responsible, and that they
have assumed that the
-16-
Indenture has been duly authorized, executed and delivered by the Trustee and
that the signatures on all documents examined by them are genuine, assumptions
which they have not independently verified.
Such counsel shall also state that they have reviewed the Registration
Statement, the Basic Prospectus and the Prospectus Supplement and participated
in discussions with representatives of the Issuer its Dutch counsel,
representatives of the accountants for the Issuer and representatives of the
Agents and their United States counsel; and on the basis of the information that
they gained in the course of the performance of such services, considered in the
light of their understanding of the applicable law and the experience they have
gained through their practice in this field, such counsel shall confirm to the
Agents that each part of the Registration Statement, when such part became
effective, and the Basic Prospectus, as supplemented by the Prospectus
Supplement as of the date of the Prospectus Supplement, appeared on their face
to be appropriately responsive in all material respects to the requirements of
the Securities Act, the Trust Indenture Act of 1939 and the applicable rules and
regulations of the Commission thereunder; and nothing that has come to the
attention of such counsel has caused them to believe (x) that any part of the
Registration Statement, when such part became effective, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Basic Prospectus as supplemented by the Prospectus Supplement as of the
date of the Prospectus Supplement, contained any untrue statement of material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made,
not misleading or (y) that, in the course of specified procedures performed by
them subsequent to the effective date of the Registration Statement, the Basic
Prospectus, as supplemented by a Prospectus Supplement, as of the date of such
opinion contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. Such
opinion may state (1) that such counsel do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, Basic Prospectus or the Prospectus Supplement except for
those made under the captions "Description of Debt Securities" and "Taxation ---
The United States" in the Basic Prospectus and ["Description of Notes" and "Plan
of Distribution"] in the Prospectus Supplement insofar as they relate to the
provisions of documents therein described and (2) that they do not express any
opinion or belief as to the financial statements or other financial data or as
to any statement made by Dutch counsel to the Issuer with respect to the laws of
The Netherlands, contained in the Registration Statement, the Basic Prospectus
or any Prospectus Supplement, or documents incorporated by reference therein, or
as to the statement of the eligibility and qualification of the Trustee under
the Indentures under which the Securities are being issued.
(b) A.F. Verdam Esq., counsel for the Company, shall have
furnished to such Agent his written opinion, dated the Commencement Date
and each
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applicable date referred to in Section V(i)(B) hereof that is on or
prior to such Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect:
(i) the Issuer has been duly incorporated and is validly
existing as a legal entity in the form of a limited liability
company ("naamloze vennootschap") duly organized under the laws
of The Netherlands, with corporate power and authority to perform
its obligations under the Agreement;
(ii) the Agreement has been duly authorized by all
internal corporate action of the Issuer and has been validly
executed and delivered by the Issuer insofar as the laws of The
Netherlands are concerned and constitutes valid and legally
binding obligations of the Issuer enforceable against it in
accordance with its terms under the laws of the Netherlands;
(iii) neither the execution of any of the Agreement, the
Indenture or the Securities, nor the fulfilment of or compliance
with their respective terms and provisions, by the Issuer will
result in any violation of the provisions of the Articles of
Association of the Issuer or any statute, rule or regulation in
The Netherlands or to the best of such counsel's knowledge, any
order applicable to the Issuer of any court or governmental
agency or body in The Netherlands having jurisdiction over the
Issuer or any other judgment, agreement or instrument to which
the Issuer is a party or by which the Issuer or any of its
property is bound, in each case except for breaches and
violations which would not materially affect the validity of the
Agreement, the Indenture or the Securities (as the case may be)
or would not materially adversely affect the Issuer' ability to
perform its obligations under any of these agreements;
(iv) no consent, approval, authorization, order,
registration, filing or other recording or qualification of or
with any court, governmental agency or body or other entity in
The Netherlands, or any other legal formality under Dutch law is
required to be obtained or made by the Issuer to enforce its
rights under or to ensure the validity, effectiveness,
enforceability or admissibility in evidence of the Agreement, the
Indenture or the Securities or by reason of the execution of any
of the Agreement, the Indenture or the Securities or the
performance by the Issuer of its obligations under any of these
agreements;
(v) to the best of such counsel's knowledge no consent,
approval, authorization, order, registration, filing or otherwise
recording or qualification of or with any court, governmental
agency or body or other
-18-
entity in The Netherlands, or any other legal formality under
Dutch law, is currently required to be obtained or made by the
Issuer to effect payments made by the Issuer within or outside
The Netherlands in respect of the Securities within or outside
The Netherlands upon redemption of the Securities, except for the
Issuer's obligation to comply with notification and registration
requirements of The Netherlands Central Bank (De Nederlandsche
Bank N.V.) in connection with the issue of and all payments in
respect of the Securities to or from non-residents of The
Netherlands in accordance with the General Reporting Instructions
2000 (Rapportage Voorschriften Buitenlands Betalingsverkeer 2000)
issued by DNB pursuant to the External Financial Relations Xxx
0000 (Wet Financiele Betrekkingen Buitenland 1994), although a
failure to perform any of these formalities should not adversely
affect the validity, effectiveness, enforceability or
admissibility in evidence of the Agreement or the Securities or
any payment made or to be made thereunder;
(vi) the choice of the laws of New York as the governing
law of the Agreement is valid and binding on the Issuer, except
that when applying New York law as the law expressed to be
governing the Agreement, the competent court of the Netherlands,
if any,
- may give effect to mandatory rules of the law of any
other jurisdiction with which the situation has a
significant connection, if and insofar as, under the
laws of the latter jurisdiction, those rules must be
applied irrespective of the chosen law;
- will apply the laws of the Netherlands in a
situation where they are mandatory irrespective of
the chosen law;
- will apply the laws of the Netherlands in a
situation where they are mandatory irrespective of
the law otherwise applicable to the Agreement;
- may refuse to apply New York law if such application
is manifestly incompatible with public policy of the
Netherlands;
(vii) the submission to the jurisdiction of the state
courts in the State of New York, County of New York and the
federal courts in the Southern District of New York by the Issuer
contained in the Agreement are valid and binding on the Issuer
and not subject to revocation and the appointment of (subject to
the appointment of a successor pursuant to Article XIII hereof)
Philips Electronics North America Corporation as authorized agent
of the Issuer for the purposes described in Article XIII hereof
has been duly authorized by the Issuer;
-19-
(viii) in the absence of an applicable convention
providing for the reciprocal recognition and enforcement of
judgments in civil and commercial matters between the Netherlands
and the United States of America, a judgment rendered by a court
in New York against the Issuer will not be recognized and
enforced by the courts of the Netherlands; in order to obtain a
judgment which is enforceable against the Issuer the claimant
will have to file its claim against the Issuer with the competent
Netherlands court, and in the course of these proceedings the
claimant may submit the judgment rendered by the New York court;
if the Netherlands court finds that the jurisdiction of the New
York court has been based on grounds which are internationally
acceptable and the proper legal procedures have been observed,
the Netherlands court would, in principle, give binding effect to
the final judgment which has been rendered in New York court,
unless such judgment contravenes principles of Netherlands public
policy;
(ix) to the best of such counsel's knowledge, there is no
litigation or governmental proceedings pending or threatened in
writing against or affecting the Issuer or any of its property,
which litigation or governmental proceeding is reasonably
expected to have a material adverse effect on the Issuer' ability
to consummate the transactions contemplated under the Agreement
or the validity of the Agreement; and
(x) no stamp, registration or other tax, charges or other
costs are payable in The Netherlands in connection with or in
relation to the execution, delivery or performance under the
Agreement.
In giving such opinion, such counsel may state that such opinion is
confined to and given on the basis of Dutch law as currently applied by the
Dutch courts and on the basis that it will be governed by and construed and have
effect in accordance with Dutch law.
The opinion expressed shall be subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, such as the principle of "reasonable and fairness" ("redelijkheid en
billiijkheid").
Such opinion also may state that nothing therein is to be taken as
indicating that the remedy of an order for specific performance or the issue of
an injunction would be available in a Dutch court in respect of the obligations
arising under the Indenture, this Agreement or any applicable Terms Agreement in
that such remedies are available only at the discretion of the court and are not
usually granted where damages would be an adequate remedy.
-20-
Also in giving such opinion, such counsel may rely upon the opinion or
opinions of counsel named in paragraph (a) of this Section VI as to matters of
New York and United States federal law.
(c) United States counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date,
covering certain of the matters referred to in subparagraph (i), (ii),
(iii), (iv), and the last paragraph of clause (a) of this Section VI,
and (ii) if and to the extent requested by such Agent, with respect to
each applicable date referred to in Section V(h) hereof that is on or
prior to such Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may
rely on the opinion or opinions which were last furnished to such Agent
pursuant to this Section VI(c) to the same extent as though it or they
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion or opinions shall be deemed to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in any case, in lieu of such an opinion
or opinions, an opinion or opinions of the same tenor as the opinion or
opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and in each case such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters; in giving such opinion, such counsel may rely upon
the opinion or opinions of counsel named in paragraph (b) of this
Section VI as to matters of Dutch law.
(d) Mr. Theo P.M. Xxxxxx of Philips Corporate Fiscal
Department, internal tax counsel for the Issuer, dated the Commencement
Date to the effect that the statements contained in the prospectus under
the caption "Taxation - The Netherlands" insofar as they relate to
matters of Netherlands tax law, are correct in all material respects. In
rendering such opinion, such counsel may rely on the opinion of Xxxxxxxx
& Xxxxxxxx as to matters of United States and New York law and
certificates of officers of the Issuer and its subsidiaries as to
matters of fact.
(e) On the Commencement Date and on each applicable date
referred to in Section V(j) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
independent auditors who have audited the financial statements of the
Issuer and its subsidiaries included in the Registration Statement and
the Prospectus shall have furnished to such Agent a letter, dated the
Commencement Date or such applicable date, as the case may be, in form
and substance reasonably satisfactory to such Agent, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to agents or underwriters with respect to
the financial statements and certain financial information contained in
the Registration Statement and the Prospectus, both as amended or
supplemented.
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(f) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the Issuer
and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and Prospectus, as amended or supplemented, that,
in the reasonable judgment of each applicable Agent, is material and
adverse and that makes it, in the reasonable judgment of such applicable
Agent, after consultation with the Issuer, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus
and Prospectus Supplement.
(g) There shall not have been any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Issuer's
securities by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(h) There shall not have occurred any of the following: (i)
trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the Euronext Amsterdam N.V.'s stock
market or the New York Stock Exchange, (ii) a general moratorium on
commercial banking activities in Amsterdam or New York shall have been
declared by Netherlands, United States Federal or New York State
authorities, as the case may be, (iii) there shall have occurred any
outbreak or escalation of hostilities that, in the good faith judgment
of the applicable Agent, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iii), such event,
singly or together with any other such event, makes it, in the good
faith judgment of an Agent, after consultation with the Issuer,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus).
(i) The Issuer shall have furnished or caused to be furnished
to such Agent certificates of officers of the Issuer dated the
Commencement Date and each applicable date referred to in Section V(k)
hereof that is on or prior to such Time of Delivery, in such form and
executed by such officers of the Issuer as shall be reasonably
satisfactory to such Agent, as to the accuracy of the representations
and warranties of the Issuer herein at and as of the Commencement Date
or such applicable date, as the case may be, as to the performance in
all material respects by the Issuer of all of its obligations hereunder
to be performed at or prior to the Commencement Date or such applicable
date, as the case may be, as to the matters set forth in subsection (f)
and (g) of this Section VI, and as to such other matters as such Agent
may reasonably request.
(j) The applicable Prospectus Supplement shall have been filed
with
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the Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall be in effect.
VII.
The Issuer agrees to indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all direct losses, claims, damages and liabilities (including, without
limitation, any legal or other out-of-pocket expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Issuer shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Agents furnished to the Issuer in writing by any Agent expressly for use
therein; provided, however, the foregoing indemnity with respect to any untrue
statement or omission or alleged untrue statement or omission made in a
preliminary prospectus shall not inure to the benefit of any Agent (or any
person controlling such Agent) from whom the person asserting any such direct
losses, liability, claim, damage or expense purchased any of the Securities that
are the subject thereof if such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) (if the Issuer shall
have furnished any amendments or supplements thereto to the Agents), at or prior
to the written confirmation of the sale of such Securities to such person and
the untrue statement or omission or alleged untrue statement or omission made in
such preliminary prospectus was corrected in the Prospectus (or the Prospectus
as amended or supplemented). In no event shall the Issuer be liable for indirect
or consequential losses.
Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Issuer, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Issuer within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Issuer to each Agent, but only
with reference to information relating to such Agent furnished to the Issuer in
writing by such Agent expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus, or any amendment or supplement thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to
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either of the two preceding paragraphs, such person (hereinafter called the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the "indemnifying party") in writing
(or by facsimile and confirmed in writing) and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties, and that
all such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by [Lead Agent] or, if [Lead Agent] is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents that are indemnified parties, in the case of parties indemnified
pursuant to the second preceding paragraph and by the Issuer in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there shall be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any direct loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceedings.
If the indemnification provided for in the first or second paragraph of
this Section VII is unavailable to an indemnified party or insufficient in
respect of any direct losses, claims,
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damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer, on the one
hand, and such Agent, on the other hand, from the offering of the Securities to
which such loss, claim, damage, liability or action in respect thereof relates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Issuer, on the one hand, and of such Agent, on the other hand, in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer, on the one hand, and such Agent, on
the other hand, shall be deemed to be in the same respective proportions as the
net proceeds from such offering (before deducting expenses) received by the
Issuer and the total discounts and commissions received by such Agent, in
respect thereof. The relative fault of the Issuer, on the one hand, and of such
Agent, on the other hand, shall be determined by reference to, among other
things, whether the 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 Issuer, on the one hand, or by such Agent, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuer and each Agent agree that it would not be just and equitable
if contribution pursuant to this Section VII were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method or allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, 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 Section VII, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
referred to in the preceding paragraph and purchased by it or through it were
sold exceeds the amount of any damages that such Agent 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Agents' respective obligations to contribute pursuant to
this Section VII are several in proportion to the respective principal amounts
of Securities purchased by them or through them to which such loss, claim,
damage, liability or action in respect thereof relates, and not joint. The
remedies provided for in this Section VII are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
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VIII.
Each Agent, in soliciting offers to purchase Securities from the Issuer
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Issuer and not as principal.
Each Agent will make reasonable efforts to assist the Issuer in obtaining
performance by each purchaser whose offer to purchase Securities from the Issuer
was solicited by such Agent and has been accepted by the Issuer, but such Agent
shall not have any liability to the Issuer in the event such purchase is not
consummated for any reason. If the Issuer shall default on its obligation to
deliver Securities to a purchaser whose offer it has accepted, the Issuer shall
(i) hold each Agent harmless against any direct loss, claim or damage arising
from or as a result of such default by the Issuer and (ii) notwithstanding such
default, pay to the Agent that solicited such offer any commission to which it
would be entitled in connection with such sale.
IX.
The respective indemnities, agreements, representations, warranties and
other statements of the Agents, the Issuer contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement or any applicable Terms Agreement, (ii) any investigation made
by or on behalf of any Agent or any person controlling any Agent or by or on
behalf of any of the Issuer, their respective officers or directors or any other
person controlling the Issuer and (iii) acceptance of and payment for any of the
Securities.
X.
The provisions of this Agreement authorizing the solicitation of offers
to purchase Securities from the Issuer may be suspended or terminated at any
time by the Issuer as to any Agent or by any Agent upon the giving of written
notice of such suspension or termination to such Agent or the Issuer, as the
case may be. In the event of such suspension or termination with respect to any
Agent, (x) this Agreement shall remain in full force and effect with respect to
any Agent as to which such suspension or termination has not occurred, (y) this
Agreement shall remain in full force and effect with respect to the rights and
obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such suspension or termination and (z) in any
event, this Agreement shall remain in full force and effect insofar as the
fourth paragraph of Section II(a) with respect to solicitations made prior to
such suspension or termination, Section V(e), Section V(m), Section VII, Section
VIII and Section IX are concerned.
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XI.
Except as otherwise specifically provided herein or in the Procedures,
all statements, requests, notices and advices hereunder shall be in writing, or
by telephone if promptly confirmed in writing, and if to [Lead Agent] shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to [ ], Attention: [ ] (telefax: 212-[ ]) with a copy to [ ],
Attention: [ ] (telefax: 212-[ ]); if to -, [ ], Attention: [ ] (telefax:
212-[]); and if to Koninklijke Philips Electronics N.V., Xxxxxxxx Center,
Xxxxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx., Attention: [ ] (telefax:
011-[ ]).
XII.
This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, the parties hereto or thereto, respectively, and to
the extent provided in Section VII and Section VIII hereof, the officers and
directors of the Issuer and any person who controls any Agent or the Issuer, and
their respective personal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement or
any Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
XIII.
The Issuer has appointed Philips Electronics North America Corporation
(or any successor pursuant to this Article XIII) as its authorized agent (the
"Authorized Agent") upon which process may be served, to the attention of its
company secretary, in any action based on this Agreement that may be instituted
in any state or federal court in the City, County and State of New York by any
Agent or by any person controlling any Agent, and expressly accepts the
jurisdiction of any such court in respect of such action. Unless otherwise
agreed by the Agents and their counsel, such appointment shall be irrevocable
for a period of five years from and after the completion of sale of all the
Securities unless and until a successor Authorized Agent shall be appointed and
such successor shall accept such appointment for the remainder of such five year
period. The Issuer represents to each of the Agents that it has notified the
Authorized Agent of such designation and appointment and that Authorized Agent
has accepted the same in writing. The Issuer will take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment or appointments in full force and effect
as aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Issuer (mailed or delivered as aforesaid) shall be deemed,
in every respect, effective service of process upon the Issuer. Notwithstanding
the foregoing, any action based on this Agreement may be instituted by any Agent
against the Issuer in any competent court in The Netherlands.
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XIV.
Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the office of
the Commission in Washington, D.C. is open for business and when banking
institutions The Netherlands are open for business.
XV.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
XVI.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Issuer and each of you in accordance with its terms.
Very truly yours,
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By__________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Lead Agent]
By__________________________________
Name:
Title:
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[ ]
____________________________________
Name:
Title:
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