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EXHIBIT 1.1
VersaTel Telecom International N.V.
- Ordinary Shares in the form of
Shares or American Depositary Shares
U.S. UNDERWRITING AGREEMENT
July 22, 1999
Xxxxxx Brothers Inc.
As U.S. Representative of the several
U.S. Underwriters named in Schedule I
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
VersaTel Telecom International N.V., a public company organized under
the laws of The Netherlands, and having its corporate seat in Amsterdam, The
Netherlands (the "Company"), proposes to sell to the several underwriters listed
on Schedule I hereto (the "U.S. Underwriters") an aggregate of - ordinary
shares, par value NLG 0.05 per share, of the Company (the "Ordinary Shares"),
and each of Cromwilld Limited ("Cromwilld") and the holders of warrants (the
"Warrants") to purchase Ordinary Shares listed in Schedule II hereto (together
with Cromwilld, the "Selling Shareholders") propose severally to sell to the
U.S. Underwriters an aggregate of Ordinary Shares on the First Delivery Date (as
defined herein) (such - Ordinary Shares to be sold by the Company and the
Selling Shareholders being hereinafter referred to as the "Firm Shares"). The
U.S. Underwriters may elect to have all or a portion of the Firm Shares
deposited by the Company and the Selling Shareholders pursuant to the Deposit
Agreement (as defined herein) and to receive such Firm Shares in the form of
American Depositary Shares ("ADSs") in lieu of receiving such shares in the form
of Ordinary Shares. References herein to "Firm Shares", "Option Shares" (as
defined) or "Shares" (as defined) shall be deemed to include ADSs representing
any such Firm Shares, Option Shares or Shares, respectively, and references to
ADSs include the ADRs (as defined herein) evidencing such ADSs, in each case
unless the context otherwise requires.
In addition, the Company [and Cromwilld Limited] propose to grant to
the U.S. Underwriters an option to purchase up to - additional Ordinary Shares
(the "Option Shares"), on the terms and for the purposes set forth in Section 3
hereof. The Firm Shares and the Option Shares, if purchased, are hereinafter
collectively called the "Shares", unless the context otherwise requires. This is
to confirm the agreement concerning the purchase of the Shares from the Company
and the Selling Shareholders by the U.S. Underwriters.
The ADSs, evidenced by American Depositary Receipts ("ADRs"), will be
issued in accordance with the Deposit Agreement (the "Deposit Agreement"), among
the Company, The Bank of New York, as depositary (the "Depositary"), and the
holders and beneficial owners from time to time of ADRs issued thereunder. Each
ADS will represent one Ordinary
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Share deposited pursuant to the Deposit Agreement and delivered to Mees Pierson
N.V., (the "Correspondent Bank"), the custodian for the Depositary.
It is understood by all parties that the Company and the Selling
Shareholders are concurrently entering into an agreement dated the date hereof
(the "International Underwriting Agreement") providing for the sale by the
Company of an aggregate of - Ordinary Shares in the form of Ordinary Shares or
ADSs (the "Firm International Shares") and the granting of an option by the
Company and one of the Selling Shareholders to purchase up to an additional -
Ordinary Shares in the form of Ordinary Shares or ADSs (the "Option
International Shares"; and together with the Firm International Shares, the
"International Shares") through arrangements with the several international
managers listed on Schedule I to the International Underwriting Agreement (the
"International Managers"), for whom Xxxxxx Brothers International (Europe) is
acting as lead manager (the "Lead Manager"; and together with the U.S.
Representative, the "Representatives"). The U.S. Underwriters and the
International Managers simultaneously are entering into an agreement among the
U.S. Underwriters and the International Managers (the "Agreement Among U.S.
Underwriters and International Managers") which provides for, among other
things, the transfer of Shares between the two syndicates. Two forms of
prospectus are to be used in connection with the offering and sale of the Shares
contemplated by the foregoing, one relating to the Shares (in the form of
Ordinary Shares or ADSs) to be sold in the United States and Canada (the "U.S.
Prospectus") and the second relating to the Shares (in the form of Ordinary
Shares or ADSs) to be sold outside of the United States and Canada (the
"International Prospectus"). The International Prospectus will be identical to
the U.S. Prospectus except for certain substitute pages. This Agreement, the
International Underwriting Agreement, the Deposit Agreement and the Power of
Attorney and Custody Agreement (as defined) shall hereafter be referred to as
the "Operative Agreements". Except as used in Sections 3, 4, 5 and 11 herein,
and except as the context may otherwise require, references herein to Firm
Shares, Option Shares and Shares shall include Firm International Shares, Option
International Shares and International Shares, respectively (including, in each
case, ADSs representing any or all of such shares).
This is to confirm the agreement concerning the purchase of the Shares
from the Company and the Selling Shareholders by the U.S. Underwriters.
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form F-1 (File No.
333-81333), and amendments thereto, with respect to the Shares
have (i) been prepared by the Company in conformity with the
requirements of the United States Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act; a second
registration statement on Form F-1 with respect to
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the Shares (i) may also be prepared by the Company in
conformity with the Securities Act and the Rules and
Regulations and (ii) if to be so prepared, will be filed with
the Commission under the Securities Act pursuant to Rule
462(b) of the Rules and Regulations on the date hereof. Copies
of the first such registration statement and the amendments
thereto, together with the form of any such second
registration statement, have been delivered by the Company to
the U.S. Representative of the U.S. Underwriters. As used in
this Agreement, "Effective Time" means (i) with respect to
each of the Primary Registration Statement (as defined) and
the ADS Registration Statement (as defined herein), the date
and the time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was
declared effective by the Commission and (ii) with respect to
the 462(b) Registration Statement (as defined), the date of
the Effective Time of such second registration statement, and
"Effective Times" is the collective reference to both
Effective Times; "Effective Date" means (i) with respect to
each of the Primary Registration Statement and the ADS
Registration Statement, the date of the Effective Time of such
registration statement and (ii) with respect to the 462(b)
Registration Statement, the date of the Effective Time of such
registration statement, and "Effective Dates" is the
collective reference to both Effective Dates; "Preliminary
Prospectus" means each prospectus included in any such
registration statement, of amendments thereof, before it
became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of
the Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Primary Registration Statement" means the first
registration statement referred to in this Section 1(a), as
amended at its Effective Time, "Rule 462(b) Registration
Statement" means the second registration statement, if any,
referred to in this Section 1(a), as filed with the
Commission, and "Registration Statements" means both the
Primary Registration Statement and any Rule 462(b)
Registration Statement, including in each case all information
contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 7(a) hereof and deemed to be a part of
the Registration Statements as of the Effective Time of the
Registration Statements as of the Effective Time of the
Primary Registration Statement pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations; and "Prospectus" means
such final prospectus, as first filed with the Commission
pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules
and Regulations.
(b) A registration statement on Form F-6 (File No.
333--) with respect to the ADSs evidenced by the ADRs has (i)
been prepared by the Company and the Depositary in conformity
with the requirements of the Securities Act and the Rules and
Regulations, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities
Act. Copies of such ADS Registration Statement, including all
amendments thereto, have been delivered by the Company to the
U.S. Representative. As used in this
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Agreement, "ADS Registration Statement" means such
registration statement, including all exhibits thereto, as
amended at the time such registration statement became
effective under the Securities Act.
(c) The Primary Registration Statement and the ADS
Registration Statement conform (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any further
amendments or supplements to the Registration Statements, the
Prospectus or the ADS Registration Statement, when they become
effective or are filed with the Commission, as the case may
be, will conform) in all respects to the requirements of the
Securities Act and the Rules and Regulations and do not and
will not, as of the applicable effective date (as to the
Registration Statements, the ADS Registration Statement and
any amendments thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto)
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;
provided that no representation or warranty is made as to
information contained in or omitted from the Registration
Statements or the Prospectus in reliance upon and in
conformity with the written information described in Section
10(f) furnished to the Company through the U.S. Representative
by or on behalf of any U.S. Underwriter or International
Manager, respectively, specifically for inclusion therein.
(d) The Company is a public company with limited
liability ("naamloze vennootschap"), duly incorporated and
validly existing under the laws of The Netherlands, is not in
bankruptcy, liquidation or receivership, is duly qualified to
do business and is in good standing in each jurisdiction, if
applicable, in which its ownership or lease of property or the
conduct of its business requires such qualification.
(e) Each of the subsidiaries (as defined in Section
17 hereof) of the Company has been duly organized and is
validly existing under the laws of its jurisdiction of
organization or incorporation, is not in bankruptcy,
liquidation or receivership, is duly qualified to do business
and is in good standing in the jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification; and each has all power and
authority necessary to own or hold its respective property and
to conduct the business in which it is engaged; and, other
than [VersaTel Netherlands B.V. and] Svianed B.V., none of the
subsidiaries of the Company is a "significant subsidiary", as
such term is defined in Rule 405 of the Rules and Regulations;
and all of the issued share capital of each subsidiary of the
Company has been duly and validly authorized and issued and is
fully paid and non-assessable and is wholly owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (other than, in the case of
Svianed
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B.V., a lien granted in favor of Xxxxxx Commercial Paper,
Inc.).
(f) The Company has an authorized and issued share
capital as set forth in the Prospectus; all outstanding shares
of capital stock of the Company have been duly and validly
authorized and issued; all outstanding shares of capital stock
of the Company are fully paid, and holders of such shares will
have no liability for any debt or other obligation of the
Company towards third parties in their capacity as holders
thereof; the outstanding shares of capital stock of the
Company conform in all material respects to the description
thereof contained in the Prospectus; except as described in
the Prospectus, there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or
options to purchase from the Company and its subsidiaries, or
obligations of the Company and its subsidiaries to issue, any
class of share capital of the Company or any of its
subsidiaries; except as described in the Prospectus, there are
no restrictions on transfer or voting of any of the capital
stock of the Company pursuant to the Company's articles of
association (the "Articles of Association") or equivalent
constituent documents or any agreement to which the Company is
a party or by which it may be bound or to which any of its
property may be subject; and no depositary receipts have been
issued with respect to the capital stock of the Company.
(g) The Shares to be issued and sold by the Company
to the U.S. Underwriters hereunder and under the International
Underwriting Agreement have been duly and validly authorized
and, when issued and delivered against payment therefor as
provided herein and in the International Underwriting
Agreement, will be duly and validly issued, fully paid and
non-assessable and, when the Shares to be deposited pursuant
to the Deposit Agreement are so deposited and ADSs have been
issued and delivered against payment therefor as provided
herein and in the International Underwriting Agreement, such
ADSs will be duly and validly issued; the Shares to be sold by
the Selling Shareholders to the U.S. Underwriters hereunder
and to the International Managers under the International
Underwriting Agreement, (A) in the case of Selling
Shareholders other than Cromwilld, when issued upon exercise
of the warrants by the Selling Shareholders, will have been
duly and validly issued and will be fully paid and
non-assessable or (B) in the case of Cromwilld, have been duly
and validly issued and are fully paid and non-assessable, and
when such Shares to be deposited pursuant to the Deposit
Agreement are so deposited and ADSs have been issued and
delivered against payment therefor as provided herein and in
the International Underwriting Agreement, such ADSs will be
duly and validly issued; and there are no preemptive or other
rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any of the Shares or ADSs
pursuant to the Articles of Association or Netherlands law and
regulations, except as described in the Prospectus; the Shares
and the ADSs will conform to the descriptions thereof
contained in the Prospectus; and the certificate or
certificates evidencing the Shares will comply in all respects
with Netherlands law.
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(h) The execution, delivery and performance of the
Operative Agreements by the Company and the consummation of
the transactions contemplated hereby and thereby, and the
amendments to the Articles of Association of the Company will
not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement,
shareholders agreement or other material agreement or
instrument 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 properties or assets of the
Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the
Articles of Association or other constitutive documents of the
Company or any of its subsidiaries or any statute, license,
legislation, authorization, or any order, rule or regulation
of any court or governmental agency or body (including,
without limitation, any statutes, rules, orders or regulations
promulgated by the Minister van Verkeer en Waterstaat (the
"Transport Department"), the Onafhankelijke Post en
Telecommunicatie Autoriteit ("OPTA") or the Commission of the
European Union) having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; and
except for the registration of the Shares and the ADSs under
the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the United States Securities Exchange Act of
1934, as amended (the "Exchange Act") and applicable state
securities laws in connection with the purchase and
distribution of the Shares and the ADSs by the U.S.
Underwriters, no consents, approvals, authorizations or orders
of, or filing or registration with, any court or governmental
agency or body (including, without limitation, any statutes,
rules, orders or regulations promulgated by the Transport
Department, OPTA or the Commission of the European Union) is
required for the execution, delivery and performance of the
Operative Agreements by the Company and the consummation of
the transactions contemplated hereby and thereby.
(i) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or, other than obligations of the
Company to register the Shares being sold pursuant to this
Agreement and the International Underwriting Agreement by the
Selling Shareholders, to require the Company to include any
such securities in the securities registered pursuant to
either Registration Statement or the ADS Registration
Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under
the Securities Act except as have been irrevocably waived,
until the date 180 days after the date hereof.
(j) Except as disclosed in the Prospectus, the
Company has not sold
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or issued any Ordinary Shares, ADSs or other share capital of
the Company or securities convertible or exercisable or
exchangeable for any such securities, during the six-month
period preceding the date of the Prospectus, including without
limitation any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act.
(k) The Company has full power and authority to enter
into this Agreement and the International Underwriting
Agreement.
(l) The Company has full power and authority to enter
into the Deposit Agreement; each of the Deposit Agreement has
been duly authorized by the Company, enforceable in accordance
with its terms, except that the enforcement thereof may be
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
upon the due and valid issuance of the ADRs evidencing ADSs
against the deposit of Shares in respect thereof and against
payment therefor in accordance with the provisions of this
Agreement, such ADRs will be duly and validly issued and the
persons in whose names the ADRs are registered will be
entitled to the rights specified in the ADRs and in the
Deposit Agreement; the ADRs conform in all material respects
to the descriptions thereof contained in the Prospectus.
(m) The Company had full power and authority to enter
into the settlement agreement, dated July 21, 1999, among the
parties thereto (the "Settlement Agreement"); and the
Settlement Agreement is a valid and binding obligation of the
Company, enforceable against the Company and the other parties
thereto in accordance with its terms.
(n) The Operative Agreements conform in all material
respects to the descriptions thereof contained in the
Prospectus.
(o) No stamp, capital or other issuance or transfer
taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the U.S.
Underwriters or the International Managers in connection with
(i) the sale of the Shares (in the form of Ordinary Shares or
ADSs) by the Company to the U.S. Underwriters in accordance
with this Agreement and to the International Managers in
accordance with the International Underwriting Agreement, (ii)
the deposit with the Depositary or its nominee of Shares
against the issuance of ADRs evidencing ADSs, (iii) the
delivery of the Shares (in the form of Ordinary Shares or
ADSs) to or for the respective accounts of the U.S.
Underwriters or the International Managers in the manner
contemplated in this Agreement and the International
Underwriting Agreement, respectively, or (iv) the sale and
delivery by the U.S. Underwriters and the International
Managers to the initial purchasers therefrom.
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(p) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited financial
statements included in the Prospectus, any material 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 in the Prospectus; and,
since such date, there has not been any change in the share
capital or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth in
the Prospectus.
(q) The financial statements (including the related
notes) included in the Prospectus were prepared in accordance
with generally accepted accounting principles in the United
States ("U.S. GAAP") consistently applied throughout the
periods involved and present fairly the financial condition
and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated. The
summary financial data and selected financial and other data
included in the Prospectus have been accurately extracted from
the financial statements of the Company. The pro forma
financial information contained in the Prospectus has been
prepared on a basis consistent with the historical financial
statements contained in the Prospectus (except for the pro
forma adjustments specified therein), includes all material
adjustments to the historical financial information required
by Rule 11-02 of Regulation S-X under the Securities Act and
the Exchange Act to reflect the transactions described in the
Prospectus, gives effect to assumptions made on a reasonable
basis and fairly presents the historical and proposed
transactions contemplated by the Prospectus, the Operative
Agreements and the High Yield Offering.
(r) Xxxxxx Xxxxxxxx, who have certified certain
financial statements of the Company, whose report appears in
the Prospectus and who will deliver the initial letter
referred to in Section 6(t) hereof dated the date of the
Prospectus, are independent public accountants as required by
the Securities Act and the Rules and Regulations; and KPMG
Accountants N.V., who have certified certain financial
statements of Svianed B.V., whose report appears in the
Prospectus and who will deliver the initial letter referred to
in Section 6(t) hereof dated the date of the Prospectus, are
independent public accountants as required by the Securities
Act and the Rules and Regulations.
(s) The Company and each of its subsidiaries have
good title to all personal property owned by them, in each
case free and clear of all liens,
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encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use
made and proposed to be made of such property by the Company
and its subsidiaries. Except as otherwise described in the
Prospectus, neither the Company nor its subsidiaries owns any
title to real property or buildings, and all real property and
buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(t) The Company and each of its subsidiaries carry,
or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as
is customary for companies engaged in similar businesses in
similar industries.
(u) The Company and each of its subsidiaries own or
possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with,
any such rights of others, other than such that the Company
believes will not have a material adverse effect on the
financial position, shareholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries.
(v) There are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or asset of the Company or any
of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might
have a material adverse effect on the financial position,
shareholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and to the best
of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others.
(w) The Shares have been approved for a listing on
the Official Market of the stock exchange of Amsterdam
Exchanges N.V. (the "AEX") and the ADSs have been approved for
listing on the National Association of Securities Dealers,
Inc. Automated Quotation National Market System (the "Nasdaq
National Market System"), in each case with trading scheduled
to begin on a when, as and if issued basis, on the First
Delivery Date.
(x) The conditions for use of Form F-1, as set forth
in the General Instructions thereto, have been satisfied.
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(y) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to either Registration Statement or the ADS
Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described in the
Prospectus or filed as exhibits to either Registration
Statement or the ADS Registration Statement.
(z) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the
directors, officers, shareholders, customers or suppliers of
the Company on the other hand, which is required to be
described in the Prospectus and is not so described.
(aa) No labor disturbance by the employees of the
Company or any of its subsidiaries exists or to the knowledge
of the Company is imminent which might be expected to have a
material adverse effect on the consolidated financial
position, shareholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(bb) The Company is in compliance in all material
respects with all applicable provisions of Netherlands and
Belgian laws relating to employees (including, without
limitation, laws relating to pension obligations).
(cc) The Company and its subsidiaries have duly filed
with the appropriate taxing authorities all tax returns,
reports and other information required to be filed through the
date hereof and have paid all taxes due thereon (except as are
being disputed in good faith and for which reserves in
accordance with U.S. GAAP have been set aside); each such tax
return, report or other information was, when filed, accurate
and complete in all material respects; nor does the Company
have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might
have a material adverse effect on the consolidated financial
position, shareholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(dd) Except as disclosed in the Prospectus, under
current laws and regulations of The Netherlands and any
political subdivision thereof, all dividends and other
distributions declared and payable in respect of Ordinary
Shares may be paid by the Company in Dutch Guilders, euros or
another currency that, in each case, may be converted into
foreign currency and may be freely transferred out of The
Netherlands, and all such payments made to holders thereof who
are non-residents of The Netherlands will not be subject to
income, withholding or other taxes under laws and regulations
of The Netherlands or any political subdivision or taxing
authority thereof or therein and will otherwise be free and
clear of any other tax, duty, withholding or
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deduction in The Netherlands or any political subdivision or
taxing authority thereof or therein and without the necessity
of obtaining any governmental authorization in The Netherlands
or any political subdivision or taxing authority thereof or
therein.
(ee) No stamp or other taxes or duties are payable by
or on behalf of the U.S. Underwriters in The Netherlands upon
or in connection with the sale and delivery to or by the U.S.
Underwriters of the Shares and ADSs as contemplated by the
Prospectus.
(ff) As of the date hereof, and except as may
otherwise be disclosed in the Prospectus, the Company has not
(i) issued or granted any securities, including, without
limitation, any options or warrants, (ii) incurred any
liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its issued share capital.
(gg) The Company (i) makes and keeps books and
records which are accurate in all material respects and (ii)
maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its
assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the
reported accountability for its assets is compared with
existing assets at reasonable intervals.
(hh) Neither the Company nor any of its subsidiaries
is (i) in violation of its respective articles of association
or by-laws or equivalent constitutive documents, (ii) in
default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any
term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court
decree to which it or its properties or assets may be subject
or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its properties or assets
or to the conduct of its business.
(ii) Except as otherwise described in the Prospectus,
each of the Company and its subsidiaries possesses all
licenses, permits, certificates, franchises, approvals and
other authorizations necessary to the conduct of their
respective businesses and the ownership, lease and operation
of their
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respective properties; all such licenses, permits,
certificates, franchises, approvals and other authorizations
are in full force and effect and each of the Company and its
subsidiaries is in compliance therewith in all material
respects, except where the failure to possess such licenses,
permits, certificates, franchises, approvals and other
authorizations would not, in the aggregate, have a material
adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company
and its subsidiaries, taken as a whole; and none of the
Company and any of its subsidiaries has received any notice of
any proceedings relating to the revocation or modification of
any such license, permit, certificate, franchise, approval or
authorization which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or result, might
have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the
Company and its subsidiaries, taken as a whole.
(jj) Neither the Company nor any of its subsidiaries,
nor any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of
its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, (iii)
violated or is in violation of any provision of the United
States Foreign Corrupt Practices Act of 1977, as amended, or
(iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(kk) To the best of the Company's knowledge after due
inquiry, there has been no violation of any applicable
environmental law, ordinance, rule, regulation, order,
judgment, decree or permit in any jurisdiction with respect to
the properties of the Company or its subsidiaries.
(ll) There are no material acquisitions of businesses
or assets by the Company or any of its subsidiaries pending or
currently being negotiated.
(mm) Each of the Company and its subsidiaries has
undertaken a review of all of its computer hardware and
software ("Computer Equipment") and determined that such
Computer Equipment is not in need of replacement or
reprogramming to function correctly from January 1, 2000,
except where such replacement or reprogramming would not have
a material adverse effect on the Company and its subsidiaries.
(nn) The Company is not an open-end investment
company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section
8 of the United States Investment Company Act of 1940, as
amended (the "Investment Company Act"), nor is it a closed-end
investment company required to be registered, but not
registered, thereunder; and the Company is not and, after
giving effect to the offering and sale of the
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Shares and the High Yield Offering, and the application of the
proceeds thereof as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company
Act and the rules and regulations of the Commission
thereunder.
(oo) Neither the Company nor any subsidiary has
incurred any liability for a fee, commission, or other
compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by
this Agreement, the International Underwriting Agreement or
the Deposit Agreement.
(pp) Neither the Company nor any subsidiary has
taken, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably have been
expected to cause or result in stabilization or manipulation
of the price of any security of the Company in connection with
the offering of the Shares.
(qq) The Company owns no capital stock of, or other
equity interests in, any person or entity (other than VersaTel
Telecom Belgium N.V., VersaTel Telecom Europe B.V., Versatel
Telecom Netherlands B.V., Bizztel Telematica B.V., CS Net
B.V., CS Engineering B.V., Amstel Alpha B.V., 7-Xxxxxxx Beheer
B.V., ITinera Services N.V. and Svianed B.V.)
(rr) Taking into account the receipt of proceeds from
the offering and sale of the Shares and the High Yield
Offering, the Company does not expect to qualify as a passive
foreign investment company ("PFIC") as defined in Section
1296(a) of the United States Internal Revenue Code of 1986, as
amended (the "Code"), a "foreign personal holding company" as
defined in Section 552 of the Code or a "controlled foreign
corporation" as defined in Section 957 of the Code, for its
current taxable year or for future taxable years.
(ss) All of the representations, warranties and
agreements of the Company contained it the underwriting
agreement relating to the Company's concurrent offering of
Senior Dollar Notes due 2009 and Senior Euro Notes due 2009
(the "High Yield Offering") are true and correct in all
material respects.
2. Representations, Warranties and Agreements of the Selling
Shareholders. Each Selling Shareholder severally represents, warrants and agrees
that:
(a) (A) In the case of Selling Shareholders other
than Cromwilld, the Selling Shareholder has good and valid
title to the Warrants, each entitling the holder thereof to
purchase 13.334 Ordinary Shares and, immediately prior to
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the time at which the Shares to be sold by it in the offering
(the "Warrant Shares") are delivered to the U.S. Underwriters
and the International Managers, the Selling Shareholder will
have good and valid title to such Warrant Shares to be sold by
the Selling Shareholder pursuant to this Agreement on such
date, free and clear of all liens, encumbrances, equities or
claims; and upon delivery of such Warrant Shares and payment
therefor pursuant to this Agreement and the International
Underwriting Agreement, good and valid title to such Warrant
Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several U.S. Underwriters or the
several International Managers, as the case may be; or (B) in
the case of Cromwilld, it has good and valid title to the
Shares to be sold by it, and, immediately prior to the time at
with the Shares to be sold by it in the Offering are delivered
to the U.S Underwriters, it will have good and valid title to
such Shares, free and clear of all liens, encumbrances,
equities or claims; and upon delivery of such Shares and
payment therefor pursuant to this Agreement and the
International Underwriting Agreement, good and valid title to
such Shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several U.S. Underwriters
or the several International Managers, as the case may be.
(b) (A) In the case of all Selling Shareholders other
than Cromwilld, the Selling Shareholder has placed in custody
under the irrevocable power of attorney and custody agreement
dated as of July 7, 1999 (together with the power of attorney
and custody agreement of Cromwilld referred to below, the
"Power of Attorney and Custody Agreement) with United States
Trust Company of New York, as custodian (together with the
custodian referred to in (B) below, the "Custodian"), a number
of Warrants that will become exercisable, upon the closing of
this offering contemplated hereby, into the Warrant Shares to
be delivered and sold by the Selling Shareholder pursuant to
this Agreement and the International Underwriting Agreement;
and (B) in the case of Cromwilld, it has placed in custody
under the irrevocable power of attorney and custody agreement
dated as of July 21, 1999 with the Company, acting in its
capacity as custodian, a number of Shares to be delivered and
sold by it pursuant to this Agreement and the International
Underwriting Agreement.
(c) Pursuant to the Power of Attorney and the Custody
Agreement, the Selling Shareholder has duly and irrevocably
executed and delivered a power of attorney appointing any of
R. Xxxx Xxxxx, Xxx Xxxxxxxxx and Xxx van der Veen, as
attorneys-in-fact, with full power of substitution, and with
full authority (exercisable by any one or more of them) to (i)
(in the case of all Selling Shareholders other than Cromwilld)
elect to exercise a number of Warrants held by the Selling
Shareholder into Warrant Shares and (ii) execute and deliver
this Agreement and the International Underwriting Agreement
and to take such other action as may be necessary or desirable
to carry out the provisions thereof, in each case on behalf of
the Selling Shareholder.
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(d) The Selling Shareholder has full right, power and
authority to enter into this Agreement and the International
Underwriting Agreement and the Power of Attorney and Custody
Agreement; the execution, delivery and performance of this
Agreement and the International Underwriting Agreement, the
Power of Attorney and the Custody Agreement of the Selling
Shareholder and the consummation by the Selling Shareholder of
the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Shareholder is a
party or by which the Selling Shareholder is bound or to which
any of the property or assets of the Selling Shareholder are
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws, articles of partnership,
deed of trust or other equivalent constituent documents of
such Selling Shareholder or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Selling Shareholder or the property or
assets of the Selling Shareholder; upon execution and delivery
thereof by the attorney-in-fact, this Agreement and the
International Underwriting Agreement will be duly authorized,
executed and delivered by the Selling Shareholder; and, except
for the registration of the Warrant Shares (in the case of
Selling Shareholders other than Cromwilld) or the Shares (in
the case of Cromwilld) under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable U.S. or Netherlands securities laws in connection
with the purchase and distribution of the Warrant Shares (in
the case of Selling Shareholders other than Cromwilld) or the
Shares (in the case of Cromwilld) by the U.S. Underwriters,
the International Managers and the Representatives, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement, the International Underwriting Agreement
and the Power of Attorney and Custody Agreement by the Selling
Shareholder and the consummation by the Selling Shareholder of
the transactions contemplated hereby and thereby.
(e) To the extent that any statements or omissions
made in the Registration Statements, the Prospectus or any
amendment or supplement thereto are made in reliance upon and
in conformity with written information furnished to the
Company by the Selling Shareholders specifically for use
therein, the Primary Registration Statement did not, and the
Rule 462(b) Registration Statement, if any, the Prospectus and
any amendments or supplements to the Registration Statement or
the Prospectus will not, when they become effective or are
filed with the Commission, as the case may be, 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.
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(f) The Selling Shareholder has not taken and will
not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be
expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(g) (A) In the case of Selling Shareholders other
than Cromwilld, the information provided by the Selling
Shareholder in the Instruction to Purchase Warrant Shares in
Connection with, and Request to Include Warrant Shares for
Sale in, the initial public offering of the Company (attached
to the Power of Attorney and Custody Agreement) was true and
correct as of the date on which it was made, and as of the
date hereof; and, except as disclosed in the Prospectus,
within the past three years the Selling Shareholder has held
no position or office or had any other material relationship
with the Company, or (B) in the case of Cromwilld, the
information provided by it in the Selling Shareholder
Information Schedule (Exhibit B to the Settlement Agreement)
was true and correct when made and as of the date hereof.
(h) In the case of Cromwilld, it had full power and
authority to enter into the Settlement Agreement; the
Settlement Agreement has been duly authorized, executed and
delivered by it and constitutes a legally binding obligation
of Cromwilld, enforceable in accordance with its terms.
3. Purchase of the Shares and ADSs by the U.S. Underwriters.
On the basis of the representations and warranties contained in, and subject to
the terms and conditions of, this Agreement, (i) the Company agrees to sell -
Firm Shares (in the form of Ordinary Shares or ADSs) and (ii) each Selling
Shareholder agrees, severally but not jointly, to sell the number of Firm Shares
set forth opposite its name on Schedule II hereto, to the several U.S.
Underwriters, and each U.S. Underwriter, severally and not jointly, agrees to
purchase the number of Firm Shares (in the form of Ordinary Shares or ADSs) set
opposite such U.S. Underwriter's name in Schedule I hereto, from the Company and
the Selling Shareholders. Each U.S. Underwriter shall be obligated to purchase,
from the Company and from each Selling Shareholder, that number of Firm Shares
which represents the same proportion of the number of Firm Shares to be sold by
the Company and by each Selling Shareholder, as the number of Firm Shares set
forth opposite the name of such U.S. Underwriter in Schedule I represents of the
total number of Firm Shares to be purchased by all of the U.S. Underwriters
pursuant to this Agreement. The respective purchase obligations of the U.S.
Underwriters with respect to the Firm Shares (including Firm ADSs) shall be
rounded among the U.S. Underwriters to avoid fractional shares, as the
Representative may determine.
In addition, the Company grants to the U.S. Underwriters an
option to purchase up to an aggregate - Option Shares [and Cromwilld grants to
the U.S. Underwriters an option to purchase up to an aggregate - Option Shares]
(in each case in the form of Ordinary Shares or ADSs). Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Shares
and is exercisable as provided in Section 5 hereof.
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Option Shares shall be purchased severally for the account of the U.S.
Underwriters in proportion to the number of Firm Shares set opposite the name of
such U.S. Underwriters in Schedule I hereto. The respective purchase obligations
of the U.S. Underwriters with respect to the Option Shares shall be rounded
among the U.S. Underwriters to avoid fractional shares, as the Representatives
may determine.
The price of both the Firm Shares and any Option Shares
purchased from the Company and/or the Selling Shareholders in the form of
Ordinary Shares shall be - per Firm Share or Option Share, and the price of both
the Firm Shares and any Option Shares purchased from the Company and/or the
Selling Shareholders in the form of ADSs shall be $- per Firm ADS or Option ADS,
in each case net of underwriting discounts and commissions.
The Company and the Selling Shareholders shall not be
obligated to deliver any of the Shares to be delivered on the First Delivery
Date or the Second Delivery Date (each as defined herein), as the case may be,
except upon payment for all the Shares to be purchased on such Delivery Date as
provided herein and in the International Underwriting Agreement.
4. Offering of Shares and ADSs by the U.S. Underwriters. Upon
authorization by the U.S. Representative of the release of the Firm Shares, the
several U.S. Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus; provided, however, that no
Shares registered pursuant to the 462(b) Registration Statement, if any, shall
be offered prior to the Effective Time thereof.
It is understood that - Firm Shares will initially be reserved
by the several U.S. Underwriters and the several International Managers for
offer and sale upon the terms and conditions set forth in the Prospectus to
employees and persons having business relationships with the Company and its
subsidiaries (the "Directed Share Program") who have heretofore delivered to the
Representatives offers or indications of interest to purchase Firm Shares in
form satisfactory to the Representatives, and that any allocation of such Firm
Shares among such persons will be made in accordance with timely directions
received by the Representatives from the Company; provided, that under no
circumstances will the Representatives or any U.S. Underwriter or any
International Manager be liable to the Company or to any such person for any
action taken or omitted in good faith in connection with such offering to
employees and persons having business relationships with the Company and its
subsidiaries. It is further understood that any Firm Shares which are not
purchased by such persons will be offered by the U.S. Underwriters and the
International Managers to the public upon the terms and conditions set forth in
the Prospectus.
Each U.S. Underwriter agrees that, except to the extent
permitted by the Agreement Among U.S. Underwriters and International Managers,
it will not offer or sell any of the Shares or ADSs outside of the United States
or Canada.
5. Delivery of and Payment for the Shares. Delivery of and
payment for the Firm Shares shall be made at the offices of [Stibbe Simont
Xxxxxxx Duhot, Amsterdam], at [time], on the [fourth] full business day
following the Date of this Agreement or at such other
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date or place as shall be determined by agreement between the Representatives
and the Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, (a) with respect to the Firm Shares
to be sold by the Company and the Selling Shareholders to be delivered in the
form of Ordinary Shares, the Company and the Custodian, on behalf of the Selling
Shareholders, shall deliver or cause to be delivered to the U.S. Representative
for the account of each U.S. Underwriter such Firm Shares by book entry transfer
through Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V.
("NECIGEF"), in Amsterdam, The Netherlands, for credit (i) to the designated
account of the U.S. Representative or its nominee at NECIGEF or further credit
to designated accounts with the Euroclear System ("Euroclear") or Cedel Bank,
societe anonyme ("Cedel"), as the case may be, in such respective portions as
the U.S. Representative may designate by notice to the Company and the Custodian
given at least two full business days prior to the First Delivery Date, and (ii)
to such other NECIGEF accounts as the U.S. Representative may so designate and
(b) with respect to the Firm Shares to be sold by the Company and the Selling
Shareholders to be delivered in the form of ADSs, if any, the Company and the
Custodian, on behalf of the Selling Shareholders, shall (i) deliver or cause to
be delivered such Firm Shares by book entry transfer through NECIGEF for credit
to the account of the Correspondent Bank of the Depositary, (ii) cause the
Depositary to issue one or more ADRs evidencing the ADSs representing such Firm
Shares to be registered in such names as specified below and (iii) deliver or
cause to be delivered such ADRs to the U.S. Representative for the account of
each U.S. Underwriter, in each case against payment to or upon the order of (A)
the Company of the purchase price therefor by wire transfer in same-day funds to
the account or accounts specified by the Company to the U.S. Representative and
(B) the Custodian, on behalf of the Selling Shareholders, of the purchase price
therefor by wire transfer in same-day funds to the account or accounts specified
by the Custodian to the U.S. Representative, in each case upon two business
days' prior notice. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each U.S. Underwriter hereunder. Upon delivery, the Firm Shares
shall be registered in such names and in such denominations as the U.S.
Representative shall request in writing not less than two full business days
prior to the First Delivery Date.
The U.S. Representative, on behalf of the several U.S.
Underwriters, may elect to have Firm Shares delivered in the form of either
Ordinary Shares or ADSs in such portions as they may elect, in satisfaction of
the Company's and the Selling Shareholders' obligations to sell to the several
U.S. Underwriters, and the several U.S. Underwriters' obligations to purchase,
such Firm Shares. Notice of such election with respect to the First Delivery
Date shall be given by the U.S. Representative to the Custodian and the Company
upon two business days' prior notice. Upon delivery, the ADRs evidencing the
ADSs representing the Firm Shares shall be registered in such names and in such
denominations as the U.S. Representative shall request in writing not less than
two full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the ADRs evidencing the ADSs
representing the Firm Shares, the Company and the Custodian, on behalf of the
Selling Shareholders, shall make such ADRs available for inspection by the U.S.
Representative in New York, New York, on the business day prior to the First
Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement, the
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option granted in Section 3 may be exercised by written notice being given to
the Company [and Cromwilld] by the Representatives. Such notice shall set forth
the aggregate number of Option Shares as to which the option is being exercised,
whether all or a portion of such shares are to be delivered in the form of ADRs
evidencing ADSs representing such Option Shares, the denominations in which the
shares of Option Shares and ADRs, if any, are to be issued and the date and
time, as determined by the Representatives, when the Option Shares and ADRs, if
any, are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the Option Shares are delivered are sometimes referred to as
the "Second Delivery Date" and the First Delivery Date and the Second Delivery
Date are sometimes each referred to as the "Delivery Date".
Delivery of and payment for the Option Shares shall be made at
the place specified in the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined by agreement between the
Representatives and the Company) at [time], on the Second Delivery Date. On the
Second Delivery Date, (a) with respect to the Option Shares to be delivered in
the form of Ordinary Shares, the Company [and the Custodian on behalf of
Cromwilld] shall deliver or cause to be delivered to the U.S. Representative for
the account of each U.S. Underwriter such Option Shares by book entry transfer
through NEGIGEF in Amsterdam, The Netherlands, for credit (i) to the designated
account of the U.S. Underwriter and for further credit to designated accounts at
Euroclear or Cedel, as the case may be, in such respective portions as the U.S
Representative may designate by notice to the Company given at least two full
business days prior to the Second Delivery Date, and (ii) to such other NECIGEF
accounts as the U.S Representative may so designate and (b) with respect to the
Option Shares to be delivered in the form of ADSs, if any, the Company [and the
Custodian on behalf of Cromwilld] shall (i) deliver or cause to be delivered
such Option Shares by book entry transfer through NECIGEF for credit to the
account of the Correspondent Bank of the Depositary, (ii) cause the Depositary
to issue one or more ADRs evidencing the ADSs representing such Option Shares to
be registered in such names as specified below and (iii) deliver or cause to be
delivered such ADRs to the U.S. Representative for the account of each U..S.
Underwriter, in each case, against payment to or upon the order of the Company
[and the Custodian on behalf of Cromwilld] of the purchase price therefor by
wire transfer in (same day) funds to the account or accounts specified by the
Company to the U.S. Representative upon two business days' prior notice. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each U.S.
Underwriter hereunder. Upon delivery, the Option Shares shall be registered in
such names and in such denominations as the U.S. Representative shall request in
the aforesaid written notice.
The U.S. Representative, on behalf of the several U.S.
Underwriters, may elect to have Option Shares delivered in the form of either
Ordinary Shares or ADSs in such portions as they may elect in satisfaction of
the Company's [and Cromwilld's] obligation to sell to the several U.S.
Underwriters, and the several U.S. Underwriters' obligations to purchase, such
Option Shares. Notice of such election with respect to the Second Delivery Date
shall be given by the U.S. Representative to the Company [and the Custodian on
behalf
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of Cromwilld] in accordance with the provisions of the second preceding
paragraph. Upon delivery, the ADRs evidencing the ADSs representing the Option
Stock shall be registered in such names and in such denominations as the Lead
Manager shall request in accordance with the provisions of the second preceding
paragraph. For the purpose of expediting the checking and packaging of the ADRs
evidencing the ADSs representing Option Shares, the Company shall make such ADRs
available for inspection by the U.S. Representative in New York, New York, on
the business day prior to the Second Delivery Date.
With respect to all or any portion of Shares and ADSs to be
purchased and sold hereunder, the U.S. Representative, on behalf of the U.S.
Underwriters and for the purposes of effecting reallocations of Shares and ADSs,
may elect to have such Shares and ADSs delivered to and paid for by the
International Managers in satisfaction of the obligation of the Company and the
Selling Shareholders to sell to the U.S. Underwriters, and the U.S.
Underwriters' obligations to purchase, such Shares and ADSs. Notice of such
election shall be given by the U.S. Representative to the Company and the
Selling Shareholders two business days prior to the relevant Delivery Date.
With respect to all or any portion of the Shares and ADSs to
be purchased and sold pursuant to the International Underwriting Agreement, the
International Representative, on behalf of the International Managers and for
purposes of effecting reallocations of Shares and ADSs, may elect to have such
Shares and ADSs delivered to and paid for by the U.S. Underwriters in
satisfaction of the obligation of the Company and the Selling Shareholders to
sell to the International Managers, and the obligations of the International
Managers to purchase, such Shares and ADSs. Notice of such election shall be
given by the International Representative to the Company and the Selling
Shareholders two business days prior to the relevant Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the
Representatives and to file such 462(b) Registration Statement
with the Commission on the date hereof; to prepare the
Prospectus in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than 5:00 p.m., New York City time,
on the day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to
either Registration Statement, the ADS Registration Statement
or to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of
the time when each Registration Statement or the ADS
Registration Statement or any amendment thereto has been filed
or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending
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the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Shares or ADSs 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 amending or supplementing of
either Registration Statement, the ADS Registration Statement
or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the
Representatives and to U.S. counsel to the U.S. Underwriters
and the International Managers a signed copy of each of the
Registration Statements and the ADS Registration Statement as
originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and
exhibits filed therewith;
(c) To deliver promptly to the Representatives such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement and the computation of per share earnings) and
(ii) each Preliminary Prospectus, the Prospectus (not later
than 5:00 p.m., New York City time, on the day following the
execution and delivery of this Agreement) and any amended or
supplemented Prospectus (not later than 10:00 a.m., New York
City time, on the day following the date of such amendment or
supplement), as the Representatives may reasonably request;
and, if the delivery of a prospectus is required at any time
after the Effective Time of the Primary Registration Statement
in connection with the offering or sale of the Shares or ADSs
(or any other securities relating thereto) and if at such time
any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any
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 in order to comply with the
Securities Act, to notify the Representatives and, upon their
request, to prepare and furnish without charge to each U.S.
Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request
of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statements or the ADS
Registration Statement, or the Prospectus or any supplement to
the Prospectus, that may, in the reasonable judgment of the
Company or the Representatives, be required by the Securities
Act or requested by the Commission;
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(e) Prior to filing with the Commission any amendment
to either Registration Statement or the ADS Registration
Statement, or supplement to the Prospectus, or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish
a copy thereof to the Representatives and counsel to the U.S.
Underwriters and the International Managers and not to file
any such document to which the Representative shall reasonably
object after having been given reasonable notice of the
proposed filing thereof;
(f) As soon as practicable after the Effective Date
of the Primary Registration Statement, to make generally
available to the Company's security holders and to deliver to
the Representatives an earning statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the
Effective Date of the Primary Registration Statement, to
furnish to the Representatives copies of all materials
furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by
the Company to the principal national securities exchange or
automatic quotation system upon which the Shares or ADSs may
be listed or quoted pursuant to requirements of or agreements
with such exchange or system or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to exercise best
efforts to take such action as the Representatives may
reasonably request, in cooperation with the U.S. Underwriters
and the International Managers, to qualify the Shares and ADSs
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares and ADSs;
provided that, in connection therewith, the Company shall not
be required to qualify as a foreign corporation or otherwise
subject itself to taxation in any jurisdiction in which it is
not otherwise so qualified or subject, except as may be
provided in the Operative Agreements.
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, issue, offer,
pledge, sell, contract to sell or sell or grant any contract,
option, right or warrant to purchase, purchase any option to
sell, or otherwise transfer or dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition, transfer or purchase
by any person at any time in the future of) any Shares or
ADSs, Ordinary Shares (other than (x) Ordinary Shares issued
pursuant to employee stock option and incentive plans existing
on the date hereof and (y) Ordinary Shares or other share
capital used by the Company in connection with
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acquisitions or strategic alliances (provided in each such
case that the recipient of such shares executes a Lock-up
Letter (as defined below) in advance of any such transfer)) or
any other share capital of the Company or securities
convertible or exercisable or exchangeable for any such
securities, or sell or grant options, rights or warrants with
respect to any such securities (other than the grant of
options pursuant to employee stock option and incentive plans
existing on the date hereof) or enter into any swap or similar
agreement that transfers, in whole or in part, the economic
risk of ownership of any such securities, whether any of the
foregoing transactions is to be settled by delivery of any
such securities, in cash or otherwise, in each case without
the prior written consent of the U.S. Representative; and to
cause each shareholder of the Company, [each] holder of
options in securities of the Company and each person named in
the Prospectus to furnish to the Representatives, prior to the
First Delivery Date, a letter or letters (the "Lock-up
Letters"), in form and substance satisfactory to counsel to
the U.S. Underwriters, pursuant to which each such person
shall agree not to, directly or indirectly, offer, pledge,
sell, contract to sell or sell or grant any contract, option,
right or warrant to purchase, purchase any option to sell, or
otherwise transfer or dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition, transfer or purchase
by any person at any time in the future of) any Shares, ADSs
or other share capital of the Company or securities
convertible or exercisable or exchangeable for any such
securities, or sell or grant options, rights or warrants with
respect to any such securities or enter into any swap or
similar agreement that transfers, in whole or in part, the
economic risk of ownership of any such securities (other than
(x) any exercise of any stock option granted to such person
pursuant to the Company's stock option plans prior to the date
hereof (although such sentence shall apply to any subsequent
sale of shares received upon any such exercise) or (y) if such
person is a shareholder of the Company, the transfer of any
Ordinary Shares to an affiliate of such person, provided that
the Representatives are notified in advance of any such
proposed transfer and are furnished in advance of such
transfer with a copy of the Lock-up Letter duly executed by
the transferee), whether any of the foregoing transactions is
to be settled by delivery of any such securities, in cash or
otherwise, for a period of 180 days from the date of the
Prospectus;
(j) To use all reasonable efforts to maintain the
listing of the Shares on the AEX and of the ADSs on the Nasdaq
National Market System until none of the Shares and ADSs is
outstanding;
(k) To comply in all material respects with the
Deposit Agreement so that ADRs evidencing ADSs will be
executed by the Depositary and delivered to the U.S.
Underwriters on each Delivery Date;
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(l) To comply in all material respects with all
covenants and agreements of the Company contained in
underwriting agreement relating to the High Yield Offering;
(m) To apply the net proceeds from the sale of the
Shares and ADSs being sold by the Company as set forth in the
Prospectus, and to apply the net proceeds from the Third High
Yield Offering as set forth in the Prospectus and in each
prospectus relating to such Offering;
(n) Between the date hereof and the First Delivery
Date (both dates inclusive), to notify and consult with the
Representatives, and to cause its subsidiaries and all other
parties acting on its or their behalf to notify and consult
with the Representatives, prior to issuing any announcement
which could be material in the context of the distribution of
the Shares and ADSs;
(o) Promptly to inform the Representatives of any
communications received by the Company from any governmental
or regulatory agency or authority, including, without
limitation, any Netherlands or Belgian regulatory authority,
the Luxembourg Stock Exchange, or the Commission, relating to
the offering of the Shares and ADSs and to furnish the
Representatives with copies thereof;
(p) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall
become an "investment company" within the meaning of such term
under the Investment Company Act, and the rules and
regulations of the Commission thereunder;
(q) To not take, directly or indirectly, any action
which is designed to stabilize or manipulate, or which
constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation, of the price of any
security of the Company in connection with the offering of the
Shares and ADSs;
(r) To take reasonable steps to minimize its
accumulation of passive income and passive assets and the risk
of the Company qualifying as a PFIC for 1999 and for future
years; provided that such steps are consistent with the
Company's general business plan and other business
considerations (which are subject to change);
(s) To monitor its status as a PFIC and, in the event
the Company is a PFIC, to provide the requisite information to
enable shareholders to make qualified electing fund (as such
term is used in the Code) elections;
(t) To cause each of Xxxxxx Xxxxxxxx and KPMG
Accountants N.V. to
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deliver an initial comfort letter, with respect to the
financial statements of the Company and Svianed B.V.,
respectively, dated the date of the Prospectus, to the U.S.
Underwriters and the International Managers, in form and
substance reasonably satisfactory to the Representatives at or
prior to the time copies of the Prospectus are furnished to
the Representatives; and
(u) In advance of registering any transfers of its
Ordinary Shares from Telecom Founders B.V. to a holder of
depositary receipts in Telecom Founders, to provide (or cause
Telecom Founders to provide) to the Representatives and their
counsel evidence satisfactory to the Representatives that such
transfers may be made pursuant to a valid exemption under the
Securities Act.
7. Further Agreements of the Selling Shareholders. Each
Selling Shareholder agrees:
(a) That the Shares to be sold by the Selling
Shareholder under this Agreement and the International
Underwriting Agreement, and the Warrants (in the case of
Selling Shareholders other than Cromwilld) or the Shares (in
the case of Cromwilld) that have been placed in custody by the
Selling Shareholder with the Custodian, are subject to the
interest of the U.S. Underwriters, the International Managers
and the other Selling Shareholders thereunder, that the
arrangements made by the Selling Shareholder for such custody
are irrevocable (except as otherwise explicitly provided in
the Power of Attorney and Custody Agreement), and that the
obligations of the Selling Shareholder under each this
Agreement and the International Underwriting Agreement shall
not be terminated by any act of the Selling Shareholder, by
operation of law or, in the case of a trust, by the death or
incapacity of any executor or trustee or the termination of
such trust, or the occurrence of any other event.
(b) To deliver to the Representatives prior to the
Delivery Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Shareholder is a
non-United States person) or Form W-9 (if the Selling
Shareholder is a United States person.)
(c) To cooperate with the Company, the U.S.
Underwriters and the International Managers and to execute and
deliver, or use its best efforts to cause to be executed and
delivered, all such other instruments, and take all such other
actions as such party may reasonably be requested to take by
the Company, the U.S. Underwriters and the International
Managers from time to time, in order to effectuate the
exercise of Warrants and the sale of Warrant Shares (in the
case of Selling Shareholders other than Cromwilld) or the
Shares (in the case of Cromwilld) in the offering contemplated
hereby.
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8. Expenses. The Company agrees to pay or cause to be paid:
(a) the costs incident to the authorization, issuance, sale and delivery of the
Shares and ADSs and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and distributing of the Registration Statements,
the ADS Registration Statement, each Preliminary Prospectus, each Prospectus and
any amendments, supplements and exhibits thereto; (c) the costs of distributing
the Registration Statements and the ADS Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereto
(including, in each case, exhibits), each Preliminary Prospectus, the
Prospectus, the International Prospectus and any amendment or supplement to the
Prospectus or the International Prospectus, all as provided in this Agreement
and the International Underwriting Agreement; [(d) the costs of producing and
distributing this Agreement, the International Underwriting Agreement, the
Agreement Among U.S. Underwriters and International Managers, the Agreement
Among International Managers and the Supplemental Agreement Among U.S.
Underwriters;] (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Shares and ADSs; (f) the fees and expenses of qualifying the Shares and ADSs
under the securities laws of the several jurisdictions as provided in Section
6(h) and of preparing, printing and distributing a Blue Sky Memorandum
(including reasonable related fees and expenses of counsel to the U.S.
Underwriters[, including Canadian counsel]); [(g) (i) all costs and expenses
incident to the preparation of the "road show" presentation materials and (ii)
all costs and expenses incident to the road show travelling expenses of the
Company]; (h) the costs of preparing ADR certificates evidencing the ADSs; (i)
all expenses and fees in connection with the application for inclusion of the
Shares on the AEX and the ADSs on the Nasdaq National Market System, or the
obtaining of any approvals in connection with the sale of the Shares and ADSs
from relevant authorities in The Netherlands or Belgium; (j) the costs and
expenses of depositing any Shares under the Deposit Agreement against issuance
of ADRs evidencing the ADSs; (k) the fees and expenses (including fees and
disbursements of counsel) of the Depositary and any nominee or custodian
appointed under the Deposit Agreement, other than the fees and expenses to be
paid by holders of ADRs (except the U.S. Underwriters and the International
Managers, in connection with the initial purchase of the ADSs); (l) the fees and
expenses of any Authorized Agent (as defined in Section 19 hereof); (m) the cost
and charges of any transfer agent or registrar; (n) all stamp or other issuance
or transfer taxes or governmental duties, if any, payable by the U.S.
Underwriters in connection with the offer and sale of the Shares and ADSs to the
U.S. Underwriters and by the U.S. Underwriters to the initial purchasers
therefrom; and (o) all other costs and expenses incident to the performance of
the obligations of the Company under this Agreement not otherwise specifically
provided for in this Section 8, including, without limitation, the fees and
expenses of Xxxxxx Xxxxxxxx, the Company's independent accountants, KPMG
Accountants N.V., the accountants of Svianed B.V., Shearman & Sterling, U.S.
counsel to the Company, and Stibbe Simont Xxxxxxx Duhot, Netherlands counsel to
the Company; provided that, except as provided in this Section 8 and in Section
11, the U.S. Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel and any transfer taxes on the Shares and
ADSs which they may sell. The Company shall pay the expenses of the Selling
Shareholders hereunder, as provided in each Power of Attorney and Custody
Agreement; provided that in no event shall Cromwilld be liable to the Company
for any
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expenses incurred in connection with the transactions contemplated by this
Agreement and the International Underwriting Agreement.
9. Conditions of the U.S. Underwriters' Obligations. The
several obligations of the U.S. Underwriters hereunder are subject to the
accuracy, when made and on each Delivery Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Rule 462(b) Registration Statement, if any,
and the Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of any of either Registration
Statement or the ADS 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; and any request of the Commission for inclusion of
additional information in either of the Registration
Statements, the ADS Registration Statement or the Prospectus
or otherwise shall have been complied with.
(b) No U.S. Underwriter or International Underwriter
shall have discovered and disclosed to the Company on or prior
to such Delivery Date that either Registration Statement, the
ADS Registration Statement or the Prospectus or any amendment
or supplement thereto contain any untrue statement of a fact
which, in the opinion of counsel to the U.S. Underwriters and
the International Managers, is material or omits to state any
fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the International Underwriting Agreement, the
Deposit Agreement, the Shares, the ADSs and the ADRs and each
Registration Statement, the ADS Registration Statement and the
Prospectus or any amendment or supplement thereto, and all
other legal matters relating to this Agreement, the
International Underwriting Agreement, the Deposit Agreement,
the Power of Attorney and Custody Agreement and the
transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel to
the U.S. Underwriters and the International Managers, and the
Company and the Selling Shareholders shall have furnished to
such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Shearman & Sterling shall have furnished to the
Representatives its written opinion, as U.S. counsel to the
Company, addressed to the U.S. Underwriters and the
International Managers and dated such Delivery Date, in
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form and substance satisfactory to the Representatives, to the
effect that:
(i) The Primary Registration Statement and
the ADS Registration Statement were declared
effective under the Securities Act as of the date and
time specified in such opinion, the Rule 462(b)
Registration Statement, if any, was filed with the
Commission on the date specified therein, the
Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of either Registration Statement or the
ADS Registration Statement has been issued and no
proceeding for that purpose is pending or threatened
by the Commission;
(ii) The Registration Statements and the ADS
Registration Statement, as of their respective
Effective Dates, and the Prospectus, as of its date,
and any further amendments or supplements thereto, as
of their respective dates, made by the Company prior
to such Delivery Date (other than the financial
statements and other financial data contained
therein, as to which such counsel need express no
opinion) complied as to form in all material respects
with the requirements of the Securities Act and the
Rules and Regulations;
(iii) To the best of such counsel's knowledge,
there are no contracts or other documents which are
required to be described in the Prospectus or filed
as exhibits to the Registration Statements or the ADS
Registration Statement by the Securities Act or by
the Rules and Regulations which have not been
described or filed as exhibits to the Registration
Statements or the ADS Registration Statement or
incorporated therein by reference as permitted by the
Rules and Regulations;
(iv) Assuming due authorization, execution
and delivery by the Company under the laws of The
Netherlands, each of this Agreement and the
International Underwriting Agreement has been duly
executed and delivered by the Company insofar as New
York law is concerned;
(v) Assuming due authorization, execution
and delivery by the Company under the laws of The
Netherlands, the Deposit Agreement has been duly
executed and delivered by the Company insofar as New
York law is concerned and, assuming due
authorization, execution and delivery of the Deposit
Agreement by the Depositary and that each of the
Depositary and (under the laws of The Netherlands)
the Company has full power, authority and legal right
to enter into and perform its obligations thereunder,
constitutes a valid
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and legally binding agreement of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally
and to general principles of equity (regardless of whether
in a proceeding in equity or at law);
(vi) Assuming due authorization, execution and delivery
of the Deposit Agreement by the Depositary, upon due
issuance by the Depositary of the ADRs evidencing ADSs being
delivered by the Company at such Delivery Date against the
deposit of Ordinary Shares to be deposited by the Company in
respect thereof in accordance with the provisions of the
Deposit Agreement, such ADRs will be duly and validly issued
and will entitle the persons in whose names the ADRs are
registered to the rights specified therein and in the
Deposit Agreement;
(vii) Assuming the validity of such actions under the
laws of The Netherlands, under the laws of the State of New
York relating to submission to personal jurisdiction, the
Company has, pursuant to Section 19 of this Agreement,
legally, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the
Borough of Manhattan, The City of New York, New York in any
action arising out of or relating to this Agreement or the
transactions contemplated hereby, and has legally, validly
and effectively appointed the Authorized Agent as its
authorized agent for the purposes described in Section 19 of
this Agreement, and the Company has validly and irrevocably
waived (A) the defense of an inconvenient forum to the
maintenance of any such suit or proceeding and (B) any
immunity to jurisdiction to which it may otherwise be
entitled in any such suit or proceeding;
(viii) The issue and sale of the Shares and ADSs being
delivered by the Company at such Delivery Date, the deposit
with the Depositary of the Ordinary Shares to be delivered
in the form of ADSs against the issuance of ADRs evidencing
ADSs pursuant to the Deposit Agreement and the compliance by
the Company with all of the provisions of this Agreement,
the International Underwriting Agreement, the Deposit
Agreement and the Power of Attorney and Custody Agreement
and the consummation by the Company of the transactions
contemplated herein and therein, do not and will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
(A) any existing applicable law, rule or regulation of any
court or governmental agency or body of the United States or
the State of New York (other than state securities or Blue
Sky laws as to which we have not been requested to express
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any opinion) or (B) any order, known to us, of any
government, governmental instrumentality or court of the
United States or the State of New York having jurisdiction
over the Company or any of their properties or assets; and,
except for the registration of the Shares and the ADSs under
the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Shares and the ADSs by the U.S.
Underwriters and the International Managers, no consent,
approval, authorization or order of, or filing or
registration with, any such court, governmental agency or
body is required for the execution, delivery and performance
of this Agreement, the U.S. Underwriting Agreement or the
Deposit Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby;
(ix) The statements set forth in the Prospectus under
the captions "Description of American Depositary Receipts,"
insofar as such statements purport to constitute a summary
of the terms of the Deposit Agreement, the ADSs and the
ADRs, fairly summarize such terms, laws, agreements and
other documents in all material respects;
(x) The statements set forth in the Prospectus under
the caption "Tax Considerations -- U.S. Federal Income Tax
Considerations" accurately summarize, subject to limitations
and qualifications stated therein, the material U.S. federal
income tax consequences to a U.S. Holder of the purchase,
ownership and disposition of Ordinary Shares or ADSs;
(xi) The Company is not and, after giving effect to the
offering and sale of the Shares and ADSs and the High Yield
Offering, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the United States Investment Company Act of 1940;
and
(xii) The opinion of such counsel delivered pursuant to
Section 6(d) of the High Yield Underwriting Agreement is
confirmed and the U.S. Underwriters may rely upon such
opinion as if it were addressed to them.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the federal laws of the
United States of America and the laws of the State of New York and
(ii) rely (to the extent such counsel deems proper), as to matters
involving the application of the
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laws of The Netherlands upon the opinion of Stibbe Simont Xxxxxxx
Duhot referred to in Section 9(e) below if so specified in its
opinion. Such counsel shall also have furnished to the Representatives
a written statement, addressed to the U.S. Underwriters and dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as
counsel to the Company in connection with the preparation of the
Registration Statements and the ADS Registration Statement and (y)
based on the foregoing, no facts have come to the attention of such
counsel which lead it to believe that (I) each Registration Statement
and the ADS Registration Statement, as of their respective Effective
Dates, and the Prospectus, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or, (II) as of such Delivery Date,
that the Prospectus or International Prospectus contains any untrue
statement of a material fact or, omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in each Registration Statement, the ADS
Registration Statement or the Prospectus except for the statements
made in the Prospectus under the captions "Description of American
Depositary Shares" and "Tax Considerations - Certain U.S. Federal
Income Tax Considerations" insofar as such statements relate to the
provisions of the ADSs, the ADRs and the Deposit Agreement or concern
legal matters.
(e) Stibbe Simont Xxxxxxx Duhot shall have furnished to the
Representatives its written opinion, as Netherlands counsel to the
Company, addressed to the U.S. Underwriters, the International
Managers and the Company and dated such Delivery Date, in form and
substance satisfactory to the Representatives and the Company, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing under the laws of The Netherlands as a legal entity in
the form of a naamloze vennootschap, is duly qualified to do
business in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such
qualification, and has all power and authority necessary to own
or hold its properties and to conduct the businesses in which it
is engaged;
(ii) Each of the Company's Netherlands subsidiaries has been
duly incorporated and is validly existing under the laws of The
Netherlands, is duly qualified to do business in each
jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, and has
all power and authority necessary to own or hold its properties
and to conduct the businesses
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in which it is engaged;
(iii) The Company has an authorized and issued
capitalization as set forth in the Prospectus, and all of the
issued shares of capital stock of the Company (including the
Shares being delivered by the Company and the Selling
Shareholders on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus
and when the Shares to be sold by the Company and the Selling
Shareholders hereunder and under the International Underwriting
Agreement are delivered, or in the case of Shares to be deposited
pursuant to the Deposit Agreement, when such Shares are so
deposited, in each case against payment therefor as provided
herein and in the International Underwriting Agreement, such
Shares will be duly and validly issued, fully paid and
non-assessable and the subscription and deposit of such Shares
will not be subject to any preferential subscription rights or
preemptive rights pursuant to the Articles of Association,
Netherlands law or otherwise; except as disclosed in the
Prospectus, there are no outstanding securities convertible into
or exchangeable for, or warrants, rights or options to purchase
from the Company or obligations of the Company to issue, any
class of capital stock of, or other form of ownership interest
in, the Company; and all of the issued shares of capital stock
of, or other form of ownership interest in, each subsidiary of
the Company have been duly and validly authorized and issued and
are fully paid, non-assessable and are wholly owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iv) There are no restrictions in the Articles of
Association that would prevent the Shares and ADSs from being
offered and sold by the Company to the U.S. Underwriters and the
International Managers;
(v) The shareholders register of the Company does not
contain, and, after the issuance of the Shares and ADSs, will not
contain, any registration of any pledges ("pandrecht") or rights
of usufruct ("vruchtgebruik") with respect to any shares of
capital stock of the Company;
(vi) Assuming the due execution by the Selling Shareholders
and the U.S. Underwriters of this Agreement, proportional
co-ownership of the Shares and ADSs, within the meaning of the
Dutch Securities Giro Administration and Transfer Act ("Wet
Giraal Effectenverkeer"), will have been acquired by the U.S.
Underwriters on whose behalf and in whose name such Shares and
ADSs will be held and administered by an associated institution
of NECIGEF, free
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and clear of all liens, claims or other encumbrances;
(vii) The descriptions in the Prospectus of statutes, legal
and governmental proceedings and contracts and other documents
are accurate in all material respects; the statements in the
Prospectus under the headings "Service of Process and
Enforceability of Civil Liabilities," "Summary - Regulatory and
Competitive Environment," "Risk Factors Changes in the Regulatory
Environment Could Affect our Ability to Offer our Products and
Services," "Dividend Policy," "Business Regulation," "Business -
Intellectual Property," "Management Supervisory Board,"
"Management - Management Board," "Management - Executive
Compensation," "Description of Capital Stock," "Management -
Stock Option Plans," and "Shares Eligible for Future Sale," to
the extent that they constitute summaries of matters of law or
regulation or legal conclusions, have been reviewed by such
counsel and fairly summarize the matters described therein in all
material respects;
(viii) The Company, with respect to each of the Operative
Agreements, has full right, power and authority to execute and
deliver each of the Operative Agreements and to perform its
obligations thereunder; and all corporate action required to be
taken for the due and proper authorization, execution and
delivery of each of the Operative Agreements and the consummation
of the transactions contemplated thereby have been duly and
validly taken;
(ix) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
the Company and, assuming that this Agreement and the
International Underwriting Agreement constitute valid and legally
binding agreements under the laws of the State of New York,
constitute valid and legally binding agreements of the Company
enforceable against the Company in accordance with its terms;
(x) Each of the Deposit Agreement and the Power of Attorney
and Custody Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery of the Deposit Agreement by the Depositary
and assuming that the Deposit Agreement constitutes a valid and
legally binding agreement under the laws of the State of New
York, constitutes a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its
terms;
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(xi) The execution, delivery and performance of the Operative
Agreements by the Company, the issuance of the Shares and the
ADSs by the Company, the deposit with the Depositary of the
Shares to be delivered in the form of ADSs against the issuance
of ADRs pursuant to the Deposit Agreement, the offer and sale of
Shares and ADRs in the manner contemplated by this Agreement, the
International Underwriting Agreement and the Prospectus and the
compliance by the Company with all of the provisions of this
Agreement, the International Underwriting Agreement and the
Deposit Agreement, and the consummation of the transactions
contemplated hereby and thereby, will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to
any material indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which the Company or
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets
of the Company or its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the articles
of association of the Company or any of its subsidiaries or any
statute or any judgment, order, decree, rule or regulation of any
court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets; and, except for the registration
of the Shares and ADSs under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable foreign or state securities laws in connection with
the purchase and distribution of the Shares and ADSs by the U.S.
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment,
order, decree, rule or regulation is required for the execution,
delivery and performance by the Company of this Agreement, the
International Underwriting Agreement or the Deposit Agreement by
the Company, the listing of the Shares on the AEX and the
consummation of the transactions contemplated hereby and thereby;
(xii) To the best knowledge of such counsel, there are no
pending actions or suits or judicial, arbitral, rule-making,
administrative or other proceedings to which the Company or any
of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which
(A) singularly or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, could reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries or (B) questions the
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validity or enforceability of the Operative Agreements or any
action taken or to be taken pursuant thereto; and to the best
knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xiii) Neither the Company nor any of its subsidiaries is
(A) in violation of its articles of association (B) in default in
any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument
to which they are a party or by which they are bound or to which
any of their property or assets is subject or (C) in violation in
any material respect of any law, ordinance, governmental rule,
regulation or court decree to which the Company or any of its
subsidiaries or their property or assets may be subject;
(xiv) Each of the Operative Agreements, and any other
document required to be furnished hereunder or thereunder is in
proper legal form under Netherlands law for the enforcement
thereof against the Company without further action on the part of
the U.S. Underwriters, the International Managers or the holders
of the Shares or ADSs, as the case may be; and to ensure the
legality, validity, enforceability, priority or admissibility in
evidence in The Netherlands of each of the Operative Agreements
or any other document required to be furnished hereunder or
thereunder, it is not necessary that the Operative Agreements or
any such document be submitted to, filed or recorded with any
Netherlands court or other authority. All formalities required in
The Netherlands for the validity and enforceability of the
Operative Agreements (including any necessary registration,
recording or filing with any Netherlands court or other
authority) have been accomplished, and no notarization is
required, for the validity and enforceability thereof;
(xv) The filing of each Registration Statement and the ADS
Registration Statement, the listing of the Shares on the AEX and
the listing of the ADSs on the Nasdaq National Market System have
been duly authorized by the Company;
(xvi) Any judgment obtained in a United States federal or
state court of competent jurisdiction sitting in New York City
arising out of or in relation to the obligations of the Company
under the Operative Agreements would be enforced against the
Company in the courts of The Netherlands;
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(xvii) The U.S. Underwriters and International Managers
would be permitted to commence proceedings against the Company in
Netherlands courts of competent jurisdiction based on the
Operative Agreements (to the extent that they have direct
contractual rights against the Company under such Operative
Agreements which arise as a result of valid and binding
obligations of the Company under such documents in accordance
with the laws of the State of New York), and (if they accepted
jurisdiction) such Netherlands courts would recognize the choice
of law provisions of the Operative Agreements;
(xviii) The Company can xxx and be sued in its own name;
under Netherlands law, the agreement of the Company that
Operative Agreements shall be governed by the laws of the State
of New York will, if it constitutes a valid and legally binding
agreement under the laws of the State of New York, be recognized
by the courts of The Netherlands;
(xix) Under the laws of The Netherlands, the Company would
in the Courts of The Netherlands not be entitled to invoke
immunity from jurisdiction or immunity from execution on the
grounds of sovereignty in respect of any action arising out its
obligations under the Operative Agreements;
(xx) The indemnification and contribution provisions set
forth in Section 10 herein do not contravene the public policy or
laws of The Netherlands;
(xxi) The submission by the Company to the jurisdiction of
the United States federal or New York state courts sitting in New
York City, set forth in each of the Operative Agreements,
constitute valid and legally binding obligations of the Company,
and service of process effected in the manner set forth in, the
Operative Agreements, assuming validity under the laws of the
State of New York, will be effective, insofar as Netherlands law
is concerned; and
(xxii) The certificates used to evidence the Shares and ADSs
are in due and proper form and comply with all applicable
statutory requirements of Netherlands law.
(xxiii) The opinion of such counsel delivered pursuant to
Section 6(e) of the High Yield Underwriting Agreement is
confirmed and the U.S. Underwriters may rely upon such opinion as
if it were addressed to them.
Such counsel shall also have furnished to the Representatives a
written
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statement, addressed to the U.S. Underwriters and dated such Delivery Date,
in form and substance satisfactory to the Representatives, to the effect
that no facts have come to the attention of such counsel which lead it to
believe that (I) each Registration Statement and the ADS Registration
Statement, as of their respective Effective Dates, and the Prospectus, as
of its date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading or, (II) as of such
Delivery Date, that the Prospectus or International Prospectus contains any
untrue statement of a material fact or, omits to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. In rendering such opinion, such counsel may state that their
opinion is limited to matters governed by Netherlands law and shall state
that each of Shearman & Sterling and Xxxxxxx Xxxxxxx & Xxxxxxxx may rely
upon their opinion with respect to matters of Netherlands law.
(f) Cains Advocates, Solicitors and Notaries, counsel for Cromwilld,
shall have furnished to the Representatives its written opinion, as counsel
to such Selling Shareholder, addressed to the U.S. Underwriters and dated
such Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Selling Shareholder has full right, power and authority
to enter into this Agreement, the International Underwriting Agreement
and the Power of Attorney and Custody Agreement and had full power and
authority to enter into the Settlement Agreement; the execution,
delivery and performance of the Settlement Agreement by the Selling
Shareholder did not, the execution, delivery and performance of this
Agreement, the International Underwriting Agreement and the Power of
Attorney and Custody Agreement by the Selling Shareholder will not,
and the consummation by the Selling Shareholder of the transactions
contemplated hereby and thereby will not, conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Selling Shareholder is a party or by which
the Selling Shareholder is bound or to which any of the property or
assets of the Selling Shareholder is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws or
equivalent constitutive document of the Selling Shareholder, any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Selling Shareholder or the property or assets of the Selling
Shareholder; and, except for the registration of the Shares and ADSs
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under
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the Exchange Act and applicable foreign or state securities laws in
connection with the purchase and distribution of the Shares by the
U.S. Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body was or is required for the execution, delivery and performance of
this Agreement, the International Underwriting Agreement, the Power of
Attorney and Custody Agreement and the Settlement Agreement by the
Selling Shareholder and the consummation by the Selling Shareholder of
the transactions contemplated hereby and thereby;
(ii) This Agreement has been duly authorized, executed and
delivered by the Selling Shareholder;
(iii) The Settlement Agreement has been duly authorized, executed
and delivered by the Selling Shareholder and constitutes a valid and
binding agreement of the Selling Shareholder;
(iv) The Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by the Selling Shareholder and
constitutes a valid and binding agreement of the Selling Shareholder;
and
(v) Upon delivery of the Ordinary Shares of the Selling
Shareholder and payment therefor pursuant hereto, the U.S.
Underwriters will acquire all of the rights of the Selling Shareholder
in such Ordinary Shares and will acquire the interest of the Selling
Shareholder in such Shares free and clear of all liens, encumbrances,
equities or claims whatsoever.
In rendering the opinion in Section 9(f)(v) above, such counsel may rely
upon a certificate of the Selling Shareholder in respect of matters of fact
as to ownership of, and the absence of adverse claims regarding, the Shares
sold by the Selling Shareholder, provided that such counsel shall furnish
copies thereof to the Representatives and state that it believes that both
the U.S. Underwriters and it are justified in relying upon such
certificate. The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in either Registration Statement, the ADS Registration Statement
or the Prospectus.
(g) Xxxxxx Xxxxxxxx shall have furnished to the Representatives
written opinion, as special Netherlands tax counsel to the Company,
addressed to the U.S. Underwriters and the International Managers and dated
such Delivery Date, in form and substance satisfactory to the
Representatives, to
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the effect that:
(i) It is not necessary, prior to the U.S. Underwriters or the
International Managers seeking enforcement of the Operative
Agreements, in
(ii) The disclosure in the Prospectus under the caption "Tax
Considerations -- Netherlands Tax Considerations" accurately
summarizes, subject to the limitations and qualifications stated
therein, the material Netherlands income tax consequences of the
purchase, ownership and disposition of Shares or ADSs;
(iii) Except as disclosed in the Prospectus, under current laws
and regulations of The Netherlands and any political subdivision
thereof, all dividends and other distributions on the Shares and ADSs
may be paid by the Company in Dutch Guilders, euros or another
currency that may be converted into foreign currency that may be
freely transferred out of The Netherlands and, in each case, all such
payments made to holders thereof who are non-residents of The
Netherlands will not be subject to income, withholding or other taxes
under laws and regulations of The Netherlands or any political
subdivision or taxing authority thereof or therein and will otherwise
be free and clear of any other tax, duty, withholding or deduction in
The Netherlands or any political subdivision or taxing authority
thereof or therein and without the necessity of obtaining any
governmental authorization in The Netherlands or any political
subdivision or taxing authority thereof or therein; and
(iv) No stamp or other issuance or transfer taxes or duties and
no capital gains, income withholding or other taxes are payable in
accordance with Netherlands tax law, by or on behalf of the U.S.
Underwriters or the International Managers, to Netherlands taxation
authorities or other Netherlands agencies in connection with the
following:
(a) the issuance of the Shares by the Company;
(b) the deposit by the Company with the Depository or its
nominee, of the Shares against the issuance of ADRs
evidencing the ADSs pursuant to the Deposit Agreement;
(c) the delivery of the Shares or ADSs to or for the
respective accounts of the U.S. Underwriters and the
International Managers in the manner contemplated
herein and in the International Underwriting Agreement;
or
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(d) the sale and delivery by the U.S. Underwriters and the
International Managers of the Shares and ADSs to the
initial purchasers therefrom.
(h) Xxxxx Dutilh shall have furnished to the Representatives its
written opinion, as Netherlands counsel to the U.S. Underwriters, addressed
to the U.S. Underwriters and the International Managers and dated such
Delivery Date, in form and substance satisfactory to the Representatives.
(i) Xxxxx, Xxxxxx & Xxxxxx LLP shall have furnished to the
Representatives its written opinion, as counsel to the Depositary,
addressed to the U.S. Underwriters and the International Managers and dated
such Delivery Date, in form and substance satisfactory to the U.S.
Representative, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally
binding obligation of the Depositary enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; provided, however, that such counsel need express no
opinion as to Section 5.08 of the Deposit Agreement; and
(ii) When ADRs have been duly executed and, if applicable,
countersigned, and duly issued and delivered in accordance with the
Deposit Agreement, the ADSs evidenced by ADRs will be validly issued
and will entitle the registered holders thereof to the rights
specified in the ADRs and the Deposit Agreement.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than U.S. federal and New
York State law.
(j) Xxxx van der Heijden, special regulatory counsel to the Company,
shall have furnished his written opinion to U.S. Underwriters and the
International Managers and dated such Delivery Date, in form and substance
satisfactory to the Representatives.
(k) With respect to the letter of each of Xxxxxx Xxxxxxxx and KPMG
Accountants N.V. delivered to the Representatives and dated the date of the
Prospectus referred to in Section 6(r) (as used in this paragraph, the
"initial letter"), the Company shall have furnished to the Representatives
a letter (as used in this paragraph, the "bring-down letter") of each such
accounting firm, addressed to the U.S. Underwriters and the International
Managers and dated
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such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2- 01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring- down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth
in the initial letter.
(l) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of R. Xxxx Xxxxx, Managing Director,
and Xxx Xxxxxxxxx, Chief Financial Officer, stating, on behalf of the
Company, that:
(i) The representations, warranties and agreements of the Company
in Section 1 are true and correct as of such Delivery Date; the
Company has complied with all its agreements contained herein; and
(ii) (A) 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 in the Prospectus
or (B) since such date there shall not have been any change in the
share capital or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth in the Prospectus;
and
(iii) They have carefully examined the Prospectus and, in their
opinion (A) the Prospectus, as of its date, did not include any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (B) since such date no event has occurred
which should have been set forth in a supplement or amendment to the
Prospectus so that the Prospectus, as so amended or supplemented,
would not include any untrue statement of a material fact and would
not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading.
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(m) The Custodian or one or more attorneys-in-fact on
behalf of the Selling Shareholders shall have furnished to
the Representatives on such Delivery Date a certificate,
dated such Delivery Date, signed by, or on behalf of, the
Custodian or one or more attorneys-in-fact stating that the
representations, warranties and agreements of the Selling
Shareholder contained herein are true and correct as of such
Delivery Date and that the Selling Shareholder has complied
with all agreements contained herein to be performed by the
Selling Shareholder at or prior to such Delivery Date;
provided, that such representations, warranties and
agreements shall not have been changed in any material
respect from the forms thereof attached to the Power if
Attorney and Custody Agreement delivered by such Selling
Shareholder.
(n) (i) Neither the Company nor any of its subsidiaries
shall have 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 in the
Prospectus or (ii) since such date there shall not have been
any change in the share capital or long-term debt of the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
shareholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth in the
Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering of
the Shares and ADSs on the terms and in the manner
contemplated in the Prospectus.
(o) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New
York Stock Exchange, Inc., the American Stock Exchange, the
Nasdaq National Market System, the AEX or in the U.S.
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) any
downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or any public announcement that any
such organization has under surveillance or review its
rating of any debt securities of the Company (other than an
announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of
such rating), (iii) a banking moratorium shall have been
declared by U.S. federal or state authorities in the United
States or by authorities in The Netherlands or by
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European Union authorities, (iv) the United States or The
Netherlands shall have become engaged in hostilities or
there shall have been a declaration of a national emergency
or war by the United States or The Netherlands or (v) there
shall have occurred such a material adverse change in
general or United States or Netherlands economic, political
or financial conditions or in currency exchange rates,
taxation, exchange controls or foreign investment
regulations (or the effect of international conditions on
the financial markets in the United States or The
Netherlands shall be such) as to make it, in the judgment of
a majority in interest of the several U.S. Underwriters,
impracticable or inadvisable to proceed with completion of
the offering or sale of and payment for the Shares and ADSs
on the terms and in the manner contemplated in the
Prospectus.
(p) The AEX and the Nasdaq National Market shall have
accepted the Shares and ADSs, respectively, for trading, in
each case subject only to official notice of issuance.
(q) The Ordinary Shares shall have been admitted for
the operations of NECIGEF, Euroclear and Cedel.
(r) The Company and the Depositary shall have executed
and delivered the Deposit Agreement (in form and substance
satisfactory to the Representatives) and the Deposit
Agreement shall be in full force and effect.
(s) The Depositary shall have furnished to the
Representatives a certificate, dated such Delivery Date, of
one of its authorized officers in a form satisfactory to the
Representatives.
(t) The Company shall have furnished to the
Representatives a copy of each Lock-up Letter.
(u) The closing under the International Underwriting
Agreement shall have occurred concurrently with the closing
hereunder on such Delivery Date.
(v) In the case of the First Delivery Date, the closing
of the High Yield Offering shall have occurred concurrently
with the closing hereunder on such Delivery Date.
(w) Each Power of Attorney and Custody Agreement is in
full force and effect on such Delivery Date.
(x) The Company shall have furnished to the
Representatives a copy of a letter or letters signed by each
current shareholder of the Company in favor of the AEX with
respect to the obligations relating to the disposition of
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Ordinary Shares by such shareholders, in form and substance
satisfactory to the Representatives.
(y) No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted
or issued by any governmental agency or body which would, as
of each Delivery Date, prevent the issuance or sale of the
Shares or ADSs; and no injunction, restraining order or
order of any other nature by any federal or state court of
competent jurisdiction shall have been issued as of each
Delivery Date which would prevent the issuance or sale of
the Shares or ADSs.
(z) The Company shall have furnished to the
Representatives such further information, certificates and
documents as the Representatives may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
to the Representatives.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each U.S. Underwriter,
its officers and employees and each person, if any, who controls any U.S.
Underwriter within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Shares and ADSs), to which that U.S.
Underwriter, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
either Registration Statement, the ADS Registration Statement or the Prospectus,
or in any amendment or supplement thereto, or (B) in any blue sky application or
other document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the under the securities laws of any state or other jurisdiction
(such application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, either Registration Statement, the ADS Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) any act or failure to act, or any
alleged act or failure to act, by any U.S. Underwriter in connection with, or
relating in any manner to, the Shares and ADSs or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above and (iv) the Directed Share Program (provided that the
Company shall not be liable in the case of any matter covered by clauses (iii)
and (iv) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim,
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damage, liability or action resulted directly from any such act or failure to
act undertaken or omitted to be taken by such U.S. Underwriter through its gross
negligence or wilful misconduct), and shall reimburse each U.S. Underwriter and
each such officer, employee and controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that U.S. Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, either Registration Statement, the ADS Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company through the Representatives by or on behalf of any U.S.
Underwriter specifically for inclusion therein and described in Section 10(f);
provided, further, that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any U.S. Underwriter, its officers
or employees or any person controlling that U.S. Underwriter on account of any
loss, claim, damage, liability or action arising from the sale of Shares or ADSs
to any person by that U.S. Underwriter if that U.S. Underwriter failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented, to
that person within the time required by the Securities Act, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus was corrected
in the Prospectus, unless such failure resulted from non-compliance by the
Company with Section 6(c). The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any U.S. Underwriter or to
any officer, employee or controlling person of that U.S. Underwriter.
(b) The Selling Shareholders, severally in proportion to the number of
Shares and ADSs to be sold by each of them pursuant to the U.S. Underwriting
Agreement, shall indemnify and hold harmless each U.S. Underwriter, its officers
and employees and each person, if any, who controls any U.S. Underwriter within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares and ADSs), to which that U.S. Underwriter,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in either Registration Statement, the ADS
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or the omission or alleged omission to state in either Registration
Statement, the ADS Registration Statement or the Prospectus, or in any amendment
or supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by or on
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behalf of the Selling Shareholders specifically for inclusion therein, and shall
reimburse each U.S. Underwriter, its officers and employees and each such
controlling person for any legal or other expenses reasonably incurred by such
U.S. Underwriter, its officers, employees or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Each U.S. Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the
Securities Act and the Selling Shareholders, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person or the
Selling Shareholders may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, either Registration Statement,
the ADS Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, either Registration
Statement, the ADS Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any material fact required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the
Representatives by or on behalf of that U.S. Underwriter specifically for
inclusion therein and described in Section 10(f), and shall reimburse the
Company and any such director, officer or controlling person and the Selling
Shareholders for any legal or other expenses reasonably incurred by the Company
or any such director, officer or controlling person or Selling Shareholder in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any U.S.
Underwriter may otherwise have to the Company or any such director, officer or
controlling person or the Selling Shareholders.
(d) Promptly after receipt by an indemnified party under this Section 10 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 10, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 10. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the
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indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that any indemnified party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgement of
such counsel it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party, in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions 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 indemnified parties, which firm shall be designated in writing
by the Representatives, if the indemnified parties under this Section 10 consist
of any U.S. Underwriters or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or controlling persons or the Selling Shareholders. Each indemnified
party, as a condition of the indemnity agreements contained in Sections 10(a),
10(b) and 10(c), shall use its best efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld) settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(a) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (b) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss of liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 10(a), 10(b) or 10(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such
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proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders on the one hand, and the
U.S. Underwriters on the other, from the offering of the Shares and ADSs 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
Company and the Selling Shareholders on the one hand and the U.S. Underwriters
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Shareholders on the one hand and the U.S. Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares and ADSs
purchased under this Agreement (before deducting expenses but after deducting
underwriting discounts and commissions) received by the Company and the Selling
Shareholders, on the one hand, and the total underwriting discounts and
commissions received by the U.S. Underwriters with respect to the Shares and
ADSs purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the Shares and ADSs under this Agreement, 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 whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Selling Shareholders or
the U.S. Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Shareholders and the U.S. Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 10(e) were to be determined by pro rata allocation (even if the U.S.
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10(e) shall be deemed to include, for purposes
of this Section 10(e), 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 10(e), (i) the
aggregate liability of the Selling Shareholders under this subsection (e) and
subsections (a) and (b) and Sections 10(a), 10(b) and 10(e) of the International
Underwriting Agreement shall in no event exceed the amount of the net proceeds
(before deducting expenses but after deducting underwriting discounts and
commissions) received by the Selling Shareholders from the sale of Shares and
ADSs sold by the Selling Shareholders hereunder and under the International
Underwriting Agreement and (ii) no U.S. Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares and ADSs underwritten by it and distributed to the public was offered
to the public exceeds the amount of any damages which such U.S. Underwriter has
otherwise paid or become liable to pay by reason of any 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 Selling Shareholders shall only be obligated
to contribute pursuant to this subsection (e) if the loss, claim, damage or
liability arose from an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with
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written information furnished to the Company by or on behalf of the Selling
Shareholders specifically for inclusion therein. The Selling Shareholders'
respective obligations in this subsection (e) to contribute are several and not
joint. The U.S. Underwriters' obligations to contribute as provided in this
Section 10(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) The U.S. Underwriters severally confirm that the statements with
respect to the offering of the Shares set forth in the last paragraph on page
(i) of, and under the caption "Underwriting" in, the Prospectus are correct in
all material respects and constitute the only information furnished in writing
to the Company by or on behalf of the U.S. Underwriters specifically for
inclusion in the Registration Statements, the ADS Registration Statement and the
Prospectus.
11. Defaulting U.S. Underwriters. If, on either Delivery Date, any U.S.
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting U.S. Underwriters shall be obligated to purchase
the Shares and ADSs which the defaulting U.S. Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of
the Firm Shares and ADSs set opposite the name of each remaining non-defaulting
U.S. Underwriter in Schedule I hereto bears to the total number of the Firm
Shares and ADSs set opposite the names of all the remaining non-defaulting U.S.
Underwriters in Schedule I hereto; provided, however, that the remaining
non-defaulting U.S. Underwriters shall not be obligated to purchase any of the
Shares and ADSs on such Delivery Date if the total number of Shares and ADSs
which the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total number of Shares and ADSs to be
purchased on such Delivery Date, and any remaining non-defaulting U.S.
Underwriter shall not be obligated to purchase more than 110% of the number of
Shares and ADSs which it agreed to purchase on such Delivery Date pursuant to
the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting U.S. Underwriters, or those other underwriters satisfactory to
the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Shares and ADSs to be purchased on such Delivery Date. If the remaining U.S.
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Shares and ADSs which the defaulting U.S. Underwriter or
U.S. Underwriters agreed but failed to purchase on such Delivery Date, this
Agreement (or, with respect to the Second Delivery Date, the obligation of the
U.S. Underwriters to purchase, and the Company to sell, the Option Shares) shall
terminate without liability on the part of any non-defaulting U.S. Underwriter
or the Company or the Selling Shareholders, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 8 and 13. As used in this Agreement, the term "U.S. Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule I hereto who, pursuant to this
Section 11, purchases Firm Shares and ADSs which a defaulting U.S. Underwriter
agreed but failed to purchase.
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Nothing contained herein shall relieve a defaulting U.S. Underwriter of any
liability it may have to the Company and the Selling Shareholders for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Shares or ADSs of a defaulting or withdrawing U.S. Underwriter, either the
Representatives or the Company may postpone the First Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel to the Company or counsel to the U.S. Underwriters may be necessary in
either Registration Statement, the ADS Registration Statement, the Prospectus or
in any other document or arrangement.
12. Termination. The obligations of the U.S. Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Selling Shareholders prior to delivery of and payment for the Firm
Shares if, prior to that time, any of the events described in Sections 9(n) or
9(o) shall have occurred or if the U.S. Underwriters shall decline to purchase
the Shares for any reason permitted under this Agreement.
13. Reimbursement of U.S. Underwriters' Expenses. If (a) the Company or any
Selling Shareholder shall fail to issue the Shares for delivery to the U.S.
Underwriters for any reason permitted under this Agreement or (b) the U.S.
Underwriters shall decline to purchase the Shares or ADSs for any reason
permitted under this Agreement (including the termination of this Agreement
pursuant to Section 12), the Company shall reimburse the U.S. Underwriters for
fees and expenses of their counsels and for such other out-of-pocket expenses as
shall have been incurred by them in connection with this Agreement and the
proposed purchase of the Shares and ADSs, and upon demand the Company shall pay
the full amount thereof to the Representatives. Notwithstanding the previous
sentence, if this Agreement is terminated pursuant to Section 11 by reason of
the default of one or more U.S. Underwriters, the Company shall not be obligated
to reimburse any defaulting U.S. Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the U.S. Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Fax: 000-000-0000);
With a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 00 Xxxxxxxxxxx, Xxxxxx, XX0X
0XX, Attention: Xxxxxxx X. Xxxxxxxxx (Fax: 000-00-000-000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: Xxx Xxxxxxxxx (Fax: 00-00-000-0000).
With a copy to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx X. Xxxxxxxx, Xx. (Fax: 000-000-0000)
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(c) if to any Selling Shareholder, shall be delivered or sent by mail,
telex or facsimile transmission to the address of such Shareholder set
forth on Schedule II hereto.
With a copy to United States Trust Company of New York, 000 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust Services (Fax: 212-
000-0000)
provided, however, that any notice to a U.S. Underwriter pursuant to Section
10(d) shall be delivered or sent by mail, telex or facsimile transmission to
such U.S. Underwriter at its address set forth in its acceptance telex to the
U.S. Representative, which address will be supplied to any other party hereto by
the U.S. Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Shareholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the U.S. Underwriters by
Xxxxxx Brothers Inc. and the Company and the Underwriters shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Selling Shareholders by the Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the U.S. Underwriters, the Company, the
Selling Shareholders and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Selling Shareholders contained in this Agreement shall also
be deemed to be for the benefit of the officers and employees of the U.S.
Underwriters and the person or persons, if any, who control the U.S.
Underwriters within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the U.S. Underwriters contained in Section 10 of this
Agreement shall be deemed to be for the benefit of directors, officers and
employees of the Company and any person controlling the Company within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 15, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations, warranties and
agreements of the Company, the Selling Shareholders and the U.S. Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Shares and ADSs and shall remain in full force and effect regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
17. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) the term "business day" means any day on which the Nasdaq
National Market System is open for trading and (b) the term "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
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18. Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
19. Submission to Jurisdiction; Appointment of Agent for Service; Waiver;
Currency Indemnity. (a) To the fullest extent permitted by applicable law, the
Company and each Selling Shareholder irrevocably submit to the non-exclusive
jurisdiction of any federal or state court in the Borough of Manhattan in the
City of Xxx Xxxx, Xxxxxx xxx Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in any
suit or proceeding based on or arising under this Agreement, and irrevocably
agree that all claims in respect of such suit or proceeding may be determined in
any such court. The Company and each Selling Shareholder, to the fullest extent
permitted by applicable law, irrevocably and fully waive the defense of an
inconvenient forum to the maintenance of such suit or proceeding and hereby
irrevocably designate and appoint CT Corporation System (the "Authorized
Agent"), as their authorized agent upon whom process may be served in any such
suit or proceeding. The Company represents that it has notified the Authorized
Agent of such designation and appointment and that the Authorized Agent has
accepted the same in writing. The Company and each Selling Shareholder hereby
irrevocably authorize and direct their Authorized Agent to accept such service.
The Company and each Selling Shareholder further agree that service of process
upon their Authorized Agent and written notice of said service to the Company
mailed by first class mail or delivered to their Authorized Agent shall be
deemed in every respect effective service of process upon the Company or such
Selling Shareholder, as the case may be, in any such suit or proceeding. Nothing
herein shall affect the right of any person to serve process in any other manner
permitted by law. The Company and each Selling Shareholder agree that a final
action in any such suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company or any Selling
Shareholder arising out of or based on this Agreement or the transactions
contemplated hereby may also be instituted by the U.S. Underwriters, its
officers and employees or any person who controls the U.S. Underwriters within
the meaning of the Securities Act in any competent court in The Netherlands, and
the Company and the Selling Shareholders expressly accept the jurisdiction of
any such court in any such action.
The Company and the Selling Shareholders hereby irrevocably waive, to the
extent permitted by law, any immunity to jurisdiction to which they may
otherwise be entitled (including, without limitation, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby.
The provisions of this Section 19(a) are intended to be effective upon the
execution of this Agreement without any further action by the Company, the
Selling Shareholders or the U.S. Underwriters and the introduction of a true
copy of this Agreement into evidence shall be conclusive and final evidence as
to such matters.
(b) The Company and the Selling Shareholders, as the case may be, shall
indemnify the U.S. Underwriters against any loss incurred by them as a result of
any
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judgment or order being given or made and expressed and paid in a currency (the
"Judgment Currency") other than U.S. dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in New York, New York at which such U.S. Underwriters
on the date of payment of such judgment or order are able to purchase U.S.
dollars with the amount of the Judgment Currency actually received by such U.S.
Underwriters. If the U.S. dollars so purchased are greater than the amount
originally due to such U.S. Underwriters hereunder, such U.S. Underwriters agree
to pay to the Company and/or the Selling Shareholders, as the case may be, an
amount equal to the excess of the U.S. dollars so purchased over the amount
originally due to such U.S. Underwriters hereunder. The U.S. Underwriters shall
indemnify the Company and the Selling Shareholders, as the case may be, against
any loss incurred by them as a result of any judgment or order being given or
made and expressed and paid in a Judgment Currency other than U.S. dollars and
as a result of any variation as between (i) the rate of exchange at which the
U.S. dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in New York, New York
at which the Company and the Selling Shareholders, as the case may be, on the
date of payment of such judgment or order are able to purchase U.S. dollars with
the amount of the Judgment Currency actually received by the Company or such
Selling Shareholders. If the U.S. dollars so purchased are greater than the
amount originally due to the Company or the Selling Shareholders hereunder, the
Company and the Selling Shareholders, as the case may be, agree to pay to the
U.S. Underwriters an amount equal to the excess of the U.S. dollars so purchased
over the amount originally due to the Company and the Selling Shareholders, as
the case may be, hereunder. The foregoing shall constitute a separate and
independent obligation of the Company, the Selling Shareholders and the U.S.
Underwriters, as the case may be, and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, U.S. dollars.
20. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the Company, the
Selling Shareholders and the U.S. Underwriters, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
VERSATEL TELECOM INTERNATIONAL N.V.
By:
--------------------------------
Name:
Title:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE II TO THIS AGREEMENT
By:
--------------------------------
Attorney-in-Fact
Accepted:
XXXXXX BROTHERS INC.
For itself and as Representative
of the several U.S. Underwriters named
on Schedule I hereto
By:
-----------------------------
Authorized Representative
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SCHEDULE I
U.S. Underwriters Number of Shares and ADSs
----------------- -------------------------
Xxxxxx Brothers Inc
ING Barings LLC
Bear, Xxxxxxx & Co Inc
Paribas Corporation
Xxxxxxxxx & Xxxxx LLC
E*TRADE Securities, Inc
Total
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SCHEDULE II
Selling Shareholders Number of Firm Shares
-------------------- ---------------------
Total
