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ST&B DRAFT JULY 18, 1999
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Exhibit 1.1
VersaTel Telecom International N.V.
$ -% Senior Dollar Notes due 2009
-% Senior Euro Notes due 2009
UNDERWRITING AGREEMENT
July 22, 1999
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
As Representative of the several
Underwriters named in Schedule I
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 "Underwriters") $- aggregate principal amount of its
-% Senior Dollar Notes due 2009 (the "Dollar Notes") and aggregate principal
amount of its -% Senior Euro Notes due 2009 (the "Euro Notes"; and, together
with the Dollar Notes, the "Notes"). The Dollar Notes are to be issued under a
dollar indenture, to be entered into and dated as of July -, 1999 (the "Dollar
Indenture"), between the Company and United States Trust Company of New York, as
trustee (the "Dollar Trustee"). The Euro Notes are to be issued under a euro
indenture, to be entered into and dated as of July -, 1999 (the "Euro
Indenture"; and, together with the Dollar Indenture, the "Indentures"), between
the Company and United States Trust Company of New York, as trustee (the "Euro
Trustee"; and, together with the Euro Trustee, the "Trustees"). This Agreement
and the Indentures shall hereafter be referred to as the "Operative Agreements".
Two forms of prospectus are to be used in connection with the offering and sale
of the Notes contemplated by the foregoing, one relating to the Notes to be sold
in the United States and Canada (the "U.S. Prospectus") and the second relating
to the Notes 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 is to confirm the agreement concerning the purchase of the Notes from
the Company by the 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 Notes have (i)
been prepared by the
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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 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 Representative. As used in this
Agreement, "Effective Time" means (i) with respect to the Primary
Registration Statement (as defined), the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, is 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 the
Primary 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 Representative 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) The Primary Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any further
amendments or supplements to the Registration Statements or the
Prospectus,
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when they become effective or are filed with the Commission, as the
case may be, will conform) 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 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 7(f)
furnished to the Company through the Representative by or on behalf of
any Underwriter specifically for inclusion therein.
(c) Each Indenture shall have been qualified under and will comply in
all material respects with the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"); provided that no representation and
warranty is made as to the statement of eligibility and qualification
on Form T-1 of either Trustee under the Trust Indenture Act or as to
information contained in or omitted from the Registration Statements
or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or through the Representative
on behalf of any Underwriter 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 14 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
B.V., a lien granted in favor of ▇▇▇▇▇▇ Commercial Paper, Inc.).
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(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 execution, delivery and performance of the Operative
Agreements, the U.S. Equity Underwriting Agreement (as defined) and
the International Equity Underwriting Agreement (as defined) 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 (i)
the registration of the Notes under the Securities Act, (ii) the
qualification of each Indenture under the Trust Indenture Act and
(iii) and such consents, approvals, authorizations, registrations or
qualifications as may be required under the United States
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Securities Exchange Act of 1934, as amended (the "Exchange Act") and
applicable state securities laws in connection with the purchase and
distribution of the Notes by the 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.
(h) The Company has full power and authority to enter into this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Company.
(i) The Company has full power and authority to enter into each
Indenture; on the Closing Date (as defined below), each Indenture will
have been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery of each Indenture by the
relevant Trustee, the Indenture will constitute a valid and legally
binding obligation of 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.
(j) The Company has full power and authority to offer and sell the
Notes; the Notes have been duly authorized by the Company; and when
the Notes are delivered and paid for pursuant to this Agreement on the
Closing Date, such Notes will have been duly executed, authenticated,
issued and delivered (assuming due authentication of the Notes by the
relevant Trustee) and, assuming due authentication of the Notes by the
relevant Trustee, such Notes will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the relevant
Indenture and enforceable in accordance with their 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.
(k) The Company had full power and authority to enter into the
settlement agreement, dated July 20, 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.
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(l) The Operative Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus.
(m) 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 Underwriters in connection with (i) the issue
of the Notes, (ii) the sale of the Notes to the Underwriters or (iii)
the sale and delivery of the Notes by the Underwriters to the initial
purchasers therefrom.
(n) 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.
(o) 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 Company's concurrent offering of Ordinary Shares in the form
of Shares or American Depositary Shares (the "Equity Offering").
(p) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 4(s) 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
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certain financial statements of Svianed B.V., whose report appears in
the Prospectus and who will deliver the initial letter referred to in
Section 4(s) hereof dated the date of the Prospectus, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(q) 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, 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.
(r) 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.
(s) 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 ▇▇▇▇
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.
(t) 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.
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(u) The conditions for use of Form F-1, as set forth in the General
Instructions thereto, have been satisfied.
(v) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to either
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.
(w) 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.
(x) 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.
(y) 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).
(z) 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.
(aa) Except as disclosed in the Prospectus, under current laws and
regulations of The Netherlands and any political subdivision thereof,
all interest, principal, premium, if any, and other payments due or
made on the Notes may be paid by the Company to the holders thereof 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,
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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.
(bb) 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.
(cc) 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.
(dd) 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.
(ee) 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 respective properties; all such licenses,
permits, certificates, franchises, approvals and other authorizations
are in full force and effect and each of the
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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.
(ff) 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.
(gg) 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.
(hh) There are no material acquisitions of businesses or assets by the
Company or any of its subsidiaries pending or currently being
negotiated.
(ii) 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.
(jj) 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 Notes and the
Equity Offering, and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined
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in the Investment Company Act and the rules and regulations of the
Commission thereunder.
(kk) 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.
(ll) 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 Notes.
(mm) 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-▇▇▇▇▇▇▇ Beheer B.V., ITinera Services N.V. and Svianed
B.V.).
(nn) Taking into account the receipt of proceeds from the offering and
sale of the Notes and the Equity 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.
(oo) All of the representations, warranties and agreements contained
in (i) the U.S. underwriting agreement (the "U.S. Equity Underwriting
Agreement") and (ii) the international underwriting agreement (the
"International Equity Underwriting Agreement"), in each case relating
to the Equity Offering, are true and correct in all material respects.
2. Purchase, Sale and Delivery of Notes. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the Underwriters,
and the Underwriters agree, severally and not jointly, to purchase from the
Company, at a purchase price of -% of the principal amount thereof plus accrued
interest, if any, from July -, 1999, to the Closing Date, the respective
aggregate principal amounts of Dollar Notes set forth opposite the names of the
several Underwriters in Schedule I hereto.
On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Company, at a purchase price of -% of the aggregate
principal amount thereof plus accrued interest, if any,
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from July -, 1999, to the Closing Date, the respective principal amounts of Euro
Notes set forth opposite the names of the several Underwriters in Schedule I
hereto.
The Company will deliver against payment of the purchase price the
Dollar Notes in the form of one or more permanent global Dollar Notes in
registered form, denominated in U.S. dollars (the "Dollar Global Notes"), and
one or more permanent global Euro Notes in registered form (the "Euro Global
Notes" and, together with the Dollar Global Notes, the "Global Notes").
Beneficial interests in the Global Notes will be shown on, and transfers thereof
will be effected only through, records maintained in book-entry form by The
Depository Trust Company ("DTC") and its participants, including, as applicable,
▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System and Cedel Bank, societe anonyme. Payment for the Notes shall be
made by or on behalf of the Underwriters in same day funds by wire transfer to a
dollar account with respect to Dollar Global Notes and to a euro account with
respect to Euro Global Notes, each as previously designated to ▇▇▇▇▇▇ Brothers
International (Europe) by the Company at a bank reasonably acceptable to ▇▇▇▇▇▇
Brothers International (Europe) at 10:00 a.m. (New York time), on July -, 1999,
or at such other time or place thereafter as ▇▇▇▇▇▇ Brothers Inc. and the
Company determine, such time being herein referred to as the "Closing Date",
against delivery at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York) at least
24 hours prior to the Closing Date of the Global Notes to the relevant Trustee.
3. Undertaking of Underwriters. Each Underwriter represents to and
agrees with the Company that (i) it has not solicited, and will not solicit,
offers to purchase any of the Notes from, (ii) it has not sold, and will not
sell, any of the Notes to, and (iii) it has not distributed, and will not
distribute, the Prospectus to, any person or entity in any jurisdiction outside
of the United States except, in each case to the best of each Underwriter's
knowledge and belief, in compliance in all material respects with all applicable
laws. For the purpose of this Agreement, "United States" means the United States
of America, its territories, its possessions and other areas subject to its
jurisdiction.
4. 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 Representative 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 Representative 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 or to the
Prospectus except as permitted herein; to advise the
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Representative, promptly after it receives notice thereof, of the time
when each 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 Representative
with copies thereof; to advise the Representative, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Notes 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 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 the Representative and to U.S.
counsel to the Underwriters a signed copy of each of the Registration
Statements 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 Representative such number of
the following documents as the Representative 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 Representative 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 Notes 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 Representative and, upon their request, to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representative 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 Prospectus or any supplement to the
Prospectus, that may, in the reasonable judgment of the Company or the
Representative, be required by the Securities Act or requested by the
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Commission;
(e) Prior to filing with the Commission any amendment to
either Registration Statement or any amendment or supplement to the
Prospectus, or any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representative and
counsel to the Underwriters 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 Representative 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 securities exchange or
automatic quotation system upon which the Notes 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 Representative may reasonably request, in
cooperation with the Underwriters, to qualify the Notes for offering
and sale under the securities laws of such jurisdictions as the
Representative 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 Notes; 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) In connection with the offering, until the
Representative shall have notified the Company of the completion of
the resale of the Notes, none of the Company nor any of its affiliates
has or will, either alone or with one or more other persons, bid for
or purchase for any account in which it or any of its affiliates has a
beneficial interest any Notes or attempt to induce any person to
purchase any Notes; and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent,
active trading in, or of raising the price of, the Notes;
(j) For a period of 180 days from the date of the
Prospectus, not to (i) offer, sell, contract to sell, pledge or
otherwise dispose of, directly or
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indirectly, any debt securities issued or guaranteed by the Company or
any subsidiary thereof and having a maturity of more than one year
from the date of issue or (ii) 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 of its capital stock (other than pursuant to the
Equity Offering or pursuant to employee stock option and incentive
plans existing on the date hereof) 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 Representative;
(k) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the creation, issuance and
sale of the Notes and on the execution and delivery of this Agreement.
All payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future
taxes, duties or governmental charges whatsoever unless the Company is
compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the Company shall pay such additional amounts as may be
necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made;
(l) To comply in all material respects with all covenants
and agreements of the Company contained in each of the U.S. Equity
Underwriting Agreement and the International Equity Underwriting
Agreement;
(m) To apply the net proceeds from the sale of the Notes
being sold by the Company as set forth in the Prospectus, and to apply
the net proceeds from the Equity Offering as set forth in the
Prospectus and in each prospectus relating to the Equity Offering;
(n) Between the date hereof and the Closing Date (both dates
inclusive), to notify and consult with the Representative, and to
cause its subsidiaries and all other parties acting on its or their
behalf to notify and consult with the Representative, prior to issuing
any announcement which could be material in the context of the
distribution of the Notes;
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(o) Promptly to inform the Representative 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 Notes and
to furnish the Representative 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 Notes;
(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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and KPMG Accountants
N.V. to 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 Underwriters, in form and
substance reasonably satisfactory to the Representative at or prior to
the time copies of the Prospectus are furnished to the Representative;
(u) To make an application to list each series of Notes on
the Luxembourg Stock Exchange and to use its best efforts to have the
Notes admitted to trading on the Luxembourg Stock Exchange as promptly
as practicable; and
(v) If the Notes cease to be listed on the Luxembourg Stock
Exchange, the Company shall endeavour promptly to list the Notes on a
stock exchange to be agreed between the Company and the
Representative.
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5. Expenses. The Company agrees to pay: (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and
distributing of the Registration Statements, each Preliminary Prospectus, each
Prospectus and any amendments, supplements and exhibits thereto; (c) the costs
of distributing the Registration Statements 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; (d) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Notes; (e) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 4(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including reasonable related fees and
expenses of counsel to the Underwriters, including Canadian counsel);[(f) (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]; (g) the costs of preparing certificates
evidencing the Notes; (h) all expenses and fees in connection with the
application for the listing of the Notes on the Luxembourg Stock Exchange and
the obtaining of any approvals in connection with the sale of the Notes from
relevant authorities in The Netherlands or Belgium; (i) the fees and expenses of
any Authorized Agent (as defined in Section 19 hereof); (j) the fees and
expenses (including fees and disbursements of counsel) of each Trustee; (k) the
cost and charges of any transfer agent or registrar; (l) all stamp or other
issuance or transfer taxes or governmental duties, if any, payable by the
Underwriters in connection with the offer and sale of the Notes to the
Underwriters and by the Underwriters to the initial purchasers therefrom; and
(m) 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 5, including, without limitation, the fees and expenses of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ Duhot, Netherlands counsel to the Company; provided
that, except as provided in this Section 5 and in Section 8, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel and any transfer taxes on the Notes which they may sell.
6. Conditions of the Underwriters' Obligations. The several
obligations of the 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 4(a); no stop order suspending the
effectiveness of any of either 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
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information in either of the Registration Statements or the Prospectus
or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to
the Company on or prior to the Closing Date that either 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 Underwriters, 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,
each Indenture, each Registration Statement and the Prospectus or any
amendment or supplement thereto, and all other legal matters relating
to this Agreement, each Indenture and the transactions contemplated
hereby and thereby shall be reasonably satisfactory in all material
respects to counsel to the Underwriters, and the Company 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
Representative its written opinion, as U.S. counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representative, to the effect that:
(i) The Primary Registration Statement was
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 has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(ii) The Registration Statements, 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 the
Closing 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
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Prospectus or filed as exhibits to the Registration
Statements by the Securities Act or by the Rules and
Regulations which have not been described or filed as
exhibits to the Registration Statements 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,
this 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,
each Indenture has been duly executed and delivered by the
Company insofar as New York law is concerned and, assuming
due authorization, execution and delivery of each Indenture
by the relevant Trustee and that each of the relevant
Trustee 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 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); the Indenture has been
duly qualified under the Trust Indenture Act;
(vi) Assuming due authorization, execution and
delivery by the Company under the laws of The Netherlands,
the Notes have been duly executed and delivered by the
Company insofar as New York law is concerned and, assuming
due authentication thereof by the relevant Trustee and upon
payment and delivery in accordance with this Agreement and
the relevant Indenture, the Notes constitute valid and
legally binding obligations of the Company entitled to the
benefits of the relevant Indenture and enforceable against
the Company in accordance with their terms, 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);
(vii) Assuming the validity of such actions under
the laws of
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The Netherlands, under the laws of the State of New York
relating to submission to personal jurisdiction, the Company
has, pursuant to Section 16 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 16 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 execution, delivery and performance of
the Operative Agreements by the Company, and the
consummation by the Company of the transactions contemplated
thereby, 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 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 (x) the registration
of the Notes under the Securities Act, (y) the qualification
of each Indenture under the Trust Indenture Act and (z) 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 Notes by the Underwriters,
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 and each Indenture by the Company and the
consummation of the transactions contemplated hereby and
thereby;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States or the
State of New York is required for the consummation of the
transactions contemplated by the Operative Agreements in
connection with the issuance or sale of the Notes by the
Company (assuming compliance with the terms of the Operative
Agreements by the parties thereto), except as may be
required under the Securities Act and the Trust Indenture
Act and the Rules and Regulations, and
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otherwise except as may be required by state or
foreign securities or "Blue Sky" laws;
(x) The statements set forth in the
Prospectus under the captions "Description of the
Notes", insofar as such statements purport to
summarize federal laws of the United States, fairly
summarize such terms, laws, agreements and other
documents in all material respects;
(xi) 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 Notes;
(xii) The Company is not and, after giving
effect to the offering and sale of the Notes and the
Equity 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;
(xiii) No New York State or any New York City
stamp or documentary taxes payable by or on behalf of
the Underwriters or the Company are required to be
paid with respect to the execution of each Indenture
and the authorization, issuance, sale and delivery of
the Notes to the Underwriters in the manner
contemplated by this Agreement; and
(xiv) The opinions of such counsel delivered
pursuant to Section 9(d) of each of the U.S. Equity
Underwriting Agreement and the International Equity
Underwriting Agreement, respectively, are confirmed
and the Underwriters may rely upon such opinion as if
they 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 laws
of The Netherlands upon the opinion of Stibbe Simont ▇▇▇▇▇▇▇
Duhot referred to in Section 6(e) below if so specified in its
opinion. Such counsel shall also have furnished to the
Representative a written statement, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Representative, to the effect that (x)
such counsel has acted as counsel to the Company in connection
with the preparation of the Registration Statements and (y)
based on the foregoing, no facts have come to the attention
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of such counsel which lead it to believe that (I) each
Registration Statement, as of its respective Effective Date,
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 the
Closing 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 or the
Prospectus except for the statements made in the Prospectus
under the captions "Description of the Notes" and "Tax
Considerations - Certain U.S. Federal Income Tax
Considerations" insofar as such statements relate to the
provisions of this Agreement or each Indenture, or concern
legal matters.
(e) Stibbe Simont ▇▇▇▇▇▇▇ Duhot shall have furnished
to the Representative its written opinion, as Netherlands
counsel to the Company, addressed to the Underwriters and the
Company and dated the Closing Date, in form and substance
satisfactory to the Representative 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 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 and outstanding shares of capital
stock of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable; 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,
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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 Notes
from being offered and sold by the Company to the
Underwriters;
(v) The shareholders register of the Company
does 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) 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," "Business - Regulation," "Business
Intellectual Property," "Management - Supervisory
Board," "Management - Management Board," "Management
- Executive Compensation," and "Management - Stock
Option Plans," 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;
(vii) 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;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company and, assuming
that this 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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(ix) Each Indenture has been duly authorized,
executed and delivered by the Company and, assuming
due authorization, execution and delivery thereof by
the relevant Trustee and assuming that each Indenture
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;
(x) The execution, delivery and performance
of the Operative Agreements by the Company and the
consummation of the transactions contemplated
thereby, and the offer and sale of the Notes in the
manner contemplated by this Agreement and the
Prospectus, 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 (i) the registration of the
Notes under the Securities Act, (ii) the
qualification of each Indenture under the Trust
Indenture Act and (iii) 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 Notes by the 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 and
the consummation of the transactions contemplated
hereby and thereby;
(xi) 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
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its subsidiaries, could reasonably be expected to
have a material adverse effect on the Company and its
subsidiaries or (B) questions the 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;
(xii) 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;
(xiii) 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
Underwriters or the holders of the Notes, 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;
(xiv) 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;
(xv) The Underwriters 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
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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;
(xvi) The Company can ▇▇▇ 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;
(xvii) 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;
(xviii) The indemnification and contribution
provisions set forth in Section 7 herein do not
contravene the public policy or laws of The
Netherlands;
(xix) 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;
(xx) The certificates used to evidence the
Notes are in due and proper form and comply with all
applicable statutory requirements of Netherlands law;
and
(xxi) The opinions of such counsel delivered
pursuant to Section 9(e) of each of the U.S. Equity
Underwriting Agreement and the International Equity
Underwriting Agreement, respectively, are confirmed
and the Underwriters may rely upon such opinions as
if they were addressed to them.
Such counsel shall also have furnished to the Representative a
written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representative, to the effect that no facts have come to the
attention of such counsel which lead it to believe that (I)
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each Registration Statement, as of its Effective Date, 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 the Closing
Date, that the 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely upon their
opinion with respect to matters of Netherlands law.
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have furnished to the
Representative written opinion, as special Netherlands tax
counsel to the Company, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to
the Representative, to the effect that:
(i) It is not necessary, prior to the
Underwriters seeking enforcement of the Operative
Agreements, in the Netherlands, that any stamp or
similar tax be paid;
(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 Notes;
(iii) Except as disclosed in the Prospectus,
under current laws and regulations of The Netherlands
and any political subdivision thereof, all interest
payments payable on the Notes 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, withholding or other issuance
or transfer taxes or duties are payable in accordance
with Netherlands tax law, by or on behalf of the
Underwriters, to Netherlands taxation authorities or
other
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Netherlands agencies in connection with the
following:
(a) the issuance of the Notes by the
Company;
(b) the delivery of the Notes to or for
the account of the Underwriters in
the manner contemplated herein; or
(c) the sale and delivery by the
Underwriters of the Notes to the
initial purchasers therefrom.
(g) ▇▇▇▇▇ Dutilh shall have furnished to the
Representative its written opinion, as Netherlands counsel to
the Underwriters, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representative.
(h) Each Trustee shall have furnished to the
Representative an officer's certificate, dated the Closing
Date, in form and substance satisfactory to the Representative
to the effect that (i) the relevant Indenture has been duly
authorized, executed and delivered by such Trustee, (ii) each
person who, on behalf of such Trustee, executed and delivered
the relevant Indenture was at the date thereof and is now duly
elected, appointed or authorized, qualified and acting as an
officer or authorized signatory of such Trustee and duly
authorized to perform such acts at the respective times of
such acts and the signatures of such persons appearing on such
document are their genuine signatures and (iii) such other
matters reasonably requested by the Underwriters to be
included in such officer's certificate. Attached to the
officer's certificate shall be an extract of the Bylaws of
such Trustee, duly adopted by its Board of Directors,
respecting the signing authority of the persons mentioned in
clause (ii) above and a letter from an officer of such Trustee
authorizing, pursuant to such Bylaws, such signing authority,
which Bylaws and letter at the Closing Date are in full force
and effect.
(i) ▇▇▇▇ van der Heijden, Chief Regulatory Counsel of
the Company, shall have furnished his written opinion to
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Representative.
(j) With respect to the letter of each of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and KPMG Accountants N.V. delivered to the
Representative and dated the date of the Prospectus referred
to in Section 4(t) (as used in this paragraph, the "initial
letter"), the Company shall have furnished to the
Representative a letter (as used in this paragraph, the
"bring-down letter") of each such accounting firm, addressed
to the Underwriters and dated the Closing Date (i) confirming
that they are independent public accountants within the
meaning of the Securities
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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.
(k) The Company shall have furnished to the
Representative a certificate, dated the Closing Date, of R.
▇▇▇▇ ▇▇▇▇▇, Managing Director, and ▇▇▇ ▇▇▇▇▇▇▇▇▇, 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 the Closing 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.
(l) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest
audited financial statements included in
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31
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
Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering of
the Notes on the terms and in the manner contemplated in the
Prospectus.
(m) 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 Amsterdam Stock Exchange, the
Luxembourg Stock Exchange 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 European Union authorities, (iv) the United
States or The Netherlands shall have become engaged in
hostilities, there shall have been an escalation in
hostilities involving the United States or The Netherlands 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
Underwriters, impracticable or inadvisable to proceed with
completion of the offering or sale of and payment for the
Notes on the terms and in the manner contemplated in the
Prospectus.
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(n) Each Indenture shall have been duly executed and
delivered by the Company and the relevant Trustee on the
Closing Date and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the
relevant Trustee on the Closing Date.
(o) The Luxembourg Stock Exchange shall have approved
the Notes for inclusion, subject only to official notice of
issuance.
(p) The closing of the Equity Offering shall have
occurred concurrently with the closing hereunder on the
Closing Date.
(q) 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
the Closing Date, prevent the issuance or sale of the Notes;
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 the Closing Date which would
prevent the issuance or sale of the Notes.
(r) The Company shall have furnished to the
Representative such further information, certificates and
documents as the Representative 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 Representative.
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter and the QIU (as defined) and each of their officers and employees
and each person, if any, who controls each Underwriter and the QIU 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 Notes), to which that Underwriter, QIU, 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 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 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 or (iii) any
act or failure to act, or any alleged act or failure
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33
to act, by any Underwriter or the QIU in connection with, or relating in any
manner to, the Notes 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
(provided that the Company shall not be liable in the case of any matter covered
by this clause (iii) to the extent that it is determined in a final judgment by
a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such act or failure to act undertaken or
omitted to be taken by such Underwriter or the QIU through its gross negligence
or wilful misconduct), and shall reimburse each Underwriter and the QIU and each
such officer, employee and controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, QIU, 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 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
Representative by or on behalf of any Underwriter or the QIU specifically for
inclusion therein and described in Section 7(f); provided, further, that as to
any Preliminary Prospectus this indemnity agreement shall not inure to the
benefit of any Underwriter, its officers or employees or any person controlling
that Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Notes to any person by that Underwriter if that
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 4(c). The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter, the QIU or to any officer, employee or
controlling person of that Underwriter or QIU.
(b) Each 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, 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 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 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 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
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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 Representative by or on behalf of that Underwriter
specifically for inclusion therein and described in Section 7(f), and shall
reimburse the Company and any such director, officer or controlling persons for
any legal or other expenses reasonably incurred by the Company or any such
director, officer 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. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer or controlling person.
(c) The Company hereby confirms that at its request
______________ has acted as "qualified independent underwriter" (in such
capacity, the "QIU") within the meaning of Rule 2710 of the Conduct Rules of the
National Association of Securities Dealers, Inc. in connection with the offering
of the Notes. The Company will indemnify and hold harmless the QIU against any
losses, claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon the QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under this
Section 7 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 7, 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 7 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 7.
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 indemnifying party shall not be liable to
the indemnified party under this Section 7 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
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35
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 Representative, if the indemnified parties under this Section 7 consist
of any Underwriters, the QIU 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. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a), 7(b) and 7(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 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a), 7(b) or 7(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 proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters and the
QIU on the other, from the offering of the Notes 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 on the one
hand and the Underwriters and the QIU on the other with respect to the
statements or omissions which resulted in such loss,
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36
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters and the QIU 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 Notes purchased under this Agreement (before
deducting expenses but after deducting underwriting discounts and commissions)
received by the Company, on the one hand, and the total underwriting discounts
and commissions received by the Underwriters (or other fees, with respect to the
QIU) with respect to the Notes purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the Notes 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
or the 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, on the one hand, and the Underwriters, on the other hand,
agree that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the
Underwriters and the QIU 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 7(e) shall be deemed to include, for
purposes of this Section 7(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 7(e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such 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.
(f) The Underwriters severally confirm that the statements
with respect to the offering of the Notes set forth in the third 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 Underwriters specifically for
inclusion in the Registration Statements and the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Notes which the defaulting Underwriter agreed but failed to purchase on the
Closing Date in the respective proportions which the aggregate principal amount
of Notes set opposite the name of each remaining non-defaulting Underwriter in
Schedule I hereto bears to the aggregate principal amount of Notes set opposite
the names of all the remaining non-defaulting Underwriters in Schedule I hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Notes on the Closing Date if the total
aggregate principal
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amount of Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total aggregate principal
amount of Notes to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the aggregate principal amount of Notes that it agreed to purchase on the
Closing Date pursuant to the terms of Section 2. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, the total aggregate principal amount of Notes be purchased on the Closing
Date. If the remaining Underwriters or other underwriters satisfactory to the
Representative do not elect to purchase the aggregate principal amount of Notes
that the defaulting Underwriter or Underwriters agreed but failed to purchase on
the Closing Date, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 5 and 10. As used in this Agreement, the term "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 8, purchases
Notes which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the Notes
of a defaulting or withdrawing Underwriter, either the Representative or the
Company may postpone the Closing 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 Underwriters may be necessary in either Registration Statement,
the Prospectus or in any other document or arrangement.
9. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representative by notice given to and received by the
Company prior to delivery of and payment for the Notes if, prior to that time,
any of the events described in Sections 6(l) or 6(m) shall have occurred or if
the Underwriters shall decline to purchase the Notes for any reason permitted
under this Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) the
Company shall fail to issue the appropriate aggregate principal amount of Notes
to the Underwriters for any reason permitted under this Agreement or (b) the
Underwriters shall decline to purchase the Notes for any reason permitted under
this Agreement (including the termination of this Agreement pursuant to Section
9), the Company shall reimburse the 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
Notes, and upon demand the Company shall pay the full amount thereof to the
Representative. Notwithstanding the previous sentence, if this Agreement is
terminated pursuant to Section 8 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
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(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to ▇▇▇▇▇▇
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax: 212-528-
8822);
With a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Fax:
011-44-171-422-4022);
(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: ▇▇▇ ▇▇▇▇▇▇▇▇▇
(Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇).
With a copy to Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. (Fax:
212-848-7179)
provided, however, that any notice to a Underwriter pursuant to Section 7(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
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 contained
in this Agreement shall also be deemed to be for the benefit of the officers and
employees of the Underwriters and the person or persons, if any, who control the
Underwriters within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Underwriters contained in Section 7 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
12, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the 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 Notes 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.
14. 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
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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.
15. 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.
16. Submission to Jurisdiction; Appointment of Agent for
Service; Waiver; Currency Indemnity. (a) To the fullest extent permitted by
applicable law, the Company irrevocably submits to the non-exclusive
jurisdiction of any federal or state court in the Borough of Manhattan in the
City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any
suit or proceeding based on or arising under this Agreement, and irrevocably
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. The Company, to the fullest extent permitted by applicable
law, irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation System (the "Authorized Agent"), as its 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 hereby irrevocably authorizes and directs its Authorized Agent to accept
such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company 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 agrees 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 arising out of or
based on this Agreement or the transactions contemplated hereby may also be
instituted by the Underwriters, their officers and employees or any person who
controls any Underwriter within the meaning of the Securities Act in any
competent court in The Netherlands, and the Company expressly accepts the
jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted
by law, any immunity to jurisdiction to which it 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 16(a) are intended to be
effective upon the execution of this Agreement without any further action by the
Company or the Underwriters and the introduction of a true copy of this
Agreement into evidence shall be conclusive and final evidence as to such
matters.
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(b) The Company shall indemnify the Underwriters against any
loss incurred by it as a result of any 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 the 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 the Underwriters. If the U.S. dollars so purchased
are greater than the amount originally due to the Underwriters hereunder, the
Underwriters agree to pay to the Company an amount equal to the excess of the
U.S. dollars so purchased over the amount originally due to the Underwriters
hereunder. The Underwriters shall indemnify the Company against any loss
incurred by it 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, on the date of payment of such judgment or order, is able to
purchase U.S. dollars with the amount of the Judgment Currency actually received
by the Company. If the U.S. dollars so purchased are greater than the amount
originally due to the Company hereunder, the Company agrees 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 hereunder. The foregoing shall
constitute a separate and independent obligation of the Company and the
Underwriters 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.
17. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. 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 and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
VERSATEL TELECOM INTERNATIONAL N.V.
By: _______________________________
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
For itself and as Representative
of the several Underwriters named
on Schedule I hereto
By: ________________________
Authorized Representative
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SCHEDULE I
AGGREGATE AGGREGATE
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
UNDERWRITERS DOLLAR NOTES EURO NOTES
▇▇▇▇▇▇ Brothers International (Europe)
ING Barings LLC.
ING Barings Limited
Total