EXHIBIT 1.1
ING GROEP N.V.
(a limited liability company with corporate seat
in Amsterdam, The Netherlands)
UNDERWRITING AGREEMENT
DATED: September 16, 2005
TABLE OF CONTENTS
PAGE
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SECTION 1. Representations And Warranties By The Company....................... 6
SECTION 2. Sale And Delivery To Underwriters; Closing.......................... 10
SECTION 3. Covenants Of The Company........................................... 14
SECTION 4. Payment Of Expenses................................................. 17
SECTION 5. Conditions Of Underwriters' Obligations............................. 18
SECTION 6. Indemnification..................................................... 22
SECTION 7. Contribution........................................................ 25
SECTION 8. Representations, Warranties And Agreements To Survive Delivery...... 27
SECTION 9. Termination Of Agreement............................................ 27
SECTION 10. Default By One Or More Of The Underwriters......................... 28
SECTION 11. Arm's Length Relationship; No Fiduciary Duty....................... 29
SECTION 12. Notices............................................................ 29
SECTION 13. Parties............................................................ 30
SECTION 14. Governing Law, Submission For Jurisdiction......................... 30
SECTION 15. Judgement Currency................................................. 31
SECTION 16. Effect Of Headings................................................. 31
Schedule A: Names of Underwriters and Number of Initial Underwritten
Securities to be Purchases.......................................... 35
Exhibit A: Form of Opinion of Dutch Counsel to the Company..................... 36
Exhibit B: Form of Opinion of General Counsel to the Company................... 39
Exhibit C: Form of Opinion of U.S. Counsel to the Company...................... 40
Exhibit D: Form of Opinion of Counsel to the Indenture Trustee................. 43
Exhibit E: Form of Opinion of Dutch Tax Counsel to the Company................. 44
ING GROEP N.V.
(a limited liability company with corporate seat
in Amsterdam, The Netherlands)
$700,000,000
6.125% ING Perpetual Debt Securities
(Principal Amount of $25.00 per ING Perpetual Debt Security)
UNDERWRITING AGREEMENT
September 16, 2005
ING Financial Markets LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
UBS Securities LLC
As Representatives of the Several Underwriters named in Schedule A hereto
Ladies and Gentlemen:
ING Groep N.V., a limited liability company incorporated under the laws of
The Netherlands (the "COMPANY"), confirms its agreement (this "AGREEMENT") with
ING Financial Markets LLC ("ING FINANCIAL"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and UBS Securities LLC
("UBS") and each of the other Underwriters named in Schedule A hereto
(collectively, the "UNDERWRITERS," which term shall also include any underwriter
substituted as provided in Section 10 hereof), for whom ING Financial, ▇▇▇▇▇▇▇
▇▇▇▇▇ and UBS are acting as representatives (in such capacity, hereinafter
referred to as the "REPRESENTATIVES"), with respect to the sale by the Company
and the purchase by the Underwriters, acting severally and not jointly, of the
respective principal amount of the Company's 6.125% ING Perpetual Debt
Securities (principal amount of $25.00 per perpetual security) (the "INITIAL
UNDERWRITTEN SECURITIES") set forth opposite their names in Schedule A hereto
and (ii) the granting of an option to the Underwriters to purchase up to an
additional $20,000,000 aggregate principal amount of the Company's 6.125% ING
Perpetual Debt Securities (principal amount of $25 per perpetual security) (the
"OPTION UNDERWRITTEN SECURITIES"), as provided in Section 2 hereof. As used
herein, the term "PERPETUAL DEBT SECURITIES" shall include the Initial
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Underwritten Securities and, to the extent the option described in Section 2
hereof is exercised, all or any portion of any Option Underwritten Securities.
The Perpetual Debt Securities will be issued pursuant to the Subordinated
Debt Indenture, dated July 18, 2002 (the "SUBORDINATED INDENTURE"), between the
Company and The Bank of New York, as indenture trustee (the "INDENTURE
TRUSTEE"), as supplemented by the fourth supplemental indenture (the
"SUPPLEMENTAL INDENTURE" and, collectively, with the Subordinated Indenture, the
"INDENTURE") to be dated as of the date on which the Closing Time referred to in
Section 2(d) hereof occurs (such date, the "CLOSING DATE"), and a Calculation
Agency Agreement (the "CALCULATION AGENCY AGREEMENT"), to be dated as of the
Closing Date, between the Company and ING Financial Markets LLC, as calculation
agent.
The Company understands that the Underwriters propose to make a public
offering of the Perpetual Debt Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a shelf registration statement on Form F-3 (No. 333-84226)
covering the registration of various types of securities (the "SECURITIES")
under the Securities Act of 1933, as amended (the "1933 ACT"), including the
Perpetual Debt Securities. As used in this Agreement, the following terms have
the following meanings:
"IFRS" means International Financial Reporting Standards as issued by the
International Accounting Standard Board and as endorsed by the European
Commission.
"IFRS FINANCIAL INFORMATION" means collectively (i) the unaudited
condensed balance sheet information at January 1, 2005 and the unaudited
condensed consolidated income statement data for the year ended December 31,
2004 and for each of the four quarters in the year ended December 31, 2004,
incorporated by reference in the Registration Statement from the Company's
Report of Foreign Private Issuer on Form 6-K filed with the Commission on
September 14, 2005 (the "2004 COMPARABLE IFRS FINANCIAL INFORMATION") and (ii)
the unaudited condensed consolidated balance sheets at June 30, 2005 and January
1, 2005 and the unaudited consolidated profit and loss accounts for the
six-month periods ended June 30, 2005 and 2004, and the unaudited condensed
consolidated statement of cash flows for the six-month periods ended June 30,
2005 and 2004 incorporated by reference in the Registration Statement from the
Company's Report of Foreign Private Issuer on Form 6-K filed with the Commission
on August 12, 2005 (the "IFRS INTERIM 6-K"), in each case prepared on the basis
of IFRS at March 31, 2004 (stable platform).
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"PRELIMINARY PROSPECTUS" means any preliminary prospectus included in the
Registration Statement or filed with the Commission pursuant to Rule 424(a)
under the 1933 Act;
"PROSPECTUS" means the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement; and any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the 1933 Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the U.S. Securities Exchange
Act of 1934, as amended (the "1934 ACT"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the Perpetual Debt
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 ACT REGULATIONS"), including any documents incorporated by reference
therein as of the date of such filing; and
"REGISTRATION STATEMENT" means collectively the various parts of the
registration statement on Form F-3 (File No. 333-84226) in respect of the
Securities, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at the time
such part of the registration statement became effective, but excluding any
Statement of Eligibility on Form T-1, each as amended at the time such part of
the registration statement became effective, provided that if the Company files
an abbreviated registration statement pursuant to Rule 462(b) under the 1933 Act
(the "RULE 462(b) REGISTRATION STATEMENT"), then any reference herein to the
term Registration Statement shall be deemed to include such Rule 462(b)
Registration Statement; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual or other report of
the Company filed pursuant to Sections 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by reference
in the Registration Statement.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the
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Registration Statement, the Preliminary Prospectus or the Prospectus, as the
case may be.
SECTION 1. Representations And Warranties By The Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(d) hereof, and if applicable, as of each
Date of Delivery (as defined in Section 2(c) below) (in each case, a
"REPRESENTATION DATE"), and agrees with each Underwriter, as follows:
(a) Compliance with Registration Requirements. The Registration Statement
has been filed on an appropriate form under the 1933 Act. The Registration
Statement has become effective under the 1933 Act, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act,
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement and any post-effective
amendments thereto became effective and at each Representation Date, the
Registration Statement, and any amendments and supplements thereto complied and
will comply in all material respects with the applicable requirements of the
1933 Act and the 1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the "1939 ACT"), and the rules and regulations of the Commission under
the 1939 Act (the "1939 ACT REGULATIONS"), as applicable, and did not, and will
not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued nor the Prospectus as amended or supplemented, as of its date and at each
Representation Date, included or will include an untrue statement of a material
fact or omitted, or will omit, to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this subsection
shall not apply to statements in, or omissions from, the Registration Statement
or Prospectus, as amended or supplemented, made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus, as amended or supplemented.
Each Preliminary Prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations.
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(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 ACT REGULATIONS"),
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the Prospectus was
issued and at each Representation Date, did not, and will not, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(c) Independent Accountants. The independent auditors who certified the
financial statements included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations with
respect to the Company and its subsidiaries.
(d) Good Standing of the Company. The Company and each of its subsidiaries
classified as a "significant subsidiary" as defined under Rule 405 of the 1933
Act Regulations (each a "SIGNIFICANT SUBSIDIARY") has been duly incorporated
under the laws of The Netherlands or its respective jurisdiction of
incorporation, as the case may be, except to the extent that the failure to be
duly incorporated would not have a material adverse effect on the consolidated
financial position and consolidated results of operations of the Company and its
Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). The
Company and each of its Significant Subsidiaries is validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, is duly
qualified to do business and in good standing in each other jurisdiction in
which qualification is necessary for the ownership of its respective properties
or for the conduct of its respective businesses, except to the extent that the
failure to be validly existing, qualified or in good standing would not have a
Material Adverse Effect.
The Company has the power and authority necessary to own or hold its
properties, to enter into this Agreement, the Indenture and the Calculation
Agency Agreement, to perform its obligations under the Perpetual Debt
Securities, this Agreement, the Indenture and the Calculation Agency Agreement
and to conduct the businesses in which it is engaged, as described in the
Prospectus, except to the extent that the failure to do so would not have a
Material Adverse Effect.
(e) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered (if applicable under applicable law) by the Company.
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(f) Absence of Defaults and Conflicts; Absence of Further Requirements.
None of the Company or any of its Significant Subsidiaries is in violation of
the constituent documents, charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or such Significant Subsidiary is a party or
by which any of them may be bound, or to which any of the property or assets of
the Company or any such Significant Subsidiary is subject, except a default in
performance or observance of an obligation, agreement, covenant or condition
that does not have and is not likely to have a Material Adverse Effect. The
execution, delivery (if applicable under applicable law) and performance of the
Perpetual Debt Securities, this Agreement, the Indenture and the Calculation
Agency Agreement by the Company and the consummation of the transactions
contemplated hereby and 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, 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 Significant
Subsidiaries under any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
such Significant Subsidiary is a party or by which any of them is bound or to
which any of their property or assets is subject, except for any such conflict,
breach, violation or default which is waived or will not have (A) a material
adverse effect on the transactions contemplated by the Perpetual Debt
Securities, this Agreement, the Indenture and the Calculation Agency Agreement
or (B) a Material Adverse Effect; nor will such actions result in any violation
of the provisions of the Articles of Association of the Company, or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Significant Subsidiaries or
any of their properties or assets, except for a violation that will not have a
Material Adverse Effect; and, except such as have been obtained or required
under the 1933 Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations or state securities laws and the qualification of the Indenture
under the 1939 Act, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body or any stock
exchange authorities in The Netherlands or the United States is required to be
made or obtained by the Company in connection with the offering, issuance, and
sale of the Perpetual Debt Securities or the consummation of the transactions
contemplated by this Agreement or the execution, delivery and performance by the
Company of the Perpetual Debt Securities, the Indenture and the Calculation
Agency Agreement.
(g) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, as
amended or supplemented, except as otherwise stated therein, (i) there has not
been any change in the share capital or long-term debt of the Company or any of
8
its subsidiaries that is material to the consolidated financial position of the
Company and (ii) there has been no change, or, to the best of the knowledge of
the Company, there has been no development involving a prospective material
adverse change, in or affecting the general affairs, management, consolidated
financial position, consolidated shareholders' equity or consolidated results of
operations of the Company other than as set forth or contemplated in the
Registration Statement and the Prospectus, as amended or supplemented, that has
had, or is likely to have, a Material Adverse Effect.
(h) Investment Company Act. The Company is not, and after giving effect to
the offering and sale of the Perpetual Debt Securities and the application of
the net proceeds therefrom as described in the forepart of this Agreement and in
the Prospectus will not be, required to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 ACT").
(i) Absence of Proceedings. Except as disclosed in the Prospectus, there
is no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending to which the Company
or any of its Significant Subsidiaries is a party or of which any property or
assets of any of them is the subject which, if determined adversely to any of
them, are likely, individually or in the aggregate, to have a Material Adverse
Effect or could adversely affect the consummation of the transactions
contemplated by this Agreement or the performance by the Company of its
obligations hereunder, and, to the best of the knowledge of the Company, no such
proceedings are threatened or contemplated.
(j) Authorization of Indenture. The Indenture has been duly authorized by
the Company and, at the Closing Time and at each Date of Delivery, if
applicable, will have been executed and delivered by the Company and, assuming
due authorization, execution and delivery of the Indenture by the Indenture
Trustee, the Indenture will, at the Closing Time and at each Date of Delivery,
if applicable, be a valid and binding obligation of the Company enforceable
against it in accordance with its terms, except to the extent that 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 except to
the extent that enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) (the "BANKRUPTCY EXCEPTIONS"); and, at the Closing Time and at each Date of
Delivery, if applicable, the Indenture will have been duly qualified under the
1939 Act.
(k) Authorization of Perpetual Debt Securities. At the Closing Time and at
each Date of Delivery, if applicable, the Perpetual Debt Securities will have
been duly authorized and, when executed and authenticated in accordance
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with the provisions of the Indenture and delivered to the Underwriters against
payment of the consideration set forth in this Agreement, will be entitled to
the benefits of the Indenture, and will constitute valid and binding obligations
of the Company enforceable against it in accordance with their terms, except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
(l) Fair Summary. The statements set forth in the Prospectus Supplement
under the caption "Description of the ING Perpetual Debt Securities" insofar as
they purport to constitute a summary of the terms of the Perpetual Debt
Securities and the Indenture and under the captions "United States Taxation" and
"The Netherlands Taxation," insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate in all material
respects.
(m) Officer's Certificate. Any certificate signed by an officer of the
Company or any of its subsidiaries and delivered to the Underwriters or to
counsel for the Underwriters in connection with the offering of the Perpetual
Debt Securities shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby on the date of such
certificate.
(n) IFRS. The IFRS Financial Information has been prepared in accordance
with accounting policies based on IFRS as in effect (including interpretations
thereof) at March 31, 2004 (stable platform) in all material respects (using
various transitional provisions as disclosed under "Changes in Accounting
Policies" in the 2004 Comparable IFRS Financial Information), including the
principles relating to first time adoption of IFRS set out in, and permitted by,
IFRS 1. With the exception of IFRS No. 4 (Insurance Contracts), International
Accounting Standard ("IAS") No. 32 (Financial Instruments: Disclosure and
Presentation) and IAS No. 39 (Financial Instruments: Recognition and
Measurement), which were implemented starting January 1, 2005, financial
information included in the IFRS Interim 6-K has been prepared on a basis
consistent with the IFRS financial information included in the 2004 Comparable
IFRS Financial Information.
SECTION 2. Sale And Delivery To Underwriters; Closing.
(a) Securities. The several commitments of the Underwriters to purchase
the Perpetual Debt Securities shall be deemed to have been made on the basis of
the representations and warranties contained herein and shall be subject to the
terms and conditions set forth herein.
(b) Initial Underwritten Securities. The Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, at the purchase price set forth
below, the aggregate principal amount of Initial Underwritten Securities set
forth in Schedule A hereto opposite the name of such Underwriter, plus any
additional
10
principal amount of Perpetual Debt Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
The purchase price per Initial Underwritten Security to be paid by an
Underwriter of the Initial Underwritten Securities shall be an amount equal to
96.85% of the aggregate principal amount of Initial Underwritten Securities set
forth in Schedule A hereto opposite the name of such Underwriter (being equal to
the issue price of 100% less a gross spread of 3.15% representing a combined
sales concession, management commission and underwriting commission), plus
accrued interest, if any, from September 26, 2005; provided that in the case of
sales by any Underwriter of more than $250,000 aggregate principal amount of
Initial Underwritten Securities to a single purchaser, the purchase price per
Initial Underwritten Security to be paid by such Underwriter on such sale shall
be an amount equal to 98.00% of the principal amount of the Initial Underwritten
Securities so sold (being equal to the issue price of 100% less a gross spread
of 2.00% representing a combined sales concession, management commission and
underwriting commission).
(c) Option Underwritten Securities. The Company hereby grants an option to
the several Underwriters, severally and not jointly, to purchase up to
$20,000,000 aggregate principal amount of the Option Underwritten Securities at
a price per Option Underwritten Security equal to the price per Initial
Underwritten Security. The option granted hereunder may only be exercised for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities by the
Underwriters. The option granted hereunder may be exercised in whole or in part
from time to time within 30 days from the date of this Agreement upon notice by
the Representatives to the Company setting forth (i) the aggregate principal
amount of Option Underwritten Securities as to which the several Underwriters
are exercising the option, (ii) the names and denominations in which the Option
Underwritten Securities are to be registered and (iii) the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "DATE OF DELIVERY") shall be
determined by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, unless otherwise agreed upon by the Representatives and the
Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
agrees to purchase that proportion of the aggregate principal amount of Option
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in Schedule A hereto bears to the aggregate
principal amount of Initial Underwritten Securities, subject to such adjustments
as the Representatives, in their discretion, may make to eliminate any sales or
purchases of a fractional aggregate principal amount of Option Underwritten
Securities plus any additional
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principal amount of Perpetual Debt Securities which such Underwriters may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(d) Payment. Payment of the purchase price for, and delivery of,
certificates for the Initial Underwritten Securities shall be made at the New
York offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or at such other place as shall be agreed
upon by the Representatives and the Company, at 10:00 a.m. (New York City time)
on the sixth business day after the date hereof (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being herein called
"CLOSING TIME"). In addition, in the event that the Underwriters have exercised
their option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such Option
Underwritten Securities, shall be made at the above-mentioned offices of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representatives and the Company, on the relevant Date of Delivery as specified
in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
such persons designated by the Representatives for the respective accounts of
the Underwriters of one or more certificates in global form for the Perpetual
Debt Securities to be purchased by them. It is understood that each Underwriter
has authorized the Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Perpetual Debt
Securities which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and UBS, individually
and not as representatives of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Perpetual Debt Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(e) Denominations; Registration. Certificates for the Perpetual Debt
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least one business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The Perpetual
Debt Securities will be made available for examination and packaging by the
Representatives in the City of New York no later than 10:00 a.m. (New York City
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
(f) Foreign Selling Restrictions. Each Underwriter represents and agrees
that (i) it has complied and will comply with all applicable provisions of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") of Great Britain with
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respect to anything done by it in relation to the Perpetual Debt Securities in,
from or otherwise involving the United Kingdom; and (ii) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of the Perpetual Debt Securities or any investments
representing the Perpetual Debt Securities in circumstances in which Section
21(1) of the FSMA does not apply to it.
In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a "RELEVANT MEMBER STATE"), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the "RELEVANT IMPLEMENTATION DATE") it has not made and will not make an offer
of Perpetual Debt Securities to the public in that Relevant Member State prior
to the publication of a prospectus in relation to the Perpetual Debt Securities
which has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Perpetual Debt Securities in that
Relevant Member State at any time: (a) to legal entities which are authorized or
regulated to operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in securities; (b) to any
legal entity which has two or more of (i) an average of at least 250 employees
during the last financial year; (ii) a total balance sheet of more than
(euro)43,000,000 and (iii) an annual net turnover of more than (euro)50,000,000,
as shown in its last annual or consolidated accounts; or (c) in any other
circumstances which do not require the publication by the Company of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Perpetual
Debt Securities to the public" in relation to any Perpetual Debt Securities in
any Relevant Member State means the communication to persons in any form and by
any means of sufficient information on the terms of the offer and the Perpetual
Debt Securities to be offered so as to enable an investor to decide to purchase
or subscribe the Perpetual Debt Securities, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member
State and the expression "PROSPECTUS DIRECTIVE" means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
With respect to any other jurisdiction outside of the United States, each
Underwriter represents and agrees that it has not offered or sold and will not
offer or sell any of the Perpetual Debt Securities in any jurisdiction, except
under
13
circumstances that resulted, or will result, in compliance with the applicable
rules and regulations of such jurisdiction.
SECTION 3. Covenants Of The Company.
The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b) hereof, will:
(i) Prepare the Prospectus as amended or supplemented in relation to
the Perpetual Debt Securities in a form which shall be provided to the
Representatives for their review and comment prior to any filing with the
Commission under Rule 424(b) of the 1933 Act, and to file such Prospectus
pursuant to Rule 424(b) of the 1933 Act no later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be
required by Rule 424(b) of the 1933 Act; and
(ii) notify the Representatives immediately, and confirm the notice
in writing, (A) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (B) of the receipt of any
comments from the Commission, (C) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information and (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Perpetual Debt Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceeding for any of such
purposes. The Company will make reasonable efforts to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Perpetual Debt Securities,
the Company will give the Representatives notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act), or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise. It will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may
14
be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to the Representatives upon request, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus as amended or supplemented is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus as amended or
supplemented as such Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations with respect to the
offer of the Perpetual Debt Securities so as to permit the completion of the
distribution of the Perpetual Debt Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Perpetual Debt Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
15
(f) Blue Sky Qualifications. The Company will use all reasonable efforts,
in cooperation with the Underwriters, to qualify the Perpetual Debt Securities
for offering and sale under the applicable securities laws of such states and
other domestic or foreign jurisdictions as the Representatives may reasonably
request and to maintain such qualifications in effect for a period of one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement or, if less, such other period as may be necessary
to complete the distribution of the Perpetual Debt Securities; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Perpetual Debt
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Use of Proceeds. The Company will use or cause to be used the net
proceeds received from the sale of the Perpetual Debt Securities in the manner
specified in the Prospectus, as amended or supplemented, under "Use of
Proceeds."
(i) Listing. The Company will use all reasonable efforts to list the
Perpetual Debt Securities on the New York Stock Exchange.
(j) Ratings. The Company shall take all reasonable action necessary to
enable Standard & Poor's Ratings Service, a division of McGraw Hill, Inc.
("S&P"), and ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S") to provide their
respective ratings of the Perpetual Debt Securities.
(k) Clearance and Settlement. The Company will cooperate with the
Underwriters and take all reasonable action necessary if requested by the
Representatives to permit the Perpetual Debt Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company
("DTC"), Euroclear Bank S.A./N.V., as operator of the Euroclear System
("EUROCLEAR"), and Clearstream Banking, societe anonyme, Luxembourg
("CLEARSTREAM").
16
(l) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus as amended
or supplemented, the Company will not, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any option
for sale of, or otherwise dispose of, any Perpetual Debt Securities or any
security substantially similar to the Perpetual Debt Securities in the United
States.
(m) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment Of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, copying and delivery to the Underwriters of this
Agreement, the Indenture, the Calculation Agency Agreement and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Perpetual Debt Securities (other than fees of
counsel for the Underwriters related thereto), (iii) the preparation, issuance
and delivery of the certificates for the Perpetual Debt Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants, experts and other advisors, (v) the qualification of the Perpetual
Debt Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Blue Sky survey and any supplement thereto,
(vi) the printing and delivery to the Underwriters of copies of each Preliminary
Prospectus and of the Prospectus and any amendment or supplement thereto, (vii)
the fees and expenses of the Indenture Trustee, including the reasonable fees
and disbursements of counsel for the Indenture Trustee, (viii) any fees payable
in connection with the rating of the Perpetual Debt Securities, (ix) the fees
and expenses incurred in connection with the listing of the Perpetual Debt
Securities on the New York Stock Exchange and (x) the fees and expenses incurred
in connection with the approval by DTC, Euroclear and Clearstream of the
Perpetual Debt Securities for clearance through their respective systems.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5(p) and Section
9(a) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for the Underwriters.
17
SECTION 5. Conditions Of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company or any
affiliate or subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company in all material respects of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus as amended or supplemented with respect to the
Perpetual Debt Securities shall have been filed with the Commission in
accordance with Rule 424(b) under the 1933 Act within the applicable time period
prescribed for such filing by the 1933 Act Regulations and in accordance with
Section 3(a) hereof.
(b) Opinion of Dutch Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the Company, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit A hereto. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
certificates of public officials and the opinion may contain other customary or
appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(c) Certificate Relating to Financial Statements. The Underwriters shall
have received on the date hereof, and on the Closing Date, a certificate, dated
as of the date hereof and the Closing Date, respectively, and signed by an
executive officer of the Company relating to the financial statements and
certain other financial data with respect to the six-month periods ended June
30, 2005 and 2004 and with respect to the period from July 1, 2005 to September
16, 2005.
(d) Opinion of General Counsel of the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of Jan-▇▇▇▇▇▇ ▇▇▇▇, the General Counsel of the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
to the effect set forth in Exhibit B hereto.
18
(e) Opinion of U.S. Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
to the effect set forth in Exhibit C hereto. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
certificates of public officials. Such opinion also may contain other customary
or appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance satisfactory to the Underwriters.
(g) Opinion of Counsel for the Indenture Trustee. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Indenture Trustee, in form
and substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit D hereto and to such further
effect as counsel for the Underwriters may reasonably request.
(h) Opinion of Dutch Tax Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of KPMG Meijburg & Co., special Dutch tax counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such opinion for each of the other Underwriters to the
effect set forth in Exhibit E hereto and to such further effect as counsel for
the Underwriters may reasonably request. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
certificates of public officials. Such opinion may also contain other customary
appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(i) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, and the
Representatives shall have received certificates of an executive of the Company,
19
dated as of the Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
hereof were true and correct when made and are true and correct with the same
force and effect as though expressly made at and as of the Closing Time, (iii)
the Company shall have complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such officer's knowledge, no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(j) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Representatives shall have received from each of Ernst & Young
Accountants and KPMG Accountants N.V. a letter, dated as of the date hereof, in
form and substance reasonably satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus, including reports incorporated by reference
therein, in each case as specified by counsel for the Underwriters.
(k) Bring-down Comfort Letters. At the Closing Time, if applicable, the
Representatives shall have received from each of Ernst & Young Accountants and
KPMG Accountants N.V. a letter, dated as of the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(j) of this Section, except that the specified date referred to shall be a date
not more than five business days prior to the Closing Time.
(l) Maintenance of Rating. At the Closing Time, the Perpetual Debt
Securities shall be rated at least "A2" by Moody's and "A-" by S&P, and the
Company shall have delivered to the Representatives a letter dated on, or prior
to, the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representatives, confirming that the Perpetual Debt
Securities have such ratings. Since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to any securities of the
Company by any "nationally recognized statistical rating agency," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act,
and no such organization shall have publicly announced that it has under
surveillance or review, that does not indicate an improvement, its rating of any
securities of the Company.
(m) Approval of Listing. At the Closing Time, the Perpetual Debt
Securities shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance, and approved for settlement through
DTC, Euroclear and Clearstream.
20
(n) Over-Allotment Option. In the event that the Underwriters exercise
their option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, the Representatives shall have received:
(i) A certificate, dated such Date of Delivery, of an executive of
the Company, confirming that the certificates delivered at the Closing
Time pursuant to Section 5(c) and 5(i) hereof remain true and correct as
of such Date of Delivery.
(ii) The written opinion, dated such Date of Delivery, of De Brauw
Blackstone Westbroek N.V., Dutch counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(iii) The written opinion, dated such Date of Delivery, of
Jan-▇▇▇▇▇▇ ▇▇▇▇, General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(iv) The written opinion, dated such Date of Delivery, of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(e) hereof.
(v) The written opinion, dated such Date of Delivery, of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Underwriters, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(f) hereof.
(vi) The written opinion, dated such Date of Delivery, of KPMG
Meijburg & Co., special Dutch tax counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(h) hereof.
(vii) A letter, dated such Date of Delivery, from each of Ernst &
Young Accountants and KPMG Accountants N.V., in form and substance
satisfactory to the Representatives, substantially in the same form and
substance as the letters furnished to the Representatives pursuant to
21
Section 5(k) hereof, except that the "specified date" on the letters
furnished pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(viii) A letter, dated such Date of Delivery, from each of Moody's
and S&P, or other evidence satisfactory to the Representatives, confirming
that the Perpetual Debt Securities are rated at least "A2", by Moody's and
"A-" by S&P and that since the date of this Agreement, no downgrading in,
or withdrawal of, the rating assigned to the Perpetual Debt Securities or
any other securities of the Company by any "nationally recognized
statistical rating agency" as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act has occurred, and no such
organization has publicly announced that it has under surveillance or
review, that does not indicate an improvement, its rating of the Perpetual
Debt Securities or any other securities of the Company.
(o) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Perpetual Debt Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained. All proceedings taken by
the Company in connection with the issuance and sale of the Perpetual Debt
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, this Agreement (or with respect to the Underwriters' exercise of
any applicable overallotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by the Representatives by notice to the Company at
any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof and except that Sections 1, 6
and 8 hereof shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act (each an "INDEMNIFIED PERSON"), as follows:
22
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(b) hereof, the fees and disbursements of
counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the indemnity set forth in this Section 6(a) shall
not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission
made in reliance upon, and in conformity with, written information furnished to
the Company by any Underwriter directly or through the Representatives expressly
for use in the Registration Statement (or any amendment thereto), or any
Preliminary Prospectus or the Prospectus as amended or supplemented, or any
amendment or supplement thereto and, provided, further, that the Company shall
not be liable to any Indemnified Person under this Section 6(a) with respect to
the Registration Statement (or any amendment thereto), or any Preliminary
Prospectus or the Prospectus as amended or supplemented, or any amendment or
supplement thereto to the extent that any such loss, claim, damage or liability
of such Indemnified Person results from the fact that such Indemnified Person or
the
23
Underwriter it controls sold Perpetual Debt Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
amended or supplemented in any case where such delivery is required by the 1933
Act if the Company has previously furnished copies thereof in sufficient
quantity to such Indemnified Person or the Underwriter it controls and the loss,
claim, damage or liability of such Indemnified Person results from an untrue
statement or omission of a material fact contained in a Preliminary Prospectus
which was identified in writing prior to the date hereof to such Indemnified
Person or the Underwriter it controls and corrected in the Prospectus (as then
amended or supplemented).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter, severally in proportion to its respective purchase obligation and
not jointly, agrees to indemnify and hold harmless the Company, its respective
directors or Supervisory or Executive Board members, each of the officers of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company, provided that if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying party receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption
24
on the ground that there may be legal defenses available to them which are
different from or in addition to those available to such indemnifying party. If
an indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action.
An indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party be liable for fees
and expenses of more than one counsel (in addition to any one firm of local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) hereof effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in circumstances
under which the indemnification provided for in Section 6 hereof is for any
reason held to be unenforceable by an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
25
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Perpetual Debt Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Perpetual
Debt Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Perpetual Debt Securities pursuant to this Agreement (before deducting expenses
but after deducting the total underwriting commission received by the
Underwriters) received by the Company and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the
Prospectus as amended or supplemented, bear to the aggregate initial public
offering price of the Perpetual Debt Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such 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 by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price
26
at which the Perpetual Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director or Supervisory or Executive Board member of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of
Initial Underwritten Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties And Agreements To Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of their
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Perpetual Debt Securities to the Underwriters.
SECTION 9. Termination Of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery (or with respect to the Underwriters' exercise
of any applicable overallotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, as amended or supplemented, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if
there has occurred any material adverse change in the international financial
markets or the financial markets in the United States or The Netherlands, or any
outbreak of hostilities or escalation thereof
27
affecting the United States or The Netherlands or other calamity or crisis, or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is, in the judgment of the Representatives (after a discussion
with the Company to the extent practicable), so material and adverse as to make
it impracticable or inadvisable to market the Perpetual Debt Securities or to
enforce contracts for the sale of the Perpetual Debt Securities on the terms and
in the manner contemplated in the Prospectus, as amended or supplemented, (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission, the New York Stock Exchange Euronext Amsterdam N.V.
or the Luxembourg Stock Exchange, or if trading generally on the American Stock
Exchange, the New York Stock Exchange, the Nasdaq National Market, Euronext
Amsterdam N.V. or the London Stock Exchange has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any such exchanges or by such system or by order
of the Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, (iv) if a banking moratorium has been declared by either Federal, New
York, or Netherlands authorities or (v) if there has occurred a change or an
official announcement by a competent authority of a forthcoming change in Dutch
taxation materially adversely affecting the Company or the imposition of
exchange controls by the United States or The Netherlands.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default By One Or More Of The Underwriters.
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Perpetual Debt
Securities which it or they are obligated to purchase under this Agreement (the
"DEFAULTED SECURITIES"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Perpetual Debt Securities to be
purchased hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in
28
the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters,
or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Perpetual Debt Securities to be
purchased hereunder, this Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Company to
sell, such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of this Agreement or (ii) in the case of a Date of Delivery after
the Closing Time, a termination of the obligations of the Underwriters and the
Company with respect to the related Option Underwritten Securities, as the case
may be, either the Representatives or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements. As used herein, the term "UNDERWRITER" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Arm's Length Relationship; No Fiduciary Duty. The Company
acknowledges that in connection with the offering of the Perpetual Debt
Securities: (i) the Underwriters have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company, (ii) the Underwriters owe the
Company only those duties and obligations set forth in this Agreement and (iii)
the Underwriters may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty
in connection with the offering of the Perpetual Debt Securities.
SECTION 12. Notices. All notices, requests, statements and other
communications hereunder shall be in writing and shall be delivered or sent by
mail, messenger or any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill ▇▇▇▇▇,
Attention: Global Origination Counsel, Facsimile No. ▇-▇▇▇-▇▇▇-▇▇▇▇ and UBS,
Attention: Fixed Income Syndicate, Facsimile No. ▇-▇▇▇-▇▇▇-▇▇▇▇; and notices to
the Company shall be directed to ING Groep N.V. at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Attention: General Counsel, Facsimile No. 31-
29
▇▇-▇▇▇▇▇▇▇. Any such notice, request, statement or communication shall be
effective upon receipt thereof.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors and Supervisory Board members and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and
Supervisory Board members or the equivalent and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Perpetual Debt Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. Governing Law, Submission For Jurisdiction.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
(b) Submission to Jurisdiction. Each of the parties hereto irrevocably (i)
agrees that any legal suit, action or proceeding against the Company brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any Federal court located in the State of New York, (ii) waives,
to the fullest extent it may effectively do so, any objection which it may now
or hereafter have to the laying of venue of any such proceeding and (iii)
submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, 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 which is instituted in any New York court or in any competent court in
The Netherlands. The Company has appointed Corporation Service Company, Albany,
New York, as its authorized agent (the "AUTHORIZED AGENT") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York court
by any Underwriter or by any person who controls any Underwriter, expressly
consent to
30
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon such
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
SECTION 15. Judgement Currency. In respect of any judgment or order given
or made for any amount due hereunder that is expressed and paid in a currency
(the "JUDGMENT CURRENCY") other than United States dollars, the Company will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars. In
the event that any such Underwriter, as a result of any variation as noted in
(i) or (ii) above, recovers an amount of United States dollars on conversion of
a sum paid in a judgment currency which amount is in excess of the judgment or
order given or made in United States dollars, such Underwriter shall remit such
excess to the Company.
SECTION 16. Effect Of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
ING GROEP N.V.
By: /s/ Johannes Wolvius
-------------------------
Name: Johannes Wolvius
Title: Authorized Officer
32
Confirmed and Accepted,
as of the date first above written:
ING FINANCIAL MARKETS LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
UBS SECURITIES LLC
Acting severally on behalf of
themselves and as Representatives of
the other Underwriters named in Schedule A hereto.
By: ING FINANCIAL MARKETS LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
By: UBS SECURITIES LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
Debt Capital Markets
33
By: UBS SECURITIES LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
Fixed Income Syndicate
34
SCHEDULE A
Principal Amount of
Perpetual Debt
Name of Underwriter Securities
--------------------------- -------------------
ING Financial Markets LLC.............................................. US$107,333,350
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated..................... US$107,333,350
UBS Securities LLC..................................................... US$107,333,325
Citigroup Global Markets Inc........................................... US$107,333,325
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................................... US$107,333,325
Wachovia Capital Markets, LLC.......................................... US$107,333,325
▇▇▇▇▇▇▇, Sachs & Co.................................................... US$14,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................................. US$14,000,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc............................................... US$1,575,000
KeyBanc Capital Markets, a division of McDonald Investments Inc. ...... US$1,575,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated................................... US$1,575,000
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc.................................................. US$1,575,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co..................................................... US$1,575,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.................................................. US$1,575,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc........................................ US$1,575,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.............................................. US$1,575,000
TD Waterhouse Investor Services, Inc................................... US$1,575,000
▇▇▇▇▇ Fargo Securities, LLC............................................ US$1,575,000
Advest, Inc............................................................ US$875,000
35
Principal Amount of
Perpetual Debt
Name of Underwriter Securities
--------------------------- -------------------
BB&T Capital Markets, a division of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇▇, Inc...................................................... US$875,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated..................................... US$875,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co..................................................... US$875,000
Fifth Third Securities, Inc............................................ US$875,000
H&R Block Financial Advisors, Inc...................................... US$875,000
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc....................................... US$875,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC............................................ US$875,000
▇. ▇. ▇▇▇▇ & Associates, Inc........................................... US$875,000
Mesirow Financial, Inc................................................. US$875,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc........................................... US$875,000
▇▇▇▇ ▇▇▇▇ & Co., Inc................................................... US$875,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated............................... US$875,000
▇.▇. ▇▇▇▇▇▇▇ and Company............................................... US$875,000
TOTAL.................................................................. US$700,000,000
36
EXHIBIT A
FORM OF OPINION OF DUTCH COUNSEL TO THE COMPANY
1. The Company has been duly incorporated and is validly existing as a
legal entity in the form of a public company with limited liability (naamloze
vennootschap) under the law of The Netherlands.
2. The Company has full corporate power and authority to execute and
deliver the Agreements, to issue, execute and deliver the Perpetual Debt
Securities and to perform its obligations under the Agreements and the Perpetual
Debt Securities.
3. The Company has taken all necessary corporate action to authorise the
issuance of the Perpetual Debt Securities, the execution and delivery by the
Company of the Agreements and the performance by the Company of its obligations
under the Perpetual Debt Securities and the Agreements, except for the corporate
action as specified above under [ ] and it being noted that the general meeting
of shareholders of the Company, or such other corporate body as referred to
above under [ ] (with the exception of the board of executive directors) may
refuse to take such action.
4. The choice of New York law as the law governing the Agreements (with
the exception of Article 7 of the Supplemental Indenture) and the Perpetual Debt
Securities, is recognised under Dutch law by the courts of The Netherlands, and,
accordingly, under Dutch law (i) New York law determines the validity, binding
effect and enforceability of the Agreements (with the exception of Article 7 of
the Supplemental Indenture) and of the Perpetual Debt Securities and (ii) the
courts of The Netherlands are legally bound to apply New York law to the
Agreements (with the exception of Article 7 of the Supplemental Indenture) and
the Perpetual Debt Securities and to determine the validity and binding nature
and enforceability thereof by so applying New York law.
5. Under Dutch law, in a proceeding in a court of the State of New York,
New York law determines the validity, binding effect and enforceability against
the Company of the submission by the Company to the jurisdiction of the courts
of the State of New York as provided in the Agreements and, under Dutch law, New
York law determines the effectiveness of the service of process upon the Company
as provided in the Agreements in any legal action or proceeding in a New York
court as provided in the Agreements.
6. Each of the Agreements and the Perpetual Debt Securities have been duly
executed and delivered by the Company.
37
7. The choice of Dutch law as the law governing Article 7 of the
Supplemental Indenture is recognized under Dutch law as valid and binding and
Article 7 of the Supplemental Indenture is valid, binding and enforceable in
accordance with its terms. Accordingly, the Perpetual Debt Securities will rank
pari passu, without preference, among themselves and will be subordinated as
provided for in Section 7.01 of the Supplemental Indenture to Senior Debt as
defined in the Supplemental Indenture.
8. The Company is not entitled to any sovereign immunity from any legal
proceedings in The Netherlands to enforce the Agreements or the Perpetual Debt
Securities or any liability or obligation of the Company arising thereunder.
9. The execution and delivery by the Company of the Agreements and the
Perpetual Debt Securities and the performance by the Company and the other
parties thereto of their respective obligations under the Agreements and the
Perpetual Debt Securities do not conflict with or result in a breach of any
provision of Dutch law or the Company's Articles of Association.
10. No license, authorisation, permission or consent from any public
authority or governmental agency of The Netherlands is required under Dutch law
for the valid authorisation, execution and the delivery by the Company and the
other parties thereto of the Agreements, for the performance by the Company and
the other parties thereto of their respective obligations under the Agreements
or for the authorisation, execution and delivery by the Company of the Perpetual
Debt Securities or the performance by the Company of its obligations under the
Perpetual Debt Securities, except as may be required in connection with an
amendment to the Company's Articles of Association increasing the authorised
capital of the Company allowing it to issue Ordinary Shares in connection with
the performance by the Company under Article 4 of the Supplemental Indenture and
the Perpetual Debt Securities.
11. In order to ensure the legality, validity, enforceability or
admissibility in evidence of the Agreements or the Perpetual Debt Securities, it
is not necessary that they be filed or recorded with any public office in The
Netherlands.
12. No exchange control regulations are currently in force in The
Netherlands and no authorisation, approval, consent or license from any
governmental authority or agency of or in The Netherlands is required for the
payment by the Company of any amounts under the Perpetual Debt Securities,
except for notifications with De Nederlandsche Bank N.V. (Dutch Central Bank) as
may be required in the Act on Financial Relations with Foreign Countries (Wet
financiele betrekkingen buitenland 1994).
13. The Company can ▇▇▇ and be sued in its own name.
38
14. It is not necessary that The Bank of New York, acting in its capacity
as trustee under the Indenture, should be licensed, qualified or otherwise
entitled to carry on business in The Netherlands (i) in order to enable it to
enforce its rights, or exercise any power, duty or obligation conferred or
imposed on it, under the Indenture or (ii) by reason of the execution and
delivery of the Indenture by it or of the performance by it of its obligations
thereunder.
For purposes of the opinion of Dutch counsel, the following definition has
been employed:
"Agreements": the Underwriting Agreement, the Indenture and the
Calculation Agency Agreement.
39
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY
1. The execution and delivery by the Company of the Perpetual Debt
Securities, the Underwriting Agreement, the Indenture and the Calculation Agency
Agreement and the performance by the Company and the other parties thereto of
their respective obligations under the Perpetual Debt Securities, the
Underwriting Agreement, the Indenture and the Calculation Agency Agreement, 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, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company under any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the properties or
assets of the Company is subject, except for any such conflict, breach,
violation or default which is waived or will not have (A) a material adverse
effect on the transactions contemplated by the Underwriting Agreement, the
Indenture and the Calculation Agency Agreement or (B) a Material Adverse Effect;
nor will such actions result in any violation of the provisions of the Articles
of Association of the Company, or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company
or any of the properties or assets of the Company, except for a violation that
will not have a Material Adverse Effect.
2. To my knowledge, except as disclosed in the Prospectus, as amended or
supplemented, there are no actions, suits or proceedings before or by any
government, governmental instrumentality or court, either domestic or foreign,
which involve the Company or any property or assets of the Company, which if
determined adversely to the Company are likely, individually or in the
aggregate, to have a Material Adverse Effect or adversely affect the
consummation of the transactions contemplated by the Underwriting Agreement, the
Indenture and the Calculation Agency Agreement or the performance by the Company
of its obligations under the Perpetual Debt Securities, the Underwriting
Agreement, the Indenture and the Calculation Agency Agreement and, to the best
of my knowledge, no such proceedings are pending or threatened.
40
EXHIBIT C
FORM OF OPINION OF U.S. COUNSEL TO THE COMPANY
1. The Indenture has been qualified under the 1939 Act. The Indenture
constitutes a valid and binding agreement of the Company (except that we express
no opinion with respect to Article 7 (Subordination) of the Supplemental
Indenture), enforceable against the Company in accordance with its terms subject
to the Bankruptcy Exceptions. The choice of Dutch law as the law expressed to
govern Article 7 (Subordination) of the Supplemental Indenture will be
recognized under the laws of New York and should be upheld as a valid choice of
law by New York courts and applied by such courts in proceedings relating to the
obligations of the parties under such agreement, unless the application of Dutch
law would contravene the public policy of the State of New York or US federal
law.
2. The Calculation Agency Agreement has been duly executed and delivered
by the Company insofar as New York law is concerned and constitutes a valid and
binding agreement of the Company, enforceable against the Company by the other
parties thereto in accordance with its terms subject to the Bankruptcy
Exceptions.
3. The Perpetual Debt Securities have been duly executed and delivered by
the Company insofar as New York law is concerned and constitute valid and
binding obligations of the Company (except that we express no opinion with
respect to Article 7 (Subordination) of the Supplemental Indenture), enforceable
against the Company by the other parties thereto in accordance with their terms
subject to the Bankruptcy Exceptions.
4. The Company is not required to be registered as an "investment company"
under the 1940 Act.
5. All regulatory consents, authorizations, approvals and filings required
to be obtained or made by the Company under the Federal laws of the United
States and the laws of the State of New York for the issuance and sale of the
Perpetual Debt Securities by the Company and the compliance by the Company with
the provisions of the Underwriting Agreement, Indenture and Calculation Agency
Agreement have been obtained or made; provided, however, that in this paragraph
5, we express no opinion with respect to State securities laws.
6. The statements in the Prospectus Supplement under the caption
"Description of the ING Perpetual Debt Securities" and in the Base Prospectus
under the caption "Description of Debt Securities We May Offer," insofar as such
statements purport to constitute a summary of the terms of the Perpetual Debt
41
Securities and the Indenture, and, in the Base Prospectus under the caption
"ERISA Considerations," insofar as such statements purport to constitute a
summary of the matters described therein, constitute accurate summaries thereof
in all material respects.
7. Our opinion set forth in Exhibit 8.1 of the Registration Statement, the
statements contained in the Base Prospectus under the caption "Taxation --
Material Tax Consequences of Owning Our Debt Securities -- United States
Taxation" and the statements contained in the Prospectus Supplement under the
caption "United States Taxation", insofar as they refer to statements of United
States Federal tax law or legal conclusions relating thereto, are accurate
summaries of the U.S. federal income tax matters described therein subject to
the limitations set forth therein.
8. The Registration Statement (as of its date of effectiveness) and the
Prospectus (as of its date) (other than the reports of experts pertaining to the
financial statements and the financial statements and other financial
information contained therein, as to which we express no opinion) appeared on
their face to be appropriately responsive, in all material respects, with the
applicable requirements of the 1933 Act, the 1939 Act, the 1933 Act Regulations
and the 1939 Act Regulations.
9. Each document filed with the Commission pursuant to the 1934 Act (other
than reports on Form 6-K or reports of experts pertaining to the financial
statements and the financial statements and other financial information
contained in any document, as to which we express no opinion) that is
incorporated by reference in the Prospectus, when so filed, complied as to form
in all material respects with the requirements of the particular form of the
Commission upon which it was filed.
10. The execution and delivery of the Perpetual Debt Securities,
Underwriting Agreement, Indenture and Calculation Agency Agreement, consummation
of the transactions contemplated thereby and the compliance with the terms
thereof do not and will not violate any existing applicable New York or federal
law, rule or regulation; provided, however, that, for purposes of this paragraph
10, we express no opinion with respect to state securities laws, other antifraud
laws and fraudulent transfer laws; provided, further, that insofar as
performance by the Company of its obligations under the Perpetual Debt
Securities, Indenture and Calculation Agency Agreement is concerned, we express
no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditor's rights.
11. To our knowledge, there is no pending or threatened action, suit or
proceeding before any New York or U.S. federal court or governmental agency,
authority or body involving the Company or any of its consolidated subsidiaries
42
of a character required to be disclosed in the Prospectus that is not adequately
disclosed as required.
12. Assuming that the Underwriting Agreement, Indenture and Calculation
Agency Agreement have been duly authorized, executed and delivered by the
Company insofar as Netherlands law is concerned, then under the laws of the
State of New York relating to personal jurisdiction, the Company has, pursuant
to Section 13(b) of the Underwriting Agreement, Section 113 of the Indenture and
Section 12 of the Calculation Agency Agreement, 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 the Underwriting Agreement, Indenture and Calculation
Agency Agreement or the transactions contemplated thereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any such court,
and has validly and irrevocably appointed an authorized agent for the purpose
described in the Underwriting Agreement, Indenture and Calculation Agency
Agreement; and service of process effected on such agent in the manner set forth
in the Underwriting Agreement, Indenture and Calculation Agency Agreement will
be effective to confer valid personal jurisdiction over the Company.
13. Nothing has come to our attention that would lead us to believe that
any part of the Registration Statement (except for financial statements and
schedules and other financial data included therein, as to which we have not
been asked to comment), when such part became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented (except for financial statements
and schedules and other financial data included therein, as to which we have not
been asked to comment), as of the date of such Prospectus, as amended or
supplemented, and at the date hereof, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE INDENTURE TRUSTEE
1. The Indenture Trustee is a New York banking corporation duly
incorporated and validly existing under the laws of the State of New York.
2. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform the Indenture and has taken all necessary corporate action
to authorize the execution, delivery and performance of the Indenture.
3. The Indenture constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against it in accordance with its terms, except
to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
4. The execution, delivery and performance of the Indenture by the
Indenture Trustee do not and will not conflict with or result in a breach of any
existing applicable New York or federal law, rule or regulation, the Indenture
Trustee's Organization Certificate, the Indenture Trustee's By-laws, the terms
of any indenture or other agreement or instrument to which the Indenture Trustee
is a party or is bound or any judgment, order or decree applicable to the
Indenture Trustee of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Indenture Trustee.
5. No consent, authorization, approval or filing of, registration with or
notice to any Federal or New York State banking authority is required for the
execution, delivery or performance of the Indenture by the Indenture Trustee.
6. Each of the Indenture and the Calculation Agency Agreement has been
duly executed and delivered by the Indenture Trustee.
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EXHIBIT E
FORM OF OPINION OF DUTCH TAX COUNSEL TO THE COMPANY
1. We hereby confirm (i) our opinion set forth in Exhibit 8.2 of the
Registration Statement in respect of the sub-section of the Base Prospectus
captioned "Taxation--Material Tax Consequences of Owning Our Debt Securities
--Netherlands Taxation" and (ii) that, subject to the qualifications set forth
therein, the discussions set forth in (A) the sub-section of the Base Prospectus
captioned "Taxation--Material Tax Consequences of Owning Our Debt Securities
--Netherlands Taxation" and (B) the section of the Prospectus Supplement
captioned "The Netherlands Taxation" are accurate summaries of the Dutch tax
matters described therein.
2. The Company is not required under the laws of The Netherlands or
regulations of any tax authority in The Netherlands to deduct or withhold any
amount for or on account of tax from any payment to be made on the Perpetual
Debt Securities and no stamp duties or similar tax are or will be payable in The
Netherlands in connection with the offering of the Perpetual Debt Securities or
the execution of the Perpetual Debt Securities, the Underwriting Agreement, the
Indenture or the Calculation Agency Agreement, except for the tax due by the
Company upon any issuance of the Company's ordinary shares pursuant to the
Alternative Interest Satisfaction Mechanism (as defined in the Prospectus
Supplement).
45