EXHIBIT 1.1
DEUTSCHE TELEKOM INTERNATIONAL FINANCE B.V.
DEUTSCHE TELEKOM AG
Debt Securities
-------------------
Form of Underwriting Agreement
[Date]
To the Representatives of the
several Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time Deutsche Telekom International Finance B.V., a
private company with limited liability incorporated under the laws of The
Netherlands, with its corporate seat at Amsterdam, The Netherlands (the
"Company"), and Deutsche Telekom AG, a private law stock corporation organized
under the laws of the Federal Republic of Germany ("Telekom" or the "Guarantor")
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex 1 hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein to issue and sell to the firms named in Schedule 1 to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of their debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to either the indenture among the Company, the Guarantor and
Citibank, N.A., as Trustee (the "Finance Indenture") or the indenture between
Telekom and Citibank, N.A., as Trustee (the "Telekom Indenture" and together
with the Finance Indenture, the "Indentures"). Pursuant to the Finance
Indenture, the Guarantor will guarantee the payment of all amounts owing by the
Company with respect to the Securities and a guarantee of the Guarantor
("Guarantee") will be endorsed on each Security issued by the Company.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company or Telekom to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company or Telekom to issue and sell any of
the Securities and the obligation of any of the Underwriters to purchase any of
the Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the issuer of such Designated Securities, the aggregate principal amount of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therfor. The Pricing Agreement shall also specify (to the extent not set
forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. Each of the Company and the Guarantor jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form F-3 (File No. 333-___)
(the "Initial Registration Statement") in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement of document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered
to the Representatives);and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective but
excluding Form T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; 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, being
hereinafter called the "Prospectus"; 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 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 Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Guarantor filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; 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 applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement of
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company or the
Guarantor by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Since the date of the latest [audited] [unaudited]
financial statements included or incorporated by reference in the
Prospectus, neither the Guarantor nor any of its subsidiaries has
sustained any loss or interference with its business, as currently
conducted and described in the Prospectus (the "Business"), which loss
or interference is material to the Guarantor and its subsidiaries taken
as a whole, from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in
the Prospectus; since the respective dates as of which information is
given in the Registration Statement and the Prospectus there has not
been any change in the share capital of the Guarantor or consolidated
long term debt of the Guarantor and its subsidiaries or any material
adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Guarantor and its subsidiaries taken as a whole otherwise than as
set forth in the Prospectus;
(e) The Guarantor is a stock corporation (Aktiengesellschaft)
duly incorporated and validly existing under the laws of the Federal
Republic of Germany; the Company is a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) duly
incorporated and validly existing under the laws of The Netherlands;
each of the Company and the Guarantor has the power and authority to
own, lease and operate its properties and to conduct its Business; each
of the Company and the Guarantor has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns, leases or
operates properties or conducts business so as to require such
qualification or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; each
subsidiary of the Guarantor other than the Company (each a
"Subsidiary", together the "Subsidiaries") and Matav Magyar Tavkozlesi
Rt. (MATAV) (the "Material Joint Venture Entity") is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation; each such Subsidiary and the Material Joint Venture
Entity has the power and authority to own, lease and operate its
properties and to conducts its Business;
(f) Each of the Company and the Guarantor has an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of each of the Company and the Guarantor have
been duly and validly authorized and issued and are fully paid; and
there are no restrictions on subsequent transfers of the Securities
under the laws of, in the case of the Company, The Netherlands, in the
case of the Guarantor, the Federal Republic of Germany and, in both
cases, of the United States;
(g) The Securities have been duly authorized by the Company
and Telekom, and, when Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company or Telekom, as the
case may be, entitled to the benefits, provided by the Finance
Indenture or the Telekom Indenture, as the case may be, which will be
substantially in the forms filed as exhibits to the Registration
Statement; the Guarantees have been duly authorized by the Guarantor,
and, when Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Securities, the Guarantees will have been duly endorsed
thereon and will constitute valid and legally binding obligations of
the Guarantor with respect to such Designated Securities, enforceable
in accordance with their terms; the Indentures have been duly
authorized by the Company and the Guarantor and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the Indentures
will constitute valid and legally binding instruments of the Company
and the Guarantor, enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indentures conform,
and the Designated Securities and the Guarantees will conform, to the
respective descriptions thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company and the Guarantor with all of the provisions of the
Securities, the Guarantee, the Indenture, this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated:
(i) will not conflict with, or result in a violation
of the provisions of, or constitute a default under, any
agreement or instrument to which the Company, the Guarantor,
any of the Subsidiaries or the Material Joint Venture Entity
is a party or by which any of them is bound or to which any of
their assets is subject, or any license, permit or
authorization held by or issued to the Company, the Guarantor,
any of the Subsidiaries or the Material Joint Venture Entity
which conflict, violation or default would have a material
adverse effect on the business or financial condition of the
Guarantor and its subsidiaries, taken as a whole, or would
impair the ability of the Company or the Guarantor to
consummate, or would otherwise materially adversely effect,
the transactions contemplated hereby;
(ii) will not result in any violation of the Articles
of Association or other governing documents of the Company,
the Guarantor, any of the Subsidiaries or the Material Joint
Venture Entity or any provision of law, judgment or decree of
any Governmental Authority (as defined below) which violation
would have a material adverse effect on the sale of the
Securities, the performance of the Guarantee or the business
or financial condition of the Guarantor and its subsidiaries,
taken as a whole, or would impair the ability of the Company
or the Guarantor to consummate, or would otherwise materially
adversely affect, the transactions contemplated hereby;
(iii) do not require any consent, authorization,
order, registration or qualification (each a "Governmental
Authorization") of or with any court or governmental,
regulatory or stock exchange authority having jurisdiction
over the Company, the Guarantor, any Subsidiary, the Material
Joint Venture Entity or any of their respective assets, or
over the offer and sale of the Securities (each a
"Governmental Authority"), except (a) the registration of the
Securities under the securities or similar laws, in [specify
jurisdictions], and (b) such Governmental Authorizations that
have been duly obtained and which are in full force and effect
and copies of which have been furnished to the Underwriters;
(i) None of the Company, the Guarantor, any of the
Subsidiaries or the Material Joint Venture Entity is in violation of
its Articles of Association or other governing documents or in default
in the performance or observance of any obligation contained in any
agreement or instrument to which it is a party or by which it or any of
its assets may be bound which violation would have a material adverse
effect on the business or financial condition of the Guarantor and its
subsidiaries, taken as a whole, or would impair the ability of the
Company or the Guarantor to consummate, or would otherwise materially
adversely affect, the transactions contemplated hereby;
(j) The statements set forth in the Prospectus under the
captions ["Description of Debt Securities and Guarantees We May Offer"]
and ["Description of [Notes] [Bonds] [Debentures]"], insofar as they
purport to constitute a summary of the terms of the Securities, the
Guarantee, and the Designated Securities and under the captions ["Tax
Considerations"], ["Plan of Distribution"] and ["Underwriting"],
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all
material respects;
(k) Other than as set forth in the Prospectus, there are no,
and during the period from January 1, 2002 to the date hereof there
have not been any, legal or governmental proceedings pending to which
the Company, the Guarantor, any Subsidiary or the Material Joint
Venture Entity is a party or of which any asset of the Company, the
Guarantor, any Subsidiary or the Material Joint Venture Entity is the
subject which, if determined adversely to the Company, the Guarantor,
such Subsidiary or the Material Joint Venture Entity, would
individually or in the aggregate have a material adverse effect on the
Business, the current consolidated financial position, shareholders'
equity or results of operations of the Guarantor and its subsidiaries
taken as a whole; and, to the best of the Guarantor's knowledge, no
such proceedings are threatened or contemplated by any Governmental
Authority or threatened by others;
(l) Neither the Company nor the Guarantor is and, after giving
effect to the offering and sale of the Securities, will be an
"investment company", as such term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(m) No Governmental Authorization of or with any Governmental
Authority is required to effect payments of principal, premium, if any,
and interest on the Securities;
(n) All interest on the Securities may under the current law
and regulations applicable in The Netherlands and the Federal Republic
of Germany be paid in [specify currency] which may be converted into
foreign currency that may be freely transferred out of The Netherlands
and the Federal Republic of Germany; except as described in the
Prospectus, such interest will not be subject to withholding or other
taxes under the laws applicable in The Netherlands and the Federal
Republic of Germany and is otherwise free of any other tax, withholding
or deduction in The Netherlands and the Federal Republic of Germany and
without the necessity of obtaining any Governmental Authorization (as
defined below) in The Netherlands or the Federal Republic of Germany;
(o) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding are payable by or on behalf of
the Underwriters to The Netherlands or the Federal Republic of Germany
or any political subdivision or taxing authority thereof or therein in
connection with (A) the issuance, sale and delivery by the Company to
or for the respective accounts of the Underwriters of the Securities or
(B) the sale and delivery outside The Netherlands and the Federal
Republic of Germany by the Underwriters of the Securities to the
initial purchasers thereof;
(p) The Company, the Guarantor, each Subsidiary and the
Material Joint Venture Entity have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions, including
those of and from all Governmental Authorities, that are necessary to
own or lease their properties and conduct their respective Businesses
and that are material to the Guarantor and its subsidiaries taken as a
whole;
(q) Other than as set forth in the Prospectus, no labor
dispute, strike or other collective bargaining measure currently exists
or is currently threatened by any employees of the Company, the
Guarantor, any Subsidiary or any Material Joint Venture Entity, or any
representative of such employees, which, if resolved to the detriment
of the Company, the Guarantor, any Subsidiary or the Material Joint
Venture Entity, carried out or implemented, would have a materially
adverse effect on the Business, the then current consolidated financial
position or shareholders' equity or the results of operation of the
Guarantor and its subsidiaries taken as a whole;
(r) None of the Company, the Guarantor or any Subsidiary has
taken, directly or indirectly, any action which was designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Security;
(s) The consolidated financial statements included in the
Prospectus present fairly the financial position and results of
operations of the Guarantor and its subsidiaries on a consolidated
basis as at the respective dates or for the respective periods to which
they apply and such financial statements have been prepared in
accordance with generally accepted accounting principles in the Federal
Republic of Germany ("German GAAP") [or international financial
reporting standards ("IFRS")] applied on a consistent basis throughout
the respective periods involved, except as stated in the Prospectus;
the discussion of material differences between German GAAP [and IFRS,
respectively] and the accounting principles, practices and methods,
generally accepted in the United States ("U.S. GAAP") and the
reconciliation of the consolidated financial statements to U.S. GAAP,
as set forth in the Prospectus, comply in all material respects with
the requirements of Form F-3 and the rules and regulations of the
Securities and Exchange Commission relating thereto and present fairly
the material variations between German GAAP [and IFRS, respectively]
and U.S. GAAP required to be so presented; and
(t) PwC Deutsche Revision Aktiengesellschaft
Wirtschaftsprufungsgesellschaft Ernst & Young Deutsche Allgemeine
Treuhand AG, who have certified certain financial statements of the
Guarantor and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon this execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to [ ] at least
forty-eight hours in advance, all in the manner and at the place and time and
date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
5. Each of the Company and the Guarantor jointly and severally agree
with each of the several Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Designated Securities and prior to the Time
of Delivery for such Designated Securities which shall be reasonably
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports required to be filed by the Guarantor with the Commission
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to promptly us its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company and the Guarantor shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 12:00 noon, New York City time, on the New York
Business Day next succeeding the date of the Pricing Agreement for such
Designated Securities and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City as amended
or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of such Designated
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Guarantor and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company and the
Guarantor by the Representatives, and (ii) the Time of Delivery for
such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or the
Guarantor which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated Securities and
are offered primarily in the same market as such Designated Securities
are primarily offered, without the prior written consent of the
Representatives, not to be unreasonably withheld; and
(f) If the Company and the Guarantor elect to rely upon Rule
462(b), the Company and the Guarantor shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company and the Guarantor shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. Each of the Company and the Guarantor jointly and severally
covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
counsel and accountants to the Company and the Guarantor in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and in the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; (viii) all expenses and taxes arising as a result of the
issuance, sale and delivery of the Securities, of the sale and delivery outside
of The Netherlands and the Federal Republic of Germany of the Securities by the
Underwriters to the initial purchasers thereof in the manner contemplated under
the Underwriting Agreement, including, in any such case, any income, capital
gains, withholding, transfer or other tax asserted against an Underwriter under
the laws of The Netherlands and the Federal Republic of Germany solely by reason
of the purchase and sale of the Securities pursuant to the Underwriting
Agreement and (ix) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company and the
Guarantor in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company and the
Guarantor shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company and the
Guarantor have elected to rely upon Rule 462(b), the Rule 462(b)
Resignation Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) U.S. Counsel for the Underwriters shall have furnished to
the Representatives such written opinion or opinions (a draft of each
such opinion is attached as Annex II(a) hereto), dated the Time of
Delivery for such Designated Securities, with respect to the matters
covered in paragraphs (i), (ii), (iii), (vi), (x) and (xi) of
subsection (f) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) If the Pricing Agreement relates to Securities issued by
the Company, Dutch Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company is a private company with limited
liability (besloten vennootschap met beperkte
aansprakelijkheid) incorporated and existing under the laws of
The Netherlands, with power and authority to enter into and
perform its obligations under the Finance Indenture, this
Agreement and the Pricing Agreement relating to the Designated
Securities and to issue and perform its obligations under the
Designated Securities;
(ii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company and, insofar
as Dutch law is concerned, constitute valid and binding
obligations of the Company;
(iii) The Finance Indenture has been duly authorized,
executed and delivered by the Company and, insofar as Dutch
law is concerned, constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(iv) The Securities to be issued by the Company have
been duly authorized by the Company and the Designated
Securities issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated
Securities have been duly executed, authenticated, issued and
delivered by the Company and, insofar as Dutch law is
concerned, constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Finance
Indenture;
(v) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Finance Indenture, this Agreement and any
Pricing Agreement, and the consummation of the transactions
herein and therein contemplated:
(A) will not result in any violation of the
Articles of Association or other governing documents
of the Company or any provision of Dutch law;
(B) do not require any Governmental
Authorization of or with any Governmental Authority,
except (1) the registration of the Securities under
the securities or similar laws, in [specify
jurisdictions], and (2) such Governmental
Authorizations that have been duly obtained and which
are in full force and effect and copies of which have
been furnished to the Underwriters;
(vi) The statements in the Prospectus under "[insert
appropriate section title]" to the extent such statements
relate to matters of law or regulation or to the provisions of
documents therein described, are true and accurate in all
material respects, and nothing has been omitted from such
statements which would make the same misleading in any
material respect;
(vii) Insofar as matters of Dutch law are concerned,
the Registration Statement and the filing of the Registration
Statement with the Commission have been duly authorized by and
on behalf of the Company, and the Registration Statement has
been duly executed pursuant to such authorization by and on
behalf of the Company;
(viii) No stamp or other issuance or transfer taxes
or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the
Netherlands or to any political subdivision or taxing
authority thereof or therein in connection with (A) issuance,
sale an delivery by the Company of the Securities to or for
the respective accounts of the Underwriters of the Securities
or (B) the sale and delivery outside The Netherlands by the
Underwriters of the Securities to the initial purchasers
thereof in the manner contemplated herein and in the other
Underwriting Agreement;
(ix) The Company's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized
by the courts of the Netherlands; the Company can ▇▇▇ and be
sued in its own name under the laws of the Netherlands; the
irrevocable submission of the Company to the exclusive
jurisdiction of a New York Court, the waiver by the Company of
any objection to the venue of a proceeding of a New York Court
and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the
State of New York are legal, valid and binding;
(x) The indemnification and contribution provisions
set forth in Section 8 hereof do not contravene the public
policy or laws of The Netherlands; and
(xi) All interest on the Securities may under the
current law and regulations applicable in The Netherlands be
paid in [specify currency] which may be converted into foreign
currency that may be freely transferred out of The
Netherlands; except as described in the Prospectus, such
interest will not be subject to withholding or other taxes
under the laws applicable in The Netherlands and is otherwise
free of any other tax, withholding or deduction in The
Netherlands and without the necessity of obtaining any
Governmental Authorization in The Netherlands.
(d) German Counsel for the Guarantor satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Guarantor is a stock corporation
(Aktiengesellschaft) validly existing under the laws of the
Federal Republic of Germany with corporate power to own its
properties and to conduct its Business as described in the
Prospectus as amended or supplemented and to issue the
Securities and enter into and perform its obligations under
the Indentures, the Guarantee, this Agreement and the Pricing
Agreement relating to the Designated Securities;
(ii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Guarantor;
(iii) The [applicable [Finance Indenture] Indenture]
has been duly authorized, executed and delivered by the
Guarantor;
(iv) The [Securities] [Guarantee] have been duly
authorized by the Guarantor [and the Guarantee has been duly
endorsed on the Designated Securities issued and delivered
pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities; the Guarantee has] the
Designated Securities issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such
Designated Securities have] [the Designated Securities issued
and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities have]
been duly executed, and delivered by the Guarantor;
(v) The issue and sale of the Securities and the
performance by the Guarantor of its obligations under the
Securities, the Guarantee, the Indentures, this Agreement and
any Pricing Agreement, do not require any Governmental
Authorization of or with any Governmental Authority in
Germany, except such Governmental Authorizations that have
been duly obtained and which are in full force and effect and
copies of which have been furnished to the Underwriters;
(vi) The statements in the Prospectus under "[insert
appropriate section title]" insofar as such statements purport
to summarize certain provisions of law or regulation or
provide a fair summary of such provisions of documents therein
described;
(vii) Insofar as matters of German law are concerned,
the Registration Statement and the filing of the Registration
Statement with the Commission have been duly authorized by the
Guarantor; and the Registration Statement has been duly
executed pursuant to such authorization by the Guarantor;
(viii) No stamp or other issuance or transfer taxes
or duties are payable by or on behalf of the Underwriters to
the Federal Republic of Germany or to any political
subdivision or taxing authority thereof or therein in
connection with (A) issuance, sale and delivery by the Company
of the Securities to or for the respective accounts of the
Underwriters of the Securities or (B) the sale and delivery
outside the Federal Republic of Germany by the Underwriters of
the Securities to the initial purchasers thereof in the manner
contemplated herein and in the Underwriting Agreement;
(ix) The Guarantor's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized
by the courts of the Federal Republic of Germany; the
Guarantor can ▇▇▇ and be sued in its own name under the laws
of the Federal Republic of Germany; the irrevocable submission
of the Guarantor to the exclusive jurisdiction of a New York
Court, the waiver by the Guarantor of any objection to the
venue of a proceeding of a New York Court and the agreement of
the Guarantor that this Agreement shall be governed by and
construed in accordance with the laws of the State of New York
are legal, valid and binding; service of process effected in
the manner set forth in Section 14 hereof will be effective,
insofar as the law of the Federal Republic of Germany is
concerned, to confer valid personal jurisdiction over the
Guarantor; and judgment obtained in a New York Court arising
out of or in relation to the obligations of the Guarantor
under this Agreement would be enforceable against the
Guarantor in the courts of the Federal Republic of Germany
[subject to certain exceptions];
(x) The Guarantor is not entitled to any immunity on
the basis of sovereignty or otherwise in respect of its
obligations under this Agreement and could not successfully
interpose any such immunity as a defense to any suit or action
brought or maintained in respect of its obligations under this
Agreement; and the waiver by the Guarantor of immunity to
jurisdiction (including the waiver of sovereign immunity to
which the Guarantor may become entitled subsequent to the date
of this Agreement) and immunity to pre-judgment attachment,
post-judgment attachment and execution in any suit, action or
proceeding against it arising out of or based on this
Agreement is a valid and binding obligation of the Guarantor
under German law;
(xi) The indemnification and contribution provisions
set forth in Section 8 hereof do not contravene the public
policy or laws of the Federal Republic of Germany;
(xii) All interest on the Securities may under the
current law and regulations applicable in the Federal Republic
of Germany be paid in [specify currency] which may be
converted into foreign currency that may by freely transferred
out of the Federal Republic of Germany; except as described in
the Prospectus, such interest will not be subject to
withholding or other taxes under the laws applicable in the
Federal Republic of Germany;
(xiii) No Governmental Authorization of or with any
Governmental Authority is required to effect payments of
principal, premium, if any, and interest on the Securities;
[If such counsel are not delivering the opinion set
forth in Section 7(f)]
(xiv) Such counsel have no reason to believe that the
documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion), when they became effective or were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
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, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading; and
(xv) Although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
they have no reason to believe that, as of its effective date,
the Registration Statement or any further amendment thereto
made by the Guarantor and the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) 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, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Guarantor and the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Guarantor and the Company
prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(e) The General Counsel of the Guarantor shall have furnished
to the Representatives a written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Guarantor has an authorized capitalization as
set forth in the Prospectus as amended or supplemented, and
all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully
paid and non-assessable;
(ii) Each subsidiary of the Guarantor and the
Material Joint Venture Entity is a corporation duly organized
and validly existing under the laws of its jurisdiction of
incorporation; and each such subsidiary and the Material Joint
Venture Entity has the corporate power to own, lease and
operate its properties and conduct its Business;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Guarantor,
any of its subsidiaries or the Material Joint Venture Entity
is a party or of which any of their properties is the subject
which, if determined adversely to the Guarantor or such
Subsidiary or the Material Joint Venture Entity, would
individually or in the aggregate, have a material adverse
effect on the current consolidated financial position,
shareholders' equity or results of operations of the Guarantor
and its subsidiaries taken as a whole; and, to the best of
such counsel's knowledge, no such proceedings are threatened
or contemplated by any Governmental Authority or threatened by
others;
(iv) None of the Guarantor, any of its Material
Subsidiaries or the Material Joint Venture Entity is in
violation of its Articles of Association or other governing
documents or in default in the performance or observance of
any material obligation contained in any material agreement or
instrument to which it is a party or by which it or any of its
assets are subject;
(v) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Guarantee, the Indenture, this Agreement and
any Pricing Agreement, and the consummation of the transaction
herein and therein contemplated:
(A) will not conflict with, or result in a
violation of the provisions of, or constitute a
default under, any material agreement or instrument to
which the Guarantor, any of its Material Subsidiaries
or the Material Joint Venture Entity is a party or by
which any of them is bound or to which any of their
assets is subject, or any material license, permit or
authorization held by or issued to the Guarantor, any
of its Subsidiaries or the Material Joint Venture
Entity; and
(B) will not result in any violation of the
Articles of Association or other governing documents
of the Guarantor, any of its Material Subsidiaries or
the Material Joint Venture Entity or any statute,
rule, regulation, judgment or decree of any
Governmental Authority having jurisdiction over the
Company, any of its Material Subsidiaries or the
Material Joint Venture Entity or any of their
respective properties.
(vi) The Guarantor, each of its subsidiaries and the
Material Joint Venture Entity have all licenses, franchises,
permits, authorizations, approvals, and orders from all
Governmental Authorities, that are necessary to own or lease
their properties and conduct their respective Businesses and
that are material to the Guarantor and its subsidiaries taken
as a whole, except for such licenses, franchises, permits,
authorizations, orders and approvals the failure to obtain
which will not have a material adverse effect on the financial
condition or results of operations of the Company, its
subsidiaries and the Material Joint Venture Entity taken as a
whole;
(f) U.S. Counsel for the Company and the Guarantor
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion (a draft of such opinion is
attached as Annex II(b) hereto), dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Assuming the Indentures have been duly authorized,
executed and delivered by each of the Company and the
Guarantor insofar as the laws of The Netherlands and the
Federal Republic of Germany are concerned, the Indentures have
been duly executed and delivered by the Company (in the case
of the Finance Indenture only) and the Guarantor and duly
qualified under the Trust Indenture Act and constitutes valid
and legally binding obligations of each of the Company (in the
case of the Finance Indenture only) and the Guarantor,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(ii) Assuming the Designated Securities and the
Guarantee have been duly authorized, executed, authenticated,
issued and delivered by the Company and the Guarantor, as
applicable, insofar as the laws of The Netherlands and the
Federal Republic of Germany are concerned, the Designated
Securities and the Guarantee have been duly executed,
authenticated, issued and delivered by the Company and the
Guarantor, as applicable, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(iii) Assuming this Agreement and the Pricing
Agreement have been duly authorized, executed and delivered by
each of the Company and the Guarantor insofar as the laws of
The Netherlands and the Federal Republic of Germany are
concerned, this Agreement and the Pricing Agreement have been
duly executed and delivered by each of the Company and the
Guarantor;
(iv) The issue and sale of the Designated Securities
and the compliance by the each of the Company and the
Guarantor, as applicable, with all of the provisions of the
Designated Securities, the Guarantee, the Indentures, this
Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions
herein and therein contemplated will not result in any
violation of any Governmental Authorization known to such
counsel of any Governmental Authority;
(v) No Governmental Authorization of or with any such
Governmental Authority of the United States or the State of
New York is required for the issue and sale of the Designated
Securities or the execution and delivery by each of the
Company and the Guarantor, as applicable, of the Guarantee,
this Agreement or such Pricing Agreement or the Indenture,
except such as have been obtained or affected under the Act,
the Exchange Act and the Trust Indenture Act and Governmental
Authorizations as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(vi) The statements set forth in the Prospectus under
the captions ["Description of Debt Securities and Guarantees
We May Offer"] and ["Description of [Notes] [Bonds]
[Debentures]"], insofar as they purport to summarize certain
provisions the Indentures, the Securities, the Guarantee, and
the Designated Securities provide a fair summary of such
provisions;
(vii) The statements set forth in the Prospectus under
the captions ["Taxation" (as to matters of U.S. tax law)],
insofar as they purport to describe certain federal income tax
laws of the United States, constitute a fair summary of the
principal U.S. federal income tax consequences of an
investment in such Designated Securities;
(viii) Neither the Company nor the Guarantor is an
"investment company" as such term is defined in the Investment
Company Act;
(ix) Under the laws of the State of New York relating
to personal jurisdiction, the Company has, pursuant to Section
14 of this 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 (each
a "New York Court") in any action arising out of or relating
to this Agreement or the transactions contemplated hereby, has
validly and irrevocably waived any objection to the venue of a
proceeding in any such court, and has validly and irrevocably
appointed the Authorized Agent (as defined herein) as its
authorized agent for the purpose described in Section 14
hereof; and service of process effected on such agent in the
manner set forth in Section 14 hereof will be effective to
confer valid personal jurisdiction over the Company;
(x) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, 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, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
and
(xi) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company and the Guarantor
prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related to schedules
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (vi) of this Section 7(f), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
and the Guarantor prior to the Time of Delivery (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) 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, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company and the
Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company and the Guarantor prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required.
(g) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to the Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Guarantor who have certified the consolidated financial statements of
the Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, or at the time of the pricing agreement
and a letter dated such Time of Delivery, respectively, to the effect
set forth in Annex II hereto, and with respect to such letter dated
such Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
(h) None of the Company, the Guarantor or any Subsidiary shall
have sustained since the date of the latest [audited] [unaudited]
financial statements of the Guarantor and its subsidiaries included or
incorporated by reference in the Prospectus as amended or supplemented
prior to the execution of the Pricing Agreement relating to the
Designated Securities any loss or interference with its Business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the execution of the
Pricing Agreement relating to the Designated Securities, and (ii) since
the respective dates as of which information is given in the Prospectus
as amended or supplemented prior to the execution of the Pricing
Agreement relating to the Designated Securities there shall not have
been any material adverse change or any development involving a
prospective material adverse change in the financial position or
Business of the Guarantor and its subsidiaries taken as a whole
otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the execution of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any such
case described in clause (i) or (ii), is [in the judgment of the
Representatives] [or the Guarantor] so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
[The Representatives shall enter into consultations with the
[Company] [Guarantor] by telephone with respect to any determination
pursuant to (i) and (ii) above. Such consultation shall take place
among one senior representative of each of the Representatives and one
senior representative of the [Company] [Guarantor]. The senior
representatives of the Representatives will explain the basis for their
determination in depth and the senior representative of the [Company]
[Guarantor] will relay the views of the [Company] [Guarantor] to the
Representatives. If no such consultation takes place within a time
period as reasonably determined by the Representatives to be
appropriate, despite the best efforts of the Representatives to reach
the senior representatives of the [Company] [Guarantor], or if no
consensus can be reached during that period, the Representatives may,
by way of unanimous resolution with the Representatives and in the name
of the Underwriters, effect the termination of the obligations of the
Underwriters.]
(i) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the debt securities or preferred stock of the Company
or the Guarantor by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the debt
securities or preferred stock of the Company or the Guarantor;
(j) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in the
Guarantor's securities on the New York Stock Exchange, the Frankfurt
Stock Exchange or (if the Designated Securities are to be listed on the
Luxembourg Stock Exchange), the Luxembourg Stock Exchange; or (ii) the
occurrence of any material adverse change in national or international
financial, political, industrial or economic conditions which, in each
case [in the judgment of the Representatives] [or the Guarantor] would
materially and adversely affect the financial markets or the market for
the Securities and other debt securities;
[The Representatives shall enter into consultations with the
[Company] [Guarantor] by telephone with respect to any determination
pursuant to (i) and (ii) above. Such consultation shall take place
among one senior representative of each of the Representatives and one
senior representative of the [Company] [Guarantor]. The senior
representatives of the Representatives will explain the basis for their
determination in depth and the senior representative of the [Company]
[Guarantor] will relay the views of the [Company] [Guarantor] to the
Representatives. If no such consultation takes place within a time
period as reasonably determined by the Representatives to be
appropriate, despite the best efforts of the Representatives to reach
the senior representatives of the [Company] [Guarantor], or if no
consensus can be reached during that period, the Representatives may,
by way of unanimous resolution with the Representatives and in the name
of the Underwriters, effect the termination of the obligations of the
Underwriters.]
(k) The Company and the Guarantor shall each have complied
with the provisions of Section 5(c) hereof with respect to the
furnishing of prospectuses on the New York Business Day next succeeding
the date of this Agreement; and
(l) The Company and the Guarantor shall each have furnished or
caused to be furnished to the Representatives at the Time of Delivery
for the Designated Securities a certificate or certificates of officers
of the Company or the Guarantor, as the case may be, satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Company and the Guarantor herein at and as of such
Time of Delivery, as to the performance by the Company and the
Guarantor of all of their obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (h) of his Section and as to such other matters as
the Representatives may reasonably request.
8. (a) Each of the Company and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Guarantor shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company or the Guarantor by
any Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless each of the
Company and the Guarantor against any losses, claims, damages or liabilities to
which the Company or the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company or the
Guarantor by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company and the Guarantor for any legal or other
expenses reasonably incurred by the Company or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantor on the one hand and
the Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Guarantor on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Guarantor on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Guarantor and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated 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 such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company and the Guarantor under this Section
8 shall be in addition to any liability which the Company or the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company, to each officer and director of the Guarantor and to each person, if
any, who controls the Company or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company and the
Guarantor agree to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Guarantor and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results hereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, the Guarantor, or any officer or director or controlling person of the
Company or the Guarantor, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company and the Guarantor shall not then be under any liability to
any Underwriter with respect to the Designated Securities covered by such
Pricing Agreements except as provided in Sections 6 and 8 hereof; but, if for
any reason Designated Securities are not delivered by or on behalf of the
Company or Telekom, as the case may be, as provided herein, the Company or
Telekom, as the case may be, will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company and the Guarantor shall
then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Guarantor shall be delivered or
sent [to both of them in case of the Guarantor] by mail, telex or facsimile
transmission to the address of the Guarantor set forth in the Registration
Statement: Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section (8)c hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company or Telekom, as the case may be, by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company, the Guarantor
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and the Guarantor and each person who controls the
Company or the Guarantor or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Each of the Company and the Guarantor irrevocably (i) agrees that
any legal suit, action or proceeding against the Company or the Guarantor
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 New York Court, (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 exclusive
jurisdiction of such courts in any such suit, action or proceeding. [The Company
and the Guarantor each 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 the
Agreement or the transactions contemplated hereby which is instituted in any New
York Court or in any competent court in __________. The Company and the
Guarantor have each appointed Deutsche Telekom Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 consents to 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. Each
of the Company and the Guarantor 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 the Authorized Agent and
written notice of such service to the Company or the Guarantor shall be deemed,
in every respect, effective service of process upon the Company or the
Guarantor, as applicable.
15. 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 and the Guarantor will jointly and
severally 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
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and the
Guarantor 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.
16. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
18. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us _________ counterparts hereof.
Very truly yours,
Deutsche Telekom International Finance B.V.
By:..........................................
Name
Title
Deutsche Telekom AG
By:..........................................
Name
Title
Accepted as of the date hereof:
Name(s) of Co-Representative(s)
By:.........................................
ANNEX I
Form of Pricing Agreement
[Representatives]
[Date]
Ladies and Gentlemen:
[Deutsche Telekom International Finance B.V., a private company with
limited liability incorporated under the laws of The Netherlands (the
"Company"), [Deutsche Telekom AG, a stock corporation organized under the laws
of the Federal Republic of Germany ("Telekom" or "Guarantor")] proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement
dated _______ (the "Underwriting Agreement"), between [the Company and]
[Deutsche Telekom International Finance B.V., a private company with limited
liability incorporated under the laws of The Netherlands (the "Company")]
[Deutsche Telekom AG (the "Guarantor")] [the "Guarantor"] on the one hand and
[names of Co-Representative(s)] on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospecuts (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein and
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us _____ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Deutsche Telekom International Finance B.V.
By:..........................................
Name
Title
Deutsche Telekom AG
By:..........................................
Name
Title
Accepted as of the date hereof:
Name(s) of Co-Representative(s)
By:.........................................
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
----------- --------------------
Name(s) of Co-Representative(s)....................... $
--------------------
Total ................................................ $
====================
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$] [other currency]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued amortization[, if any,]
from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if any,]
from to ]
Underwriters' Expenses:
Form of Designated Securities:
[Definitive form, to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
Specified funds for payment of purchase price:
Federal (same-day) funds
Time of Delivery:
a.m. (New York City time), ,20
Listing:
[Name(s) of Stock Exchange(s)]
Indenture:
Indenture dated , 20 , between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing , 20 ]
Additional Amounts:
[Whether not payable.]
Further Issues:
[Whether being contemplated]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Whether in the event of optional redemption Adjusted Treasury Yield
would be different from that determined in the Indenture].
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on in
each of the years through at 100% of their principal amount plus
accrued interest[, together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$ ] principal
amount of Designated Securities in the years through at 100%
of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert - -
Extendable provisions:
Designated Securities are repayable on , [insert date and years],
at the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on , and to a rate not
less than % of the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert date 15 days prior
to maturity date] prior to such [insert maturity date].]
Terms of the Guarantee:
[If Designated Securities are floating rate debt securities insert - -
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter will
be adjusted [monthly] [on each , , and ] [to an annual rate
of %above the average rate for -year [month] [securities]
[certificates of deposit] issued by and [insert names of banks].]
[and the annual interest rate [thereafter] [from through ] will
be the interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) the then current weekly average
per annum secondary market yield for -month certificates of deposit
over (ii) the then current interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills);
[from and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
Paragraph 7(h) of the Underwriting Agreement should be modified in the
event that the Securities are denominated in, indexed to, or principal or
interest are paid in, a currency other than the U.S. dollar, more than
one currency or in a composite currency. The country or countries issuing
such currency should be added to the banking moratorium and hostilities
clauses and the following additional clause should be added to the
paragraph (the entire paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
[To Come]