EXHIBIT 1.1
UNITED PAN-EUROPE COMMUNICATIONS N.V.
ORDINARY SHARES
(NOMINAL VALUE POUNDS 0.30 PER SHARE)
IN THE FORM OF AMERICAN DEPOSITARY SHARES OR
ORDINARY SHARES
UNDERWRITING AGREEMENT
(U.S. VERSION)
February ____, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Ladies and Gentlemen:
United Pan-Europe Communications N.V., a Netherlands public corporation
with limited liability having its statutory seat at Amsterdam, The Netherlands
(the "Company"), proposes, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of__________Ordinary Shares (the "Firm Shares"),nominal value
pounds 0.30 each ("Stock"), of the Company and, at the election of the
Underwriters, up to____________additional shares (the "Optional Shares").
the Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the
"Shares".
The Underwriters may elect to take delivery of the Shares in the form of
shares of Stock or in the form of American Depositary Shares ("ADSs"). The
ADSs are to be issued pursuant to a deposit agreement (the "Deposit Agreement")
dated as of February _____, 1999, among the Company, Citibank N.A., as
depositary (the "Depositary"), and registered holders and beneficial owners from
time to time of the American Depositary Receipts (the "ADRs") issued by the
Depositary and evidencing the ADSs. Each ADS will initially represent the right
to receive one share of Stock deposited pursuant to the Deposit Agreement.
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It is understood by all the parties that the Company is concurrently
entering into an agreement (the "International Underwriting Agreement")
providing for the sale by the Company of up to a total of ____________ shares of
Stock, including shares delivered in the form of ADSs (the "International
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters outside the United States (the "International
Underwriters"), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited are acting as lead managers outside the United States.
Anything herein or therein to the contrary notwithstanding, the respective
closings under this Agreement and the International Underwriting Agreement are
hereby made expressly conditional on one another.
The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates"), which provides,
among other things, that ▇▇▇▇▇▇▇ Sachs International and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited shall act as the joint global coordinators for the
offering of shares of Stock and ADSs and for the transfer of shares of Stock and
ADSs between the two syndicates.
Two forms of prospectus are to be used in connection with the offering and
sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder and the other relating to the International Shares. The
international form of prospectus will be identical to the U.S. prospectus except
for certain substitute pages. Except as used in Sections 2, 4, 9 and 11 herein,
and except as the context may otherwise require, references hereinafter to the
Shares shall include all of the shares of Stock, whether in the form of Shares
or ADSs, which may be sold pursuant to either this Agreement or the
International Underwriting Agreement. References herein to any prospectus
whether in preliminary or final form, and whether as amended or supplemented,
shall include the U.S. and the international versions thereof.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-67895) (the
"Initial Registration Statement") in respect of the Shares 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 to you, and, excluding exhibits thereto, to
you 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 has heretofore
been filed with the Commission; 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) of the rules and regulations of the Act, is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial
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Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including the information contained in
the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective, 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"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did 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, in the light of the
circumstances under which they were made, 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 by an Underwriter through
▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation (together, the "Representatives")
expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the 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
by an Underwriter through the Representatives expressly for use therein;
(iv) A registration statement on Form F-6 (File No. 333-____) in
respect of the ADSs has been filed with the Commission; such registration
statement in the form heretofore delivered to you and, excluding exhibits,
to you for each of the other Underwriters, has been declared effective by
the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission; no
stop order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (the various parts of such registration
statement, including all exhibits thereto, each as amended at the time such
part of the registration statement became
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effective, being hereinafter called the "ADS Registration Statement"); and
the ADS Registration Statement when it became effective conformed, and any
further amendments thereto will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not, as of the applicable effective date, 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;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or other legal or governmental action, order or
decree, having a material adverse effect on the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus; and, 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 capital stock of the Company or any increase in the
long-term debt of the Company or any of its subsidiaries in excess of
$5,000,000 or its equivalent or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, condition (financial or
otherwise), shareholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(vi) The Company and its subsidiaries have good and marketable title
to all material real property and good and marketable title to all material
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially adversely affect the value of such property and
do not interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as do not
have a material adverse effect on the Company and its subsidiaries taken as
a whole and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(vii) The Company has been duly incorporated and is validly existing
as a public limited liability company under the laws of The Netherlands,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified for the transaction of business outside The Netherlands and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any 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; and each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
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(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock contained in
the Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the shares of Stock have been
[duly listed and admitted for trading on the Official Market of Amsterdam
Exchanges (the "Amsterdam Stock Exchange"), subject to notice of issuance,]
and all of the ADSs have been duly listed for quotation on the National
Association of Securities Dealers Automated Quotations National Market
System ("NASDAQ"); the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to acquire
shares of Stock, except for (A) options granted under the Company's Equity
Stock Option Plan and Phantom Stock Option Plan, (B) shares of Stock
issuable or transferable pursuant to the promissory note of the Company in
the principal amount of $100,000,000 dated January 25, 1999, and the
promissory note of UPC Intermediates B.V. in the principal amount of
$20,000,000 dated January 25, 1999, in each case payable to the order of
UIH Europe, Inc. ("UIH Europe") (together, the "UIH Europe Convertible
Loans"), (C) shares of Stock issuable pursuant to the Option Agreement,
dated November 5, 1998, as amended, among the Company, DIC Communication
and Technology Ltd. ("DIC") and PEC Israel Economic Corporation (the "DIC
Option Agreement"), (D) shares of Stock issuable to N.V. Nuon Energie-
Onderneming Voor Gelderland, Friesland en Flevoland ("Nuon") in connection
with the Share Purchase Agreement, dated January 19, 1999, among the
Company, Belmarken Holding B.V., Nuon, N.V. Kraton and United TeleKabel
Holding N.V. (the "Nuon Share Purchase Agreement"), and (E) warrants
issuable to Microsoft Corporation, in each case as described in the
Prospectus; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, the Stock or any other
class of capital stock of the Company; the Shares may be freely deposited
by the Company with the Depositary against issuance of ADRs evidencing
ADSs; the Shares are freely transferable by the Company to or for the
account of the several Underwriters and (to the extent described in the
Prospectus) the initial purchasers thereof; and there are no restrictions
on subsequent transfers of the Shares under the laws of The Netherlands and
of the United States except as described in the Prospectus under the
captions "Shares Eligible For Future Sale" and "Description of American
Depositary Shares" or except for Shares acquired by affiliates (as defined
in Rule 144 under the Act) of the Company;
(ix) The Shares to be sold by the Company to the Underwriters
hereunder and the International Shares to be sold by the Company to the
International Underwriters under the International Underwriting Agreement
(a) in the case of unissued Shares and International Shares to be issued
and sold hereunder and thereunder, have been duly and validly authorized
and, when issued and delivered against payment therefor as provided herein
and therein, will be duly and validly issued and fully paid and non-
assessable,
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will not be subject to any preemptive or similar rights and will conform to
the description of the Stock contained in the Prospectus, and (b) in the
case of previously issued Shares and International Shares held to be sold
hereunder and thereunder, have been duly and validly issued and are fully
paid and non-assessable, are not subject to any preemptive or similar
rights and conform to the description of Stock contained in the Prospectus.
(x) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; upon issuance by the
Depositary of ADRs evidencing ADSs against the deposit of Shares in respect
thereof in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued and the persons in whose names the
ADRs are registered will be entitled to the rights specified therein and in
the Deposit Agreement; and the Deposit Agreement and the ADRs conform in
all material respects to the descriptions thereof contained in the
Prospectus;
(xi) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental agency
or body (hereinafter referred to as a "Governmental Agency") having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or any stock exchange authorities (hereinafter referred to as
"Governmental Authorizations") required for the deposit of Shares and the
issuance of ADSs in respect thereof in accordance with the provisions of
the Deposit Agreement, and for the execution and delivery by the Company of
this Agreement, the International Underwriting Agreement and the Deposit
Agreement to be duly and validly authorized, have been obtained or made and
are in full force and effect;
(xii) Except to the extent otherwise set forth in the Prospectus, (A)
all dividends and other distributions declared and payable on the shares of
capital stock of the Company deposited with the Depositary in accordance
with the provisions of the Deposit Agreement may, under the current laws
and regulations of The Netherlands, be paid to the Depositary in Dutch
guilders or euros that may be converted into foreign currency that may be
freely transferred out of The Netherlands, and (B) all such dividends and
other distributions will not be subject to withholding or other taxes under
the laws and regulations of The Netherlands and are otherwise free and
clear of any other tax, withholding or deduction in The Netherlands and
without the necessity of obtaining any Governmental Authorization in The
Netherlands;
(xiii) The issue (as applicable) and sale of the Shares to be sold by
the Company hereunder and under the International Underwriting Agreement,
the deposit of the Shares being deposited with the Depositary in accordance
with the provisions of the Deposit Agreement against issuance of the ADRs
evidencing the ADSs in respect thereof and the compliance by the Company
with all of the provisions of this Agreement, the International
Underwriting Agreement and
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the Deposit Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Articles of Association of the Company or any
statute or other applicable law or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties except, with respect in any such
case to the subsidiaries of the Company, as would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole; and no Governmental Authorization is
required for the issue and sale of the Shares, for the deposit of the
Shares being deposited with the Depositary in accordance with the
provisions of the Deposit Agreement against issuance of ADRs evidencing the
ADSs in respect thereof to be delivered or the consummation by the Company
of the transactions contemplated by this Agreement and the International
Underwriting Agreement, except (A) the registration under the Act of the
Shares, (B) such Governmental Authorizations as have been duly obtained and
are in full force and effect and copies of which have been furnished to you
and (C) such Governmental Authorizations as may be required under state
securities or Blue Sky laws or any laws of jurisdictions outside The
Netherlands and the United States in connection with the purchase and
distribution of the Shares by or for the account of the International
Underwriters;
(xiv) Neither the Company nor any of its subsidiaries is in violation
of its Articles of Association or other constituent documents or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for
such defaults as would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(xv) Except as otherwise set forth in the Prospectus, 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 any political subdivision or taxing authority
thereof or therein in connection with (A) the deposit with the Depositary
of Shares in accordance with the provisions of the Deposit Agreement by
the Company against the issuance of ADRs evidencing ADSs in respect
thereof, (B) the sale and delivery by the Company of the Shares to or for
the respective accounts of the Underwriters or (C) the sale and delivery
outside The Netherlands by the Underwriters of the Shares to the initial
purchasers thereof;
(xvi) Neither the Company nor any of its subsidiaries 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 Shares;
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(xvii) The statements set forth in the Prospectus under the captions
"Description of Share Capital" and "Description of American Depositary
Shares", insofar as they purport to constitute a summary of the terms of
the Stock and the ADSs, respectively, under the caption "Taxation", and
under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, and under the
caption "Relationship with UIH and Related Transactions", insofar as they
purport to describe such relationship and related transactions, and under
the caption "Relationship with Microsoft", insofar as they purport to
describe such relationship, are accurate and complete in all material
respects;
(xviii) The Management Service Agreement, dated ____________________,
1998, between the Company and United International Holdings, Inc.
("Parent"), has been duly authorized, executed and delivered by each of
the Company and Parent and constitutes a valid and legally binding
agreement of each of the Company and Parent, enforceable against the
Company and Parent in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; and the terms of such agreement are on an
arm's-length basis;
(xix) Except as otherwise set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company, Parent or
any of their respective subsidiaries is a party or of which any property
of the Company, Parent or any of their respective subsidiaries is the
subject which, if determined adversely to the Company, Parent or any of
their respective subsidiaries, would individually or in the aggregate have
a material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(xx) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be, an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xxi) Except as otherwise set forth in the Prospectus, the Company
and each of its subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from all
Governmental Agencies that are necessary to own or lease their properties
and conduct their current businesses as described in the Prospectus, with
such exceptions as would not, individually or in the aggregate, have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole;
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(xxii) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States Internal
Revenue Code of 1986, as amended, and is not likely to become a PFIC;
(xxiii) Neither the Company nor any of its subsidiaries does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xxiv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who have certified certain financial
statements of the Company and its subsidiaries, and PricewaterhouseCoopers
N.V., who have certified certain financial statements of N.V. TeleKabel
Beheer, are, insofar as the Company, Parent and their respective
subsidiaries are concerned, each independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(xxv) The Company is reviewing its operations and those of its
subsidiaries, Parent and any third parties with which the Company or any
of its subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its subsidiaries
will be affected by the Year 2000 Problem. As a result of such ongoing
review to date, the Company currently has no reason to believe, and does
not currently believe, that the Year 2000 Problem will have a material
adverse effect on the general affairs, management, the current or future
consolidated financial position, business prospects, shareholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole, or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission
or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000;
(xxvi) The Company and its subsidiaries own, possess, have rights to
or can acquire adequate patents, licenses, know-how, trademarks,
copyrights, trade secrets, mask works, service marks and trade names
necessary to operate the businesses now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which the Company reasonably believes, singly or in
the aggregate, is likely to result in any material adverse change in the
condition (financial or otherwise) or in the earnings, business or
operations of the Company and its subsidiaries taken as a whole;
(xxvii) The Company and its subsidiaries (A) are in compliance with
any and all applicable laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), (B) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
10
businesses and (C) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole; and
(xxviii) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company (A) to file, other than in connection with (i) the
DIC Option Agreement, (ii) the Registration Rights Agreement dated
January ____, 1999 between the Company and Parent and (iii) the
agreement to grant Microsoft Corporation certain registration rights
as described in the Prospectus under the caption "Relationship with
Microsoft", a registration statement under the Securities Act with
respect to any securities of the Company or (B) to include any
securities of the Company with the Shares registered pursuant to the
Registration Statement and the ADS Registration Statement.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, on the basis of the representations and warranties
herein contained, to purchase from the Company, at a purchase price per Share of
i_______ and per ADS of $_______ (to the extent that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. makes
the election to take delivery of any Shares in the form of ADSs pursuant to
Section 4 hereof), the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by the Company by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from the Company hereunder and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, on
the basis of the representations and warranties herein contained, to purchase
from the Company, at the purchase price per Share and per ADS set forth in
clause (a) above, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _________ Optional Shares, at the purchase price per Share
or ADS set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery
11
(as defined in Section 4 hereof) or, unless you and the Company otherwise agree
in writing, earlier than two or later than ten business days after the date of
such notice.
3. Upon the authorization by you of the release for delivery of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) With respect to all or a portion of the Shares to be purchased and
sold hereunder at each Time of Delivery (as defined below), ▇▇▇▇▇▇▇, Sachs &
Co., on behalf of the several Underwriters, may elect to have ADSs delivered and
paid for hereunder in lieu of, and in satisfaction of, the Company's obligation
to sell to the several Underwriters and the several Underwriters' obligations to
purchase, Shares. Notice of such election shall be given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
to the Company at least forty-eight hours prior to such Time of Delivery (as
defined below) (the "Notification Time"). The number of Shares to be purchased
by the Underwriters as a result of the making of such election shall be adjusted
by so as to eliminate any fractional Shares and the purchase price for any
Shares so delivered as a result of making such election shall be the purchase
price which would have been applicable hereunder to a Share adjusted to reflect
the ratio of Shares to ADSs (whether greater or lesser than one to one).
(b) If the election has been made in accordance with subsection (a) above,
the ADSs to be purchased by each Underwriter hereunder, in definitive form, and
in such authorized denominations and registered in such names as ▇▇▇▇▇▇▇, Sachs
& Co. may request prior to the Notification Time, shall be delivered by or on
behalf of the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. through the facilities of The
Depository Trust Company ("DTC") for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company to ▇▇▇▇▇▇▇, Sachs & Co. at least forty-eight hours in advance. The
Company will cause the certificates representing the ADSs to be made available
for checking at least twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Designated Office").
(c) Delivery of the Shares by the Company will be made by book-entry
transfer in the Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V.
("NECIGEF") to an account or accounts specified by ▇▇▇▇▇▇▇, Sachs & Co., at Kas
Associatie N.V. ("Kas") prior to the Notification Time. It is understood and
agreed by the parties hereto that no delivery or transfer of ADSs or Shares to
be purchased and sold hereunder at a Time of Delivery shall be effective until
and unless payment therefor has been made pursuant hereto and each of Kas,
Citibank, N.A. and the Company shall have furnished or caused to be furnished to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., on behalf of the Underwriters, at such Time of Delivery
certificates and other evidence reasonably satisfactory to ▇▇▇▇▇▇▇, Sachs & Co.
of the execution in favor of the Underwriters of the book-entry transfer of
Shares and ADSs to Kas and DTC, respectively.
The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 6.15 a.m., London time, on February _____, 1999 or such other
time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 6.15 a.m., London time, on the date
specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by
12
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the Underwriters= election to purchase such Optional
Shares, or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(d) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and ADSs and any additional documents requested by the
Underwriters pursuant to Section 7(q) hereof, will be delivered at the offices
of Debevoise & ▇▇▇▇▇▇▇▇, International Financial Centre, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (the "Closing Location"), and the Shares will be
delivered as specified in subsections (b) and (c) above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 3:00 p.m., London
time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you 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 this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, 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
and to furnish you copies thereof; to file promptly all reports
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; to
advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares 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 stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
13
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(iii) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection
with the offering or sale of the Shares and if at such time any events
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 period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your
request to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as you 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, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time nine
months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(iv) To make generally available to its shareholders 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 Company 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);
(v) During the period beginning from the date hereof and continuing
to and including the date 360 days following the date of the Prospectus,
not to, directly or indirectly, offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder and under the International
Underwriting Agreement, any securities of the Company that are
substantially similar to the Shares, including but not limited to the
Company's Class A Preference Shares (but excluding the Company's Class B
Preference Shares) and any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities ("Subject Securities") (other than
(A) to employees and directors of the Company pursuant to
14
stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement; (B) in connection with the DIC Option Agreement; (C) to the
order of UIH Europe in connection with the UIH Europe Convertible Loans;
(D) to Nuon in connection with the Nuon Share Purchase Agreement; or (E)
in the form of warrants to be issued to Microsoft Corporation, as
described in the Prospectus under the caption "Relationship with
Microsoft"; in the cases of (A), (B) and (C) subject to a "lock-up"
agreement, in form and substance satisfactory to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated binding on each such party during the
period beginning from the date hereof and continuing to and including the
date 180 days following the date of the Prospectus (which, for the
avoidance of doubt, may include in the case of DIC the agreement referred
to in Section 7(n) hereof)), or to enter into any derivative transaction
having an economic effect similar to any of the foregoing, without the
prior written consent of ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated; provided, however, that the Company may, from the date 180
days following the date of the Prospectus, (a) issue Subject Securities in
-
private placements to one or more institutional investors of national or
international reputation or (b) sell or otherwise dispose of Subject
-
Securities in exchange for equity securities or assets in a strategic
acquisition, in each case set forth in clause (a) or (b) above subject to
execution by each acquiror of Subject Securities of a "lock-up" agreement,
in form and substance satisfactory to ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, binding on such acquiror during the period
beginning with the date of its acquisition of Subject Securities and
continuing to and including the date 360 days following the date of the
Prospectus;
(vi) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (in English) (including a balance
sheet and statements of income, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent public
accountants and prepared in conformity with generally accepted accounting
principles in the U.S. ("U.S. GAAP")) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year prepared
in accordance with U.S. GAAP (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), to make available
to its shareholders consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(vii) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to
deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
securities exchange on which any class of securities of the Company is
listed and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its shareholders generally or to the Commission);
15
(viii) To use the net proceeds received by it from the sale of the
Shares and ADSs pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(ix) Prior to each Time of Delivery to deposit the Stock with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise to comply with the Deposit Agreement so that ADRs evidencing
ADSs will be executed (and, if applicable, countersigned) and issued by
the Depositary against receipt of such Stock and delivered to the
Underwriters at such Time of Delivery;
(x) Not to (and to cause its subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(xi) To use its best efforts to list, [subject to notice of
issuance], the Shares in the form of shares of Stock on the Amsterdam
Stock Exchange and list for quotation the ADSs on NASDAQ;
(xii) To file with the Commission such information on Form 10-Q and
Form 10-K as may be required by Rule 463 under the Act;
(xiii) If the Company elects to rely upon Rule 462(b), the Company
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 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;
(xiv) Not to deliver (or agree to deliver) shares of Stock to Nuon
pursuant to the Nuon Share Purchase Agreement before the date six months
after the Listing Date (as defined in the Nuon Share Purchase Agreement);
and
(xv) To enforce the "lock up" agreements with DIC and UIH Europe
referred to in Section 5(a)(v) hereof, the "lock up" agreement with
Microsoft Corporation referred to in Section 7 (n) hereof and any "lock
up" agreement entered into by an acquiror of Subject Securities pursuant
to the proviso to Section 5 (a) (v) hereof.
(b) Parent agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and continuing to and
including the date 360 days following the date of the Prospectus, not to,
directly or indirectly, offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder or under the International Underwriting
Agreement, any Subject Securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
16
or exchangeable securities outstanding as of, the date of this Agreement), or
to enter into any derivative transaction having an economic effect similar to
any of the foregoing, without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated; provided, however, that Parent
may, from the date 180 days following the date of the Prospectus, (a) sell
Subject Securities in private placements to one or more institutional
investors of national or international reputation or (b) sell or otherwise
dispose of Subject Securities in exchange for equity securities or assets in
a strategic acquisition, in each case set forth in clause (a) or (b) above
subject to execution by each acquiror of Subject Securities of a "lock-up"
agreement, in form and substance satisfactory to ▇▇▇▇▇▇▇, Sachs & Co. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, binding on such acquiror during the period
beginning with the date of its acquisition of Subject Securities and
continuing to and including the date 360 days following the date of the
Prospectus;
(ii) Not to (and to cause its affiliates not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares; and
(iii) To enforce any "lock up" agreement entered into by an acquiror of
Subject Securities pursuant to the proviso to clause (i) of this Section
5(b).
6 The Company 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 Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, the ADS
Registration Statement, any Preliminary Prospectus and 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, the International Underwriting
Agreement, the Agreement between Syndicates, the Deposit Agreement, the Blue Sky
memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares and ADSs on the Amsterdam Stock
Exchange and NASDAQ; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the reasonable out-of-pocket expenses
(other than fees and disbursements of counsel to the Underwriters and
International Underwriters) incurred by the Underwriters and the International
Underwriters in connection with the transactions contemplated herein and in the
International Underwriting Agreement; (vii) all stamp, transfer, capital
issuance or similar expenses and taxes arising as a result of the deposit by the
Company of the Shares with the Depositary and the issuance and delivery of the
ADRs evidencing ADSs in exchange therefor by the Depositary to the Company as
contemplated by the Deposit Agreement, of the sale and delivery of the Shares
and ADSs by the Company to or for the account of the Underwriters and
17
the International Underwriters pursuant to this Agreement and the International
Underwriting Agreement, of the sale and delivery outside of the Netherlands of
the Shares and ADSs by the Underwriters and the International Underwriters to
each other pursuant to the Agreement between Syndicates, and the sale and
delivery of the Shares and ADSs by the Underwriters and the International
Underwriters to the initial purchasers thereof in the manner contemplated under
this Agreement or the International Underwriting Agreement, and any Dutch
income, capital gains, withholding or other tax asserted against an Underwriter
or an International Underwriter solely by reason of the purchase and sale of any
Shares or ADSs pursuant to this Agreement or the International Underwriting
Agreement or the Agreement between Syndicates; (viii) the fees and expenses
(including fees and disbursements of counsel), if any, of the Depositary and any
custodian appointed under the Deposit Agreement other than the fees and expenses
to be paid by holders of ADRs (other than the Underwriters or the International
Underwriters, in connection with the initial purchase of the Shares or ADSs);
(ix) fees and expenses of the Authorized Agent (as defined in Section 14
hereof); (x) the cost of preparing stock certificates or a global share
certificate (as applicable) and ADRs; (xi) the costs and charges of any transfer
agent or registrar; and (xii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section, including all reasonable roadshow costs. It is
understood, however, that, except as provided in this Section 6 and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses.
7 The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company and Parent shall have performed all of their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus 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 has elected to rely upon Rule 462(b), the Rule 462(b)
Registration 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, the ADS Registration Statement
or any part of either the Registration Statement or the ADS Registration
Statement 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 your reasonable satisfaction;
(b) Debevoise & ▇▇▇▇▇▇▇▇, United States counsel for the Underwriters,
shall have furnished to you such written opinion or opinions (a draft of such
opinion is attached as Annex II(a) hereto), dated such Time of Delivery, with
respect to the matters covered in paragraphs (i), (ii), (iii), (viii), (ix),
(x) and (xi) of subsection (c) below as well as such other related matters as
you 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;
▇▇
(▇) ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company and
Parent, shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(b) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Parent has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
each of this Agreement, the International Underwriting Agreement and the
agreement referred to in Section 7(t) of this Agreement has been duly
authorized, executed and delivered by Parent and, insofar as New York law
is concerned, each of this Agreement and the International Underwriting
Agreement has been duly executed and delivered by the Company;
(ii) The Deposit Agreement has been duly executed and delivered by
the Company and, assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary and that each of the Depositary and
(under Dutch law) the Company has full power, authority and legal right to
enter into and perform its obligations thereunder, constitutes a valid and
legally binding agreement of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and similar laws of
general applicability relating to or affecting creditors' rights generally
and to general principles of equity; and the statements set forth under
the caption "Description of American Depositary Shares" in the Prospectus,
insofar as such statements purport to summarize certain provisions of the
Deposit Agreement, fairly summarize, in all material respects, such
provisions;
(iii) Upon due issuance by the Depositary of the Master ADR
evidencing ADSs being delivered at such Time of Delivery against the
deposit of Shares in respect thereof in accordance with the provisions of
the Deposit Agreement, such Master ADR will be duly and validly issued and
the person in whose name the Master ADR is registered will be entitled to
the rights specified therein and in the Deposit Agreement;
(iv) 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;
(v) 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 Company, Parent or any of their respective
subsidiaries is a party or of which any
19
property of the Company, Parent or any of their respective subsidiaries is
the subject, and with respect to which there is a reasonable expectation
of an adverse determination that would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to
which the Company or such subsidiary is a party or by which it or any of
its properties may be bound, except for such defaults as would not, singly
or in the aggregate, reasonably be expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(vii) The issue and sale of the Shares being delivered at such Time
of Delivery and the deposit of the Shares being deposited by the Company
with the Depositary against issuance of the Master ADR to be delivered at
such Time of Delivery and the compliance by the Company and Parent with
all of the provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the Company, Parent
or any of their respective subsidiaries is a party or by which the
Company, Parent or any of their respective subsidiaries is bound or to
which any of the property or assets of the Company, Parent or any of their
respective subsidiaries is subject, except for such breaches, violations
or defaults as would not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole, nor will such action result in any
violation of the certificate of incorporation or bylaws of Parent or any
statute, rule or regulation or, to the knowledge of such counsel, any
order, of any United States Federal or New York Governmental Agency having
jurisdiction over the Company, Parent or any of their respective
subsidiaries or properties;
(viii) No Governmental Authorization of the United States or the State
of New York is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except the
registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters;
(ix) The statements set forth in the Prospectus under the caption
"Description of American Depositary Shares", insofar as they purport to
constitute a summary of the
20
terms of the ADSs, under the caption "Taxation" and under the caption
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate and fairly summarize
such laws and documents in all material respects;
(x) The Company is not an "investment company", as such term is
defined in the Investment Company Act; and
(xi) The Registration Statement, the ADS Registration Statement and
the Prospectus and any further amendments and supplements thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related 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 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, the
ADS Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (ix) of this Section 7(c), they have no
reason to believe that, as of its effective date, the Registration
Statement or the ADS Registration Statement or any further amendment
thereto made by the Company prior to such 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 or any further amendment or
supplement thereto made by the Company prior to such 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 such Time of Delivery, either the
Registration Statement, the ADS Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the Company prior
to such 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 or the ADS
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or the ADS Registration Statement or required to be
described in the Registration Statement, the ADS Registration Statement or
the Prospectus which are not filed or described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
▇▇
(▇) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Annex II(c) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a public limited liability company under the laws of The Netherlands,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized share capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable; all of the shares of Stock (including the Shares) have
been duly listed and admitted for trading on the Amsterdam Stock Exchange,
subject to notice of issuance; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to acquire the Shares to be purchased from the Company under this
Agreement or the International Underwriting Agreement which have not been
complied with; the Shares may be freely deposited by the Company with the
Depositary against issuance of ADRs evidencing ADSs; the Shares are freely
transferable by the Company to or for the account of the several
Underwriters and the International Underwriters in the manner contemplated
herein and in the International Underwriting Agreement and the initial
purchasers thereof; there are no restrictions on subsequent transfers of
the Shares except as described in the Prospectus under the caption "Shares
Eligible for Future Sale"; and the Shares conform to the description of
the Stock contained in the Prospectus;
(iii) All Governmental Authorizations of and with any Governmental
Agency in The Netherlands required for the Shares to be duly and validly
authorized and issued have been obtained or made and are in full force and
effect;
(iv) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(v) The Company 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 or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so qualified
in any such jurisdiction (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and certificates);
22
(vi) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(vii) The issue and sale of the Shares being delivered at such Time
of Delivery and the deposit of the Shares being deposited by the Company
with the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Time of Delivery and the compliance by the Company with
all of the provisions of this Agreement, the International Underwriting
Agreement and the Deposit Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Articles of Association of the Company or any statute or any order, rule
or regulation known to such counsel of any Governmental Agency having
jurisdiction over the Company or any of its subsidiaries or any of their
properties;
(viii) No Governmental Authorization of or with any Governmental
Agency is required in The Netherlands for the issue and sale of the Shares
by the Company, the deposit of the Shares being deposited by the Company
with the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Time of Delivery or the consummation by the Company of
the transactions contemplated by this Agreement and the International
Underwriting Agreement;
(ix) The statements in the Prospectus under the captions
"Enforcement of Civil Liabilities", "Regulation", "Description of Share
Capital" and "Summary of Additional Material Provisions of the Articles of
Association and Other Matters", to the extent such statements relate to
matters of Dutch 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;
(x) The opinions of such counsel set forth in the Prospectus under
the caption "Enforcement of Civil Liabilities" are confirmed as of such
Time of Delivery;
(xi) 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;
(xii) The choice in Section 14 hereof of the laws of the State of New
York as the law governing this Agreement is valid and binding on the
Company under the laws of The Netherlands, except (i) to the extent that
any term of this Agreement or any provision of New York law applicable to
this Agreement is manifestly incompatible
23
with the public policy of The Netherlands and (ii) a Netherlands court may
give effect to mandatory rules of the laws of another jurisdiction
(including the Netherlands) with which the matter under review has a close
connection, if and insofar as under the laws of such other jurisdiction
those rules must be applied, irrespective of the governing law chosen by
the parties; the Company can ▇▇▇ and be sued in its own name under the
laws of The Netherlands; the consent to the jurisdiction of a New York
Court as provided in this Agreement is valid and binding on the Company
under the laws of The Netherlands, provided, that such consent will not be
given effect with respect to (a) a claim the amount of which does not
exceed NLG 5,000, (b) certain specified labour and tenancy law-related
disputes and (c) claims for provisional measures before the president of a
competent court in The Netherlands; in the absence of an applicable treaty
between the United States and The Netherlands, a judgment rendered by a
New York Court will not be enforced by the court in The Netherlands, and
the claim must be relitigated before a competent Netherlands court; a
judgment rendered by a New York Court pursuant to this Agreement will,
under current practice, be recognized by a Netherlands court if such
judgment (i) results from proceedings compatible with Dutch concepts of
due process and (ii) does not contravene public policy (ordre public) of
The Netherlands; if such judgment by a New York Court is recognized by a
Netherlands court, such Netherlands court will generally grant the same
judgment without relitigation on the merits; and service of process
effected in the manner set forth in Section 14 hereof will be effective,
insofar as the laws of The Netherlands are concerned, to confer valid
personal jurisdiction over the Company; and
(xiii) The indemnification and contribution provisions set forth in
Section 8 hereof do not contravene the public policy or laws of The
Netherlands.
In giving such opinion, such counsel may state that with respect to
all matters of United States federal and New York law they have relied
upon the opinions of United States counsel for the Company delivered
pursuant to paragraph (c) of this Section 7;
(e) Anton H. E. van Voskuijlen, Managing Director, General Counsel and
Senior Vice President, Legal of the Company, shall have furnished to you his
written opinion (a draft of such opinion is attached as Annex II(d) hereto),
dated such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) The Company has been duly incorporated and is validly existing
as a public limited liability company under the laws of The Netherlands,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable; all of the shares of Stock (including the Shares) have
been duly listed and admitted for trading on the Amsterdam Stock
Exchange[, subject to notice of issuance]; the holders of outstanding
shares of capital
24
stock of the Company are not entitled to preemptive or other rights to
acquire the Shares to be purchased from the Company under the Underwriting
Agreements which have not been complied with; the Shares may be freely
deposited by the Company with the Depositary against issuance of ADRs
evidencing ADSs; the Shares are freely transferable by the Company to or
for the account of the several Underwriters in the manner contemplated
herein and in the International Underwriting Agreement and (to the extent
described in the Prospectus) the initial purchasers thereof; there are no
restrictions on subsequent transfers of the Shares except as described in
the Prospectus under the captions "Shares Eligible for Future Sale" and
"Description of American Depositary Shares"; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) All Governmental Authorizations of or with any Governmental
Agency in The Netherlands required for the Shares to be duly and validly
authorized and issued have been obtained or made and are in full force and
effect;
(iv) The Deposit Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Company has been duly qualified for the transaction of
business outside The Netherlands and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or conducts
any 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 (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of the
Company, provided that such counsel shall state that he believes that both
you and he are justified in relying upon such opinions and certificates);
(vi) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation; and all of the issued shares of capital
stock of each such subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except for
directors' qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel
shall state that he believes that both you and he are justified in relying
upon such opinions and certificates);
(vii) The Company and its subsidiaries have good and marketable title
to all material real property owned by them, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially adversely affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company and its
25
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as do not have a material adverse
effect on the Company and its subsidiaries taken as a whole and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries (in giving the opinion in
this clause, such counsel may state that no examination of record titles
for the purpose of such opinion has been made, and that they are relying
upon a general review of the titles of the Company and its subsidiaries,
upon opinions of local counsel and abstracts, reports and policies of
title companies rendered or issued at or subsequent to the time of
acquisition of such property by the Company or its subsidiaries, upon
opinions of counsel to the lessors of such property and, in respect of
matters of fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he believes that
both you and he are justified in relying upon such opinions, abstracts,
reports, policies and certificates);
(viii) 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 Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency or
threatened by others;
(ix) This Agreement and the International Underwriting Agreement have
been duly authorized, executed and delivered by the Company;
(x) The issue (as applicable) and sale of the Shares to be sold by
the Company at such Time of Delivery and the deposit of the Shares being
deposited with the Depositary in accordance with the provisions of the
Deposit Agreement against issuance of the ADRs evidencing the ADSs in
respect thereof to be delivered at such Time of Delivery and the
compliance by the Company with all of the provisions of this Agreement,
the International Underwriting Agreement and the Deposit Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the Articles of Association of the Company or any
statute, other applicable law or any order, rule or regulation known to
such counsel of any Governmental Agency having jurisdiction over the
Company or any of its subsidiaries or any of their properties except, with
respect in any such case to the subsidiaries of the Company, as would not,
singly or in
26
the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(xi) No Governmental Authorization of or with any Governmental
Agency is required in The Netherlands for the issue and sale of the Shares
by the Company, the deposit of the Shares being deposited with the
Depositary in accordance with the provisions of the Deposit Agreement
against issuance of ADRs evidencing the ADSs in respect thereof to be
delivered at such Time of Delivery by the Company or the consummation by
the Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement;
(xii) Other than as set forth in the Prospectus, the Company and each
of its subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from all
Governmental Agencies that are necessary to own or lease their other
properties and conduct their current businesses as described in the
Prospectus, with such exceptions as would not, materially or in the
aggregate, have a material adverse effect on the current or future
financial consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a whole;
(xiii) Neither the Company nor any of its subsidiaries is in violation
of its Articles of Association or other constituent documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound;
(xiv) The statements set forth in the Prospectus under the captions
"Description of Share Capital" and "Description of American Depositary
Shares", insofar as they purport to constitute a summary of the terms of
the Stock and ADSs, respectively, and under the captions "Taxation" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
and
(xv) Although he does 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 (xiv) of this Section 7(e), he has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such 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 or any further
amendment or supplement thereto made by the Company prior to such 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,
27
in the light of the circumstances under which they were made, not
misleading or that, as such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such 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;
In giving such opinion, such counsel may state that with respect to
all matters of United States federal and New York law he has relied upon
the opinions of United States counsel for the Company delivered pursuant
to paragraph (c) of this Section 7;
(f) Counsel for the Depositary shall have furnished to you their written
opinion (a draft of such opinion is attached as Annex II(e) hereto), dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally binding
obligation of the Depositary, enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(ii) The ADRs issued under and in accordance with the provisions of
the Deposit Agreement to evidence ADSs will entitle the holders thereof to
the rights specified therein and in the Deposit Agreement, assuming that
(A) the Shares represented by the ADSs which are in turn evidenced by the
Master ADR have been duly authorized and validly issued and are fully paid
and nonassessable and that any preemptive rights with respect to the
Shares have been validly waived or exercised and (B) such Shares have been
duly deposited with [name of depositary] as Custodian, in each case under
and in accordance with all applicable laws and regulations;
(g) ▇▇▇▇▇ Dutilh, Netherlands counsel for the Underwriters, shall have
furnished to you such written opinion or opinions (a draft of each such
opinion is attached as Annex II(f) hereto), dated such Time of Delivery, with
respect to the matters covered in [paragraphs (i), (vi), (viii), (ix), (xi),
(xii) and (xiii) of subsection (d) above and in paragraphs (iii) and (iv) of
subsection (s) below], as well as such other related matters as you 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;
(h) Houthoff Advocaten & Notarissen, Netherlands counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(g) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Each Netherlands subsidiary of the Company has been duly
incorporated and is validly existing as a corporation under the laws of
The Netherlands; and all of the
28
issued shares of capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares and except as otherwise set forth
in the Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided that
such counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(ii) The Company and its subsidiaries have good and marketable title
to all real property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its subsidiaries
(in giving the opinion in this clause, such counsel may state that no
examination of record titles for the purpose of such opinion has been
made, and that they are relying upon a general review of the titles of the
Company and its subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies rendered or issued at
or subsequent to the time of acquisition of such property by the Company
or its subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect of matters of fact, upon certificates of officers
of the Company or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinions, abstracts, reports, policies and certificates);
(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 Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency or
threatened by others;
(iv) The issue and sale of the Shares being delivered at such Time
of Delivery and the deposit of the Shares being deposited by the Company
with the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Time of Delivery and the compliance by the Company with
all of the provisions of this Agreement, the International Underwriting
Agreement and the Deposit Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute
29
a default under, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Articles of Association
of the Company or any statute or any order, rule or regulation known to
such counsel of any Governmental Agency having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and
(v) Neither the Company nor any of its subsidiaries is in violation
of its Articles of Association or other constituent documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound.
(i) Austrian, Norwegian, Belgian and Israeli counsel for the Company
satisfactory to you shall each have furnished to you their written opinion
(drafts of such opinions are attached as Annexes II(h), (i), (j) and (k),
respectively, hereto), dated such Time of Delivery, in form and substance
satisfactory to you, as to such matters relating to the operations of the
Company and its subsidiaries in their respective jurisdictions and the
descriptions thereof in the Prospectus as you reasonably request;
(j) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 2:30 p.m., London time, on the effective date of any post-
effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
KPMG Accountants N.V., PricewaterhouseCoopers N.V., VB Deloitte & Touche and
Ivar Lytomt shall each have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto (executed copies of the
letters delivered prior to the execution of this Agreement are attached as
Annex I(a) hereto and drafts of the form of letters to be delivered on the
effective date of any post-effective amendment to the Registration Statement
and as of each Time of Delivery are attached as Annex I(b) hereto);
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or other legal or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or long-
term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, condition (financial or otherwise), shareholders' equity
or results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated so material and adverse as
to make it impracticable or inadvisable to proceed
30
with the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(l) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the NASDAQ or the Amsterdam Stock
Exchange and/or the London Stock Exchange; (ii) a suspension or material
limitation in trading in the Company=s securities on the NASDAQ or the
Amsterdam Stock Exchange; (iii) a general moratorium on commercial banking
activities in New York, London or Amsterdam declared by the relevant
authorities; (iv) a change or development involving a prospective change in
Dutch taxation affecting the Company, the Shares or the transfer thereof or
the imposition of exchange controls by the United States or The Netherlands;
(v) the outbreak or escalation of hostilities involving the United States,
the United Kingdom or The Netherlands or the declaration by the United
States, the United Kingdom or The Netherlands of a national emergency or war,
if the effect of any such event specified in this clause (v) in the judgment
of ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus; or (vi) the occurrence of
any material adverse change in the existing financial, political or economic
conditions in the United States, the United Kingdom, The Netherlands or
elsewhere which, in the judgment of ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated would materially and adversely affect the financial markets
or the market for the Shares and other equity securities;
(m) The Shares to be sold by the Company at such Time of Delivery shall
have been duly listed, subject to notice of issuance, on the Amsterdam Stock
Exchange and the ADSs to be sold by the Company at such Time of Delivery
shall have been duly listed for quotation on NASDAQ;
(n) The Company shall have obtained and delivered to you executed
copies of an agreement from DIC, UIH Europe and Microsoft Corporation to the
effect set forth in Section 5(b)(i) hereof, in form and substance
satisfactory to you, with respect to any securities of the Company acquired
by such party during the 180-day period following the date of the Prospectus;
(o) The Depositary shall have furnished or caused to be furnished to
you as at such Time of Delivery certificates satisfactory to you evidencing
the deposit with it of the Shares being so deposited against issuance of ADRs
evidencing the ADSs to be delivered by the Company at such Time of Delivery,
and the execution, countersignature (if applicable), issuance and delivery of
ADRs evidencing such ADSs pursuant to the Deposit Agreement;
(p) The Company shall have complied with the provisions of subsection
(a)(iii) of Section 5 hereof with respect to the furnishing of prospectuses
on the New York Business Day next succeeding the date of this Agreement;
31
(q) The Company and Parent shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company and
of Parent (as applicable), respectively, satisfactory to you, as to the
accuracy of the representations and warranties of the Company herein at and
as of such Time of Delivery, as to the performance by the Company and Parent
of all of their respective obligations hereunder to be performed at or prior
to such Time of Delivery, and as to such other matters as you may reasonably
request, and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (k) of this
Section 7, and as to such other matters as you may reasonably request;
(r) The Company shall have received from The Toronto-Dominion Bank: (i) a
waiver, in form and substance satisfactory to you, to the effect that the
lenders under the Company's NLG 1,100,000,000 multi-currency Revolving Credit
Facility under the Loan Agreement, dated as of October 8, 1997, between the
Company and certain of its subsidiaries and The Toronto Dominion Bank as
Agent for the financial institutions identified therein, as amended (the
"Tranche A Facility"), have waived any violation of the terms of the Tranche
A Facility that may be caused by the consummation of the offering and other
transactions contemplated in the Prospectus, including without limitation the
Company's use of proceeds of the offering as described in the Prospectus; and
(ii) an amendment or waiver, in form and substance satisfactory to you, of
the Tranche A Facility's debt coverage covenants (including the covenant
governing the Company's permitted ratio of net debt to EBITDA);
(s) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have furnished you its written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The statements in the Prospectus under "Taxation", to the
extent such statements relate to matters of Dutch law or regulation, are
true and accurate in all material respects, and nothing has been omitted
from such statements that would make the same misleading in any material
respect;
(ii) The opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ set forth in the Prospectus and
in the International Prospectus under "Taxation" are confirmed as of such
Time of Delivery;
(iii) Other than as set forth in the Prospectus, 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
or the International Underwriters to The Netherlands or to any political
subdivision or taxing authority thereof or therein in connection with (A)
the deposit with the Depositary of Shares by the Company against the
issuance of ADRs evidencing the ADSs, (B) the sale and delivery by the
Company of the Shares to or for the respective accounts of the
Underwriters and the International Underwriters or (C) the sale and
delivery outside The Netherlands by the Underwriters and the International
Underwriters of Shares to the initial purchasers thereof in the manner
contemplated herein and in the International Underwriting Agreement; and
(iv) Other than as set forth in the Prospectus, all dividends and
other distributions declared and payable on the shares of capital stock of
the Company may
32
under the current laws and regulations of The Netherlands be paid in euros
or Dutch guilders (including any such dividends or distributions to be
paid to the Depositary) that may be converted into foreign currency that
may be freely transferred out of The Netherlands, and all such dividends
and other distributions will not be subject to withholding or other taxes
under the laws and regulations of The Netherlands and are otherwise free
and clear of any other tax, withholding or deduction in The Netherlands
and without the necessity of obtaining any Governmental Authorization in
The Netherlands;
(t) ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated shall have
received from Parent an agreement, satisfactory in form and substance to
▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated certifying as to
the accuracy of certain information supplied by Parent and contained in the
Registration Statement (which agreement shall contain an indemnity from
Parent to the Underwriters in substantially the form of Section 8 hereof with
respect to losses, claims, damages or liabilities arising in connection with
any such information); and
(u) Counsel to the Company or Parent, satisfactory to you, in each such
jurisdiction as the Company may request the Underwriters to allocate Shares
to employees and others as described in the Prospectus under the caption
"Underwriting", shall each have furnished to you their written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, as to such
matters as you reasonably request.
8. (a) The Company and Parent, jointly and severally, will 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, the Registration Statement, the ADS Registration
Statement or the Prospectus, 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 Parent 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, the
Registration Statement, the ADS Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇, Sachs
& Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated expressly for use therein;
(b) Each Underwriter will indemnify and hold harmless the Company and
Parent against any losses, claims, damages or liabilities to which the Company
and Parent 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, the Registration
Statement, the ADS
33
Registration Statement or the Prospectus, 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, the Registration
Statement, the ADS Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇, Sachs
& Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated expressly for use therein; and will
reimburse the Company and Parent for any legal or other expenses reasonably
incurred by the Company and Parent 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 an 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 (which 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 Parent on the one hand and the Underwriters on the other from
the offering of the Shares. 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
34
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and Parent on the one hand and the
Underwriters 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 Parent on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the U.S. Prospectus. 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 Parent on the one hand or the
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, Parent and the Underwriters agree that it would not be just and
equitable if contributions 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 Shares 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 Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint. The Company's and
Parent's obligations in this subsection (d) to contribute are joint and several.
(e) Notwithstanding the foregoing, the liability of Parent in connection
with the indemnification and contribution provisions contained in subsections
(a) and (d) of this Section 8 shall not exceed the amount, if any, of proceeds
from the offering of the Shares transferred directly or indirectly to Parent or
any of its affiliates by the Company or any of its affiliates in repayment of
any indebtedness of the Company to Parent outstanding, or otherwise.
(f) The obligations of the Company and Parent under this Section 8 shall be
in addition to any liability which the Company and Parent 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
35
the Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, 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 you
to purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notify you that they have so arranged
for the purchase of such Shares, you or the Company shall have the right to
postpone such Time of Delivery 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, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion 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 this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
of the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number
of Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares 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
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or Parent, 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, Parent and the several Underwriters, as set
forth in this Agreement or made by
36
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 thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or Parent, or any officer or director
or controlling person of the Company, and shall survive delivery of and payment
for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor Parent shall then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated for all out-of-pocket expenses approved in
writing by ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and Parent shall then be under no further liability
to any Underwriter in respect of the Shares not so delivered except as provided
in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
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 you jointly or by ▇▇▇▇▇▇▇, Sachs & Co. on behalf of you as the
representatives of the Underwriters.
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 you as the representatives in care of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; and if to the Company or Parent shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: President; 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 Parent by you
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and Parent and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company 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. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or Parent 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
37
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 has appointed
__________________, New York, New York, as its authorized agent (the "Authorized
Agent") upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which may be
instituted in any New York Court by any Underwriter or by any person who
controls any Underwriter, expressly 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. The Company represents and warrants that the Authorized Agent
has agreed to act as such agent for service of process and agrees to take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company.
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 Parent, jointly and severally,
will indemnify each Underwriter against any loss incurred by such Underwriter as
a result of any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which an
Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing
indemnity shall constitute a separate and independent obligation of the Company
and Parent 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 this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
38
If the foregoing is in accordance with your understanding, please sign and
return to us [five] counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and Parent. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters (U.S. Version), the form of which shall be
submitted to the Company and Parent for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
United Pan-Europe Communications N.V.
By:_______________________________________________
Name:
Title:
United International Holdings, Inc.
By:_______________________________________________
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇▇, Sachs & Co.
-----------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:__________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
By:__________________________
Name:
Title:
On behalf of each of the Underwriters
39
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares to be Maximum Option
Underwriter Purchased Exercised
----------- --------- ---------
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
[Names of other Underwriters]
Total
