ING GROEP N.V.
(a limited liability company with corporate seat
in Amsterdam, The Netherlands)
UNDERWRITING AGREEMENT
DATED: December 2, 2005
TABLE OF CONTENTS
PAGE
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Section 1. Representations And Warranties By The Company .................................................. 4
Section 2. Sale And Delivery To Underwriters; Closing ..................................................... 10
Section 3. Covenants Of The Company ...................................................................... 13
Section 4. Payment Of Expenses ............................................................................ 17
Section 5. Conditions Of Underwriters' Obligations ........................................................ 18
Section 6. Indemnification ................................................................................ 22
Section 7. Contribution ................................................................................... 25
Section 8. Representations, Warranties And Agreements To Survive Delivery ................................. 26
Section 9. Termination Of Agreement ....................................................................... 27
Section 10. Default By One Or More Of The Underwriters ..................................................... 27
Section 11. Arm's Length Relationship; No Fiduciary Duty ................................................... 28
Section 12. Notices ........................................................................................ 28
Section 13. Parties ........................................................................................ 29
Section 14. Governing Law, Submission For Jurisdiction ..................................................... 29
Section 15. Judgment Currency .............................................................................. 30
Section 16. Effect Of Headings ............................................................................. 30
Schedule A: Names of Underwriters and Number of Initial Underwritten Securities to be Purchases .......... 33
Schedule B: Time of Sale Prospectus and Free Writing Prospectuses ........................................ 34
Schedule C: Bloomberg Notice/Term Sheet .................................................................. 35
Exhibit A: Form of Opinion of Dutch Counsel to the Company .............................................. A-1
Exhibit B: Form of Opinion of General Counsel to the Company ............................................ B-1
Exhibit C: Form of Opinion of U.S. Counsel to the Company ............................................... C-1
Exhibit D: Form of Opinion of Counsel to the Indenture Trustee .......................................... D-1
Exhibit E: Form of Opinion of Dutch Tax Counsel to the Company .......................................... E-1
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ING GROEP N.V.
(a limited liability company with corporate seat
in Amsterdam, The Netherlands)
5.775% Fixed/Floating ING Perpetual Debt Securities
US$1,000,000,000
UNDERWRITING AGREEMENT
December 2, 2005
ING Financial Markets LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
As Representatives of the Several Underwriters named in Schedule A hereto
Ladies and Gentlemen:
ING Groep N.V., a limited liability company incorporated under the laws of
The Netherlands (the "COMPANY"), confirms its agreement (this "AGREEMENT") with
ING Financial Markets LLC ("ING FINANCIAL"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and each of the other Underwriters
named in Schedule A hereto (collectively, the "UNDERWRITERS," which term shall
also include any underwriter substituted as provided in Section 10 hereof), for
whom ING Financial, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are acting as
representatives (in such capacity, hereinafter referred to as the
"REPRESENTATIVES"), with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the respective principal
amount of the Company's 5.775% Fixed/Floating ING Perpetual Debt Securities (the
"SECURITIES") set forth opposite their names in Schedule A hereto.
The Securities will be issued pursuant to the Indenture, dated July 18,
2002 (the "SUBORDINATED INDENTURE"), between the Company and The Bank of New
York, as indenture trustee (the "INDENTURE TRUSTEE"), as supplemented by the
Fifth Supplemental Indenture (the "SUPPLEMENTAL INDENTURE" and, together
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with the Subordinated Indenture, the "INDENTURE") to be dated as of the date on
which the Closing Time referred to in Section 2(c) hereof occurs (such date, the
"CLOSING DATE"), and a Calculation Agency Agreement (the "CALCULATION AGENCY
AGREEMENT"), to be dated as of the Closing Date, between the Company and ING
Financial Markets LLC, as calculation agent.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") an automatic shelf registration statement on Form F-3 (No.
333-130040) covering the registration of various types of securities under the
1933 Act, including the Securities. As used in this Agreement, the following
terms have the following meanings:
"1933 ACT" means the U.S. Securities Act of 1933, as amended.
"1934 ACT" means the U.S. Securities Exchange Act of 1934, as amended.
"1939 ACT" means the U.S. Trust Indenture Act of 1939, as amended.
"BASIC PROSPECTUS" means the basic prospectus filed as part of the
Registration Statement in the form in which it has most recently been filed with
the Commission on or prior to the date hereof.
"FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405 under the
1933 Act.
"IFRS" means International Financial Reporting Standards as issued by the
International Accounting Standard Board and as endorsed by the European
Commission.
"IFRS FINANCIAL INFORMATION" means collectively (i) the unaudited
condensed balance sheet information at January 1, 2005 and the unaudited
condensed consolidated income statement data for the year ended December 31,
2004 and for each of the four quarters in the year ended December 31, 2004,
incorporated by reference in the Registration Statement from the Company's
Report of Foreign Private Issuer on Form 6-K filed with the Commission on
September 14, 2005 (the "2004 COMPARABLE IFRS FINANCIAL INFORMATION 6-K") and
(ii) the unaudited condensed consolidated balance sheets at September 30, 2005
and January 1, 2005 and the unaudited consolidated profit and loss accounts for
the nine-month periods ended September 30, 2005 and 2004, and the unaudited
condensed consolidated statement of cash flows for the nine-month periods ended
September 30, 2005 and 2004 incorporated by reference in the
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Registration Statement from the Company's Report of Foreign Private Issuer on
Form 6-K filed with the Commission on November 14, 2005 (the "NINE-MONTH IFRS
6-K") and the IFRS information as of June 30, 2005 and for the six-month periods
ended June 30, 2005 and 2004, together with other IFRS information included in
the Company's Reports of Foreign Private Issuer on Form 6-K filed with the
Commission on September 23, 2005 and November 30, 2005 (the "SIX-MONTH IFRS
6-KS" and, together with the Nine-Month IFRS 6-K, the "IFRS INTERIM 6-KS"), in
each case prepared on the basis of IFRS at March 31, 2004 (stable platform).
"ISSUER FREE WRITING PROSPECTUS" has the meaning set forth in Rule 433
under the 1933 Act.
"NOVEMBER BASIC PROSPECTUS" means the basic prospectus dated November 25,
2005 filed as part of the November Registration Statement.
"NOVEMBER REGISTRATION STATEMENT" means the shelf registration statement
on Form F-3 (File No. 333-129962) filed with the Commission on November 25, 2005
pursuant to the 1933 Act, relating to the registration of $1,000,000,000 of debt
securities.
"PCAOB" means the United States Public Company Accounting Oversight Board.
"PRELIMINARY PROSPECTUS" means any preliminary prospectus (including any
preliminary prospectus supplement with respect to the Securities supplementing
the November Basic Prospectus) filed with the Commission pursuant to Rule 424(b)
under the 1933 Act.
"PROSPECTUS" means the Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Securities in the form filed pursuant to
Rule 424(b) of the 1933 Act (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173
under the ▇▇▇▇ ▇▇▇); and any reference herein to the November Basic Prospectus,
the Basic Prospectus, any Preliminary Prospectus, the Time of Sale Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the 1933
Act, as of the date of such November Basic Prospectus, Basic Prospectus,
Preliminary Prospectus, Time of Sale Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to the November Basic
Prospectus, the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such November Basic Prospectus, Basic Prospectus,
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Preliminary Prospectus or Prospectus, as the case may be, under the 1934 Act,
and incorporated by reference in such November Basic Prospectus, Basic
Prospectus, Preliminary Prospectus or Prospectus, as the case may be; and any
reference to the Prospectus as amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in relation to the Securities in
the form in which it is filed with the Commission pursuant to Rule 424(b) of the
rules and regulations of the Commission under the 1933 Act (the "1933 ACT
REGULATIONS"), including any documents incorporated by reference therein as of
the date of such filing.
"REGISTRATION STATEMENT" means collectively the various parts of the
"automatic shelf registration statement" as defined under Rule 405 of the 1933
Act on Form F-3 (File No. 333-130040) at the time such parts became effective,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the automatic shelf registration statement, but
excluding any Statement of Eligibility on Form T-1 and including any prospectus
supplement relating to the Securities that is filed with the Commission and
deemed by virtue of Rule 430B to be part of the Registration Statement; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual or other report of the Company filed pursuant to
Sections 13(a) or 15(d) of the 1934 Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement.
"TIME OF SALE" means 12:35 p.m. (New York time) on December 2, 2005, which
occurred prior to the first sale of any Securities by any Underwriter.
"TIME OF SALE PROSPECTUS" means the November Basic Prospectus and the
Preliminary Prospectus dated and filed with the Commission on November 28, 2005,
together with the Free Writing Prospectus listed on Schedule B hereof.
Section 1. Representations And Warranties By The Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof (in each case, a "REPRESENTATION
DATE"), and agrees with each Underwriter, as follows:
(a) Compliance with Registration Requirements. A Registration Statement in
respect of the Securities has been filed with the Commission not earlier than
three years prior to the date hereof. The Registration Statement, and any
post-effective amendment thereto filed on or prior to the date hereof, became
effective on filing under the 1933 Act, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act,
no proceedings for that purpose against the Company have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission,
and no notice of objection that the Commission objects to the use of the
Registration Statement as an automatic shelf registration has been received by
the Company. The Securities, since their registration on the Registration
Statement, have been
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and remain eligible for registration by the company on an "automatic shelf
registration statement" as defined under Rule 405 of the 1933 Act.
At the respective times the Registration Statement and any post-effective
amendment thereto became effective and on each date on which the Prospectus as
amended or supplemented is deemed to be a new effective date of the Registration
Statement and at each Representation Date, the Registration Statement, and any
amendments and supplements thereto complied and will comply in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 ACT REGULATIONS"), as applicable, and did not, and
will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued nor the Prospectus as amended or supplemented, as of its date and at each
Representation Date, nor the Time of Sale Prospectus as of the Time of Sale and
at each Representation Date, included or will include an untrue statement of a
material fact or omitted, or will omit, to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties in this
subsection shall not apply to statements in, or omissions from, the Registration
Statement, the Time of Sale Prospectus or the Prospectus, as amended or
supplemented, made in reliance upon and in conformity with information furnished
to the Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement, the Time of Sale Prospectus or
the Prospectus, as amended or supplemented.
Each Preliminary Prospectus and the Basic Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations.
(b) Status under the 1933 Act. The Company is a "well-known seasoned
issuer" and is not an "ineligible issuer", in each case as defined under Rule
405 under the 1933 Act, in each case at the times specified in the 1933 Act and
the 1933 Act Regulations in connection with the offering of the Securities. The
Company has paid the registration fee for this offering pursuant to Rule
456(b)(1) under the 1933 Act or will pay such fees within the time period
required by such rule (without giving effect to the proviso therein).
(c) Free Writing Prospectus. The Company (including its agents and
representatives, other than the Underwriters) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any Free Writing Prospectus other than (i) any document not
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constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act; (ii)
the documents listed on Schedule B hereto and other written communications
approved in writing in advance by the Representatives; or (iii) an electronic
road show, if any, furnished to the Representatives for their approval before
first use. Any such Free Writing Prospectus as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities, complies or will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and has been, or will
be, filed with the Commission in accordance with the 1933 Act (to the extent
required pursuant to Rule 433(d) thereunder).
(d) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the November Registration Statement, the
Registration Statement, the Time of Sale Prospectus and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1933 Act, the 1933
Act Regulations and the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 ACT REGULATIONS"), as applicable, and, when read together
with the other information in the Time of Sale Prospectus and the Prospectus, at
the time the Registration Statement became effective, as of the date of the
applicable Time of Sale Prospectus and at the time the Prospectus was issued,
did not, and will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The representations and warranties in this
subsection shall not apply to statements in, or omissions from, the November
Registration Statement, the Registration Statement, the Time of Sale Prospectus
or the Prospectus, as amended or supplemented, made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the November
Registration Statement, the Registration Statement, the Time of Sale Prospectus
or the Prospectus, as amended or supplemented.
(e) Independent Accountants. The independent auditors who certified the
financial statements included in the Registration Statement are independent
public accountants as required by the PCAOB, the 1933 Act and the 1933 Act
Regulations with respect to the Company and its subsidiaries.
(f) Good Standing of the Company. The Company and each of its subsidiaries
classified as a "significant subsidiary" as defined under Rule 405 of the 1933
Act Regulations (each a "SIGNIFICANT SUBSIDIARY") has been duly incorporated
under the laws of The Netherlands or its respective jurisdiction of
incorporation, as the case may be, except to the extent that the failure to be
duly incorporated would not have a material adverse effect on the consolidated
financial position and consolidated results of operations of the Company and its
Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). The
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Company and each of its Significant Subsidiaries is validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, is duly
qualified to do business and in good standing in each other jurisdiction in
which qualification is necessary for the ownership of its respective properties
or for the conduct of its respective businesses, except to the extent that the
failure to be validly existing, qualified or in good standing would not have a
Material Adverse Effect.
The Company has the power and authority necessary to own or hold its
properties, to enter into this Agreement, the Indenture and the Calculation
Agency Agreement, to perform its obligations under the Securities, this
Agreement, the Indenture and the Calculation Agency Agreement and to conduct the
businesses in which it is engaged, as described in the Time of Sale Prospectus,
except to the extent that the failure to do so would not have a Material Adverse
Effect.
(g) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered (if applicable under applicable law) by the Company.
(h) Absence of Defaults and Conflicts; Absence of Further Requirements.
None of the Company or any of its Significant Subsidiaries is in violation of
the constituent documents, charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or such Significant Subsidiary is a party or
by which any of them may be bound, or to which any of the property or assets of
the Company or any such Significant Subsidiary is subject, except a default in
performance or observance of an obligation, agreement, covenant or condition
that does not have and is not likely to have a Material Adverse Effect. The
execution, delivery (if applicable under applicable law) and performance of the
Securities, this Agreement, the Indenture and the Calculation Agency Agreement
by the Company and the consummation of the transactions contemplated hereby and
thereby do not and will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Significant Subsidiaries under any
material indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any such Significant Subsidiary
is a party or by which any of them is bound or to which any of their property or
assets is subject, except for any such conflict, breach, violation or default
which is waived or will not have (A) a material adverse effect on the
transactions contemplated by the Securities, this Agreement, the Indenture and
the Calculation Agency Agreement or (B) a Material Adverse Effect; nor will such
actions result in any violation of the provisions of the Articles of Association
of the Company, or any statute or any order, rule or regulation of any court or
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governmental agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties or assets, except for a
violation that will not have a Material Adverse Effect; and, except such as have
been obtained or required under the 1933 Act or the 1933 Act Regulations and the
1934 Act or the 1934 Act Regulations or state securities laws and the
qualification of the Indenture under the 1939 Act, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body or any stock exchange authorities in The Netherlands
or the United States is required to be made or obtained by the Company in
connection with the offering, issuance, and sale of the Securities or the
consummation of the transactions contemplated by this Agreement or the
execution, delivery and performance by the Company of the Securities, the
Indenture and the Calculation Agency Agreement.
(i) No Material Adverse Change. Since the respective dates as of which
information is given in the November Registration Statement, the Registration
Statement and the Time of Sale Prospectus, except as otherwise stated therein,
(i) there has not been any change in the share capital or long-term debt of the
Company or any of its subsidiaries that is material to the consolidated
financial position of the Company and (ii) there has been no change, or, to the
best of the knowledge of the Company, there has been no development involving a
prospective material adverse change, in or affecting the general affairs,
management, consolidated financial position, consolidated shareholders' equity
or consolidated results of operations of the Company other than as set forth or
contemplated in the November Registration Statement, the Registration Statement
or the Time of Sale Prospectus, that has had, or is likely to have, a Material
Adverse Effect.
(j) Investment Company Act. The Company is not, and after giving effect to
the offering and sale of the Securities and the application of the net proceeds
therefrom as described in the forepart of this Agreement and in the Time of Sale
Prospectus will not be, required to register as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940 ACT").
(k) Absence of Proceedings. Except as disclosed in the Time of Sale
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending to which
the Company or any of its Significant Subsidiaries is a party or of which any
property or assets of any of them is the subject which, if determined adversely
to any of them, are likely, individually or in the aggregate, to have a Material
Adverse Effect or could adversely affect the consummation of the transactions
contemplated by this Agreement or the performance by the Company of its
obligations hereunder, and, to the best of the knowledge of the Company, no such
proceedings are threatened or contemplated.
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(l) Authorization of Indenture. The Indenture has been duly authorized by
the Company and, at the Closing Time, will have been executed and delivered by
the Company and, assuming due authorization, execution and delivery of the
Indenture by the Indenture Trustee, the Indenture will at the Closing Time be a
valid and binding obligation of the Company enforceable against it in accordance
with its terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except to the extent that
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) (the
"BANKRUPTCY EXCEPTIONS"); and at the Closing Time the Indenture will have been
duly qualified under the 1939 Act.
(m) Authorization of Securities. At the Closing Time, the Securities will
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to the Underwriters against
payment of the consideration set forth in this Agreement, will be entitled to
the benefits of the Indenture, and will constitute valid and binding obligations
of the Company enforceable against it in accordance with their terms, except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
(n) Fair Summary. The statements set forth in the Time of Sale Prospectus
and the Prospectus under the caption "Description of the ING Perpetual Debt
Securities" and "Description of Debt Securities We May Offer" insofar as they
purport to constitute a summary of the terms of the Securities and the Indenture
and under the captions "United States Taxation" and "The Netherlands Taxation,"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate in all material respects.
(o) Officer's Certificate. Any certificate signed by an officer of the
Company or any of its subsidiaries and delivered to the Underwriters or to
counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby on the date of such certificate.
(p) IFRS. The IFRS Financial Information has been prepared in accordance
with accounting policies based on IFRS as in effect (including interpretations
thereof) at March 31, 2004 (stable platform) in all material respects (using
various transitional provisions as disclosed under "Changes in Accounting
Policies" in the 2004 Comparable IFRS Financial Information 6-K), including the
principles relating to first time adoption of IFRS set out in, and permitted by,
IFRS 1. With the exception of IFRS No. 4 (Insurance Contracts), International
Accounting Standard ("IAS") No. 32 (Financial Instruments: Disclosure and
Presentation) and IAS No. 39 (Financial Instruments: Recognition and
9
Measurement), which were implemented starting January 1, 2005, financial
information included in the IFRS Interim 6-Ks has been prepared on a basis
consistent with the IFRS financial information included in the 2004 Comparable
IFRS Financial Information.
(q) Commission Comments. There are no outstanding, unresolved comments
made by the staff of the Commission in connection with a review of the Company's
annual report filings under the 1934 Act, except those which (i) were issued
less than 180 days before the end of the fiscal year covered by such annual
report or (ii) are not material to the Company.
(r) Disclosure Controls and Procedures. The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) of the ▇▇▇▇
▇▇▇) that comply with the requirements of the 1934 Act; such disclosure controls
and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company's principal
executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective.
Section 2. Sale And Delivery To Underwriters; Closing.
(a) Securities. The several commitments of the Underwriters to purchase
the Securities shall be deemed to have been made on the basis of the
representations and warranties contained herein and shall be subject to the
terms and conditions set forth herein.
(b) Initial Underwritten Securities. The Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, at the purchase price set forth
below, the aggregate principal amount of Securities set forth in Schedule A
hereto opposite the name of such Underwriter, plus any additional principal
amount of Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The purchase price per Security to be paid by an Underwriter of the
Securities shall be an amount equal to 99% of the aggregate principal amount of
Securities set forth in Schedule A hereto opposite the name of such Underwriter
(being equal to the issue price of 100% less a gross spread of 1%).
(c) Payment. Payment of the purchase price for, and delivery of,
certificates for the Initial Underwritten Securities shall be made at the London
offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or at such other place as shall be agreed upon
by the Representatives and the Company, at 10:00 a.m. (New York City time) on
the fourth business day after the date hereof (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later than ten
business
10
days after such date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the
"CLOSING TIME").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
such persons designated by the Representatives for the respective accounts of
the Underwriters of one or more certificates in global form for the Securities
to be purchased by them. It is understood that each Underwriter has authorized
the Representatives, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Securities which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as a representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Securities shall be
in such denominations and registered in such names as the Representatives may
request in writing at least one business day before the Closing Time. The
Securities will be made available for examination and packaging by the
Representatives in the City of New York no later than 10:00 a.m. (New York City
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
(e) Foreign Selling Restrictions. (i) UK. Each Underwriter represents and
agrees that (i) it has complied and will comply with all applicable provisions
of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") of Great Britain
with respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (ii) it has only communicated or
caused to be communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with the issue
or sale of the Securities or any investments representing the Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Company.
(ii) EU. In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a "RELEVANT
MEMBER STATE"), each Underwriter represents and agrees that with effect
from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the "RELEVANT IMPLEMENTATION
DATE") it has not made and will not make an offer of Securities to the
public in that Relevant Member State, except that it may, with effect from
and including the Relevant Implementation Date, make
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an offer of Securities in that Relevant Member State (a) at any time in
(or in Germany, where the offer starts within) the period beginning on the
date of publication of a prospectus in relation to the Securities which
has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and
notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, and ending on the date which is
12 months after the date of such publication; (b) at any time to legal
entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is
solely to invest in securities; (c) at any time to any legal entity which
has two or more of (i) an average of at least 250 employees during the
last financial year; (ii) a total balance sheet of more than E43,000,000
and (iii) an annual net turnover of more than E50,000,000, as shown in its
last annual or consolidated accounts; or (d) in any other circumstances
which do not require the publication by the Company of a prospectus
pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Securities
to the public" in relation to any Securities in any Relevant Member State means
the communication to persons in any form and by any means of sufficient
information on the terms of the offer and the Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Securities, as the
same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "PROSPECTUS
DIRECTIVE" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(iii) Japan. Each of the Underwriters understands that the
Securities have not been and will not be registered under the Securities
and Exchange Law of Japan (the "Securities and Exchange Law"). Each of the
Underwriters represents and agrees that the Securities may not be offered
or sold, directly or indirectly in, Japan or to, or for the benefit of,
any resident of Japan (which term as used herein means any person resident
in Japan, including any corporation or other entity organized under the
laws of Japan) or to others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan, except pursuant to any
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
(iv) General. With respect to any other jurisdiction outside of the
United States, each Underwriter represents and agrees that it has not
offered or sold and will not offer or sell any of the Securities in any
jurisdiction, except under circumstances that resulted, or will result, in
12
compliance with the applicable rules and regulations of such jurisdiction
and which will not require the publication by the Company of a prospectus.
(f) Free Writing Prospectus. (a) Each Underwriter represents and agrees
that
(i) except as otherwise expressly agreed with the Company, it will
not utilize a Free Writing Prospectus prepared by the Underwriters in
connection with an offer and sale of the Securities; and
(ii) it will not distribute any Free Writing Prospectus used or
referenced by such Underwriter in a manner reasonably designed to lead to
its broad unrestricted dissemination; provided that this covenant shall
not apply to any Free Writing Prospectus identified in Schedule B hereto
as forming part of the Time of Sale Prospectus or any Free Writing
Prospectus prepared or approved by the Company for broad unrestricted
dissemination.
(b) The Company hereby agrees that the Underwriters may
distribute to investors a Free Writing Prospectus that contains the final
terms of the Securities substantially in the form set forth in Schedule C
hereto and that such Free Writing Prospectus shall be filed by the Issuer
in accordance with Rule 424(b)(2).
Section 3. Covenants Of The Company.
The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b) hereof, will:
(i) prepare any Free Writing Prospectus to be included in the Time
of Sale Prospectus and the Prospectus as amended or supplemented in
relation to the Securities in a form which shall be provided to the
Representatives for their review and comment, with respect to the Free
Writing Prospectus, prior to the Time of Sale, and with respect to the
Prospectus as amended or supplemented, prior to any filing with the
Commission under Rule 424(b) of the 1933 Act, and file, if required to do
so under the 1933 Act and the 1933 Act Regulations, such Prospectus
pursuant to Rule 424(b) of the 1933 Act no later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be
required by Rule 424(b) of the 1933 Act;
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(ii) notify the Representatives immediately, and confirm the notice
in writing, (A) when any post-effective amendment to the Registration
Statement shall have been filed, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (B) of the receipt of any
comments from the Commission, (C) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information and (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus,
or of the suspension of the qualification of the Securities for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any of such purposes. The Company will make reasonable
efforts to prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible moment;
and
(iii) if required by Rule 430B(h) under the 1933 Act, to prepare a
form of prospectus in a form which shall be provided to the
Representatives for their review and comment prior to any filing and to
file such form of prospectus pursuant to Rule 424(b) under the 1933 Act.
(b) Filing of Amendments. During the period when the Underwriters are
required to make available to investors a Prospectus with respect to the
Securities, the Company will give the Representatives notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment), or any amendment, supplement or revision to the
Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise. It will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Free Writing Prospectus. Before preparing, using, authorizing,
approving, referring to or filing any Free Writing Prospectus, the Company will
furnish to the Representatives and counsel for the Underwriters a copy of the
proposed Free Writing Prospectus. The Company will not use, authorize, approve,
refer to or file any Free Writing Prospectus to which the Underwriters
reasonably object. The Company will not take any action that would result in an
Underwriter or the Company being required to file with the Commission pursuant
to Rule 433(d) under the 1933 Act a Free Writing Prospectus prepared by or on
behalf of the Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
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(d) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to the Representatives upon request, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
(e) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each Prospectus, each Free
Writing Prospectus and any other information included in the Time of Sale
Prospectus as such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when
the Prospectus as amended or supplemented is required to be delivered under the
1933 Act or the 1934 Act (or required to be delivered but for Rule 172 under the
1933 Act), such number of copies of the Prospectus as amended or supplemented
and each Free Writing Prospectus as such Underwriter may reasonably request.
(f) Time of Sale Prospectus. If the Time of Sale Prospectus is being used
to solicit offers to buy the Securities at a time when the Prospectus is not yet
available to prospective purchasers and any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition exist as
a result of which the Free Writing Prospectus included as part of the Time of
Sale Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, the Company shall forthwith prepare, file with the
Commission and furnish, at its own expense (unless the amendment or supplement
is necessary because of a statement made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through the
Representatives expressly for use therein, in which case this shall be at the
expense of the Underwriters), to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that
the statements therein as so amended or supplemented will not, in the light of
the circumstances when delivered to a prospective purchaser, be misleading or so
that the Free Writing Prospectus which is included as part of the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus as amended or
supplemented, will comply with applicable law.
15
(g) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations, as applicable, with
respect to the offer of the Securities so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time following the first date of the public offering of
the Securities the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the ▇▇▇▇ ▇▇▇) is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time such Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements, and the Company will furnish to
the Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(h) Blue Sky Qualifications. The Company will use all reasonable efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other domestic or
foreign jurisdictions as the Representatives may reasonably request and to
maintain such qualifications in effect for a period of one year from the later
of the effective date of the Registration Statement and the Time of Sale or, if
less, such other period as may be necessary to complete the distribution of the
Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement and the Time of Sale.
(i) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
16
holders as soon as practicable an earnings statement for the purposes of, and to
provide to the Underwriters the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Use of Proceeds. The Company will use or cause to be used the net
proceeds received from the sale of the Securities in the manner specified in the
Time of Sale Prospectus under "Use of Proceeds."
(k) Ratings. The Company shall take all reasonable action necessary to
enable Standard & Poor's Ratings Service, a division of McGraw Hill, Inc.
("S&P"), and ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S") to provide their
respective ratings of the Securities.
(l) Clearance and Settlement. The Company will cooperate with the
Underwriters and take all reasonable action necessary if requested by the
Representatives to permit the Securities to be eligible for clearance and
settlement through the facilities of The Depository Trust Company ("DTC"),
Euroclear Bank S.A./N.V., as operator of the Euroclear System ("EUROCLEAR"), and
Clearstream Banking, societe anonyme, Luxembourg ("CLEARSTREAM").
(m) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus as amended
or supplemented, the Company will not, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any option
for sale of, or otherwise dispose of, any Securities or any security
substantially similar to the Securities in the United States.
(n) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(o) Record Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Free Writing Prospectus that is
not filed with the Commission in accordance with Rule 433 under the 1933 Act.
Section 4. Payment Of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, copying and delivery to the Underwriters of this
Agreement and the
17
Indenture, the Calculation Agency Agreement and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities (other than fees of counsel for the Underwriters related
thereto), (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants, experts and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Blue Sky survey and any supplement thereto,
(vi) the filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any review by the National
Association of Securities Dealers, Inc. (NASD) of the terms of the Securities,
(vii) the printing and delivery to the Underwriters of copies of each
Preliminary Prospectus, the Time of Sale Prospectus, if different, and the
Prospectus and any amendment or supplement thereto, (viii) the preparation,
printing and filing under the 1933 Act of any Free Writing Prospectus and the
distribution thereof, (ix) the fees and expenses of the Indenture Trustee,
including the reasonable fees and disbursements of counsel for the Indenture
Trustee, (x) any fees payable in connection with the rating of the Securities,
(xi) the fees and expenses incurred in connection with any listing of the
Securities on any stock exchange, (xii) road show expenses, including costs of
group presentations, including room rentals, audio/visual rentals, catering,
group transportation, electronic road show costs and travel and lodging of its
employees; provided that the Underwriters shall be responsible for the direct
lodging and transportation of their employees and (xiii) the fees and expenses
incurred in connection with the approval by DTC, Euroclear and Clearstream of
the Securities for clearance through their respective systems.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5(m) and Section
9(a) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for the Underwriters.
Section 5. Conditions Of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company or any
affiliate or subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company in all material respects of its
covenants and other obligations hereunder, and to the following further
conditions:
18
(a) Effectiveness of Registration Statement and Filings. At the Closing
Time no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus as amended or
supplemented and each Free Writing Prospectus, to the extent required to be
filed pursuant to Rule 433(d) under the 1933 Act, with respect to the Securities
shall have been filed with the Commission in accordance with Rule 424(b) or Rule
433(d), as applicable, under the 1933 Act within the applicable time period
prescribed for such filing by the 1933 Act Regulations and in accordance with
Section 3(a) hereof.
(b) Opinion of Dutch Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the Company, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, substantially to the effect set forth in Exhibit A hereto. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and certificates of public officials and the opinion may contain
other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(c) Certificate Relating to Financial Statements. The Underwriters shall
have received on the date hereof, and on the Closing Date, a certificate, dated
as of the date hereof and the Closing Date, respectively, and signed by an
executive officer of the Company relating to the financial statements and
certain other financial data with respect to the IFRS Interim 6-Ks and with
respect to the period from October 1, 2005 to November 29, 2005.
(d) Opinion of General Counsel of the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of Jan-▇▇▇▇▇▇ ▇▇▇▇, the General Counsel of the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
substantially to the effect set forth in Exhibit B hereto.
(e) Opinion of U.S. Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
substantially to the effect set forth in Exhibit C hereto. Such counsel may also
19
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
certificates of public officials. Such opinion also may contain other customary
or appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance satisfactory to the Underwriters.
(g) Opinion of Counsel for the Indenture Trustee. At the Closing Time,
the Representatives shall have received a written opinion, dated as of the
Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Indenture Trustee,
in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, substantially to the effect set forth in Exhibit D hereto and to
such further effect as counsel for the Underwriters may reasonably request.
(h) Opinion of Dutch Tax Counsel for the Company. At the Closing Time,
the Representatives shall have received a written opinion, dated as of the
Closing Time, of KPMG Meijburg & Co., special Dutch tax counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, substantially to the effect set forth in Exhibit E hereto and to
such further effect as counsel for the Underwriters may reasonably request. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and certificates of public officials. Such opinion may also
contain other customary appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(i) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Time of Sale Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as one
enterprise, and the Representatives shall have received certificates of an
executive of the Company, dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof were true and correct when made and are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company shall have complied in all material respects
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time,
20
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to such officer's knowledge, no proceedings for
that purpose have been instituted or are pending or are contemplated by the
Commission.
(j) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Representatives shall have received from each of Ernst & Young
Accountants and KPMG Accountants N.V. a letter, dated as of the date hereof, in
form and substance reasonably satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, including reports
incorporated by reference therein, in each case as specified by counsel for the
Underwriters.
(k) Maintenance of Rating. At the Closing Time, the Securities shall be
rated at least "A2" by Moody's and "A-" by S&P, and the Company shall have
delivered to the Representatives a letter dated on, or prior to, the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings. Since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to any securities of the Company by any "nationally recognized
statistical rating agency," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall
have publicly announced that it has under surveillance or review, that does not
indicate an improvement, its rating of any securities of the Company.
(l) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained. All proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, this Agreement may be terminated by the Representatives by notice
to the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 hereof and except that Sections 1, 6 and 8 hereof shall survive any
such termination and remain in full force and effect.
21
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act (each an "INDEMNIFIED PERSON"), as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Basic Prospectus
included therein, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus that the Company has filed or is required to file
pursuant to Rule 433(d) under the 1933 Act, the Time of Sale Prospectus
and the Prospectus, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iv) against any and all expense whatsoever, as incurred
(including, subject to Section 6(b) hereof, the fees and disbursements of
counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i), (ii) or (iii)
above;
22
provided, however, that the indemnity set forth in this Section 9(a) shall
not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission
made in reliance upon, and in conformity with, written information furnished to
the Company by any Underwriter directly or through the Representatives expressly
for use in the Registration Statement (or any amendment thereto), any
Preliminary Prospectus, any Free Writing Prospectus, the Time of Sale Prospectus
or the Prospectus as amended or supplemented; and provided further, that the
Company shall not be liable to any Indemnified Person under this Section 6(a)
with respect to the Registration Statement (or any amendment thereto), or any
Preliminary Prospectus or the Prospectus as amended or supplemented, or any
amendment or supplement thereto to the extent that any such loss, claim, damage
or liability of such Indemnified Person results from the fact that such
Indemnified Person or the Underwriter it controls sold Securities to a person as
to whom it shall be established that there was not sent or given (or in lieu
thereof the notice referred to in Rule 173(a) under the 1933 Act provided) at or
prior to the written confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented in any case where such delivery but for
Rule 172 under the 1933 Act is required by the 1933 Act if the Company had
previously furnished copies thereof in sufficient quantity to such Indemnified
Person or the Underwriter it controls and the loss, claim, damage or liability
of such Indemnified Person results from an untrue statement or omission of a
material fact contained in a Preliminary Prospectus which was identified in
writing prior to the date hereof to such Indemnified Person or the Underwriter
it controls and corrected in the Prospectus (as then amended or supplemented).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter, severally in proportion to its respective purchase obligation and
not jointly, agrees to indemnify and hold harmless the Company, its respective
directors or Supervisory or Executive Board members, each of the officers of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto), any Free Writing Prospectus that the Company
has filed or is required to file pursuant to Rule 433(d) under the 1933 Act or
any Time of Sale Prospectus in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), such Preliminary Prospectus or the Prospectus (or any
23
amendment or supplement thereto), such Free Writing Prospectus or such Time of
Sale Prospectus.
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company, provided that if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying party receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. If an indemnifying party assumes the defense of such action, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such action.
An indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party be liable for fees
and expenses of more than one counsel (in addition to any one firm of local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
24
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(iii) hereof effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
Section 7. Contribution.
In order to provide for just and equitable contribution in circumstances
under which the indemnification provided for in Section 6 hereof is for any
reason held to be unenforceable by an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses but after deducting the
total underwriting commission received by the Underwriters) received by the
Company and the total underwriting commission received by the Underwriters, in
each case as set forth on the cover of the Prospectus as amended or
supplemented, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
25
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director or Supervisory or Executive Board member of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of
Initial Underwritten Securities set forth opposite their respective names in
Schedule A hereto and not joint.
Section 8. Representations, Warranties And Agreements To Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of their subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any
26
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
Section 9. Termination Of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Time of Sale
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
material adverse change in the international financial markets or the financial
markets in the United States or The Netherlands, or any outbreak of hostilities
or escalation thereof affecting the United States or The Netherlands or other
calamity or crisis, or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is, in the judgment of the Representatives (after
a discussion with the Company to the extent practicable), so material and
adverse as to make it impracticable or inadvisable to market the Securities or
to enforce contracts for the sale of the Securities on the terms and in the
manner contemplated in the Time of Sale Prospectus, (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission, the New York Stock Exchange, Euronext Amsterdam N.V.'s Eurolist by
Euronext or the Luxembourg Stock Exchange, or if trading generally on the
American Stock Exchange, the New York Stock Exchange, the Nasdaq National
Market, Euronext Amsterdam N.V.'s Eurolist by Euronext or the London Stock
Exchange has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any such
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, (iv) if a banking
moratorium has been declared by either Federal, New York, or Netherlands
authorities or (v) if there has occurred a change or an official announcement by
a competent authority of a forthcoming change in Dutch taxation materially
adversely affecting the Company or the imposition of exchange controls by the
United States or The Netherlands.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided that Sections 1, 6, 7
and 8 hereof shall survive such termination and remain in full force and effect.
Section 10. Default By One Or More Of The Underwriters.
27
If one or more of the Underwriters shall fail at the Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "DEFAULTED SECURITIES"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of
the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representatives or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements. As used herein, the term "UNDERWRITER"
includes any person substituted for an Underwriter under this Section 10.
Section 11. Arm's Length Relationship; No Fiduciary Duty. The Company
acknowledges that in connection with the offering, purchase and sale of the
Securities: (i) the Underwriters have acted at arm's length, are not agents of,
and owe no fiduciary duties to, the Company, (ii) the Underwriters owe the
Company only those duties and obligations set forth in this Agreement and (iii)
the Underwriters may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty
in connection with the offering, purchase and sale of the Securities.
Section 12. Notices. All notices, requests, statements and other
communications hereunder shall be in writing and shall be delivered or sent by
mail, messenger or any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill ▇▇▇▇▇,
28
Attention: Global Organization Counsel, Facsimile No. ▇-▇▇▇-▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Attention: Global Capital Markets - Head of Transaction Management
Group, Facsimile No. ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇; and notices to the Company shall be
directed to ING Groep N.V. at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Attention: General Counsel, Facsimile No. ▇▇-▇▇-▇▇▇▇▇▇▇. Any such
notice, request, statement or communication shall be effective upon receipt
thereof.
Section 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors and Supervisory Board members and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and
Supervisory Board members or the equivalent and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 14. Governing Law, Submission For Jurisdiction.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
(b) Submission to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding against the Company brought
by any Underwriter or by any person who controls any Underwriter arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any Federal court located in the State of New York, (ii) waives,
to the fullest extent it may effectively do so, any objection which it may now
or hereafter have to the laying of venue of any such proceeding and (iii)
submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby which is instituted in any New York court or in any competent court in
The Netherlands. The
29
Company has appointed Corporation Service Company, Albany, New York, as its
authorized agent (the "AUTHORIZED AGENT") upon whom process may be served in any
such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York court by any
Underwriter or by any person who controls any Underwriter, expressly consent to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon such
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
Section 15. Judgment Currency. In respect of any judgment or order given
or made for any amount due hereunder that is expressed and paid in a currency
(the "JUDGMENT CURRENCY") other than United States dollars, the Company will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars. In
the event that any such Underwriter, as a result of any variation as noted in
(i) or (ii) above, recovers an amount of United States dollars on conversion of
a sum paid in a judgment currency which amount is in excess of the judgment or
order given or made in United States dollars, such Underwriter shall remit such
excess to the Company.
Section 16. Effect Of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
ING GROEP N.V.
By: /s/ Johannes Wolvius
-------------------------------------
Name: Johannes Wolvius
Title: Authorized Officer
31
Confirmed and Accepted, as of the date
first above written:
ING FINANCIAL MARKETS LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
Acting severally on behalf of
themselves and as Representatives
of the other Underwriters named in
Schedule A hereto.
By: ING FINANCIAL MARKETS LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Head of FM Americas
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
32
SCHEDULE A
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES
--------------------------------------------------------- -------------------
ING Financial Markets LLC................................ $ 326,667,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated....... $ 326,667,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited............... $ 326,666,000
Banc of America Securities LLC........................... $ 5,000,000
Citigroup Global Markets Inc............................. $ 5,000,000
▇▇▇▇▇▇▇, Sachs & Co...................................... $ 5,000,000
▇▇▇▇▇▇ Brothers Inc...................................... $ 5,000,000
TOTAL.................................................... $ 1,000,000,000
33
SCHEDULE B
November Basic Prospectus dated November 25, 2005 included in November
Registration Statement (File No. 333-129962)
Preliminary prospectus supplement with respect to the Securities dated and filed
with the Commission under Rule 424 on November 28, 2005
Bloomberg Notice dated December 2, 2005 containing the final terms of the
Securities substantially as set forth in Schedule C hereto
34
SCHEDULE C
*** FINAL PRICING TERMS ON ING TIER 1 ***
ISSUER: ING GROEP N.V. (BLOOMBERG TICKER: INTNED)
SECURITIES: PERPETUAL NC 10 TIER 1 CAPITAL - FIXED/FLOATING
EXPECTED RATINGS: A2 / A (STABLE/STABLE)
FORMAT: SEC REGISTERED (GLOBAL)
SIZE: US$ 1BN
MATURITY: PERPETUAL
SETTLEMENT: December 8, 2005 (T+4)
SPREAD: +125
PRICE: $100.0
YIELD: 5.775%
UST SPOT: 99-25+ / 4.525%
PRICE TO PUBLIC: TOTAL $100.0 ; PER SECURITY 100.0%
COUPON: 5.775% P.A. ( PAYABLE SEMI-ANNUALLY) UNTIL December 8, 2015, THEN
QUARTERLY AT A FLOATING RATE (THREE MONTH LIBOR PLUS ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇) IF NOT
CALLED (100BP STEP-UP)
COUPON PAYMENT DATES: DECEMBER 8 AND JUNE 8 UNTIL DECEMBER 8, 2015 AND
THEREAFTER, SUBJECT TO ADJUSTMENT, ON MARCH 8, JUNE 8, SEPTEMBER 8 AND
DECEMBER 8
RECORD DATES: 15 DAYS BEFORE THE INTEREST PAYMENT DATE WHETHER OR NOT A BUSINESS
DAY
REGULAR OPTIONAL FIRST CALL: FROM DECEMBER 8, 2015 AND EVERY INTEREST PAYMENT
DATE THEREAFTER AT PAR PLUS OUTSTANDING AMOUNTS
35
EARLY REDEMPTION DUE TO TAX AND REGULATORY EVENTS (SEE PRELIMINARY PROSPECTUS
FOR INFORMATION ON EARLY REDEMPTION EVENTS)
TAX AND REGULATORY MWC: T+40 BPS (Make-Whole Call)
DENOMS: $1,000 X $1,000
BOOKS: ING* ML* (B&D) MS*
CO-MANAGERS: BK OF AMER*CITI*GS*▇▇▇▇▇▇
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ : - ▇ - ▇▇▇ - ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ : - ▇-▇▇▇-▇▇▇ 3580
36
EXHIBIT A
FORM OF OPINION OF DUTCH COUNSEL TO THE COMPANY
1. The Company has been duly incorporated and is validly existing as a
legal entity in the form of a public company with limited liability (naamloze
vennootschap) under the law of The Netherlands.
2. The Company has full corporate power and authority to execute and
deliver the Agreements, to issue, execute and deliver the Perpetual Debt
Securities and to perform its obligations under the Agreements and the Perpetual
Debt Securities.
3. The Company has taken all necessary corporate action to authorise
the issuance of the Perpetual Debt Securities, the execution and delivery by the
Company of the Agreements and the performance by the Company of its obligations
under the Perpetual Debt Securities and the Agreements, except for the corporate
action as specified above under [ ] and it being noted that the general meeting
of shareholders of the Company, or such other corporate body as referred to
above under [ ] (with the exception of the board of executive directors) may
refuse to take such action.
4. The choice of New York law as the law governing the Agreements (with
the exception of Article 7 of the Supplemental Indenture) and the Perpetual Debt
Securities, is recognised under Dutch law by the courts of The Netherlands, and,
accordingly, under Dutch law (i) New York law determines the validity, binding
effect and enforceability of the Agreements (with the exception of Article 7 of
the Supplemental Indenture) and of the Perpetual Debt Securities and (ii) the
courts of The Netherlands are legally bound to apply New York law to the
Agreements (with the exception of Article 7 of the Supplemental Indenture) and
the Perpetual Debt Securities and to determine the validity and binding nature
and enforceability thereof by so applying New York law.
5. Under Dutch law, in a proceeding in a court of the State of New
York, New York law determines the validity, binding effect and enforceability
against the Company of the submission by the Company to the jurisdiction of the
courts of the State of New York as provided in the Agreements and, under Dutch
law, New York law determines the effectiveness of the service of process upon
the Company as provided in the Agreements in any legal action or proceeding in a
New York court as provided in the Agreements.
6. Each of the Agreements and the Perpetual Debt Securities have been
duly executed and delivered by the Company.
7. The choice of Dutch law as the law governing Article 7 of the
Supplemental Indenture is recognized under Dutch law as valid and binding and
A-1
Article 7 of the Supplemental Indenture is valid, binding and enforceable in
accordance with its terms. Accordingly, the Perpetual Debt Securities will rank
pari passu, without preference, among themselves and will be subordinated as
provided for in Section 7.01 of the Supplemental Indenture to Senior Debt as
defined in the Supplemental Indenture.
8. The Company is not entitled to any sovereign immunity from any legal
proceedings in The Netherlands to enforce the Agreements or the Perpetual Debt
Securities or any liability or obligation of the Company arising thereunder.
9. The execution and delivery by the Company of the Agreements and the
Perpetual Debt Securities and the performance by the Company and the other
parties thereto of their respective obligations under the Agreements and the
Perpetual Debt Securities do not conflict with or result in a breach of any
provision of Dutch law or the Company's Articles of Association.
10. No license, authorisation, permission or consent from any public
authority or governmental agency of The Netherlands is required under Dutch law
for the valid authorisation, execution and the delivery by the Company and the
other parties thereto of the Agreements, for the performance by the Company and
the other parties thereto of their respective obligations under the Agreements
or for the authorisation, execution and delivery by the Company of the Perpetual
Debt Securities or the performance by the Company of its obligations under the
Perpetual Debt Securities, except as may be required in connection with an
amendment to the Company's Articles of Association increasing the authorised
capital of the Company allowing it to issue Ordinary Shares in connection with
the performance by the Company under Article 4 of the Supplemental Indenture and
the Perpetual Debt Securities.
11. In order to ensure the legality, validity, enforceability or
admissibility in evidence of the Agreements or the Perpetual Debt Securities, it
is not necessary that they be filed or recorded with any public office in The
Netherlands.
12. No exchange control regulations are currently in force in The
Netherlands and no authorisation, approval, consent or license from any
governmental authority or agency of or in The Netherlands is required for the
payment by the Company of any amounts under the Perpetual Debt Securities,
except for notifications with De Nederlandsche Bank N.V. (Dutch Central Bank) as
may be required in the Act on Financial Relations with Foreign Countries (Wet
financiele betrekkingen buitenland 1994).
13. The Company can ▇▇▇ and be sued in its own name.
A-2
14. It is not necessary that The Bank of New York, acting in its
capacity as trustee under the Indenture, should be licensed, qualified or
otherwise entitled to carry on business in The Netherlands (i) in order to
enable it to enforce its rights, or exercise any power, duty or obligation
conferred or imposed on it, under the Indenture or (ii) by reason of the
execution and delivery of the Indenture by it or of the performance by it of its
obligations thereunder.
For purposes of the opinion of Dutch counsel, the following definition has
been employed:
"Agreements": the Underwriting Agreement, the Indenture and the Calculation
Agency Agreement.
A-3
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY
We, [-], General Counsel of ING Groep N.V. a limited liability company
incorporated under the laws of The Netherlands, (the "Company") and [-], Head of
Corporate Legal Department have acted for the Company in relation to the issue
of $1,000,000,000 aggregate principal amount of the Company's 5.775%
Fixed/Floating ING Perpetual Debt Securities (the "Debt Securities") issued
pursuant to the Subordinated Indenture (the "Subordinated Indenture") dated as
of July 18, 2002, and the Fifth Supplemental Indenture dated as of December 8,
2005 (the "Supplemental Indenture" and, together with the Subordinated
Indenture, the "Indenture"), between the Company and The Bank of New York, as
trustee (the "Trustee").
In connection with the purchase today by you pursuant to the Underwriting
Agreement, dated December 2, 2005 (the "Underwriting Agreement"), between the
Company and you, as representatives of the several underwriters named therein,
of the Debt Securities, we have or attorneys under our supervision have examined
such corporate records, certificates and other documents and such questions of
law as we have considered necessary or appropriate for the purposes of this
opinion.
For the purpose of rendering this opinion, we have assumed that the
signatures on original documents are the genuine signatures of the persons
purported to have executed the same, the conformity of photo and faxed copies to
originals and the conformity of the Debt Securities to the form thereof examined
by me or attorneys under our supervision.
In our examination of the above documents we have furthermore made the
following assumptions:
(i) the agreements will be within the powers of the parties thereto,
other than the Company, have been validly authorised and executed by
the parties thereto, other than the Company, and duly delivered by
each party thereto to each of the other parties thereto;
(ii) the Debt Securities shall be offered and have been offered in
accordance with the selling restrictions as set forth in section
2(f) of the Underwriting Agreement; and
(iii) the Company will at all times have a sufficient number of authorized
but unissued ordinary shares as would be required under Article 4 of
the Supplemental Indenture.
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We have not investigated the law of any jurisdiction other than The
Netherlands as it stands and has been interpreted in published case law of the
courts in The Netherlands as of the date of this opinion and we do not express
an opinion on the law of any jurisdiction other than The Netherlands nor do we
express any opinion on taxation laws.
Terms and expressions of law and of legal concepts as used in this opinion
have the meaning in this opinion attributed to them under the law of The
Netherlands and this opinion should be read and understood accordingly. Any
capitalized terms not defined herein shall have the meaning set forth in the
Underwriting Agreement.
Based upon the foregoing (including the assumptions set out above) and
subject to any factual matters, documents and events not disclosed to me in the
course of our examination referred to above, we are, at the date hereof, of the
following opinion:
1. The execution and delivery by the Company of the Debt Securities,
the Underwriting Agreement, the Indenture and the Calculation Agency
Agreement, dated as of December 8, 2005 (the "Calculation Agency
Agreement"), among the Company and ING Financial Markets LLC, as
calculation agent, the performance by the Company and the other parties
thereto of their respective obligations under the Debt Securities, the
Underwriting Agreement, the Indenture and the Calculation Agency
Agreement, do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the properties or assets of the
Company is subject, except for any such conflict, breach, violation or
default which is waived or will not have (A) a material adverse effect on
the transactions contemplated by the Underwriting Agreement, the Indenture
and the Calculation Agency Agreement or (B) a Material Adverse Effect; nor
will such actions result in any violation of the provisions of the
Articles of Association of the Company, or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of the properties or assets of the
Company, except for a violation that will not have a Material Adverse
Effect.
2. To our knowledge, except as disclosed in the Time of Sale
Prospectus and the Prospectus, there are no actions, suits or proceedings
before or by any government, governmental instrumentality or court,
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either domestic or foreign, which involve the Company or any property or
assets of the Company, which, if determined adversely to the Company are
likely, individually or in the aggregate, to have a Material Adverse
Effect or adversely affect the consummation of the transactions
contemplated by the Underwriting Agreement, the Indenture and the
Calculation Agency Agreement or the performance by the Company of its
obligations under the Perpetual Debt Securities, the Underwriting
Agreement, the Indenture and the Calculation Agency Agreement and, to the
best of our knowledge, no such proceedings are pending or threatened.
This opinion speaks only as of this date. This opinion is being rendered
solely for your benefit in connection with the Underwriting Agreement and is not
to be used, circulated, quoted, reproduced, in whole or in part, or otherwise
referred to for any other purpose, nor is it to be filed with or furnished to
any governmental agency or other person.
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EXHIBIT C
FORM OF OPINION OF U.S. COUNSEL TO THE COMPANY
1. The Indenture has been duly qualified under the Trust Indenture Act
of 1939; the Securities have been duly executed and delivered by the Company
insofar as New York law is concerned; and the Indenture and the Securities
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
provided, however, that we express no opinion with respect to Article 7 of the
Indenture, which is expressly stated to be governed by Dutch law and as to which
you are receiving the opinion, dated the date hereof, of De Brauw Blackstone
Westbroek N.V., delivered to you herewith.
2. The choice of Dutch law as the law expressed to govern Article 7 of
the Indenture will be recognized under the laws of the State of New York and
should be upheld as a valid choice of law by New York courts and applied by such
courts in proceedings relating to the obligations of the parties under such
agreement, unless the application of Dutch law would contravene the public
policy of the State of New York or the Federal laws of the United States.
3. The Calculation Agency Agreement has been duly executed and
delivered by the Company insofar as New York law is concerned and constitutes a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms, subject to the Bankruptcy Exceptions.
4. The Company is not required to be registered as an "investment
company" under the 1940 Act.
5. All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company on or prior to the date hereof
under the Federal laws of the United States and the laws of the State of New
York for the issuance, sale and delivery of the Securities by the Company to the
Underwriters have been obtained or made; provided, however, that in this
paragraph 5, we express no opinion with respect to State securities laws.
6. The statements in the Prospectus Supplement under the caption
"Description of the ING Securities" and in the Base Prospectus under the caption
"Description of Debt Securities We May Offer," insofar as such statements
purport to constitute a summary of the terms of the Securities and the
Indenture, and, in the Base Prospectus under the caption "ERISA Considerations,"
insofar as such statements purport to constitute a summary of the matters
described therein, constitute accurate summaries thereof in all material
respects.
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7. The statements contained in the Base Prospectus under the caption
"Taxation -- Material Tax Consequences of Owning Our Debt Securities -- United
States Taxation" and the statements contained in the Prospectus Supplement under
the caption "United States Taxation", insofar as they refer to statements of
United States Federal tax law or legal conclusions relating thereto, are
accurate summaries of the U.S. federal income tax matters described therein
subject to the limitations set forth therein.
8. Each part of the Registration Statement, when such part became
effective, and the Basic Prospectus as supplemented by the prospectus
supplement, as of the date of the most recent prospectus supplement (other than
the reports of experts pertaining to the financial statements and the financial
statements and other financial information derived from accounting records, as
to which we express no opinion), appeared on their face to be appropriately
responsive, in all material respects relevant to the offering of the Securities
to the applicable requirements of the 1933 Act, the 1939 Act, the 1933 Act
Regulations and the 1939 Act Regulations.
9. Each document filed with the Commission pursuant to the 1934 Act
(other than reports on Form 6-K or reports of experts pertaining to the
financial statements and the financial statements and other financial
information contained in any document, as to which we express no opinion) that
is incorporated by reference in the Prospectus, when so filed, complied as to
form in all material respects with the requirements of the particular form of
the Commission upon which it was filed.
10. The issuance of the Securities in accordance with the Indenture and
the Calculation Agency Agreement, and the sale of the Securities by the Company
to you pursuant to the Underwriting Agreement, do not, and the performance by
the Company of its obligations under the Underwriting Agreement, the Indenture,
the Securities and the Calculation Agency Agreement will not, violate any
Federal law, rule or regulation of the United States or law of the State of New
York; provided, however, that for the purpose of this paragraph (10) we express
no opinion with respect to Federal or state securities laws or other antifraud
and fraudulent transfer laws; provided, however, that insofar as performance by
the Company of its obligations under the Underwriting Agreement, the Indenture,
the Securities and the Calculation Agency Agreements is concerned, we express no
opinion as to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights.
11. We do not know of any litigation or any governmental proceeding
before any New York or U.S. federal court or governmental agency, authority or
body instituted or threatened against the Company or any of its consolidated
subsidiaries of a character required to be disclosed in the Prospectus that is
not so disclosed.
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12. Under the laws of the State of New York relating to personal
jurisdiction the Company has, pursuant to Section 14(b) of the Underwriting
Agreement, Section 113 of the Indenture and Section 12 of the Calculation Agency
Agreement, validly and irrevocably submitted to the personal jurisdiction of any
Federal or state court located in the Borough of Manhattan, The City of New
York, New York, in any action arising out of or relating to the Underwriting
Agreement, the Indenture and the Calculation Agency Agreement or the
transactions contemplated thereby, has validly and irrevocably waived any
objection to the venue of a proceeding in any such court, and has validly and
irrevocably appointed an authorized agent for the purpose described in the
Underwriting Agreement, the Indenture and the Calculation Agency Agreement; and
service of process effected on such agent in the manner set forth in the
Underwriting Agreement, the Indenture and the Calculation Agency Agreement will
be effective to confer valid personal jurisdiction over the Company.
13. Nothing has come to our attention that would lead us to believe that
(a) any part of the Registration Statement (except for financial statements and
schedules and other financial data derived from accounting records, as to which
we have not been asked to comment), when such part became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (b) the Time of Sale Prospectus as of the Time of Sale (which you
have informed us is a time prior to the time of the first sale of the Securities
by any Underwriter), (except for financial statements and schedules and other
financial data derived from accounting records, as to which we have not been
asked to comment), contained any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (c) the Basic Prospectus, as supplemented by the prospectus
supplement, as of the date of the most recent prospectus supplement (except for
financial statements and schedules and other financial data derived from
accounting records, as to which we have not been asked to comment), contained
any untrue statement of material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading or (d) the Basic
Prospectus, as supplemented by the prospectus supplement, as of the time of
delivery hereof (except for financial statements and schedules and other
financial data derived from accounting records, as to which we have not been
asked to comment), contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements, in the
light of the circumstances in which they were made, not misleading.
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EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE INDENTURE TRUSTEE
1. The Indenture Trustee is a New York banking corporation duly
incorporated and validly existing under the laws of the State of New York.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform the Indenture and has taken all necessary corporate
action to authorize the execution, delivery and performance of the Indenture.
3. The Indenture constitutes a legal, valid and binding obligation of
the Indenture Trustee, enforceable against it in accordance with its terms,
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
4. The execution, delivery and performance of the Indenture by the
Indenture Trustee do not and will not conflict with or result in a breach of any
existing applicable New York or federal law, rule or regulation, the Indenture
Trustee's Organization Certificate, the Indenture Trustee's By-laws, the terms
of any indenture or other agreement or instrument to which the Indenture Trustee
is a party or is bound or any judgment, order or decree applicable to the
Indenture Trustee of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Indenture Trustee.
5. No consent, authorization, approval or filing of, registration with
or notice to any Federal or New York State banking authority is required for the
execution, delivery or performance of the Indenture by the Indenture Trustee.
6. Each of the Indenture and the Calculation Agency Agreement has been
duly executed and delivered by the Indenture Trustee.
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EXHIBIT E
FORM OF OPINION OF DUTCH TAX COUNSEL TO THE COMPANY
1. We hereby confirm (i) our opinion set forth in Exhibit 8.2 of the
Registration Statement in respect of the sub-section of the Base Prospectus
captioned "Taxation -- Material Tax Consequences of Owning Our Debt Securities
-- Netherlands Taxation" and (ii) that, subject to the qualifications set forth
therein, the discussions set forth in (A) the sub-section of the Base Prospectus
captioned "Taxation -- Material Tax Consequences of Owning Our Debt Securities
-- Netherlands Taxation" and (B) the section of the Prospectus Supplement
captioned "The Netherlands Taxation" are accurate summaries of the Dutch tax
matters described therein.
2. The Company is not required under the laws of The Netherlands or
regulations of any tax authority in The Netherlands to deduct or withhold any
amount for or on account of tax from any payment to be made on the Perpetual
Debt Securities and no stamp duties or similar tax are or will be payable in The
Netherlands in connection with the offering of the Perpetual Debt Securities or
the execution of the Perpetual Debt Securities, the Underwriting Agreement, the
Indenture or the Calculation Agency Agreement, except for the tax due by the
Company upon any issuance of the Company's ordinary shares pursuant to the
Alternative Interest Satisfaction Mechanism (as defined in the Prospectus
Supplement).
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