ING GROEP N.V.
(a limited liability company with corporate seat
in Amsterdam, The Netherlands)
UNDERWRITING AGREEMENT
DATED: October 17, 2003
TABLE OF CONTENTS
PAGE
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SECTION 1. Representations and Warranties by the Company....................... 3
(a) Compliance with Registration Requirements.............................. 3
(b) Incorporated Documents. ............................................... 4
(c) Independent Accountants. .............................................. 4
(d) Good Standing of the Company........................................... 4
(e) Authorization of Agreement............................................. 5
(f) Absence of Defaults and Conflicts; Absence of Further Requirements..... 5
(g) No Material Adverse Change............................................. 6
(h) Investment Company Act................................................. 6
(i) Absence of Proceedings................................................. 6
(j) Authorization of Indenture............................................. 6
(k) Authorization of Perpetual Debt Securities............................. 7
(l) Fair Summary........................................................... 7
(m) Officer's Certificate.................................................. 7
SECTION 2. Sale and Delivery to Underwriters; Closing.......................... 7
(a) Securities............................................................. 7
(b) Payment................................................................ 8
(c) Denominations; Registration............................................ 8
(d) Foreign Selling Restrictions........................................... 9
SECTION 3. Covenants of the Company........................................... 9
(a) Compliance with Securities Regulations and Commission Requests......... 9
(b) Filing of Amendments................................................... 10
(c) Delivery of Registration Statements.................................... 10
(d) Delivery of Prospectuses............................................... 11
(e) Continued Compliance with Securities Laws.............................. 11
(f) Blue Sky Qualifications................................................ 11
(g) Rule 158............................................................... 12
(h) Use of Proceeds........................................................ 12
(i) Listing................................................................ 12
(j) Ratings................................................................ 12
(k) Clearance and Settlement............................................... 12
(l) Restriction on Sale of Securities...................................... 12
(m) Reporting Requirements................................................. 12
SECTION 4. Payment of Expenses................................................. 13
(a) Expenses............................................................... 13
(b) Termination of Agreement............................................... 13
SECTION 5. Conditions of Underwriters' Obligations............................. 13
(a) Effectiveness of Registration Statement................................ 13
(b) Opinion of Dutch Counsel for the Company............................... 14
PAGE
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(c) Opinion of General Counsel of the Company.............................. 14
(d) Opinion of U.S. Counsel for the Company................................ 14
(e) Opinion of Counsel for Underwriters.................................... 14
(f) Opinion of Counsel for the Indenture Trustee........................... 15
(g) Opinion of Dutch Tax Counsel for the Company........................... 15
(h) Officers' Certificate.................................................. 15
(i) Accountant's Comfort Letters........................................... 15
(j) Bring-down Comfort Letters............................................. 16
(k) Maintenance of Rating.................................................. 16
(l) Approval of Listing.................................................... 16
(m) Additional Documents................................................... 16
(n) Termination of Agreement............................................... 16
SECTION 6. Indemnification..................................................... 17
(a) Indemnification of Underwriters........................................ 17
(b) Indemnification of the Company, Directors and Officers................. 18
(c) Actions Against Parties; Notification.................................. 18
(d) Settlement Without Consent if Failure to Reimburse..................... 19
SECTION 7. Contribution........................................................ 20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...... 21
SECTION 9. Termination of Agreement............................................ 21
(a) Termination; General................................................... 21
(b) Liabilities............................................................ 22
SECTION 10. Default by One or More of the Underwriters......................... 22
SECTION 11. Notices............................................................ 23
SECTION 12. Parties............................................................ 23
SECTION 13. Governing Law, Submission for Jurisdiction......................... 24
(a) Governing Law.......................................................... 24
(b) Submission to Jurisdiction............................................. 24
SECTION 14. Judgement Currency................................................. 24
SECTION 15. Effect of Headings................................................. 25
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Schedule A: Names of Underwriters and Number of Perpetual Debt Securities
to be Purchased........................................................ SA-1
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 Trustee's Counsel Opinion...................................... D-1
Exhibit E: Form of Opinion of 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)
$500,000,000
6.20% ING Perpetual Debt Securities
(Principal Amount of $25.00 per ING Perpetual Debt Security)
UNDERWRITING AGREEMENT
October 17, 2003
ING Financial Markets LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the Several Underwriters named in Schedule A hereto
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 ("ING FINANCIAL"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") 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 6.20% ING Perpetual Debt Securities
(principal amount of $25.00 per perpetual security) (the "PERPETUAL DEBT
SECURITIES") set forth opposite their names in Schedule A hereto.
The Perpetual Debt Securities will be issued pursuant to the
Subordinated Debt Indenture, dated July 18, 2002 (the "SUBORDINATED INDENTURE"),
between the Company and The Bank of New York, as indenture trustee (the
"INDENTURE TRUSTEE"), as supplemented by the third supplemental indenture (the
"SUPPLEMENTAL INDENTURE" and, collectively, with the Subordinated Indenture,
the "INDENTURE") to be dated as of the date on which the Closing Time referred
to in Section 2(b) hereof occurs (such date, the "CLOSING DATE"), and a
Calculation Agency Agreement (the "CALCULATION AGENCY AGREEMENT"), to be dated
as of the Closing Date, between the Company and ING Financial Markets LLC, as
calculation agent.
The Company understands that the Underwriters propose to make a public
offering of the Perpetual Debt Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a shelf registration statement on Form F-3 (No. 333-84226)
covering the registration of various types of securities (the "SECURITIES")
under the Securities Act of 1933, as amended (the "1933 ACT"), including the
Perpetual Debt Securities. As used in this Agreement, the following terms have
the following meanings:
"PRELIMINARY PROSPECTUS" means any preliminary prospectus included in
the Registration Statement or filed with the Commission pursuant to Rule 424(a)
under the 1933 Act;
"PROSPECTUS" means the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement; and any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to the
applicable form under the 1933 Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the U.S. Securities Exchange
Act of 1934, as amended (the "1934 ACT"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the Perpetual Debt
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 ACT REGULATIONS"), including any documents incorporated by reference
therein as of the date of such filing; and
"REGISTRATION STATEMENT" means collectively the various parts of the
registration statement on Form F-3 (File No. 333-84226) in respect of the
Securities, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at the time
such
2
part of the registration statement became effective, but excluding any Statement
of Eligibility on Form T-1, each as amended at the time such part of the
registration statement became effective, provided that if the Company files an
abbreviated registration statement pursuant to Rule 462(b) under the 1933 Act
(the "RULE 462(B) REGISTRATION STATEMENT"), then any reference herein to the
term Registration Statement shall be deemed to include such Rule 462(b)
Registration Statement; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual or other report of
the Company filed pursuant to Sections 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by reference
in the Registration Statement.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(a) Compliance with Registration Requirements. The Registration
Statement has been filed on an appropriate form under the 1933 Act. The
Registration Statement has become effective under the 1933 Act, no stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act, no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Time, the
Registration Statement, and any amendments and supplements thereto complied and
will comply in all material respects with the applicable requirements of the
1933 Act and the 1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the "1939 ACT"), and the rules and regulations of the Commission under
the 1939 Act (the "1939 ACT REGULATIONS"), as applicable, and did not, and will
not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto,
3
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 the Closing
Time, included or will include an untrue statement of a material fact or
omitted, or will omit, to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties in this subsection
shall not apply to statements in, or omissions from, the Registration Statement
or Prospectus, as amended or supplemented, made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus, as amended or supplemented.
Each Preliminary Prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations.
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 ACT REGULATIONS"),
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time, did not, and will not, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(c) Independent Accountants. The independent auditors who certified the
financial statements included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations with
respect to the Company and its subsidiaries.
(d) Good Standing of the Company. The Company and each of its
subsidiaries classified as a "significant subsidiary" as defined under Rule 405
of the 1933 Act Regulations (each a "SIGNIFICANT SUBSIDIARY") has been duly
incorporated under the laws of The Netherlands or its respective jurisdiction of
incorporation, as the case may be, except to the extent that the failure to be
duly incorporated would not have a material adverse effect on the consolidated
financial position and consolidated results of operations of the Company and its
Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). The
Company and each of its Significant Subsidiaries is validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, is duly
qualified to do business and in good standing in each other jurisdiction in
which
4
qualification is necessary for the ownership of its respective properties or for
the conduct of its respective businesses, except to the extent that the failure
to be validly existing, qualified or in good standing would not have a Material
Adverse Effect.
The Company has the power and authority necessary to own or hold its
properties, to enter into this Agreement, the Indenture and the Calculation
Agency Agreement, to perform its obligations under the Perpetual Debt
Securities, this Agreement, the Indenture and the Calculation Agency Agreement
and to conduct the businesses in which it is engaged, as described in the
Prospectus, except to the extent that the failure to do so would not have a
Material Adverse Effect.
(e) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered (if applicable under applicable law) by the
Company.
(f) Absence of Defaults and Conflicts; Absence of Further Requirements.
None of the Company or any of its Significant Subsidiaries is in violation of
the constituent documents, charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or such Significant Subsidiary is a party or
by which any of them may be bound, or to which any of the property or assets of
the Company or any such Significant Subsidiary is subject, except a default in
performance or observance of an obligation, agreement, covenant or condition
that does not have and is not likely to have a Material Adverse Effect. The
execution, delivery (if applicable under applicable law) and performance of the
Perpetual Debt Securities, this Agreement, the Indenture and the Calculation
Agency Agreement by the Company and the consummation of the transactions
contemplated hereby and thereby do not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its Significant
Subsidiaries under any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
such Significant Subsidiary is a party or by which any of them is bound or to
which any of their property or assets is subject, except for any such conflict,
breach, violation or default which is waived or will not have (A) a material
adverse effect on the transactions contemplated by the Perpetual Debt
Securities, this Agreement, the Indenture and the Calculation Agency Agreement
or (B) a Material Adverse Effect; nor will such actions result in any violation
of the provisions of the Articles of Association of the Company, or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Significant Subsidiaries or
any of their properties or
5
assets, except for a violation that will not have a Material Adverse Effect;
and, except such as have been obtained or required under the 1933 Act or the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or state
securities laws and the qualification of the Indenture under the 1939 Act, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body or any stock exchange authorities
in The Netherlands or the United States is required to be made or obtained by
the Company in connection with the offering, issuance, and sale of the Perpetual
Debt Securities or the consummation of the transactions contemplated by this
Agreement or the execution, delivery and performance by the Company of the
Perpetual Debt Securities, the Indenture and the Calculation Agency Agreement.
(g) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, as
amended or supplemented, except as otherwise stated therein, (i) there has not
been any change in the share capital or long-term debt of the Company or any of
its subsidiaries that is material to the consolidated financial position of the
Company and (ii) there has been no change, or, to the best of the knowledge of
the Company, there has been no development involving a prospective material
adverse change, in or affecting the general affairs, management, consolidated
financial position, consolidated shareholders' equity or consolidated results of
operations of the Company other than as set forth or contemplated in the
Registration Statement and the Prospectus, as amended or supplemented, that has
had, or is likely to have, a Material Adverse Effect.
(h) Investment Company Act. The Company is not, and after giving effect
to the offering and sale of the Perpetual Debt Securities and the application of
the net proceeds therefrom as described in the forepart of this Agreement and in
the Prospectus will not be, required to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 ACT").
(i) Absence of Proceedings. Except as disclosed in the Prospectus,
there is no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending to which the Company
or any of its Significant Subsidiaries is a party or of which any property or
assets of any of them is the subject which, if determined adversely to any of
them, are likely, individually or in the aggregate, to have a Material Adverse
Effect or could adversely affect the consummation of the transactions
contemplated by this Agreement or the performance by the Company of its
obligations hereunder, and, to the best of the knowledge of the Company, no such
proceedings are threatened or contemplated.
(j) Authorization of Indenture. The Indenture has been duly authorized
by the Company and, at the Closing Time, will have been executed and delivered
6
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.
(k) Authorization of Perpetual Debt Securities. At the Closing Time,
the Perpetual Debt 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.
(l) Fair Summary. The statements set forth in the Prospectus Supplement
under the caption "Description of the ING Perpetual Debt Securities" insofar as
they purport to constitute a summary of the terms of the Perpetual Debt
Securities and the Indenture and under the captions "United States Taxation" and
"The Netherlands Taxation," insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate in all material
respects.
(m) Officer's Certificate. Any certificate signed by an officer of the
Company or any of its subsidiaries and delivered to the Underwriters or to
counsel for the Underwriters in connection with the offering of the Perpetual
Debt Securities shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby on the date of such
certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. The several commitments of the Underwriters to purchase
the Perpetual Debt Securities shall be deemed to have been made on the basis of
the representations and warranties contained herein and shall be subject to the
terms and conditions set forth herein.
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
7
Perpetual Debt Securities set forth in Schedule A hereto opposite the name of
such Underwriter, plus any additional principal amount of Perpetual Debt
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
The purchase price per Perpetual Debt Security to be paid by an
Underwriter of the Perpetual Debt Securities shall be an amount equal to 96.85%
of the aggregate principal amount of Perpetual Debt Securities set forth in
Schedule A hereto opposite the name of such Underwriter (being equal to the
issue price of 100% less a gross spread of 3.15% representing a combined sales
concession, management commission and underwriting commission), plus accrued
interest, if any, from October 28, 2003; provided that in the case of sales by
any Underwriter of $1,000,000 or more aggregate principal amount of Perpetual
Debt Securities to a single purchaser, the purchase price per Perpetual Debt
Security to be paid by such Underwriter on such sale shall be an amount equal to
98.00% of the principal amount of the Perpetual Debt Securities so sold (being
equal to the issue price of 100% less a gross spread of 2.00% representing a
combined sales concession, management commission and underwriting commission).
(b) Payment. Payment of the purchase price for, and delivery of,
certificates for the Perpetual Debt Securities shall be made at the New York
City 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 seventh business day after the date hereof (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
such persons designated by the Representatives for the respective accounts of
the Underwriters of one or more certificates in global form for the Perpetual
Debt Securities to be purchased by them. It is understood that each Underwriter
has authorized the Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Perpetual Debt
Securities which it has agreed to purchase. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Perpetual Debt Securities to be purchased
by any Underwriter whose funds have not been received by the Closing Time, but
such payment shall not relieve such Underwriter from its obligations hereunder.
8
(c) Denominations; Registration. Certificates for the Perpetual Debt
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least one business day before the
Closing Time. The Perpetual Debt Securities will be made available for
examination and packaging by the Representatives in the City of New York no
later than 10:00 a.m. (New York City time) on the business day prior to the
Closing Time.
(d) Foreign Selling Restrictions. Each Underwriter represents and
agrees that (i) it has not offered or sold and prior to the expiry of the period
of six months from the Closing Date will not offer or sell any Perpetual Debt
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purpose of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) 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
Perpetual Debt Securities in, from or otherwise involving the United Kingdom;
and (iii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of the Perpetual Debt Securities or
any investments representing the Perpetual Debt Securities (including without
limitation the Registration Statement, the Prospectus as amended or supplemented
and any Preliminary Prospectus) in circumstances in which Section 21(1) of the
FSMA does not apply to it.
Each Underwriter represents and agrees that it has not offered or sold,
and will not offer or sell, any Perpetual Debt Securities to any natural or
legal person who or which is established, domiciled or has its residence
(collectively "are resident") in The Netherlands and, accordingly, that it shall
exclusively offer or sell the Perpetual Debt Securities to natural or legal
persons who are resident outside The Netherlands, in compliance with the laws
and regulations of any state or country where persons to whom or which the offer
is made are resident.
With respect to any other jurisdiction outside of the United States,
each Underwriter represents and agrees that it has not offered or sold and will
not offer or sell any of the Perpetual Debt Securities in any jurisdiction,
except under circumstances that resulted, or will result, in compliance with the
applicable rules and regulations of such jurisdiction.
9
SECTION 3. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b) hereof, will:
(i) Prepare the Prospectus as amended or supplemented in
relation to the Perpetual Debt Securities in a form which shall be
provided to the Representatives for their review and comment prior to
any filing with the Commission under Rule 424(b) of the 1933 Act, and
to file such Prospectus pursuant to Rule 424(b) of the 1933 Act no
later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b) of the
1933 Act; and
(ii) notify the Representatives immediately, and confirm the
notice in writing, (A) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (B) of the
receipt of any comments from the Commission, (C) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information
and (D) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Perpetual Debt Securities
for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any of such purposes. The Company
will make reasonable efforts to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Perpetual Debt Securities,
the Company will give the Representatives notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act), or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise. It will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
10
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to the Representatives upon request, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each Preliminary Prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus as amended or supplemented is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus as amended or
supplemented as such Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations with respect to the
offer of the Perpetual Debt Securities so as to permit the completion of the
distribution of the Perpetual Debt Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Perpetual Debt Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use all reasonable
efforts, in cooperation with the Underwriters, to qualify the Perpetual Debt
11
Securities for offering and sale under the applicable securities laws of such
states and other domestic or foreign jurisdictions as the Representatives may
reasonably request and to maintain such qualifications in effect for a period of
one year from the later of the effective date of the Registration Statement and
any Rule 462(b) Registration Statement or, if less, such other period as may be
necessary to complete the distribution of the Perpetual Debt Securities;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Perpetual Debt Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Use of Proceeds. The Company will use or cause to be used the net
proceeds received from the sale of the Perpetual Debt Securities in the manner
specified in the Prospectus, as amended or supplemented, under "Use of
Proceeds."
(i) Listing. The Company will use all reasonable efforts to list the
Perpetual Debt Securities on the New York Stock Exchange.
(j) Ratings. The Company shall take all reasonable action necessary to
enable Standard & Poor's Ratings Service, a division of McGraw Hill, Inc.
("S&P"), and ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S") to provide their
respective ratings of the Perpetual Debt Securities.
(k) Clearance and Settlement. The Company will cooperate with the
Underwriters and take all reasonable action necessary if requested by the
Representatives to permit the Perpetual Debt Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company
("DTC"), Euroclear Bank S.A./N.V., as operator of the Euroclear System
("EUROCLEAR"), and Clearstream Banking, societe anonyme, Luxembourg
("CLEARSTREAM").
(l) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus as
12
amended or supplemented, the Company will not, without the prior written consent
of the Representatives, directly or indirectly, sell, offer to sell, grant any
option for sale of, or otherwise dispose of, any Perpetual Debt Securities or
any security substantially similar to the Perpetual Debt Securities in the
United States.
(m) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, copying and delivery to the Underwriters of this
Agreement, the Indenture, the Calculation Agency Agreement and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Perpetual Debt Securities (other than fees of
counsel for the Underwriters related thereto), (iii) the preparation, issuance
and delivery of the certificates for the Perpetual Debt Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants, experts and other advisors, (v) the qualification of the Perpetual
Debt Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Blue Sky survey and any supplement thereto,
(vi) the printing and delivery to the Underwriters of copies of each Preliminary
Prospectus and of the Prospectus and any amendment or supplement thereto, (vii)
the fees and expenses of the Indenture Trustee, including the reasonable fees
and disbursements of counsel for the Indenture Trustee, (viii) any fees payable
in connection with the rating of the Perpetual Debt Securities, (ix) the fees
and expenses incurred in connection with the listing of the Perpetual Debt
Securities on the New York Stock Exchange and (x) the fees and expenses incurred
in connection with the approval by DTC, Euroclear and Clearstream of the
Perpetual Debt Securities for clearance through their respective systems.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5(o) 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.
13
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company or any
affiliate or subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company in all material respects of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus as amended or supplemented with respect to the
Perpetual Debt Securities shall have been filed with the Commission in
accordance with Rule 424(b) under the 1933 Act within the applicable time period
prescribed for such filing by the 1933 Act Regulations and in accordance with
Section 3(a) hereof.
(b) Opinion of Dutch Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the Company, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit A hereto. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
certificates of public officials and the opinion may contain other customary or
appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(c) Opinion of General Counsel of the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of Jan-▇▇▇▇▇▇ ▇▇▇▇, the General Counsel of the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
to the effect set forth in Exhibit B hereto.
(d) Opinion of U.S. Counsel for the Company. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
to
14
the effect set forth in Exhibit C hereto. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
certificates of public officials. Such opinion also may contain other customary
or appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(e) 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.
(f) Opinion of Counsel for the Indenture Trustee. At the Closing Time,
the Representatives shall have received a written opinion, dated as of the
Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Indenture Trustee,
in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit D hereto and to such further
effect as counsel for the Underwriters may reasonably request.
(g) Opinion of Dutch Tax Counsel for the Company. At the Closing Time,
the Representatives shall have received a written opinion, dated as of the
Closing Time, of KPMG Meijburg & Co., special Dutch tax counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters to the effect set forth in Exhibit E hereto and to such further
effect as counsel for the Underwriters may reasonably request. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and certificates of public officials. Such opinion may also contain
other customary appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(h) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, and the Representatives shall have received certificates of an
executive of the Company, 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
15
shall have complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such officer's knowledge, no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(i) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Representatives shall have received from each of Ernst & Young
Accountants and KPMG Accountants N.V. a letter, dated as of the date hereof, in
form and substance reasonably satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus, including reports incorporated by reference
therein, in each case as specified by counsel for the Underwriters.
(j) Bring-down Comfort Letters. At the Closing Time, the
Representatives shall have received from each of Ernst & Young Accountants and
KPMG Accountants N.V. a letter, dated as of the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(i) of this Section, except that the specified date referred to shall be a date
not more than five business days prior to the Closing Time.
(k) Maintenance of Rating. At the Closing Time, the Perpetual Debt
Securities shall be rated at least "A2" by Moody's and "A-" by S&P, and the
Company shall have delivered to the Representatives a letter dated on, or prior
to, the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representatives, confirming that the Perpetual Debt
Securities have such ratings. Since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to any securities of the
Company by any "nationally recognized statistical rating agency," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act,
and no such organization shall have publicly announced that it has under
surveillance or review, that does not indicate an improvement, its rating of any
securities of the Company.
(l) Approval of Listing. At the Closing Time, the Perpetual Debt
Securities shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance, and approved for settlement through
DTC, Euroclear and Clearstream.
(m) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
16
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Perpetual Debt Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained. All proceedings taken by
the Company in connection with the issuance and sale of the Perpetual Debt
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(n) 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.
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), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus or the Prospectus
as amended or supplemented or any amendment or supplement thereto, or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
17
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the indemnity set forth in this Section 6(a) shall not
apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon, and in conformity with, written information furnished to the
Company by any Underwriter directly or through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), or any Preliminary
Prospectus or the Prospectus as amended or supplemented, or any amendment or
supplement thereto and, provided, further, that the Company shall not be liable
to any Indemnified Person under this Section 6(a) with respect to the
Registration Statement (or any amendment thereto), or any Preliminary Prospectus
or the Prospectus as amended or supplemented, or any amendment or supplement
thereto to the extent that any such loss, claim, damage or liability of such
Indemnified Person results from the fact that such Indemnified Person or the
Underwriter it controls sold Perpetual Debt Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
amended or supplemented in any case where such delivery is required by the 1933
Act if the Company has previously furnished copies thereof in sufficient
quantity to such Indemnified Person or the Underwriter it controls and the loss,
claim, damage or liability of such Indemnified Person results from an untrue
statement or omission of a material fact contained in a Preliminary Prospectus
which was identified in writing prior to the date hereof to such Indemnified
Person or the Underwriter it controls and corrected in the Prospectus (as then
amended or supplemented).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter, severally in proportion to its respective purchase obligation and
not jointly, agrees to indemnify and hold harmless the Company, its respective
directors or Supervisory or Executive Board members, each of the officers of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
18
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company, provided that if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying party receiving such notice, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption 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
19
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) hereof effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Section 6 hereof
is for any reason held to be unenforceable by an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Perpetual Debt Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Perpetual
Debt Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Perpetual Debt Securities pursuant to this Agreement (before deducting expenses
but after deducting the total underwriting commission received by the
Underwriters) received by the Company and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the
Prospectus as amended
20
or supplemented, bear to the aggregate initial public offering price of the
Perpetual Debt Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Perpetual Debt Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director or Supervisory or Executive Board member of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the aggregate principal amount of
Perpetual
21
Debt Securities set forth opposite their respective names in Schedule A hereto
and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of their
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Perpetual Debt Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, 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 Perpetual Debt Securities or to
enforce contracts for the sale of the Perpetual Debt Securities on the terms and
in the manner contemplated in the Prospectus, as amended or supplemented, (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission, the New York Stock Exchange or the Luxembourg Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market 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 trading in any securities of the Company has been suspended or
limited on any stock exchange in The Netherlands, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required by
any such stock exchange or any competent governmental authority in or of The
Netherlands, (v)
22
if a banking moratorium has been declared by either Federal, New York, or
Netherlands authorities or (vi) if there has occurred a change or an official
announcement by a competent authority of a forthcoming change in Dutch taxation
materially adversely affecting the Company or the imposition of exchange
controls by the United States or The Netherlands.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time to
purchase the Perpetual Debt Securities which it or they are obligated to
purchase under this Agreement (the "DEFAULTED SECURITIES"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(i) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Perpetual Debt Securities to
be purchased hereunder, each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Perpetual Debt Securities to be
purchased hereunder, this Agreement 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.
23
SECTION 11. 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 Morgan ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Fixed Income
Syndicate Desk, Facsimile No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇; and notices to the Company shall
be directed to ING Groep N.V. at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Attention: General Counsel, Facsimile No. 31-20- 541-8723. Any such
notice, request, statement or communication shall be effective upon receipt
thereof.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors and Supervisory Board members and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and Supervisory Board members or the equivalent and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Perpetual Debt Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. 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
24
to pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this Agreement
or the transactions contemplated hereby which is instituted in any New York
court or in any competent court in The Netherlands. The Company has appointed
Corporation Service Company, Albany, New York, as its authorized agent (the
"AUTHORIZED AGENT") upon whom process may be served in any such action arising
out of or based on this Agreement or the transactions contemplated hereby which
may be instituted in any New York court by any Underwriter or by any person who
controls any Underwriter, expressly consent to 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 14. Judgement Currency. In respect of any judgment or order
given or made for any amount due hereunder that is expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than United States dollars, the Company
will indemnify each Underwriter against any loss incurred by such Underwriter as
a result of any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which an
Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars. In the event that any such Underwriter, as a result of any
variation as noted in (i) or (ii) above, recovers an amount of United States
dollars on conversion of a sum paid in a judgment currency which amount is in
excess of the judgment or order given or made in United States dollars, such
Underwriter shall remit such excess to the Company.
SECTION 15. 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.
25
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/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Confirmed and Accepted,
as of the date first above written:
ING FINANCIAL MARKETS LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
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: Senior Managing Director
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Executive Director
SCHEDULE A
Principal Amount of
Perpetual Debt
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated........................................ US$ 69,062,500
ING Financial Markets LLC................................................ US$ 69,062,500
Citigroup Global Markets Inc............................................. US$ 69,062,500
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated....................... US$ 69,062,500
UBS Securities LLC ...................................................... US$ 69,062,500
Wachovia Capital Markets, LLC............................................ US$ 69,062,500
▇▇▇▇▇▇▇, Sachs & Co...................................................... US$ 10,000,000
HSBC Securities (USA) Inc................................................ US$ 10,000,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc................................................. US$ 2,812,500
Banc of America Securities LLC........................................... US$ 2,812,500
BB&T Capital Markets, Inc................................................ US$ 2,812,500
Bear, ▇▇▇▇▇▇▇ & Co. Inc.................................................. US$ 2,812,500
BNP Paribas Securities Corp.............................................. US$ 2,812,500
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc................................................ US$ 2,812,500
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.................................................... US$ 2,812,500
Deutsche Bank Securities Inc............................................. US$ 2,812,500
H&R Block Financial Advisors, Inc........................................ US$ 2,812,500
▇.▇. ▇▇▇▇▇▇ Securities Inc............................................... US$ 2,812,500
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated..................................... US$ 2,812,500
▇▇▇▇▇▇ Brothers Inc...................................................... US$ 2,812,500
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc.................................................... US$ 2,812,500
Quick and ▇▇▇▇▇▇, Inc.................................................... US$ 2,812,500
TD Waterhouse Investor Services, Inc..................................... US$ 2,812,500
SA-1
Principal Amount of
Perpetual Debt
Name of Underwriter Securities
------------------- ----------
U.S. Bancorp Piper Jaffay Inc. ......................................... US$ 2,812,500
▇▇▇▇▇ Fargo Brokerage Services, LLC...................................... US$ 2,812,500
Advest, Inc.............................................................. US$ 937,500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated....................................... US$ 937,500
Banc One Capital Markets, Inc............................................ US$ 937,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co....................................................... US$ 937,500
▇.▇. ▇▇▇▇▇▇▇▇ & Co....................................................... US$ 937,500
Fifth Third Securities, Inc.............................................. US$ 937,500
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc......................................... US$ 937,500
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC.............................................. US$ 937,500
▇.▇. ▇▇▇▇ & Associates, Inc.............................................. US$ 937,500
McDonald Investments Inc., A KeyCorp Company............................. US$ 937,500
▇▇▇▇▇▇, ▇▇▇▇▇ & Co. Inc.................................................. US$ 937,500
Mesirow Financial, Inc................................................... US$ 937,500
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc............................................. US$ 937,500
Pershing/a Division of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇..................... US$ 937,500
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.......................................... US$ 937,500
▇▇▇▇, ▇▇▇▇ & Co. LLC..................................................... US$ 937,500
Southwest Securities, Inc................................................ US$ 937,500
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company Incorporated.................................. US$ 937,500
SunTrust Capital Markets, Inc............................................ US$ 937,500
--------------
TOTAL US$500,000,000
==============
SA-2
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.
A-1
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
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
A-2
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.
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
1. The execution and delivery by the Company of the Perpetual Debt
Securities, the Underwriting Agreement, the Indenture and the Calculation Agency
Agreement and the performance by the Company and the other parties thereto of
their respective obligations under the Perpetual Debt Securities, the
Underwriting Agreement, the Indenture and the Calculation Agency Agreement, do
not and will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company under any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the properties or
assets of the Company is subject, except for any such conflict, breach,
violation or default which is waived or will not have (A) a material adverse
effect on the transactions contemplated by the Underwriting Agreement, the
Indenture and the Calculation Agency Agreement or (B) a Material Adverse Effect;
nor will such actions result in any violation of the provisions of the Articles
of Association of the Company, or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company
or any of the properties or assets of the Company, except for a violation that
will not have a Material Adverse Effect.
2. To my knowledge, except as disclosed in the Prospectus, as amended
or supplemented, there are no actions, suits or proceedings before or by any
government, governmental instrumentality or court, either domestic or foreign,
which involve the Company or any property or assets of the Company, which if
determined adversely to the Company are likely, individually or in the
aggregate, to have a Material Adverse Effect or adversely affect the
consummation of the transactions contemplated by the Underwriting Agreement, the
Indenture and the Calculation Agency Agreement or the performance by the Company
of its obligations under the Perpetual Debt Securities, the Underwriting
Agreement, the Indenture and the Calculation Agency Agreement and, to the best
of my knowledge, no such proceedings are pending or threatened.
B-1
EXHIBIT C
FORM OF OPINION OF U.S. COUNSEL TO THE COMPANY
1. The Indenture has been qualified under the 1939 Act. The Indenture
constitutes a valid and binding agreement of the Company (except that we express
no opinion with respect to Article 7 (Subordination) of the Supplemental
Indenture), enforceable against the Company in accordance with its terms subject
to the Bankruptcy Exceptions. The choice of Dutch law as the law expressed to
govern Article 7 (Subordination) of the Supplemental Indenture will be
recognized under the laws of New York and should be upheld as a valid choice of
law by New York courts and applied by such courts in proceedings relating to the
obligations of the parties under such agreement, unless the application of Dutch
law would contravene the public policy of the State of New York or US federal
law.
2. The Calculation Agency Agreement has been duly executed and
delivered by the Company insofar as New York law is concerned and constitutes a
valid and binding agreement of the Company, enforceable against the Company by
the other parties thereto in accordance with its terms subject to the Bankruptcy
Exceptions.
3. The Perpetual Debt Securities have been duly executed and delivered
by the Company insofar as New York law is concerned and constitute valid and
binding obligations of the Company (except that we express no opinion with
respect to Article 7 (Subordination) of the Supplemental Indenture), enforceable
against the Company by the other parties thereto in accordance with their terms
subject to the Bankruptcy Exceptions.
4. The Company is not required to be registered as an "investment
company" under the 1940 Act.
5. All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States and the laws of the State of New York for the issuance and sale of
the Perpetual Debt Securities by the Company and the compliance by the Company
with the provisions of the Underwriting Agreement, Indenture and Calculation
Agency Agreement have been obtained or made; provided, however, that in this
paragraph 5, we express no opinion with respect to Federal or State securities
laws.
6. The statements in the Prospectus Supplement under the caption
"Description of the ING Perpetual Debt Securities" and in the Base Prospectus
under the caption "Description of Debt Securities We May Offer," insofar as such
C-1
statements purport to constitute a summary of the terms of the Perpetual Debt
Securities and the Indenture, and, in the Base Prospectus under the caption
"ERISA Considerations," insofar as such statements purport to constitute a
summary of the matters described therein, constitute accurate summaries thereof
in all material respects.
7. Our opinion set forth in Exhibit 8.1 of the Registration Statement,
the statements contained in the Base Prospectus under the caption
"Taxation--Material Tax Consequences of Owning Our Debt Securities--United
States Taxation" and the statements contained in the Prospectus Supplement under
the caption "United States Taxation", insofar as they refer to statements of
United States Federal tax law or legal conclusions relating thereto, are
accurate summaries of the U.S. federal income tax matters described therein
subject to the limitations set forth therein.
8. The Registration Statement (as of its date of effectiveness) and the
Prospectus (as of its date) (other than the reports of experts pertaining to the
financial statements and the financial statements and other financial
information contained therein, as to which we express no opinion) appeared on
their face to be appropriately responsive, in all material respects, with the
applicable requirements of the 1933 Act, the 1939 Act, the 1933 Act Regulations
and the 1939 Act Regulations.
9. Each document filed with the Commission pursuant to the 1934 Act
(other than reports on Form 6-K or reports of experts pertaining to the
financial statements and the financial statements and other financial
information contained in any document, as to which we express no opinion) that
is incorporated by reference in the Prospectus, when so filed, complied as to
form in all material respects with the requirements of the particular form of
the Commission upon which it was filed.
10. The execution and delivery of the Perpetual Debt Securities,
Underwriting Agreement, Indenture and Calculation Agency Agreement, consummation
of the transactions contemplated thereby and the compliance with the terms
thereof do not and will not violate any existing applicable New York or federal
law, rule or regulation; provided, however, that, for purposes of this paragraph
10, we express no opinion with respect to Federal or state securities laws,
other antifraud laws and fraudulent transfer laws; provided, further, that
insofar as performance by the Company of its obligations under the Perpetual
Debt Securities, Indenture and Calculation Agency Agreement is concerned, we
express no opinion as to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditor's
rights.
C-2
11. To our knowledge, there is no pending or threatened action, suit or
proceeding before any New York or U.S. federal court or governmental agency,
authority or body involving the Company or any of its consolidated subsidiaries
of a character required to be disclosed in the Prospectus that is not adequately
disclosed as required.
12. Assuming that the Underwriting Agreement, Indenture and Calculation
Agency Agreement have been duly authorized, executed and delivered by the
Company insofar as Netherlands law is concerned, then under the laws of the
State of New York relating to personal jurisdiction, the Company has, pursuant
to Section 13(b) of the Underwriting Agreement, Section 113 of the Indenture and
Section 12 of the Calculation Agency Agreement, validly and irrevocably
submitted to the personal jurisdiction of any state or federal court located in
the Borough of Manhattan, the City of New York, New York, in any action arising
out of or relating to the Underwriting Agreement, Indenture and Calculation
Agency Agreement or the transactions contemplated thereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any such court,
and has validly and irrevocably appointed an authorized agent for the purpose
described in the Underwriting Agreement, Indenture and Calculation Agency
Agreement; and service of process effected on such agent in the manner set forth
in the Underwriting Agreement, Indenture and Calculation Agency Agreement will
be effective to confer valid personal jurisdiction over the Company.
13. Nothing has come to our attention that would lead us to believe
that any part of the Registration Statement (except for financial statements and
schedules and other financial data included therein, as to which we have not
been asked to comment), when such part became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented (except for financial statements
and schedules and other financial data included therein, as to which we have not
been asked to comment), as of the date of such Prospectus, as amended or
supplemented, and at the date hereof, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
C-3
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.
D-1
EXHIBIT E
FORM OF OPINION OF 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).
E-1