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Exhibit 10.10
VersaTel Telecom International N.V.
- Ordinary Shares in the form of
Shares or American Depositary Shares
INTERNATIONAL UNDERWRITING AGREEMENT
July 22, 1999
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
As Lead Manager of the several
International Managers named in Schedule I
c/▇ ▇▇▇▇▇▇ Brothers International (Europe)
One ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Dear Sirs:
VersaTel Telecom International N.V., a public company organized under the
laws of The Netherlands, and having its corporate seat in Amsterdam, The
Netherlands (the "Company"), proposes to sell to the several underwriters listed
on Schedule I hereto (the "International Managers") an aggregate of - ordinary
shares, par value NLG 0.05 per share, of the Company (the "Ordinary Shares"),
and each of Cromwilld Limited ("Cromwilld") and the holders of warrants (the
"Warrants") to purchase Ordinary Shares listed in Schedule II hereto (together
with Cromwilld, the "Selling Shareholders") propose severally to sell to the
International Managers an aggregate of - Ordinary Shares on the First Delivery
Date (as defined herein) (such - Ordinary Shares to be sold by the Company and
the Selling Shareholders being hereinafter referred to as the "Firm Shares").
The International Managers may elect to have all or a portion of the Firm Shares
deposited by the Company and the Selling Shareholders pursuant to the Deposit
Agreement (as defined herein) and to receive such Firm Shares in the form of
American Depositary Shares ("ADSs") in lieu of receiving such shares in the form
of Ordinary Shares. References herein to "Firm Shares", "Option Shares" (as
defined) or "Shares" (as defined) shall be deemed to include ADSs representing
any such Firm Shares, Option Shares or Shares, respectively, and references to
ADSs include the ADRs (as defined herein) evidencing such ADSs, in each case
unless the context otherwise requires.
In addition, the Company [and Cromwilld Limited] propose to grant to the
International Managers an option to purchase up to - additional Ordinary Shares
(the "Option Shares"), on the terms and for the purposes set forth in Section 3
hereof. The Firm Shares and the Option Shares, if purchased, are hereinafter
collectively called the "Shares", unless the context otherwise requires. This is
to confirm the agreement concerning the purchase of the Shares from the Company
and the Selling Shareholders by the International Managers.
The ADSs, evidenced by American Depositary Receipts ("ADRs"), will be
issued in accordance with the Deposit Agreement (the "Deposit Agreement"), among
the Company, The Bank of New York, as depositary (the "Depositary"), and the
holders and beneficial owners from time to time of ADRs issued thereunder. Each
ADS will represent one Ordinary Share deposited pursuant to the Deposit
Agreement and delivered to Mees Pierson N.V., (the "Correspondent Bank"), the
custodian for the Depositary.
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It is understood by all parties that the Company and the Selling
Shareholders are concurrently entering into an agreement dated the date hereof
(the "U.S. Underwriting Agreement") providing for the sale by the Company of an
aggregate of - Ordinary Shares in the form of Ordinary Shares or ADSs (the "Firm
U.S. Shares") and the granting of an option by the Company and one of the
Selling Shareholders to purchase up to an additional - Ordinary Shares in the
form of Ordinary Shares or ADSs (the "Option U.S. Shares"; and together with the
Firm U.S. Shares, the "U.S. Shares") through arrangements with the several U.S.
underwriters listed on Schedule I to the U.S. Underwriting Agreement (the "U.S.
Underwriters"), for whom ▇▇▇▇▇▇ Brothers Inc. is acting as U.S. representative
(the "U.S. Representative"; and together with the Lead Manager, the
"Representatives"). The International Managers and the U.S. Underwriters
simultaneously are entering into an agreement among the International Managers
and the U.S. Underwriters (the "Agreement Among International Managers and U.S.
Underwriters") which provides for, among other things, the transfer of Shares
between the two syndicates. Two forms of prospectus are to be used in connection
with the offering and sale of the Shares contemplated by the foregoing, one
relating to the Shares (in the form of Ordinary Shares or ADSs) to be sold in
the United States and Canada (the "U.S. Prospectus") and the second relating to
the Shares (in the form of Ordinary Shares or ADSs) to be sold outside of the
United States and Canada (the "International Prospectus"). The U.S. Prospectus
will be identical to the International Prospectus except for certain substitute
pages. This Agreement, the U.S. Underwriting Agreement, the Deposit Agreement
and the Power of Attorney and Custody Agreement (as defined) shall hereafter be
referred to as the "Operative Agreements". Except as used in Sections 3, 4, 5
and 11 herein, and except as the context may otherwise require, references
herein to Firm Shares, Option Shares and Shares shall include Firm U.S. Shares,
Option U.S. Shares and U.S. Shares, respectively (including, in each case, ADSs
representing any or all of such shares).
This is to confirm the agreement concerning the purchase of the Shares
from the Company and the Selling Shareholders by the International Managers.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form F-1 (File No. 333-81333),
and amendments thereto, with respect to the Shares have (i) been
prepared by the Company in conformity with the requirements of the
United States Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations")
of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under
the Securities Act and (iii) become effective under the Securities
Act; a second registration statement on Form F-1 with respect to the
Shares (i) may also be prepared by the Company in conformity with
the Securities Act and the Rules and Regulations and (ii) if to be
so prepared, will be filed with the Commission under the Securities
Act pursuant to Rule 462(b) of the Rules and Regulations on the date
hereof. Copies of the first such registration statement and the
amendments thereto, together with the form of any such second
registration statement, have been delivered by the Company to the
Lead Manager of the International Managers. As used in this
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Agreement, "Effective Time" means (i) with respect to each of the
Primary Registration Statement (as defined) and the ADS Registration
Statement (as defined herein), the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission
and (ii) with respect to the 462(b) Registration Statement (as
defined), the date of the Effective Time of such second registration
statement, and "Effective Times" is the collective reference to both
Effective Times; "Effective Date" means (i) with respect to each of
the Primary Registration Statement and the ADS Registration
Statement, the date of the Effective Time of such registration
statement and (ii) with respect to the 462(b) Registration
Statement, the date of the Effective Time of such registration
statement, and "Effective Dates" is the collective reference to both
Effective Dates; "Preliminary Prospectus" means each prospectus
included in any such registration statement, of amendments thereof,
before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent
of the Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Primary Registration Statement" means the first
registration statement referred to in this Section 1(a), as amended
at its Effective Time, "Rule 462(b) Registration Statement" means
the second registration statement, if any, referred to in this
Section 1(a), as filed with the Commission, and "Registration
Statements" means both the Primary Registration Statement and any
Rule 462(b) Registration Statement, including in each case all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 7(a) hereof and deemed to be a part of the
Registration Statements as of the Effective Time of the Registration
Statements as of the Effective Time of the Primary Registration
Statement pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations.
(b) A registration statement on Form F-6 (File No. 333--) with
respect to the ADSs evidenced by the ADRs has (i) been prepared by
the Company and the Depositary in conformity with the requirements
of the Securities Act and the Rules and Regulations, (ii) been filed
with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such ADS Registration
Statement, including all amendments thereto, have been delivered by
the Company to the Lead Manager. As used in this Agreement, "ADS
Registration Statement" means such registration statement, including
all exhibits thereto, as amended at the time such registration
statement became effective under the Securities Act.
(c) The Primary Registration Statement and the ADS
Registration Statement conform (and the Rule 462(b) Registration
Statement, if any, the Prospectus and any further amendments or
supplements to the Registration Statements, the Prospectus or the
ADS Registration Statement, when they become effective or are filed
with the Commission, as the case may be, will conform) in all
respects to the requirements of the Securities Act and the Rules
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and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statements, the ADS
Registration Statement and any amendments thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that no representation or warranty is made as to information
contained in or omitted from the Registration Statements or the
Prospectus in reliance upon and in conformity with the written
information described in Section 10(f) furnished to the Company
through the Lead Manager by or on behalf of any U.S. Underwriter or
International Manager, respectively, specifically for inclusion
therein.
(d) The Company is a public company with limited liability
("naamloze vennootschap"), duly incorporated and validly existing
under the laws of The Netherlands, is not in bankruptcy, liquidation
or receivership, is duly qualified to do business and is in good
standing in each jurisdiction, if applicable, in which its ownership
or lease of property or the conduct of its business requires such
qualification.
(e) Each of the subsidiaries (as defined in Section 17 hereof)
of the Company has been duly organized and is validly existing under
the laws of its jurisdiction of organization or incorporation, is
not in bankruptcy, liquidation or receivership, is duly qualified to
do business and is in good standing in the jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification; and each has all power and authority
necessary to own or hold its respective property and to conduct the
business in which it is engaged; and, other than [VersaTel
Netherlands B.V. and] Svianed B.V., none of the subsidiaries of the
Company is a "significant subsidiary", as such term is defined in
Rule 405 of the Rules and Regulations; and all of the issued share
capital of each subsidiary of the Company has been duly and validly
authorized and issued and is fully paid and non-assessable and is
wholly owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims (other than, in the
case of Svianed B.V., a lien granted in favor of ▇▇▇▇▇▇ Commercial
Paper, Inc.).
(f) The Company has an authorized and issued share capital as
set forth in the Prospectus; all outstanding shares of capital stock
of the Company have been duly and validly authorized and issued; all
outstanding shares of capital stock of the Company are fully paid,
and holders of such shares will have no liability for any debt or
other obligation of the Company towards third parties in their
capacity as holders thereof; the outstanding shares of capital stock
of the Company conform in all material respects to the description
thereof contained in the Prospectus; except as described in the
Prospectus, there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from
the Company and its subsidiaries, or obligations of the Company and
its subsidiaries to issue, any class of share capital of the Company
or any of its subsidiaries; except as described in the
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Prospectus, there are no restrictions on transfer or voting of any
of the capital stock of the Company pursuant to the Company's
articles of association (the "Articles of Association") or
equivalent constituent documents or any agreement to which the
Company is a party or by which it may be bound or to which any of
its property may be subject; and no depositary receipts have been
issued with respect to the capital stock of the Company.
(g) The Shares to be issued and sold by the Company to the
International Managers hereunder and under the U.S. Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and in the
U.S. Underwriting Agreement, will be duly and validly issued, fully
paid and non-assessable and, when the Shares to be deposited
pursuant to the Deposit Agreement are so deposited and ADSs have
been issued and delivered against payment therefor as provided
herein and in the U.S. Underwriting Agreement, such ADSs will be
duly and validly issued; the Shares to be sold by the Selling
Shareholders to the International Managers hereunder and to the U.S.
Underwriters under the U.S. Underwriting Agreement, (A) in the case
of Selling Shareholders other than Cromwilld, when issued upon
exercise of the warrants by the Selling Shareholders, will have been
duly and validly issued and will be fully paid and non-assessable or
(B) in the case of Cromwilld, have been duly and validly issued and
are fully paid and non-assessable, and when such Shares to be
deposited pursuant to the Deposit Agreement are so deposited and
ADSs have been issued and delivered against payment therefor as
provided herein and in the U.S. Underwriting Agreement, such ADSs
will be duly and validly issued; and there are no preemptive or
other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any of the Shares or ADSs pursuant
to the Articles of Association or Netherlands law and regulations,
except as described in the Prospectus; the Shares and the ADSs will
conform to the descriptions thereof contained in the Prospectus; and
the certificate or certificates evidencing the Shares will comply in
all respects with Netherlands law.
(h) The execution, delivery and performance of the Operative
Agreements by the Company and the consummation of the transactions
contemplated hereby and thereby, and the amendments to the Articles
of Association of the Company will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, shareholders agreement or other material agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the properties or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the Articles of Association or other
constitutive documents of the Company or any of its subsidiaries or
any statute, license, legislation, authorization, or any order, rule
or regulation of any court or governmental
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agency or body (including, without limitation, any statutes, rules,
orders or regulations promulgated by the Minister van Verkeer en
Waterstaat (the "Transport Department"), the Onafhankelijke Post en
Telecommunicatie Autoriteit ("OPTA") or the Commission of the
European Union) having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for
the registration of the Shares and the ADSs under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act") and applicable
state securities laws in connection with the purchase and
distribution of the Shares and the ADSs by the International
Managers, no consents, approvals, authorizations or orders of, or
filing or registration with, any court or governmental agency or
body (including, without limitation, any statutes, rules, orders or
regulations promulgated by the Transport Department, OPTA or the
Commission of the European Union) is required for the execution,
delivery and performance of the Operative Agreements by the Company
and the consummation of the transactions contemplated hereby and
thereby.
(i) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file
a registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such person
or, other than obligations of the Company to register the Shares
being sold pursuant to this Agreement and the U.S. Underwriting
Agreement by the Selling Shareholders, to require the Company to
include any such securities in the securities registered pursuant to
either Registration Statement or the ADS Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act
except as have been irrevocably waived, until the date 180 days
after the date hereof.
(j) Except as disclosed in the Prospectus, the Company has not
sold or issued any Ordinary Shares, ADSs or other share capital of
the Company or securities convertible or exercisable or exchangeable
for any such securities, during the six-month period preceding the
date of the Prospectus, including without limitation any sales
pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act.
(k) The Company has full power and authority to enter into
this Agreement and the U.S. Underwriting Agreement.
(l) The Company has full power and authority to enter into the
Deposit Agreement; each of the Deposit Agreement has been duly
authorized by the Company, enforceable in accordance with its terms,
except that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether
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considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; upon the due and valid
issuance of the ADRs evidencing ADSs against the deposit of Shares
in respect thereof and against payment therefor in accordance with
the provisions of this Agreement, such ADRs will be duly and validly
issued and the persons in whose names the ADRs are registered will
be entitled to the rights specified in the ADRs and in the Deposit
Agreement; the ADRs conform in all material respects to the
descriptions thereof contained in the Prospectus.
(m) The Company had full power and authority to enter into the
settlement agreement, dated July 21, 1999, among the parties thereto
(the "Settlement Agreement"); and the Settlement Agreement is a
valid and binding obligation of the Company, enforceable against the
Company and the other parties thereto in accordance with its terms.
(n) The Operative Agreements conform in all material respects
to the descriptions thereof contained in the Prospectus.
(o) No stamp, capital or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes are
payable by or on behalf of the International Managers or the
International Managers in connection with (i) the sale of the Shares
(in the form of Ordinary Shares or ADSs) by the Company to the
International Managers in accordance with this Agreement and to the
U.S. Underwriter in accordance with the U.S. Underwriting Agreement,
(ii) the deposit with the Depositary or its nominee of Shares
against the issuance of ADRs evidencing ADSs, (iii) the delivery of
the Shares (in the form of Ordinary Shares or ADSs) to or for the
respective accounts of the International Managers or the
International Managers in the manner contemplated in this Agreement
and the U.S. Underwriting Agreement, respectively, or (iv) the sale
and delivery by the International Managers and the International
Managers to the initial purchasers therefrom.
(p) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in
the Prospectus; and, since such date, there has not been any change
in the share capital or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth in the Prospectus.
(q) The financial statements (including the related notes)
included in the Prospectus were prepared in accordance with
generally accepted accounting principles in the United States ("U.S.
GAAP") consistently applied
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throughout the periods involved and present fairly the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated. The
summary financial data and selected financial and other data
included in the Prospectus have been accurately extracted from the
financial statements of the Company. The pro forma financial
information contained in the Prospectus has been prepared on a basis
consistent with the historical financial statements contained in the
Prospectus (except for the pro forma adjustments specified therein),
includes all material adjustments to the historical financial
information required by Rule 11-02 of Regulation S-X under the
Securities Act and the Exchange Act to reflect the transactions
described in the Prospectus, gives effect to assumptions made on a
reasonable basis and fairly presents the historical and proposed
transactions contemplated by the Prospectus, the Operative
Agreements and the High Yield Offering.
(r) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who have certified certain financial
statements of the Company, whose report appears in the Prospectus
and who will deliver the initial letter referred to in Section 6(t)
hereof dated the date of the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and
Regulations; and KPMG Accountants N.V., who have certified certain
financial statements of Svianed B.V., whose report appears in the
Prospectus and who will deliver the initial letter referred to in
Section 6(t) hereof dated the date of the Prospectus, are
independent public accountants as required by the Securities Act and
the Rules and Regulations.
(s) The Company and each of its subsidiaries have good title
to all personal property owned by them, in each case free and clear
of all liens, encumbrances and defects except such as are described
in the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries. Except as otherwise described in the Prospectus,
neither the Company nor its subsidiaries owns any title to real
property or buildings, and all real property and buildings held
under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its subsidiaries.
(t) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(u) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service
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marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such
rights of others, other than such that the Company believes will not
have a material adverse effect on the financial position,
shareholders' equity, results of operations, business or prospects
of the Company and its subsidiaries.
(v) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of
its subsidiaries, might have a material adverse effect on the
financial position, shareholders' equity, results of operations,
business or prospects of the Company and its subsidiaries; and to
the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(w) The Shares have been approved for a listing on the
Official Market of the stock exchange of Amsterdam Exchanges N.V.
(the "AEX") and the ADSs have been approved for listing on the
National Association of Securities Dealers, Inc. Automated Quotation
National Market System (the "Nasdaq National Market System"), in
each case with trading scheduled to begin on a when, as and if
issued basis, on the First Delivery Date.
(x) The conditions for use of Form F-1, as set forth in the
General Instructions thereto, have been satisfied.
(y) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
either Registration Statement or the ADS Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described in the Prospectus or filed as exhibits to either
Registration Statement or the ADS Registration Statement.
(z) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus and is not
so described.
(aa) No labor disturbance by the employees of the Company or
any of its subsidiaries exists or to the knowledge of the Company is
imminent which might be expected to have a material adverse effect
on the consolidated financial position, shareholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(bb) The Company is in compliance in all material respects
with all applicable provisions of Netherlands and Belgian laws
relating to employees (including, without limitation, laws relating
to pension obligations).
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(cc) The Company and its subsidiaries have duly filed with the
appropriate taxing authorities all tax returns, reports and other
information required to be filed through the date hereof and have
paid all taxes due thereon (except as are being disputed in good
faith and for which reserves in accordance with U.S. GAAP have been
set aside); each such tax return, report or other information was,
when filed, accurate and complete in all material respects; nor does
the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
might have a material adverse effect on the consolidated financial
position, shareholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
(dd) Except as disclosed in the Prospectus, under current laws
and regulations of The Netherlands and any political subdivision
thereof, all dividends and other distributions declared and payable
in respect of Ordinary Shares may be paid by the Company in Dutch
Guilders, euros or another currency that, in each case, may be
converted into foreign currency and may be freely transferred out of
The Netherlands, and all such payments made to holders thereof who
are non-residents of The Netherlands will not be subject to income,
withholding or other taxes under laws and regulations of The
Netherlands or any political subdivision or taxing authority thereof
or therein and will otherwise be free and clear of any other tax,
duty, withholding or deduction in The Netherlands or any political
subdivision or taxing authority thereof or therein and without the
necessity of obtaining any governmental authorization in The
Netherlands or any political subdivision or taxing authority thereof
or therein.
(ee) No stamp or other taxes or duties are payable by or on
behalf of the International Managers in The Netherlands upon or in
connection with the sale and delivery to or by the International
Managers of the Shares and ADSs as contemplated by the Prospectus.
(ff) As of the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, including, without limitation, any options
or warrants, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared
or paid any dividend on its issued share capital.
(gg) The Company (i) makes and keeps books and records which
are accurate in all material respects and (ii) maintains internal
accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing
assets at reasonable
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intervals.
(hh) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective articles of association or by-laws or
equivalent constitutive documents, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it
or its properties or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business.
(ii) Except as otherwise described in the Prospectus, each of
the Company and its subsidiaries possesses all licenses, permits,
certificates, franchises, approvals and other authorizations
necessary to the conduct of their respective businesses and the
ownership, lease and operation of their respective properties; all
such licenses, permits, certificates, franchises, approvals and
other authorizations are in full force and effect and each of the
Company and its subsidiaries is in compliance therewith in all
material respects, except where the failure to possess such
licenses, permits, certificates, franchises, approvals and other
authorizations would not, in the aggregate, have a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries, taken
as a whole; and none of the Company and any of its subsidiaries has
received any notice of any proceedings relating to the revocation or
modification of any such license, permit, certificate, franchise,
approval or authorization which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or result, might
have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the
Company and its subsidiaries, taken as a whole.
(jj) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any of its subsidiaries, has
(i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity, (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds, (iii) violated or is in violation of any provision of the
United States Foreign Corrupt Practices Act of 1977, as amended, or
(iv) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(kk) To the best of the Company's knowledge after due inquiry,
there
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has been no violation of any applicable environmental law,
ordinance, rule, regulation, order, judgment, decree or permit in
any jurisdiction with respect to the properties of the Company or
its subsidiaries.
(ll) There are no material acquisitions of businesses or
assets by the Company or any of its subsidiaries pending or
currently being negotiated.
(mm) Each of the Company and its subsidiaries has undertaken a
review of all of its computer hardware and software ("Computer
Equipment") and determined that such Computer Equipment is not in
need of replacement or reprogramming to function correctly from
January 1, 2000, except where such replacement or reprogramming
would not have a material adverse effect on the Company and its
subsidiaries.
(nn) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940, as amended (the "Investment Company
Act"), nor is it a closed-end investment company required to be
registered, but not registered, thereunder; and the Company is not
and, after giving effect to the offering and sale of the Shares and
the High Yield Offering, and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act and the rules and
regulations of the Commission thereunder.
(oo) Neither the Company nor any subsidiary has incurred any
liability for a fee, commission, or other compensation on account of
the employment of a broker or finder in connection with the
transactions contemplated by this Agreement, the U.S. Underwriting
Agreement or the Deposit Agreement.
(pp) Neither the Company nor any subsidiary has taken,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably have been expected to cause or
result in stabilization or manipulation of the price of any security
of the Company in connection with the offering of the Shares.
(qq) The Company owns no capital stock of, or other equity
interests in, any person or entity (other than VersaTel Telecom
Belgium N.V., VersaTel Telecom Europe B.V., Versatel Telecom
Netherlands B.V., Bizztel Telematica B.V., CS Net B.V., CS
Engineering B.V., Amstel Alpha B.V., 7-▇▇▇▇▇▇▇ Beheer
B.V., ITinera Services N.V. and Svianed B.V.)
(rr) Taking into account the receipt of proceeds from the
offering and sale of the Shares and the High Yield Offering, the
Company does not expect to qualify as a passive foreign investment
company ("PFIC") as defined in Section 1296(a) of the United States
Internal Revenue Code of 1986, as amended (the "Code"), a "foreign
personal holding company" as defined in Section 552 of the Code or a
"controlled foreign corporation" as defined in
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Section 957 of the Code, for its current taxable year or for future
taxable years.
(ss) All of the representations, warranties and agreements of
the Company contained it the underwriting agreement relating to the
Company's concurrent offering of Senior Dollar Notes due 2009 and
Senior Euro Notes due 2009 (the "High Yield Offering") are true and
correct in all material respects.
2. Representations, Warranties and Agreements of the Selling
Shareholders. Each Selling Shareholder severally represents, warrants and agrees
that:
(a) (A) In the case of Selling Shareholders other than
Cromwilld, the Selling Shareholder has good and valid title to the
Warrants, each entitling the holder thereof to purchase 13.334
Ordinary Shares and, immediately prior to the time at which the
Shares to be sold by it in the offering (the "Warrant Shares") are
delivered to the International Managers and the International
Managers, the Selling Shareholder will have good and valid title to
such Warrant Shares to be sold by the Selling Shareholder pursuant
to this Agreement on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such Warrant
Shares and payment therefor pursuant to this Agreement and the U.S.
Underwriting Agreement, good and valid title to such Warrant Shares,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several International Managers or the several
International Managers, as the case may be; or (B) in the case of
Cromwilld, it has good and valid title to the Shares to be sold by
it, and, immediately prior to the time at with the Shares to be sold
by it in the Offering are delivered to the International Managers,
it will have good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims; and upon delivery of
such Shares and payment therefor pursuant to this Agreement and the
U.S. Underwriting Agreement, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several International Managers or the several
International Managers, as the case may be.
(b) (A) In the case of all Selling Shareholders other than
Cromwilld, the Selling Shareholder has placed in custody under the
irrevocable power of attorney and custody agreement dated as of July
7, 1999 (together with the power of attorney and custody agreement
of Cromwilld referred to below, the "Power of Attorney and Custody
Agreement) with United States Trust Company of New York, as
custodian (together with the custodian referred to in (B) below, the
"Custodian"), a number of Warrants that will become exercisable,
upon the closing of this offering contemplated hereby, into the
Warrant Shares to be delivered and sold by the Selling Shareholder
pursuant to this Agreement and the U.S. Underwriting Agreement; and
(B) in the case of Cromwilld, it has placed in custody under the
irrevocable power of attorney and custody agreement dated as of July
21, 1999 with the Company, acting in its capacity as custodian, a
number of Shares to be delivered and sold by it pursuant to this
Agreement and the U.S. Underwriting Agreement.
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(c) Pursuant to the Power of Attorney and the Custody
Agreement, the Selling Shareholder has duly and irrevocably executed
and delivered a power of attorney appointing any of R. ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ van der Veen, as attorneys-in-fact, with full
power of substitution, and with full authority (exercisable by any
one or more of them) to (i) (in the case of all Selling Shareholders
other than Cromwilld) elect to exercise a number of Warrants held by
the Selling Shareholder into Warrant Shares and (ii) execute and
deliver this Agreement and the U.S. Underwriting Agreement and to
take such other action as may be necessary or desirable to carry out
the provisions thereof, in each case on behalf of the Selling
Shareholder.
(d) The Selling Shareholder has full right, power and
authority to enter into this Agreement and the U.S. Underwriting
Agreement and the Power of Attorney and Custody Agreement; the
execution, delivery and performance of this Agreement and the U.S.
Underwriting Agreement, the Power of Attorney and the Custody
Agreement of the Selling Shareholder and the consummation by the
Selling Shareholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Shareholder is a party
or by which the Selling Shareholder is bound or to which any of the
property or assets of the Selling Shareholder are subject, nor will
such actions result in any violation of the provisions of the
charter or by-laws, articles of partnership, deed of trust or other
equivalent constituent documents of such Selling Shareholder or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling
Shareholder or the property or assets of the Selling Shareholder;
upon execution and delivery thereof by the attorney-in-fact, this
Agreement and the U.S. Underwriting Agreement will be duly
authorized, executed and delivered by the Selling Shareholder; and,
except for the registration of the Warrant Shares (in the case of
Selling Shareholders other than Cromwilld) or the Shares (in the
case of Cromwilld) under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable U.S. or Netherlands
securities laws in connection with the purchase and distribution of
the Warrant Shares (in the case of Selling Shareholders other than
Cromwilld) or the Shares (in the case of Cromwilld) by the
International Managers, the International Managers and the
Representatives, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement, the U.S. Underwriting Agreement and the Power of
Attorney and Custody Agreement by the Selling Shareholder and the
consummation by the Selling Shareholder of the transactions
contemplated hereby and thereby.
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(e) To the extent that any statements or omissions made in the
Registration Statements, the Prospectus or any amendment or
supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by the Selling
Shareholders specifically for use therein, the Primary Registration
Statement did not, and the Rule 462(b) Registration Statement, if
any, the Prospectus and any amendments or supplements to the
Registration Statement or the Prospectus will not, when they become
effective or are filed with the Commission, as the case may be,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(f) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(g) (A) In the case of Selling Shareholders other than
Cromwilld, the information provided by the Selling Shareholder in
the Instruction to Purchase Warrant Shares in Connection with, and
Request to Include Warrant Shares for Sale in, the initial public
offering of the Company (attached to the Power of Attorney and
Custody Agreement) was true and correct as of the date on which it
was made, and as of the date hereof; and, except as disclosed in the
Prospectus, within the past three years the Selling Shareholder has
held no position or office or had any other material relationship
with the Company, or (B) in the case of Cromwilld, the information
provided by it in the Selling Shareholder Information Schedule
(Exhibit B to the Settlement Agreement) was true and correct when
made and as of the date hereof.
(h) In the case of Cromwilld, it had full power and authority
to enter into the Settlement Agreement; the Settlement Agreement has
been duly authorized, executed and delivered by it and constitutes a
legally binding obligation of Cromwilld, enforceable in accordance
with its terms.
3. Purchase of the Shares and ADSs by the International Managers. On
the basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, (i) the Company agrees to sell - Firm
Shares (in the form of Ordinary Shares or ADSs) and (ii) each Selling
Shareholder agrees, severally but not jointly, to sell the number of Firm Shares
set forth opposite its name on Schedule II hereto, to the several International
Managers, and each U.S. Underwriter, severally and not jointly, agrees to
purchase the number of Firm Shares (in the form of Ordinary Shares or ADSs) set
opposite such U.S. Underwriter's name in Schedule I hereto, from the Company and
the Selling Shareholders. Each U.S. Underwriter shall be obligated to purchase,
from the Company and from each Selling Shareholder, that number of Firm Shares
which represents the same proportion of the number of Firm Shares to be sold by
the Company and by each Selling Shareholder, as the number of Firm Shares set
forth opposite the name of such U.S. Underwriter in Schedule I represents of the
total number of Firm Shares to be purchased by
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all of the International Managers pursuant to this Agreement. The respective
purchase obligations of the International Managers with respect to the Firm
Shares (including Firm ADSs) shall be rounded among the International Managers
to avoid fractional shares, as the Representative may determine.
In addition, the Company grants to the International Managers an
option to purchase up to an aggregate - Option Shares [and Cromwilld grants to
the International Managers an option to purchase up to an aggregate - Option
Shares] (in each case in the form of Ordinary Shares or ADSs). Such option is
granted solely for the purpose of covering over-allotments in the sale of Firm
Shares and is exercisable as provided in Section 5 hereof. Option Shares shall
be purchased severally for the account of the International Managers in
proportion to the number of Firm Shares set opposite the name of such
International Managers in Schedule I hereto. The respective purchase obligations
of the International Managers with respect to the Option Shares shall be rounded
among the International Managers to avoid fractional shares, as the
Representatives may determine.
The price of both the Firm Shares and any Option Shares purchased
from the Company and/or the Selling Shareholders in the form of Ordinary Shares
shall be - per Firm Share or Option Share, and the price of both the Firm Shares
and any Option Shares purchased from the Company and/or the Selling Shareholders
in the form of ADSs shall be $- per Firm ADS or Option ADS, in each case net of
underwriting discounts and commissions.
The Company and the Selling Shareholders shall not be obligated to
deliver any of the Shares to be delivered on the First Delivery Date or the
Second Delivery Date (each as defined herein), as the case may be, except upon
payment for all the Shares to be purchased on such Delivery Date as provided
herein and in the U.S. Underwriting Agreement.
4. Offering of Shares and ADSs by the International Managers. Upon
authorization by the Lead Manager of the release of the Firm Shares, the several
International Managers propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus; provided, however, that no Shares
registered pursuant to the 462(b) Registration Statement, if any, shall be
offered prior to the Effective Time thereof.
It is understood that - Firm Shares will initially be reserved by
the several International Managers and the several International Managers for
offer and sale upon the terms and conditions set forth in the Prospectus to
employees and persons having business relationships with the Company and its
subsidiaries (the "Directed Share Program") who have heretofore delivered to the
Representatives offers or indications of interest to purchase Firm Shares in
form satisfactory to the Representatives, and that any allocation of such Firm
Shares among such persons will be made in accordance with timely directions
received by the Representatives from the Company; provided, that under no
circumstances will the Representatives or any U.S. Underwriter or any
International Manager be liable to the Company or to any such person for any
action taken or omitted in good faith in connection with such offering to
employees and persons having business relationships with the Company and its
subsidiaries. It is further understood that any Firm Shares which are not
purchased by such persons will be offered by the International Managers and the
International Managers to the public upon the terms and conditions set forth in
the Prospectus.
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Each U.S. Underwriter agrees that, except to the extent
permitted by the Agreement Among International Managers and International
Managers, it will not offer or sell any of the Shares or ADSs outside of the
United States or Canada.
5. Delivery of and Payment for the Shares. Delivery of and
payment for the Firm Shares shall be made at the offices of [Stibbe Simont
▇▇▇▇▇▇▇ Duhot, Amsterdam], at [time], on the [fourth] full business day
following the Date of this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the Company. This date
and time are sometimes referred to as the "First Delivery Date." On the First
Delivery Date, (a) with respect to the Firm Shares to be sold by the Company and
the Selling Shareholders to be delivered in the form of Ordinary Shares, the
Company and the Custodian, on behalf of the Selling Shareholders, shall deliver
or cause to be delivered to the Lead Manager for the account of each U.S.
Underwriter such Firm Shares by book entry transfer through Nederlands Centraal
Instituut voor Giraal Effectenverkeer B.V. ("NECIGEF"), in Amsterdam, The
Netherlands, for credit (i) to the designated account of the Lead Manager or its
nominee at NECIGEF or further credit to designated accounts with the Euroclear
System ("Euroclear") or Cedel Bank, societe anonyme ("Cedel"), as the case may
be, in such respective portions as the Lead Manager may designate by notice to
the Company and the Custodian given at least two full business days prior to the
First Delivery Date, and (ii) to such other NECIGEF accounts as the Lead Manager
may so designate and (b) with respect to the Firm Shares to be sold by the
Company and the Selling Shareholders to be delivered in the form of ADSs, if
any, the Company and the Custodian, on behalf of the Selling Shareholders, shall
(i) deliver or cause to be delivered such Firm Shares by book entry transfer
through NECIGEF for credit to the account of the Correspondent Bank of the
Depositary, (ii) cause the Depositary to issue one or more ADRs evidencing the
ADSs representing such Firm Shares to be registered in such names as specified
below and (iii) deliver or cause to be delivered such ADRs to the Lead Manager
for the account of each U.S. Underwriter, in each case against payment to or
upon the order of (A) the Company of the purchase price therefor by wire
transfer in same-day funds to the account or accounts specified by the Company
to the Lead Manager and (B) the Custodian, on behalf of the Selling
Shareholders, of the purchase price therefor by wire transfer in same-day funds
to the account or accounts specified by the Custodian to the Lead Manager, in
each case upon two business days' prior notice. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each U.S. Underwriter hereunder. Upon
delivery, the Firm Shares shall be registered in such names and in such
denominations as the Lead Manager shall request in writing not less than two
full business days prior to the First Delivery Date.
The Lead Manager, on behalf of the several International
Managers, may elect to have Firm Shares delivered in the form of either Ordinary
Shares or ADSs in such portions as they may elect, in satisfaction of the
Company's and the Selling Shareholders' obligations to sell to the several
International Managers, and the several International Managers' obligations to
purchase, such Firm Shares. Notice of such election with respect to the First
Delivery Date shall be given by the Lead Manager to the Custodian and the
Company upon two business days' prior notice. Upon delivery, the ADRs evidencing
the ADSs representing the Firm Shares shall be registered in such names and in
such denominations as the Lead Manager shall request in writing not less than
two full business days prior to the First
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Delivery Date. For the purpose of expediting the checking and packaging of the
ADRs evidencing the ADSs representing the Firm Shares, the Company and the
Custodian, on behalf of the Selling Shareholders, shall make such ADRs available
for inspection by the Lead Manager in New York, New York, on the business day
prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement, the option granted in Section 3 may be exercised by written
notice being given to the Company [and Cromwilld] by the Representatives. Such
notice shall set forth the aggregate number of Option Shares as to which the
option is being exercised, whether all or a portion of such shares are to be
delivered in the form of ADRs evidencing ADSs representing such Option Shares,
the denominations in which the shares of Option Shares and ADRs, if any, are to
be issued and the date and time, as determined by the Representatives, when the
Option Shares and ADRs, if any, are to be delivered; provided, however, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option Shares are
delivered are sometimes referred to as the "Second Delivery Date" and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as the
"Delivery Date".
Delivery of and payment for the Option Shares shall be made at
the place specified in the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined by agreement between the
Representatives and the Company) at [time], on the Second Delivery Date. On the
Second Delivery Date, (a) with respect to the Option Shares to be delivered in
the form of Ordinary Shares, the Company [and the Custodian on behalf of
Cromwilld] shall deliver or cause to be delivered to the Lead Manager for the
account of each U.S. Underwriter such Option Shares by book entry transfer
through NEGIGEF in Amsterdam, The Netherlands, for credit (i) to the designated
account of the U.S. Underwriter and for further credit to designated accounts at
Euroclear or Cedel, as the case may be, in such respective portions as the U.S
Representative may designate by notice to the Company given at least two full
business days prior to the Second Delivery Date, and (ii) to such other NECIGEF
accounts as the U.S Representative may so designate and (b) with respect to the
Option Shares to be delivered in the form of ADSs, if any, the Company [and the
Custodian on behalf of Cromwilld] shall (i) deliver or cause to be delivered
such Option Shares by book entry transfer through NECIGEF for credit to the
account of the Correspondent Bank of the Depositary, (ii) cause the Depositary
to issue one or more ADRs evidencing the ADSs representing such Option Shares to
be registered in such names as specified below and (iii) deliver or cause to be
delivered such ADRs to the Lead Manager for the account of each U..S.
Underwriter, in each case, against payment to or upon the order of the Company
[and the Custodian on behalf of Cromwilld] of the purchase price therefor by
wire transfer in (same day) funds to the account or accounts specified by the
Company to the Lead Manager upon two business days' prior notice. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each U.S. Underwriter
hereunder. Upon delivery, the Option Shares shall be registered in such names
and in such denominations as the Lead Manager shall request in the aforesaid
written notice.
The Lead Manager, on behalf of the several International
Managers, may elect to have Option Shares delivered in the form of either
Ordinary Shares or ADSs in such
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portions as they may elect in satisfaction of the Company's [and Cromwilld's]
obligation to sell to the several International Managers, and the several
International Managers' obligations to purchase, such Option Shares. Notice of
such election with respect to the Second Delivery Date shall be given by the
Lead Manager to the Company [and the Custodian on behalf of Cromwilld] in
accordance with the provisions of the second preceding paragraph. Upon delivery,
the ADRs evidencing the ADSs representing the Option Stock shall be registered
in such names and in such denominations as the Lead Manager shall request in
accordance with the provisions of the second preceding paragraph. For the
purpose of expediting the checking and packaging of the ADRs evidencing the ADSs
representing Option Shares, the Company shall make such ADRs available for
inspection by the Lead Manager in New York, New York, on the business day prior
to the Second Delivery Date.
With respect to all or any portion of Shares and ADSs to be
purchased and sold hereunder, the Lead Manager, on behalf of the International
Managers and for the purposes of effecting reallocations of Shares and ADSs, may
elect to have such Shares and ADSs delivered to and paid for by the
International Managers in satisfaction of the obligation of the Company and the
Selling Shareholders to sell to the International Managers, and the
International Managers' obligations to purchase, such Shares and ADSs. Notice of
such election shall be given by the Lead Manager to the Company and the Selling
Shareholders two business days prior to the relevant Delivery Date.
With respect to all or any portion of the Shares and ADSs to
be purchased and sold pursuant to the U.S. Underwriting Agreement, the
International Representative, on behalf of the International Managers and for
purposes of effecting reallocations of Shares and ADSs, may elect to have such
Shares and ADSs delivered to and paid for by the International Managers in
satisfaction of the obligation of the Company and the Selling Shareholders to
sell to the International Managers, and the obligations of the International
Managers to purchase, such Shares and ADSs. Notice of such election shall be
given by the International Representative to the Company and the Selling
Shareholders two business days prior to the relevant Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the
Representatives and to file such 462(b) Registration Statement
with the Commission on the date hereof; to prepare the
Prospectus in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than 5:00 p.m., New York City time,
on the day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to
either Registration Statement, the ADS Registration Statement
or to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of
the time when each Registration Statement or the ADS
Registration Statement or any amendment thereto has been filed
or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending
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the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Shares or ADSs for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
either Registration Statement, the ADS Registration Statement
or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the
Representatives and to U.S. counsel to the International
Managers and the International Managers a signed copy of each
of the Registration Statements and the ADS Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement and the computation of per share earnings) and
(ii) each Preliminary Prospectus, the Prospectus (not later
than 5:00 p.m., New York City time, on the day following the
execution and delivery of this Agreement) and any amended or
supplemented Prospectus (not later than 10:00 a.m., New York
City time, on the day following the date of such amendment or
supplement), as the Representatives may reasonably request;
and, if the delivery of a prospectus is required at any time
after the Effective Time of the Primary Registration Statement
in connection with the offering or sale of the Shares or ADSs
(or any other securities relating thereto) and if at such time
any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the
Securities Act, to notify the Representatives and, upon their
request, to prepare and furnish without charge to each U.S.
Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request
of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statements or the ADS
Registration Statement, or the Prospectus or any supplement to
the Prospectus, that may, in the reasonable judgment of the
Company or the Representatives, be required by the Securities
Act or requested by the Commission;
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(e) Prior to filing with the Commission any amendment
to either Registration Statement or the ADS Registration
Statement, or supplement to the Prospectus, or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish
a copy thereof to the Representatives and counsel to the
International Managers and the International Managers and not
to file any such document to which the Representative shall
reasonably object after having been given reasonable notice of
the proposed filing thereof;
(f) As soon as practicable after the Effective Date
of the Primary Registration Statement, to make generally
available to the Company's security holders and to deliver to
the Representatives an earning statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the
Effective Date of the Primary Registration Statement, to
furnish to the Representatives copies of all materials
furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by
the Company to the principal national securities exchange or
automatic quotation system upon which the Shares or ADSs may
be listed or quoted pursuant to requirements of or agreements
with such exchange or system or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to exercise best
efforts to take such action as the Representatives may
reasonably request, in cooperation with the International
Managers and the International Managers, to qualify the Shares
and ADSs for offering and sale under the securities laws of
such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Shares and
ADSs; provided that, in connection therewith, the Company
shall not be required to qualify as a foreign corporation or
otherwise subject itself to taxation in any jurisdiction in
which it is not otherwise so qualified or subject, except as
may be provided in the Operative Agreements.
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, issue, offer,
pledge, sell, contract to sell or sell or grant any contract,
option, right or warrant to purchase, purchase any option to
sell, or otherwise transfer or dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition, transfer or purchase
by any person at any time in the future of) any Shares or
ADSs, Ordinary Shares (other than (x) Ordinary Shares issued
pursuant to employee stock option and incentive plans existing
on the date hereof and (y) Ordinary Shares or other share
capital used by the Company in connection with acquisitions or
strategic alliances (provided in each such case that the
recipient of such shares executes a Lock-up Letter (as defined
below) in advance of any such transfer)) or any other share
capital of the Company or securities
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convertible or exercisable or exchangeable for any such
securities, or sell or grant options, rights or warrants with
respect to any such securities (other than the grant of
options pursuant to employee stock option and incentive plans
existing on the date hereof) or enter into any swap or similar
agreement that transfers, in whole or in part, the economic
risk of ownership of any such securities, whether any of the
foregoing transactions is to be settled by delivery of any
such securities, in cash or otherwise, in each case without
the prior written consent of the Lead Manager; and to cause
each shareholder of the Company, [each] holder of options in
securities of the Company and each person named in the
Prospectus to furnish to the Representatives, prior to the
First Delivery Date, a letter or letters (the "Lock-up
Letters"), in form and substance satisfactory to counsel to
the International Managers, pursuant to which each such person
shall agree not to, directly or indirectly, offer, pledge,
sell, contract to sell or sell or grant any contract, option,
right or warrant to purchase, purchase any option to sell, or
otherwise transfer or dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition, transfer or purchase
by any person at any time in the future of) any Shares, ADSs
or other share capital of the Company or securities
convertible or exercisable or exchangeable for any such
securities, or sell or grant options, rights or warrants with
respect to any such securities or enter into any swap or
similar agreement that transfers, in whole or in part, the
economic risk of ownership of any such securities (other than
(x) any exercise of any stock option granted to such person
pursuant to the Company's stock option plans prior to the date
hereof (although such sentence shall apply to any subsequent
sale of shares received upon any such exercise) or (y) if such
person is a shareholder of the Company, the transfer of any
Ordinary Shares to an affiliate of such person, provided that
the Representatives are notified in advance of any such
proposed transfer and are furnished in advance of such
transfer with a copy of the Lock-up Letter duly executed by
the transferee), whether any of the foregoing transactions is
to be settled by delivery of any such securities, in cash or
otherwise, for a period of 180 days from the date of the
Prospectus;
(j) To use all reasonable efforts to maintain the
listing of the Shares on the AEX and of the ADSs on the Nasdaq
National Market System until none of the Shares and ADSs is
outstanding;
(k) To comply in all material respects with the
Deposit Agreement so that ADRs evidencing ADSs will be
executed by the Depositary and delivered to the International
Managers on each Delivery Date;
(l) To comply in all material respects with all
covenants and agreements of the Company contained in
underwriting agreement relating to the High Yield Offering;
(m) To apply the net proceeds from the sale of the
Shares and ADSs
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being sold by the Company as set forth in the Prospectus, and
to apply the net proceeds from the Third High Yield Offering
as set forth in the Prospectus and in each prospectus relating
to such Offering;
(n) Between the date hereof and the First Delivery
Date (both dates inclusive), to notify and consult with the
Representatives, and to cause its subsidiaries and all other
parties acting on its or their behalf to notify and consult
with the Representatives, prior to issuing any announcement
which could be material in the context of the distribution of
the Shares and ADSs;
(o) Promptly to inform the Representatives of any
communications received by the Company from any governmental
or regulatory agency or authority, including, without
limitation, any Netherlands or Belgian regulatory authority,
the Luxembourg Stock Exchange, or the Commission, relating to
the offering of the Shares and ADSs and to furnish the
Representatives with copies thereof;
(p) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall
become an "investment company" within the meaning of such term
under the Investment Company Act, and the rules and
regulations of the Commission thereunder;
(q) To not take, directly or indirectly, any action
which is designed to stabilize or manipulate, or which
constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation, of the price of any
security of the Company in connection with the offering of the
Shares and ADSs;
(r) To take reasonable steps to minimize its
accumulation of passive income and passive assets and the risk
of the Company qualifying as a PFIC for 1999 and for future
years; provided that such steps are consistent with the
Company's general business plan and other business
considerations (which are subject to change);
(s) To monitor its status as a PFIC and, in the event
the Company is a PFIC, to provide the requisite information to
enable shareholders to make qualified electing fund (as such
term is used in the Code) elections;
(t) To cause each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and KPMG
Accountants N.V. to deliver an initial comfort letter, with
respect to the financial statements of the Company and Svianed
B.V., respectively, dated the date of the Prospectus, to the
International Managers and the International Managers, in form
and substance reasonably satisfactory to the Representatives
at or prior to the time copies of the Prospectus are furnished
to the Representatives; and
(u) In advance of registering any transfers of its
Ordinary Shares from Telecom Founders B.V. to a holder of
depositary receipts in Telecom
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Founders, to provide (or cause Telecom Founders to provide) to
the Representatives and their counsel evidence satisfactory to
the Representatives that such transfers may be made pursuant
to a valid exemption under the Securities Act.
7. Further Agreements of the Selling Shareholders. Each
Selling Shareholder agrees:
(a) That the Shares to be sold by the Selling
Shareholder under this Agreement and the U.S. Underwriting
Agreement, and the Warrants (in the case of Selling
Shareholders other than Cromwilld) or the Shares (in the case
of Cromwilld) that have been placed in custody by the Selling
Shareholder with the Custodian, are subject to the interest of
the International Managers, the International Managers and the
other Selling Shareholders thereunder, that the arrangements
made by the Selling Shareholder for such custody are
irrevocable (except as otherwise explicitly provided in the
Power of Attorney and Custody Agreement), and that the
obligations of the Selling Shareholder under each this
Agreement and the U.S. Underwriting Agreement shall not be
terminated by any act of the Selling Shareholder, by operation
of law or, in the case of a trust, by the death or incapacity
of any executor or trustee or the termination of such trust,
or the occurrence of any other event.
(b) To deliver to the Representatives prior to the
Delivery Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Shareholder is a
non-United States person) or Form W-9 (if the Selling
Shareholder is a United States person.)
(c) To cooperate with the Company, the International
Managers and the International Managers and to execute and
deliver, or use its best efforts to cause to be executed and
delivered, all such other instruments, and take all such other
actions as such party may reasonably be requested to take by
the Company, the International Managers and the International
Managers from time to time, in order to effectuate the
exercise of Warrants and the sale of Warrant Shares (in the
case of Selling Shareholders other than Cromwilld) or the
Shares (in the case of Cromwilld) in the offering contemplated
hereby.
8. Expenses. The Company agrees to pay or cause to be paid:
(a) the costs incident to the authorization, issuance, sale and delivery of the
Shares and ADSs and any taxes payable in that connection; (b) the costs incident
to the preparation, printing and distributing of the Registration Statements,
the ADS Registration Statement, each Preliminary Prospectus, each Prospectus and
any amendments, supplements and exhibits thereto; (c) the costs of distributing
the Registration Statements and the ADS Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereto
(including, in each case, exhibits), each Preliminary Prospectus, the
Prospectus, the International Prospectus and any amendment or supplement to the
Prospectus or the International Prospectus, all as provided in this Agreement
and the U.S. Underwriting
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Agreement; [(d) the costs of producing and distributing this Agreement, the U.S.
Underwriting Agreement, the Agreement Among International Managers and
International Managers, the Agreement Among International Managers and the
Supplemental Agreement Among International Managers;] (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Shares and ADSs; (f) the
fees and expenses of qualifying the Shares and ADSs under the securities laws of
the several jurisdictions as provided in Section 6(h) and of preparing, printing
and distributing a Blue Sky Memorandum (including reasonable related fees and
expenses of counsel to the International Managers[, including Canadian
counsel]); [(g) (i) all costs and expenses incident to the preparation of the
"road show" presentation materials and (ii) all costs and expenses incident to
the road show travelling expenses of the Company]; (h) the costs of preparing
ADR certificates evidencing the ADSs; (i) all expenses and fees in connection
with the application for inclusion of the Shares on the AEX and the ADSs on the
Nasdaq National Market System, or the obtaining of any approvals in connection
with the sale of the Shares and ADSs from relevant authorities in The
Netherlands or Belgium; (j) the costs and expenses of depositing any Shares
under the Deposit Agreement against issuance of ADRs evidencing the ADSs; (k)
the fees and expenses (including fees and disbursements of counsel) of the
Depositary and any nominee or custodian appointed under the Deposit Agreement,
other than the fees and expenses to be paid by holders of ADRs (except the
International Managers and the International Managers, in connection with the
initial purchase of the ADSs); (l) the fees and expenses of any Authorized Agent
(as defined in Section 19 hereof); (m) the cost and charges of any transfer
agent or registrar; (n) all stamp or other issuance or transfer taxes or
governmental duties, if any, payable by the International Managers in connection
with the offer and sale of the Shares and ADSs to the International Managers and
by the International Managers to the initial purchasers therefrom; and (o) all
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement not otherwise specifically provided for in this
Section 8, including, without limitation, the fees and expenses of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, the Company's independent accountants, KPMG Accountants N.V., the
accountants of Svianed B.V., Shearman & Sterling, U.S. counsel to the Company,
and Stibbe Simont ▇▇▇▇▇▇▇ Duhot, Netherlands counsel to the Company; provided
that, except as provided in this Section 8 and in Section 11, the International
Managers shall pay their own costs and expenses, including the costs and
expenses of their counsel and any transfer taxes on the Shares and ADSs which
they may sell. The Company shall pay the expenses of the Selling Shareholders
hereunder, as provided in each Power of Attorney and Custody Agreement; provided
that in no event shall Cromwilld be liable to the Company for any expenses
incurred in connection with the transactions contemplated by this Agreement and
the U.S. Underwriting Agreement.
9. Conditions of the International Managers' Obligations. The
several obligations of the International Managers hereunder are subject to the
accuracy, when made and on each Delivery Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Rule 462(b) Registration Statement, if any,
and the Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of any of either Registration
Statement or the ADS Registration Statement or any part
thereof
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26
shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional
information in either of the Registration Statements, the ADS
Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No U.S. Underwriter or International Underwriter
shall have discovered and disclosed to the Company on or prior
to such Delivery Date that either Registration Statement, the
ADS Registration Statement or the Prospectus or any amendment
or supplement thereto contain any untrue statement of a fact
which, in the opinion of counsel to the International Managers
and the International Managers, is material or omits to state
any fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the U.S. Underwriting Agreement, the Deposit
Agreement, the Shares, the ADSs and the ADRs and each
Registration Statement, the ADS Registration Statement and the
Prospectus or any amendment or supplement thereto, and all
other legal matters relating to this Agreement, the U.S.
Underwriting Agreement, the Deposit Agreement, the Power of
Attorney and Custody Agreement and the transactions
contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel to the
International Managers and the International Managers, and the
Company and the Selling Shareholders shall have furnished to
such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Shearman & Sterling shall have furnished to the
Representatives its written opinion, as U.S. counsel to the
Company, addressed to the International Managers and the
International Managers and dated such Delivery Date, in form
and substance satisfactory to the Representatives, to the
effect that:
(i) The Primary Registration Statement and
the ADS Registration Statement were declared
effective under the Securities Act as of the date and
time specified in such opinion, the Rule 462(b)
Registration Statement, if any, was filed with the
Commission on the date specified therein, the
Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of either Registration Statement or the
ADS Registration Statement has been issued and no
proceeding for that purpose is pending or threatened
by the Commission;
(ii) The Registration Statements and the ADS
Registration Statement, as of their respective
Effective Dates, and the ▇▇▇▇▇▇▇▇▇▇,
▇▇
▇▇
as of its date, and any further amendments or
supplements thereto, as of their respective dates,
made by the Company prior to such Delivery Date
(other than the financial statements and other
financial data contained therein, as to which such
counsel need express no opinion) complied as to form
in all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(iii) To the best of such counsel's knowledge,
there are no contracts or other documents which are
required to be described in the Prospectus or filed
as exhibits to the Registration Statements or the ADS
Registration Statement by the Securities Act or by
the Rules and Regulations which have not been
described or filed as exhibits to the Registration
Statements or the ADS Registration Statement or
incorporated therein by reference as permitted by the
Rules and Regulations;
(iv) Assuming due authorization, execution
and delivery by the Company under the laws of The
Netherlands, each of this Agreement and the U.S.
Underwriting Agreement has been duly executed and
delivered by the Company insofar as New York law is
concerned;
(v) Assuming due authorization, execution
and delivery by the Company under the laws of The
Netherlands, the Deposit Agreement has been duly
executed and delivered by the Company insofar as New
York law is concerned and, assuming due
authorization, execution and delivery of the Deposit
Agreement by the Depositary and that each of the
Depositary and (under the laws of The Netherlands)
the Company has full power, authority and legal right
to enter into and perform its obligations thereunder,
constitutes a valid and legally binding agreement of
the Company, except as 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 to general principles of equity
(regardless of whether in a proceeding in equity or
at law);
(vi) Assuming due authorization, execution
and delivery of the Deposit Agreement by the
Depositary, upon due issuance by the Depositary of
the ADRs evidencing ADSs being delivered by the
Company at such Delivery Date against the deposit of
Ordinary Shares to be deposited by the Company in
respect thereof in accordance with the provisions of
the Deposit Agreement, such ADRs will be duly and
validly issued and will entitle the persons in whose
names the ADRs are registered to the rights specified
therein and in the Deposit Agreement;
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28
(vii) Assuming the validity of such actions
under the laws of The Netherlands, under the laws of
the State of New York relating to submission to
personal jurisdiction, the Company has, pursuant to
Section 19 of this Agreement, legally, 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 this Agreement
or the transactions contemplated hereby, and has
legally, validly and effectively appointed the
Authorized Agent as its authorized agent for the
purposes described in Section 19 of this Agreement,
and the Company has validly and irrevocably waived
(A) the defense of an inconvenient forum to the
maintenance of any such suit or proceeding and (B)
any immunity to jurisdiction to which it may
otherwise be entitled in any such suit or proceeding;
(viii) The issue and sale of the Shares and
ADSs being delivered by the Company at such Delivery
Date, the deposit with the Depositary of the Ordinary
Shares to be delivered in the form of ADSs against
the issuance of ADRs evidencing ADSs pursuant to the
Deposit Agreement and the compliance by the Company
with all of the provisions of this Agreement, the
U.S. Underwriting Agreement, the Deposit Agreement
and the Power of Attorney and Custody Agreement and
the consummation by the Company of the transactions
contemplated herein and therein, 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, (A) any existing applicable law, rule
or regulation of any court or governmental agency or
body of the United States or the State of New York
(other than state securities or Blue Sky laws as to
which we have not been requested to express any
opinion) or (B) any order, known to us, of any
government, governmental instrumentality or court of
the United States or the State of New York having
jurisdiction over the Company or any of their
properties or assets; and, except for the
registration of the Shares and the ADSs under the
Securities Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable
state securities laws in connection with the purchase
and distribution of the Shares and the ADSs by the
International Managers and the International
Managers, no consent, approval, authorization or
order of, or filing or registration with, any such
court, governmental agency or body is required for
the execution, delivery and performance of this
Agreement, the U.S. Underwriting Agreement or the
Deposit Agreement by the Company and the consummation
of the transactions contemplated hereby and thereby;
(ix) The statements set forth in the
Prospectus under the captions "Description of
American Depositary Receipts," insofar as such
statements purport to constitute a summary of the
terms of the
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29
Deposit Agreement, the ADSs and the ADRs, fairly
summarize such terms, laws, agreements and other
documents in all material respects;
(x) The statements set forth in the
Prospectus under the caption "Tax Considerations --
U.S. Federal Income Tax Considerations" accurately
summarize, subject to limitations and qualifications
stated therein, the material U.S. federal income tax
consequences to a U.S. Holder of the purchase,
ownership and disposition of Ordinary Shares or ADSs;
(xi) The Company is not and, after giving
effect to the offering and sale of the Shares and
ADSs and the High Yield Offering, will not be an
"investment company" or an entity "controlled" by an
"investment company," as such terms are defined in
the United States Investment Company Act of 1940; and
(xii) The opinion of such counsel delivered
pursuant to Section 6(d) of the High Yield
Underwriting Agreement is confirmed and the
International Managers may rely upon such opinion as
if it were addressed to them.
In rendering such opinion, such counsel may (i) state that
their opinion is limited to matters governed by the federal
laws of the United States of America and the laws of the State
of New York and (ii) rely (to the extent such counsel deems
proper), as to matters involving the application of the laws
of The Netherlands upon the opinion of Stibbe Simont ▇▇▇▇▇▇▇
Duhot referred to in Section 9(e) below if so specified in its
opinion. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the
International Managers and dated such Delivery Date, in form
and substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to the
Company in connection with the preparation of the Registration
Statements and the ADS Registration Statement and (y) based on
the foregoing, no facts have come to the attention of such
counsel which lead it to believe that (I) each Registration
Statement and the ADS Registration Statement, as of their
respective Effective Dates, and the Prospectus, as of its
date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading or, (II) as of such Delivery Date, that the
Prospectus or International Prospectus contains any untrue
statement of a material fact or, omits to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the
effect that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in each Registration Statement, the ADS Registration
Statement or the Prospectus except for the statements made in
the Prospectus under the captions "Description of American
Depositary Shares" and "Tax Considerations -
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30
Certain U.S. Federal Income Tax Considerations" insofar as
such statements relate to the provisions of the ADSs, the ADRs
and the Deposit Agreement or concern legal matters.
(e) Stibbe Simont ▇▇▇▇▇▇▇ Duhot shall have furnished
to the Representatives its written opinion, as Netherlands
counsel to the Company, addressed to the International
Managers, the International Managers and the Company and dated
such Delivery Date, in form and substance satisfactory to the
Representatives and the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing under the laws of The
Netherlands as a legal entity in the form of a
naamloze vennootschap, is duly qualified to do
business in each jurisdiction in which its ownership
or lease of property or the conduct of its businesses
requires such qualification, and has all power and
authority necessary to own or hold its properties and
to conduct the businesses in which it is engaged;
(ii) Each of the Company's Netherlands
subsidiaries has been duly incorporated and is
validly existing under the laws of The Netherlands,
is duly qualified to do business in each jurisdiction
in which its ownership or lease of property or the
conduct of its businesses requires such
qualification, and has all power and authority
necessary to own or hold its properties and to
conduct the businesses in which it is engaged;
(iii) The Company has an authorized and issued
capitalization as set forth in the Prospectus, and
all of the issued shares of capital stock of the
Company (including the Shares being delivered by the
Company and the Selling Shareholders on such Delivery
Date) have been duly and validly authorized and
issued, are fully paid and non-assessable and conform
to the description thereof contained in the
Prospectus and when the Shares to be sold by the
Company and the Selling Shareholders hereunder and
under the U.S. Underwriting Agreement are delivered,
or in the case of Shares to be deposited pursuant to
the Deposit Agreement, when such Shares are so
deposited, in each case against payment therefor as
provided herein and in the U.S. Underwriting
Agreement, such Shares will be duly and validly
issued, fully paid and non-assessable and the
subscription and deposit of such Shares will not be
subject to any preferential subscription rights or
preemptive rights pursuant to the Articles of
Association, Netherlands law or otherwise; except as
disclosed in the Prospectus, there are no outstanding
securities convertible into or exchangeable for, or
warrants, rights or options to purchase from the
Company or obligations of the Company to issue, any
class of capital stock of, or other form of ownership
interest in, the Company; and all
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31
of the issued shares of capital stock of, or other
form of ownership interest in, each subsidiary of the
Company have been duly and validly authorized and
issued and are fully paid, non-assessable and are
wholly owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities
or claims;
(iv) There are no restrictions in the
Articles of Association that would prevent the Shares
and ADSs from being offered and sold by the Company
to the International Managers and the International
Managers;
(v) The shareholders register of the Company
does not contain, and, after the issuance of the
Shares and ADSs, will not contain, any registration
of any pledges ("pandrecht") or rights of usufruct
("vruchtgebruik") with respect to any shares of
capital stock of the Company;
(vi) Assuming the due execution by the
Selling Shareholders and the International Managers
of this Agreement, proportional co-ownership of the
Shares and ADSs, within the meaning of the Dutch
Securities Giro Administration and Transfer Act ("Wet
Giraal Effectenverkeer"), will have been acquired by
the International Managers on whose behalf and in
whose name such Shares and ADSs will be held and
administered by an associated institution of NECIGEF,
free and clear of all liens, claims or other
encumbrances;
(vii) The descriptions in the Prospectus of
statutes, legal and governmental proceedings and
contracts and other documents are accurate in all
material respects; the statements in the Prospectus
under the headings "Service of Process and
Enforceability of Civil Liabilities," "Summary -
Regulatory and Competitive Environment," "Risk
Factors - Changes in the Regulatory Environment Could
Affect our Ability to Offer our Products and
Services," "Dividend Policy," "Business Regulation,"
"Business - Intellectual Property," "Management -
Supervisory Board," "Management - Management Board,"
"Management - Executive Compensation," "Description
of Capital Stock," "Management - Stock Option Plans,"
and "Shares Eligible for Future Sale," to the extent
that they constitute summaries of matters of law or
regulation or legal conclusions, have been reviewed
by such counsel and fairly summarize the matters
described therein in all material respects;
(viii) The Company, with respect to each of the
Operative Agreements, has full right, power and
authority to execute and deliver each of the
Operative Agreements and to perform its obligations
thereunder; and all corporate action required to be
taken for the due and proper authorization, execution
and delivery of each of the Operative Agreements and
the consummation of the transactions
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32
contemplated thereby have been duly and validly
taken;
(ix) This Agreement and the U.S. Underwriting
Agreement have been duly authorized, executed and
delivered by the Company and, assuming that this
Agreement and the U.S. Underwriting Agreement
constitute valid and legally binding agreements under
the laws of the State of New York, constitute valid
and legally binding agreements of the Company
enforceable against the Company in accordance with
its terms;
(x) Each of the Deposit Agreement and the
Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by the Company
and, assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary
and assuming that the Deposit Agreement constitutes a
valid and legally binding agreement under the laws of
the State of New York, constitutes a valid and
legally binding agreement of the Company enforceable
against the Company in accordance with its terms;
(xi) The execution, delivery and performance
of the Operative Agreements by the Company, the
issuance of the Shares and the ADSs by the Company,
the deposit with the Depositary of the Shares to be
delivered in the form of ADSs against the issuance of
ADRs pursuant to the Deposit Agreement, the offer and
sale of Shares and ADRs in the manner contemplated by
this Agreement, the U.S. Underwriting Agreement and
the Prospectus and the compliance by the Company with
all of the provisions of this Agreement, the U.S.
Underwriting Agreement and the Deposit Agreement, and
the consummation of the transactions contemplated
hereby and thereby, 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 subsidiaries pursuant to
any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument
to which the Company or its subsidiaries is a party
or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of
the Company or its subsidiaries is subject, nor will
such actions result in any violation of the
provisions of the articles of association of the
Company or any of its subsidiaries or any statute or
any judgment, order, decree, rule or regulation of
any court or arbitrator or governmental agency or
body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or
assets; and, except for the registration of the
Shares and ADSs under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act and
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applicable foreign or state securities laws in
connection with the purchase and distribution of the
Shares and ADSs by the International Managers, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
arbitrator or governmental agency or body under any
such statute, judgment, order, decree, rule or
regulation is required for the execution, delivery
and performance by the Company of this Agreement, the
U.S. Underwriting Agreement or the Deposit Agreement
by the Company, the listing of the Shares on the AEX
and the consummation of the transactions contemplated
hereby and thereby;
(xii) To the best knowledge of such counsel,
there are no pending actions or suits or judicial,
arbitral, rule-making, administrative or other
proceedings to which the Company or any of its
subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is
the subject which (A) singularly or in the aggregate,
if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a
material adverse effect on the Company and its
subsidiaries or (B) questions the validity or
enforceability of the Operative Agreements or any
action taken or to be taken pursuant thereto; and to
the best knowledge of such counsel, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xiii) Neither the Company nor any of its
subsidiaries is (A) in violation of its articles of
association (B) in default in any material respect,
and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in
the due performance or observance of any term,
covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which they
are a party or by which they are bound or to which
any of their property or assets is subject or (C) in
violation in any material respect of any law,
ordinance, governmental rule, regulation or court
decree to which the Company or any of its
subsidiaries or their property or assets may be
subject;
(xiv) Each of the Operative Agreements, and
any other document required to be furnished hereunder
or thereunder is in proper legal form under
Netherlands law for the enforcement thereof against
the Company without further action on the part of the
International Managers, the International Managers or
the holders of the Shares or ADSs, as the case may
be; and to ensure the legality, validity,
enforceability, priority or admissibility in evidence
in The Netherlands of each of the Operative
Agreements or any other document required to be
furnished hereunder or thereunder, it is not
necessary that the Operative Agreements or any such
document be submitted to, filed or recorded with any
Netherlands court or other authority. All formalities
required in The Netherlands for the validity and
enforceability of the Operative Agreements (including
any necessary registration, recording
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or filing with any Netherlands court or other
authority) have been accomplished, and no
notarization is required, for the validity and
enforceability thereof;
(xv) The filing of each Registration
Statement and the ADS Registration Statement, the
listing of the Shares on the AEX and the listing of
the ADSs on the Nasdaq National Market System have
been duly authorized by the Company;
(xvi) Any judgment obtained in a United States
federal or state court of competent jurisdiction
sitting in New York City arising out of or in
relation to the obligations of the Company under the
Operative Agreements would be enforced against the
Company in the courts of The Netherlands;
(xvii) The International Managers and
International Managers would be permitted to commence
proceedings against the Company in Netherlands courts
of competent jurisdiction based on the Operative
Agreements (to the extent that they have direct
contractual rights against the Company under such
Operative Agreements which arise as a result of valid
and binding obligations of the Company under such
documents in accordance with the laws of the State of
New York), and (if they accepted jurisdiction) such
Netherlands courts would recognize the choice of law
provisions of the Operative Agreements;
(xviii) The Company can ▇▇▇ and be sued in its
own name; under Netherlands law, the agreement of the
Company that Operative Agreements shall be governed
by the laws of the State of New York will, if it
constitutes a valid and legally binding agreement
under the laws of the State of New York, be
recognized by the courts of The Netherlands;
(xix) Under the laws of The Netherlands, the
Company would in the Courts of The Netherlands not be
entitled to invoke immunity from jurisdiction or
immunity from execution on the grounds of sovereignty
in respect of any action arising out its obligations
under the Operative Agreements;
(xx) The indemnification and contribution
provisions set forth in Section 10 herein do not
contravene the public policy or laws of The
Netherlands;
(xxi) The submission by the Company to the
jurisdiction of the United States federal or New York
state courts sitting in New York City, set forth in
each of the Operative Agreements, constitute valid
and legally binding obligations of the Company, and
service of process effected in the manner set forth
in, the Operative Agreements, assuming validity under
the laws of the State of New York, will be
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effective, insofar as Netherlands law is concerned;
and
(xxii) The certificates used to evidence the
Shares and ADSs are in due and proper form and comply
with all applicable statutory requirements of
Netherlands law.
(xxiii) The opinion of such counsel delivered
pursuant to Section 6(e) of the High Yield
Underwriting Agreement is confirmed and the
International Managers may rely upon such opinion as
if it were addressed to them.
Such counsel shall also have furnished to the Representatives
a written statement, addressed to the International Managers
and dated such Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that no
facts have come to the attention of such counsel which lead it
to believe that (I) each Registration Statement and the ADS
Registration Statement, as of their respective Effective
Dates, and the Prospectus, as of its date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading or, (II)
as of such Delivery Date, that the Prospectus or International
Prospectus contains any untrue statement of a material fact
or, omits to state any material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. In rendering such opinion, such counsel may state
that their opinion is limited to matters governed by
Netherlands law and shall state that each of Shearman &
Sterling and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely upon their
opinion with respect to matters of Netherlands law.
(f) Cains Advocates, Solicitors and Notaries, counsel
for Cromwilld, shall have furnished to the Representatives its
written opinion, as counsel to such Selling Shareholder,
addressed to the International Managers and dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Selling Shareholder has full right,
power and authority to enter into this Agreement, the
U.S. Underwriting Agreement and the Power of Attorney
and Custody Agreement and had full power and
authority to enter into the Settlement Agreement; the
execution, delivery and performance of the Settlement
Agreement by the Selling Shareholder did not, the
execution, delivery and performance of this
Agreement, the U.S. Underwriting Agreement and the
Power of Attorney and Custody Agreement by the
Selling Shareholder will not, and the consummation by
the Selling Shareholder of the transactions
contemplated hereby and thereby will not, conflict
with or result in a breach or violation of any of the
terms or provisions of, or constitute a default
under, any statute, any
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indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which the Selling Shareholder is a party or by
which the Selling Shareholder is bound or to which
any of the property or assets of the Selling
Shareholder is subject, nor will such actions result
in any violation of the provisions of the charter or
by-laws or equivalent constitutive document of the
Selling Shareholder, any statute or any order, rule
or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
the Selling Shareholder or the property or assets of
the Selling Shareholder; and, except for the
registration of the Shares and ADSs under the
Securities Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable
foreign or state securities laws in connection with
the purchase and distribution of the Shares by the
International Managers, no consent, approval,
authorization or order of, or filing or registration
with, any such court or governmental agency or body
was or is required for the execution, delivery and
performance of this Agreement, the U.S. Underwriting
Agreement, the Power of Attorney and Custody
Agreement and the Settlement Agreement by the Selling
Shareholder and the consummation by the Selling
Shareholder of the transactions contemplated hereby
and thereby;
(ii) This Agreement has been duly authorized,
executed and delivered by the Selling Shareholder;
(iii) The Settlement Agreement has been duly
authorized, executed and delivered by the Selling
Shareholder and constitutes a valid and binding
agreement of the Selling Shareholder;
(iv) The Power of Attorney and Custody
Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and constitutes
a valid and binding agreement of the Selling
Shareholder; and
(v) Upon delivery of the Ordinary Shares of
the Selling Shareholder and payment therefor pursuant
hereto, the International Managers will acquire all
of the rights of the Selling Shareholder in such
Ordinary Shares and will acquire the interest of the
Selling Shareholder in such Shares free and clear of
all liens, encumbrances, equities or claims
whatsoever.
In rendering the opinion in Section 9(f)(v) above, such
counsel may rely upon a certificate of the Selling Shareholder
in respect of matters of fact as to ownership of, and the
absence of adverse claims regarding, the Shares sold by the
Selling Shareholder, provided that such counsel shall furnish
copies thereof to the Representatives and state that it
believes that both the International Managers and it are
justified in relying upon such certificate.
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The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in either Registration Statement, the
ADS Registration Statement or the Prospectus.
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have furnished to the
Representatives written opinion, as special Netherlands tax
counsel to the Company, addressed to the International
Managers and the International Managers and dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) It is not necessary, prior to the
International Managers or the International Managers
seeking enforcement of the Operative Agreements, in
the Netherlands, that any stamp or similar tax be
paid;
(ii) The disclosure in the Prospectus under
the caption "Tax Considerations -- Netherlands Tax
Considerations" accurately summarizes, subject to the
limitations and qualifications stated therein, the
material Netherlands income tax consequences of the
purchase, ownership and disposition of Shares or
ADSs;
(iii) Except as disclosed in the Prospectus,
under current laws and regulations of The Netherlands
and any political subdivision thereof, all dividends
and other distributions on the Shares and ADSs may be
paid by the Company in Dutch Guilders, euros or
another currency that may be converted into foreign
currency that may be freely transferred out of The
Netherlands and, in each case, all such payments made
to holders thereof who are non-residents of The
Netherlands will not be subject to income,
withholding or other taxes under laws and regulations
of The Netherlands or any political subdivision or
taxing authority thereof or therein and will
otherwise be free and clear of any other tax, duty,
withholding or deduction in The Netherlands or any
political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any
governmental authorization in The Netherlands or any
political subdivision or taxing authority thereof or
therein; and
(iv) No stamp or other issuance or transfer
taxes or duties and no capital gains, income
withholding or other taxes are payable in accordance
with Netherlands tax law, by or on behalf of the
International Managers or the International Managers,
to Netherlands taxation authorities or other
Netherlands agencies in connection with the
following:
(a) the issuance of the Shares by the
Company;
(b) the deposit by the Company with the
Depository or its nominee, of the
Shares against
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the issuance of ADRs evidencing the ADSs
pursuant to the Deposit Agreement;
(c) the delivery of the Shares or ADSs to or for
the respective accounts of the International
Managers and the International Managers in
the manner contemplated herein and in the
U.S. Underwriting Agreement; or
(d) the sale and delivery by the International
Managers and the International Managers of
the Shares and ADSs to the initial
purchasers therefrom.
(h) ▇▇▇▇▇ Dutilh shall have furnished to the
Representatives its written opinion, as Netherlands counsel to
the International Managers, addressed to the International
Managers and the International Managers and dated such
Delivery Date, in form and substance satisfactory to the
Representatives.
(i) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished
to the Representatives its written opinion, as counsel to the
Depositary, addressed to the International Managers and the
International Managers and dated such Delivery Date, in form
and substance satisfactory to the Lead Manager, to the effect
that:
(i) The Deposit Agreement has been duly
authorized, executed and delivered by the Depositary
and constitutes a valid and legally binding
obligation of the Depositary enforceable in
accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to
general equitable principles; provided, however, that
such counsel need express no opinion as to Section
5.08 of the Deposit Agreement; and
(ii) When ADRs have been duly executed and,
if applicable, countersigned, and duly issued and
delivered in accordance with the Deposit Agreement,
the ADSs evidenced by ADRs will be validly issued and
will entitle the registered holders thereof to the
rights specified in the ADRs and the Deposit
Agreement.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other
than U.S. federal and New York State law.
(j) ▇▇▇▇ van der Heijden, special regulatory counsel
to the Company, shall have furnished his written opinion to
International Managers and the
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International Managers and dated such Delivery Date, in form
and substance satisfactory to the Representatives.
(k) With respect to the letter of each of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and KPMG Accountants N.V. delivered to the
Representatives and dated the date of the Prospectus referred
to in Section 6(r) (as used in this paragraph, the "initial
letter"), the Company shall have furnished to the
Representatives a letter (as used in this paragraph, the
"bring-down letter") of each such accounting firm, addressed
to the International Managers and the International Managers
and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(l) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of R.
▇▇▇▇ ▇▇▇▇▇, Managing Director, and ▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief
Financial Officer, stating, on behalf of the Company, that:
(i) The representations, warranties and
agreements of the Company in Section 1 are true and
correct as of such Delivery Date; the Company has
complied with all its agreements contained herein;
and
(ii) (A) Neither the Company nor any of its
subsidiaries has sustained since the date of the
latest audited financial statements included in the
Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any
labor dispute or court or governmental action, order
or decree, otherwise than as set forth in the
Prospectus or (B) since such date there shall not
have been any change in the share capital or
long-term debt of the Company or any of its
subsidiaries or any change, or any development
involving a prospective change, in or affecting the
general affairs, management, financial position,
shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set
forth in the Prospectus; and
(iii) They have carefully examined the
Prospectus and, in their opinion (A) the Prospectus,
as of its date, did not include any untrue statement
of a material fact and did not omit to state any
material fact required to be stated therein or
necessary to make the statements
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40
therein not misleading, and (B) since such date no
event has occurred which should have been set forth
in a supplement or amendment to the Prospectus so
that the Prospectus, as so amended or supplemented,
would not include any untrue statement of a material
fact and would not omit to state a material fact
required to be stated therein or necessary in order
to make the statements therein, in the light of the
circumstances in which they were made, not
misleading.
(m) The Custodian or one or more attorneys-in-fact on
behalf of the Selling Shareholders shall have furnished to the
Representatives on such Delivery Date a certificate, dated
such Delivery Date, signed by, or on behalf of, the Custodian
or one or more attorneys-in-fact stating that the
representations, warranties and agreements of the Selling
Shareholder contained herein are true and correct as of such
Delivery Date and that the Selling Shareholder has complied
with all agreements contained herein to be performed by the
Selling Shareholder at or prior to such Delivery Date;
provided, that such representations, warranties and agreements
shall not have been changed in any material respect from the
forms thereof attached to the Power if Attorney and Custody
Agreement delivered by such Selling Shareholder.
(n) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in the Prospectus
or (ii) since such date there shall not have been any change
in the share capital or long-term debt of the Company or any
of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed
with the offering of the Shares and ADSs on the terms and in
the manner contemplated in the Prospectus.
(o) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange, Inc., the American Stock Exchange, the Nasdaq
National Market System, the AEX or in the U.S.
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) any
downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under
the
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Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), (iii)
a banking moratorium shall have been declared by U.S. federal
or state authorities in the United States or by authorities in
The Netherlands or by European Union authorities, (iv) the
United States or The Netherlands shall have become engaged in
hostilities or there shall have been a declaration of a
national emergency or war by the United States or The
Netherlands or (v) there shall have occurred such a material
adverse change in general or United States or Netherlands
economic, political or financial conditions or in currency
exchange rates, taxation, exchange controls or foreign
investment regulations (or the effect of international
conditions on the financial markets in the United States or
The Netherlands shall be such) as to make it, in the judgment
of a majority in interest of the several International
Managers, impracticable or inadvisable to proceed with
completion of the offering or sale of and payment for the
Shares and ADSs on the terms and in the manner contemplated in
the Prospectus.
(p) The AEX and the Nasdaq National Market shall have
accepted the Shares and ADSs, respectively, for trading, in
each case subject only to official notice of issuance.
(q) The Ordinary Shares shall have been admitted for
the operations of NECIGEF, Euroclear and Cedel.
(r) The Company and the Depositary shall have
executed and delivered the Deposit Agreement (in form and
substance satisfactory to the Representatives) and the Deposit
Agreement shall be in full force and effect.
(s) The Depositary shall have furnished to the
Representatives a certificate, dated such Delivery Date, of
one of its authorized officers in a form satisfactory to the
Representatives.
(t) The Company shall have furnished to the
Representatives a copy of each Lock-up Letter.
(u) The closing under the U.S. Underwriting Agreement
shall have occurred concurrently with the closing hereunder on
such Delivery Date.
(v) In the case of the First Delivery Date, the
closing of the High Yield Offering shall have occurred
concurrently with the closing hereunder on such Delivery Date.
(w) Each Power of Attorney and Custody Agreement is
in full force and effect on such Delivery Date.
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(x) The Company shall have furnished to the
Representatives a copy of a letter or letters signed by each
current shareholder of the Company in favor of the AEX with
respect to the obligations relating to the disposition of
Ordinary Shares by such shareholders, in form and substance
satisfactory to the Representatives.
(y) No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or
issued by any governmental agency or body which would, as of
each Delivery Date, prevent the issuance or sale of the Shares
or ADSs; and no injunction, restraining order or order of any
other nature by any federal or state court of competent
jurisdiction shall have been issued as of each Delivery Date
which would prevent the issuance or sale of the Shares or
ADSs.
(z) The Company shall have furnished to the
Representatives such further information, certificates and
documents as the Representatives may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel to the Representatives.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each U.S.
Underwriter, its officers and employees and each person, if any, who controls
any U.S. Underwriter within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Shares and ADSs), to which that
U.S. Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, either Registration Statement, the ADS Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B) in any blue sky
application or other document prepared or executed by the Company (or based upon
any written information furnished by the Company) specifically for the purpose
of qualifying any or all of the under the securities laws of any state or other
jurisdiction (such application, document or information being hereinafter called
a "Blue Sky Application"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, either Registration Statement, the ADS Registration
Statement or the Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any act or
failure to act, or any alleged act or failure to act, by any U.S. Underwriter in
connection with, or relating in any manner to, the Shares and ADSs or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above and (iv) the Directed Share Program
(provided that the Company shall
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not be liable in the case of any matter covered by clauses (iii) and (iv) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such act or failure to act undertaken or omitted to be taken
by such U.S. Underwriter through its gross negligence or wilful misconduct), and
shall reimburse each U.S. Underwriter and each such officer, employee and
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that U.S. Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, either
Registration Statement, the ADS Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application in reliance
upon and in conformity with the written information furnished to the Company
through the Representatives by or on behalf of any U.S. Underwriter specifically
for inclusion therein and described in Section 10(f); provided, further, that as
to any Preliminary Prospectus this indemnity agreement shall not inure to the
benefit of any U.S. Underwriter, its officers or employees or any person
controlling that U.S. Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Shares or ADSs to any person by
that U.S. Underwriter if that U.S. Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 6(c). The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any U.S. Underwriter or to any officer,
employee or controlling person of that U.S. Underwriter.
(b) The Selling Shareholders, severally in proportion to the
number of Shares and ADSs to be sold by each of them pursuant to the U.S.
Underwriting Agreement, shall indemnify and hold harmless each U.S. Underwriter,
its officers and employees and each person, if any, who controls any U.S.
Underwriter within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Shares and ADSs), to which that U.S.
Underwriter, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, any untrue statement or alleged
untrue statement of a material fact contained in either Registration Statement,
the ADS Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or the omission or alleged omission to state in either
Registration Statement, the ADS Registration Statement or the Prospectus, or in
any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on
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behalf of the Selling Shareholders specifically for inclusion therein, and shall
reimburse each U.S. Underwriter, its officers and employees and each such
controlling person for any legal or other expenses reasonably incurred by such
U.S. Underwriter, its officers, employees or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Each U.S. Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the meaning
of the Securities Act and the Selling Shareholders, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer or controlling person or the
Selling Shareholders may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, either Registration Statement,
the ADS Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, either Registration
Statement, the ADS Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any material fact required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the
Representatives by or on behalf of that U.S. Underwriter specifically for
inclusion therein and described in Section 10(f), and shall reimburse the
Company and any such director, officer or controlling person and the Selling
Shareholders for any legal or other expenses reasonably incurred by the Company
or any such director, officer or controlling person or Selling Shareholder in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any U.S.
Underwriter may otherwise have to the Company or any such director, officer or
controlling person or the Selling Shareholders.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
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defense thereof other than reasonable costs of investigation; provided, however,
that any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgement of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Representatives, if the indemnified parties under this Section 10 consist
of any International Managers or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or controlling persons or the Selling Shareholders. Each indemnified
party, as a condition of the indemnity agreements contained in Sections 10(a),
10(b) and 10(c), shall use its best efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld) settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(a) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (b) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss of liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Selling Shareholders on the one hand,
and the International Managers on the other, from the offering of the Shares and
ADSs or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
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relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Shareholders on the one hand and the International
Managers on the other with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Shareholders on the one hand and the
International Managers on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares and ADSs purchased under this Agreement (before deducting expenses
but after deducting underwriting discounts and commissions) received by the
Company and the Selling Shareholders, on the one hand, and the total
underwriting discounts and commissions received by the International Managers
with respect to the Shares and ADSs purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the Shares and ADSs
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to
whether the 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, the Selling Shareholders or the International Managers, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Selling
Shareholders and the International Managers agree that it would not be just and
equitable if contributions pursuant to this Section 10(e) were to be determined
by pro rata allocation (even if the International Managers were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
10(e) shall be deemed to include, for purposes of this Section 10(e), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10(e), (i) the aggregate liability of the Selling
Shareholders under this subsection (e) and subsections (a) and (b) and Sections
10(a), 10(b) and 10(e) of the U.S. Underwriting Agreement shall in no event
exceed the amount of the net proceeds (before deducting expenses but after
deducting underwriting discounts and commissions) received by the Selling
Shareholders from the sale of Shares and ADSs sold by the Selling Shareholders
hereunder and under the U.S. Underwriting Agreement and (ii) no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares and ADSs underwritten by it and distributed to
the public was offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise paid or become liable to pay by reason of
any 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Selling
Shareholders shall only be obligated to contribute pursuant to this subsection
(e) if the loss, claim, damage or liability arose from an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Selling Shareholders specifically for inclusion therein. The
Selling Shareholders' respective obligations in this subsection (e) to
contribute are several and not joint. The International Managers' obligations to
contribute as provided in this Section 10(e) are several in proportion to their
respective underwriting obligations and not joint.
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(f) The International Managers severally confirm that the
statements with respect to the offering of the Shares set forth in the last
paragraph on page (i) of, and under the caption "Underwriting" in, the
Prospectus are correct in all material respects and constitute the only
information furnished in writing to the Company by or on behalf of the
International Managers specifically for inclusion in the Registration
Statements, the ADS Registration Statement and the Prospectus.
11. Defaulting International Managers. If, on either Delivery
Date, any U.S. Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting International Managers shall be
obligated to purchase the Shares and ADSs which the defaulting U.S. Underwriter
agreed but failed to purchase on such Delivery Date in the respective
proportions which the number of the Firm Shares and ADSs set opposite the name
of each remaining non-defaulting U.S. Underwriter in Schedule I hereto bears to
the total number of the Firm Shares and ADSs set opposite the names of all the
remaining non-defaulting International Managers in Schedule I hereto; provided,
however, that the remaining non-defaulting International Managers shall not be
obligated to purchase any of the Shares and ADSs on such Delivery Date if the
total number of Shares and ADSs which the defaulting U.S. Underwriter or
International Managers agreed but failed to purchase on such date exceeds 9.09%
of the total number of Shares and ADSs to be purchased on such Delivery Date,
and any remaining non-defaulting U.S. Underwriter shall not be obligated to
purchase more than 110% of the number of Shares and ADSs which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting International
Managers, or those other underwriters satisfactory to the Representatives who so
agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Shares and ADSs to be
purchased on such Delivery Date. If the remaining International Managers or
other underwriters satisfactory to the Representatives do not elect to purchase
the Shares and ADSs which the defaulting U.S. Underwriter or International
Managers agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
International Managers to purchase, and the Company to sell, the Option Shares)
shall terminate without liability on the part of any non-defaulting U.S.
Underwriter or the Company or the Selling Shareholders, except that the Company
will continue to be liable for the payment of expenses to the extent set forth
in Sections 8 and 13. As used in this Agreement, the term "U.S. Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule I hereto who, pursuant to this
Section 11, purchases Firm Shares and ADSs which a defaulting U.S. Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting U.S.
Underwriter of any liability it may have to the Company and the Selling
Shareholders for damages caused by its default. If other underwriters are
obligated or agree to purchase the Shares or ADSs of a defaulting or withdrawing
U.S. Underwriter, either the Representatives or the Company may postpone the
First Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel to the Company or counsel to the
International Managers may be necessary in either Registration Statement, the
ADS Registration Statement, the Prospectus or in any other document or
arrangement.
12. Termination. The obligations of the International Managers
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hereunder may be terminated by the Representatives by notice given to and
received by the Company and the Selling Shareholders prior to delivery of and
payment for the Firm Shares if, prior to that time, any of the events described
in Sections 9(n) or 9(o) shall have occurred or if the International Managers
shall decline to purchase the Shares for any reason permitted under this
Agreement.
13. Reimbursement of International Managers' Expenses. If (a)
the Company or any Selling Shareholder shall fail to issue the Shares for
delivery to the International Managers for any reason permitted under this
Agreement or (b) the International Managers shall decline to purchase the Shares
or ADSs for any reason permitted under this Agreement (including the termination
of this Agreement pursuant to Section 12), the Company shall reimburse the
International Managers for fees and expenses of their counsels and for such
other out-of-pocket expenses as shall have been incurred by them in connection
with this Agreement and the proposed purchase of the Shares and ADSs, and upon
demand the Company shall pay the full amount thereof to the Representatives.
Notwithstanding the previous sentence, if this Agreement is terminated pursuant
to Section 11 by reason of the default of one or more International Managers,
the Company shall not be obligated to reimburse any defaulting U.S. Underwriter
on account of those expenses.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the International Managers, shall be
delivered or sent by mail, telex or facsimile transmission to
▇▇▇▇▇▇ Brothers Inc., Three World Financial Center, New York,
New York 10285, Attention: Syndicate Department (Fax:
212-528-8822);
With a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Fax:
011-44-171-422-4022);
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Prospectus, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
(Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇).
With a copy to Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. (Fax:
212-848-7179)
(c) if to any Selling Shareholder, shall be delivered
or sent by mail, telex or facsimile transmission to the
address of such Shareholder set forth on Schedule II hereto.
With a copy to United States Trust Company of New York, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Services (Fax: ▇▇▇-▇▇▇-▇▇▇▇)
provided, however, that any notice to a U.S. Underwriter pursuant to Section
10(d) shall be
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delivered or sent by mail, telex or facsimile transmission to such U.S.
Underwriter at its address set forth in its acceptance telex to the Lead
Manager, which address will be supplied to any other party hereto by the Lead
Manager upon request. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company and the Selling
Shareholders shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the International Managers by ▇▇▇▇▇▇
Brothers Inc. and the Company and the Underwriters shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Selling Shareholders by the Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the International Managers,
the Company, the Selling Shareholders and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the Selling Shareholders contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of the International Managers and the person or persons, if any, who
control the International Managers within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the International Managers
contained in Section 10 of this Agreement shall be deemed to be for the benefit
of directors, officers and employees of the Company and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 15, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Shareholders and the
International Managers contained in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Shares and ADSs and shall remain in full force and effect
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) the term "business day" means any day on
which the Nasdaq National Market System is open for trading and (b) the term
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
19. Submission to Jurisdiction; Appointment of Agent for
Service; Waiver; Currency Indemnity. (a) To the fullest extent permitted by
applicable law, the Company and each Selling Shareholder irrevocably submit to
the non-exclusive jurisdiction of any federal or state court in the Borough of
Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
of America, in any suit or proceeding based on or arising under this Agreement,
and irrevocably agree that all claims in respect of such suit or proceeding may
be determined in any such court. The Company and each Selling Shareholder, to
the fullest extent permitted by applicable law, irrevocably and fully waive the
defense of an
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inconvenient forum to the maintenance of such suit or proceeding and hereby
irrevocably designate and appoint CT Corporation System (the "Authorized
Agent"), as their authorized agent upon whom process may be served in any such
suit or proceeding. The Company represents that it has notified the Authorized
Agent of such designation and appointment and that the Authorized Agent has
accepted the same in writing. The Company and each Selling Shareholder hereby
irrevocably authorize and direct their Authorized Agent to accept such service.
The Company and each Selling Shareholder further agree that service of process
upon their Authorized Agent and written notice of said service to the Company
mailed by first class mail or delivered to their Authorized Agent shall be
deemed in every respect effective service of process upon the Company or such
Selling Shareholder, as the case may be, in any such suit or proceeding. Nothing
herein shall affect the right of any person to serve process in any other manner
permitted by law. The Company and each Selling Shareholder agree that a final
action in any such suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company or any Selling
Shareholder arising out of or based on this Agreement or the transactions
contemplated hereby may also be instituted by the International Managers, its
officers and employees or any person who controls the International Managers
within the meaning of the Securities Act in any competent court in The
Netherlands, and the Company and the Selling Shareholders expressly accept the
jurisdiction of any such court in any such action.
The Company and the Selling Shareholders hereby irrevocably
waive, to the extent permitted by law, any immunity to jurisdiction to which
they may otherwise be entitled (including, without limitation, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this Agreement
or the transactions contemplated hereby.
The provisions of this Section 19(a) are intended to be
effective upon the execution of this Agreement without any further action by the
Company, the Selling Shareholders or the International Managers and the
introduction of a true copy of this Agreement into evidence shall be conclusive
and final evidence as to such matters.
(b) The Company and the Selling Shareholders, as the case may
be, shall indemnify the International Managers against any loss incurred by them
as a result of any judgment or order being given or made and expressed and paid
in a currency (the "Judgment Currency") other than U.S. dollars and as a result
of any variation as between (i) the rate of exchange at which the U.S. dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order and (ii) the spot rate of exchange in New York, New York at which such
International Managers on the date of payment of such judgment or order are able
to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such International Managers. If the U.S. dollars so purchased are
greater than the amount originally due to such International Managers hereunder,
such International Managers agree to pay to the Company and/or the Selling
Shareholders, as the case may be, an amount equal to the excess of the U.S.
dollars so purchased over the amount originally due to such International
Managers hereunder. The International Managers shall indemnify the Company and
the Selling Shareholders, as the case may be, against any loss incurred by them
as a result of any judgment or order being given or made and expressed and paid
in a Judgment Currency other than U.S. dollars and as a result of any variation
as between (i) the rate of
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exchange at which the U.S. dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order and (ii) the spot rate of exchange in
New York, New York at which the Company and the Selling Shareholders, as the
case may be, on the date of payment of such judgment or order are able to
purchase U.S. dollars with the amount of the Judgment Currency actually received
by the Company or such Selling Shareholders. If the U.S. dollars so purchased
are greater than the amount originally due to the Company or the Selling
Shareholders hereunder, the Company and the Selling Shareholders, as the case
may be, agree to pay to the International Managers an amount equal to the excess
of the U.S. dollars so purchased over the amount originally due to the Company
and the Selling Shareholders, as the case may be, hereunder. The foregoing shall
constitute a separate and independent obligation of the Company, the Selling
Shareholders and the International Managers, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into, U.S.
dollars.
20. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the
Company, the Selling Shareholders and the International Managers, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
VersaTel Telecom International N.V.
By:
----------------------------------
Name:
Title:
The Selling Shareholders Named in Schedule II
to This Agreement
By:
----------------------------------
Attorney-in-Fact
Accepted:
▇▇▇▇▇▇ Brothers International (Europe)
For itself and as Lead Manager
of the several International Managers named
on Schedule I hereto
By:
----------------------------------------
Authorized Representative
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SCHEDULE I
Number of
International Managers Shares and ADSs
---------------------- ---------------
▇▇▇▇▇▇ Brothers International (Europe)..............................
ING Barings Limited as agent for ING Bank N.V., London Branch.......
Bear, ▇▇▇▇▇▇▇ International Limited.................................
Paribas.............................................................
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC...............................................
--------------
Total......................................................
==============
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SCHEDULE II
Selling Shareholders Number of Firm Shares
-------------------- ---------------------
Total