Exhibit 1.1
KONINKLIJKE PHILIPS ELECTRONICS N.V.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
From time to time, Koninklijke Philips Electronics N.V., a
Netherlands corporation (the "Company") having its registered corporate office
in Eindhoven, The Netherlands and its principal office in Amsterdam, The
Netherlands, may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") one or more registration statements, including a
prospectus, relating to the Debt Securities and has filed with, or transmitted
for filing to, or shall promptly hereafter file with, or transmit for filing to,
the Commission pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), a prospectus supplement (the "Prospectus Supplement")
and, if applicable, an abbreviated term sheet described in Rule 434(c) under the
Securities Act (the "Abbreviated Term Sheet"), in each case specifically
relating to the Debt Securities. The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. If the Company files an abbreviated registration statement to
register additional Debt Securities pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement and, if applicable, the
Abbreviated Term Sheet. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus",
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement",
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The term Contract Securities means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may approve
(the "Delayed Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
I.
The Company represents and warrants to and agrees with each of
the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the U.S. Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company is a limited liability stock corporation duly
organized and validly existing under the laws of The Netherlands, has
the power and authority (corporate and other) to own its property and
to conduct its business as described in its Articles of Association and
in the Prospectus.
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(d) Each Significant Subsidiary (as such term is defined in
Regulation S-X under the Securities Act) of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the power
and authority to own its property and to conduct its business as
conducted as of the date hereof, is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
incorporated or validly existing, to have such power, or to be so
qualified or in good standing, would not have a material adverse effect
on the consolidated financial position or results of operations of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company
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 equity principles.
(h) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not
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contravene (x) any provision of the Articles of Association of the
Company or (y) any provision of applicable Netherlands or United States
law or any agreement or other instrument binding upon the Company or
any of its Significant Subsidiaries or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any Significant Subsidiary, in each case with respect to
this sub-clause (y), except for any contravention that would not affect
the validity or enforceability of the Offered Debt Securities or the
consummation of the transactions contemplated hereby or have a Material
Adverse Effect; and no consent, approval, authorization or order of or
qualification with any governmental body in the United States of
America or The Netherlands or agency is required for the performance by
the Company of its obligations under this Agreement, the Indenture, the
Offered Securities or the Delayed Delivery Contracts, except for the
announcements and the statements required by section 3 of the Exemption
Regulation pursuant to the Netherlands 1995 Act on the Supervision of
the Securities Trade (Wet toezicht effectenverkeer 1995), and except
for the registration of the Offered Securities under the Securities Act
and except such as may be required by the securities or Blue Sky laws
of the various states of the United States in connection with the offer
and sale of the Offered Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto effected subsequent
to the date of the Underwriting Agreement).
(k) Other than as set forth or contemplated in the Prospectus,
there are no (i) legal or governmental proceedings pending or
threatened in writing to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject which (x) would individually have a
Material Adverse Effect or (y) in the judgment of the Company after
reasonable investigation by the Company and its subsidiaries, would, in
the aggregate, have a Material Adverse Effect; nor (ii) any contracts
or other documents that are required to be described in the
Registration Statement or Prospectus or to be filed as Exhibits to the
Registration Statement that are not described or filed as required.
(l) The Company or one of its subsidiaries owns or possesses
all patents, patent applications, trademarks, service marks, trade
names, trade secrets, licenses and rights in any thereof which are
necessary for the conduct of the business of the Company and its
subsidiaries, taken as a whole, substantially in the manner in which it
has been or is being conducted and, except as set forth in the
Prospectus, there are no unresolved assertions that the Company or any
of its subsidiaries has infringed the patent or trademark rights of
others, other than
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assertions which would not, in the judgment of the Company,
individually or in the aggregate have a Material Adverse Effect.
(m) No stamp or other issuance taxes or duties are payable by
or on behalf of the Underwriters in The Netherlands in connection with
the issuance of the Offered Securities or the sale and delivery by the
Underwriters of the Offered Securities, all in the manner contemplated
in this Agreement.
(n) No authorization, approval or consent of any governmental
authority or agency of or in The Netherlands is required to effect
payments made by the Company within or outside The Netherlands in
respect of the Offered Securities.
II.
If the Prospectus provides for sales of Offered Securities
pursuant to Delayed Delivery Contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on the terms and
subject to the conditions set forth in the Prospectus pursuant to Delayed
Delivery Contracts. Delayed Delivery Contracts may be entered into only with
institutional investors approved by the Company of the types set forth in the
Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission, if any, set
forth in the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the aggregate amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate amount of Contract Securities; such reduction shall be applied to the
commitment of each Underwriter pro rata in proportion to the amount of Offered
Securities set forth opposite such Underwriter's name in the Underwriting
Agreement, except to the extent that the Manager determines that such reduction
shall be applied in other proportions and so advises the Company; provided,
however, that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
III.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
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Each Underwriter represents and agrees that, as part of its
initial distribution or at any time thereafter,
(a) it has not offered, transferred or sold and will not
offer, transfer or sell any Offered Securities:
(i) before a statement that the laws and regulations
referred to in (c) of this section are complied with, has been
submitted to the Netherlands Authority for the Financial
Markets; or
(ii) to persons who are established, domiciled or
have their residence in The Netherlands; and
(b) with respect to each offer of Offered Securities, and each
announcement and documents in respect thereof, made by it, it has
stated and will state that the Offered Securities are not and will not
be offered to persons as referred to in (a)(ii) of this section; and
(c) with respect to each offer of Offered Securities, and each
announcement and documents in respect thereof, made by it, it has
complied and will comply with the laws and regulations of any
jurisdiction where persons to whom the offer is made are resident; and
(d) a statement that the laws and regulations referred to in
(c) of this section are complied with, has been and will be included in
each announcement made by it of any offer of Offered Securities.
IV.
Except as otherwise provided in the Underwriting Agreement,
payment for the Underwriters' Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Manager, no later than noon the Business Day (as defined below) prior to the
Time of Delivery (as defined below), on the date and at the time and place set
forth in the Underwriting Agreement (or at such other time and place on the same
or such other date, no later than the fifth Business Day (as defined below)
thereafter, as the Manager and the Company may agree in writing). As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City. The time and date of
such payment and delivery with respect to the applicable Designated Securities
are referred to herein as the "Time of Delivery".
Payment for the Underwriters' Securities shall be made against
delivery to the nominee of the depository specified in the Underwriting
Agreement for the respective accounts of the several Underwriters of the
applicable Underwriters' Securities (the details of such accounts provided by
the Manager in writing not less than two Business
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Days prior to the Time of Delivery) of one or more global notes (with respect to
each issuance of Underwriters' Securities, each a "Global Note") representing
such Underwriters' Securities, with any transfer taxes payable in connection
with the transfer to the Underwriters of the Underwriters Securities duly paid
by the Company.
V.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any publicly announced notice have been given of any
intended downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, from that set forth in
the Prospectus (exclusive of any amendments thereto effected
subsequent to the execution and delivery of the Underwriting
Agreement), that, in the good faith judgment of the Manager,
is material and adverse and that makes it, in the good faith
judgment of the Manager, after consultation with the Company,
impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
(c) The Manager shall have received on the Closing Date an
opinion of A.F. Verdam, Esq., counsel for the Company, dated the
Closing Date, to the effect that:
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(i) the Company has been duly incorporated and is
validly existing as a legal entity in the form of a limited
liability company ("naamloze vennootschap") duly organized
under the laws of The Netherlands, with corporate power and
authority to perform its obligations under the Agreement;
(ii) the Agreement has been duly authorized by all
internal corporate action of the Company and has been validly
executed and delivered by the Company insofar as the laws of
The Netherlands are concerned and constitutes valid and
legally binding obligations of the Company enforceable against
it in accordance with its terms under the laws of the
Netherlands;
(iii) neither the execution of any of the Agreement,
the Indenture or the Offered Securities, nor the fulfillment
of or compliance with their respective terms and provisions,
by the Company will result in any violation of the provisions
of the Articles of Association of the Company or any statute,
rule or regulation in The Netherlands or to the best of such
counsel's knowledge, any order applicable to the Company of
any court or governmental agency or body in The Netherlands
having jurisdiction over the Company or any other judgment,
agreement or instrument to which the Company is a party or by
which the Company or any of its property is bound, in each
case except for breaches and violations which would not
materially affect the validity of the Agreement, the Indenture
or the Offered Securities (as the case may be) or would not
materially adversely affect the Company's ability to perform
its obligations under any of these agreements;
(iv) no consent, approval, authorization, order,
registration, filing or other recording or qualification of or
with any court, governmental agency or body or other entity in
The Netherlands, or any other legal formality under Dutch law
is required to be obtained or made by the Company to enforce
its rights under or to ensure the validity, effectiveness,
enforceability or admissibility in evidence of the Agreement,
the Indenture or the Offered Securities or by reason of the
execution of any of the Agreement, the Indenture or the
Offered Securities or the performance by the Company of its
obligations under any of these agreements;
(v) to the best of such counsel's knowledge [why
knowledge qualification for a legal conclusion?] no consent,
approval, authorization, order, registration, filing or
otherwise recording or qualification of or with any court,
governmental agency or body or other entity in The
Netherlands, or any other legal formality under Dutch law, is
currently required to be obtained or made by the Company to
effect payments made
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by the Company within or outside The Netherlands in respect of
the Offered Securities within or outside The Netherlands upon
redemption of the Offered Securities, except for the Company's
obligation to comply with notification and registration
requirements of The Netherlands Central Bank ("De
Nederlandsche Bank N.V.") in connection with the issue of and
all payments in respect of the Offered Securities to or from
non-residents of The Netherlands in accordance with the
General Reporting Instructions 2000 ("Rapportage Voorschriften
Buitenlands Betalingsverkeer 2000") issued by DNB pursuant to
the External Financial Relations Xxx 0000 ("Wet Financiele
Betrekkingen Xxxxxxxxxx 0000"), although a failure to perform
any of these formalities should not adversely affect the
validity, effectiveness, enforceability or admissibility in
evidence of the Agreement or the Offered Securities or any
payment made or to be made thereunder;
(vi) the choice of the laws of New York as the
governing law of the Agreement is valid and binding on the
Company, except that when applying New York law as the law
expressed to be governing the Agreement, the competent court
of the Netherlands, if any,
- may give effect to mandatory rules of the law of
any other jurisdiction with which the situation
has a significant connection, if and insofar as,
under the laws of the latter jurisdiction, those
rules must be applied irrespective of the chosen
law;
- will apply the laws of the Netherlands in a
situation where they are mandatory irrespective
of the chosen law;
- will apply the laws of the Netherlands in a
situation where they are mandatory irrespective
of the law otherwise applicable to the
Agreement;
- may refuse to apply New York law if such
application is manifestly incompatible with
public policy of the Netherlands;
(vii) the submission to the jurisdiction of the state
courts in the State of New York, County of New York and the
federal courts in the Southern District of New York by the
Company contained in the Agreement are valid and binding on
the Company and not subject to revocation and the appointment
of (subject to the appointment of a successor pursuant to
Article VIII hereof) Philips Electronics North America
Corporation as authorized agent of the Company for the
purposes described in Article VIII hereof has been duly
authorized by the Company;
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(viii) in the absence of an applicable convention
providing for the reciprocal recognition and enforcement of
judgments in civil and commercial matters between the
Netherlands and the United States of America, a judgment
rendered by a court in New York against the Company will not
be recognized and enforced by the courts of the Netherlands;
in order to obtain a judgment which is enforceable against the
Company the claimant will have to file its claim against the
Company with the competent Netherlands court, and in the
course of these proceedings the claimant may submit the
judgment rendered by the New York court; if the Netherlands
court finds that the jurisdiction of the New York court has
been based on grounds which are internationally acceptable and
the proper legal procedures have been observed, the
Netherlands court would, in principle, give binding effect to
the final judgment which has been rendered in New York court,
unless such judgment contravenes principles of Netherlands
public policy;
(ix) to the best of such counsel's knowledge, there
is no litigation or governmental proceedings pending or
threatened in writing against or affecting the Company or any
of its property, which litigation or governmental proceeding
is reasonably expected to have a material adverse effect on
the Company' ability to consummate the transactions
contemplated under the Agreement or the validity of the
Agreement; and
(x) no stamp, registration or other tax, charges or
other costs are payable in The Netherlands in connection with
or in relation to the execution, delivery or performance under
the Agreement.
Such counsel may state that he expresses no opinion of any law
other than the laws of The Netherlands as presently existing, and that this
opinion is given on the understanding that it will be governed by and construed
in accordance with the laws of The Netherlands.
The opinion expressed shall be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, such as the principle of "reasonableness and fairness"
("redelijkheid en billijkheid").
In rendering such opinion, such counsel may rely on the
opinion of Xxxxxxxx & Xxxxxxxx as to matters of United States and New York law
and certificates of officers and directors of the Company and its subsidiaries
as to matters of fact.
(d) The Manager shall have received on the Closing Date an
opinion of Mr. Theo P.M. Xxxxxx of Philips Corporate Fiscal Department,
internal tax counsel for the Company, dated the Closing Date to the
effect that the statements contained in the prospectus under the
caption "Taxation - The Netherlands" insofar as they relate to matters
of Netherlands tax law, are correct in all material
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respects. In rendering such opinion, such counsel may rely on the
opinion of Xxxxxxxx & Xxxxxxxx as to matters of United States and New
York law and certificates of officers of the Company and its
subsidiaries as to matters of fact.
(e) The Manager shall have received on the Closing Date an
opinion of Xxxxxxxx & Xxxxxxxx, United States counsel for the Company
dated the Closing Date to the effect that:
(i) the issuance of the Offered Securities in
accordance with the Indenture and the sale of the Offered
Securities by the Company to the Underwriters pursuant to this
Agreement do not, and the performance by the Company of its
obligations under the Indenture, this Agreement and the
Offered Securities will not, violate any Federal law of the
United States or the law of the State of New York applicable
to the Company; provided, however, that, with respect to this
paragraph (i), such counsel need express no opinion with
respect to Federal or state securities laws, other antifraud
laws and fraudulent transfer laws; provided, further, that
insofar as performance by the Company and its obligations
under the Indenture, this Agreement and the Offered Securities
is concerned, such counsel need express no opinion as to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(ii) all regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company under the Federal laws of the United States and the
laws of the State of New York for the issuance, sale and
delivery of the Offered Securities by the Company to the
Underwriters have been obtained or made;
(iii) assuming that this Agreement has been duly
authorized, executed and delivered insofar as the laws of The
Netherlands are concerned, the Company has legally, validly,
effectively and irrevocably submitted to the jurisdiction of
any United States or state court in the State of New York,
County of New York, and has legally, validly, effectively and
irrevocably appointed (subject to the appointment of a
successor pursuant to Article VIII hereof) Philips Electronics
North America Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000-0000, (hereinafter referred to as "PENAC") as
the authorized agent of the Company for the purposes described
in Article VIII;
(iv) assuming that this Agreement has been duly
authorized, executed and delivered insofar as the laws of The
Netherlands are concerned, this Agreement has been duly
executed and delivered by the Company;
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(v) assuming that the Indenture has been duly
authorized, executed and delivered insofar as the laws of The
Netherlands are concerned, the Indenture has been duly
executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Company
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 equity
principles;
(vi) assuming that the Offered Securities have been
duly authorized, executed and delivered insofar as the laws of
The Netherlands are concerned, the Offered Securities have
been duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(vii) the statements contained in the Prospectus
under the caption "Taxation - the United States", insofar as
they relate to matters of United States federal tax law, are
correct in all material respects; and
(viii) as United States counsel for the Company, such
counsel reviewed the Registration Statement and Prospectus,
participated in discussions with representatives of the
Manager and those of the Company, its counsel and its
accountants, and advised the Company as to the requirements of
the Securities Act and the applicable rules and regulations
thereunder; between the date of the Prospectus Supplement and
the time of delivery of this letter, such counsel participated
in further discussions with representatives of the Manager and
those of the Company, its counsel and its accountants at which
certain portions of the Prospectus were discussed, and
reviewed certificates of certain officers of the Company,
opinions of the Company's counsel and a letter from the
Company's accountants; on the basis of the information that
such counsel gained in the course of the performance of such
services, considered in the light of their understanding of
the applicable law (including the requirements of Form F-3 and
the character of the prospectus contemplated thereby) and
experience they have gained through their practice under the
Securities Act, such counsel confirm to the Manager that, in
their opinion, the Registration Statement, as of its effective
date, and the Prospectus, as of the date of the Prospectus
Supplement, appeared on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Act, the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder; and
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nothing that came to such counsel's attention in the course of
such review has caused them to believe that the Registration
Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as
of the date of the Prospectus Supplement, 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, in the light of the circumstances
under which they were made, not misleading; also, nothing that
has come to such counsel's attention in the course of the
procedures discussed in the second clause of this
sub-paragraph (viii) has caused such counsel to believe that
the Prospectus, as of the date and time of delivery of this
letter, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, provided, however,
that such opinion may state that the limitation inherent in
the independent verification of factual matters and the
character of determinations involved in the registration
process are such that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those made in the Prospectus under the
captions "Description of Debt Securities", "Description of
Notes" and "Underwriting" insofar as they relate to provisions
of documents therein described and that such counsel need not
express any opinion or belief as to the financial statements
or other financial data contained in the Registration
Statement or the Prospectus, or as to the statement of the
eligibility of the Trustee under the Indenture under which the
Offered Securities are being issued.
In rendering such opinions, such counsel may rely on the
opinions of Mr. A.F. Verdam, Esq. as to matters of Netherlands law and
certificates of officers of the Company and its subsidiaries as to matters of
fact.
(f) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters, counsel for the Underwriters,
dated the Closing Date, to the effect that:
(i) the statements in the Prospectus under the
caption "Plan of Distribution", insofar as such statements
constitute summaries of the legal matters referred to therein,
fairly present the information called for with respect to such
legal matters and fairly summarize the matters referred to
therein; and
(ii) covering the matters referred to in
sub-paragraph (v), (vi) and (viii) of paragraph (d).
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In rendering such opinions, such counsel may rely on the
opinions of Mr. A.F. Verdam, Esq. and as to matters of Netherlands law and
certificates of officers of the Company as to matters of fact.
With respect to sub-paragraph (viii) of paragraph (d) above,
Xxxxxxxx & Xxxxxxxx and counsel for the Underwriters may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and review and discussion
of the contents thereof (including documents incorporated therein by reference),
but are without independent check or verification except as specified.
(g) The Manager shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Manager, from the independent auditors who have audited the
financial statements of the Company and its subsidiaries included in
the Registration Statement and the Prospectus, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
VI.
In further consideration of the agreements of the Underwriters
herein contained, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to the Manager in
New York City, without charge, prior to 10:00 A.M. local time on the
business day next succeeding the date of the Underwriting Agreement and
during the period mentioned in paragraph (c) below, as many copies of
the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Exchange Act that are deemed to be incorporated by
reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects on a timely basis.
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(c) If, during such period after the first date of the public
offering of the Offered Securities, a prospectus relating to the
Offered Securities is required by applicable United States law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with applicable United States law, forthwith
to prepare, file with the Commission and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law; provided that, in the case of any amendment or
supplement to the Prospectus made pursuant to this paragraph (c) more
than nine months after the Closing Date, the expense of such amendment
or supplement shall be paid for by the Underwriters.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such qualification
for as long as the Manager shall reasonably request provided, however,
that the Company will not be obligated to qualify the Offered
Securities in any jurisdiction where such qualification would require
the Company to qualify to do business as a foreign corporation or file
a general consent to service of process or to take any other action
which would subject it to service of process in suits in any
jurisdiction other than those arising out of the offering or sale of
the Offered Securities in such jurisdiction.
(e) To make generally available to its security holders and to
the Manager as soon as practicable an earning statement (which need not
be audited) covering a twelve month period beginning on the first day
of the first full fiscal quarter after the date of the Underwriting
Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the earlier of
(i) the termination of trading restrictions on the Offered Securities,
as notified promptly to the Company by the Manager and (ii) the Closing
Date not to offer, sell, contract to sell or otherwise dispose of in a
public offering in the United States any debt securities of the Company
or warrants to purchase debt securities of the Company substantially
similar to the Offered Securities which mature more than one year
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after the Closing Date without the Manager's prior written consent,
such consent not to be unreasonably withheld.
(g) Whether or not any sale of Offered Securities is
consummated, to pay all reasonable expenses incident to the performance
of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and
supplements thereto;
(ii) the preparation, issuance and delivery of the
Offered Securities;
(iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel;
(iv) the qualification of the Offered Securities
under securities or Blue Sky laws in accordance with the
provisions of paragraph 6(d), including filing fees and the
fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of
any Blue Sky memoranda or Legal Investment Memoranda;
(v) the listing of the Offered Securities on the New
York Stock Exchange, if the Offered Securities are to be
listed;
(vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and
any amendments or supplements thereto;
(vii) the printing and delivery to the Underwriters
of copies of any Blue Sky memoranda or Legal Investment
Memoranda;
(viii) any fees charged by rating agencies for the
rating of the Offered Securities; and
(ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential
investors. It is understood, however, that, except as provided
in this Article, Article VII and Article X, the Manager will
pay all of its own costs and expenses, including the fees of
its counsel, transfer taxes on resale of any of the Offered
Securities by it, and any advertising expenses connected with
any offers it makes.
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VII.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all direct losses, claims, damages and liabilities
(including, without limitation, any legal or other out-of-pocket expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such direct losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities. In no event shall the Company be liable for indirect or
consequential losses.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, members of the Board of Management and
Supervisory Board, its officers who sign the Registration Statement, the
Company's authorized representative in the United States named in the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to
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represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any Netherlands and local counsel)
for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Manager, in the case of parties indemnified pursuant to the first paragraph of
this Article VII above, and by the Company, in the case of parties indemnified
pursuant to the second paragraph of this Article VII above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any direct loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
To the extent the indemnification provided for in the first or
second paragraph of this Article VII is unavailable to an indemnified party or
insufficient in respect of any direct losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities 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
relative benefits referred to in clause (i)
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above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Article
VII are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Article VII were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Article VII are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
VIII.
The Company, by execution and delivery of this Agreement,
agrees that, until the fifth anniversary date of the Closing Date, service of
process may be made upon it at the office of PENAC (or any successor pursuant to
the last sentence of this Article
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VIII), to the attention of its company secretary, in any suit or proceeding
against the Company instituted by any Underwriter or by any person controlling
any Underwriter based on or arising under this Agreement in any United States or
state court in the State of New York, County of New York and expressly accepts
the non-exclusive jurisdiction of any such court in respect of any such suit or
proceeding. The Company further, by the execution and delivery of this
Agreement, irrevocably designates and appoints until the fifth anniversary date
of the Closing Date hereunder (or until a successor is appointed pursuant to the
last sentence of this Article VIII) said PENAC in the County, City and State of
New York, United States of America, as the authorized agent of the Company under
whom process may be served in any such suit or proceeding, it being understood
that the designation and appointment of said PENAC as such authorized agent
shall become effective immediately without any further action on the part of the
Company. The Company represents to each Underwriter that it has notified said
PENAC of such designation and appointment and that said PENAC has accepted the
same in writing. The Company further agrees that, to the extent permitted by
law, service of process upon said and written notice of said service to the
Company mailed first-class or by airmail or delivered to it at its principal
office and directed to the attention of "Treasurer at the Corporate Finance
Department", shall be deemed in every respect effective service of process on
the Company in any such suit or proceeding. The Company further agrees to take
any and all action, including the execution and filing of all such instruments
and documents, as may be necessary to continue such designation and appointment
in full force and effect for five years from the Closing Date. Notwithstanding
the foregoing, the Company may appoint a successor to PENAC on the terms
provided above, provided such successor accepts such appointment in writing,
provided further that written notice of such appointment shall have been given
to each Underwriter and the Manager.
IX.
This Agreement shall be subject to termination by notice given
by the Manager to the Company, if (a) after the execution and delivery of the
Underwriting Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, either
of the Euronext Amsterdam N.V.'s stock market or the New York Stock Exchange,
(ii) a general moratorium on commercial banking activities in Amsterdam or New
York shall have been declared by Netherlands, United States Federal or New York
State authorities, as the case may be, (iii) there shall have occurred any
outbreak or escalation of hostilities that, in the good faith judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iii), such event, singly or together with
any other such event, makes it, in the good faith judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
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X.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Underwriters' Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Underwriters' Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
amount of Underwriters' Securities set forth opposite their respective names in
the Underwriting Agreement bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the amount of Underwriters' Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Article X by
an amount in excess of one-ninth of such amount of Underwriters' Securities
without the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Underwriters'
Securities and the aggregate amount of Underwriters' Securities with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Underwriters' Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such
Underwriters' Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Offered Securities.
The respective indemnity and contribution agreements and the
representations, warranties and other statements of the Company, its officers
and the Underwriters set forth in this Agreement will remain in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the
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Company, its officers or directors or any person controlling the Company and
(iii) acceptance of any payment for any of the Offered Securities.
This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors (including members of the Board of Management and Supervisory Board of
the Company) and controlling persons referred to in Article VII, and no other
person will have any right or obligation hereunder.
The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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