EXHIBIT 1.1
350,000,000 SHARES
AEGON N.V.
COMMON SHARES (PAR VALUE EUR 0.12 PER SHARE)
UNDERWRITING AGREEMENT
September 17, 2002
September 17, 2002
ABN AMRO Rothschild
Morgan Stanley & Co. International Limited
Acting severally on behalf of themselves and
as representatives of the several Global Underwriters
and the several Regulation S Underwriters
c/o ABN AMRO Rothschild Morgan Stanley
Gustav Mahlerlaan 10 25 Cabot Square
1082 PP Amsterdam Canary Wharf
The Netherlands London E14 4QA
Dear Sirs and Mesdames:
AEGON N.V., a limited liability company incorporated under the laws of the
Netherlands and having its statutory seat at The Hague, The Netherlands (the
"Company"), proposes to sell to the several Underwriters named in Schedule I
hereto (the "Global Underwriters") 206,400,000 Common Shares (par value EUR 0.12
per share) ("Common Shares" or "Common Stock") (the "Global Shares"). Vereniging
AEGON, a Dutch Association (the "Association"), which is the Company's largest
shareholder, proposes to sell to the several Underwriters named in Schedule II
hereto (the "Regulation S Underwriters") 143,600,000 Common Shares (the
"Regulation S Shares"). The Global Shares and the Regulation S Shares are
hereinafter collectively referred to as the "Shares".
ABN AMRO Rothschild and Morgan Stanley & Co. International Limited shall
act as representatives (the "Global Representatives") of the several Global
Underwriters, and ABN AMRO Rothschild and Morgan Stanley & Co. International
Limited shall also act as representatives (the "Regulation S Representatives")
of the several Regulation S Underwriters. The Global Representatives and the
Regulation S Representatives are hereinafter collectively referred to as the
"Representatives", and the Global Underwriters and the Regulation S Underwriters
are hereinafter collectively referred to as the "Underwriters".
The Company has filed with the United States Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form F-3
(No.333-71438) covering the registration of various types of securities under
the Securities Act of 1933, as amended (the "Securities Act"), including the
Company's Common Shares, and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
1
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Global Shares pursuant to Rule 424 under the Securities Act. The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. 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 includes the form of Prospectus used to confirm sales of the
Shares in Canada. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Global Shares, together with
the Basic Prospectus. The Prospectus and the preliminary prospectus will be used
in connection with the offering and sale of the Global Shares, including in
connection with a public offering in the United States.
The Company at the request of the Association has also prepared an offering
circular (the "Offering Circular") specifically relating to the Regulation S
Shares which is available to confirm sales of the Regulation S Shares. The
Offering Circular will be used in connection with the offering and sale by the
Association of the Regulation S Shares outside the United States in reliance on
Regulation S in reliance on the Securities Act. The Prospectus and the Offering
Circular are hereinafter collectively referred to as the "Disclosure Documents".
As used herein, the terms "Basic Prospectus," "Prospectus", "preliminary
prospectus", "Offering Circular" and "Disclosure Documents" 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 Basic Prospectus, the Prospectus,
the preliminary prospectus and the Offering Circular that are filed subsequent
to the date of the Basic Prospectus by the Company with the Commission pursuant
to the United States Securities Exchange Act of 1934, as amended (the "Exchange
Act").
The Global Shares will be purchased from the Association with proceeds from
the offering of the Global Shares. The Association has agreed that it will
reinvest the proceeds received from the Company's purchase of Common Stock in
the Company's preference shares and in that regard has entered into a
recapitalization agreement (the "Recapitalization Agreement") to make additional
contributions to capital on the Closing Date (as defined below) as well as
agreements to take certain other measures, subject to conditions, relating to
corporate governance including amendment to the option agreement permitting the
Association to maintain certain voting rights in the Company. Simultaneously
with these transactions, the Association will use the net proceeds from the sale
of the Regulation S Shares to repay certain of the Association's outstanding
indebtedness and will enter into new financing arrangements with respect to its
2
future activities. The transactions described in the foregoing sentences are
hereinafter referred to as the "Capital Restructuring".
1. Representations and Warranties. 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, if any, 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 requirements of
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
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Disclosure Documents do 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 do not apply to statements or
omissions in the Registration Statement or the Disclosure Documents based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated and is validly existing as
a public limited company under the laws of The Netherlands, has the
corporate power and authority to own, lease and operate its property and to
conduct its business as described in the Disclosure Documents and is duly
qualified to transact business and in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification and in which the failure to be so qualified
would have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business, prospects or
3
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Disclosure Documents and is
duly qualified to transact business in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification and in which the failure to be so qualified would have a
Material Adverse Effect.
(e) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Disclosure Documents.
(f) All shares of Common Stock, including the Shares, have been duly
authorized and are validly issued, fully paid and not subject to any calls
for funds and rank pari passu with all other issued and outstanding shares
of Common Stock, and the delivery of the Shares will not be subject to any
preemptive rights.
(g) The Company will have the legal right and power, and all
authorization and approval required by law, to enter into this Agreement
and to sell, and cause the transfer and delivery of the Global Shares; and
delivery of the Global Shares and payment therefor pursuant to this
Agreement will pass to the Global Underwriters valid title and full
ownership of the Global Shares, free and clear of any adverse claim,
pledge, usufruct, attachment or any other charge and without any
conflicting right, contingent or otherwise of any person to acquire the
Global Shares.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) All of the transactions to which the company is a party that are
contemplated by the Recapitalization Agreement and completed or to be
completed on or before the Closing Date have been duly authorized by the
Company and the agreements (or amendments to existing agreements) entered
into in connection therewith, including the Recapitalization Agreement, are
valid and binding agreements of the Company.
(j) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, and the
4
consummation by the Company of the transactions contemplated in, this
Agreement and the Recapitalization Agreement, will not contravene any
provision of (i) applicable law or (ii) the Articles of Association of the
Company or any equivalent corporate governance document of any subsidiary
or (iii) any license, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets, and no
consent, approval, authorization, registration, notification, clearance,
order or qualification of or with any court, governmental or supranational
body or agency or taxing authority is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Global Shares.
(k) There are (1) no legal or governmental, administrative or other
proceedings pending or, to the Company's knowledge, threatened 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 that (a)
would have a Material Adverse Effect or in any manner question the validity
of this Agreement or the Shares or (b) are required to be described in the
Registration Statement or the Disclosure Documents and are not so described
and (2) no statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Disclosure
Documents or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business, prospects
or operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Disclosure Documents (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder.
5
(n) The Company is not required to register as an "investment company"
within the meaning of the United States Investment Company Act of 1940, as
amended.
(o) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act), other than the
Association, nor any person acting on its or their behalf, has engaged or
will engage in any directed selling efforts (as defined in Regulation S
under the Securities Act) with respect to the Regulation S Shares.
(p) The Company is a reporting issuer as such term is defined by
Regulation S under the Securities Act and reasonably believes that there is
no "substantial U.S. Market interest" (as defined in Regulation S) in the
Regulation S Shares.
(q) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act) has taken any action
designed to stabilize or manipulate, or which has constituted or which
might reasonably be expected to cause or result in the stabilization or
manipulation of, the price of any equity or equity-linked security of the
Company.
The Company confirms the arrangements made on its behalf by the
Underwriters for announcements regarding the Shares to be published on such
dates and in such newspapers or other publications as it may agree with the
Representatives. The Company undertakes that it will not make or authorize any
person on its behalf to make any announcements, between today's date and the
Closing Date (inclusive), that would have a material adverse effect on the sale
of the Shares or secondary trading of the Shares without prior consultation with
the Representatives, on behalf of all of the Underwriters.
2. Representations and Warranties of the Association. The Association
represents and warrants to and agrees with each of the Underwriters that:
(a) this Agreement has been duly authorized, executed and delivered by
the Association.
(b) All of the transactions to which the Association is a party
contemplated by the Capital Restructuring and completed or to be completed
on or before the Closing Date have been duly authorized by the Association
and the agreements entered into in connection therewith, including the
Recapitalization Agreement, are valid and binding agreements of the
Association.
6
(c) On the Closing Date, the Association will have valid title to the
Global Shares and the Regulation S Shares, free and clear of all security
interests, claims, liens, equities or other encumbrances and the legal
right and power, and all authorization and approval required by law, to
enter into this Agreement and to sell, transfer and deliver the Global
Shares and Regulation S Shares; transfer and delivery of the Global Shares
to or on behalf of the Company and payment therefor pursuant to the
Recapitalization Agreement will pass valid title and full ownership of the
Global Shares free and clear of any adverse claim, pledge, usufruct
attachment or any other charge and without any conflicting right,
contingent or otherwise, of any person to acquire the Global Shares; and
transfer and delivery of the Regulation S Shares and payment therefor
pursuant to this Agreement will pass to the Regulation S Underwriters valid
title and full ownership of the Regulation S Shares free and clear of any
adverse claim, pledge, usufruct, attachment or any other charge and without
any conflicting right, contingent or otherwise, of any person to acquire
the Regulation S Shares.
(d) The execution and delivery by the Association of, and the
performance by the Association of its obligations under, and the
consummation by the Association of the transactions contemplated in, this
Agreement, the Recapitalization Agreement and any other agreement relating
to the Capital Restructuring to which the Association is a party, will not
contravene any provision of (i) applicable law or (ii) the Articles of
Association of the Association or (iii) any license, indenture, mortgage,
deed of trust, loan agreement or other agreement (including without
limitation any credit or financing arrangement) or instrument binding upon
the Association, or (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Association or any of
its properties or assets, and no consent, approval, authorization,
registration, notification, clearance, order or qualification of or with
any court, governmental or supranational body or agency or taxing authority
is required for the performance by the Association of its obligations under
this Agreement.
(e) The Offering Circular 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; provided that the representations and warranties set
forth in this paragraph 2(e) are limited to statements or omissions made in
reliance upon information relating to the Association furnished to the
Company in writing by the Association expressly for use in the Offering
Circular or any amendments or supplements thereto.
7
(f) No registration of the Regulation S Shares under the Securities
Act is required in connection with the offer and sale of the Regulation S
Shares by the Association in the manner contemplated in this Agreement.
(g) Neither the Association nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act) (other than the
Company), nor any person acting on its or their behalf, has engaged or will
engage in any directed selling efforts (as defined in Regulation S of the
Securities Act) with respect to the Regulation S Shares.
3. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Global Underwriters, and each Global Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company, at a purchase price of (euro)9.80 per share in the case of
Global Shares delivered in the form of bearer shares (the "euro Purchase Price")
and U.S. $9.52 per share in the case of Global Shares delivered in the form of
New York shares (the "Dollar Purchase Price"), the respective numbers of Global
Shares set forth in Schedule I hereto opposite its name. Each Global Underwriter
may elect to take delivery of any or all its Global Shares in the form of bearer
shares and any or all of its Global Shares in the form of New York shares.
The Association hereby agrees to sell to the several Regulation S
Underwriters, and each Regulation S Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Association the respective numbers of Regulation S Shares set forth in Schedule
II hereto opposite its name at the euro Purchase Price.
The Company hereby agrees that, without the prior written consent of ABN
AMRO Rothschild and Morgan Stanley & Co. International Limited on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Disclosure Documents, (i) issue, offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, or make
any announcements regarding the above mentioned transactions. The foregoing
sentence shall not apply to (A) the sale of the Global Shares and the sale by
the
8
Association of the Regulation S Shares to the Global Underwriters and the
Regulation S Underwriters, respectively, (B) the issuance or transfer by the
Company of shares of Common Stock upon the exercise of an option or warrant or
the conversion of a security outstanding on the date of the Disclosure
Documents, (C) the issuance of shares of Common Stock pursuant to the Company's
shareholder dividend policy, (D) the issuance of preferred shares to the
Association, and (E) the issuance of options on Common Stock under the Company's
share option plans and ESOP and any shares of Common Stock issuable upon the
exercise of these options pursuant to our share option plans or ESOP existing on
the date of the Disclosure Documents as well as related purchases and sales.
4. Terms of the Offering. The Company is advised by you that the Global
Underwriters propose to make the offering of their respective portions of the
Global Shares, including a public offering within the United States, as soon
after this Agreement has become effective as in your judgment is advisable. The
Company is further advised by you that the Global Shares are to be offered to
the public initially at (euro)10.00 per share in the case of bearer shares (the
"euro Offering Price") and U.S. $9.71 per share in the case of New York shares
(the "Dollar Offering Price"), and that any Global Underwriter may allow a
concession, not in excess of (euro)0.120 per share in the case of bearer shares
or U.S. $0.117 per share in the case of New York shares, to any other Global
Underwriter.
The Association is advised by you that the Regulation S Underwriters
propose to make an offering of their respective portions of the Regulation S
Shares as soon after this Agreement has become effective as in your judgment is
advisable. The Association is further advised by you that the Regulation S
Shares are to be offered initially at the euro Offering Price and that any
Regulation S Underwriter may allow a concession, not in excess of (euro)0.120
per share, to any other Regulation S Underwriter.
In its sole discretion, the Company may pay, to some or all of the Global
Underwriters, an additional performance-related commission in an aggregate
amount of up to 0.50% of the aggregate gross proceeds of the offering of the
Global Shares. Any such additional performance related commission shall be paid
on the Closing Date.
In its sole discretion the Association may pay, to some or all of the
Regulation S Underwriters, an additional performance-related commission in an
aggregate amount of up to 0.50% of the aggregate gross proceeds of the offering
of the Regulation S Shares. Any such additional performance related commission
shall be paid on the Closing Date.
9
5. Payment and Delivery. Payment for the Global Shares shall be made to the
Company in immediately available funds in Amsterdam against delivery of such
Global Shares (whether in the form of bearer shares or New York Shares) for the
respective accounts of the several Global Underwriters by 10:00 a.m., Amsterdam
time, on September 23, 2002, or at such other time on the same or such other
date, not later than, September 30, 2002, as shall be designated in writing by
you. The time and date of such payment are herein referred to as the "Closing
Date". Payment for the Global Shares shall be made to the Company in an amount
equal to the aggregate offering price of the Global Shares against receipt of an
irrevocable instruction by the Association to pay to the Global Underwriters in
immediately available funds on the Closing Date an amount equal to (i) the
aggregate offering price of the Global Shares less (ii) the aggregate purchase
price for the Global Shares pursuant to section 3 hereof (as such may be reduced
as necessary to reflect any payment by the Company of the additional
performance-related commission to the Global Underwriters, if any). Any payment
to be made to the Company or to the Global Underwriters pursuant to this Section
5 shall be made in euro with respect to Global Shares delivered to purchasers in
the form of bearer shares, and in United States dollars with respect to Global
Shares delivered to purchasers in the form of New York Shares.
Payment for the Regulation S Shares shall be made to the Association in
euro in immediately available funds in Amsterdam against delivery of such
Regulation S Shares for the respective accounts of the several Regulation S
Underwriters by 10:00 a.m., Amsterdam time, on the Closing Date or at such other
time on the same or such other date, not later than, September 30, 2002, as
shall be designated in writing by you.
The Company and the Association will cause the Shares to be delivered
pursuant to the preceding paragraphs as follows: (a) the Regulation S Shares and
the Global Shares which the Underwriters elect to receive in bearer form shall
be delivered through (i) the book-entry facilities of NECIGEF, Euroclear Bank,
S.A./N.A., as operator of the Euroclear system ("Euroclear") or Clearstream
Banking, S.A. ("Clearstream") and in such case shall be transferred to, and held
by, their respective custodians and credited to the accounts of such of the
participants of NEGIGEF (including Euroclear and Clearstream) as the Global
Representatives may designate upon notice to the Company or Association, as the
case may be, given at least 48 hours prior to the Closing Date, and (b) the
Global Shares which the Underwriters elect to receive in the form of New York
Shares shall be delivered through the book-entry facilities of the Depository
Trust Company.
The Regulation S Shares and the Global Shares in bearer form shall be
delivered, and the Global Shares in the form of New York Shares shall be
registered, in such names and in such denominations as you shall request in
10
writing not later than one full business day prior to the Closing Date. Delivery
of the registered shares, against which New York Shares will be issued and
delivered, will be made by or on behalf of the Company to ANT Trust as transfer
agent for Citibank N.A. The Shares shall be delivered to you on the Closing Date
for the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment therefor.
6. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading 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 have been no material adverse change in the
condition, financial or otherwise, or in the earnings, business,
prospects or operations of the Company and its subsidiaries, taken as
a whole, from that set forth in the Disclosure Documents (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement).
(b) The Underwriters 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 Section 6(a)(i) and 6(a)(ii) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of such Closing Date
and that the Company has complied in all material respects with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before such Closing Date.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Association, to the effect that the representations and warranties of
the Association contained in this Agreement are true and correct as of such
Closing Date, that the refinancing arrangements described in the Disclosure
Documents have been implemented only conditional on the closing of the
offerings contemplated herein and that the Association has complied in all
material respects with all of the agreements and satisfied
11
all of the conditions on its part to be performed or satisfied hereunder on
or before such Closing Date.
The officer signing and delivering each such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an
opinion of Erik Lagendijk, general counsel for the Company, dated the
Closing Date, in the form attached to this Agreement as Exhibit A.
(e) The Underwriters shall have received on the Closing Date an
opinion of Allen & Overy, outside Dutch counsel for the Company, dated the
Closing Date, in the form attached to this Agreement as Exhibit B.
(f) The Underwriters shall have received on the Closing Date an
opinion and a disclosure letter of Allen & Overy, outside U.S. counsel for
the Company, dated the Closing Date, in the forms attached to this
Agreement as Exhibits C-1 and C-2, respectively.
(g) The Underwriters shall have received on the Closing Date an
opinion of Nauta Dutilh, Dutch counsel for the Association, dated the
Closing Date, in the form attached to this Agreement as Exhibit D.
(h) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, outside U.S. counsel for the
Underwriters, dated the Closing Date, in the form attached to this
Agreement as Exhibit E.
(i) The Underwriters 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 reasonably satisfactory to the
Underwriters, from Ernst & Young, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Disclosure Documents.
7. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you upon request, without charge, three signed
copies of the Registration Statement (including exhibits thereto and
documents incorporated therein by reference) and for delivery to each
12
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in Amsterdam, without charge, prior
to 10:00 a.m. Amsterdam time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 7(c) below, as
many copies of the Disclosure Documents and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Disclosure Documents, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the offering of the
Shares as in the opinion of counsel for the Underwriters the Disclosure
Documents are required by law to be delivered in connection with sales by
an Underwriter, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Disclosure Documents in
order to make the statements therein, in the light of the circumstances
when the Disclosure Documents are delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Disclosure Documents to comply with applicable law,
forthwith to prepare, file with the Commission (in the case of the
Prospectus) and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Disclosure Documents so that the
statements in the Disclosure Documents as so amended or supplemented will
not, in the light of the circumstances when the Disclosure Documents are
delivered to a purchaser, be misleading or so that the Disclosure
Documents, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Global Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending September 30, 2003 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
13
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Global Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, as well as the
preparation and any filing of the Offering Circular, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters, in the quantities hereinabove specified, (ii)
all costs and expenses related to the transfer and delivery of the Shares
to the Underwriters, including any transfer or other taxes payable thereon,
(iii) all fees and expenses in connection with the preparation and filing
of any registration statement on Form 8-A relating to any Shares and all
costs and expenses incident to listing any Shares on the NYSE and other
national securities exchanges and foreign stock exchanges, if necessary
(iv) the cost of printing certificates representing the Shares, (v) the
costs and charges of any transfer agent, registrar or depositary, (vi) the
costs and expenses of the Company relating to any investor presentations or
any "road show" undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, (vii)
the document production charges and expenses associated with printing this
Agreement, (viii) all of the Underwriters' costs and expenses, including
fees and disbursements of their counsel (such fees and expenses to be paid
by the Company not exceeding the amount of (euro)750,000), stock transfer
taxes payable on resale of any of the Shares by them, any advertising
expenses connected with any offers they may make and any applicable value
added tax, and all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section (in particular, but without limitation, subsection
(viii) hereof), Section 9 entitled "Indemnity and Contribution", and the
last paragraph of Section 11 below, the Underwriters will pay all of their
other costs and expenses. The Underwriters agree to provide the Company
with reasonably detailed
14
evidence of the Underwriters' costs and expenses for which the Underwriters
seek reimbursement from the Company.
8. Covenants of Underwriters. (a) Each Regulation S Underwriter understands
that the Regulation S Shares have not been and will not be registered under the
Securities Act and may not be offered or sold except in accordance with
Regulation S under the Securities Act. Each Regulation S Underwriter represents,
warrants and agrees that it has not offered or sold, and will not offer or sell,
any Regulation S Shares constituting part of its allotment except in accordance
with Rule 903 of Regulation S under the Securities Act.
(b) Each Regulation S Underwriter represents and agrees that neither
it, its affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act) nor any persons acting on its or their behalf have engaged
or will engage in any directed selling efforts (as defined in Regulation S
under the Securities Act) with respect to the Regulation S Shares.
(c) Each Underwriter understands that no action has been or will be
taken in any jurisdiction, except in the United States, that would permit a
public offering of the Shares, or the possession, circulation or
distribution of the Disclosure Documents or any other material relating to
the Company, the Association or the Shares, in any jurisdiction where
action for that purpose is required.
(d) Each Underwriter represents and agrees that (i) it has only
communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the FSMA) received
by it in connection with the issue or sale of any Shares in circumstances
in which section 21(1) of the FSMA does not apply to the Company and (ii)
it has complied, and will comply, with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Shares in, from
or otherwise involving the United Kingdom.
(e) Each Underwriter understands that the Shares have not been and
will not be registered under the Securities and Exchange Law of Japan (Law
No. 25 of 1948 as amended), and may not be offered or sold, directly or
indirectly, in Japan or to a resident of Japan except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and other relevant laws
and regulations of Japan.
15
(f) Each Underwriter understands that the Shares will not be offered
publicly, directly or indirectly, in Belgium at the time of the offering,
that the offering has not been notified to, and the Disclosure Documents
have not been approved by, the Belgian Banking and Finance Commission and
that the Shares may only be sold in Belgium to professional investors as
defined in article 3 of the Royal Decree of July 7, 1999 on the public
nature of financial transactions acting for their account, and the
Disclosure Documents may not be delivered or passed on to any other
investors.
9. Indemnity and Contribution. The Company agrees to indemnify and hold
harmless each Underwriter, 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 and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
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 Disclosure Documents (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 you 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 losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter, or any
affiliate of 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 any 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 Shares 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, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) The Association agrees to indemnify and hold harmless each
Underwriter, 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 and each affiliate of any Underwriter within the
16
meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other 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
Disclosure Documents (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, but
only with reference to information relating to the Association furnished in
writing by or on behalf of the Association expressly for use in the
Registration Statement, any preliminary prospectus, the Disclosure
Documents or any amendments or supplements thereto; 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 losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter or any affiliate of 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 any 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 Shares 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, unless such
failure is the result of noncompliance by the Association with Section 7(a)
hereof.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Association, the directors of the
Company, officers of the Company who sign 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
you expressly for use in the Registration Statement, any preliminary
prospectus, the Disclosure Documents or any amendments or supplements
thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 9(a), 9(b) or 9(c) such person (the
"indemnified party") shall promptly notify the person against
17
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 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 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 ABN AMRO
Rothschild and Morgan Stanley & Co. International Limited, in the case of
parties indemnified pursuant to Section 9(a) or 9(b), and by the Company
and the Association in the case of parties indemnified pursuant to Section
9(c). 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 loss
or liability by reason of such settlement or judgment. 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.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any 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 and
18
the Association on the one hand and the Underwriters on the other hand from
the offering of the Shares or (ii) if the allocation provided by clause
9(e)(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
9(e)(i) above but also the relative fault of the Company and the
Association 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 and the
Association on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the
Association 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 Disclosure Documents, bear to the aggregate Offering Price of the
Shares. The relative fault of the Company and the Association 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 the
Association 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 Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 9 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 Section 9(e). 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 Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
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
19
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 Section 9 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.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Association contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any
Underwriter, any person controlling any Underwriter or any affiliate of any
Underwriter or by or on behalf of the Company, the Association, the
officers or directors of the Company or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
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, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
Euronext Amsterdam N.V. or the London Stock Exchange (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement,
payment or clearance services in the United States, The Netherlands or the
United Kingdom shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
by the competent governmental or regulatory authorities in The Netherlands or
the United Kingdom or (v) there shall have occurred any outbreak or escalation
of hostilities, or any change in financial markets, currency exchange rates or
controls or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Disclosure Documents.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Global Underwriters shall
fail or refuse to purchase Global Shares that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Global Shares which
such defaulting Global Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Global
Shares
20
to be purchased on such date, the other Global Underwriters shall be obligated
severally in the proportions that the number of Global Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Global
Shares set forth opposite the names of all such non-defaulting Global
Underwriters, or in such other proportions as you may specify, to purchase the
Global Shares which such defaulting Global Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Global Shares that any Global Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 11 by an amount
in excess of one-ninth of such number of Global Shares without the written
consent of such Global Underwriter. If, on the Closing Date, any Global
Underwriter or Underwriters shall fail or refuse to purchase Global Shares and
the aggregate number of Global Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Global Shares to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Global Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Global
Underwriter or the Company. In any such case either you 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 Disclosure Documents or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Global Underwriter from liability in respect of any
default of such Global Underwriter under this Agreement.
If, on the Closing Date, any one or more of the Regulation S Underwriters
shall fail or refuse to purchase Regulation S Shares that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of
Regulation S Shares which such defaulting Regulation S Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Regulation S Shares to be purchased on such date,
the other Regulation S Underwriters shall be obligated severally in the
proportions that the number of Regulation S Shares set forth opposite their
respective names in Schedule II bears to the aggregate number of Regulation S
Shares set forth opposite the names of all such non-defaulting Regulation S
Underwriters, or in such other proportions as you may specify, to purchase the
Regulation S Shares which such defaulting Regulation S Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Regulation S Shares that any Regulation S
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such number
of Regulation S Shares without the written consent of such Regulation S
Underwriter. If, on the Closing Date, any Regulation S Underwriter or
Underwriters shall fail or refuse to purchase Regulation S Shares and the
aggregate number of Regulation S Shares with
21
respect to which such default occurs is more than one-tenth of the aggregate
number of Regulation S Shares to be purchased, and arrangements satisfactory to
you and the Company for the purchase of such Regulation S Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Regulation S Underwriter or the
Company. In any such case either you 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
Disclosure Documents or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Regulation S Underwriter from liability in respect of any default of such
Regulation S 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 or the Association
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company or the Association shall be unable to perform
its obligations under this Agreement, the Company and the Association 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) incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. Submission to Jurisdiction; Appointment of Agent for Service. (a) The
Company irrevocably submits to the non-exclusive jurisdiction of any New York
State or United States Federal court sitting in The City of New York over any
suit, action or proceeding arising out of or relating to this Agreement, the
Prospectus, the Disclosure Documents, the Registration Statement or the offering
of the Shares, and agrees that any such suit, action, or proceeding may be
brought in any such court. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in any such court and
any
22
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. To the extent that the Company has or
hereafter may acquire any immunity (on the grounds of sovereignty or otherwise)
from the jurisdiction of any court or from any legal process with respect to
itself or its property, the Company irrevocably waives, to the fullest extent
permitted by law, such immunity in respect of any such suit, action or
proceeding.
(b) The Company hereby irrevocably designates and appoints Mr. Donald
Henderson, with offices at LeBoeuf, Lamb, Greene & MacRae, 125 West 55th
Street, New York, NY 10019, U.S.A, as its authorized agent for service of
process in any suit, action or proceeding described in the preceding
paragraph and agrees that service of process in any such suit, action or
proceeding may be made upon it at the office of such agent. The Company
waives, to the fullest extent permitted by law, any other requirements of
or objections to personal jurisdiction with respect thereto. The Company
represents and warrants that such agent has agreed to act as the Company's
agent for service of process, and the Company agrees to take any and all
action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect.
16. Exclusive Jurisdiction. Each of the Underwriters agrees that, if it
shall bring against the Association any suit, action or proceeding arising out
of or relating to this Agreement, the Offering Circular or the offering of the
Regulation S Shares, then such Underwriter shall do so exclusively in any court
sitting in The Hague, the Netherlands.
17. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Underwriters could purchase United
States dollars with such other currency in The City of New York on the business
day preceding that on which final judgment is given. The obligation of the
Company with respect to any sum due from it to any Underwriter or any person
controlling any Underwriter shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business day
following receipt by such Underwriter or controlling person of any sum in such
other currency, and only to the extent that such Underwriter or controlling
person may in accordance with normal banking procedures purchase United States
dollars with such other currency. If the United States dollars so purchased are
less than the sum originally due to such Underwriter or controlling person
hereunder, the Company agrees as a separate obligation and notwithstanding any
such judgment, to indemnify such Underwriter or controlling person against such
loss. If the
23
United States dollars so purchased are greater than the sum originally due to
such Underwriter or controlling person hereunder, such Underwriter or
controlling person agrees to pay to the Company an amount equal to the excess of
the dollars so purchased over the sum originally due to such Underwriter or
controlling person hereunder.
24
Very truly yours,
AEGON N.V.
By: /s/ D.J. SHEPARD
------------------------------------------
Name: D.J. SHEPARD
Title: Chairman of the Executive Board
By: /s/ J.B.M. STREPPEL
------------------------------------------
Name: J.B.M. STREPPEL
Title: Member of the Executive Board
Vereniging AEGON
By: /s/ P.P. KOHNSTAMM
------------------------------------------
Name: P.P. KOHNSTAMM
Title: Chairman
25
Accepted as of the date hereof
ABN AMRO Rothschild
Morgan Stanley & Co. International
Limited
Acting severally on behalf of themselves
and the several Global Underwriters
named in Schedule I hereto and the
several Regulation S Underwriters
named in Schedule II hereto.
By: ABN AMRO Rothschild
By: /s/ J.A. DE RUITER By: /s/ L.C. VAN DER SAR
--------------------------- --------------------------
Name: J.A. DE RUITER Name: L.C. VAN DER SAR
Title: Managing Director Title: Director
By: Morgan Stanley & Co.
International Limited
By: /s/ JAKOB LINDQUIST
------------------------------------------
Name: JAKOB LINDQUIST
Title: Executive Director
26
SCHEDULE I
- ------------------------------------------------------------------------------
NUMBER OF GLOBAL SHARES TO BE
GLOBAL UNDERWRITER PURCHASED
- ------------------------------------------------------------------------------
Morgan Stanley & Co. International Limited... 81,528,000
- ------------------------------------------------------------------------------
ABN AMRO Rothschild ......................... 81,528,000
- ------------------------------------------------------------------------------
Credit Suisse First Boston (Europe) Limited.. 6,192,000
- ------------------------------------------------------------------------------
ING Bank N.V................................. 6,192,000
- ------------------------------------------------------------------------------
Rabo Securities N.V.......................... 6,192,000
- ------------------------------------------------------------------------------
Salomon Brothers International Limited....... 6,192,000
- ------------------------------------------------------------------------------
Banc of America Securities Limited........... 4,128,000
- ------------------------------------------------------------------------------
J.P. Morgan Securities Ltd................... 4,128,000
- ------------------------------------------------------------------------------
Merill Lynch International................... 4,128,000
- ------------------------------------------------------------------------------
Fox-Pitt, Kelton N.V......................... 2,064,000
- ------------------------------------------------------------------------------
Stephens Inc................................. 2,064,000
- ------------------------------------------------------------------------------
WestLB Panmure Limited....................... 2,064,000
- ------------------------------------------------------------------------------
Total:.............................. 206,400,000
- ------------------------------------------------------------------------------
27
SCHEDULE II
- --------------------------------------------------------------------------------
NUMBER OF REGULATION S SHARES TO
REGULATION S UNDERWRITER BE PURCHASED
- --------------------------------------------------------------------------------
Morgan Stanley & Co. International Limited..... 56,722,000
- --------------------------------------------------------------------------------
ABN AMRO Rothschild ........................... 56,722,000
- --------------------------------------------------------------------------------
Credit Suisse First Boston (Europe) Limited.... 4,308,000
- --------------------------------------------------------------------------------
ING Bank N.V................................... 4,308,000
- --------------------------------------------------------------------------------
Rabo Securities N.V............................ 4,308,000
- --------------------------------------------------------------------------------
Salomon Brothers International Limited......... 4,308,000
- --------------------------------------------------------------------------------
Banc of America Securities Limited............. 2,872,000
- --------------------------------------------------------------------------------
J.P. Morgan Securities Ltd..................... 2,872,000
- --------------------------------------------------------------------------------
Merill Lynch International..................... 2,872,000
- --------------------------------------------------------------------------------
Fox-Pitt, Kelton N.V........................... 1,436,000
- --------------------------------------------------------------------------------
Stephens Inc................................... 1,436,000
- --------------------------------------------------------------------------------
WestLB Panmure Limited......................... 1,436,000
- --------------------------------------------------------------------------------
Total:................................ 143,600,000
- --------------------------------------------------------------------------------
28
EXHIBIT A
GROUP LEGAL
AEGON N.V.
------------------------------------
P.O. BOX 202
2501 CE THE HAGUE (THE
NETHERLANDS)
50, AEGONplein, The Hague
Telephone +31 70 344 32 10
Fax +31 70 347 52 38
Our reference Your reference Direct Dial The
Hague
M/DR/LDK 344 73 08 September 2002
Fax 383 27 60
DRAFT
Dear Sirs,
I refer to the Underwriting Agreement (the "Underwriting Agreement") dated
September 17, 2002 between (among others) AEGON N.V. (the "Company"), and the
Global Underwriters named therein (the "Underwriters). All expressions defined
in the Agreement have the same meanings in this opinion unless otherwise defined
herein.
I have acted as General Counsel to the Company in connection with the Agreement.
I have examined originals or copies certified to my satisfaction of the
following documents:
(a) the Underwriting Agreement;
(b) the Recapitalization Agreement;
(c) the constitutional documents of the Company;
(d) Disclosure Documents;
A-1
(e) A statement of ABN AMRO Bank N.V. (the "Statement" in its capacity as
associated institution (aangesloten instelling) within the meaning of
the Act on deposit securities transactions (Wet giraal
effectenverkeer) in respect of a securities account in the name of the
Association, in which a number of common shares equal to the Shares
are held, setting out that number held and stating that no rights of
pledge or usufruct are vested with respect to the Shares;
(f) copies of (i) the resolution of the Company's Executive Board dated
[date] 2002, (ii) the resolution of the Company's Supervisory Board
dated [date] 2002 and (iii) the resolution of the pricing committee
dated [date] 2002;
(g) a copy of the shareholders' register of the Company including the New
York Share Register (the "Shareholders' Register");
and such other documents and certificates/searches/records as I have felt
necessary to give this opinion.
I have not investigated the laws of any country other than The Netherlands. In
particular I have made no independent investigation of the laws of the State of
New York, United States of America and the United Kingdom.
In rendering my opinion, I have relied as to all matters governed by United
States law upon the opinion of the general counsel of AEGON U.S.A. Inc., and as
to all matters governed by United Kingdom law upon the opinion of the general
counsel of AEGON UK Plc. and with respect to point 5, I have relied on the
Statement referred to under e above.
For the purpose of the opinions expressed herein, I have assumed:
(i) that (a) each party to the Underwriting Agreement other than the Company
has all requisite power (corporate and otherwise) to execute and deliver,
and to perform its obligations under, the Underwriting Agreement, and (b)
the Underwriting Agreement has been duly authorised, executed and
delivered by or on behalf of the parties thereto other than the Company;
(ii) that (a) the Association has all requisite power (corporate and otherwise)
to execute and deliver, and to perform its obligations under, the
Recapitalization Agreement, and (b) the Recapitalization Agreement has
been duly authorised, executed and delivered by or on behalf of the
Association;
(iii) that the Underwriting Agreement constitutes the legal, valid and binding
obligations of the parties thereto and is enforceable against those
parties in accordance with its terms under the laws by which it is
expressed to be
A-2
governed and under the laws of any other relevant jurisdiction (other than
the laws of the Netherlands);
(iv) that the transactions contemplated in the Recapitalization Agreement
including the financing arrangements and related transactions including
the transfer of Global Shares by banks under previous repo-transactions
(or other financing arrangements between such banks and the Association)
and the release of security rights on the Global Shares, have been legally
and validly completed in accordance with the terms thereof prior to the
delivery and payment of the Global Shares and that the Association has
obtained valid title and full ownership of the Global Shares;
(v) that the Statement is correct and complete as of the date hereof;
(vi) that ABN AMRO Bank N.V. holds in its relevant securities depot
("verzameldepot") such number of share certificates sufficient to deliver
the Shares;
(vii) that the Shares are delivered to the Underwriters out of the securities
account at ABN AMRO Bank N.V. as referred to under (e) above; and
I am of the opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation under the laws of The Netherlands and is duly qualified to
transact business in which the conduct of its business or the ownership or
leasing of property requires such qualification and has all corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the Disclosure Documents;
2. Each of the Company's significant subsidiaries (as defined in Rule 1-02 of
Article I of Regulation S-X under the Securities Act) incorporated in The
Netherlands, the United States, and the United Kingdom, has been duly
incorporated, is validly existing as a corporation under the laws of the
jurisdiction of its incorporation has the corporate power and authority to
own, lease and operate its property and to conduct its business as
described in the Disclosure Documents and is duly qualified to transact
business in each jurisdiction in which the conduct of its business or the
ownership or leasing of property requires such qualification except where
the failure to be so qualified would not have a Material Adverse Effect;
3. The authorized share capital of the Company conforms as to legal matters
to the description thereof contained in the Disclosure Documents.
4. The Shares have been duly authorized and are validly issued, fully paid
and not subject to any calls for funds and rank pari passu with all other
issued and
A-3
outstanding shares of Common Stock, and the delivery of the Shares will
not be subject to any statutory preemptive rights;
5. The Underwriting Agreement and the Recapitalization Agreement, and all the
transactions to which the Company is a party contemplated therein and
completed or to be completed prior to or on the date hereof have been duly
authorised by the Company, and the agreements (or amendments to existing
agreements) entered into in connection therewith, including the
Underwriting Agreement and the Recapitalization Agreement have been
executed and delivered by the Company and constitute valid and binding
agreements of the Company enforceable in accordance with their terms.
6. On the Closing Date, the Association holds ("houdt") the Global Shares,
according to the Statement and the Shareholders' Register, free and clear
of any right of pledge and of any right of usufruct or attachment and
accordingly, upon delivery of the Global Shares and payment therefor
pursuant to the Underwriting Agreement valid title and full ownership of
the Global Shares will pass to the Global Underwriters free and clear of
any right of pledge and usufruct or attachment.
7 The execution and delivery by the Company of, and the performance by the
Company of its obligations under, and the consummation by the Company of
the transactions contemplated in the Underwriting Agreement, including the
sale and delivery of the Global Shares, and the Recapitalization
Agreement, will not contravene, or result in a breach or violation of, or
constitute a default under, any provision of (i) applicable law or
administrative regulation or (ii) the Articles of Association of the
Company or any equivalent corporate governance document of any Significant
Subsidiary or, (iii) any license, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument binding upon the Company or any
of its Significant Subsidiaries that is material to the Company and its
Significant Subsidiaries, taken as a whole, or (iv) any judgement, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any Significant Subsidiary or any of their respective
properties or assets, and no consent, approval, authorization,
registration, notification, clearance, order or qualification of or with,
any governmental or supranational body or agency or taxing authority is
required for the performance by the Company of its obligations under the
Underwriting Agreement, including the sale and delivery of the Global
Shares and the Recapitalization Agreement, except for (i) notice
requirements to the Netherlands Central Bank pursuant to the Act on
Foreign Financial Relations (Wet Financiele Betrekkingen Buitenland 1994)
and regulations promulgated thereunder, (ii) publication and/or notice
requirements, to the extent applicable, pursuant to the Securities
Transactions Supervision Act 1995 (Wet toezicht effectenverkeer 1995) and
the Act on Disclosure of Holdings in Listed Companies 1996 (Wet melding
zeggenschap in ter beurze genoteerde vennootschappen 1996), and (iii) such
as have been
A-4
obtained or made and are in full force and effect; however, non-observance
of these notice and registration requirements does not render the
Underwriting Agreement or the Recapitalization Agreement void, nor does it
affect the legality, validity or enforceability of the Underwriting
Agreement or the Recapitalization Agreement, or the obligations of the
Company thereunder;
8. After due inquiry, I am not aware of (1) any legal or governmental,
administrative or other proceedings pending or threatened to which the
Company or any of its Significant Subsidiaries is subject that (a) would
have a Material Adverse Effect or in any manner question the validity of
the Agreement or the Global Shares or (b) are required to be described in
the Basis Prospectus or the Disclosure Documents and are not so described,
or of (2) any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Disclosure
Documents or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required; and
9 the statement relating to legal matters, documents or proceeding included
in (A) the Prospectus Supplement under the captions "Restructuring of
Relationship with Vereniging AEGON" and "Share Capital" (B) the Base
Prospectus under the caption "Description of Share Capital" (C) Items 4, 7
and 10, (except that no opinion is rendered with respect to "taxation) of
the Company's most recent annual report on Form 20-F incorporated by
reference in the Prospectus in each case fairly summarize in all material
respects such matters, documents or proceedings.
Terms not defined herein have the meaning assigned to such terms in the
Agreement.
This opinion letter is addressed to you and may not be relied upon by any other
person or entity without my prior written consent.
Yours truly,
AEGON N.V.
Erik Lagendijk
A-5
EXHIBIT B
To: ABN AMRO Rothschild
Gustav Mahlerlaan 10
1082 PP Amsterdam
Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
United Kingdom
acting severally on behalf of themselves and as
representatives of the several Global Underwriters and the
several Regulation S Underwriters
(the Global Underwriters and the Regulation S Underwriters together: the
"Underwriters")
Amsterdam, [date] 2002
Re: Offer by AEGON N.V. (the "Company") of [ ] common shares with a nominal
value of(euro)0.12 each in the share capital of the Company ("Common
Shares") and offer by Vereniging AEGON (the "Association") of [ ] Common
Shares
Dear Madam, Sir:
We have acted as legal counsel on matters of Netherlands law to the Company in
connection with the offer for sale by the Company of [ ] Common Shares (the
"Global Shares") and the offer for sale by the Association of [ ] Common Shares
(the "Regulation S Shares" and together with the Global Shares, the "Shares"),
pursuant to an underwriting agreement among the Company, the Association and the
Underwriters, dated [date] 2002 (the "Underwriting Agreement").
This legal opinion is rendered to you pursuant to clause 6 (e) of the
Underwriting Agreement.
Capitalised terms used but not defined herein are used as defined in the
Underwriting Agreement, unless the context requires otherwise.
In rendering this opinion, we have examined and relied upon the following
documents:
B-1
(a) a signed faxed copy of the Underwriting Agreement;
(b) a signed faxed copy of the recapitalisation agreement between the Company
and Association dated [DATE] 2002 (the "Recapitalisation Agreement");
(c) a faxed copy of an excerpt dated 5 September 2002 of the registration of
the Company in the trade register of the Chamber of Commerce of The Hague,
the Netherlands (the "Trade Register"), confirmed by telephone to be
correct on the date hereof (the "Excerpt");
(d) a copy of the deed of incorporation (oprichtingsakte) of the Company;
(e) a copy of the articles of association (statuten) of the Company as,
according to the Excerpt, deposited with the Trade Register as being in
force on the date hereof (the "Articles");
(f) copies of (i) the resolution of the Company's Executive Board dated [date]
2002, (ii) the resolution of the Company's Supervisory Board dated [date]
2002 and (iii) the resolution of the pricing committee dated [date] 2002;
(g) a copy of the shareholders' register of the Company including the New York
Share Register (the "Shareholders' Register");
(h) a copy of the resolutions of the competent corporate body which either
authorized or approved the issue of common shares of the Company adopted
in the last ten years as listed in Schedule 1;
(i) a copy of the resolutions relating to the delegation of the authority to
issue common shares of the Company and to exclude or limit any applicable
pre-emption rights adopted in the last ten years as listed in Schedule 2;
(j) a copy of agreements and (private) deeds concerning the transfer of the
Shares in registered form signed or executed in the last ten years (as
listed in Schedule 3);
(k) a management certificate of the Company [date] 2002;
(l) a management certificate of Association [date] 2002;
(m) a statement of ABN AMRO Bank N.V. (the "Statement") in its capacity as
associated institution (aangesloten instelling within the meaning of the
act on deposit securities transactions (Wet giraal effectenverkeer)) in
respect of a securities account in the name of the Association in which a
number of Common Shares equal to the Shares are held, setting out that
number and
B-2
stating that no rights of pledge or usufruct are vested with respect to
the Shares;
(n) a copy of the Shelf Registration Statement dated 11 October 2001 and the
Prospectus Supplement (as such terms are defined in the Underwriting
Agreement) (collectively the "Prospectus");
For the purpose of the opinions expressed herein, we have assumed:
(viii) the genuineness of all signatures, the authenticity of all agreements,
certificates, instruments and other documents submitted to us as
originals and the conformity of all agreements, certificates,
instruments and other documents submitted to us as copies;
(ix) that all factual matters, statements, certificates and other results of
our investigation, relied upon or expressly assumed herein, are true and
complete on the date of execution of the Underwriting Agreement;
(x) that the deed of incorporation of the Company is a valid notarial deed
(authentieke akte), that the contents thereof are correct and complete
and that there were no defects in the incorporation (not appearing on
the face of this deed) on the basis of which a court might dissolve the
Company;
(xi) that the Company has not been dissolved (ontbonden), granted a
suspension of payments (surseance van betaling verleend), or declared
bankrupt (failliet verklaard). Although not constituting conclusive
evidence thereof, our assumption is supported by (a) the contents of the
Excerpt, and (b) information obtained by telephone today from the
bankruptcy clerk's office (faillissementsgriffie) of the district court
(arrondissementsrechtbank) in The Hague;
(xii) that the Shares are delivered to the Underwriters out of the securities
account at ABN AMRO Bank N.V. as referred to under (m) above;
(xiii) that ABN AMRO Bank N.V. holds in its relevant securities depot
("verzameldepot") such number of share certificates sufficient to
deliver the Shares;
(xiv) that the Association when acquiring the Shares was acting in good faith
and has the legal right and power, and all authorizations and approvals
required by law to sell, transfer and deliver or cause the transfer of
the Regulation S Shares;
B-3
(xv) that the nominal amount of the Shares and any share premium agreed upon
was at the time of issue, duly paid up;
(xvi) that the Shares at the time of issue thereof were duly authorised and
validly issued in accordance with the articles of association of the
Company in effect at the time of such authorisation and issue;
(xvii) that the Statement is correct and complete as of the date hereof;
(xviii) that the Shareholders' Register is correct and complete as of the date
hereof; although not constituting conclusive evidence thereof, our
assumption is supported by the management certificate of the Company;
(xix) that, when acquiring the Shares, the Association acted in good faith
with respect to the authorisation ("beschikkingsbevoegdheid") of its
counterparties to dispose of the Shares and the agreements relating to
the acquisition of the Shares by Association were unconditional and have
not been rescinded;
(xx) that the resolutions referred to above under (f), (h) and (i) above have
been validly passed and have not been, and will not be, revoked or
declared null and void by a competent court (we know of no reason,
without having made any investigation, to suppose that such resolutions
will be declared null and void);
(xxi) that (a) each party to the Underwriting Agreement other than the Company
has all requisite power (corporate and otherwise) to execute and
deliver, and to perform its obligations under, the Underwriting
Agreement, and (b) the Underwriting Agreement has been duly authorised,
executed and delivered by or on behalf of the parties thereto other than
the Company;
(xxii) that (a) the Association has all requisite power (corporate and
otherwise) to execute and deliver, and to perform its obligations under,
the Recapitalisation Agreement, and (b) the Recapitalisation Agreement
has been duly authorised, executed and delivered by or on behalf of the
Association;
(xxiii) that the Underwriting Agreement constitutes the legal, valid and binding
obligations of the parties thereto and is enforceable against those
parties in accordance with its terms under the laws by which it is
expressed to be governed and under the laws of any other relevant
jurisdiction (other than the laws of the Netherlands);
B-4
(xxiv) that the Underwriting Agreement and the Recapitalisation Agreement have
been signed on behalf of the Company by [ ]; and
(xxv) that the transactions in so far as these relate to (i) the transfer of
Shares by parties other than the Company or by the Association and/or
(ii) the rights (including security rights) in favour of parties other
than the Company regarding the Shares contemplated in the Capital
Restructuring including the financing arrangements and related
transactions including the transfer of Common Shares by banks under
previous repo-transactions (or other financing arrangements between such
banks and the Association) and the release of security rights on such
Shares, have been legally and validly completed in accordance with the
terms thereof prior to the delivery and payment of the Shares and that
the Association has obtained valid title and full ownership of the
Shares.
Based upon the foregoing and subject to any factual matters or documents not
disclosed to us in the course of our investigation, and subject to the
qualifications and limitations stated hereafter, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
naamloze vennootschap (public company with limited liability) under the
laws of the Netherlands.
2. The Company has the corporate power to sell and deliver the Global Shares
and to enter into the Underwriting Agreement and the Recapitalisation
Agreement and to perform its obligations thereunder.
3. The Company has taken all necessary corporate action to authorise the
execution and delivery by the Company of the Underwriting Agreement and the
Recapitalisation Agreement and the sale and delivery by or on behalf of the
Company of the Global Shares.
4. The Shares have been duly and validly authorised and validly issued, are
fully paid up and not subject to any calls for funds. There are no
statutory pre-emptive rights to acquire the Shares. The Shares rank pari
passu with the other issued Common Shares.
5. According to the Statement and the Shareholders' Register the Shares are
free of any right of pledge ("pandrecht"), any right of usufruct
("vruchtgebruik") or attachment ("beslag").
6. The Underwriting Agreement and the Recapitalisation Agreement, and all the
transactions to which the Company is a party that are contemplated therein
and completed or to be completed prior to or on the date hereof have
B-5
been duly authorised by the Company. The Underwriting Agreement and the
Recapitalisation Agreement have been executed and delivered by the Company
and constitute valid and binding agreements of the Company enforceable in
accordance with their terms.
7. On the Closing Date, the Association holds ("houdt") the Global Shares,
according to the Statement and the Shareholders' Register, free and clear
of any right of pledge and of any right of usufruct or attachment and
accordingly, upon delivery of the Global Shares and payment therefor
pursuant to the Underwriting Agreement valid title and full ownership of
the Global Shares will pass to the Global Underwriters free and clear of
any right of pledge and usufruct or attachment.
8. No approval, authorisation, or other action by, or registration or filing
with any governmental authority is required in connection with the
execution by the Company of the Underwriting Agreement and the
Recapitalisation Agreement and the performance by the Company of its
obligations thereunder, and no relevant exchange control regulations are
currently in force in the Netherlands, except for (i) notice requirements
to the Netherlands Central Bank (De Nederlandsche Bank N.V.) pursuant to
the Act on Foreign Financial Relations (Wet Financiele Betrekkingen
Buitenland 1994) and regulations promulgated thereunder, (ii) publication
and/or notice requirements, to the extent applicable, pursuant to the
securities transactions supervision Act 1995 (Wet toezicht effectenverkeer
1995) and the Act on disclosure of holdings in listed companies 1996 (Wet
melding zeggenschap in ter beurze genoteerde vennootschappen 1996), and
(iii) such as have been obtained or made and are in full force and effect;
however, non-observance of these notice and registration requirements does
not render the Underwriting Agreement or the Recapitalisation Agreement
void, nor does it affect the legality, validity or enforceability of the
Underwriting Agreement or the Recapitalisation Agreement, or the
obligations of the Company thereunder.
9. The execution and delivery by the Company of, and the performance by the
Company of its obligations under, and the consummation by the Company of
all of the transactions completed or to be completed on or before the date
hereof and contemplated in, the Underwriting Agreement and the
Recapitalisation Agreement do not conflict with or result in a violation of
the Articles or the provisions of any applicable law, rule or regulation of
general application of the Netherlands or published case law of the courts
of the Netherlands.
B-6
10. The choice of the laws of the State of New York as the law governing the
Underwriting Agreement is valid and binding under the laws of the
Netherlands, except (i) to the extent that any term of the Underwriting
Agreement or any provision of the laws of the State of New York applicable
to the Underwriting Agreement is manifestly incompatible with the public
policy (ordre public) of the Netherlands, and except (ii) that a Dutch
court may give effect to mandatory rules of the laws of another (including
the Dutch) jurisdiction with which the situation has a close connection, if
and insofar as, under the laws of that other jurisdiction those rules must
be applied, whatever the chosen law.
11. The consent to jurisdiction, as provided in Clause 14 of the Underwriting
Agreement, is valid and binding upon the Company under the laws of the
Netherlands, provided, however, that such consent does not preclude that
claims for provisional measures be brought before the president of a
competent court in the Netherlands.
12. In the absence of an applicable convention between the United States and
the Netherlands, a judgement rendered by a New York court in that
jurisdiction will not be enforced by the courts of the Netherlands. In
order to obtain a judgement which is enforceable in the Netherlands the
claim must be re-litigated before a competent Netherlands court. A
judgement rendered by a foreign court pursuant to the Underwriting
Agreement will, under current practice, be recognised by a Netherlands
court (i) if that judgement results from proceedings compatible with
Netherlands concepts of due process, and (ii) if that judgement does not
contravene public policy (ordre public) of the Netherlands. If the
judgement is recognised by a Netherlands court, that court will generally
grant the same claim without re-litigation on the merits.
13. 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 of its obligations under the Underwriting Agreement.
14. With respect to the execution and delivery of the Underwriting Agreement,
no stamp duties (zegelrechten), issuance tax, transfer tax or similar taxes
or duties except for capital tax which is payable by the Company will be
imposed upon any of parties thereto or the purchasers of the Shares
procured by the Underwriters.
B-7
15. In order to ensure the legality, validity or admissibility in evidence of
the Underwriting Agreement it is not necessary that any of these be filed,
recorded or enrolled in any public office in the Netherlands.
16. The statements in the Disclosure Documents under the captions
["Restructuring of Relationship with Vereniging AEGON"] "Description of the
Articles", "Share Capital" and ["Description of Share Capital of AEGON"] in
so far as relating to Dutch law and in so far as such statements constitute
a summary of the Articles or provisions of Dutch law fairly summarise
matters referred to therein, in all material respects.
17. The statements set forth in the Prospectus under "Dutch Taxation" and
"Taxation in The Netherlands" insofar as they purport to be a summary of
Dutch tax laws, are fair and accurate.
This opinion is subject to the following qualifications:
(A) The opinions expressed herein may be affected or limited by (i) the general
defences available to obligors under Netherlands law in respect of the
validity and enforceability of agreements and (ii) the provisions of any
applicable bankruptcy (faillissement), insolvency, fraudulent conveyance
(actio Pauliana), reorganisation, moratorium (surseance van betaling), and
other or similar laws of general application now or hereafter in effect,
relating to or affecting the enforcement or protection of creditors'
rights.
(B) The enforcement in the Netherlands of the Underwriting Agreement will be
subject to the rules of civil procedure as applied by the Netherlands
courts. Specific performance may not always be available under Netherlands
law. Enforcement in the Netherlands of a judgement expressed in a currency
other than in Euro may give rise to complications and it is, therefore,
advisable to obtain a judgement expressed both in that currency and the
equivalent thereof in Euro.
(C) To the extent Dutch law applies to the Recapitalisation Agreement, the
opinions expressed herein may be affected by the general defenses available
to obligors under Dutch law in respect of the validity and enforceability
of contractual obligations, such as the principles of reasonabless and
fairness, modification on grounds of unforeseen circumstances and the
avoidance on grounds of duress (bedreiging), deceit (bedrog) or abuse of
circumstances (misbruik van omstandigheden) and , if and to the extent not
waived in such agreements, force majeure, the exceptio non adimpleti
contractus, the right to set-off, the right to dissolve the agreement on
grounds of breach by the
B-8
other party and the right to avoid the agreement on grounds of mistake
(dwaling).
(D) Under the laws of the Netherlands each power of attorney (volmacht) or
mandate (lastgeving), whether or not irrevocable, granted by the Company in
the Underwriting Agreement will terminate by force of law, and without
notice, upon bankruptcy of the Company. To the extent that the appointment
by the Company of a process agent would be deemed to constitute a power of
attorney or a mandate, this qualification would apply.
We express no opinion on any law other than the law of the Netherlands
(unpublished case law not included) as it currently stands. We express no
opinion on European Community law (insofar as not directly implemented in the
Netherlands in statutes, rules or other regulations of general application) or
on any anti-trust laws.
In this opinion Netherlands legal concepts are expressed in English terms and
not in their original Netherlands terms. The concepts concerned may not be
identical to the concepts described by the same English term as they exist under
the laws of other jurisdictions. This opinion may, therefore, only be relied
upon under the express condition that any issues of interpretation or liability
arising under the present legal opinion will be governed by Netherlands law and
be brought before a Netherlands court only.
This opinion is strictly limited to the matters stated herein and may not be
read as extending by implication to any matters not specifically referred to.
Nothing in this opinion should be taken as expressing an opinion in respect of
the factual accuracy of the truthfulness of any representations or warranties,
or other information as to factual matters, contained in the Underwriting
Agreement, the Recapitalisation Agreement or any other document referred to
herein or examined in connection with this opinion except as expressly confirmed
herein.
This opinion is addressed to you and may only be relied upon by you and by your
legal counsel in connection with the transaction to which the Underwriting
Agreement relates, and may not be relied upon by, or (except as required by
applicable law) be transmitted to, or filed with any other person, firm,
company, or institution without our prior written consent.
Yours sincerely,
Allen & Overy
B-9
EXHIBIT C-1
One New Change
London EC4M 9QQ
Telephone: (020) 7330 3000
Fax (Group 3): (020) 7330 9999
Fax (Group 4): (020) 7248 1100
DX No. 73
www.allenovery.com
Our Ref: NY: 58000.1
DRAFT _ September, 2002
2002
ABN AMRO Rothschild
Morgan Stanley & Co. International Limited
Acting severally on behalf of themselves and as
representatives of the several Underwriters
Offering of _ AEGON N.V. Common Shares
Ladies and Gentlemen:
We have acted as special counsel to AEGON N.V., a limited liability
company incorporated under the laws of The Netherlands (the "Company"),
on matters of New York and United States Federal law in connection with
the offer and sale of _ of its common shares, par value EUR 0.12 per
share. We are furnishing this opinion to you pursuant to Section 6(e) of
the Underwriting Agreement, dated September _, 2002 (the "Underwriting
Agreement"), among ABN AMRO Rothschild, Morgan Stanley & Co.
International Limited, the other Underwriters named therein, the
Association and the Company. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the
Underwriting Agreement.
A. SCOPE OF REVIEW AND RELIANCE
In rendering the opinions expressed below, we have examined copies of:
(i) The registration statement of the Company on Form F-3 (No. 333-71438)
filed with the Commission on October 11, 2001, and declared effective on
October 22, 2001, and the exhibits thereto (the "Registration
Statement"), including the information deemed to be a part thereof as of
the effective date thereof pursuant to Rule 430A under the Securities
Act;
C-1-1
(ii) the prospectus dated October 22, 2001 (the "Basic Prospectus"), filed
with the Commission as part of the Registration Statement;
(iii) the prospectus supplement of the Company dated September _, 2002, in the
form filed with the Commission pursuant to Rule 424 under the Securities
Act (the "Prospectus Supplement") specifically relating to the Primary
Shares;
(iv) advice from the Commission that the Registration Statement was declared
effective on October 22, 2001; and
(v) an executed copy of the Underwriting Agreement.
In giving this opinion, we have reviewed originals or copies certified or
otherwise identified to our satisfaction of such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons as we have
deemed appropriate for the purposes of this opinion. As to matters of fact, we
have relied to the extent we have deemed proper on certificates of responsible
officers of the Company and public officials.
B. ASSUMPTIONS
In giving this opinion, we have assumed that:
1. insofar as any obligation falls to be performed in any jurisdiction
outside New York, its performance will not be illegal or ineffective by
virtue of the laws of that jurisdiction;
2. all signatures on the executed documents which, or copies of which, we
have examined are genuine, all documents submitted to us as copies or
received by us by facsimile transmission conform to the original
documents and all such original documents are authentic;
3. (a) each of the parties to the Underwriting Agreement is duly organized
and validly existing, has the power and authority to execute, deliver
and perform its obligations under the Underwriting Agreement, has taken
all action necessary to authorize the execution, delivery and
performance of the Underwriting Agreement, and, except to the extent
expressly set out in the opinions below as to the Company, has duly
executed and delivered the Underwriting Agreement and (b) the
Underwriting Agreement constitutes a legal, valid and binding
obligation of each of the Underwriters, enforceable against each
Underwriter in accordance with its terms;
C-1-2
4. each of the Association and the Company is able lawfully to sell the
Shares to be sold by it pursuant to the Underwriting Agreement, that the
sale of such Shares has been duly authorized by the Association or the
Company, as appropriate, and that such Shares have been duly issued;
5. specifically with reference to our opinion set forth in paragraph D.3
below, (a) the Association when acquiring the Shares was acting in good
faith and had the legal right and power, and all authorizations and
approvals required under the laws of The Netherlands, to sell, transfer
and deliver or cause the sale, transfer or delivery of the Shares, (b)
the Association when acquiring the Shares acted in good faith with
respect to the authorization of its counterparties to dispose of the
Shares and the agreements relating to the acquisition of the Shares by
the Association were unconditional and have not been rescinded, (c) the
transactions contemplated by the Capital Restructuring, including the
financing arrangements and related transactions (including the transfer
of Common Shares by banks under previous repurchase transactions or
other financing arrangements between such banks and the Association)
and the release of security interests, claims, liens, equities or other
encumbrances were legally and validly completed prior to the delivery
of and payment for the Shares, and (d) on the Closing Date, the
Association had valid title to the Shares, free and clear of all
security interests, claims, liens, equities or other encumbrances;
6. the accuracy of the representations and warranties, and compliance with
the undertakings and agreements, of the Company and the Association
contained in the Underwriting Agreement; and
7. all offers and sales of the Shares will be made in compliance with, and
in the manner contemplated by, the Disclosure Documents and the
Underwriting Agreement.
C. LIMITATIONS
Our opinion expressed below is subject to the following limitations:
1. We are members of the bar of the State of New York and we have not
investigated and do not express any opinion as to the laws of any
jurisdiction other than the Applicable Laws. As used in this opinion,
the term "Applicable Laws" refers to the laws of the State of New York
and to the Federal laws of the United States of America, in each case in
effect on the date of this opinion, and to the extent they are normally
applicable in relation to transactions of the type provided for in the
Underwriting Agreement, and excluding any law, rule or regulation
relating to the
C-1-3
securities or "blue sky" laws of any State of the United States. In
particular, in this opinion we do not purport to pass on any matters
governed by the laws of The Netherlands.
2. We express no opinion as to matters of fact.
D. OPINIONS
On the basis of the foregoing, and having regard to such legal
considerations as we deem relevant, we are of the opinion that:
1. It is not necessary in connection with the offer, sale and delivery of
the International Shares to the International Underwriters pursuant to
the Underwriting Agreement or in connection with the initial resale of
the International Shares by the International Underwriters in the
manner contemplated by the Underwriting Agreement to register the
International Shares under the Securities Act. We express no opinion
as to when and under what circumstances any of the International Shares
may be subsequently re-offered or resold.
2. Assuming that the Underwriting Agreement has been duly authorized,
executed and delivered in accordance with the law of The Netherlands by
the Company, the Underwriting Agreement has been duly executed and
delivered by the Company insofar as New York Law is concerned.
3. Upon payment for the New York Shares to be sold by the Company pursuant
to the Underwriting Agreement, delivery of such New York Shares, as
directed by the Primary Underwriters, to Cede or such other nominee as
may be designated by the Depositary Trust Company ("DTC"), registration
of such New York Shares in the name of Cede or such other nominee and
the crediting of such New York Shares on the books of DTC to securities
accounts of the Primary Underwriters (assuming that neither DTC nor any
such Primary Underwriter has notice of any adverse claim within the
meaning of Section 8-105 of the UCC to such New York Shares), (a) DTC
shall be a "protected purchaser" of such New York Shares within the
meaning of Section 8-303 of the UCC, (b) under Section 8-501 of the
UCC, the Primary Underwriters will acquire a valid security entitlement
in respect of such New York Shares and (c) no action based on any
"adverse claim" (within the meaning of Section 8-102 of the UCC) to
such New York Shares may be asserted against the Primary Underwriters
with respect to such security entitlement; in giving this opinion, we
assume that when such payment, delivery and crediting occur, (x) such
New York Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the
C-1-4
Company's share registry in accordance with its Articles of Association
and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the several Primary Underwriters
on the records of DTC will have been made pursuant to the UCC.
4. The execution and delivery by the Company of the Underwriting Agreement
and the performance by the Company of its obligations thereunder and the
consummation of the transactions contemplated thereby do not and will
not result in any violation of any Applicable Laws or any agreement or
other instrument that is listed as an exhibit to the Registration
Statement and that is governed by the laws of the State of New York and
is binding upon the Company or any of its subsidiaries.
5. No consent, approval, authorization, order or qualification with any
United States Federal or New York governmental body or agency is
required for the performance by the Company of its obligations under
the Underwriting Agreement, other than those required under the
Securities Act or the Exchange Act or the rules and regulations
promulgated thereunder, which have been obtained (or as may be required
under the securities or blue sky laws of the various States, as to
which we express no opinion).
6. The Company is not, and after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in
the Prospectus will not be, required to register as an "investment
company" as such term is defined in the U.S. Investment Company Act of
1940, as amended.
7. Assuming the validity of such actions under the laws of The Netherlands,
under the laws of the State of New York and the applicable Federal laws
of the United States relating to submission to jurisdiction, pursuant to
section 14 of the Underwriting Agreement, the Company (a) has validly
and irrevocably submitted to the non-exclusive personal jurisdiction of
any Federal or state court in The City of New York, State of New York,
in any action arising out of or relating to the Underwriting Agreement
or the transactions contemplated thereby, (b) has validly and
effectively waived, to the extent it may effectively do so, any
objection to the venue of a proceeding in any such court and has validly
and (iii) has validly and irrevocably appointed _ as its initial
authorized agent for the purpose described in section 14 of the
Underwriting Agreement; and services of process effected on such agent
in the manner set forth in the Underwriting
C-1-5
Agreement will be effective under the laws of the State of New York to
confer valid personal jurisdiction over the Company.
8. The discussions set forth in the Registration Statement and the
Prospectus Supplement under "Taxation - Taxation in the United States"
and "U.S. Taxation", respectively, to the extent that they constitute
matters of law or legal conclusions with respect thereto currently
applicable to U.S. holders and non-U.S. holders described therein, are
fair summaries of such matters in all material respects.
E. LIMITATIONS AND QUALIFICATIONS
The foregoing opinion is subject to the following comments and qualifications:
1. Our opinions are subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance and other similar laws affecting the rights and
remedies of creditors generally and to possible judicial action giving
effect to governmental actions or foreign laws affecting creditors'
rights. Our opinions are also subject to the effect of general
principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law.
2. We express no opinion as to the enforceability of the indemnification or
contribution provisions of the Underwriting Agreement that may violate
any law, rule, regulation or public policy.
3. The enforceability of provisions in the Underwriting Agreement to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
4. We express no opinion as to whether a United States Federal or State
court outside the State of New York would give effect to the choice of
New York law provided for in the Underwriting Agreement.
5. We note that under certain circumstances the Federal courts located in
the State of New York may decline to exercise subject matter
jurisdiction to adjudicate a controversy relating to or arising under
the Underwriting Agreement, but this does not affect the ability of a
party to the Underwriting Agreement to bring an action relating to or
arising under the Underwriting Agreement in a New York State court.
C-1-6
6. We wish to point out with reference to obligations stated to be payable
in a currency other than U.S. dollars that effective enforcement of a
foreign currency claim in the courts of the State of New York or the
U.S. Federal courts sitting in the State of New York may be limited by
requirements that the claim (or foreign currency judgment in respect of
the claim) be converted into U.S. dollars at the rate of exchange
prevailing on the date of the judgment or decree by the New York court
or U.S. Federal court.
7. The opinion set forth in D.6 above is based on the Internal Revenue
Code of 1986, as amended, Treasury Regulations, case law and Internal
Revenue Service rulings or pronouncements as they exist on the date of
this opinion. These authorities are all subject to change and such
change may be made with retroactive effect. We can give no assurance
that after any such change, this opinion would not be different.
Moreover, this opinion is not binding on the Internal Revenue Service
or the courts.
8. We undertake no responsibility to update or supplement this opinion.
This opinion is given for your sole benefit and may not be disclosed to any
other person, nor relied upon by any other person or for any purpose other than
in connection with the transactions contemplated in the Underwriting Agreement,
nor is it to be quoted or made public in any way without our prior written
consent.
Yours faithfully,
Allen & Overy
C-1-7
EXHIBIT C-2
One New Change
London EC4M 9QQ
Telephone: (020) 7330 3000
Fax (Group 3): (020) 7330 9999
Fax (Group 4): (020) 7248 1100
DX No. 73
www.allenovery.com
Our Ref: NY: 57998.2
DRAFT _ September, 2002
2002
ABN AMRO Rothschild
Morgan Stanley & Co. International Limited
Acting severally on behalf of themselves and as
representatives of the several Primary Underwriters
Offering of _ AEGON N.V. Common Shares
Ladies and Gentlemen,
We have acted as special counsel to AEGON N.V., a limited liability company
incorporated under the laws of The Netherlands (the "Company") on matters of New
York and United States Federal law in connection with the offer and sale of _ of
its common shares, par value EUR 0.12 per share. We are furnishing this letter
to you pursuant to Section 6(e) of the Underwriting Agreement, dated September
_, 2002 (the "Underwriting Agreement"), among ABN AMRO Rothschild, Morgan
Stanley & Co. International Limited, the other Underwriters named therein, the
Association and the Company.
This letter deals with our involvement in the preparation of (i) the
registration statement of the Company on Form F-3 (No. 333-71438) filed with the
Commission on October 11, 2001 and declared effective by the Commission on
October 22, 2001 (the "Registration Statement"), including the information
deemed to be a part thereof pursuant to Rule 430A under the Securities Act; (ii)
the prospectus dated October 22, 2001 (the "Basic Prospectus"), filed with the
Commission as part of the Registration Statement; and (iii) the prospectus
supplement of the Company dated September _, 2002, in the form filed with the
Commission pursuant to Rule 424 under the Securities Act (the "Prospectus
Supplement") specifically relating to the Primary Shares. The term "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Underwriting Agreement.
C-2-1
We have participated with ABN AMRO Rothschild and Morgan Stanley & Co.
International Limited (together, the "Global Coordinators") and the Company in
meetings and telephone conversations with representatives of the Global
Coordinators, representatives of the Company, representatives of the Company's
external auditors, representatives of Davis Polk & Wardwell as legal advisers to
the Global Coordinators during which the contents of the Registration Statement
and Prospectus were discussed.
Although we have made certain inquiries and investigations in connection with
the preparation of the Registration Statement and the Prospectus, the
limitations inherent in the role of outside counsel are such that we cannot and
do not assume responsibility for the accuracy, completeness or fairness of the
statements made in the Registration Statement and the Prospectus, except insofar
as such statements relate to us. We have not participated in the preparation of
any documents incorporated by reference into the Registration Statement or the
Prospectus and we have not engaged in any independent check or verification of
the contents of the Registration Statement or the Prospectus.
Subject to the foregoing, we hereby advise you that (i) each document, if any,
filed pursuant to the U.S. Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in the Prospectus (except for the
information of an accounting, financial or statistical nature included therein
or omitted therefrom, as to which we do not express any view), when so filed
complied as to form in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder and (ii) each part of the Registration Statement, when such part
became effective, and the Prospectus, as of the date thereof or hereof (except
for the information of an accounting, financial or statistical nature included
therein or omitted therefrom, as to which we do not express any view), complied
as to form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder.
Further, subject again to the foregoing, we hereby advise you that our work in
connection with this matter did not disclose any information that gave us reason
to believe that (i) any part of the Registration Statement (except for the
information of an accounting, financial or statistical nature included therein
or omitted therefrom, as to which we do not express any view), when such part
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Prospectus and the Offering
Circular (except for the information of an accounting, financial or statistical
nature included therein or omitted therefrom, as to which we do not express any
view) as of the date thereof or hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated
C-2-2
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
We are furnishing this letter to you solely for your benefit in connection with
the offering of the Shares. This letter is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Yours faithfully,
Allen & Overy
C-2-3
EXHIBIT D
Postbus 7113 ND draft 17 September 2002
1007 JC Amsterdam
Prinses Irenestraat 59
1077 WV Amsterdam
T +31 20 541 46 46
F +31 20 661 28 27
ABN AMRO Rothschild
Gustav Mahlerlaan 10
1082 PP Amsterdam
Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
United Kingdom
Ladies and Gentlemen:
We have acted as special Netherlands legal counsel to Vereniging AEGON, in
connection with the transactions contemplated by a Recapitalisation Agreement,
dated [17] September 2002, among AEGON N.V. and Vereniging AEGON. This opinion
letter is rendered to you pursuant to Section 6(g) of the Underwriting Agreement
(as defined below).
Capitalised terms used herein shall have the meaning as set forth in Exhibit A
hereto. The section headings used in this opinion letter are for convenience or
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof. Exhibits referred to in this opinion
letter form an integral and inseparable part hereof.
In rendering the opinions expressed herein, we have exclusively reviewed and
relied upon the Transaction Documents and the Corporate Documents. We have not
investigated or verified any factual matter disclosed to us in the course of our
review.
This opinion letter is governed by and shall be construed and have effect in
accordance with, and the opinions and statements expressed herein are limited in
all respects to, Netherlands Law. Unless otherwise specifically stated herein,
we do not express any opinion on public international law or on the rules
D-1
promulgated under or by any treaty or treaty organization, except insofar as
such rules are directly applicable in the Netherlands, nor do we express any
opinion on Netherlands or European competition law or tax law. No undertaking or
obligation is assumed on our part to revise, update or amend this opinion letter
in connection with or to notify or inform you of any developments and/or changes
under Netherlands Law subsequent to its date that might render its contents
untrue or inaccurate in whole or in part at such time.
This opinion letter may only be relied upon on the condition that the legal
relationship between the adressees and NautaDutilh N.V. shall be governed by
Netherlands law and that any issues of interpretation or liability thereunder
shall be submitted to the exclusive jurisdiction of the competent courts at
Amsterdam, the Netherlands.
In this opinion letter, Netherlands legal concepts are expressed in English
terms and not in their original Netherlands terms. The concepts concerned may
not be identical to the concepts described by the same English terms, as they
exist under the law of other jurisdictions. In the event of a conflict or
inconsistency, the relevant expression shall be deemed to refer only to the
Netherlands legal concepts described thereby.
In rendering the opinions and the statements expressed herein, we have assumed
that both at the time of signing of the Transaction Documents and at the Closing
Date:
(a) all documents reviewed by us as originals are complete and authentic and
the signatures thereon are the genuine signatures of the persons
purporting to have signed the same, all documents reviewed by us as
drafts of documents or as fax, photo- or electronic copy of originals
are in conformity with the executed originals thereof and such originals
are complete and authentic and the signatures thereon are the genuine
signatures of the persons purporting to have signed the same;
(b) no legal action with respect to the Articles of Association or the AEGON
Articles of Association is void (nietig) or voidable (vernietigbaar) and
the deeds containing the Articles of Association and the AEGON Articles
of Association were executed on the basis of a valid declaration of no
objection (verklaring van geen bezwaar) by a civil law notary (notaris),
who had the power and authority to execute such deeds, and the contents
of such deeds are complete and correct;
(c) Vereniging AEGON has not (i) been dissolved (ontbonden), (ii) ceased to
exist pursuant to a merger (fusie) or a de-merger (splitsing), (iii) had
its assets placed under administration (onder bewind gesteld), (iv) been
granted a suspension of payments (surseance van betaling verleend), been
D-2
declared bankrupt (failliet verklaard) or been made subject to any other
insolvency proceeding listed in Annex A of the Insolvency Regulation.
This assumption is supported by the Extract and our inquiries of today
over the telephone with the Bankruptcy Clerk's Office;
(d) the Resolutions are in full force and effect and correctly reflect the
resolutions set forth therein and the power of attorney contained in the
Resolutions has not been revoked, terminated or amended;
(e) each party to the Transaction Documents, other than Vereniging AEGON,
has all requisite power (corporate or otherwise) to enter into the
Transaction Documents and perform its obligations thereunder;
(f) each of the Transaction Documents constitutes under any applicable law,
other than Netherlands Law, the legal, valid and binding obligations of
the parties thereto, enforceable against such parties in accordance with
their terms and the choice of law contained in the Underwriting
Agreement constitutes under the laws of the State of New York a legal,
valid and binding choice of law;
(g) the Transaction Documents have been signed on behalf of Vereniging
AEGON by [Mr P.P. Kohnstamm];
(h) the information in the Shareholders' Register and the Certificates is
correct and complete;
(i) the Shares in bearer form are, whether as share certificates or by way
of a global share certificate, admitted by Necigef as securities within
the meaning of the WGE Act and are held and administered by Necigef on
the sole behalf and in the sole name of ABN AMRO Bank and by ABN AMRO
Bank, through a proportional co-ownership of Vereniging AEGON to a
collective deposit (verzameldepot) relating to such Shares, on the sole
behalf and in the sole name of Vereniging AEGON, as supported by the ABN
AMRO Certificate;
(j) immediately prior to the sale, transfer and delivery of the Shares in
bearer form that are within the Necigef-system as set forth in (i)
above, no book entries whatsoever were recorded or made, whether by
Necigef on any global certificate or otherwise in its administration or
by ABN AMRO Bank or any other Admitted Institution in its
administration, in connection with the vesting of a right of pledge
(pandrecht) or usufruct (vruchtgebruik) or other encumbrance on any of
such Shares in bearer form and no attachment (beslag) of whatever nature
has been made with
D-3
respect to such Shares in bearer form, as supported by the ABN AMRO
Certificate;
(k) as to any Shares in bearer form, a conversion of such Shares into
registered Shares will, if necessary, have taken place in time, i.e.
before such Shares are to be sold, tranferred and delivered pursuant
to the Transaction Documents;
(l) as to any Shares in registered form, a conversion of such Shares into
bearer Shares will, if necessary, have taken place in time, i.e.
before such Shares are to be sold, tranferred and delivered pursuant
to the Transaction Documents;
(m) as to any Shares in registered form, no share certificates (bewijzen
van aandeel) have been issued in respect thereof;
(n) at all times the Shares have been transferred on a valid legal basis
(met geldige titel) and acquired by Vereniging AEGON acting in good
faith, from transferees who at the time were authorised
(beschikkingsbevoegd) to dispose of the Shares;
(o) the Shares will be offered, sold and delivered as contemplated by and
in accordance with the Underwriting Agreement;
(p) the application by Vereniging AEGON of the proceeds of the sale of the
Shares as contemplated by the Transaction Documents will have no, or
only a marginal, effect on the earnings per common share of AEGON N.V.
Based upon and subject to the foregoing and subject to the assumptions and
qualifications set forth herein and to any matters, documents or events not
disclosed to us, we express the following opinions:
Corporate Power
1. Vereniging AEGON has the corporate power to enter into the Transaction
Documents and to perform its obligations thereunder.
Corporate Action
2. Vereniging AEGON has taken all necessary corporate action in connection
with the entering into the Transaction Documents, required by its
Articles of Association or Netherlands Law.
D-4
Due Execution
3. Vereniging AEGON has validly signed the Transaction Documents.
Enforceability
4. The obligations of Vereniging AEGON under the Transaction Documents are
enforceable in accordance with their terms against Vereniging AEGON in
the Netherlands.
No Violation of Netherlands Law
5. Vereniging AEGON does not violate any provision of its Articles of
Association or Netherlands Law by entering into the Transaction
Documents or by performing its obligations thereunder.
Registered Shares
6. According to the Shareholders' Register and the Secretary Certificate
(i) the Shares in registered form, immediately before the sale, transfer
and delivery thereof pursuant to the Transaction Documents, were
registered in the name of Vereniging AEGON and were (a) free of any
rights of pledge (pandrecht) and rights of usufruct (vruchtgebruik) and
(b) had not been attached (beslagen) and (ii) Vereniging AEGON has valid
title to such Shares and the legal right and power to sell, transfer and
deliver such Shares; and assuming (w) the execution of the Transaction
Documents by the parties thereto, (x) full payment for the Shares having
been made in accordance with the Transaction Documents, (y) the
execution of a private deed of transfer by and between Vereniging AEGON
as transferor, the relevant Underwriters as transferees and AEGON N.V.
for acknowledgement and (z) the transfer of the Shares having been
recorded in the shareholders register of AEGON N.V., such Underwriters
will have acquired valid title and full ownership to such Shares free
and clear of any rights of pledge (pandrecht), rights of usufruct
(vruchtgebruik) or attachments (beslagen). [NB check final number of
registered Shares in the Transaction]
Bearer Shares
7. According to the ABN AMRO Certificate (i) Vereniging AEGON,
immediately before the sale, transfer and delivery pursuant to the
Transaction Documents of the Shares in bearer form that are within the
Necigef-system, had a proportional co-ownership within the meaning of
the WGE Act with respect to such Shares and such Shares were (a) free
of any rights of pledge (pandrecht) and rights of usufruct
(vruchtgebruik) and (b) had not been attached (beslagen) and (ii)
Vereniging AEGON has valid title to such Shares and the legal right
and power to sell, transfer and deliver such Shares; and assuming (x)
the execution of the Transaction
D-5
Documents by the parties thereto, (y) full payment for the Shares having
been made in accordance with the Transaction Documents and (z)
Vereniging AEGON's securities account with ABN AMRO Bank having been
debited and the relevant Underwriters' account(s) with the relevant
Admitted Institution(s) having been credited within the meaning of the
WGE Act with such Underwriters' respective entitlements to Vereniging
AEGON's proportional co-ownership with respect to such Shares, such
Underwriters will have acquired valid title and full ownership to such
Shares free and clear of any rights of pledge (pandrecht), rights of
usufruct (vruchtgebruik) or attachments (beslagen). [NB check final
number of bearer shares in the Transaction]
No Authorizations, Consents and Approvals
8. No authorisations, consents, approvals, licenses or orders from or
notices to or filing with any regulatory or other authority or
governmental body of the Netherlands are required in respect of entering
into the Transaction Documents or the performance by Vereniging AEGON of
its obligations thereunder, except for publication and/or notice
requirements, to the extent applicable, pursuant to the Act on
Disclosure of Holdings in Listed Companies 1996 (Wet melding zeggenschap
in ter beurze genoteerde vennootschappen 1996), as amended, and/or the
Act on the Supervision of Securities Trade 1995 (Wet toezicht
effectenverkeer 1995), as amended; provided that non-compliance by
Vereniging AEGON with these publication and/or notice requirements does
in itself not adversely affect the validity or enforceability of the
Transaction Documents or the performance by Vereniging AEGON of its
obligations thereunder.
The opinions expressed above are subject to the following qualifications:
(A) The information contained in the Extract or obtained from the Bankruptcy
Clerk's Office cannot be considered conclusive evidence (dwingend
bewijs).
(B) As Netherlands lawyers we are not qualified or able to assess the true
meaning and purport under applicable law, if other than Netherlands Law,
of the terms of the Underwriting Agreement and the obligations
thereunder of the parties thereto and we have made no investigation of
such meaning and purport. Our review of the Underwriting Agreement and
of any other documents subject or expressed to be subject to any law
other than Netherlands Law has therefore been limited to the terms of
such documents as they appear to us on the face thereof and only in
respect of any involvement of Mandatory Rules of Netherlands Law or
Netherlands Public Policy.
D-6
(C) Pursuant to Article 2:7 NCC, any transaction entered into by a legal
entity may be nullified if the objects of such entity were transgressed
thereby and the other party to the transaction knew or should have known
this without independent investigation (wist of zonder eigen onderzoek
moest weten); only the legal entity itself may invoke this ground for
nullification. The Netherlands Supreme Court has ruled that in
determining whether the objects of a legal entity are transgressed, not
only the description of such objects in the articles of association is
decisive, but all (relevant) circumstances must be taken into account,
in particular whether the interest of the legal entity is served by the
transaction. The authoritative legal writers are divided about the
interpretation of this ruling. In particular they are divided about the
question whether a transaction which falls within the scope of the
description of the objects in the articles of association of a legal
entity, but is (clearly) against its interest, must be held to
transgress the objects of such entity. Most authoritative legal writers
agree that acts of a legal entity which are (a) within the objects
clause as contained in the respective Articles of Association of
association of such legal entity and (b) in the actual interest of such
legal entity in the sense that such acts are conducive to the
realization of the objects of such legal entity as laid down in its
articles of association, do not transgress the objects of such legal
entity and therefore are not subject to nullification pursuant to
Article 2:7 NCC. On the face of the Transaction Documents, and having
regard at the objects of Vereniging AEGON as stated in article 2 of the
Articles of Association, we have no reason to believe that entering into
the Transaction Documents by Vereniging AEGON would be a violation of
the objects clause as contained in the Articles of Association, and
therefore be considered ultra vires.
(D) The term "enforceable in accordance with their terms" as used in the
opinion expressed in paragraph 4 means that if any party to the
Transaction Documents brings an action (een rechtsvordering instellen)
before a competent Netherlands Court seeking enforcement of the
Transaction Documents, such court will provide some remedy subject to
the terms of the Transaction Documents, the law governing the
Transaction Documents, the provisions of the NCCP and other applicable
law.
(E) The enforceability of any of the obligations of Vereniging AEGON under
the Transaction Documents against Vereniging AEGON in the Netherlands,
without regard to the applicable law, may be limited or affected by:
D-7
(a) any applicable bankruptcy, suspension of payments or any other
insolvency proceeding listed in Annex A to the Insolvency
Regulation;
(b) the provisions of fraudulent preference and conveyance (Actio
Pauliana) and similar rights available to creditors in other
jurisdictions;
(c) tort (onrechtmatige daad); and
(d) rules of reasonableness and fairness (redelijkheid en
billijkheid), force majeure (overmacht), imprevision
(onvoorziene omstandigheden), set-off (verrekening) and other
defences afforded by Dutch law to obligors generally.
(F) We do not render any opinion on the recognition and enforceability in
the Netherlands of any security right or right in rem
(goederenrechtelijke (zekerheids-)rechten) purported or intended to be
created pursuant to any Transaction Document or with respect to any
authorisation, consent, approval, license, order, notice or filing
necessary to ensure the validity or enforceability of any security right
or right in rem.
(G) Pursuant to Article 6 CSSA, an enterprise or institution established in
the Netherlands may not carry on the business of a credit institution
(kredietinstelling), that is the business of receiving funds repayable
and to grant credits or investments for its own account, without a
license from the NCB, unless such enterprise or institution complies
with the requirements set out in the Decree of the Minister of Finance
dated 26 June 2002 issued pursuant to, inter alia, Article 6, paragraph
2 CSSA.
(H) Payments exceeding EUR 50,000 by (or to) Vereniging AEGON to (or from)
non-residents of the Netherlands must be reported by Vereniging AEGON to
the NCB in accordance with the External Financial Relations Act 1994
(Wet financiele betrekkingen buitenland 1994) and the regulations
promulgated thereunder. Non-compliance by Vereniging AEGON with these
reporting requirements does, however, in itself not adversely affect the
enforceability of the obligations of Vereniging AEGON under the
Transaction Documents in the Netherlands.
(I) Registration in or deregistration from a shareholders' register is not a
constitutive requirement under Netherlands Law for (a) the
authorisation, creation, issue, transfer, cancellation or redemption of
registered shares in the capital of a Dutch company or (b) the creation
of any lien, claim or other encumbrance, including, without limitation,
a right of pledge (pandrecht), a right of usufruct (vruchtgebruik) or an
attachment (beslag) with respect to registered shares in the capital of
a Dutch company;
D-8
consequently, there is no way of verifying conclusively whether the
information contained in a shareholders' register with respect to a
Dutch company is complete and correct.
This opinion letter is strictly limited to the matters stated herein and may not
be read as extending by implication to any matters not specifically referred to
herein. Nothing in this opinion letter should be taken as expressing an opinion
in respect of any representations or warranties, or other information, contained
in the Transaction Documents or any other document examined in connection with
this opinion except as expressly confirmed herein.
The limitation of liability clause as contained in the general conditions of
NautaDutilh N.V. is not applicable to the contents of this opinion letter.
This opinion letter and its contents speak as of the date hereof. It is
addressed solely to you. It may not be relied upon in any manner by any person
other than you and, without our prior written consent, its contents may not be
quoted, otherwise included, summarized or referred to in any publication or
document or disclosed to any party, in whole or in part, for any purpose
whatsoever.
Yours truly,
NautaDutilh N.V.
represented by:
Robert P. ten Have
D-9
EXHIBIT A
LIST OF
DEFINITIONS
"ABN AMRO Bank" ABN AMRO Bank N.V., an Admitted Institution
"ABN AMRO Certificate" the statement issued by ABN AMRO Bank on
[23] September 2002 relating to the Shares
in bearer form
"Admitted Institution" an admitted institution within the meaning
of the WGE Act
"AEGON Articles of Association" the articles of association of AEGON N.V.
as last amended on 30 May 2000
"Articles of Association" the deed of incorporation (akte van
oprichting) of Vereniging AEGON dated 23
November 1978, containing the articles of
association (statuten), as amended by the
deed of amendment to such articles of
association dated 28 December 1999
"Bankruptcy Clerk's Office" the The Hague District Court Bankruptcy
Clerk's office (faillissementsgriffie van
de rechtbank te 's-Gravenhage)
"Certificates" the ABN AMRO Certificate and the Secretary
Certificate
"Closing Date" the Closing Date as defined in the
Underwriting Agreement
"Commercial Register" the The Hague Chamber of Commerce Commercial
Register (handelsregister gehouden door de
Kamer van Koophandel en Fabrieken te
's-Gravenhage)
"Corporate Documents" the documents listed in Exhibit C hereto
D-10
"CSSA" the Credit System Supervision Act 1992 (Wet
toezicht kredietwezen 1992)
"Exhibit" an exhibit to this opinion letter
"Extract" Extract from the The Hague Commercial
Register, dated [_] September 2002, relating
to Vereniging AEGON
"Global Shares" the common shares of AEGON N.V. defined as
the Global Shares in the Underwriting
Agreement
"Insolvency Regulation" the 29 May 2000 Council Regulation (EC) No
1346/2000 on Insolvency Proceedings
"Mandatory Rules" those rules of law under the law any country
that has a close connection with the
situation adjudicated, which rules under the
law of such country, must be applied
whatever the law applicable to any agreement
(voorrangsregels)
"NCB" the Netherlands Central Bank (De
Nederlandsche Bank N.V.)
"NCC" the Netherlands Civil Code
"NCCP" the Netherlands Code of Civil Procedure
"the Netherlands" the Kingdom of the Netherlands, excluding
Aruba and the Netherlands Antilles
"Netherlands Courts" the courts of the Netherlands
"Netherlands Law" the laws with general applicability of the
Netherlands, and, in so far as they are
directly applicable in the Netherlands, of
the European Community, as they stand at the
date hereof and as they are presently
interpreted under published authoritative
case law of the Netherlands Courts and the
European Court of Justice, as the case may
be
D-11
"Netherlands Public Policy" those rules and principles of Netherlands
Law, which are considered as public policy
of the Netherlands (regels van openbare
orde)
"Netherlands Supreme Court" the Supreme Court of the Netherlands (Hoge
Raad der Nederlanden)
"Recapitalisation Agreement" the recapitalisation agreement dated as of
[17] September 2002 among Vereniging AEGON
and AEGON N.V.
"Regulation S Shares" the common shares of AEGON N.V. defined as
the Regulation S Shares in the Underwriting
Agreement
"Resolutions" the resolutions of the (extraordinary)
general meetings of members of Vereniging
AEGON and of the board of Vereniging AEGON
as set forth in Exhibit C
"Secretary Certificate" the certificate of the Secretary of
Vereniging AEGON dated [23] September 2002
"Shareholders' Register" a faxed copy of the entry into the
shareholders' register of AEGON N.V.
relating to Vereniging AEGON, as attached to
the Secretary Certificate
"Shares" the Regulation S Shares and the Global
Shares
"Transaction Documents" the documents listed in Exhibit B hereto
"Underwriters" the Underwriters as defined in the
Underwriting Agreement
"Underwriting Agreement" the underwriting agreement, dated as of [17]
September 2002 among (a) Vereniging AEGON,
(b) AEGON N.V., (c) ABN AMRO Rothschild, (d)
Morgan Stanley & Co. International Limited
and (e) the several Global Underwriters and
Regulation S Underwriters (as defined
therein)
D-12
"WGE Act" the Netherlands Securities Giro
Administration and Transfer Act (Wet giraal
effectenverkeer)
D-13
EXHIBIT B
LIST OF
TRANSACTION DOCUMENTS
1. [a fax copy of the signed] Recapitalisation Agreement;
2. [a fax copy of the signed] Underwriting Agreement;
3. [a fax copy of the signed] ABN AMRO Certificate.
D-14
EXHIBIT C
LIST OF
CORPORATE DOCUMENTS
1. a [fax] copy of the deed of incorporation of Vereniging AEGON dated 23
November 1978;
2. an [original certified] copy of the articles of association of Vereniging
AEGON dated 28 December 1999;
3. an [original certified] copy of the Extract;
4. [a fax copy of the signed] Secretary Certificate, attaching inter alia the
Shareholders Register;
5. a [fax] copy of the following Resolutions:
(a) the minutes of the annual general meeting of members (Algemene
Ledenvergadering) of Vereniging AEGON dated 18 April 2002;
(b) the minutes of the extraordinary general meeting of members
(buitengewone Algemene Ledenvergadering) of Vereniging AEGON dated 3
August 2002;
(c) Convocation and agenda for the extraordinary general meeting of
members (buitengewone Algemene Ledenvergadering) of Vereniging AEGON
dated 26 August 2002;
(d) [the draft minutes of the extraordinary general meeting of members
(buitengewone Algemene Ledenvergadering) of Vereniging AEGON dated 26
August 2002;]
(e) the resolution of all members (leden) of Vereniging AEGON, as meant in
article 15.8 of the Articles of Association, relating to and approving
the transactions contemplated by the Recapitalisation Agreement and
granting a power of attorney to the board with respect to the further
decision making with respect thereto and implementation in respect
thereof (with attached thereto a memorandum of Mr J.B.M. Streppel
dated 23 August 2002);
(f) a certificate of the secretary to the board of AEGON N.V. dated 3
September 2002, certifying the resolution adopted by the general
meeting of shareholders of AEGON N.V. on 18 April 2002 to authorise
the board of AEGON N.V. re repurchase of shares;
(g) the resolution of the board of Vereniging AEGON adopted in its meeting
of 12 September 2002 including an additional statement thereto;
D-15
6. an [original certified] copy of the articles of association of AEGON N.V.
dated 30 May 2000.
D-16
EXHIBIT E
September _, 2002
ABN AMRO Rothschild
Morgan Stanley & Co. International Limited
As representatives of the several Global Underwriters referred to below (the
"Global Representatives") and as representatives of the several Regulation S
Underwriters referred to below (the "Regulation S Representatives", and
collectively with the Global Representatives, the "Representatives")
C/o_______________________________
Ladies and Gentlemen:
We have acted as special counsel to the Global Underwriters (the "Global
Underwriters") and the Regulation S Underwriters (the "Regulation S
Underwriters" and, collectively with the Global Underwriters, the
"Underwriters") named in Schedule I and Schedule II, respectively, to the
Underwriting Agreement dated September _, 2002 (the "Underwriting Agreement")
among Aegon N.V., a corporation organized under the laws of The Netherlands (the
"Company"), and Vereniging Aegon, a Dutch Association (the "Association"), and
the Underwriters. Pursuant to the Underwriting Agreement, the Company proposes
to sell, and you severally propose to purchase, __ Common Shares (par value
(euro)0,12 per Common Share) of the Company (the "Global Shares"), and the
Association proposes to sell _ Common Shares of the Company, par value
(euro)0,12 (the "Regulation S Shares", and, collectively with the Global Shares,
the "Shares"). This opinion is delivered pursuant to Article 6(h) of the
Underwriting Agreement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the
purposes of rendering this opinion.
We have (i) participated in the preparation of the prospectus supplement
of the Company dated September _, 2002 in the form filed with the United States
Securities and Exchange Commission (the "Commission") on September _, 2002
pursuant to Rule 424 under the U.S. Securities Act of 1933 (the "Securities
Act") (the "Prospectus Supplement") (other than the documents incorporated by
reference therein (the "Incorporated Documents")) relating to the registration
of the offering of Global Shares (in the form of bearer shares or New York
Shares)
E-1
and (ii) reviewed the registration statement of the Company on Form F-3
(File No. 333-71438), filed with the Commission on October 11, 2001 and declared
effective on October 22, 2001, and the prospectus dated October 22, 2001 (the
"Basic Prospectus"), filed with the Commission as part of such registration
statement. The registration statement including exhibits thereto, as amended to
the date of the Underwriting Agreement is hereinafter referred to as the
"Registration Statement", and the Basic Prospectus with the Prospectus
Supplement, (including the Incorporated Documents and the form of Prospectus
used to confirm sales of the Shares in Canada) in their respective form first
used to confirm sales of shares, are hereinafter referred to as the
"Prospectus". We have also participated in the preparation of the offering
circular relating to the sale of the Regulation S Shares outside the United
States in reliance on Regulation S of the Securities Act (the "Offering
Circular").
Capitalized terms used but not otherwise defined herein are used as
defined in the Underwriting Agreement.
Based upon the foregoing, we are of the opinion that:
(i) It is not necessary in connection with the offer, sale and delivery
of the Regulation S Shares to the Regulation S Underwriters pursuant to the
Underwriting Agreement or in connection with the initial resale of the
Regulation S Shares by the Regulation S Underwriters in the manner contemplated
by the Underwriting Agreement to register the Regulation S Shares under the
Securities Act (it being understood that we express no opinion with respect to
any other offer or resale of the Regulation S Shares).
(ii) Assuming that the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and the Association insofar as The
Netherlands law is concerned, the Underwriting Agreement has been duly executed
and delivered by the Company and the Association.
(iii) Upon payment for the New York Shares to be sold by the Company
pursuant to the Underwriting Agreement, delivery of such New York Shares, as
directed by the Global Underwriters, to Cede or such other nominee as may be
designated by the Depositary Trust Company ("DTC"), registration of such New
York Shares in the name of Cede or such other nominee and the crediting of such
New York Shares on the books of DTC to securities accounts of the Global
Underwriters (assuming that neither DTC nor any such Global Underwriter has
notice of any adverse claim within the meaning of Section 8-105 of the New York
Uniform Commercial Code (the "UCC") to such New York Shares), (A) DTC shall be a
"protected purchaser" of such New York Shares within the meaning of Section
8-303 of the UCC, (B) under section 8-501 of the UCC, the Underwriters will
acquire a valid security entitlement in respect of such New York Shares and (C)
no action based on any "adverse claim" (within the meaning of Section 8-102 of
the UCC) to such New York Shares may be asserted against the Global Underwriters
with respect to such security entitlement; in giving this opinion, we
E-2
assume that when such payment, delivery and crediting occur, (x) such New York
Shares will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company's New York share registry in
accordance with its Articles of Association and applicable law, (y) DTC will be
registered as a "clearing corporation" within the meaning of Section 8-102 of
the UCC and (z) appropriate entries to the accounts of the several Global
Underwriters on the records of DTC will have been made pursuant to the UCC.
We have considered the statements relating to legal matters included in
each of the Prospectus and the Offering Circular under the caption "Plan of
Distribution". In our opinion, such statements fairly summarize in all material
respects such matters.
We have not ourselves checked the accuracy, completeness or fairness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement, the Prospectus or the Offering Circular. We have
generally reviewed and discussed with your representatives, and with certain
officers and employees of, and counsel and independent public accountants for,
the Company and representatives of the Association the information furnished,
whether or not subject to our check and verification. On the basis of such
consideration, review and discussion, but without independent check or
verification except as stated, nothing has come to our attention to cause us to
believe that (i) the Registration Statement and the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data included therein, as to which we express no belief) do not comply as to
form in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder; (ii) any part
of the Registration Statement and the Basic Prospectus included therein (except
as aforesaid) at the time such part became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
(iii) each of the Prospectus and the Offering Circular (except for the financial
statements and financial schedules and other financial and statistical data
included therein, as to which we express no belief) as of their respective dates
and as of the date hereof contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
The opinion set forth in paragraph (i) assumes the accuracy of, and
compliance with, the representations and warranties of the Company in Sections
1(o) and 1(p) of the Underwriting Agreement, the representations and warranties
of the Association in Sections 2(f) and 2(g) of the Underwriting Agreement and
the representations and warranties of the Regulation S Underwriters, in Sections
8(a) and 8(b) of the Underwriting Agreement.
With respect to all matters of The Netherlands law, you have been
delivered, and we understand that you are relying upon, the opinions of Allen &
E-3
Overy, outside Dutch counsel for the Company, Nauta Dutilh, Dutch counsel for
the Association, and Erik Lagendjik, general counsel for the Company, each of
which has been delivered pursuant to Article 6 of the Underwriting Agreement. We
have examined such opinions, together with the opinion and disclosure letter
delivered to you by Allen & Overy, outside U.S. counsel for the Company,
pursuant to Section 6(f) of the Underwriting Agreement, and we believe that such
opinions are substantially responsive to the requirements thereof.
In addition, we have also examined letters from Ernst & Young,
independent public accountants for the Company, dated September o, 2002 and the
date hereof and delivered to you pursuant to Section 6(i) of the Underwriting
Agreement relating to the financial statements and certain financial information
contained in the Registration Statement, the Prospectuses and the Offering
Circular. We participated in discussions with your representatives and with
representatives of Ernst & Young relating to the forms of each such letter, and
we believe that they are substantially in the forms agreed to.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
Davis Polk & Wardwell
E-4