<PAGE>
As filed with the Securities and Exchange Commission on March 22, 2000
Registration No. 333-30834
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
FORM F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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COMPLETEL EUROPE N.V.
(Exact name of Registrant as specified in its charter)
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Amsterdam, The Netherlands 4813 98-0202823
(State or jurisdiction
(Primary Standard Industrial (I.R.S. Employer
of incorporation orClassification Code Number) Identification No.)
organization)
Kruisweg 609
2132 NA Hoofddorp, The Netherlands
(31) 20 666 1701
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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James E. Dovey
6300 S. Syracuse Way, Suite 355
Englewood, Colorado 80111
(303) 741-4788
Fax: (303) 741-4823
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies of correspondence to:
W. Dean Salter, Esq. and Jonathan A. Schaffzin, Esq.
Linda K. Wackwitz, Esq. Cahill Gordon & Reindel
Holme Roberts & Owen LLP 80 Pine Street
1700 Lincoln, Suite 4100 New York, New York 10005
Denver, Colorado 80203 (212) 701-3000
(303) 861-7000 Fax (212) 269-5420
Fax (303) 866-0200
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
Calculation of Registration Fee
<TABLE>
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<CAPTION>
Amount Proposed Proposed Amount of
Title of each class of to be maximum offering maximum aggregate registration
securities to be registered registered price per share(1) offering price(2) fee(3)
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<S> <C> <C> <C> <C>
Ordinary shares (Euro).10
nominal value per share... 31,280,000 shares $16.88 $528,006,400 $139,394
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933.
(2) Includes (i) shares that the Underwriters may purchase to cover
overallotments, if any, and (ii) shares that are to be offered and sold to
persons outside the U.S. but that may be resold by persons from time to
time in the U.S. during the distribution.
(3) $105,600 of this fee has already been paid. $33,794 is being paid
simultaneously with the filing hereof.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses payable by the
Registrant in connection with the sale and distribution of the securities
offered hereby, other than underwriting discounts and commissions. All of the
amounts shown are estimated except the Securities and Exchange Commission
registration fee, the National Association of Securities Dealers, Inc. filing
fee and the Nasdaq National Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... 139,394
National Association of Securities Dealers, Inc. filing fee....... 30,500
Nasdaq National Market listing fee................................ 95,000
Printing expenses................................................. 1,000,000
Legal fees and expenses........................................... 1,800,000
Accounting fees and expenses...................................... 500,000
Blue Sky filing fees and expenses................................. 20,000*
Miscellaneous expenses............................................ 25,000*
---------
Total........................................................... 3,609,894*
=========
</TABLE>
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* Estimated
Item 14. Indemnification of Officers and Directors
The Registrant's Articles of Association include provisions to indemnify the
members of the Supervisory Board and the Board of Management against any
liabilities resulting from proceedings against such member in connection with
such member's actions as a member of the Supervisory Board or the Board of
Management, as the case may be, if such member acted in good faith and in a
manner he believed to be in the Registrant's best interests.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The form of Underwriting Agreement filed as Exhibit 1.1 to this Registration
Statement provides for indemnification by the underwriters of the Registrant
and its directors and officers, and by the Registrant of the underwriters, for
certain liabilities arising under the Securities Act.
Item 15. Recent Sales of Unregistered Securities
The following information relates to securities issued or sold by the
Registrant since its inception. During that time, the Registrant has issued
unregistered securities in the transactions described below. Share amounts have
not been adjusted to reflect the 5-for-1 stock split that we recently
completed.
On December 14, 1998, in connection with the formation of CompleTel Europe,
it issued 4,888,964 ordinary shares to CompleTel LLC for cash consideration of
approximately $54,000.
In February 1999, in connection with equity investments in CompleTel LLC and
a restructuring transaction, CompleTel Europe issued 14,707,465 ordinary shares
to CompleTel (N.A.) N.V. for all of the outstanding capital stock of CompleTel
Holdings I B.V., valued at approximately $58.0 million.
The above described transactions were exempt from registration under the
Securities Act pursuant to Section 4(2) of the Securities Act, as transactions
not involving a public offering.
On February 16, 1999, CompleTel Europe and its indirect parent, CompleTel
Holdings LLC, completed a private offering of 147,500 dollar denominated units.
Each unit consisted of one $1,000 principal amount of
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<PAGE>
14% senior discount notes of CompleTel Europe due 2009 and 10 non-voting class
B membership interests of CompleTel Holdings, which indirectly represented 10
shares of CompleTel Europe. The Company received approximately $72.6 million of
net proceeds, after deducting underwriting discounts and commissions of
approximately $2.4 million from the issuance of the units. The units were
issued to (i) "qualified institutional buyers" (as defined in Rule 144A of the
Securities Act), (ii) other institutional "accredited investors" (as defined in
Rule 501(a) of the Securities Act), and (iii) outside the U.S. in compliance
with Regulation S under the Securities Act, and therefore, the issuance of the
units was exempt from registration under the Securities Act. Salomon Smith
Barney, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley &
Co. Incorporated, TD Securities and Paribas Corporation were the initial
purchasers of the units. The units were separated into the Class B interests
and the notes on November 12, 1999 when the exchange of the notes for the
Company's series B notes was completed pursuant to a registration statement
filed with the Securities and Exchange Commission.
In January 2000, in connection with equity investments in CompleTel LLC,
CompleTel Europe issued 4,155,183 ordinary shares to CompleTel (N.A.) N.V. for
cash consideration of approximately $2.1 million and all of the outstanding
class B shares of CompleTel Holdings I B.V., valued at approximately $42
million. These transactions were exempt from registration under the Securities
Act pursuant to Section 4(2) of the Securities Act, as transactions not
involving a public offering.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 Form of Underwriting Agreement
3.1(2) Articles of Association of CompleTel Europe N.V.
3.2 Form of Amended Articles of Association of CompleTel Europe N.V.
5.1(6) Form of opinion of Stibbe Simont Monahan Duhot regarding legality
of securities being registered
8.1(6) Form of opinion of Holme Roberts & Owen LLP regarding certain U.S.
federal income tax matters
8.2(6) Form of opinion of Stibbe Simont Monahan Duhot regarding certain
Netherlands tax matters
10.1(4) (Euro)265 Million Senior Secured Credit Facility dated January 6,
2000, among Goldman Sachs International and Paribas Corporation,
as co-arrangers, and other banks
10.2(4) Purchase Agreement dated August 4, 1999, between CompleTel GmbH
and Siemens AG.
10.3(1) Supply Agreement dated January 8, 1999, between CompleTel SAS and
Matra Nortel Communications
10.4(1) Arrete dated November 17, 1988 authorizing CompleTel SARL to set
up and operate a telecommunications network open to the public and
to supply the public with the telephone service, as published
December 13, 1998
10.5(1) License dated January 11, 1999 granted by the Secretary of State
for Trade and Industry to CompleTel UK Limited under Section 7 of
the Telecommunications Act 1984
10.6(2) German License Certificate Class 3 for the Operation and
Performance of Public Telecommunications German license
certificate Class 3 for the Operation and Performance of Public
Telecommunications Services by the Licensee or Others dated March
8, 1999
10.7(2) German License Certificate Class 4 for the Operations of Voice
Telephone Service on the Basis of a Self-Operated
Telecommunications Network dated March 8, 1999
10.8(3) Extension of Class 3 German License
10.9(3) Extension of Class 4 German License
10.10(4) CompleTel Europe N.V. 2000 Stock Option Plan
10.11(1) Employment Agreement by and between CableTel Management, Inc. and
William H. Pearson, dated as of May 18, 1998
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
10.12(1) Employment Agreement by and between CableTel Management, Inc. and
Richard N. Clevenger, dated as of May 18, 1998
10.13(1) Employment Agreement by and between CableTel Management, Inc. and
David Lacey dated as of December 16, 1998
10.14(1) Employment Agreement by and between CableTel Management, Inc. and
James E. Dovey dated as of May 18, 1999
10.15(1) Amended and Restated CompleTel LLC Guaranty Agreement, dated as of
July 14, 1999 by CompleTel LLC in favor of the noteholders
10.16(1) Equity Registration Rights Agreement dated as of February 16, 1999
among CompleTel (N.A.) N.V., CompleTel Europe N.V., the
Shareholders named therein, the initial purchasers and U.S. Bank
Trust National Association, as Transfer Agent
10.17 First Amendment to CompleTel Europe N.V. 2000 Stock Option Plan
10.18(6) Second Amended and Restated Registration Agreement dated as of
November 23, 1999 by and among CompleTel LLC and the Holders named
therein
10.19 Form of First Supplement to Second Amended and Restated
Registration Agreement dated as of November 23, 1999 by and among
CompleTel LLC and the Holders named therein
21.1(5) Subsidiaries of CompleTel Europe N.V.
23.1(6) Consent of Arthur Andersen LLP
23.2(6) Consent of Barbier Frinault & Associes Arthur Andersen
23.3(6) Consent of Stibbe Simont Monahan Duhot (included as part of
Exhibit 5.1)
23.4(6) Consent of Holme Roberts & Owen LLP (included as part of Exhibit
8.1)
23.5(6) Consent of Stibbe Simont Monahan Duhot (included as part of
Exhibit 8.2)
23.6 Consent of Persons about to become Directors of CompleTel Europe
N.V.
24.1(5) Powers of Attorney
27.1(6) Financial Data Schedule
</TABLE>
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(1) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-4, file number 333-82305, filed with the Securities and Exchange
Commission on July 2, 1999 and incorporated herein by reference.
(2) Previously filed as an exhibit to Amendment No. 1 to the Registrant's
Registration Statement on Form S-4, file number 333-82305, filed with the
Securities and Exchange Commission on August 27, 1999 and incorporated
herein by reference.
(3) Previously filed as an exhibit to Amendment No. 2 to the Registrant's
Registration Statement on Form S-4, file number 333-82305 filed with the
Securities and Exchange Commission on September 14, 1999 and incorporated
herein by reference.
(4) Previously filed as an exhibit to the Post-Effective Amendment No. 1 to the
Registrant's Registration Statement on Form S-4, file number 333-82305,
filed with the Securities and Exchange Commission on January 31, 2000 and
incorporated herein by reference.
(5) Previously filed as an exhibit to the Registrant's Registration Statement
on Form F-1, file number 333-30834, filed with the Securities and Exchange
Commission on February 22, 2000.
(6) Previously filed as an exhibit to Amendment No. 1 to the Registrant's
Registration Statement on Form F-1, file number 333-30834, filed with the
Securities and Exchange Commission on March 6, 2000.
(b) Financial Statement Schedules:
Schedules have been omitted because the information required to be shown in
the schedules is not applicable or is included elsewhere in our financial
statements or the notes thereto.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the underwriter
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of its articles of
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<PAGE>
association or Dutch law or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-1 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Denver, Colorado, on the 22nd day of March, 2000.
COMPLETEL EUROPE N.V.
/s/ James E. Dovey
By: _________________________________
James E. Dovey
Managing Director
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James E. Dovey Managing Director March 22, 2000
______________________________________ (Principal Executive
James E. Dovey Officer)
* Managing Director March 22, 2000
______________________________________ (Principal Executive
Lawrence F. DeGeorge Officer)
* Managing Director March 22, 2000
______________________________________ (Principal Executive
Paul J. Finnegan Officer)
* Managing Director March 22, 2000
______________________________________ (Principal Executive
ING Trust (Netherlands) B.V. Officer)
By: P.C.E. van Witteveen
General Proxy Holder
and
P. Maletic
Special Proxy Holder
* Principal Financial March 22, 2000
______________________________________ Officer
David E. Lacey
* Principal Accounting March 22, 2000
______________________________________ Officer
John M. Hugo
/s/ James E. Dovey Authorized Representative March 22, 2000
______________________________________ in the United States
James E. Dovey
/s/ James E. Dovey Managing Director March 22, 2000
______________________________________
*James E. Dovey
Attorney-in-fact
</TABLE>
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<PAGE>
Exhibit 1.1
CompleTel Europe N.V.
27,200,000 Ordinary Shares
Underwriting Agreement
New York, New York
March , 2000
Salomon Brothers International Limited
Goldman Sachs International
Merrill Lynch International
Paribas
As Representatives of the several Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
U.S.A.
Ladies and Gentlemen:
CompleTel Europe N.V., a limited liability company (naamloze
vennootschap, or N.V.) incorporated under Dutch law, with its corporate seat at
Amsterdam, The Netherlands (the "Company"), proposes to sell to the several
Underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, ordinary shares (the "Ordinary
Shares"), [_]0.10 nominal value per Ordinary Share, of the Company (said
Ordinary Shares to be issued and sold by the Company being hereinafter called
the "Underwritten Shares"). The Company also proposes to grant to the
Underwriters an option to purchase up to 4,080,000 additional Ordinary Shares to
cover overallotments (the "Option Shares" and together with the Underwritten
Shares, the "Shares").
The offering of Shares by the Underwriters is expected to comprise an
offering of Shares to institutional investors and other purchasers under
applicable exemptions outside the United States and to retail investors in
France in reliance on Regulation S under the Act and an offering through selling
agents designated by the Underwriters of Shares in the United States (the
"Global Offering").
As part of the Global Offering contemplated by this Underwriting
Agreement, the Underwriters have agreed to reserve up to 2,000,000 Shares out of
the Global Offering for sale to employees, officers or directors of, or persons
otherwise associated with and identified
<PAGE>
by, the Company and its Subsidiaries (collectively, "Participants"), as set
forth in the Prospectuses under the heading "Underwriting" (the "Directed Share
Program"). The Shares to be sold by the Underwriters pursuant to the Directed
Share Program (the "Directed Shares") will be sold by them at the initial public
offering price. Any Directed Shares not orally confirmed for purchase by any
Participants by the end of the Business Day on which the Underwriting Agreement
is executed will be offered for sale by the Underwriters as set forth in the
Prospectuses and the Agreement Among Underwriters.
Madison Dearborn Partners and LPL Telecom, Europe, L.P. have indicated
their intent to purchase Ordinary Shares in the offering for an aggregate
purchase price of $34 million.
The use of the neuter in this Underwriting Agreement shall include the
feminine and masculine wherever appropriate.
Certain terms used in this Underwriting Agreement are defined in
Section 21 hereof.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-30834) on Form F-1, including the related U.S.
Preliminary Prospectus, for the registration under the Act of the offering
and sale of the Shares. The Company has filed one or more amendments
thereto, including the related U.S. Preliminary Prospectus, which have
previously been furnished to you. The Company will next file with the
Commission either (1) prior to the Effective Date of the Registration
Statement, a further amendment to the Registration Statement (including the
form of U.S. Prospectus) or (2) after the Effective Date of the
Registration Statement, the U.S. Prospectus in accordance with Rules 430A
and 424(b). In the case of clause (2), the Company has included in the
Registration Statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Registration Statement and the U.S.
Prospectus with respect to the Shares and the offering thereof. As filed,
such amendment and form of final U.S. Prospectus, or such U.S. Prospectus,
as the case may be, shall contain all Rule 430A Information, together with
all other such required information, with respect to the underlying Shares
and the offering thereof, and, except to the extent the Representatives
shall agree to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other
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<PAGE>
changes (beyond that contained in the latest U.S. Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein.
It is understood that three forms of prospectuses are to be used in
connection with the Global Offering and sale of the Shares: a U.S.
Prospectus relating to the Shares which are to be offered and sold to
United States and Canadian persons, an International Prospectus relating to
the Shares which are to be offered and sold to persons other than United
States, Canadian or French persons, and a French Prospectus relating to the
Shares which are to be offered and sold to French persons. The U.S.
Prospectus and the International Prospectus are identical except for the
outside front cover page, page ii of the International Prospectus (which is
not included in the U.S. Prospectus) and the outside back cover page.
(b) On the Effective Date, the Registration Statement did or will,
and when the U.S. Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined in this Underwriting
Agreement) and on any date on which Option Shares are purchased, if such
date is not the Closing Date (a "settlement date"), the U.S. Prospectus
(and any supplements thereto) will comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and, on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), did not and will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectuses (or any supplement thereto), in
reliance upon and in conformity with information furnished herein or in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or
the Prospectuses (or any supplement thereto). It is understood that the
information that has been furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statement,
Preliminary Prospectuses or the Prospectuses is limited to (A) the names of
the Underwriters and their respective participation in the sale of the
Shares as set forth in the two charts under the heading "Underwriting" in
the Preliminary Prospectuses or Prospectuses, (B) the statements set forth
in the last paragraph on the front cover page of the Preliminary
Prospectuses or Prospectuses regarding delivery of the
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<PAGE>
Shares and (C) the statements set forth in the chart in paragraph one, the
last sentence of the second paragraph, the penultimate sentence of the
seventh paragraph, the last sentence of the eighth paragraph and the
statements set forth in the third, fifth, eleventh, twelfth and twenty-
first (which information has been furnished in writing on behalf of Paribas
only) paragraphs under the heading "Underwriting" in the Preliminary
Prospectuses or Prospectuses.
(c) The Company has filed a preliminary prospectus (the "French
Preliminary Prospectus") with the Commission des Operations de Bourse
("COB") established in accordance with the Ordinance of September 28, 1967
establishing the Commission des Operations de Bourse, as amended, and any
other applicable requirements of French law (the "French Securities Laws").
The French Preliminary Prospectus has been approved by the COB and the
Ordinary Shares have been approved for listing on the Premier Marche of the
Paris Bourse. Prior to the Closing Time, the Company will file a prospectus
(the "French Final Prospectus" and together with the French Preliminary
Prospectus, the "French Prospectuses") with the COB and will receive
approval therefor. The International Prospectus filed with the French
Preliminary Prospectus, and to be filed with the French Final Prospectus,
is and will be wholly incorporated and made a part of the French
Prospectuses through its filing therewith. To the extent that the French
Preliminary Prospectus summarizes information contained in the Registration
Statement, and to the extent that the French Final Prospectus will
summarize information contained in the Registration Statement, such
summaries fairly summarize and will fairly summarize the summarized
portions of the Registration Statement to which they relate. The French
Prospectuses do not contain any material information which is not contained
in the Registration Statement.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of the
jurisdiction in which it is incorporated with full corporate power to own
or lease, as the case may be, and to operate its properties and conduct its
business as described in the Prospectuses, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except where the
failure to be so qualified or be in good standing would not, individually
or in the aggregate, have a material adverse effect on the business,
condition (financial or otherwise), assets, earnings, results of
operations, business affairs, business prospects or properties of the
Company and the Subsidiaries, taken as a whole (a "Material Adverse
Effect").
(e) Except as described in the Prospectuses, all the outstanding
shares in the capital of each Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and all the
outstanding shares of capital stock of the
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<PAGE>
Subsidiaries are beneficially owned by the Company free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Shares being sold under this
Underwriting Agreement by the Company have been duly and validly
authorized, and, when issued and delivered to the Underwriters in
accordance with this Underwriting Agreement, will be validly issued, fully
paid and non-assessable. The certificates for the Shares comply with Dutch
law. The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive or other rights to subscribe for the Shares.
Except as disclosed in the Prospectuses, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding. The
Shares are freely transferable by the Company to or for the account of the
several Underwriters, their designees and the initial purchasers thereof,
and except as set forth in the Prospectuses there are no restrictions on
subsequent transfers of the Shares.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
articles of association described in the Prospectuses under the heading
"Description of Capital Stock" were adopted by the Company's shareholders
on March [ ], 2000 and are in full force and effect.
(h) The statements in the Prospectuses under the heading "Taxation"
fairly summarize the matters therein described.
(i) This Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery by the Underwriters) constitutes a
valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(j) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectuses, or to be filed as an exhibit thereto, which is not described
or filed as required; and the description of each such contract, franchise
or document in the Prospectuses is a fair description thereof in all
material respects; and each such franchise, contract or other document to
which the Company is a party, assuming due authorization, execution and
delivery thereof by all parties thereto, is enforceable against the Company
in accordance with
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<PAGE>
its terms and is in full force and effect and to the Company's best
knowledge, is a legal, valid and binding obligation of the other parties
thereto.
(k) No consent, approval, authorization, filing with or order of
any court or governmental or regulatory agency or body is required under
Dutch, French or U.S. federal law or the laws of any state or political
subdivision thereof in connection with the transactions contemplated in
this Underwriting Agreement, except (i) such as have been obtained or made
or, (ii) such as may be required under the blue sky or similar laws of any
jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters in the manner contemplated in this Underwriting
Agreement and the Prospectuses.
(l) Neither the issue and sale of the Shares, the consummation of
any other of the transactions contemplated in this Underwriting Agreement,
nor the fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the articles of association of the Company or
the constituent documents of any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement, permit, license, franchise or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries, of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of the
Subsidiaries or any of its or their properties, except, with respect to
clause (ii) or (iii) above, such as would not individually or in the
aggregate have (A) a material adverse effect on the performance of this
Underwriting Agreement or the consummation of any of the transactions
contemplated herein or (B) a Material Adverse Effect.
(m) 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 Prospectuses, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "1940 Act") or an
investment institution as defined in the Dutch Act on the supervision of
investment institutions (Wet toezicht beleggingsinstellingen).
(n) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement except for
such rights that have been validly waived.
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(o) The consolidated historical financial statements and schedules
of the Company and the Subsidiaries (including the related notes) included
in the Registration Statement and the Prospectuses present fairly in all
material respects the financial condition, results of operations, changes
in financial position and cash flows as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with United States generally
accepted accounting principles ("U.S. GAAP") applied on a consistent basis
throughout the periods indicated (except as otherwise noted therein). The
summary and selected financial data included in the Registration Statement
and the Prospectuses fairly present in all material respects, on the basis
stated in the Registration Statement and the Prospectuses, the information
included therein. The pro forma financial statements included in the
Prospectuses and the Registration Statement include assumptions that
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and the events described therein, the
related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma adjustments reflect proper application of those
adjustments to the historical financial statement amounts in the pro forma
financial statements included in the Prospectuses and the Registration
Statement. The pro forma financial statements included in the Prospectuses
and the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X under the Act
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements.
(p) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending or,
to the knowledge of the Company, threatened that could reasonably be
expected to have (i) a material adverse effect on the performance of this
Underwriting Agreement or the consummation of any of the transactions
contemplated herein or (ii) a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(q) Each of the Company and the Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted. Any real property and buildings held under lease by the Company
or any of the Subsidiaries are held under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere with
the use made or proposed to be made of such property and buildings by the
Company or any of the Subsidiaries, in each case except as described in or
contemplated in the Prospectuses.
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<PAGE>
(r) Neither the Company nor any of the Subsidiaries is in violation
or default of (i) any provision of its articles of association or other
constituent documents, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
the Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of the Subsidiaries or any of its or their properties,
except, with respect to clause (ii) or (iii) above, such as would not
individually or in the aggregate, have (A) a material adverse effect on the
performance of this Underwriting Agreement or the consummation of any of
the transactions contemplated herein or (B) a Material Adverse Effect.
(s) Arthur Andersen LLP, who have certified certain financial
statements of the Company and the Subsidiaries and delivered their report
with respect to the audited consolidated financial statements and schedules
included in the Registration Statement and the Prospectuses, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(t) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, provided, however,
that this provision shall not apply to any trading or stabilization
activities conducted by the Underwriters.
(u) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates and other authorizations issued by the appropriate
Dutch, U.S., federal and state regulatory authorities, or foreign national
and local governmental or regulatory authorities necessary to conduct its
business as currently conducted, except in any case in which the failure so
to possess any such license, permit, certificate or other authorization
would not, individually or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such license, permit, certificate or authorization which, singly or in the
aggregate, if the subject of an unfavorable decision ruling or findings,
would have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
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<PAGE>
(v) No labor dispute with the employees of the Company or any of the
Subsidiaries exists or, to the Company's best knowledge, is threatened, and
the Company is not aware of any existing labor disturbance by any of its or
any of the Subsidiaries' employees, that could have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(w) Each of the Company and the Subsidiaries is insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which it is
engaged. All policies of insurance insuring the Company or any of the
Subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect, except as would not have a
Material Adverse Effect; each of the Company and the Subsidiaries is in
compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of the Subsidiaries
under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause. The
Company has no reason to believe that either the Company or any of the
Subsidiaries will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would
not have a Material Adverse Effect, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(x) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from transferring
any of its property or assets to the Company or the other Subsidiary,
except as described in or contemplated in the Prospectuses.
(y) The Company and the Subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent applications,
trademarks, service marks, trade and service mark registrations, trade
names, licenses, copyrights, inventions, trade secrets, technology, know-
how and other intellectual property (collectively, the "Intellectual
Property") necessary for the conduct of the Company's business as now
conducted, and as described in the Prospectuses, except where the failure
to so own, possess, license or have other rights to use the Intellectual
Property would not, individually or in the aggregate, have a Material
Adverse Effect, whether or not arising from the ordinary course of business
and, except as disclosed in the Prospectuses, neither the Company nor any
of its Subsidiaries has received any notice of infringement of or conflict
with (or knows of any such infringement of or conflict with)
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<PAGE>
asserted rights of others with respect to any of such intellectual property
which, if such assertion of infringement or conflict were sustained, would
result in any Material Adverse Effect.
(z) The Company has taken such investigatory and remediary action
to confront the Year 2000 Problem as it deemed necessary and based on this
action the Company has no reason to believe, and does not believe, that the
Year 2000 Problem has had or will have a Material Adverse Effect or has
resulted or will result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind is not functioning or will not
function, in the case of dates or time periods occurring after December 31,
1999, at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000;
(aa) The Company has filed all Dutch, U.S., foreign, federal, state
and local tax returns that are required to be filed or has requested
extensions thereof, except in any case in which the failure so to file
would not have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto) and
has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(bb) No Underwriter or holder of Shares is or will be deemed to be
resident, domiciled, carrying on business or subject to taxation in The
Netherlands solely by reason of the execution, delivery, consummation or
enforcement of this Underwriting Agreement.
(cc) Each of the Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S. GAAP and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
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(dd) The Company represents and warrants that (i) the Registration
Statement, the Prospectuses and the Preliminary Prospectuses comply and in
the case of France, the French Preliminary Prospectus and the French
Prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of jurisdictions in which
such prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and (ii) no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws and regulations of jurisdictions in which the Directed
Shares are offered outside the United States.
(ee) The Company and the Subsidiaries are (i) to the Company's
knowledge, in compliance with any and all Dutch, U.S., foreign, federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") applicable to
conduct their respective businesses, (ii) have received and are in
compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses
and (iii) have not received notice of any actual or potential liability for
the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth
in the Prospectuses.
(ff) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and the
Subsidiaries are eligible to participate (other than any "multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA) and each such plan
(other than any "multiemployer plan" within the meaning of Section
4001(a)(3) of ERISA) is in compliance in all material respects with the
presently applicable provisions of ERISA and the United States Internal
Federal Revenue Code of 1986, as amended and such regulations and published
interpretations, except where such failure to fulfill or such non-
compliance would not, individually or in the aggregate, have a Material
Adverse Effect. The Company and the Subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of
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ERISA, except such as would not, individually or in the aggregate, have a
Material Adverse Effect.
(gg) The Subsidiaries are (i) the only significant subsidiaries of
the Company as defined by Rule 1.02 of Regulation S-X or (ii) all of the
Company's subsidiaries whose property, assets, rights or operations are
material to the business, condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries
taken as a whole.
(hh) The statistical and market-related data included in the
Registration Statement, the Prospectuses and the Preliminary Prospectuses
(the "Primary Offering Materials") and any further amendments or
supplements thereto prior to Closing (the "Supplemental Offering
Materials," and together with the Primary Offering Materials, the "Offering
Materials") are based on or derived from independent sources which the
Company believes to be reliable and accurate in all material respects or
represent the Company's good faith estimates that are made on the basis of
data derived from such sources.
(ii) None of the Company, its Subsidiaries or any of their
properties or assets has immunity from the jurisdiction of any court or
from any legal process (whether through service or notice, attachment in
aid of execution, executing or otherwise) under the laws of The Netherlands
or other applicable laws.
(jj) To ensure the legality, validity, enforceability or
admissibility into evidence of this Underwriting Agreement or any other
document to be furnished thereunder, it is not necessary that this
Underwriting Agreement, or any other document be filed or recorded with any
court or other authority in The Netherlands or any other jurisdiction.
(kk) The Company has the power to submit and on the Closing Date
will have taken all necessary corporate action to submit to the non-
exclusive jurisdiction of the federal and state courts in New York City,
New York, and to waive immunity in respect of this Underwriting Agreement
and such submission will be binding upon the Company.
(ll) Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as a managing director or as an
officer of the Company or any of the Subsidiaries, and delivered to you or
counsel for the Underwriters in connection with this Underwriting Agreement
shall be deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
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1A. Representations and Warranties of the Underwriters. Each of the
Underwriters represents and warrants to, and agrees with, the Company as set
forth below in this Section 1A.
(a)(i) It has not offered or sold and, prior to the date six months
after the closing date for the sale of the Shares to the Underwriters, will
not offer or sell, any Shares to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments, as principal or agent, for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied and will comply with all applicable provisions
of the Financial Services Act 1986, and (iii) it has and will distribute
any document relating to the Shares in the United Kingdom only to a person
who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or is
a person to whom such document may otherwise lawfully be distributed.
(b)(i) It has only offered and sold and will only offer and sell
Shares in the Federal Republic of Germany in accordance with the provisions
of the Securities Sales Prospectus Act of December 13, 1990, as amended
(Wertpapier-Verkaufsprospektgesetz) and any other laws applicable in the
Federal Republic of Germany governing the issue, sale and offering of
securities and (ii) any resale of Shares in the Federal Republic of Germany
will only be made in accordance with the provisions of the Securities Sales
Prospectus act and any other laws applicable in the Federal Republic of
Germany governing the sale and offering of securities.
(c)(i) The sale of the Shares in the Republic of Italy shall be
effected in accordance with all Italian securities, tax and other
applicable laws and regulations, and (ii) it will not offer, sell or
deliver any Shares or distribute copies of this prospectus or any other
document relating to the Shares in the Republic of Italy unless such offer,
sale or delivery of the Shares or distribution of copies of this prospectus
or any other document relating to the Shares in the Republic of Italy is:
(x) made by an investment firm, bank or financial intermediary permitted to
conduct such activities in the Republic of Italy in accordance with
Legislative Decree No. 385 dated September 1, 1993 ("Decree No. 385"),
Legislative Decree No. 58 dated February 24, 1998, Commissione Nazionale
per le Societa e la Borsa Regulation No. 11971 dated May 14, 1999 and any
other applicable laws and regulations, (y) in compliance with Article 129
of Decree No. 385 and the implementing instructions of the Bank of Italy,
pursuant to which the issue, trading or placement of securities in Italy is
subject prior to notification to the Bank of Italy, unless an exemption
applies, and (z) in compliance with any other
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<PAGE>
applicable notification requirement or limitation which may be imposed by
Commissione Nazionale per le Societa e la Borsa or the Bank of Italy or any
other Italian regulatory authority.
2. Purchase and Sale.
-----------------
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Underwriting Agreement, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
US$ per Ordinary Share with respect to Ordinary Shares sold in the United
States and per Ordinary Share with respect to Ordinary Shares sold
outside the United States, the amount of Underwritten Shares set forth opposite
such Underwriter's name in Schedule I to this Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Underwriting Agreement, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to Option Shares at the same
purchase price per Ordinary Share as the Underwriters shall pay for the
Underwritten Shares. Said option may be exercised to cover sales of Ordinary
Shares in excess of the number of Underwritten Shares. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Prospectuses upon written or telegraphic
notice by Salomon Brothers International Limited and Goldman Sachs International
(the "Joint Global Coordinators") to the Company setting forth the number of
shares of the Option Shares as to which the several Underwriters are exercising
the option and the settlement date. The number of Option Shares to be purchased
by each Underwriter shall be the same percentage of the total number of shares
of the Option Shares to be purchased by the several Underwriters as the
percentage such Underwriter is purchasing of the total Underwritten Shares,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Shares and the Option Shares (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the 2nd Business Day
prior to the Closing Date) shall be made at 10:00 AM, New York City time,
on , 2000, or such later date not later than Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement among the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Shares being herein called in this Underwriting Agreement, the "Closing
Date"). Delivery of the Shares shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the respective aggregate
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purchase prices of the Shares being sold by the Company to or upon the order of
the Company by wire transfer payable in same day funds to the accounts specified
by the Company.
If the option provided for in Section 2(b) hereof is exercised after
the 2nd Business Day prior to the Closing Date, the Company will deliver (at the
expense of the Company) to the Representatives any Option Shares not delivered
to the depositary or its nominee pursuant to the deposit agreement in such names
and denominations as the Representatives shall have requested against payment by
the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer of U.S. dollars and
payable in same day funds to the accounts specified by the Company. If
settlement for the Option Shares occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Option Shares, and
the obligation of the Underwriters to purchase the Option Shares shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Shares for sale to the public in the United
States and France as set forth in the Prospectuses.
5. Agreements. (I) The Company and the several Underwriters agree
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. The Company will promptly file, if not
previously filed, the French Final Prospectus with the COB, and will use
its best efforts to obtain prior to the Closing Time the final approval
therefor. Prior to the termination of the offering of the Shares, the
Company will not file any amendment of the Registration Statement or
supplement to the U.S. Prospectus or any Rule 462(b) Registration Statement
or any amendment or supplement to the French Final Prospectus unless the
Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
U.S. Prospectus is otherwise required under Rule 424(b), the Company will
cause the U.S. Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (2) when
the U.S. Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any
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Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when the French Final Prospectus has been filed with the
COB and when the final approval therefor has been obtained, (4) when, prior
to termination of the offering of the Shares, any amendment to the
Registration Statement or the French Final Prospectus shall have been filed
or become effective, (5) of any request by the Commission or its staff for
any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the U.S. Prospectus or for
any additional information or of any request by the COB or the
ParisBourseSBF S.A. (the "ParisBourse") or their respective staffs for any
amendment of the French Final Prospectus, or for any supplement to the
French Final Prospectus or for any additional information, (6) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose, (7) of the issuance of any stop order or
similar instruction from the COB or the ParisBourse with respect to the
offering of the Shares or the use of the French Final Prospectus, (8) when
the dispensation pursuant to Section 4 of the 1995 Act on the supervision
of the securities trade (Wet toezicht effectenverkeer 1995) has been
granted and (9) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance
of any stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of
which the U.S. Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the U.S. Prospectus to comply with
the Act or the rules thereunder, the Company promptly will (1) notify the
Representatives of any such event; (2) prepare and file with the Commission
and with the COB, subject to the second sentence of paragraph (i)(a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemental U.S. Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the Representatives an
earnings statement or statements covering the 12 month period ending
December 31, 2000 of the Company and the
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Subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each U.S. Preliminary Prospectus and U.S. Prospectus
and any supplement thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Shares for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Shares, provided,
however, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(f) Except pursuant to this Underwriting Agreement, the Company will
not, without the prior written consent of the Joint Global Coordinators
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company)
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange
Act, any Shares or any securities convertible into, or exercisable, or
exchangeable for, Shares; or publicly announce an intention to effect any
such transaction, for a period of 180 days after the date of this
Underwriting Agreement, provided, however, that the Company may issue and
sell Shares pursuant to any employee stock option plan or stock ownership
plan and may file a Form S-8 with respect thereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
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<PAGE>
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the fees and expenses of its counsel (including
local counsel), and accountants in connection with the issuance of the
Shares, (ii) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements
and exhibits thereto), the Preliminary Prospectus, the Prospectus, the
French Preliminary Prospectus, the French Final Prospectus, and each
amendment or supplement to any of them and mailing and delivering
(including postage, air freight charges and charges for counting and
packing) copies thereof to the initial purchasers and dealers; (iii) all of
the Company's and its representatives' (but excluding the Underwriters')
expenses relating to the road show for the offering of the Shares,
including the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Shares; provided that in any event all expenses relating
to any chartered or private airplane shall be borne by the Company; (iv)
the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp or transfer taxes in
connection with the original issuance and sale of the Shares; (v) the
registration of the Shares under the Exchange Act and the listing of the
Shares on the Premier Marche of the ParisBourse and The Nasdaq National
Market, Inc., respectively; (vi) any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (vii) the fees and expenses of the
Authorized Agent (as defined in Section 14 hereof); (viii) the cost and
charges of any transfer agent or registrar; and (ix) all other costs and
expenses incident to the performance by the Company of its obligations
under this Underwriting Agreement.
(i) The Company agrees that, in connection with the Directed Share
Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
Salomon Brothers International Limited will notify the Company in writing
as to which Participants will need to be so restricted. The Company will
direct the removal of the transfer restrictions upon the expiration of such
period of time.
(j) The Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws, rules
and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Shares and the
Option Shares, as the case may be,
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shall be subject to the accuracy of the representations and warranties on the
part of the Company contained in this Underwriting Agreement as of the Execution
Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
under this Underwriting Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time
on such date; if filing of the U.S. Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the U.S. Prospectus, and any such
supplement, will be filed in the manner and within the time period required
by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have filed the French Final Prospectus with
the COB no later than [ ] following the determination of
the public offering price and shall have received final approval from the
COB of the French Final Prospectus by no later than [ ]
following the date of determination of the public offering price, and no
stop order or similar instruction from the COB or the ParisBourse with
respect to the offering of the Shares or the use of the French Final
Prospectus shall have been issued.
(c) The Company shall have requested and caused Stibbe Simont
Monahan Duhot, special Netherlands counsel for the Company, to have
furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives on behalf of the Underwriters to the
effect that:
(i) the Company has been duly incorporated and is validly
existing under the laws of The Netherlands as a legal entity in the form of
a "naamloze vennootschap";
(ii) the Company has an authorized capitalization as set forth
in the Prospectuses and the Underwritten Shares have been duly authorized
and validly issued in accordance with the laws of The Netherlands and the
provisions of the articles of
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association applicable thereto and are fully paid and non-assessable, and
the issuance of such shares is not subject to any preemptive or similar
rights;
(iii) the Option Shares have been duly authorized and will,
when issued by the Company in a manner and on the terms as referred to in
this Agreement, be validly issued in accordance with the laws of The
Netherlands and the provisions of the articles of association applicable
thereto, and subject to the payment by the Underwriters for Option Shares
and the manner and on the terms as referred to in this Agreement, will be
fully paid and non-assessable, and the issuance of such shares will not be
subject to any pre-emptive or similar rights.
(iv) according to shareholders' register of the Company the
Shares are free of rights of pledge ("pandrecht") or rights of usufruct
("vruchtgebruik");
(v) the Company has the corporate power and authority to
enter into and perform the obligations on its part to be performed under
this Agreement, and the Company has the corporate power and authority to
conduct its business as described in the Prospectuses;
(vi) the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations thereunder
have been duly authorized by the Company;
(vii) to the extent governed by the laws of The Netherlands,
this Agreement has been duly executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement do not
violate any provisions of the law of The Netherlands or any of the
provisions of the articles of association of the Company;
(ix) in order to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement, it is not
necessary that it be filed, recorded or enrolled with any public authority,
governmental agency or governmental department of The Netherlands
(excluding, for the avoidance of doubt, a court in connection with legal
proceedings insofar as the enforceability and admissibility in evidence are
concerned), or that any stamp, registration or similar tax or charge be
paid in The Netherlands, except for certain court fees in connection with
legal proceedings;
(x) the choice of New York law as the law expressed to be
governing this Agreement will be recognized as the law governing this
Agreement and
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<PAGE>
accordingly the courts of The Netherlands should apply New York law as the
law expressed to be governing this Agreement;
(xi) the submission to the jurisdiction of any state or
federal court located in the Borough of Manhattan, The City of New York,
New York (each a "New York Court") and/or the irrevocable waiver of any
objection to the laying of venue of a proceeding in such court and of any
immunity to jurisdiction of such court, to which it is or may become
entitled, will, according to the courts of The Netherlands duly applying
New York law as the law governing this Agreement (including such submission
and waiver), be valid and binding on the Company; and, except as described
in the Prospectus, a judgment obtained in a New York Court arising out of
or in relation to the obligations of the Company under this Underwriting
Agreement would be enforceable against the Company in the courts of The
Netherlands;
(xii) all authorizations, consents or approvals of, or
registrations or filings with, any governmental department or regulatory
authority of or within The Netherlands which are required for the offer of
the Shares have been obtained or made and are in full force and effect;
(xiii) the statements as to the laws of The Netherlands and
the articles of association of the Company, in the Prospectus under the
headings "Management --Supervisory Board and Board of Management,"
"Description of Capital Stock" (except for the statements under the
subheadings "-- Description of equity registration and other rights" and
"--private equity investors' registration rights" and "Share Certificates
and Transfer," are correct in all material respects and the Shares conform
to the description of the Shares in such statements and the articles of
association of the Company;
(xiv) the Board of Management of the Company has in its
resolutions on , 2000 validly resolved to exclude the pre-emptive
rights of shareholders in respect of the issue of the Shares by the
Company and no other action is required to exclude such pre-emptive rights;
(xv) the statements in the Prospectuses under the caption
"Taxation --Netherlands Taxation" fairly and accurately summarize the
material tax laws and regulations referred to therein;
(xvi) except as described or disclosed in the Registration
Statement, no capital duty, stamp duty or other issuance or transfer taxes
or duties are payable in The Netherlands in connection with or as a result
of the sale and delivery of the Shares by the Company to or for the
respective account of the Underwriters or to any purchasers
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<PAGE>
procured by the Underwriters, in either case in the matter contemplated
herein or the sale and delivery by the Underwriters of the Shares to the
initial purchasers thereof in the manner contemplated herein;
(xvii) neither the issue and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to, (i) the
articles of association of the Company or its Dutch subsidiaries, or (ii)
any statute, law, rule, regulation or, to the best of such counsel's
knowledge, judgment, order or decree applicable to the Company or its
subsidiaries of any Netherlands court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or their
properties; and
(xviii) to the best of such counsel's knowledge and other than
as set forth in any Prospectus, there are no legal or governmental
proceedings pending in The Netherlands to which the Company or any of its
Dutch subsidiaries is a party or of which any property of the Company or
any of its Dutch subsidiaries is the subject which, if determined adversely
to the Company or any of its Dutch subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
any Dutch governmental agency or threatened by others.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of Holme
Roberts & Owen LLP and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company; provided,
however, that all such certificates shall be reasonably satisfactory to the
Representatives in all material respects and attached to such counsel's
opinion. References to the Prospectuses in this paragraph (c) include any
supplements thereto at the Closing Date.
(d) The Company shall have requested and caused Oppenhoff and
Radler, German counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives on behalf of the Underwriters opining that:
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<PAGE>
(i) the Offering Materials comply, with any applicable
German laws or regulations concerning the distribution of offering
materials in connection with the offering of Ordinary Shares to employees
of CompleTel GmbH; except for the Offering Materials, no information or
other materials are required to be delivered to employees of CompleTel GmbH
in connection with the offer, sale and issuance of Ordinary Shares to
employees of CompleTel GmbH;
(ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court in Germany, other than such as have been obtained,
is necessary in connection with the offer, sale and issuance of Ordinary
Shares to employees of CompleTel GmbH;
(iii) the offer, sale and issuance of the Directed Shares to
employees of the Company and its subsidiaries will not conflict with,
result in a breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its subsidiaries
pursuant to any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or any
of its or their properties;
(iv) CompleTel GmbH is duly incorporated under German law;
(v) the issued share capital of CompleTel GmbH amounts to
39,509,350 divided into 3 shares of 12,800, 12,800 and 39,483,750,
respectively each, that all of such shares are owned by CompleTel Holding I
B.V.;
(vi) to such counsel's knowledge based solely on a review of
the articles of association and share accounts, the issued share capital of
CompleTel GmbH (a) has been validly issued and the nominal cash amounts to
be contributed have been paid to CompleTel GmbH's accounts, and (b) has not
been issued in violation of any pre-emptive or similar rights;
(vii) except as described below, the shares comprising the
issued share capital of CompleTel GmbH are, based only on our review of the
articles of association of CompleTel GmbH and the share accounts of
CompleTel GmbH, free and clear of any security interests, claims, liens,
encumbrances or restrictions on transferability or voting;
(A) Pursuant to a notarial deed, roll of deeds A/Prot,
of the notary Stephan Cueni (Basle, Switzerland) the shares
comprising the issued share capital of CompelTel GmbH are fully
pledged in favor of certain banks and
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<PAGE>
financial institutions in order to secure their respective claims
under a 265 million credit agreement dated January 6, 2000 (the
"Credit Agreement"). The share pledge extends to all present and
future rights to receive dividends in relation to the shares. The
voting rights remain with the shareholder of CompleTel GmbH. The
shares may not be transferred to third parties without the prior
written consent of the banks.
(viii) except as set forth in the Prospectuses and except as
would not have a Material Adverse Effect, CompleTel GmbH has full power and
capacity to own, lease and operate its properties and conduct its business
in Germany and the class 3 license and class 4 license granted by the
Regulierungsbehorde fur Telekommunikation und Post (the "German Licenses")
obtained by CompleTel GmbH allow CompleTel GmbH to deploy and operate its
network and services in certain areas in Germany as set out in the
Prospectuses;
(ix) to such counsel's knowledge, CompleTel GmbH has not
received any notice of proceedings relating to the suspension or revocation
of the German Licenses which, individually or in aggregate, if the subject
of an unfavorable decision, ruling or finding, could have a Material
Adverse Effect on the German Licenses; and
(x) the statements in the Prospectuses to the extent Germany
is concerned under the headings "Prospectus Summary", "Risk Factors--We may
not be able to obtain and maintain licenses, permits, rights-of-way and
leased capacity to successfully build and operate our business", "Risk
Factors--Our need to comply with extensive government regulation and
licensing requirements could increase our costs and slow our growth",
"Business--Regulation--Overview" and "--Germany" fairly summarize the
status of German telecommunications regulatory matters with respect to
CompleTel GmbH.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials; provided, however, that all
such certificates and statements shall be reasonably satisfactory to the
Representatives in all material respects and attached to such counsel's
opinion.
(e) The Company shall have requested and caused Holme Roberts & Owen
International Limited, U.K. counsel for the Company, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed to
the Representatives opining that
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<PAGE>
(i) the Primary Offering Materials comply, and the
Supplemental Offering Materials will comply, with any applicable U.K. laws
or regulations concerning the distribution of Offering Materials in
connection with the Directed Share Program for the offer, sale and issuance
of Directed Shares to employees of the Company and its U.K. subsidiaries;
except for the Offering Materials, no information or other materials are
required to be delivered to participants in the Directed Share Program in
connection with the offer, sale and issuance of Directed Shares to
employees of the Company and its subsidiaries in the U.K.
(ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court in the U.K., other than such as have been
obtained, is necessary in connection with the offer, sale and issuance of
Directed Shares to employees of the Company and its subsidiaries in the
U.K.;
(iii) Each of Completel UK Limited and iPcenta Limited (the
"U.K. Subsidiaries") is a company duly incorporated and existing with
limited liability under the laws of England and has, pursuant to its
memorandum of association, the full requisite power and authority to own,
lease and operate its properties and conduct its business as described
under the headings "Prospectus Summary" and "Business" in the Prospectuses;
(iv) The authorized share capital of iPcenta Limited is
(Pounds)250,000 divided into ordinary shares authorised to be issued of
(Pounds)1 each, of which one share has been issued and fully paid up to
date. The authorised share capital of CompleTel UK Limited is
(Pounds)50,000,000 divided into 50,000,000 ordinary shares of (Pounds)1
each, of which 2 ordinary shares have been issued and fully paid up to
date. To such counsel's knowledge based on a review of the respective
articles of association and share accounts, all such issued shares are
fully paid and were not issued in violation of any pre-emptive or similar
rights in respect of the share capital of CompleTel UK Limited or iPcenta
Limited. Except as set out in the Prospectuses and to the best of such
counsel's knowledge, all issued shares in the share capital (i) of
CompleTel UK Limited are owned by CompleTel Holdings I B.V. and (ii) of
iPcenta Limited are owned by CompleTel UK Limited and, in each case, are
(subject to the pledges pursuant to the Credit Agreement free and clear of
any security interests, claims, liens, encumbrances, or restrictions on
transferability (other than those imposed under the Companies Act 1985 (as
amended or substituted from time to time) or voting;
(f) the Company shall have requested and caused Denton Wilde Sapte,
U.K. regulatory counsel for the Company, to have furnished to the
Representatives
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<PAGE>
their opinion, dated the Closing Date and addressed to the Representatives,
opining that:
(i) a license dated January 11, 1999 issued by the Secretary
of State for Trade and Industry under section 7 of the Telecommunications
Act 1984 ("the PTO Licence") and a standard International Simple Voice
Resale License under the Telecommunications Act 1984 (the "ISVR License")
(together the "U.K. Licenses") have been granted to CompleTel UK Limited;
(ii) the UK Licenses provide all the necessary regulatory and
statutory authority which CompleTel UK Limited would require to perform its
business as the provider of telecommunications services, including
Internet-related services, in the United Kingdom as described in the
Prospectuses. To the extent that CompleTel UK Limited and or iPcenta
operates such services as are authorized under a class license, CompleTel
UK Limited and iPcenta are authorized under a class license to provide
publicly available telecommunications services in the United Kingdom
without making an application;
(iii) the Department for Trade and Industry (the "DTI"), has
confirmed verbally that they have not issued any notice of proceedings
relating to the revocation or modification of either of the UK Licenses or
any class license which may apply to CompleTel UK Limited, other than in
the course of modification of similar licenses for reasons of legislative
or regulatory reform, and have confirmed that they have not received any
recommendation from the Director of the Office of Telecommunications
("OFTEL") to revoke or modify the UK Licenses or a class license (other
than as described above), the DTI and OFTEL being the relevant
telecommunications and licensing authorities. The DTI have also confirmed
verbally that based on the changes in the shareholders of CompleTel UK
Limited, provided CompleTel UK Limited complies with its obligations under
the UK Licenses and the class license, no grounds for revocation exist;
(iv) except for the changes to the Shareholding of CompleTel
UK Limited referred to in paragraph (iii) above and discussed therein, to
such counsel's knowledge, no event has occurred which allows, or after
notice or lapse of time, or both, would allow, revocation or termination of
either of the Licenses or a class license or would result in any other
material impairment of the rights of CompleTel UK Limited as the holder of
the UK Licenses or a class license;
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials; provided, however, that all
such certificates and statements shall be
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reasonably satisfactory to the Representatives in all material respects and
attached to such counsel's opinion.
(g) The Company shall have requested and caused Stibbe Simont
Monahan Duhot, French counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, opining that:
(i) CompleTel S.A.S. is duly incorporated under French law
and is validly existing as a societe par actions simplifiee;
(ii) except as set forth in the Prospectuses and except as
would not have a Material Adverse Effect, CompleTel S.A.S. has full power
and capacity to own, lease and operate its properties and conduct its
business in France and the licenses granted pursuant to a decision of the
French Ministry in charge of Telecommunications dated November 17, 1998 and
published in the French "Journal Officiel de la Republique Francaise" date
December 13, 1998, the authorization to establish and operate a public
network and provide public telephone services as defined under Articles
L.32, L.33 and L.34 of the CPT (the"Authorization") obtained by CompleTel
S.A.S. allows CompleTel S.A.S. to deploy and operate its network and
services in in the French markets set out in the Prospectuses;
(iii) the issued share capital of CompleTel S.A.S. amounts to
FF 342,392,800 divided into 3,423,928 ordinary shares of FF 100 each, that
3,406,370 of such shares are owned by CompleTel Holding I BV, 17,500 of
such shares are owned by CompleTel Holding II BV and that 58 shares of such
shares are owned by CompleTel SPC;
(iv) to such counsel's knowledge, based on a review of the
articles of association and share accounts, the issued share capital of
CompleTel S.A.S. has been validly issued and is fully paid up and has not
been issued in violation of any pre-emptive or similar rights;
(v) except as described in the Prospectus, the shares
comprising the issued share of CompleTel S.A.S. are, based on a review of
the articles of association of CompleTel S.A.S. and the share accounts of
CompleTel S.A.S., free and clear of any security interests, claims, liens,
encumbrances or restrictions on transferability or voting;
(vi) to such counsel's knowledge, CompleTel S.A.S. has not
received any notice of proceedings relating to suspension or revocation of
the Authorization which,
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individually or in aggregate, if the subject of an unfavorable decision,
ruling or finding, could have a Material Adverse Effect on the
Authorization;
(vii) the statements in the Prospectus to the extent they
relate to France under the headings "Prospectus Summary", "Risk Factors" --
We may not be able to obtain and maintain licenses, permits, rights-of-way
and leased capacity to successfully build and operate our business", "Risk
Factors -- Our need to comply with extensive government regulation and
licensing requirements could increase our costs and slow our growth",
"Business -- Regulation -- Overview" and "-- France" fairly summarize the
status of France telecommunications regulatory matters with respect to
CompleTel S.A.S.;
(viii) CompleTel S.A.S. has full power and capacity to own,
lease and operate its properties and conduct its business in France;
(ix) CompleTel Services S.A.S. is duly incorporated under
French law and is validly existing as a societe par actions simplifiee;
(x) the issued share capital of CompleTel Services S.A.S.
amounts to FF 250,000 divided into 2,500 ordinary shares of FF 100 each.
2,499 of which are owned by CompleTel Holding I BV and 1 of which is owned
by CompleTel Holding II BV;
(xi) to such counsel's knowledge, based on a review of the
articles of association and share accounts, the issued share capital of
CompleTel Services S.A.S. has been validly issued and is fully paid up and
has not been issued in violation of any pre-emptive or similar rights;
(xii) except as described in the Prospectus, the shares
comprising the issued share capital of CompleTel Services S.A.S. are, based
on a review of the articles of association of CompleTel Services S.A.S. and
share accounts of CompleTel S.A.S., free and clear of any security
interests, claims, liens, encumbrances or restrictions on transferability
or voting;
(xiii) CompleTel Services S.A.S. has full power and capacity
to own, lease and operate its properties and conduct its business in
France; (xiv) Acces et Solutions Internet S.A.R.L. is duly incorporated
under French law;
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<PAGE>
(xv) the issued share capital of Acces et Solutions Internet
S.A.R.L. amounts to FF 125,000 divided into 125 ordinary shares of FF 1,000
each all of which are owned by CompleTel S.A.S.;
(xvi) to such counsel's knowledge, based on a review of the
articles of association and share accounts, the issued share capital of
Acces et Solutions Internet S.A.R.L. has been validly issued and is fully
paid up and has not been issued in violation of any pre-emptive or similar
rights;
(xvii) except as described in the Prospectus, the shares
comprising the issued share capital of Acces et Solutions Internet S.A.R.L.
are, based on a review of the articles of association of Acces et Solutions
Internet S.AR.L. and share accounts of Acces et Solutions Internet
S.A.R.L., free and clear of any security interests, claims, liens,
encumbrances or restrictions on transferability or voting; and
(xviii) Acces et Solutions Internet S.A.R.L. has full power and
capacity to own, lease and operate its properties and conduct its business
in France.
(h) The Company shall have furnished to the Representatives the
opinion of Shearman & Sterling, French securities law counsel for the
Company, dated the Closing Date and addressed to the Representatives,
opining that:
(i) on the dates that the French Preliminary Prospectus and
the French Final Prospectus received visas from the COB, respectively they
conformed as to form in all material respects to the requirements of the
French Securities Laws;
(ii) the International Prospectus filed with the French
Prospectuses is wholly incorporated and made a part of the French
Prospectuses through its filing therewith;
(iii) to the extent that the French Prospectuses summarize
information contained in the International Prospectus, such summaries
fairly summarize the sections of the International Prospectus to which they
relate;
(iv) the French Final Prospectus has been filed with the
COB and has received the final approval thereof; the Shares have been
approved for listing on the Premier Marche of the Paris Bourse; no
opposition to listing has been notified by the COB with respect to the
offering of Shares; and
(v) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the French Securities Laws
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in connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as have
been obtained.
In rendering such opinion, such counsel may rely as to matters of fact
on the representations of the Company contained in Section 1 hereof and, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials; provided, however, that all such certificates
and statements shall be reasonably satisfactory to the Representatives in
all material respects and attached to such counsel's opinion.
(i) The Company shall have furnished to the Representatives the
opinion of Holme Roberts & Owen LLP, United States counsel for the Company,
dated the Closing Date and addressed to the Representatives, opining that:
(i) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any United States
Federal or Colorado court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or its or their
property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is
no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required;
(ii) to the knowledge of such counsel, except as could not be
reasonably expected to have a Material Adverse Effect, neither the Company
nor any of its subsidiaries is in violation of or default under (i) any
statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any Colorado court or United States
federal court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its subsidiaries, or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as an exhibit to the
Registration Statement or the Company's registration statement on Form S-4
(File No. (333-82305) to which the Company or any of its subsidiaries is a
party or by which it or any of them or any of their respective properties
is bound;
(iii) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been
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instituted or threatened and the Registration Statement and the Prospectus
(other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements of the
Act and the rules thereunder;
(iv) to the extent governed by the laws of the State of New
York, this Agreement has been duly executed and delivered by the Company;
(v) 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, an "investment company" as
defined in the Investment Company Act of 1940, as amended;
(vi) no consent, approval, authorization, filing with or
order of any United States federal or Colorado court or governmental agency
or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as may be
required under the blue sky laws of any United States jurisdiction in
connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated in this Underwriting Agreement and
in the Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(vii) neither the issue and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated in the
manner herein contemplated nor the fulfillment of the terms hereof by the
Company will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or its subsidiaries pursuant to, (i) the terms of any
indenture, mortgage, deed of trust, loan agreement or other agreement, or
instrument filed as an exhibit to the Registration Statement or the
Company's registration statement on Form S-4 (File No. 333-82305) to which
the Company or its subsidiaries is a party or bound or to which its or
their property is subject, or (ii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its subsidiaries of
any United States Federal or State of Colorado court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or its subsidiaries or any of its or
their properties;
(viii) to such counsel's knowledge, no holders of securities of
the Company have rights to the registration of such securities under the
Registration Statement;
(ix) the statements as to the Company under the heading
"Description of Capital Stock--Description of Equity Registration and Other
Rights" and "-- Private
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Equity Investors' Registration Rights", are correct in all material
respects and accurately describe the matters summarized therein; and
(x) under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 14 of this
Underwriting Agreement, validly and irrevocably submitted to the personal
jurisdiction of any New York Court with the requisite subject matter
jurisdiction in any action arising out of or relating to this Underwriting
Agreement or the transactions contemplated hereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any such
court, and has validly appointed the Authorized Agent (as defined in
Section 14 of this Underwriting Agreement) as its authorized agent for the
purpose described in Section 14 hereof; and service of process effected on
such agent in the manner set forth in Section 14 hereof will be effective
to confer valid personal jurisdiction over the Company.
(xi) the statements in the Prospectuses under the caption
"Taxation -- U.S. Federal Income Tax" fairly and accurately describe the
material tax laws and regulations referred to therein.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company,
representatives of the Underwriters and representatives of counsel to the
Underwriters at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus (except as to matters referred to in paragraph
(ix) and (xi) above), on the basis of the foregoing, no facts have come to
its attention that would lead such counsel to believe that the Registration
Statement, as of its date or as of the Closing Time, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein not misleading, or
that the Prospectus, as of its date or as of the Closing Time, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel has not been requested to and need not
express any comment with respect to the financial statements and the notes
thereto and the other financial data included in the Registration Statement
and Prospectus);
In rendering such opinion, such counsel may rely (A) as to matters of
fact on the representations of the Company contained in Section 1 hereof
and, to the extent they deem proper, on certificates of responsible
officers of the Company and public
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officials (B) as to matters involving the application of laws of the
Netherlands, upon the opinion of Stibbe Simont Monahan Duhot, and (C) as to
paragraph (v) upon the opinion of Swidler Berlin Shereff Friedman LLP;
provided, however, that all such certificates, statements and opinions shall
be satisfactory to the Representatives in all material respects and attached
to such counsel's opinion. References to the Prospectuses in this paragraph
(i) include any supplements thereto at the Closing Date.
(j) The Representatives shall have received from De Brauw Blackstone
Westbroek P.C., special counsel for the Underwriters, dated the Closing Date
and addressed to the Representatives on behalf of the Underwriters, with
respect to the validity and non-assessability of the Shares and the accuracy
of the description of the Company's share capital as set out under the
heading "Description of Capital Stock" in the Preliminary Prospectuses and
the Prospectuses and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass on
matters.
(k) The Representatives shall have received from Cahill Gordon &
Reindel, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives on behalf of the
Underwriters, with respect to the issuance and sale of the Shares, the
Registration Statement, the Prospectuses (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(l) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the chairman of the board of
management or the president and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectuses, any supplements to the Prospectuses and this
Underwriting Agreement and that:
(i) the representations and warranties of the Company in this
Underwriting Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
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(iii) since the date of the most recent financial statements
included in the Prospectuses (exclusive of any supplement thereto), there
has been no material adverse change in the business, condition (financial or
otherwise), assets, earnings, results of operations, business affairs,
business prospects or properties of the Company and the Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(m) The Company shall have requested and caused Arthur Andersen LLP to
have furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
counsel for the Underwriters.
(n) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, and (ii)
since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at the Closing Time on the terms and in the manner contemplated in
the Prospectus.
(o) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Company's debt securities.
(p) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each officer and director of the Company and each shareholder of the Company
listed in Schedule II hereto.
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(q) The Shares shall have been listed and admitted and authorized for
trading on the Premier Marche of the ParisBourse and included for quotation
on The Nasdaq National Market, Inc., and satisfactory evidence of all such
actions shall have been provided to the Representatives.
(r) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Underwriting Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed
in writing. The documents required to be delivered by this Section 6 will be
delivered at the offices of Cahill Gordon & Reindel, counsel for the
Underwriters at 80 Pine Street, New York, New York 10005, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the agreement
by the Underwriters to subscribe for the Underwritten Shares and the Option
Shares (subject to the option for the Option Shares referred to in the preamble
above being duly exercised in accordance with Section 3 of this Underwriting
Agreement), the Company shall pay to the Underwriters on the Closing Date, or on
the date on which such Option Shares are purchased, as the case may be, a
combined management and underwriting commission of % per cent of the principal
amount of the Underwritten Shares or the Option Shares, as the case may be.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act, the Exchange Act or the French Company Law of July 24,
1966, as amended and implemented by local regulations (the "French Company
Laws") against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement originally filed or
in any amendment thereof, or in the U.S. or International Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof or
supplement thereto, or arise out of or are
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<PAGE>
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein.
Mutatis mutandis, the Company, subject to the provisions of this
Section 8(a), agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of the Act, the Exchange Act or
the French Company Laws against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them become subject under
the French Securities Laws insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
French Preliminary Prospectus or in the French Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, further that the Company agrees to indemnify and hold harmless each
Underwriter ,Salomon Smith Barney SA or Goldman Sachs Paris Inc. et Cie, their
respective directors, officers, employees and agents and each person who
controls any Underwriter or Salomon Smith Barney SA or Goldman Sachs Paris Inc.
et Cie within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the French Securities Laws or otherwise
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon the performance by Salomon Smith Barney
SA or Goldman Sachs Paris Inc. et Cie of their role as Banques Introductrices
for the Company with the COB.
This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) The Company agrees to indemnify and hold harmless each of
Salomon Brothers International Limited and Goldman, Sachs International and each
person, if any, who controls Salomon Brothers International Limited or Goldman
Sachs International, respectively, within the meaning of the Act or the Exchange
Act (the "Salomon Smith Barney Entities" and the "Goldman Sachs Entities,"
respectively) 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)
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related to, arising out of, or in connection with the Directed Share Program,
provided that, the Company shall not be responsible under this subparagraph for
any losses, claim, damages or liabilities (or expenses relating thereto) that
are finally judicially determined to have resulted from the bad faith or gross
negligence of any Salomon Smith Barney Entity or Goldman Sachs Entity.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or Exchange Act, to the same extent as the
foregoing indemnity to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity in paragraph
(a). This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, the actual or potential defendants in, or targets
of any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood, however, that the Company shall, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same
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general allegations or circumstances, be liable for the fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Underwriters and controlling persons, which firm shall be
designated in writing by Salomon Brothers International Limited. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought under this Underwriting Agreement
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from liability arising out of
such claim, action, suit or proceeding. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent.
(e) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Shares; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Shares) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Shares purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the U.S. Prospectus. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (e), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution
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from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person who controls an Underwriter within the
meaning of either the Act, the Exchange Act or the French Company Laws and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act, the Exchange Act or the French
Company Laws, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (e).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters under this Underwriting Agreement and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Shares set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Shares set forth opposite the names of all the remaining
Underwriters) the Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the aggregate
amount of Shares which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Shares set forth
in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Shares, and if such nondefaulting Underwriters do not purchase all the Shares,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Prospectuses or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default under this Underwriting Agreement.
10. Termination. This Underwriting Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Shares, if prior to such
time (i) trading in the Company's Ordinary Shares shall have been suspended by
the Commission, the Commission des Operations de Bourse or the Nasdaq National
Market, Inc., trading in the Company's Ordinary Shares shall have been suspended
by the ParisBourse, trading in securities generally on the New York Stock
Exchange, The Nasdaq National Market, Inc. or the ParisBourse shall have been
suspended or limited or minimum prices shall have been established on the
ParisBourse or The Nasdaq National Market, Inc., (ii) a general moratorium on
commercial banking activities in New York, London or Paris shall have been
declared by the relevant authorities; (iii) there
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shall have occurred any outbreak or escalation of hostilities involving the
United States, the U.K. or France, declaration by the United States, the U.K. or
France of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the prospectus as contemplated by the U.S. Prospectus (exclusive of
any supplement thereto); (iv) there occurs an adverse change or development
involving a prospective change in U.S. or Dutch taxation affecting the Company,
the Shares or the transfer thereof or the imposition of exchange controls by the
United States or The Netherlands; (v) there occurs any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would in the view of the Representatives be likely
to prejudice materially the success of the offering and distribution of the
Shares or dealings in the Shares in the secondary market, or (vi) any material
adverse change occurs in the existing financial, political or economic
conditions in the United States, the United Kingdom and France or elsewhere
which, in the judgment of the Representatives would materially and adversely
affect the financial markets or the market for the shares and other equity
securities;
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Shares. The provisions of
Sections 1A, 7 and 8 hereof shall survive the termination or cancellation of
this Underwriting Agreement.
12. Notices. All communications under this Underwriting Agreement
will be in writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telefaxed c/o Salomon Smith Barney
Inc. General Counsel (fax no.: (212) 816-7912) and confirmed to such General
Counsel at Salomon Brothers International Limited, Victoria Plaza, 111
Buckingham Palace Road, London SW1W OSB, England, Attention: General Counsel and
c/o Goldman Sachs International Equity Capital Markets (fax no.: 44.171.774-
1000) and confirmed at Goldman Sachs International, Peterborough Court, 133
Fleet Street, London EC4A 2BB, England, Attention: Equity Capital Markets; or,
if sent to the Company, will be mailed or delivered to General Counsel and
confirmed to it at Kruisweg 609, 2132 NA Hoofddorp, The Netherlands, Attention:
Legal Department.
13. Successors. This Underwriting Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation under
this Underwriting Agreement.
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14. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any Underwriter, by the directors,
officers, employees and agents of any Underwriter or by any person who controls
any Underwriter, arising out of or based upon this Underwriting Agreement or the
transactions contemplated hereby may be instituted in any New York Court; and
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably accepts and submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The Company has
appointed CT Corporation System, in care of CT Corporation System, 111 8th
Avenue, 13th Floor, New York, New York 10011 as its authorized agent (the
"Authorized Agent"), upon whom process may be served in any suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated herein which may be instituted in any New York by any Underwriter,
by the directors, officers, employees and agents of any Underwriter or by any
person who controls any Underwriter and expressly accepts the non-exclusive
jurisdiction of any such court in respect of any such suit, action or
proceeding. The Company hereby represents and warrants that the Authorized Agent
has accepted such appointment and has agreed to act as said agent for service of
process, and the Company agrees to take any and all action, including the filing
of any and all documents that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon the
Company. Notwithstanding the foregoing, any action arising out of or based upon
this Agreement may be instituted by any Underwriter, by the directors, officers,
employees and agents of any Underwriter or by any person who controls any
Underwriter, in any other court of competent jurisdiction. The provisions of
this Section 15 shall survive any termination of the Underwriting Agreement, in
whole or in part.
15. Applicable Law. This Underwriting Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Currency. Each reference in this Underwriting Agreement to U.S.
dollars (the "relevant currency") is of the essence. To the fullest extent
permitted by law, the obligations of the Company in respect of any amount due
under this Underwriting Agreement will, notwithstanding any payment in any other
currency (whether pursuant to a judgment or otherwise), be discharged only to
the extent of the amount in the relevant currency that the party entitled to
receive such payment may, in accordance with its normal procedures, purchase
with the sum paid in such other currency (after any premium and costs of
exchange) on the Business Day immediately following the day on which such party
receives such payment. If the amount in the relevant currency that may be so
purchased for any reason falls short of the amount originally due, the Company
will pay such additional amounts, in the relevant currency, as may be necessary
to compensate for the shortfall. If, alternatively, the amount in the
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relevant currency that may be so purchased for any reason exceeds the amount
originally due, the party entitled to receive such original amount will return
such excess amounts, in the relevant currency, to the Company. Any obligation of
the Company not discharged by such payment will, to the fullest extent permitted
by applicable law, be due as a separate and independent obligation and, until
discharged as provided herein, will continue in full force and effect.
17. Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment in aid or otherwise)
with respect to itself or any of its property, the Company hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Underwriting Agreement.
18. Counterparts. This Underwriting Agreement may be signed in one
or more counterparts, each of which shall constitute an original, and all of
which together shall constitute one and the same agreement.
19. Headings. The section headings used in this Underwriting
Agreement are for convenience only and shall not affect the construction hereof.
20. Definitions. The terms which follow, when used in this
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York, New York, Paris, France or London, England are authorized or obligated by
law, executive order or regulation to close.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
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<PAGE>
"Execution Time" shall mean the date and time that this Underwriting
Agreement is executed and delivered by the parties hereto.
"International Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the Shares outside of the United
States and France.
"International Prospectus" shall mean such form of prospectus with
respect to the offering of the Shares outside of the United States and France.
"New York Courts" shall mean the state or federal courts located in
the Borough of Manhattan, The City of New York, New York.
"Preliminary Prospectuses" and the "Preliminary Prospectus" shall mean
the U.S. Preliminary Prospectus and the International Preliminary Prospectus.
"Prospectuses" and the "Prospectus" shall mean the U.S. Prospectus and
the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Shares and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
"Subsidiary" shall mean each of CompleTel ECC B.V., CompleTel S.A.S.,
CompleTel Services S.A.S., CompleTel GmbH, CompleTel UK Limited, iPcenta Limited
and Acces et Solutions Internet S.A.R.L.
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<PAGE>
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of the
United States or Canada or of any political subdivision thereof, or any estate
or trust the income of which is subject to United States or Canadian Federal
income taxation, regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall include
any United States or Canadian branch of a person other than a United States or
Canadian Person.
"U.S." or "United States" shall mean the United States of America
(including the states thereof and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary prospectus
with respect to the offering of the Shares referred to in paragraph 1(a) above
and any preliminary prospectus with respect to the offering of the Shares, as
the case may be, included in the Registration Statement at the Effective Date
that omits Rule 430A Information.
"U.S. Prospectus" shall mean the prospectus relating to the Shares
that is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Shares included in the Registration Statement at the
Effective Date.
"Underwriting Agreement" shall mean this agreement relating to the
sale of the Shares by the Company to the Underwriters.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
CompleTel Europe N.V.
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
By:
-----------------------------------
Name:
Title:
Goldman Sachs International
By:
-----------------------------------
Name:
Title:
For themselves and the other several U.S.
Representatives and Underwriters.
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<PAGE>
Annex A
List of Subsidiaries
<PAGE>
SCHEDULE I
U.S. Underwriter Number of Underwritten Shares
- ---------------- -----------------------------
Salomon Brothers International Limited.......
Goldman, Sachs International.................
Paribas......................................
Merrill Lynch International..................
<PAGE>
SCHEDULE II
LIST OF SIGNATORIES TO LETTER ATTACHED AS EXHIBIT A
<PAGE>
EXHIBIT A
CompleTel Europe N.V.
Public Offering of Ordinary Shares
, 2000
Salomon Smith Barney Inc.
Salomon Brothers International Limited
Goldman, Sachs & Co.
Goldman Sachs International
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
Merrill Lynch International
Paribas Corporation
Paribas
As Representatives of the several Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
U.S.A.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between CompleTel Europe
N.V., a public limited company (naamloze vennootschap, or N.V.) incorporated
under Dutch law (the "Company"), and you as representatives of the group of
Underwriters named therein, relating to an underwritten public offering of
ordinary shares (the "Ordinary Shares"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior consent of
Salomon Brothers International Limited or Goldman Sachs International, offer,
sell, contract to sell, pledge or otherwise dispose of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise), directly or indirectly, or announce the offering, of any Ordinary
Shares or any securities convertible into, or exercisable or exchangeable for,
Ordinary Shares, for a period of 180 days following the date of the Underwriting
Agreement, other than
<PAGE>
Directed Shares/a/ (as defined in the Underwriting Agreements), or Ordinary
Shares disposed of as bona fide gifts approved by Salomon Brothers International
Limited and Goldman Sachs International.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
Signature of officer, director, employee
or shareholder
Name and address of officer, director,
employee or shareholder
______________
/a/ Directed Shares are Ordinary Shares from the offering that are expected to
be subject to priority allocation to the Company's employees, officers and
directors.
-2-
<PAGE>
Exhibit 3.1
AMENDMENT TO THE ARTICLES OF ASSOCIATION
On this day, the [ ]
two thousand, appeared before me, [Peter Jakob Dortmond], civil law notary in
Amsterdam:
[ ]
The appearing person declared:
. that of the company with limited liability: CompleTel Europe N.V., with
official seat in Amsterdam, having its office at 1083 HK Amsterdam,
Drentestraat 24 and filed with the Trade Register of the Chamber of Commerce
and Industry in Amsterdam under number 34108119, the articles of association
were last amended by deed executed on the first day of March two thousand,
before a legal substitute of P.J. Dortmond, civil law notary in Amsterdam,
in respect of which amendment the Minister of Justice on the first day of
March two thousand under number N.V. 1.055.197 has advised that no
objections have been apparent;
. that the sole shareholder of the company resolved to amend the articles of
association of the company integrally.
. that furthermore a decision was made to authorize the appearing person to
execute the deed of amendment to the articles of association;
. that the resolutions mentioned above are evidenced by a shareholders
resolution which will be annexed to this deed.
Consequently the appearing person declared that the articles of association of
the company are hereby amended as follows:
-1-
<PAGE>
DEFINITIONS
ARTICLE 1
In these Articles of Association the following definitions apply:
a. Annual Accounts shall mean: the balance sheet, the profit and loss account
and the explanatory notes to these accounts;
b. Annual Meeting shall mean: the General Meeting with the purpose of
considering and approving the Annual Accounts, the annual report and any
other documents required by law;
c. Articles of Association shall mean: the articles of association of the
Company;
d. Board of Management shall mean: the board of management of the Company;
e. Company shall mean: CompleTel Europe N.V., registered in Amsterdam;
f. Distributable reserves shall mean: that part of the Company's shareholders'
equity which is in excess of (i) the paid-up and called-up part of the
capital, and (ii) the reserves, if any, which are required by law and by
virtue of these Articles of Association;
g. General Meeting shall mean: both the body formed by shareholders and others
with voting rights as well as the meeting of shareholders and others with
meeting rights;
h. Group Company shall mean: a legal entity or a company which is associated
with the Company in a group, as defined in article 24b of Book 2 of the
Dutch Civil Code;
i. Subsidiary shall mean:
1. a legal entity in which the Company or one or more of its Subsidiaries,
whether or not pursuant to an agreement with other persons entitled to
vote, can jointly or by itself exercise more than half of the voting
rights at the general meeting;
2. a legal entity, of which the Company or one or more of its Subsidiaries
are member or shareholder and, whether or not pursuant to an agreement
with other persons entitled to vote, can jointly or by itself appoint
or remove from office more than half of the members of the board of
management or the
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<PAGE>
supervisory board, even if all the persons entitled to vote cast their
votes;
3. a company acting under its own name in which the Company or one or more
of its Subsidiaries, as partner is or are fully liable for the debts
towards creditors;
j. Supervisory Board shall mean: the supervisory board of the Company.
NAME AND SEAT
ARTICLE 2.
1. The name of the Company is: CompleTel Europe N.V.
2. Its registered seat is in Amsterdam.
3. The Company may have branch offices and branch establishments elsewhere,
both at home and abroad.
OBJECTS
ARTICLE 3.
The objects of the company are:
. to finance companies and other enterprises, to borrow, to lend and to raise
funds, to participate in all types of financial transactions, including the
issue of bonds, promissory notes or other securities or evidences of
indebtedness, to invest in securities;
. to grant guarantees, to bind the company and to grant security over its
assets, for the obligations of companies and other enterprises with which
the company is affiliated and of third parties;
. to enter into additional financial and other agreements (including swaps and
derivatives transactions) in relation to the activities named above;
. to incorporate and to participate in any way whatsoever in, to manage, to
supervise and to co-operate with companies and other enterprises, to
acquire, to keep, to alienate or in any other manner to manage all sorts of
participations and interests in other companies and other enterprises, to
enter into joint ventures with other companies and enterprises;
. to acquire, to manage, to operate, to encumber and to alienate personal and
real
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<PAGE>
property and any right to or interest in personal and real property;
. to obtain, to exploit and to alienate patents and other intellectual
property rights, to acquire and to grant licenses, sub-licenses and similar
rights of whatever name and description and if necessary, to protect rights
derived from patents and other intellectual property rights, licenses, sub-
licenses and similar rights against infringement by third parties;
. to enter into agreements concerning the indemnification of its managing
directors and its supervisory directors, and
. to undertake all that which is connected to the foregoing or in furtherance
thereof, all in the widest sense of the words.
CAPITAL AND SHARES
ARTICLE 4.
1. The authorized capital amounts to seventy-six million six hundred sixty-six
thousand five hundred thirty Euro (EURO 76,666,530).
2. It is divided into seven hundred sixty-six million six hundred sixty-five
thousand three hundred (766,665,300) shares, each with a nominal value of
ten Eurocents (EURO 0.10), consisting of three hundred eighty-three million
three hundred thirty-two thousand six hundred fifty (383,332,650) ordinary
shares and three hundred eighty-three million three hundred thirty-two
thousand six hundred fifty (383,332,650) preference shares.
Where these Articles of Association refer to shares and shareholders, these
shall be understood to refer to the aforementioned classes and holders
thereof, unless the contrary is indicated.
3. The preference shares are registered shares and are numbered consecutively.
Share certificates thereof shall not be issued. The ordinary shares shall be
registered shares.
4. If a share belongs to more than one person, the collectively entitled
parties may
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<PAGE>
only have themselves represented vis-a-vis the Company by one person.
SHARE CERTIFICATES
ARTICLE 5.
1. To the extent the Company is listed on one or more stock exchanges, ordinary
registered shares shall be available:
. in the form of an entry in the shareholders register without issue of a
share certificate; shares of this type are referred to in these Articles of
Association as type I registered shares;
. and - should the Board of Management so decide - also in the form of an
entry in the share register with issue of a certificate, which certificate
shall consist of a main part without dividend coupon; shares of this type
and share certificates relating thereto are referred to in these Articles as
type II registered shares and type II share certificates.
2. The Board of Management can decide that the registration of type I
registered shares may only take place for one or more quantities of shares -
which quantities are to be specified by the said Board - at the same time.
3. Type II share certificates shall be available in such denominations as the
Board of Management shall determine.
4. All share certificates shall be signed by or on behalf of the Board of
Management or by the CEO acting jointly with another member of the Board of
Management; the signatures may be effected by printed facsimile.
Furthermore, type II share certificates shall, and all other share
certificates may, be countersigned by one or more persons designated by the
Board of Management for that purpose.
5. All share certificates shall be identified by numbers and/or letters.
6. Subject to the approval of the Supervisory Board, the Board of Management
can
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<PAGE>
determine that for the trade at foreign exchanges share certificates shall
be issued complying with the requirements set by said foreign exchange(s)
and not provided with any dividend sheet.
7. The expression "share certificate" as used in these Articles shall include a
share certificate in respect of more than one share.
DUPLICATES
ARTICLE 6.
1. Upon written request from a shareholder, missing or damaged share
certificates, or parts thereof, may be replaced by new certificates or by
duplicates bearing the same numbers and/or letters, provided the applicant
proves his title and, in so far as applicable, his loss to the satisfaction
of the Board of Management, and further subject to such conditions as the
Board of Management may deem fit.
2. In appropriate cases, at its own discretion, the Board of Management may
stipulate that the identifying numbers and/or letters of missing documents
be published three times, at intervals of at least one month, in at least
three newspapers to be indicated by the Board of Management announcing the
application made; in such a case new certificates or duplicates may not be
issued until six months have expired since the last publication, always
provided that the original documents have not been produced to the Board of
Management before that time.
3. The issue of new certificates or duplicates shall render the original
document invalid.
SHAREHOLDERS REGISTER
ARTICLE 7.
1. Notwithstanding the provisions of the law in respect of registered shares, a
register shall be kept by or on behalf of the Company, which register shall
be regularly updated and, at the discretion of the Board of Management, may,
in
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<PAGE>
whole or in part, be kept in more than one copy and at more than one place.
If the listing of the shares of the Company on a stock exchange or a
regulated over the counter market in a country or countries other than the
Netherlands so requires, part or parts of the shareholders register may be
kept in such country or countries.
2. Each shareholder's name, his address and such further data as the Board of
Management deems desirable, whether at the request of a shareholder or not,
shall be entered in the register.
3. The form and the contents of the share register shall be determined by the
Board of Management with due regard to the provisions of paragraphs 1 and 2
of this Article.
The Board of Management may determine that the records shall vary as to
their form and contents according to whether they relate to type I
registered shares or to type II registered shares.
4. Upon request a shareholder shall be given free of charge a declaration of
what is stated in the register with regard to the shares registered in his
name, which declaration may be signed by one of the specially authorized
persons to be appointed by the Board of Management for this purpose.
5. The provisions of the last four paragraphs shall equally apply to rights of
usufruct or pledge on one or more registered shares, with the proviso that
the other data required by law must be entered in the shareholders register.
CONVERSION
ARTICLE 8.
1. Subject to the provisions of Article 5, the holder of type I registered
shares may, upon his request and at his option, have one or more type II
registered shares entered in the share register for the same nominal amount
and have issued to him one or more type II shares certificates.
-7-
<PAGE>
2. Subject to the provisions of Article 5, the holder of type II registered
shares registered in his name may, after lodging the type II share
certificates with the Company, upon his request and at his option, have one
or more type I registered shares entered in the shareholders register for
the same nominal amount.
A shareholder who requests that type I registered shares are registered in
his name may require that such shares are registered in his name in a
register held outside of the Netherlands as provided in Article 7 paragraph
1.
3. The holder of one or more share certificates may, after lodging the share
certificates with the Company, upon his request and at his option have
issued to him one or more share certificates, of the same type, and for the
same nominal amount, each for as many shares as he requests, subject however
to the provisions of Article 5, paragraph 3.
4. A request as mentioned in this Article shall, if the Board of Management so
requires, be made on a form obtainable from the Company free of charge,
which shall be signed by the applicant.
TRANSFER OF SHARES
ARTICLE 9.
1. The transfer of a registered share shall be effected either by service upon
the Company of the instrument of transfer or by written acknowledgement of
the transfer by the Company.
2. Where a transfer of a type II registered share is effected by service in
writing of an instrument of transfer on the Company, the Company shall, at
the discretion of the Board of Management, either endorse the transfer on
the share certificate or cancel the share certificate and issue to the
transferee one or more new share certificates registered in his name to the
same nominal amount.
3. The Company's written acknowledgement of a transfer of a type II registered
share shall, at the discretion of the Board of Management, be effected
either by
-8-
<PAGE>
endorsement of the transfer on the share certificates or by the issue to the
transferee of one or more new share certificates registered in his name to
the same nominal amount.
4. The provisions of the foregoing paragraphs of this Article shall equally
apply to the allotment of registered shares in the event of a judicial
partition of any community of property or interests, the transfer of a
registered share as a consequence of a judgement execution and the creation
of limited rights in rem on a registered share.
5. The submission of requests and lodging of documents referred to in Articles
5 to 9 inclusive shall be made at an address to be indicated by the Board of
Management.
Different addresses may be indicated for the different classes and types of
shares and share certificates among which in any case an address in
Amsterdam.
6. The Company is authorized to charge amounts to be determined by the Board of
Management not exceeding cost price to those persons who request any
services to be carried out by virtue of Articles 5 to 9 inclusive, provided
that a number of shares, which number shall be determined by the Board of
Management, will be combined without cost in one share certificate, which
share certificate at request of the shareholder may again without cost, be
divided in simple share certificates or in share certificates which
represent a different number of shares, which number shall be determined by
the Board of Management.
ISSUE OF SHARES
ARTICLE 10.
1. The General Meeting or the Board of Management, if designated thereto by the
General Meeting, shall resolve on further issues of shares; if the Board of
Management has been designated thereto, the General Meeting may not, as long as
such designation is valid, resolve on further issues.
-9-
<PAGE>
A resolution on the issue of shares of the Board of Management requires the
approval of the Supervisory Board.
2. The General Meeting or, as the case may be, the Board of Management shall
determine the price and further conditions of issue, with due observance of
the other relevant provisions in these Articles of Association.
3. If the Board of Management is designated as authorized to resolve on the
further issue of shares, it shall also be determined by the General Meeting
when such designation is made, how many and what class of shares may be
issued.
When such designation is made, the duration of the designation, which shall
not exceed five years, shall also be stipulated.
The designation can be renewed each time for a period of no more than five
years.
Unless otherwise stipulated when the designation is made, said designation
cannot be withdrawn.
4. If a resolution of the General Meeting pertaining to an issue or to the
designation of the Board of Management, as referred to above, is to be
valid, it shall require a prior or simultaneous positive resolution from
each group of holders of shares of the same class whose rights are affected
by the issue.
5. Within eight days after a resolution of the General Meeting on an issue or
on a designation of the Board of Management as referred to above, the Board
of Management shall submit a full text thereof at the office of the Trade
Register. The Board of Management shall notify the office of the Trade
Register of each issue of shares within eight days thereafter, stating the
number and class thereof.
6. The provisions in paragraphs 1 to 5, inclusive, of this Article shall apply
accordingly to the granting of rights to take shares but shall not apply to
the issue of shares to a person who is exercising a previously acquired
right to subscribe for shares.
-10-
<PAGE>
7. Shares shall not be issued below par value, without prejudice to the
provisions in article 80, paragraph 2 of Book 2 of the Dutch Civil Code.
On the issue of an ordinary share, at least the nominal amount shall be paid
up thereon, as well as, in the event the share is taken for a higher amount,
the difference between such amounts.
8. Upon the issue of preference shares it may be stipulated that a part of the
nominal amount, not exceeding three-fourths of the nominal amount, must be
paid up only if and when requested by the Company.
A decision of the Board of Management to request such payment requires the
approval of the Supervisory Board.
9. Payment shall be made in cash insofar as another form of payment has not
been agreed upon, without prejudice to the provisions in article 80b of Book
2 of the Dutch Civil Code.
Payment may only be made in foreign currency with the permission of the
Company and, furthermore, with due observance of the provisions in article
80a paragraph 3 of Book 2 of the Dutch Civil Code.
10. The Board of Management is authorized to effect legal transactions as
referred to in article 94, paragraph 1 of Book 2 of the Dutch Civil Code
without prior approval of the General Meeting, subject however to the
approval of the Supervisory Board.
PRE-EMPTIVE RIGHT
ARTICLE 11.
1. Each holder of ordinary shares shall have a pre-emptive right to ordinary
shares to be issued in proportion to the aggregate nominal amount of his
ordinary shares, except to the extent shares are issued to employees of the
Company or to a Group Company or to a foundation ("stichting") or similar
entity that will hold the shares on behalf of such employees.
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<PAGE>
2. When shares are issued, there shall be no pre-emptive right in respect of
shares to be issued against any payment other than in cash.
3. With due observance of this Article, the General Meeting or, as the case may
be, the Board of Management shall resolve, when the resolution in respect of
issue is passed, on the manner and time-frame within which the pre-emptive
right may be exercised.
4. The Board of Management shall announce an issue with pre-emptive right and
the time-frame within which such may be exercised in the manner as provided
in Article 23.
5. The pre-emptive right may be exercised for a period of at least two weeks
after the day of announcement.
6. The pre-emptive right may be limited or excluded by resolution of the
General Meeting.
In the proposal thereto, the reasons for the proposal and the choice of the
intended price of issue shall be explained in writing.
The pre-emptive right may, subject to approval of the Supervisory Board,
also be limited or excluded by the Board of Management, if the Board of
Management has been designated by resolution of the General Meeting for a
specific period of no more than five years as authorized to limit or exclude
the pre-emptive right;
such designation is only possible if the Board of Management has also been
designated previously or simultaneously the right to issue shares as
referred to in Article 10, paragraph 1.
The designation can be renewed each time for a period not in excess of five
years; the authority granted thereby may only be exercised with the issue of
shares to which the Board of Management has competently resolved.
Unless otherwise stipulated in the designation, it may not be withdrawn.
7. The Board of Management shall deposit a full text of the resolution of the
General
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<PAGE>
Meeting on the limitation or exclusion of the pre-emptive right or on
designation as referred to in the previous paragraph at the office of the
Trade Register.
8. In case rights to subscribe for ordinary shares are to be granted, holders
of ordinary shares shall have a pre-emptive right; the provisions stipulated
above in this Article shall apply accordingly. Shareholders shall not have a
pre-emptive right on shares to be issued to a person exercising a previously
acquired right to subscribe for shares.
OWN SHARES
ARTICLE 12.
1. Upon any issue of shares the Company may not subscribe for shares in its own
capital.
2. The Company may only acquire pursuant to a proposal of the Board of
Management and subject to approval of the Supervisory Board fully paid-up
shares in its own capital for no consideration or under universal title or
if:
a. the distributable reserves are at least equal to the price of
acquisition;
b. the nominal amount of the shares in its capital to be acquired, already
held or held in pledge by the Company or a Subsidiary does not exceed
one-tenth of the issued capital;
c. the authorization for such acquisition has been granted by the General
Meeting. Such authorization shall be valid for no more than eighteen
months. The General Meeting shall determine in its authorization the
number of shares which may be acquired, the manner in which they may be
acquired and the maximum and minimum to be observed in respect of the
price of acquisition.
For the validity of such acquisition shall be decisive the extent of the
Company's shareholders' equity according to the last-adopted balance sheet,
minus the price for the acquisition of the shares in the capital of the
Company and distributions from profits or reserves to others, which the
Company and its Subsidiaries became
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<PAGE>
indebted for after the date of the balance sheet.
If a financial year has expired for a period in excess of six months without
the Annual Accounts having been adopted, then acquisition other than under
universal title in accordance with this paragraph 2 shall not be allowed.
The authorization referred to here shall not be required, insofar as the
Company acquires own shares, listed on an official price list of a stock
exchange, in order to transfer such by virtue of an arrangement applicable
to employees of the Company or of a Group Company to such employees.
3. Neither the Company nor any of its Subsidiaries may extend loans, give
security, grant a price guarantee, guarantee in any other way or, severally
or in any other way, bind itself in addition to or for other persons with a
view to subscribing for or acquiring shares in the Company.
This prohibition shall, however, not apply if shares or depositary receipts
are subscribed or acquired by or for employees of the Company or a Group
Company.
4. Alienation of shares held by the Company in its own capital shall only be
effected pursuant to a resolution of the Board of Management, subject to the
approval of the Supervisory Board.
With the resolution in respect of alienation, the conditions of such
alienation shall also be determined.
5. No votes can be cast at a General Meeting on a share owned by the Company or
a Subsidiary thereof.
Usufructuaries and pledgees of shares which are owned by the Company and its
Subsidiaries, are not, however, excluded from exercising their voting right
if the right of usufruct or the right of pledge was created before the share
was held by the Company or a Subsidiary.
The Company or a Subsidiary cannot cast votes on a share in respect of which
it has a right of usufruct or a right of pledge.
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<PAGE>
6. In determining to which extent shareholders cast votes, are present or
represented, or to which extent the share capital is supplied or is
represented, shares in respect of which the law provides that no votes may
be cast shall not be taken into account.
7. A Subsidiary may not for its own account subscribe for shares in the capital
of the Company, nor have such done.
The acquisition of such shares may only be effected directly or indirectly
by Subsidiaries for their own account under specific title insofar as the
Company may, pursuant to the provisions laid down in the preceding
paragraphs of this Article, acquire shares in its own capital.
A Subsidiary may not,
a. after it has become a Subsidiary; or
b. after the company of which it is a Subsidiary has been converted into a
company with limited liability ("Naamloze Vennootschap"); or
c. after it has as a Subsidiary acquired shares in the capital of the
Company for no consideration or under universal title,
for a period in excess of three years hold or cause to be held for its own
account shares in excess of one-tenth of the issued capital together with
the Company and its other Subsidiaries.
CAPITAL REDUCTION
ARTICLE 13.
1. The General Meeting may, at the proposal of the Board of Management subject
to the approval of the Supervisory Board, resolve on reduction of the issued
capital by cancelling shares or by reducing the nominal amount of shares by
means of an amendment of the Articles of Association.
In this resolution, the shares to which the resolution pertains shall be
indicated and the execution of the resolution shall be laid down.
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2. A resolution to cancel shares can relate only to shares which are held by
the Company or to all outstanding preference shares.
3. Reduction of the amount of shares without repayment of capital and without
release from the obligation to pay calls shall be effected in proportion to
all the shares of one and the same class.
4. Partial repayment of capital on shares or release from the obligation to pay
calls shall only be possible in proportion to all the shares or to all the
preference shares exclusively.
5. The pro-rata requirements mentioned in paragraphs 3 and 4 of this Article
may be deviated from with the approval of all the shareholders concerned.
6. A resolution in respect of capital reduction shall require a majority of at
least two-thirds of the votes cast, if less than half the issued capital is
represented at the meeting.
7. The convocation of a meeting in which a resolution is to be passed as
referred to in this Article shall state the purpose of the capital reduction
and the manner of execution.
8. The Company is obliged to publish the resolutions referred to in this
Article in conformity with the provisions of the law.
A resolution to reduce the issued capital shall not come into force as long
as creditors of the Company may oppose the same in conformity with the
relevant provisions of the law.
RIGHT OF USUFRUCT, RIGHT OF PLEDGE
ARTICLE 14.
1. A right of usufruct or pledge may be created on a share. In that event, the
voting right shall accrue to the shareholder or the usufructuary or the
pledgee, if this has been provided for at the time of creation of the right
of usufruct or pledge.
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2. The shareholder who has no voting right and the usufructuary or pledgee who
does have a voting right shall have the rights granted by law to holders of
depositary receipts for shares issued with the cooperation of a company.
3. The rights referred to in paragraph 2 do not accrue to the usufructuary or
pledgee who has no voting rights.
4. A right of pledge may also be created without acknowledgement by or
notification to the Company.
In that event article 239 of Book 3 of the Dutch Civil Code shall apply
accordingly, in which case acknowledgement by or notification of the Company
shall replace the notification referred to in paragraph 3 of that article.
MANAGEMENT
ARTICLE 15.
1. The Company shall be managed by a Board of Management. The maximum number of
members of the Board of Management shall be three. Only natural persons may
be a member of the Board of Management. The Supervisory Board shall
determine the number of the members of the Board of Management.
2. The members of the Board of Management shall be appointed by the General
Meeting from a binding nomination, drawn up by the Supervisory Board, of at
least two nominees for each vacancy to be filled.
The binding nomination shall be drawn up within two months after the
occurrence of a vacancy to filled.
If the Supervisory Board fails to make use of its right to draw up a binding
nomination or fails to do so in a timely manner, the shareholders meeting
shall be free to make the appointment.
The General Meeting may at all times override the binding nature of the
Supervisory Board's nomination by adopting a resolution to this effect with
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two-thirds of the votes cast representing more than half of the issued
capital.
3. The General Meeting may suspend and dismiss the members of the Board of
Management.
The Supervisory Board may also suspend the members of the Board of
Management.
Other than upon a proposal thereto by the Supervisory Board, the General
Meeting may only resolve upon a suspension or dismissal of members of the
Board of Management with a majority of two-thirds of the votes cast which
represent more than half of the issued capital.
4. Even after having been extended, a suspension shall not last for more than
three months.
If no decision has been reached after that time on the lifting of the
suspension or the removal from office, the suspension shall cease to exist.
5. The Supervisory Board shall determine the remuneration and other conditions
of employment of the members of the Board of Management.
6. If there is more than one member of the Board of Management in office, the
members of the Board of Management shall mutually allocate their duties,
such subject to the approval of the Supervisory Board.
7. The Supervisory Board appoints a president (the "President") and a chief
executive officer (the "CEO") from among the members of the Board of
Management.
8. The Board of Management shall meet whenever a member of the Board of
Management shall so require.
It shall pass resolutions by an absolute majority of votes cast by all
Managing Directors in office.
Blank votes shall be considered null and void.
The Board of Management must establish rules pertaining to the decision-
making
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process of the Board of Management.
Such rules shall require the approval of the Supervisory Board.
9. The Board of Management is authorized to appoint officials who may represent
the Company and to grant to such persons any title and powers as it seems
appropriate.
10. Board of Management resolutions relating to any of the matters as shall be
determined and clearly defined by the Supervisory Board and notified to the
Board of Management shall be subject to the approval of the Supervisory
Board.
Failure to obtain the such approval from the Supervisory Board shall not
affect the Board of Management or the authority of the members of the Board
of Management to represent the Company.
REPRESENTATION
ARTICLE 16.
1. The Company shall be represented by the Board of Management except to the
extent otherwise provided by law.
In addition, the authority to represent the Company is vested in the CEO
acting jointly with another member of the Management Board.
2. In all events of the Company having a conflict of interest with one or more
members of Board of Management, the Company shall continue to be represented
in the manner described in paragraph 1 above.
In all events in which the Company has a conflict of interest with a member
of the Board of Management in his private capacity, the board resolution
regarding that relevant legal act requires the prior approval of the
Supervisory Board.
Failure to obtain the approval defined in the present paragraph shall not
affect the Board of Management or the authority of the members of the Board
of Management to represent the Company.
3. If a member of the Board of Management is absent or prevented from acting,
the remaining members of the Board of Management or the remaining member of
the
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Board of Management shall be charged with the management of the Company.
If the sole member of the Board of Management or all the members of the
Board of Management are absent or prevented from acting, the person to be
designated for that purpose by the Supervisory Board shall be charged with
the management of the Company until the situation of absence or other
prevention has ceased to exist in respect of at least one member of the
Board of Management.
SUPERVISORY BOARD
ARTICLE 17.
1. The company shall have a Supervisory Board consisting of at least three
natural persons.
The General Meeting shall determine the number of the members of the
Supervisory Board.
2. The duties of the Supervisory Board shall be the supervision of the conduct
of management by the Company's Board of Management and of the general course
of affairs of the Company and of any affiliated enterprise.
The Supervisory Board shall assist the Board of Management by rendering
advice. In performing their duties, the members of the Supervisory Board
shall be guided by the interests of the company and of any enterprise
affiliated therewith.
3. The Board of Management shall provide the Supervisory Board the necessary
information in a timely manner.
4. Members of the Supervisory Board shall be appointed by the General Meeting
from a nomination by the Supervisory Board.
These nominations are not binding on the General Meeting.
5. Members of the Supervisory Board may be suspended or dismissed by the
General Meeting at any time.
A resolution of the General Meeting to suspend or dismiss members of the
Supervisory Board not pursuant to a proposal thereto by the Supervisory
Board
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require a majority of two-thirds of the votes, representing more than half
of the issued capital.
A suspension may last no longer than three months in total, even after
having been extended one or more times.
In case no decision on a termination of the suspension or dismissal has been
made following such time, the suspension ends.
6. The Supervisory Board shall at any time have access to all buildings and
premises in use by the Company, and shall be entitled to inspect all of the
Company's books and records and to examine all of the Company's assets.
The Supervisory Board may delegate this authority to one or more of its
members, or an expert.
7. If the Supervisory Board consists of two or more members, it shall appoint a
chairman and a vice-chairman from among its members.
8. The Supervisory Board shall hold meetings as often as one or more of its
members shall desire, as often as the Board of Management shall request, or
as often as necessary in pursuance of the provisions of the present Articles
of Association.
9. The Board shall adopt resolutions by an absolute majority of the votes cast.
If there is a tie in votes the proposal shall be rejected.
The Supervisory Board may establish rules pertaining to the decision-making
process of the Supervisory Board.
10. Each member of the Board shall be entitled to cast one vote.
11. A member of the Supervisory Board may be represented at a meeting of the
Supervisory Board only by another member of the Supervisory Board.
12. The Supervisory Board may also adopt valid resolutions without convening a
meeting, provided that all of its members have been consulted and that none
has stated an objection to adopting resolutions in this manner.
13. If it is necessary to provide the shareholders or the Board of Management
with
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evidence of a resolution adopted by the Supervisory Board, the signature of
the chairman of that Board shall suffice.
INDEMNIFICATION, LIMITED LIABILITY
ARTICLE 18.
1. The Company shall indemnify any person who is or was a member of the Board
of Management or member of the Supervisory Board or proxyholder
(procuratiehouder) and who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is
or was a member of the Board of Management or member of the Supervisory
Board or proxyholder (procuratiehouder), officer, employee or agent of the
Company, or is or was serving at the request of the Company as a member of
the board of management or member of the supervisory board or proxyholder
(procuratiehouder), officer, employee, trustee or agent of another company,
a partnership, joint venture, trust or other enterprise or entity, including
with respect to employee benefit plans maintained or sponsored by the
Company or for the benefit of its or any of its group companies' employees
or consultants, (each an "Indemnitee"), against any and all liabilities
including all expenses (including attorneys' fees), judgements, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful or
outside of his mandate.
The termination of any action, suit or proceeding by a judgement, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, in and of itself, create a presumption that the person did not
act in good faith
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and not in a manner which he reasonably could believe to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
2. No indemnification pursuant to paragraph 1 of this Article shall be made in
respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for gross negligence or wilful misconduct in the
performance of his duty to the Company, unless and only to the extent that
the court in which such action or proceeding was brought or any other court
having appropriate jurisdiction shall determine upon application that,
despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification against such expenses which the court in which such action
or proceeding was brought or such other court having appropriate
jurisdiction shall deem proper.
3. Expenses (including attorneys' fees) incurred by an Indemnitee in defending
a civil or criminal action, suit or proceeding may be paid by the Company in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of an Indemnitee to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company as authorized in this Article.
Such expenses incurred by Indemnitees may be so advanced upon such terms and
conditions as the Board of Management decides.
4. The indemnification provided for by this Article shall not be deemed
exclusive of any other right to which a person seeking indemnification or
advancement of expenses may be entitled under the laws of the Netherlands as
from time to time amended or under any by-laws, agreement, resolution of the
General Meeting or of the disinterested members of the Board of Management
or otherwise, both as to actions in his official capacity and as to actions
in another capacity while
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holding such position, and shall continue as to a person who has ceased to
be a member of the Board of Management or member of the Supervisory Board,
or proxyholder (procuratiehouder), officer, employee, trustee or agent and
shall also inure to the benefit of the heirs, executors, administrators and
the estate of such a person.
The Company may, to the extent authorized from time to time by the Board of
Management, grant rights to indemnification and to the advancement of
expenses to any Indemnitee to the fullest extent of the provisions of this
Article 18 with respect to the indemnification and advancement of expenses
of Indemnitees.
5. The Company may purchase and maintain insurance on behalf of any Indemnitee,
whether or not the Company would have the power to indemnify him against
such liability under the provisions of this Article.
6. Whenever in this Article reference is made to the Company, this shall
include, in addition to the resulting or surviving company also any
constituent company (including any constituent company of a constituent
company) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power to indemnify its members
of the board of management or members of the supervisory board, or
proxyholders (procuratiehouder), officers, employees and agents, so that any
person who is or was a member of the supervisory board, member of the board
of management, or proxyholder (procuratiehouder), officer, employee or agent
of such constituent company, or is or was serving at the request of such
constituent company as a member of the supervisory director, member of the
managing board, or proxyholder (procuratiehouder), officer, employee,
trustee or agent of another company, a partnership, joint venture, trust or
other enterprise or entity, shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
company as he would have with respect to such constituent company if
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its separate existence had continued.
7. No person shall be personally liable to the Company or its shareholders for
monetary damages for breach of fiduciary duty as a member of the Board of
Management or member of the Supervisory Board or proxyholder
(procuratiehouder); provided, however, that the foregoing shall not
eliminate or limit the liability of a member of the Board of Management or
proxyholder (procuratiehouder) (1) for any breach of such individual's duty
of loyalty to the Company or its shareholders, (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (3) for any transaction from which the member of the Board of
Management or member of the Supervisory Board or proxyholder
(procuratiehouder) derived an improper personal benefit or (4) for personal
liability which is imposed by Dutch law, as from time to time amended.
8. No amendment, repeal or modification of this Article 18 shall adversely
affect any right or protection of any person entitled to indemnification or
advancement of expenses under this Article 18 prior to such amendment,
repeal or modification.
FINANCIAL YEAR, ANNUAL ACCOUNTS, ANNUAL REPORT AND PUBLICATION
ARTICLE 19.
1. The financial year shall be equal to the calendar year.
2. Each year, within five months after the close of the financial year -subject
to extension of this period by the General Meeting on the grounds of
circumstances of an exceptional nature by at most six months - the Board of
Management shall draw up the Annual Accounts.
Within this period the Board of Management shall also submit the annual
report.
The Annual Accounts shall be signed by all the members of the Board of
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Management and all the members of the Supervisory Board. If the signature of
one or more of them is missing, mention thereof shall be made and the reason
therefor stated.
3. The Board of Management shall submit the Annual Accounts to the General
Meeting.
4. From the day the Annual Meeting has been convened until the close of that
meeting, the documents referred to in paragraph 2 of this Article shall,
together with the information to be added pursuant to article 392 of Book 2
of the Dutch Civil Code, be deposited at the Company's offices and in
Amsterdam at the place to be mentioned in the convocation for inspection by
all shareholders and other parties with meeting rights and each of them may
obtain copies thereof at no cost.
5. The General Meeting shall adopt the Annual Accounts.
The adoption of the Annual Accounts shall discharge the members of the Board
of Management for their management and the members of the Supervisory Board
for their supervision, insofar as such management and such supervision is
apparent from the Annual Accounts.
6. The Annual Accounts may not be adopted by the General Meeting if they have
been unable to ascertain to their satisfaction the statement of the auditor
referred to in Article 20, paragraph 1, which must be attached to the Annual
Accounts, unless the other information include mentioning of a legal ground
why the statement is lacking.
7. The Company shall procure the publication of the documents and information
referred to in this Article, if and insofar as and in the manner as
prescribed in articles 394 et seq. of Book 2 of the Dutch Civil Code.
AUDITOR
ARTICLE 20.
1. The General Meeting shall give, without prejudice to any relevant statutory
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provisions, an auditor ("register accountant") or another expert as referred
to in article 393 of Book 2 of the Dutch Civil Code or an organization in
which such experts are working together, the instruction to examine and
audit the Annual Accounts.
That expert shall report on his audit to the Board of Management and the
Supervisory Board and shall lay down the result of his audit in a report,
stating whether the Annual Accounts give a true and fair view of the
financial position of the Company.
2. If both the General Meeting and the Supervisory Board fail to appoint an
auditor then the Board of Management shall be competent to do so.
3. The General Meeting or the party who gave the instruction, shall at all
times be authorized to cancel the instruction mentioned in this Article.
The Supervisory Board may cancel an instruction by the Board of Management
additionally.
PROFITS
ARTICLE 21.
1. The Company may make distributions to the shareholders and to other persons
entitled to the profits only up to a sum not exceeding the amount of the
distributable reserves.
2. Profits shall be distributed after adoption of the Annual Accounts showing
such is allowed.
3. Each year, the Board of Management subject to approval of the Supervisory
Board, shall determine which part of the profits - the positive balance of
the profit and loss account - shall be reserved.
4. From the profits remaining after reservation according to the above, a
dividend shall be distributed on the preference shares equal to the average
rate of Euribor plus two calculated over the amounts paid on such shares,
the average being taken
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over the number of days this rate applied over the financial year concerned.
5. The balance then remaining shall be distributed as a dividend on ordinary
shares.
6. In calculating the profit appropriation, the shares held by the Company in
its own capital shall not count, unless a usufruct has been created on these
shares.
7. Insofar as profit is available in the Company, the Board of Management,
subject to approval of the Supervisory Board, may resolve on payment of an
interim di vidend on account of the expected dividend, provided always that
the provisions laid down in paragraph 1 of this Article have been satisfied,
such to be shown by an interim balance sheet as referred to in article 105
paragraph 4 of Book 2 of the Dutch Civil Code.
8. The General Meeting may, following a proposal of the Board of Management,
which has been approved by the Supervisory Board, resolve to make
distributions to the holders of ordinary shares from one or more reserves
which need not be maintained pursuant to the law or to these Articles of
Association.
The provisions of the paragraphs 1, 2, 7 and 9 apply accordingly.
9. The resolutions to distribute (interim) dividends may entail that (interim)
dividends will be wholly or partly distributed not in cash, but in the form
of shares in the Company or in a Subsidiary.
10. The (interim) dividend shall be made payable on a day to be determined by
the Board of Management.
11. (Interim) dividends which have not been collected within five years after
they became payable shall be forfeited to the Company.
ANNUAL MEETING
ARTICLE 22.
The Annual Meeting shall be held within six months after the close of the
financial year, for the purpose of:
a. the discussion of the Annual Accounts and of the other information referred
to in
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article 392 of Book 2 of the Dutch Civil Code, except in case extension has
been granted for the preparation of the Annual Accounts pursuant to article
101 of Book 2 of the Dutch Civil Code;
b. adoption of the Annual Accounts, unless an extension as referred to in
paragraph a. of this Article has been granted;
c. delivery of the written report made by the Board of Management on the state
of the Company's affairs and the management conducted during the past
financial year, unless an extension as referred to in a. above has been
granted;
d. effecting all such things as furthermore prescribed by the law;
e. dealing with all such further items of business as stated in the convocation
of the meeting.
CONVOCATION
ARTICLE 23.
1. All convocations for the General Meeting and all announcements,
notifications and communications to shareholders and other parties with
meeting rights shall be effected by means of letters sent to the addresses
as recorded in the register referred to in Article 7, without prejudice to
the relevant provisions of the law.
2. The convocation shall be effected no later than on the fifteenth day before
the day of the meeting.
3. In the convocation the agenda shall be given or it shall be communicated
that shareholders and other parties with meeting rights may inspect the
agenda at the offices of the Company, without prejudice to the relevant
provisions of the law.
4. Insofar as all documents which must be available for inspection by
shareholders and other parties with meeting rights have not been included in
the convocation, these documents shall be made available at the offices of
the Company and, if the Company is listed on a stock exchange, with such
paying agent as referred to in the rules relating to securities of such
stock exchange, to be designated in the
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convocation for shareholders and other parties with meeting rights at no
cost.
OTHER GENERAL MEETINGS
ARTICLE 24.
1. Other General Meetings shall be held whenever the shareholders and other
parties with meeting rights shall be called and convened for that purpose by
the Board of Management or by the Supervisory Board.
2. If one or more shareholders and/or other parties with meeting rights,
jointly representing at least one-tenth of the issued capital, have
requested the Board of Management or the Supervisory Board in writing to
call and convene a General Meeting, at the same time specifying the items of
the agenda, and the Board of Management or the Supervisory Board has not
complied with such request in such a way that the General Meeting can be
held within six weeks following such request, they shall be authorized to
call such meeting themselves.
PLACE, CHAIRMANSHIP, MINUTES
ARTICLE 25.
1. General Meetings shall be held in Amsterdam, Schiphol (Haarlemmermeer) or
The Hague, at a location to be stated in the convocation.
2. General Meetings shall be presided over by the chairman of the Supervisory
Board; if the chairman is absent, the member of the Supervisory Board
designated by the Supervisory Board shall preside and if such member is
absent, the Meeting itself shall choose its chairman.
Until that moment a member of the Board of Management designated by the
Board of Management shall preside temporarily.
3. Minutes shall be kept of the business transacted at the meeting. The minutes
shall be acknowledged, in evidence whereof the chairman and the person who
took the minutes shall sign them.
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Minutes need not be taken of the business transacted if a notarial record is
made.
ACCESS
ARTICLE 26.
1. All members of the Board of Management and of the Supervisory Board,
shareholders and other parties with meeting rights or their authorized
agents - the latter with due observance of the provisions of Article 27 -
shall be entitled to attend the General Meeting, to address the meeting and,
insofar as they have voting rights, to cast their vote thereat.
In order to exercise that right holders of ordinary registered shares,
usufructuaries and pledgees of registered shares with the rights granted by
law under article 88 casu quo article 89 of Book 2 of the Dutch Civil Code
to holders of depositary receipts issued with the cooperation of a company
must express their desire to do so to the Company in writing, such no later
than at the time and place mentioned in the convocation and also - insofar
as it concerns type II registered shares - stating the indentifying number
of the share certificate.
2. The time referred to in the previous paragraph cannot be set earlier than on
the seventh day before the day of the meeting.
3. If the voting right on a share accrues to the usufructuary or the pledgee
instead of to the shareholder, the shareholder shall also be authorised to
attend the General Meeting and address it, provided that the Company has
been notified of the intention to attend the meeting in accordance with
paragraph 1.
4. The chairman of the meeting shall decide on access to the meeting by others
than those who are entitled thereto by law.
POWER OF ATTORNEY
ARTICLE 27.
Shareholders and other parties with meeting rights may have themselves
represented by written power of attorney. The Company shall be notified hereof
in accordance
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with the provisions of Article 26, paragraph 1 of the Articles of Association.
VOTES
ARTICLE 28.
1. Each person entitled to vote or his representative must sign the attendance
list.
2. Each share confers the right to cast one vote.
3. The Board of Management, subject to the prior approval of the Supervisory
Board, is authorized to provide in the convocation notice for a meeting,
that shareholders and other parties with meeting rights will only be
considered as shareholders or parties with meeting rights if they are
registered in a register designated for that purpose by the Board of
Management at such time as determined by the Board of Management,
irrespective of who at the time of the actual meeting is entitled to the
shares or depositary receipts.
The last day of registration may not be determined to be earlier than on the
seventh day before the day of the meeting.
The convocation notice shall stipulate the day of registration as well as
the manner in which the shareholders and other parties with meeting rights
may have themselves registered and the manner in which those rights can be
exercised.
4. Insofar as the law or these Articles of Association do not prescribe a
greater majority, resolutions are passed by an absolute majority of the
votes cast.
Resolutions of the General Meeting can only be adopted validly in a meeting
in which no less than one-third of the issued capital is represented.
A new meeting as referred in article 120 paragraph 3 of Book 2 of the Dutch
Civil Code cannot be convened.
5. All votes shall be oral votes.
However, the chairman may resolve to have votes cast by ballot. In the event
of an election of persons, a person with voting rights present at the
meeting may also require that the votes be cast by ballot.
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Voting by ballot shall be effected with closed, unsigned ballot papers.
6. If the votes are tied the drawing of lots shall decide if it concerns an
election of persons and the motion shall be defeated if it concerns an item
of business.
7. Blank votes and invalid votes shall count as not having been cast.
8. The Board of Management shall keep records of the resolutions passed.
The notes shall be deposited at the offices of the Company for inspection by
shareholders and other persons with meeting rights who shall if so requested
be furnished with a transcript or extract of these notes at no more than the
cost price.
AMENDMENT OF ARTICLES OF ASSOCIATION AND LIQUIDATION
ARTICLE 29.
1. A resolution of the General Meeting to amend the Articles of Association or
to dissolve the Company may only be taken at the proposal of the Board of
Management, which proposal shall require the approval of the Supervisory
Board.
2. The full proposal shall be deposited for inspection by the shareholders and
other parties with meeting rights at the offices of the Company at a
location to be mentioned in the convocation as of the day of convocation to
the General Meeting until the conclusion thereof; the transcripts of this
proposal shall be made available for the shareholders and other parties with
meeting rights at no cost.
3. A resolution to dissolve the Company may only be adopted in a General
Meeting with a majority of no less than three-fourths of the votes cast.
4. Upon the dissolution of the Company the liquidation shall be effected by the
Board of Management.
5. During the liquidation the provisions of these Articles of Association shall
remain in full force as much as possible.
6. The balance of the liquidation shall be distributed as follows:
a. to the holders of preference shares, the amount paid on such
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shares;
b. the remaining balance shall be distributed to the holders of ordinary
shares in proportion to everyone's nominal possession of said shares.
7. The books and records of the Company shall be kept for ten years after the
completion of the liquidation by the party designated for that purpose by
the General Meeting.
FINAL STATEMENTS.
Finally the appearing person declared:
. that the issued capital amounts to [fifteen million three hundred thirty-
three thousand three hundred six Euro (EURO 15,333,306)], divided into [one
hundred fifty-three million three hundred thirty-three thousand sixty
(153,333,060)] ordinary shares, each with nominal value of ten Eurocents
(EURO 0.10);
. that on [ ] under number N.V.1.055.197 the Minister of Justice has -
according to the certificate attached to this deed - advised that no
objections to the present amendment to the articles of association have been
apparent.
This deed was executed today in Amsterdam.
The substance of this deed was stated and explained to the appearing person.
The appearing person declared not to require a full reading of the deed, to have
taken note of the contents of this deed and to consent to it.
Subsequently, this deed was read out in a limited form, and immediately
thereafter signed by the appearing person and myself, civil-law notary, at [ ].
-34-
<PAGE>
Exhibit 10.17
_____________________________________________________________________________
COMPLETEL EUROPE N.V.
2000 STOCK OPTION PLAN
amended and restated, effective February 18, 2000
_____________________________________________________________________________
<PAGE>
INTRODUCTION
The following represents the stock option plan (the "Plan") of CompleTel Europe
N.V., a company incorporated under the laws of the Netherlands, having its seat
(statutaire zetel) at Amsterdam and its registered address at Kruisweg 609, 2132
NA Hoofdorp, The Netherlands, registered with the Amsterdam Chamber of Commerce
under number 34108119 and its principal place of offices at Washington Plaza
Immeuble Artois, 44 rue Washington, 750009 Paris CEDEX 08, France (the
"Company"), as adopted on December 10, 1999.
ARTICLE 1. - Definitions
For the purposes of this Plan,
(i) "Affiliated Company" means (a) a company in which the Company
directly or indirectly owns a majority of the shares of stock or
other capital interest of that company, (b) a company that directly
or indirectly owns a majority of the shares of stock or other capital
interest of the Company, or (c) a company in which CompleTel LLC, a
limited liability company formed under the laws of the State of
Delaware, United States of America, directly or indirectly owns 100%
of the shares of stock or other capital interest.
(ii) "Board of Directors" means the board of management of the Company, or
such other body that serves as the Company's governing body, with
ultimate authority over the management and control of the Company.
(iii) "Employee" means any member of the board of management in their
capacity as beneficiaries under the Plan and any employee of a Group
Company.
(iv) "Group Company" means the Company or one of its Affiliated Companies.
(v) "Option" means a right to subscribe for or purchase Shares pursuant
to this Plan.
(vi) "Option Date" means in relation to any Options, the date on which the
Options are, were or are to be granted.
(vii) "Option Term" means the period during which an Option is
exercisable, which shall be established by the Board of Directors or
the Company's shareholder pursuant to Article 5.5.
(vii) "Shares" means the ordinary shares in the capital of the Company.
CompleTel NV 03/21/00 Page 1
<PAGE>
ARTICLE 2. - Granting of Options
2.1 The Company may grant Options to Employees upon the approval of the
Board of Directors. No Option shall be granted to an Employee unless the
Employee and the Company or Affiliated Company, as the case may be, have entered
into an employment agreement that specifies the terms and conditions of the
Employee's performance of services for the Company or Affiliated Company and is
in full force and effect on the date the Option is granted to the Employee.
2.2 The total number of Shares with respect to which Options may be
granted pursuant to this Plan shall be 3,783,991 of three Guilder cents (NLG
0.03) each. Shares issued or issuable upon exercise of Options shall be applied
to reduce the maximum number of Shares available for use under the Plan. Shares
underlying expired or terminated and unexercised Options are available for
reissue for grant of Options under this Plan.
2.3 In case any of the events mentioned in Article 4.2 occurs, the Board
of Directors will adjust the maximum number of Shares under Article 2.2
accordingly.
2.4 Options granted pursuant to this Plan shall be evidenced by an Option
agreement signed by the Employee to indicate his or her acceptance of its terms.
The agreement shall state the Option Date, the number of Shares subject to the
Option, any vesting provisions, the Option Price, and any exercise time or
performance requirement or other requirements not inconsistent with the terms of
this Plan imposed by the Board of Directors. Subject to the preceding sentence,
the Option agreement shall be in such form as the Board of Directors shall
prescribe from time to time; provided however, that the Board of Directors may
determine that the grantees shall be notified of the grant of Options, with the
notice specifying the terms and conditions described in this Article 2.4 and
such other terms and conditions as the Company's shareholder, if required by
applicable law, or the Board of Directors determines shall be applicable to an
Option grant.
ARTICLE 3. - Option Terms
The Board of Directors shall have the discretion and authority to grant
Options with such terms, which may be different from the general terms set forth
in this Plan, as provided in an Appendix to the Plan or as the Board of
Directors determines to be necessary or appropriate in order to comply with the
laws of the country in which the Employee resides or is employed or for whatever
reason. The Board of Directors may delegate its authority under this Plan to a
subcommittee of the Board of Directors and such other individuals as the Board
of Directors may appoint to serve on the subcommittee. The power and authority
delegated to the subcommittee shall be subject to such restrictions and
conditions as the Board of Directors, in its sole discretion, may impose. The
delegation shall be as broad or as narrow as the Board of Directors shall
determine. However, if the law of the country in which the Employee resides or
works requires that Options be granted by the Board of Directors, then Options
granted to Employees living or working in that country shall be granted only by
the Board of Directors and there shall be no delegation of authority by the
Board of Directors with respect to such Options.
ARTICLE 4. - Option Price
4.1 The price to be paid to acquire the Shares ("the Option Price") will
be at least equal to the fair market price of the Shares at the date of the
grant. Fair market value shall be determined (a) in
CompleTel NV 03/21/00 Page 2
<PAGE>
accordance with Article 8.2 or (b) if such laws are applicable to this Plan and
are mandatory, under the laws of the country in which the Employee to whom the
Option is granted works or resides.
4.2 If after the Option date one of the following events occurs:
. a split of the Shares in Shares with a lower value;
. a repayment of capital on the Shares;
. the issue of shares in the capital of the Company out of the
retained earnings or the capital surplus account;
. a recapitalization, spinoff or other dilutive change in the
Company's capital structure;
then the Option Price and/or the number of the Shares with respect to which
Options have been granted will be adjusted if reasonably necessary, in such a
way that the intrinsic value of the Options immediately after the above-
mentioned occasions is equal to the intrinsic value of the Options immediately
before such occasion.
The Company will inform the Employee in writing of any adjustment of the
Option Price and/or the number of the Shares with respect to which Options have
been granted.
ARTICLE 5. - Exercise and Non-transferability
5.1 Options may only be exercised by the Employee, or if the Employee
shall become permanently disabled or has deceased, by the administrator of the
Employee's estate or his or her heirs (hereinafter jointly and severally
referred to as the "Legal Successors").
5.2 Options may be exercised in full or in part.
5.3 Options will be exercised via written notice from the Employee or the
Legal Successors to the Company. Any such notice will state the number of
Shares to be acquired pursuant to such exercise.
5.4 An Option granted to an Employee shall not be transferable by the
Employee other than by will or the laws of descent and distribution. An Option
granted to an Employee shall not be assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process.
5.5 At the time an Option is granted, the Board of Directors or , if
required by the law of country in which the Employee works or resides, the
Company's shareholder shall determine the length of the Option Term; provided
however, that the Option Term must end, in all cases, not more than ten years
from the date the Option is granted. The Option Agreement, if applicable, shall
also set forth any installment or other restrictions on exercise of the Option
during such period, if any, as may be determined by the Board of Directors.
Each Option shall become exercisable and unconditional at such times or upon
such events, as determined by the Board of Directors and as specified in the
Option Agreement or in an Appendix to the Plan. An Option may be exercised only
during the Option Term, except as provided in Article 7, and at such times as it
has become exercisable and unconditional.
CompleTel NV 03/21/00 Page 3
<PAGE>
ARTICLE 6. - Delivery of Shares and Related Matters
6.1 Within seven days after the exercise of an Option, the Company will
transfer the number of Shares in respect of which the Option is exercised
against payment in full of the Option Price. However, the Company shall not be
obligated to transfer any Shares unless the Employee has made arrangements
satisfactory to the Company to satisfy all withholding requirements.
6.2 The Employee and the Legal Successors shall not bear any transaction
costs related to the obtaining Shares.
6.3 Unless provided otherwise in the option agreement between the Company
and the Employee or in an Appendix to this Plan reflecting the applicable and
mandatory the laws of the jurisdiction in which the Employee works or resides,
the Shares acquired pursuant to the exercise of an Option shall not be
transferred or disposed of in any manner for six months from the date the Shares
are acquired.
ARTICLE 7. - Consequences of Termination of Employment
7.1 If the Employee is no longer employed by a Group Company because of
retirement, early retirement, permanent disability or death, the unexercised
Options (if any) will expire one year after the date of such termination, or at
the end of the Option Term, whichever is earlier; it being understood that in
the case of the death of an employee, the expiration shall never be earlier than
6 months after the date of death. Such unexercised Options may be exercised
only to the extent that they were vested, exercisable, and unconditional on the
date of termination of employment or the date of death, as applicable.
7.2 If the Employee is dismissed by the Company because of a so-called
"urgent reason" ("dringende redenen") under Dutch law or similar reason under
the laws of the jurisdiction in which the Employee is employed, or because of
documented and material non-performance by the Employee, then all Options shall
expire immediately and without notice.
7.3 If the Employee is no longer employed within a Group Company for a
reason other than those referred to in Article 7.1 or 7.2 (or in case of a
dispute, it is determined that the Company's claim on the application of Article
7.2 was not justified), any unexercised Options will expire 30 days after the
termination of employment, or at the end of the Option Term, whichever is
earlier. Such unexercised Options may be exercised only to the extent that they
were vested, exercisable, and unconditional on the date of the termination of
employment.
7.4 For the benefit of the Employee concerned, at the time an Option is
granted,the Board of Directors may decide to deviate from the provisions under
Article 7.
ARTICLE 8. - Fair Market Value of the Shares
8.1 All sections of Article 8 will only apply if the Shares are not listed
on a stock exchange.
8.2 Unless it is required under the laws of the country in which the
Employee to whom the Option is granted works or resides to determine fair market
CompleTel NV 03/21/00 Page 4
<PAGE>
value by another method, the fair market value as referred to in this Article
shall be determined by the Board of Directors according to procedures
established by the Board of Directors. It is anticipated that the procedures
will include the manner in which a professional advisor may be engaged by the
Board of Directors in its sole discretion in order to verify the valuation and
the manner in which a disagreement between an Employee and the Company regarding
the fair market value will be settled, including an objective mechanism
involving a professional advisor not involved in the first determination
verifying whether or not the determination of the fair market value by the Board
of Directors is reasonable.
To avoid excessive administration, the fair market value under this Article 8
will be established no more frequently than once every six months using the then
current valuation methodology, and the most recent prior valuation shall be
deemed to be the fair market value at the relevant date. If there has been an
event which in the sole discretion of the Board of Directors is likely to have a
material effect on the fair market value then a new valuation may be carried
out.
ARTICLE 9. - Taxes and Social Security Premiums; Withholding
9.1 In accordance with the laws of the jurisdiction in which the Employee
works or resides, the Company or any Affiliated Company shall be entitled to
withhold, and the Employee shall be obliged to pay, the amount of any tax,
social security contributions, or any other charges attributable to or payable
in connection with the grant, vesting or exercise of any Option.
9.2 The Board of Directors may establish appropriate procedures to provide
for any such payment and to ensure that the Company or the Affiliated Company
receives advice concerning the occurrence of any event that may create, or
affect the timing or amount of, any obligation to pay or withhold any such taxes
or social security contributions or which may make available to the Company or
such Affiliated Company any tax deduction resulting from the occurrence of such
an event.
9.3 The Company or any Affiliated Company may, by notice to the Employee and
subject to such rules as the Board of Directors may adopt, require that the
Employee pay at the time of exercise of any Option an amount estimated by the
Company or any Affiliated Company to cover all or a portion of the tax and/or
employee's social security or other contributions payable in connection with the
grant, vesting or exercise of any Option. Alternatively, the Company or any
Affiliated Company may deduct from salary or other sums payable to the Employee
at any time after the exercise of an Option such amounts as may be necessary to
cover tax and/or employee's social security or other contributions payable in
connection with the grant, vesting or exercise of the Option to the extent that
such deductions are permitted under applicable law.
9.4 Any tax or social security or other contributions payable by the
Employee or his Legal Successors with respect to the granting, maintaining or
the exercising of the Options or the sale of the Shares is for the account of
the Employee or his Legal Successors, respectively.
9.5 If (part of) the Options are not exercised, any tax and/or social
security premiums paid will not be refunded or compensated by the Company.
9.6 The Company's obligation to transfer any Shares upon exercise of an
Option are subject to the Employee's satisfaction of all withholding obligations
attributable to the grant, vesting, or exercise of any Option.
CompleTel NV 03/21/00 Page 5
<PAGE>
ARTICLE 10. - Merger and Take-over
10.1 In case of change of control (or ownership) of 50 percent or more of
the Shares of the Company or merger of the Company with another enterprise to
which the Shares in the Company have to be surrendered in exchange for the issue
of other shares or in case of 50 percent or more of the Shares in the Company
are taken over (collectively, a "Change of Control"), the Company may make
provision for such disposition or adjustment of the Options as the Board of
Directors determines, in its sole discretion, to be equitable.
Furthermore, should an Employee be dismissed after a Change of Control, other
than for "urgent reasons" ("dringende redenen"), Article 7.3 shall not be
applicable to such Employee for any Options still held by such Employee, it also
being understood that the Employee concerned shall have a one year period from
the effective date of termination of the employment (or the end of the Option
Term, whichever comes earlier) to exercise the Options concerned.
10.2 In the case of a merger or other reorganization in which the Company
is not the surviving entity, the Board of Directors may require holders of
Options to exchange their Options for new options under the new merged entity's
stock option plan, provided always that such new options will be at least
equivalent in value to the Options, or may provide for such other adjustment to
the Options that the Board of Directors, in its sole discretion, deems
equitable.
10.3 In the case of any event described in section 10.1 or section 10.2,
the Board of Directors may, in its sole discretion, cause any or all outstanding
Options to become fully vested at the time or times designated by the Board of
Directors.
ARTICLE 11. - Employment
Neither the grant of the Options nor this Plan itself or any provision
therein shall be interpreted as an obligation of the Company or an Affiliated
Company to employ the Employee for a certain period of time or to guarantee him
a certain salary or position.
ARTICLE 12. - Insider Trading Rules
By accepting the Options, the Employee agrees to adhere to the insider
trading rules to be issued by the Company.
ARTICLE 13. - Notices
13.1 Notices pursuant to this Plan to be submitted by the Company to the
Employee, shall be deemed to be addressed correctly if they have been sent to
the address of the Employee as known by the personnel department of the Group
Company concerned.
13.2 Notices pursuant to this Plan to be submitted by the Employee to the
Company, shall be deemed to be addressed correctly if they have been sent to the
address of the Company as known with
CompleTel NV 03/21/00 Page 6
<PAGE>
the Chamber of Commerce in Amsterdam, with a copy to the Controller of the
Company at Washington Plaza Immeuble Artois, 44 rue Washington, 750009 Paris
CEDEX 08, France.
ARTICLE 14. - Amendment and Termination
The Board of Directors may at any time terminate, and at any time and from
time to time may amend or modify, the Plan. No amendment, modification or
termination of the Plan shall in any manner adversely affect any Options,
theretofore granted under the Plan, without the consent of the Employee holding
such Options.
ARTICLE 15. - Choice of Law and Jurisdiction
This Plan will be governed by Netherlands law. All disputes arising in
connection with this Plan, except for disputes arising under article 8.2, shall
be brought before the competent court in the district of Amsterdam.
CompleTel NV 03/21/00 Page 7
<PAGE>
APPENDIX A
Grants to Employees Resident in France (French Option Grants)
-------------------------------------------------------------
Options granted to Employees who are resident in France shall be granted under
the rules in this Appendix
Such Options shall be designated "French Options" in the applicable Option
Agreement.
Except as set forth in this Appendix, Options granted under this Appendix shall
be deemed to have been granted under the Plan as if the same had been
incorporated into this Appendix.
The following provisions shall apply in addition to or in substitution for, as
the case may be, the provisions contained in the body of the Plan.
Option Price:
Article 4 shall be amended by the insertion of the following:
"If the shares are listed on a stock exchange, fair market value shall be
equal to or higher than the highest of the two following limits: (i) 80%
of the average quotation price for the last 20 days of the stock market
trading preceding the day the Option is granted or (ii) 80% of the average
purchase price of the shares that are held by the Company in view of the
attribution to the beneficiaries of the Option. If the shares are not
listed on a stock exchange, the fair market value shall be calculated on
the basis of the guidelines set by the Company's shareholder, based on the
report of the statutory auditors."
Article 4.2 of the Plan shall be deleted and replaced by the following:
"If after the Option date one of the following events occurs:
. a reduction of share capital necessary under French law when the
company's equity is reduced to less than half the share capital;
. a capital increase by capitalization of retained earnings, profits,
or issue premium;
. a capital increase in cash;
. a free distribution of shares and/or retained earnings, either in
cash or in securities;
. the issue of convertible bonds or exchangeable bonds, or bonds with
subscription rights attached;
. the issue of preferred shares without voting rights;
. the Company is listed on a regulated market and has purchased its
own Shares at a purchase price that is higher than the list price
of the Shares;
CompleTel NV 03/21/00 Page 8
<PAGE>
then the Option Price will be adjusted in compliance with French law and
regulations; moreover, in order to permit the Employee to invest, at the
time of the exercise of the Options, an amount that is equal to the amount
that was contemplated at the time when he accepted the Option, the number
of Shares with respect to which the Option has been granted will be
adjusted in a manner whereby the total amount of the purchase by the
Employee of such Shares will remain the same."
Granting of Options:
Article 2 of the Plan shall be amended by the insertion of the following:
"Options may be granted only to Employees under this Appendix provided,
however, that directors who are also Employees of the Company or Affiliated
Company may be granted Options."
Option Term:
Article 5.5 of the Plan shall be amended by the insertion of the following:
"An Option may be exercised for a period of ten years after the date it is
granted, to the extent the Option has become unconditional and
exercisable."
Restriction on Sale:
Article 6.3 of the Plan shall be amended by the insertion of the following:
"The Shares acquired pursuant to the exercise of an Option shall not be
transferred or disposed of in any manner prior to the fifth (5th )
anniversary following the allocation of Options."
Vesting and Exercisability:
An Option shall not be vested or exercisable for two years after the date of
grant (allocation) of the Option. The Option shall become vested and
exercisable beginning on the third anniversary of the date of grant (allocation)
if the Employee is employed on each vesting date and has been employed
continuously by a Group Company since the date of grant (allocation), according
to the following schedule:
----------------------------------------------------
Anniversary of Percentage of Shares
Date of Grant Becoming Vested and
Exercisable on Each Date
----------------------------------------------------
First 0%
----------------------------------------------------
Second 0%
----------------------------------------------------
Third 60%
----------------------------------------------------
Fourth 20%
----------------------------------------------------
Fifth 20%
----------------------------------------------------
CompleTel NV 03/21/00 Page 9
<PAGE>
An Option shall not be vested and exercisable as to any shares as to which the
vesting requirement specified above has not been satisfied, regardless of the
circumstances under which the Employee's employment shall be terminated. Except
as provided in Article 7 of the Plan, the number of shares as to which the
Option may be exercised shall be cumulative, so that once the Option shall
become vested and exercisable as to any shares, it shall continue to be
exercisable and exercisable as to such shares, until expiration or termination
of the Option. If at any time the number of shares that are vested and
exercisable includes a fractional share, the number of shares as to which the
Option shall actually be vested and exercisable shall be rounded down to the
next whole share.
CompleTel NV 03/21/00 Page 10
<PAGE>
APPENDIX B
Grants to Employees Resident in the United Kingdom (U.K. Options)
-----------------------------------------------------------------
NOTE: This Appendix applies to grants under an "approved" plan. Until the
shares are listed, the plan cannot be an "approved " plan. Provided however,
that the rules under "Vesting and Exercisability" at the end of this Appendix
shall apply to Options granted before the Plan is an "approved" plan.
When the plan is an "approved" plan, Options granted to Employees who are
resident in the United Kingdom shall be granted under the rules in this
Appendix. Provided however, that the rules under "Vesting and Exercisability"
at the end of this Appendix shall apply to Options granted before the Plan is an
"approved" plan.
Such Options shall be designated "U.K. Options" in the applicable Option
Agreement.
Except as set forth in this Appendix, Options granted under this Appendix shall
be deemed to have been granted under the Plan as if the same had been
incorporated into this Appendix.
The following provisions shall apply in addition to or in substitution for, as
the case may be, the provisions contained in the body of the Plan.
Option Price:
Article 4 shall be amended by the insertion of the following:
"An Employee shall not be granted an Option that would cause the fair
market value of the Shares subject to the Option to exceed the amount
permitted under paragraph 28(1) of Schedule to the United Kingdom Income
and Corporation Taxes Act 1988 (currently (Pounds)30,000). When
determining whether this amount has been reached, the market value of
Shares subject to the Option that is to be granted to the Employee shall be
included as well as the market value of Shares that the Employee may
acquire upon exercising Options under the Plan or any other Inland Revenue
approved scheme established by the Company or by any Affiliated Company."
Article 4 shall be amended by the insertion of the following:
"The Board of Directors shall obtain the approval of the Inland Revenue
before making any adjustment under Article 4.2."
Exercise of Option:
Article 5.5 shall be amended by the insertion of the following:
"Each Option shall become exercisable and unconditional three years
following the date of grant."
To the extent that this Appendix B provides otherwise with respect to vesting
and exercisability of the Option, the provisions of this Appendix B shall
control.
CompleTel NV 03/21/00 Page 11
<PAGE>
Amendment and Termination:
Article 14 shall be amended by the insertion of the following:
"If the Inland Revenue approved status of the Plan is to be maintained, no
amendment or alteration of the Plan made after it has been approved under the
provisions of Parts I, II and IV of Schedule 9 to the United Kingdom Income and
Corporations Act of 1988 will have effect until such amendment has been approved
by the Inland Revenue if such amendment or alteration requires the approval of
the Inland Revenue.
Vesting and Exercisability:
An Option shall not be vested or exercisable for one year after the date of
grant (allocation) of the Option. The Option shall become vested and
exercisable beginning on the first anniversary of the date of grant (allocation)
if the Employee is employed on each vesting date and has been employed
continuously by a Group Company since the date of grant (allocation), according
to the following schedule:
------------------------------------------------------
Anniversary of Percentage of Shares
Date of Grant Becoming Vested and
Exercisable on Each Date
------------------------------------------------------
First 25%
------------------------------------------------------
Second 25%
------------------------------------------------------
Third 25%
------------------------------------------------------
Fourth 25%
------------------------------------------------------
An Option shall not be vested and exercisable as to any shares as to which the
vesting requirement specified above has not been satisfied, regardless of the
circumstances under which the Employee's employment shall be terminated. Except
as provided in Article 7 of the Plan, the number of shares as to which the
Option may be exercised shall be cumulative, so that once the Option shall
become vested and exercisable as to any shares, it shall continue to be
exercisable and exercisable as to such shares, until expiration or termination
of the Option. If at any time the number of shares that are vested and
exercisable includes a fractional share, the number of shares as to which the
Option shall actually be vested and exercisable shall be rounded down to the
next whole share.
CompleTel NV 03/21/00 Page 12
<PAGE>
APPENDIX C
Grants to Employees Resident in Germany (German Options)
--------------------------------------------------------
Options granted to Employees who are resident in Germany shall be granted under
the rules in this Appendix.
Such Options shall be designated "German Options" in the applicable Option
Agreement.
Except as set forth in this Appendix, Options granted under this Appendix shall
be deemed to have been granted under the Plan as if the same had been
incorporated into this Appendix.
The following provisions shall apply in addition to or in substitution for, as
the case may be, the provisions contained in the body of the Plan.
Delivery of Shares:
Article 6.3 shall be amended by the addition of the following:
Shares acquired pursuant to the exercise of a German Option shall not be
transferred or disposed of in any manner for twelve months from the date the
Shares are acquired.
Vesting and Exercisability:
An Option shall not be vested or exercisable for one year after the date of
grant (allocation) of the Option. The Option shall become vested and
exercisable beginning on the first anniversary of the date of grant (allocation)
if the Employee is employed on each vesting date and has been employed
continuously by a Group Company since the date of grant (allocation), according
to the following schedule:
-----------------------------------------------------
Anniversary of Percentage of Shares
Date of Grant Becoming Vested and
Exercisable on Each Date
-----------------------------------------------------
First 25%
-----------------------------------------------------
Second 25%
-----------------------------------------------------
Third 25%
-----------------------------------------------------
Fourth 25%
-----------------------------------------------------
An Option shall not be vested and exercisable as to any shares as to which the
vesting requirement specified above has not been satisfied, regardless of the
circumstances under which the Employee's employment shall be terminated. Except
as provided in Article 7 of the Plan, the number of shares as to which the
Option may be exercised shall be cumulative, so that once the Option shall
become vested and exercisable as to any shares, it shall continue to be
exercisable and exercisable as to such shares, until expiration or termination
of the Option. If at any time the number of shares that are vested and
exercisable includes a fractional share, the number of shares as to which the
Option shall actually be vested and exercisable shall be rounded down to the
next whole share.
CompleTel NV 03/21/00 Page 13
<PAGE>
APPENDIX D
Grants to Employees Resident in the United States (US Options)
--------------------------------------------------------------
Options granted to Employees who are resident in the United States shall be
granted under the rules in this Appendix.
Such Options shall be designated "US Options" in the applicable Option
Agreement.
Except as set forth in this Appendix, Options granted under this Appendix shall
be deemed to have been granted under the Plan as if the same had been
incorporated into this Appendix.
The following provisions shall apply in addition to or in substitution for, as
the case may be, the provisions contained in the body of the Plan.
Vesting and Exercisability:
An Option shall not be vested or exercisable for one year after the date of
grant (allocation) of the Option. The Option shall become vested and
exercisable beginning on the first anniversary of the date of grant (allocation)
if the Employee is employed on each vesting date and has been employed
continuously by a Group Company since the date of grant (allocation), according
to the schedule determined by the Board of Management at the time the Option is
granted. An Option shall not be vested and exercisable as to any shares as to
which the vesting requirement specified above has not been satisfied, regardless
of the circumstances under which the Employee's employment shall be terminated.
Except as provided in Article 7 of the Plan, the number of shares as to which
the Option may be exercised shall be cumulative, so that once the Option shall
become vested and exercisable as to any shares, it shall continue to be
exercisable and exercisable as to such shares, until expiration or termination
of the Option. If at any time the number of shares that are vested and
exercisable includes a fractional share, the number of shares as to which the
Option shall actually be vested and exercisable shall be rounded down to the
next whole share.
CompleTel NV 03/21/00 Page 14
<PAGE>
Exhibit 10.19
FIRST SUPPLEMENT TO
SECOND AMENDED AND RESTATED REGISTRATION AGREEMENT
--------------------------------------------------
THIS FIRST SUPPLEMENT TO SECOND AMENDED AND RESTATED REGISTRATION
AGREEMENT (this "Agreement") is made as of _____________, 2000, by and among
CompleTel Europe N.V. (the "Company") and the parties to the Second Amended
Agreement (as defined below) (including CompleTel LLC ("CompleTel LLC"), Madison
Dearborn Capital Partners II, L.P. ("MDCP"), DeGeorge Holdings Limited
Partnership ("DeGeorge Holdings"), Meritage Private Equity Fund, L.P.
("Meritage"), James C. Allen ("Allen"), Royce J. Holland ("Holland"), George T.
Laub ("Laub"), Reed E. Hundt ("Hundt"), Emile Karafiol ("Karafiol"), William S.
Kirsch ("Kirsch"), Northwestern University ("Northwestern"), Silver Cross
Investors LLC ("SCI"), Dovey Company LLC ("Dovey LLC"), William H. Pearson
("Pearson"), Haj LLC ("Pearson LLC #2"), Clevenger Company LLC ("Clevenger
LLC"), and David E. Lacey ("Lacey"), and the other holders of Registrable
Securities listed on the signature pages attached to the Second Amended
Agreement (as defined below)). MDCP, DeGeorge Holdings, Meritage, Allen,
Holland, Laub, Hundt, Karafiol, Kirsch, Northwestern, and SCI are referred to
herein collectively as the "Investors" and individually as an "Investor."
Capitalized terms used but not otherwise defined herein have the meanings set
forth in paragraph 8 hereof.
As of May 18, 1998, the Company and MDCP, Lawrence F. DeGeorge
("DeGeorge"), James E. Dovey ("Dovey"), Pearson, and Richard N. Clevenger
("Clevenger") entered into a Registration Agreement (the "Prior Agreement"). As
of January 28, 1999, the parties (other than the Company, Meritage, Pearson LLC
#2, Karafiol, Kirsch, Northwestern, and SCI) entered into a First Amended and
Restated Registration Agreement (the "First Amended Agreement"), amending and
restating the Prior Agreement in its entirety. As of November 23, 1999, the
parties (other than the Company) entered into a Second Amended and Restated
Registration Agreement (the "Second Amended Agreement"), amending and restating
the First Amended Agreement in its entirety.
The Company has filed a registration statement on Form F-1 with the
Securities and Exchange Commission covering the Company's proposed issuance of
its ordinary shares to the public (the "Proposed IPO"). The parties (other than
the Company) have entered into an Omnibus Amendment, to which this Agreement is
an exhibit (the "Omnibus Amendment"), in order to amend various transaction
documents described therein (including the Second Amended Agreement) effective
upon the consummation of the Proposed IPO. Pursuant to the terms and subject to
the conditions set forth in the Omnibus Amendment, the parties hereto desire
that, effective upon the consummation of the Proposed IPO, the Second Amended
Agreement will be amended and supplemented with the provisions set forth in this
Agreement, the provisions hereof will be incorporated into and become a part of
the Second Amended Agreement, and the provisions of this Agreement will be
valid, binding, and effective against the Company and each of the parties to the
Second Amended Agreement pursuant to the amendment provisions of Section 9(d)
thereof.
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NOW, THEREFORE, in consideration of the mutual promises made herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. At any time after the date hereof, (i)
the holders of a majority of the MDCP Registrable Securities then outstanding
may request up to two registrations under the Securities Act of all or any
portion of their Registrable Securities on Form S-1 or any similar long-form
registration (each, a "Long-Form Registration"), (ii) the holders of a majority
of the DeGeorge Registrable Securities then outstanding may request one Long-
Form Registration, (iii) the holders of at least 10% of the Purchaser
Registrable Securities then outstanding may request registration under the
Securities Act of all or any portion of their Registrable Securities on Form S-3
or any similar short-form registration ("Short-Form Registrations") if
available, and (iv) the holders of a majority of the Meritage Registrable
Securities then outstanding may request one Short-Form Registration, if
available; provided that the aggregate offering value of the Registrable
Securities requested to be registered in any registration under this paragraph
1(a) (any "Demand Registration") must equal at least $15 million in any Long-
Form Registration, and at least $5 million in any Short-Form Registration; and
provided further that the right of the holders of Meritage Registrable
Securities under clause (iv) above will terminate at such time as Meritage and
its affiliates cease to hold in the aggregate at least 50% of the Meritage
Registrable Securities held by Meritage on the date hereof.
All requests for Demand Registrations shall be made by giving written
notice to the Company (the "Demand Notice"). Each Demand Notice shall specify
the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any Demand Notice, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to the provisions of paragraph 1(d) below, shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) Expenses; Withdrawal. The Company shall pay all Registration
Expenses of all holders of Registrable Securities in all Demand Registrations.
A registration shall not count as one of the permitted Long-Form Registrations
(or, in the case of a Short-Form Registration requested by the holders of
Meritage Registrable Securities, as the one permitted Short-Form Registration
under Section 1(a)(iv)) until both (i) it has become effective and (ii) the
holders of Registrable Securities initially requesting such registration are
able to register and sell at least 90% of the Registrable Securities requested
to be included in such registration; provided that the Company shall in any
event pay all Registration Expenses in connection with any registration
initiated as a Demand Registration whether or not it has become effective and
whether or not such registration has counted as one of the permitted Long-Form
Registrations (or, if applicable, as the one permitted Short-Form Registration
under Section 1(a)(iv)). All Long-Form Registrations shall be underwritten
registrations
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unless otherwise requested by the holders of a majority of the Registrable
Securities included in the applicable Long-Form Registration.
(c) Short-Form Registrations. Demand Registrations shall be Short-
Form Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of the
Securities Exchange Act, the Company shall use its best efforts to make Short-
Form Registrations on Form S-3 (or any successor form) available for the sale of
Registrable Securities.
(d) Priority on Demand Registrations. The Company shall not include
in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities initially
requesting registration, the Company shall include in such registration the
number which can be so sold in the following order of priorities: (i) first,
the Purchaser Registrable Securities requested to be included in such
registration, pro rata among the holders of such Purchaser Registrable
Securities on the basis of the number of shares owned by each such holder, (ii)
second, the other Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder, and (ii) third, other
securities requested to be included in such registration.
(e) Restrictions on Long-Form Registrations. The Company shall not be
obligated to effect any Demand Registration which is a Long-Form Registration
within 180 days after the effective date of a previous Demand Registration which
was a Long-Form Registration or a previous registration in which the holders of
Registrable Securities were given piggyback rights pursuant to paragraph 2 and
in which such holders were able to register and sell at least 90% of the number
of Registrable Securities requested to be included therein. The Company may
preempt any request for a Demand Registration in order to effect an underwritten
primary registration on behalf of the Company, provided that (i) such preempting
underwritten primary registration must become effective within 90 days after the
date such preempted Demand Registration is requested, (ii) the holders of
Registrable Securities initially requesting the preempted Demand Registration
must have piggyback rights pursuant to paragraph 2 with respect to the
preempting primary registration and must be able to register and sell pursuant
to such piggyback rights in such primary registration at least 90% of the
Registrable Securities initially requested to be included in the preempted
Demand Registration, (iii) the Company shall pay all Registration Expenses in
connection with any such preempting primary registration, and (iv) the preempted
Demand Registration shall not count as one of the permitted Demand Registrations
hereunder. The Company may preempt a Demand Registration hereunder only once in
any 12-month period. The Company may postpone for up to 180 days the filing or
the effectiveness of a registration statement for a Demand Registration if the
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Company's board of directors determines in its reasonable good faith judgment
that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company or any of its direct or
indirect subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction; provided that in such event, the holders
of Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such withdrawn registration. The Company may delay a Demand Registration
hereunder only once in any twelve-month period.
(f) Selection of Underwriters. Subject to the approval rights granted
to the holders of Purchaser Registrable Securities under the Equity Purchase
Agreement, the Board shall select the investment banker(s) and manager(s) to
administer the offering.
(g) Other Registration Rights. Except as provided in this Agreement,
the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the Purchaser Registrable Securities
(or, if none, the Registrable Securities) then outstanding; provided that the
Company may grant rights to other Persons to participate in Piggyback
Registrations so long as such rights are subordinate to the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations;
and provided further that the Company may grant rights to other Persons to
request registrations so long as the holders of Registrable Securities are
entitled to participate in any such registrations with such Persons pro rata on
the basis of the number of shares owned by each such holder.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice (in any event within three business days after
its receipt of notice of any exercise of demand registration rights other than
under this Agreement) to all holders of Registrable Securities of its intention
to effect such a registration and shall, subject to the provisions of paragraph
2(c) below, include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein within
20 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
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(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company shall include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Purchaser
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Purchaser Registrable Securities on the basis of the
number of shares owned by each such holder, (iii) third, the other Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (iv) fourth, other securities requested to be
included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata among the holders of any such securities on the basis of
the number of securities so requested to be included therein owned by each such
holder, and (ii) second, other securities requested to be included in such
registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, subject to the approval rights granted to the holders of
Purchaser Registrable Securities under the Equity Purchase Agreement, the Board
shall select the investment banker(s) and manager(s) to administer the offering.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convert ible or exchangeable into or exercisable for its equity securities
under the Securities Act (except on Form S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
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(a) Holders of Registrable Securities. Each holder of Registrable
Securities shall not effect any public sale or distribution (including sales
pursuant to Rule 144) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180-day period beginning on the effective date of
any
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underwritten Demand Registration or any underwritten Piggyback Registration
in which Registrable Securities are included (in each case, except as part of
such underwritten registration), unless in each case the underwriters managing
the registered public offering otherwise agree.
(b) The Company. The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) shall cause each holder of
its Common Stock, or any securities convertible into or exchange able or
exercisable for Common Stock, purchased from the Company at any time after the
date of this Agreement (other than in a registered public offering or pursuant
to Rule 144) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such
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seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq and, if listed on the
Nasdaq, use its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a Nasdaq "national market
system security" within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure Nasdaq authorization for such
Registrable Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such with respect to such
Registrable Securities with the National Association of Securities Dealers (the
"NASD");
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split, a combination of
shares, or other recapitalization);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers,
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directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering the matters customarily covered by
cold comfort letters as the holders of a majority of the Registrable Securities
being sold reasonably request; and
(n) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of the Registrable Securities (including
using its best efforts to take all such actions as may be necessary to enable
the sellers of such Registrable Securities to trade such Registrable Securities
on all non-U.S. securities exchanges or markets on which Registrable Securities
may then be listed or traded, in accordance with all applicable securities laws
or regulations).
5. Registration Expenses.
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(a) Expenses. All expenses incident to the Company's performance of
or compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called
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"Registration Expenses"), shall be borne as provided in this Agreement, except
that the Company shall, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the Nasdaq.
(b) Reimbursement of Counsel. In connection with each Demand
Registration and each Piggyback Registration, the Company shall reimburse the
holders of Registrable Securities included in such registration (i) for the
reasonable fees and disbursements (not to exceed $20,000 for any one
registration) of one counsel chosen by the holders of a majority of the
Purchaser Registrable Securities (or, if none, Registrable Securities) included
in such registration and (ii) for the reasonable fees and disbursements (not to
exceed $5,000 per additional counsel for any one registration) of each
additional counsel retained by any holder of Registrable Securities solely for
the purpose of rendering a legal opinion to underwriters on behalf of such
holder in connection with any underwritten Demand Registration or Piggyback
Registration.
(c) Payment of Certain Expenses by Holders of Registrable Securities.
Underwriting discounts and commissions and transfer taxes relating to the
Registrable Securities included in any registration hereunder, and all fees and
expenses of counsel for any holder of Registrable Securities (other than fees
and expenses to be reimbursed by the Company as set forth in paragraph (b)
above) shall be borne and paid by the holders of such Registrable Securities.
6. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person that controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration
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statement or prospectus and, to the extent permitted by law, shall indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided that the obligation
to indemnify shall be individual, not joint and several, for each holder and
shall be limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason such that such provisions provide
the same obligations and benefits to the indemnified party as those which would
have been applicable had the indemnification provisions in paragraphs 6(a) and
(b) been available taking into account all of the limitations set forth in
paragraphs 6(a) and (b).
7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included
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in any underwritten registration shall be required to make any representations
or warranties to the Company or the underwriters (other than representations and
warranties regarding such holder and such holder's intended method of
distribution) or to undertake any indemnification obligations to the Company
with respect thereto, except as otherwise provided in paragraph 6(b) hereof, or
to the underwriters with respect thereto, except to the extent of the
indemnification being given to the Company and its controlling persons in
paragraph 6(a) hereof.
8. Definitions.
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"Agreement" has the meaning set forth with respect thereto in the
preamble (it being understood that the term "Agreement" refers to this First
Supplement only for purposes of this First Supplement, and the term "Agreement"
as used in the Second Amended Agreement will continue to refer to the Second
Amended Agreement for purposes of all provisions of the Second Amended Agreement
(other than the supplementary provisions set forth in this First Supplement).
"Allen" has the meaning set forth with respect thereto in the
preamble.
"Board" means the board of management of the Company or, if the
Company is hereafter converted into another entity form, the board of directors
or comparable governing body of the Company.
"Clevenger" has the meaning set forth with respect thereto in the
preamble.
"Clevenger LLC" has the meaning set forth with respect thereto in the
preamble.
"Common Stock" means the Ordinary Shares and, in the event the Company
has hereafter converted into another entity form, the common stock or other
comparable common equity securities of the Company.
"Common Units" means the Common Units of CompleTel LLC, having the
rights and preferences set forth with respect thereto in the LLC Agreement.
"Company" has the meaning set forth with respect thereto in the
preamble (it being understood that the term "Company" refers to CompleTel Europe
N.V. only for purposes of this Agreement, and the term "Company" as used in the
Second Amended Agreement will continue to refer to CompleTel LLC for purposes of
all provisions of the Second Amended Agreement (other than the supplementary
provisions set forth in this Agreement).
"CompleTel LLC" has the meaning set forth with respect thereto in the
"DeGeorge" has the meaning set forth with respect thereto in the
preamble.
"DeGeorge Holdings" has the meaning set forth with respect thereto in
the preamble.
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"DeGeorge Registrable Securities" means Registrable Securities derived
from or relating to the Preferred Units issued to DeGeorge under the Equity
Purchase Agreement.
"Demand Notice" has the meaning set forth with respect thereto in
Section 1(a).
"Demand Registration" has the meaning set forth with respect thereto
in Section 1(a).
"Dovey" has the meaning set forth with respect thereto in the
preamble.
"Dovey LLC" has the meaning set forth with respect thereto in the
preamble.
"Equity Purchase Agreement" means that certain Second Amended and
Restated Equity Purchase Agreement dated as of the date hereof, by and among
CompleTel LLC, the Investors, and the other Persons listed on the signature
pages thereto, as amended from time to time in accordance with its terms.
"Executive Securities Agreements" has the meaning set forth with
respect thereto in the Equity Purchase Agreement.
"First Amended Agreement" has the meaning set forth with respect
thereto in the preamble.
"Holland" has the meaning set forth with respect thereto in the
preamble.
"Hundt" has the meaning set forth with respect thereto in the
preamble.
"Investor" and "Investors" have the meaning set forth with respect
thereto in the preamble.
"Karafiol" has the meaning set forth with respect thereto in the
preamble.
"Kirsch" has the meaning set forth with respect thereto in the
preamble.
"Lacey" has the meaning set forth with respect thereto in the
preamble.
"Laub" has the meaning set forth with respect thereto in the preamble.
"LLC Agreement" means that certain limited liability company agreement
governing the affairs of CompleTel LLC, by and among the Investors and the other
holders of unit membership interests in CompleTel LLC, as amended from time to
time in accordance with its terms.
"Long-Form Registration" has the meaning set forth with respect
thereto in Section 1(a).
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"MDCP" has the meaning set forth with respect thereto in the preamble.
"MDCP Registrable Securities" means Registrable Securities derived
from or relating to the Preferred Units issued to MDCP under the Equity Purchase
Agreement.
"Meritage" has the meaning set forth with respect thereto in the
preamble.
"Meritage Registrable Securities" means Registrable Securities derived
from or relating to the Preferred Units issued to Meritage under the Equity
Purchase Agreement.
"NASD" has the meaning set forth with respect thereto in Section 4(f).
"Northwestern" has the meaning set forth with respect thereto in the
preamble.
"Ordinary Shares" means the ordinary shares of the Company, euro .10
nominal value per share, having the rights and preferences set forth with
respect thereto in the articles of association of the Compnay.
"Pearson" has the meaning set forth with respect thereto in the
preamble.
"Pearson LLC #2" has the meaning set forth with respect thereto in the
preamble.
"Performance Vesting Agreement" means that certain Second Amended and
Restated Performance Vesting Agreement dated as of the date hereof, by and among
CompleTel LLC, the Investors, and the other Persons listed on the signature
pages thereto, as amended from time to time in accordance with its terms.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth with respect
thereto in Section 2(a).
"Preferred Units" means the Preferred Units of CompleTel LLC, having
the rights and preferences set forth with respect thereto in the LLC Agreement.
"Prior Agreement" has the meaning set forth with respect thereto in
the preamble.
"Purchaser Registrable Securities" means Registrable Securities
derived from or relating to the Preferred Units issued to the Investors and the
other purchasers under the Equity Purchase Agreement.
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"Registrable Securities" means (i) Common Stock which as of the date
hereof is beneficially represented by any Preferred Units issued under the
Equity Purchase Agreement (or by any Common Units issued upon conversion of any
such Preferred Units), (ii) Common Stock which as of the date hereof is
beneficially represented by any Common Units issued under the Executive
Securities Agreements (other than any Un-Performance-Vested Securities), (iii)
any Common Stock issued or issuable with respect to the securities referred to
in clauses (i) and (ii) by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, or upon conversion or exercise of any such securities,
and (iv) any other Common Stock of the Company held by any holder of Registrable
Securities; provided that with respect to any Registrable Securities, such
securities shall cease to be Registrable Securities when they have been (A)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them, (B) distributed to the public
through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act (or any similar rule promulgated by the Securities and Exchange
Commission then in force), (C) distributed to a partner of MDCP or Meritage and
become eligible to be sold by such partner pursuant to Rule 144(k) of the
Securities Act (or any similar rule promulgated by the Securities and Exchange
Commission then in force), or (D) repurchased or otherwise acquired by the
Company (or its assignees). For purposes of this Agreement, a Person shall be
deemed to be the holder of Registrable Securities, and the Registrable
Securities shall be deemed to be outstanding and in existence, whenever such
Person has the right to acquire such Registrable Securities upon conversion of
preferred stock or similar securities held by such Person, or upon distribution
of such Registrable Securities in respect of securities held by such Person
which beneficially represent such Registrable Securities, whether or not such
acquisition has actually been effected, and such Person shall be entitled to
exercise the rights of a holder of such Registrable Securities hereunder.
"Registration Expenses" has the meaning set forth with respect thereto
in Section 5(a).
"SCI" has the meaning set forth with respect thereto in the preamble.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securityholders Agreement" means that certain Second Amended and
Restated Securityholders Agreement dated as of the date hereof, by and between
CompleTel LLC and certain of its securityholders, as amended from time to time
in accordance with its terms.
"Short-Form Registrations" has the meaning set forth with respect
thereto in Section 1(a).
"Un-Performance-Vested Securities" means any CompleTel LLC securities
which are subject to performance vesting, but have not yet performance vested,
pursuant to the provisions of the Performance Vesting Agreement.
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9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Effectiveness of this Agreement. This Agreement amending and
supplementing the Second Amended Agreement will be valid, binding, and effective
against the Company when it has been signed by the Company. This Agreement
amending and supplementing the Second Amended Agreement will be valid, binding,
and effective against each party to the Second Amended Agreement when such party
has executed the Omnibus Amendment. Pursuant to the provisions of Section 9(d)
of the Second Amended Agreement, this Agreement amending and supplementing the
Second Amended Agreement will be valid, binding, and effective against all
parties to the Second Amended Agreement when the Omnibus Amendment has been
signed by CompleTel LLC and the holders of a majority of the outstanding
Purchaser Registrable Securities. The effectiveness of this Agreement is subject
to the conditions thereto set forth in the Omnibus Amendment.
(e) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of
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this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement. Any management or other key employee of the Company
or its subsidiaries who purchases securities pursuant to an Executive Securities
Agreement may at any time after the date hereof, with the written approval of
the Company, become a party to this Agreement by executing a counterpart to this
Agreement agreeing to be bound by the provisions hereof as if such Person were
an original signatory hereto (which joinder shall not constitute an amendment,
modification, or waiver hereof).
(h) Descriptive Headings; Interpretation; No Strict Construction. The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement. Whenever required by the
context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns, pronouns,
and verbs shall include the plural and vice versa. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof. The use of the words "include" or "including" in this
Agreement shall be by way of example rather than by limitation. The use of the
words "or," "either" or "any" shall not be exclusive. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
(i) Governing Law. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(j) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when (a) delivered personally to
the recipient, (b) telecopied to the recipient (with hard copy sent to the
recipient by reputable overnight courier service (charges prepaid) that same
day) if telecopied before 5:00 p.m. Chicago, Illinois time on a business day,
and otherwise on the next business day, or (c) one business day after being sent
to the recipient by reputable overnight courier service (charges prepaid). Such
notices, demands and other communications shall be sent to CompleTel LLC at the
address set forth below, to the Company at the address therefor listed in
CompleTel LLC's records, and to any holder of Registrable Securities
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at such address as indicated by the Company's records, or at such address or to
the attention of such other person as the recipient party has specified by prior
written notice to the sending party. CompleTel LLC's address is:
6300 Syracuse Way, Suite 355
Englewood, Colorado 80111
Attention: Chief Executive Officer
Telephone: (303) 741-4788
Telecopy: (303) 741-4823
(k) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the State of Colorado, the Republic of France, or the jurisdiction in which
the Company's principal office is located, the time period shall automatically
be extended to the business day immediately following such Saturday, Sunday or
legal holiday.
(l) Delivery by Facsimile. This Agreement, the agreements referred to
herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the undersigned has executed this First Supplement to
Second Amended and Restated Registration Agreement as of the date first written
above.
COMPLETEL EUROPE N.V.
By
-------------------------------------------
James E. Dovey, its Managing Director
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#590321 v1
EXHIBIT 23.6
CONSENT OF PERSON ABOUT TO BECOME A DIRECTOR
Pursuant to Rule 438 of the Securities Act of 1933 (the "Act"), the
undersigned hereby consents to be named in the registration statement to be
filed with the Securities and Exchange Commission (the "Commission") on Form F-1
in connection with the offering by CompleTel Europe N.V., a public limited
liability company organized under the laws of The Netherlands (the "Company"),
of securities ("Securities"), and all amendments (including post-effective
amendments) thereto and any abbreviated registration statement in connection
with this Registration Statement pursuant to Rule 462(b) under the Act, as about
to become a director of the Company.
Date: January 31, 2000 /s/ James C. Allen
---------------- ------------------------------------
James C. Allen
Date: January 31, 2000 /s/ Royce J. Holland
---------------- ------------------------------------
Royce J. Holland
Date: January 31, 2000 /s/ James H. Kirby
---------------- ------------------------------------
James H. Kirby
Date: January 31, 2000 /s/ William H. Pearson
---------------- ------------------------------------
William H. Pearson
Date: January 31, 2000 /s/ James N. Perry, Jr.
---------------- ------------------------------------
James N. Perry, Jr.
Date: February 23, 2000 /s/ Martin Rushe
----------------- ------------------------------------
Martin Rushe
Date: February 22, 2000 /s/ Hansjorg Rieder
----------------- ------------------------------------
Hansjorg Rieder
