United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 19, 2014
INTERCONTINENTAL EXCHANGE, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-36198 | 46-2286804 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
2100 RiverEdge Parkway Suite 500 Atlanta, GA 30328 |
(Address of principal executive offices, including zip code) |
Registrant’s Telephone Number, Including Area Code: (770) 857-4700
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Material Definitive Agreement. |
On June 19, 2014, Intercontinental Exchange, Inc. (“ICE”) entered into an underwriting agreement (the “Underwriting Agreement”) with ICE Europe Parent Limited (the “Selling Shareholder”), a wholly owned subsidiary of ICE, Euronext N.V. (“Euronext”) and the managers named therein (the “Managers”) in connection with the offering and sale by the Selling Shareholder of 42,248,881 ordinary shares of Euronext (the “Offer Shares”) at an offer price of €20.00 per Offer Share (the “Offering”). Pursuant to the Underwriting Agreement, the Selling Shareholder granted to the joint global coordinators in the Offering an over-allotment option, exercisable within 30 days after June 20, 2014, under which the joint global coordinators may require the Selling Shareholder to sell up to an additional 4,210,823 ordinary shares of Euronext. Upon closing of the Offering on June 24, 2014, ICE’s equity interest in Euronext was reduced to 6.02% of Euronext’s ordinary share capital. ICE may continue to hold up to 4,210,823 of the 70,000,000 total issued and outstanding ordinary shares of Euronext if the over-allotment option is not exercised in full. Any shares that are continued to be held by ICE will be subject to a 180-day lock-up period. If the over-allotment option is exercised in full, ICE will no longer hold any shares in Euronext.
The Underwriting Agreement contains customary representations, warranties, covenants and indemnities. The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the terms of the Underwriting Agreement that is attached hereto as Exhibit 10.1 and incorporated herein by reference.
This report does not constitute an offer for sale of, or a solicitation of an offer to purchase or subscribe for, any securities in the United States. No securities of Euronext have been, or will be, registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and the securities referred to herein may not be offered or sold in the United States absent an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. There will be no public offering of the securities in the United States.
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(b) Director Resignation.
As previously disclosed on a Current Report on Form 8-K filed by ICE on June 10, 2014, ICE confirms the resignation of Jan-Michiel Hessels from his position as a director of ICE effective June 24, 2014 so that he can continue serving as a director of Euronext. There were no disagreements between Mr. Hessels and ICE on any matters related to ICE’s operations, policies or practices. Mr. Hessels was not a member of any committees of the Board of Directors of ICE.
Item 7.01. | Regulation FD Disclosure. |
In connection with the closing of the Offering, ICE issued a press release that is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Item 8.01. | Other Events. |
Arrangements between Euronext and ICE in connection with the Offering
In connection with the separation of Euronext from ICE resulting from the Offering, Euronext and ICE have entered into a series of services agreements and related agreements (“SLAs”) to ensure that Euronext and ICE (including LIFFE) can continue to operate their respective businesses. Principally, there are certain core services provided by ICE to Euronext (“ICE Core Services”). Further, there will be ancillary services to be provided by ICE to Euronext (the “ICE Ancillary Services”) and Euronext will also provide certain ancillary services in return (“Euronext Ancillary Services”) (together, “Ancillary Services”).
The ICE Core Services cover data center services to Euronext from the Basildon site, including housing the data center equipment and providing related services, co-location services directly to Euronext members on terms that are no worse than the terms on which ICE currently provides equivalent co-location services to its members, and application services related to the Secure Financial Transaction Infrastructure (“SFTI”) network, including logical connections to the relevant Euronext products between the subscriber and host infrastructure, to Euronext customers on terms that, in the aggregate, are no worse than the standard terms on which ICE provides equivalent connectivity services to its customers. The ICE Ancillary Services include market data services and market operations, communication services to Euronext offices and IT services in the United States, while the Euronext Ancillary Services cover finance, market data services and market operations.
Some SLAs are transitional in nature and will continue for a specified initial term until Euronext develops its own independent capabilities or when ICE no longer requires such services from Euronext, either because of the completion of the migration of contracts traded on LIFFE to ICE Futures Europe or otherwise. This will vary with the types of services to be provided. The agreements governing the ICE Core Services have longer terms: the data center services agreement has an initial term of five years, with automatic renewal for a further five-year period unless terminated by either party upon notice at least 12 months, but no earlier than 24 months, before the end of the initial term. The co-location services agreement and SFTI network connectivity agreement both have terms of five years unless terminated earlier with mutual agreement.
Euronext will pay ICE mutually agreed-upon fees for the ICE data center services and Ancillary Services, and ICE will pay Euronext mutually agreed-upon fees for the Euronext Ancillary Services during the period for which services are performed under the agreements. ICE will also pay Euronext a commission on the revenue it earns from the colocation and connectivity services provided to Euronext’s customers. If the term of the agreements were to be extended beyond the duration provided for in the agreements (including any extension period), such fees may be renegotiated.
In connection with the Offering, Euronext and ICE have also entered into a deed of separation dealing with the conduct of various matters between the parties following the Offering. The principal terms of the deed of separation relate to non-solicitation of executives or senior management, mutual release and indemnification against certain liabilities or claims existing or arising in connection with the separation of Euronext from ICE, indemnification by Euronext in respect of certain guarantees provided by ICE entities of the obligations of Euronext and its subsidiaries, and financial reporting, audit and accounting and related covenants.
Euronext and ICE also have entered into licensing arrangements in respect of the universal trading platform (“UTP”) and related trading technology as set out in the UTP and Trading Technology License Deed. In addition, there are other licenses granted in respect of the use of equity indices and related trademarks, the UTP trademark, certain website code and certain patent applications.
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits |
Exhibit |
Description | |
10.1 | Underwriting Agreement dated as of June 19, 2014 among Euronext N.V., Intercontinental Exchange, Inc., ICE Europe Parent Ltd, and the Managers named therein. | |
99.1 | Press Release dated as of June 24, 2014. | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
INTERCONTINENTAL EXCHANGE, INC. | ||||||
Date: June 25, 2014 | By: | /s/ Scott A. Hill | ||||
SCOTT A. HILL Chief Financial Officer | ||||||
Dated 19 June 2014
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EURONEXT N.V.
and
INTERCONTINENTAL EXCHANGE, INC.
and
ICE EUROPE PARENT LTD
and
ABN AMRO BANK N.V.
and
J.P. MORGAN SECURITIES PLC
and
SOCIÉTÉ GÉNÉRALE
and
GOLDMAN SACHS INTERNATIONAL
and
ING BANK N.V.
and
MORGAN STANLEY & CO. INTERNATIONAL PLC
and
THE LEAD MANAGERS NAMED HEREIN
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UNDERWRITING AGREEMENT
relating to an offer of ordinary shares with a nominal value of €1.60 each
in the capital of Euronext N.V.
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Linklaters | |
Linklaters LLP
25 rue de Marignan
75008 Paris
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Telephone (+33) 1 56 43 56 43
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Facsimile (+33) 1 43 59 41 96
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Ref L-219349
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(1)
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EURONEXT N.V., a public company with limited liability (naamloze venootschap), incorporated under the laws of the Netherlands with its statutory seat (statutaire zetel) in Amsterdam, The Netherlands, and having its registered office at Beursplein 5, 1012 JW Amsterdam, The Netherlands (the “Company”);
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(2)
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INTERCONTINENTAL EXCHANGE, INC., a company incorporated under the laws of the State of Delaware whose principal offices are located at 2100 RiverEdge Parkway, Suite 500, Atlanta, Georgia 30328, United States of America (“ICE”);
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(3)
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ICE EUROPE PARENT LTD, a company with limited liability incorporated under the laws of England and Wales whose statutory seat is at 5th floor Milton Gate, 60 Chiswell Street, London EC1Y 4SA, United Kingdom and a wholly owned subsidiary of ICE (“ICE Europe” and together with ICE, acting severally and jointly, the “Selling Shareholder”);
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(4)
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ABN AMRO BANK N.V., a public company with limited liability incorporated under the laws of the Netherlands, with its statutory seat in Amsterdam, The Netherlands and having its registered office at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands, which for the purpose of this Agreement also includes ABN AMRO Securities (USA) LLC (“ABN AMRO”);
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(5)
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J.P. MORGAN SECURITIES PLC, a company incorporated under the laws of England and Wales whose registered office is at 25 Bank Street, Canary Wharf, London, E14 5JP, United Kingdom (“J.P. Morgan”);
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(6)
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SOCIÉTÉ GÉNÉRALE, a company with limited liability (société anonyme) incorporated under the laws of France whose statutory seat is at 29 boulevard Haussmann, 75009 Paris, France (“Société Générale”, and together with ABN AMRO and J.P. Morgan, the “Joint Global Coordinators”);
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(7)
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GOLDMAN SACHS INTERNATIONAL, a company incorporated under the laws of England and Wales whose statutory seat is at Peterborough Court, 133 Fleet Street, London EC4A 2BB, United Kingdom (“Goldman Sachs International”);
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(8)
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ING BANK N.V., a public company with limited liability incorporated under the laws of the Netherlands with its registered office in Amsterdam, The Netherlands, and having its registered office at Bijlmerplein 888, 1102 MG Amsterdam, The Netherlands (“ING”);
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(9)
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MORGAN STANLEY & CO. INTERNATIONAL PLC, a company incorporated under the laws of England and Wales whose statutory seat is at 25 Cabot Street, Canary Wharf, London E14 4QA, United Kingdom (“Morgan Stanley”, and together with Goldman Sachs International and ING, the “Joint Bookrunners”);
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(10)
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A., a company incorporated under the laws of Spain whose statutory seat is at Plaza de San Nicolás, 4, 48005 Bilbao (Vizcaya), Spain (“BBVA”);
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(11)
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BANCO PORTUGUÊS DE INVESTIMENTO, S.A., a company incorporated under the laws of Portugal whose statutory seat is at Rua Tenente Valadim 284, 4100-476 Porto, Portugal (“BPI”);
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(12)
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BMO CAPITAL MARKETS LIMITED, a company incorporated under the laws of England and Wales whose statutory seat is at 95 Queen Victoria Street, London EC4V 4HG, United Kingdom (“BMO”);
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(13)
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CM-CIC Securities, a company incorporated under the laws of France whose statutory seat is at 6, Avenue de Provence, 75441 Paris, Cedex 09, France (“CM-CIC Securities”);
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(14)
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EXECUTION NOBLE & CO LIMITED, a company incorporated under the laws of England and Wales whose statutory seat is at 5 Melville Crescent, Edinburgh EH3 7JA, United Kingdom (“Espirito Santo Investment Bank”);
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(15)
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KBC SECURITIES NV, a Belgian naamloze vennootschap, whose registered office is at Havenlaan 12, 1080 Brussels, Belgium, and registered with the Register for Legal Entities of Brussels under number 437.060.521 (“KBCS”); and
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(16)
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MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC, a company incorporated under the laws of England and Wales whose statutory seat is at Ropemaker Place, 25 Ropemaker Street, London EC2Y 9AJ, United Kingdom (“Mitsubishi UFJ Securities”, and together with BBVA, BMO, BPI, CM-CIC Securities, Espirito Santo Investment Bank and KBCS, the “Lead Managers”).
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(A)
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The Company was incorporated on 15 March 2014 under the laws of the Netherlands as a public company with limited liability and is registered with the Dutch trade register under number 60234520.
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(B)
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The Company has applied for the admission of the Company’s ordinary shares with a nominal value of €1.60 each (the “Ordinary Shares”), issued and to be issued under the arrangements referred to in this Agreement, to listing and trading on the regulated markets of Euronext in Paris (“Euronext Paris”), in Amsterdam (“Euronext Amsterdam”) and in Brussels (“Euronext Brussels”). In connection therewith, the Company has appointed ABN AMRO as its Listing Agent.
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(C)
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The Selling Shareholder proposes to offer and sell 42,248,881 existing Ordinary Shares (the “Firm Shares”) at the Offer Price by way of a Global Offer (as defined below).
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(D)
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The “Global Offer” is to be made (i) in Belgium, France, the Netherlands and Portugal by way of a public offering and in private placements elsewhere outside the United States in accordance with Regulation S (“Regulation S”) under the US Securities Act of 1933, as amended (the “Securities Act”); and (ii) within the United States only to qualified institutional buyers (“QIBs”) within the meaning of and pursuant to Rule 144A under the Securities Act (“Rule 144A”) or another exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
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(E)
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Concurrently with the Global Offer, the Company is offering up to 188,296 existing Ordinary Shares (the “Employee Shares”) to all of its eligible employees and eligible employees of its majority-owned direct and indirect subsidiaries in France, the Netherlands, Belgium, Portugal and the United Kingdom (the “Employee Offering”). The maximum number of Employee Shares represents a value of €5,000,000 calculated based on the Offer Price. Employee Shares are offered with a discount of 20% to the Offer Price. The Employee Offering is not the subject of this Agreement.
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(F)
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Details of the Offer Price, the Offer Size and related matters to be announced are to be set out in the Pricing Statement, to be published in accordance with the terms of this Agreement.
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(G)
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On
the terms and subject to the conditions referred to in this Agreement, the Selling Shareholder (as to the number of Firm
Shares set out in column (2) of Part A of Schedule
1) agrees to sell the Firm Shares at the Offer Price to
purchasers procured by the Managers and, failing which, to the Managers, and the Managers agree (each as to the number of
Firm Shares (as defined below) set out opposite its name in column (2) of Part B of Schedule 1) to use reasonable endeavours to procure purchasers for, and, failing which, to purchase themselves, the Firm Shares at the Offer Price.
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(H)
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On the terms and subject to the conditions referred to in this Agreement, the Selling Shareholder (up to the number of Option Shares set out in column (3) of Part A of Schedule 1) grants to the Joint Global Coordinators (on behalf of the Managers) an option (the “Overallotment Option”) to call for the Selling Shareholder to sell at the Offer Price additional Ordinary Shares held by it, comprising up to 10 per cent. of the Firm Shares sold in the Global Offer (such Ordinary Shares in respect of which the Overallotment Option is exercised being herein referred to as the “Option Shares”, and the Option Shares, together with the Firm Shares, are referred to in this Agreement as the “Offer Shares”).
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(I)
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On 27 May 2014, IntercontinentalExchange Group, Inc. (subsequently renamed Intercontinental Exchange, Inc.), and the Selling Shareholder entered into a Sale and Purchase Agreement of Ordinary Shares in the Company (the “Share Purchase Agreement”) with a group of institutional investors (collectively, the “Reference Shareholders”, and each a “Reference Shareholder”), comprised of Avistar SGPS, S.A., an affiliate of Banco Espírito Santo, S.A., BNP Paribas S.A., BNP Paribas Fortis SA/NV, ABN AMRO Bank through its subsidiary ABN AMRO Participaties Fund I B.V., ASR Levensverzekering N.V. (a company of the ASR Nederland group), Caisse des Dépôts et Consignations, Bpifrance Participations, Euroclear SA/NV, Société Fédérale de Participations et d’Investissement/Federale Participatie- en Investeringsmaatschappij, Société Générale and BancoBPI Pension Fund represented by BPI Vida e Pensões - Companhia de Seguros, S.A. Pursuant to the Share Purchase Agreement, the Reference Shareholders have purchased an aggregate of 33.36% of the issued and outstanding Ordinary Shares from ICE Europe at a 4% discount to the Offer Price, up to a maximum price of €26.00 per Ordinary Share. The Ordinary Shares acquired by the Reference Shareholders pursuant to the Share Purchase Agreement do not form part of the Global Offer. On 3 June 2014, the Reference Shareholders have separately entered into a reference shareholders agreement (the “Reference Shareholders Agreement”) governing the relationship among the Reference Shareholders.
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(J)
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On or about 6 June 2014, ICE and the Company entered into share purchase commitment letter agreements (the “Cornerstone Commitment Letters”) with GENFINA, an affiliate of GDF SUEZ, and KBC Bank NV (the “Cornerstone Investors”), pursuant to which each of the Cornerstone Investors, severally and not jointly, has irrevocably committed to purchase in the Global Offer, and the Selling Shareholder has agreed to sell and allot to the Cornerstone Investors, Ordinary Shares at the Offer Price. The aggregate commitments of all the Cornerstone Investors pursuant to the Cornerstone Commitment Letters amount to approximately 2% of the issued and outstanding Ordinary Shares.
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1.1
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Definitions
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(i)
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the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997;
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(ii)
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the Foreign Corrupt Practices Act of 1977 of the United States of America, as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998, and as may be further amended and supplemented from time to time;
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(iii)
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the UK Bribery Act 2010; and
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(iv)
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the applicable anti-corruption laws of Belgium, France, Portugal and The Netherlands.
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1.2
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Subordinate legislation, modification etc.: References to any statute or a statutory provision include that provision as from time to time amended, modified or re-enacted so far as such amendment, modification or re-enactment applies or is capable of applying to any transactions entered into in accordance with this Agreement and includes any order, instrument, regulation or subordinate legislation made from time to time under that statute or provision.
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1.3
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Recitals, Clauses etc.: References in this Agreement to Recitals, Clauses and Schedules are to the Recitals and Clauses of, and Schedules to, this Agreement and the Recitals and Schedules are to have effect as part of this Agreement.
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1.4
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Several and not joint liability of the Joint Global Coordinators, the Joint Bookrunners, the Lead Managers and the Managers: Any provision of this Agreement which is expressed to bind the Joint Global Coordinators, the Joint Bookrunners, the Lead Managers or the Managers shall bind them severally and not jointly, unless it is expressly provided otherwise. Breach of this Agreement by one of the Joint Global Coordinators, the Joint Bookrunners, the Lead Managers or the Managers shall not constitute a breach of this Agreement by another party.
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1.5
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Several and joint liability of ICE and ICE Europe: Any provision of this Agreement which is expressed to bind the Selling Shareholder shall bind ICE and ICE Europe severally and jointly, unless it is expressly provided otherwise. Breach of this Agreement by any of ICE or ICE Europe shall constitute a breach of this Agreement by ICE and ICE Europe.
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1.6
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Qualification of scope: Subject to the definition of “Material Adverse Change” in Clause 1.1, where the scope of any warranty or representation given in this Agreement is otherwise qualified by expressions such as “material”, “in any material respect” or any similar or analogous expression, such expression shall be construed to mean material to the Company and the other Group Companies taken as a whole, material for disclosure to investors, material to the underwriting of the Global Offer or otherwise material in the context of the Global Offer and/or Admission.
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1.7
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Knowledge qualifiers: Where any person or entity gives any warranty or representation in this Agreement “to the best of his/her/its knowledge and belief” or “so far as such person/entity is aware” or any similar or analogous expression, except where indicated expressly to the contrary, the information within the knowledge of such person shall be deemed to include: (i) all information such person/entity should have obtained after making due and careful enquiries; and (ii) where referring to the Company, the knowledge (in each case on the same basis as (i) above) of any of the Directors.
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1.8
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Headings: Headings shall be ignored in construing this Agreement.
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1.9
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Dates and times: References to dates and times are to Paris, France dates and times.
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2.1
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Application for Admission and Global Offer
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2.2
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Appointment of the Joint Global Coordinators, the Joint Bookrunners and the Lead Managers
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2.2.1
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The Company and the Selling
Shareholder authorise and instruct the Managers to use reasonable endeavours to procure purchasers for the Offer Shares and
for such purpose they confirm the appointment of (i) ABN AMRO Bank N.V., J.P. Morgan Securities plc and Société
Générale as Joint Global Coordinators; (ii) Goldman Sachs International, ING Bank N.V. and Morgan Stanley & Co.
International plc as Joint Bookrunners; and (iii) Execution Noble & Co Limited, Banco Bilbao Vizcaya Argentaria, S.A.,
BMO Capital Markets Limited, Banco Português de Investimento, S.A., CM-CIC Securities, KBC Securities NV and Mitsubishi
UFJ Securities International plc as Lead Managers to the Global Offer and confirm that such appointments confer on the Joint Global Coordinators, the Joint Bookrunners and the Lead Managers all powers, authorities and discretions on their behalf which are necessary for or incidental to the performance of their respective functions as Joint Global Coordinators, Joint Bookrunners and Lead Managers (including the power to appoint sub-agents or to delegate the exercise of any of their powers, authorities or discretions to such persons as the Joint Global Coordinators, the Joint Bookrunners or the Lead Managers may think fit), and agree to ratify all actions which any of the Joint Global Coordinators, the Joint Bookrunners and the Lead Managers shall lawfully and properly take (whether before or after the date of this Agreement) in the exercise of such appointments, powers, authorities and discretions.
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2.2.2
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Each of the Company and the Selling Shareholder confirms that it has appointed the Listing Agent in connection with the Admission.
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2.2.3
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The Company shall give, to the extent permitted by applicable laws, all such assistance and provide all such information as any of the Managers and the Listing Agent may require for the making and implementation of the Global Offer, the Admission or to enable any of the Managers to discharge its obligations under this Agreement or pursuant to or in connection with the Global Offer; or as may be required by, or necessary to comply with the requirements of, the Regulators, the Exchanges, or any other applicable law or regulation for the purposes of, or in connection with, the Global Offer.
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2.2.4
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The Selling Shareholder shall give, to the extent permitted by applicable laws, all such assistance and provide all such information as any of the Managers and the Listing Agent may require for the making and implementation of the Global Offer or to enable any of the Managers to discharge its obligations under this Agreement or pursuant to or in connection with the Global Offer; or as may be required by, or necessary to comply with the requirements of, the Regulators, the Exchanges, or any other applicable law or regulation for the purposes of, or in connection with, the Global Offer.
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2.2.5
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The Company and the Selling Shareholder undertake not to revoke the appointments or authorities contained in this Clause 2 before the date on which there are no further obligations outstanding of any party to this Agreement for the sale or delivery of the Offer Shares by the Selling Shareholder under this Agreement, including pursuant to the Overallotment Option (the “Completion Date”). The Completion Date shall not be earlier than the latest possible Closing Date.
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3.1
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Firm Shares
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3.2
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Overallotment Option
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3.3
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Exercise of Overallotment Option
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3.3.1
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the aggregate number of Option Shares to be sold by the Selling Shareholder; and
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3.3.2
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the time and date for closing and settlement of the purchase of the Option Shares the subject of the Option Exercise Notice (the “Option Closing Date”). The Option Closing Date will be determined by the Joint Global Coordinators in their absolute discretion but will not be (i) before the First Closing Date or (ii) later than seven Business Days after the date of the relevant Option Exercise Notice or earlier than two Business Days after such date.
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3.4
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Terms of sale
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3.4.1
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The Selling Shareholder undertakes to each of the Managers that it will sell and transfer the Firm Shares with full title guarantee, free from all liens, charges and encumbrances and with all rights attaching thereto on the First Closing Date.
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3.4.2
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The Selling Shareholder undertakes to each of the Managers that following the exercise of the Overallotment Option it will sell and transfer the Option Shares with full title guarantee, free from all liens, charges and encumbrances and with all rights attaching thereto on the Option Closing Date.
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3.5
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Managers acting as principal
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3.6
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Non-binding indications of interest
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3.7
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Other benefits
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3.8
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Arm’s length transactions
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3.9
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Pricing
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3.10
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Allocation
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3.11
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Stabilisation
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4.1
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Delivery of documents
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4.1.1
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Part A of Schedule 3 on the date of this Agreement; and
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4.1.2
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Part B of Schedule 3 on the First Closing Date.
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4.2
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Filing, publication of Prospectus, press releases etc.
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4.2.1
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the Prospectus has been made available to the public in accordance with the Prospectus Rules;
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4.2.2
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the Prospectus, together with the relevant Translated Summaries, have been passported in Belgium, France and Portugal and made available to the public in those jurisdictions in accordance with the Prospectus Rules;
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4.2.3
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each of the documents described in the Prospectus as being available for inspection has been made and is available as described;
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4.2.4
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the Launch Press Announcement has been published in time for release not later than 7.30 a.m. on the date of publication of the Prospectus;
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4.2.5
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the Pricing Statement is delivered for release in accordance with the Prospectus Rules on the date hereof.
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4.3
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Offer
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4.4
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Euroclear
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4.5
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Resolutions and filings
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4.5.1
|
The Company undertakes to procure that on or before the First Closing Date all necessary resolutions are passed by the Company, conditional only on occurrence of the First Closing Date, and all necessary arrangements are made for the Registrar to act as the Company’s registrar and to enable the Ordinary Shares to be held and transferred through Euroclear.
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|
4.5.2
|
The Selling Shareholder undertakes to procure that on or before the First Closing Date all necessary resolutions are passed by the Selling Shareholder to sell and transfer the Offer Shares and to perform its obligations pursuant to the Stock Lending Agreement.
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4.6
|
Firm Shares
|
|
4.6.1
|
The Selling Shareholder undertakes to the Managers that all Firm Shares to be sold and transferred by it will be held through the book-entry systems of Euroclear forthwith after the execution of this Agreement (and in any event no later than two Business Days prior to the First Closing Date) together with such number of Euroclear transfer forms as the Joint Global Coordinators may request, duly executed by or on behalf of the Selling Shareholder, in favour of the Settlement Agent (acting as nominee of the Selling Shareholder pending the First Closing Date and against the undertaking to pay pursuant to Clause 5.1.3, as nominee for the purchasers therefor) representing in aggregate the number of Firm Shares to be sold by the Selling Shareholder.
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|
4.6.2
|
On or prior to the First Closing Date, the Selling Shareholder and the Company will use all reasonable endeavours to procure that Euroclear is registered in the Company shareholders register as the holder of the Firm Shares to be sold and transferred by the Selling Shareholder and the Selling Shareholder and the Company will execute such documents (including any transfer deeds) as are needed in connection therewith.
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4.7
|
Option Shares
|
|
4.7.1
|
The
Selling Shareholder undertakes to the Joint Global Coordinators that the Option Shares to be sold and transferred by it
will be held through the book-entry systems of Euroclear forthwith after the exercise of the Overallotment Option (and in
any event no later than two Business Days prior to the Option Closing Date) together with such number of Euroclear transfer forms as the Joint Global Coordinators may request, duly executed by or on behalf of the Selling Shareholder, in favour of the Settlement Agent (acting as nominee of the Selling Shareholder until the Option Closing Date and thereafter and against the undertaking to pay pursuant to Clause 5.2.2 as nominee for the purchasers therefor) representing in aggregate the number of Option Shares to be sold by the Selling Shareholder.
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4.7.2
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On or prior to the Option Closing Date, the Selling Shareholder and the Company will use all reasonable endeavours to procure that Euroclear is registered in the Company’s shareholders register as the holder of the Option Shares to be sold and transferred by the Selling Shareholder and the Selling Shareholder and the Company will execute such documents (including any transfer deeds) as are needed in connection therewith.
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4.8
|
Transaction
|
5
|
5.1
|
Subject to the satisfaction or waiver of the conditions set out in Clause 6 and this Agreement not having been terminated in accordance with its terms, at or prior to 8.00 a.m. on the First Closing Date:
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|
5.1.1
|
Notification to Euroclear
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5.1.2
|
Transfer of Firm Shares
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5.1.3
|
Payment
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5.2
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Subject to the satisfaction or waiver of the Option Conditions and this Agreement not having been terminated in accordance with its terms, at or prior to 8.00 a.m. on the Option Closing Date:
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|
5.2.1
|
Transfer of Option Shares
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|
5.2.2
|
Payment
|
5.3
|
Any payment of monies required to be made under Clause 5.1 or 5.2 shall be made by 5.00 p.m. on the relevant Closing Date in euros in immediately available funds to the Settlement Agent, as nominee for the Selling Shareholder and for further transfer to the following account:
|
Intermediary Bank:
|
Deutsche Bank AG Frankfurt AM Main Intermediary
|
Bank SWIFT BIC:
|
DEUTDEFF
|
Beneficiary’s Bank:
|
Wells Fargo Bank, N.A.
|
Beneficiary’s Bank SWIFT BIC:
(SWIFT Field 57a)
|
WFBIUS6WFFX
|
Beneficiary’s Account Number:
|
7775017440
|
Beneficiary’s Name:
|
NYSE Holdings LLC
|
Beneficiary’s Address:
(SWIFT Field 59)
|
2100 Riveredge Parkway, Suite 500, Atlanta, GA 30328, United States
|
5.4
|
Subject to any agreement among the Managers relating to reallocation (which shall not operate in any way to bind the Selling Shareholder), nothing in this Clause 5 shall oblige any Manager to pay any amount in excess of the Offer Price multiplied by the number of Offer Shares for which it is obliged to procure purchasers for, or to purchase itself pursuant to Clause 3.
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5.5
|
For the avoidance of doubt, no payment will be required on the First Closing Date in respect of any Ordinary Shares in respect of which overallotments have been made except to the extent of any Option Shares to be sold on such date pursuant to an exercise of the Overallotment Option.
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6.1
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The obligations of the Managers under Clauses 3.1 and 5.1 of this Agreement are subject to the following conditions:
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|
6.1.1
|
Warranties: the Warranties on the part of the Company and the Selling Shareholder contained in this Agreement being true and accurate in every respect and not misleading on and as of the Launch Date, the date of any supplementary prospectus, the Pricing Date and the First Closing Date, as though they had been given and made on such date by reference to the facts and circumstances then subsisting;
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|
6.1.2
|
Compliance: the Company and the Selling Shareholder having complied with their respective obligations under this Agreement or under the terms or conditions of the Global Offer which fall to be performed on or prior to the First Closing Date;
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|
6.1.3
|
Approval of Prospectus: the approval of the Prospectus by the AFM pursuant to the Prospectus Rules being in full force and effect;
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|
6.1.4
|
Amendments and supplements: any supplementary prospectus which may be required pursuant to the Prospectus Rules having been prepared, approved by the AFM, passported into Belgium, France and Portugal and made available to the public in accordance with the Prospectus Rules and the terms of this Agreement prior to Admission;
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|
6.1.5
|
Pricing Statement: the Pricing Statement having been published in accordance with the Prospectus Rules;
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|
6.1.6
|
Receipt of documents: delivery of the documents referred to in Clause 4.1 as being deliverable on or prior to the First Closing Date in accordance with the terms set out in Clause 4.1;
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|
6.1.7
|
Material Adverse Change: in the good faith opinion of the Joint Global Coordinators, following consultation where practicable with the Company and the Selling Shareholder, immediately prior to the First Closing Date there not having been a Material Adverse Change since the date of this Agreement (whether or not foreseeable at the date of this Agreement);
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|
6.1.8
|
Transaction Agreements: the Transaction Agreements having been entered into and becoming and continuing to be enforceable against each of the parties thereto in accordance with their terms and not having been varied, supplemented, rescinded or terminated (in whole or in part) and there being no outstanding conditions to the completion of the Transaction other than conditions that will be satisfied on or prior to Admission;
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|
6.1.9
|
Other Agreements: the Stock Lending Agreement and the Directors Lock-up Agreement having been entered into and becoming and continuing to be enforceable against each of the parties thereto in accordance with their terms and not having been varied, supplemented, rescinded or terminated (in whole or in part) prior to Admission;
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|
6.1.10
|
Admission: Admission to trading on an “as-if-and-when-delivered” basis occurring not later than 8.00 a.m. on the First Trading Date; and
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|
6.1.11
|
Reference Shareholders: each of the Reference Shareholders having complied with all its obligations under the Share Purchase Agreement and, to the extent applicable, the Reference Shareholders’ Agreement.
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6.2
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Waiver of Conditions
|
6.3
|
Non-Satisfaction or Waiver
|
|
6.3.1
|
the preceding provisions of this Clause 6.3 shall be without prejudice to any accrued rights or obligations of any party under this Agreement;
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|
6.3.2
|
the Selling Shareholder shall pay the costs and expenses specified in Clause 9;
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|
6.3.3
|
the provisions of Clauses 1, 8, 9, 10, 12, 13, 16, 17, 18 and 19 shall remain in full force and effect.
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6.4
|
The obligations of the Joint Global Coordinators and the other Managers under Clauses 3.3 and 5.2 in respect of Option Shares to be sold and delivered on the Option Closing Date are subject to the satisfaction or waiver of the following conditions (the “Option Conditions”) by 8.00 a.m. on the Option Closing Date (or such later time as the Joint Global Coordinators (on behalf of the Managers) may agree):
|
|
6.4.1
|
Conditions to First Closing Date: each of the conditions set out in Clause 6.1 having been satisfied or waived and this Agreement not having been terminated in accordance with its terms on or before the Option Closing Date;
|
|
6.4.2
|
Warranties: the Warranties on the part of each of the Company and the Selling Shareholder contained in this Agreement being true and accurate in every respect and not misleading on and as of the Option Closing Date, as though they had been given and made on such date by reference to the facts and circumstances then subsisting;
|
|
6.4.3
|
Compliance: the Company and the Selling Shareholder having complied with their respective obligations under this Agreement or under the terms or conditions of the Global Offer which fall to be performed on or prior to the Option Closing Date; and
|
|
6.4.4
|
No Cancellation of listing: Admission and dealings in the Ordinary Shares not having been terminated or suspended.
|
6.5
|
If, by the time specified in this Agreement (or such later time and/or date as the Joint Global Coordinators (on behalf of the Managers) may agree) any of the Option Conditions have not been fulfilled or waived in writing by the Joint Global Coordinators, the obligations of each of the parties in respect of the sale, delivery and payment for the Option Shares under Clauses 3.3, 4.7, and 5.2 shall cease to have any effect and the other provisions of this Agreement shall continue to be in full force and effect.
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7.1
|
Delivery of Prospectus
|
7.2
|
Amendments and supplements to Offer Documents
|
|
7.2.1
|
promptly bring such event or condition to the notice of the Joint Global Coordinators;
|
|
7.2.2
|
prepare an amendment or supplement as may be necessary in order to correct such statement or omission or to make such Offer Document comply with such requirements;
|
|
7.2.3
|
consult with the Joint Global Coordinators as to the contents of such amendment or supplement and comply with all reasonable requirements of the Joint Global Coordinators in relation thereto;
|
|
7.2.4
|
file with the AFM or other applicable authority any supplementary prospectus or other document required to be so filed, passport it into Belgium, France and Portugal, and publish such prospectus or other document as may be required by the Prospectus Rules or by other applicable law;
|
|
7.2.5
|
make such announcements or despatch such communications, and/or take such other steps as the Joint Global Coordinators reasonably consider necessary or desirable; and
|
|
7.2.6
|
promptly furnish to the Joint Global Coordinators such number of copies of such amendment or supplement and any such communications or announcements as they may reasonably request.
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7.3
|
Company announcements
|
|
7.3.1
|
The Company undertakes not
to make or despatch (and will not authorise any other person to make or despatch) any public announcement, statement, notice
or communication (written or oral) concerning the Company or a Group Company or the Global Offer or otherwise relating to the
assets, liabilities, profits, losses, financial or trading conditions or the earnings, business affairs or business prospects
of the Company or the Group which is or may be material in the context of the business or affairs of the Company or the Group
or in relation to the Global Offer or the issue, offer or sale of the Offer Shares (for the avoidance of doubt, excluding
announcements, statements, notices and communications made in the ordinary course of the Company’s activities as a
stock exchange company) between the date hereof and the H1 2014 Results Date (inclusive) (i) unless such announcement,
statement, notice or communication is accurate, not misleading and consistent with the information in the Prospectus and (ii)
without having first furnished to the Joint Global Coordinators a copy of each such proposed announcement, statement, notice
or communication as far in advance of the announcement as reasonably practicable to enable them to comment thereon (it being
understood that the Company has no obligation to take into account any such comments) and, only with respect to
announcements, statements, notices and communications made or despatched between the date hereof and the earlier of (A) the
date on which the Joint Global Coordinators exercise the Overallotment Option, and (B) the Stabilisation Period End Date,
having had the Joint Global Coordinators’ consent (not to be unreasonably withheld) as to its contents and the timing
and manner of its release.
|
|
7.3.2
|
The Company undertakes not to make or despatch (and will not authorise any other person to make or despatch) any public announcement or communication containing a reference to any of the Managers in its role as underwriter and Joint Global Coordinator, Joint Bookrunner or Lead Manager in connection with the Global Offer without having received the prior consent of the Managers.
|
|
7.3.3
|
This Clause 7.3 shall not apply to any such public announcement or communication if and to the extent that it is required by law or by the AFM or by the Exchanges, provided that prior to the making or despatch thereof the Company shall (where practicable) consult with the Joint Global Coordinators (on behalf of the Managers) as to the content, timing and manner of making or despatch thereof and the Company shall take into account all reasonable requirements on the Joint Global Coordinators’ part in relation thereto.
|
7.4
|
Selling Shareholder announcements
|
|
7.4.1
|
Between the date hereof and the H1 2014 Results Date (inclusive), the Selling Shareholder undertakes that it will and will cause all other parties acting on its behalf to obtain the written approval of the Joint Global Coordinators (on behalf of the Managers) prior to issuing any public announcement or participating in any press or other financial conference which relates to the Global Offer.
|
|
7.4.2
|
The Selling Shareholder undertakes not to make or despatch (and will not authorise any other person to make or despatch) any public announcement, statement, notice or communication (written or oral) containing a reference to any of the Managers in its role as underwriter and Joint Global Coordinator, Joint Bookrunner or Lead Manager in connection with the Global Offer (i) unless such announcement, statement, notice or communication is accurate, not misleading and consistent with the information in the Prospectus and (ii) without having received the prior consent of the Managers.
|
|
7.4.3
|
Clause 7.4.1 shall
not apply to any such public announcement or communication if and to the extent that it is required by law or by the AFM, by
the Exchanges or by the SEC, provided that prior to the making or despatch thereof the Selling Shareholder shall (where
practicable) consult with the Joint Global Coordinators (on behalf of the Managers) as to the content, timing and manner of making or despatch thereof, and the Selling Shareholder shall take into account all reasonable requirements on the Joint Global Coordinators’ part in relation thereto.
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7.5
|
Commitments and arrangements
|
7.6
|
Further information
|
7.7
|
No distribution
|
7.8
|
Company lock-up
|
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7.9
|
Selling Shareholder lock-up
|
7.10
|
Directors Lock-up
|
7.11
|
Use of proceeds
|
7.12
|
Company compliance with US and other laws
|
|
7.12.1
|
Directed selling efforts: Neither the Company nor any of its Affiliates, nor any person acting on its or their behalf (which, for the avoidance of doubt, shall not include the Managers and the Selling Shareholder and their respective officers and directors in respect of whom no undertaking is made), will engage in any “directed selling efforts” (as defined in Regulation S) with respect to the Ordinary Shares.
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7.12.2
|
No registration: Neither the Company nor any of its Affiliates, nor any person acting on its or their behalf (which, for the avoidance of doubt, shall not include the Managers and the Selling Shareholder and their respective officers and directors in respect of whom no undertaking is made), will, directly or indirectly, make offers or sales of any security, or solicit offers to buy, or otherwise negotiate in respect of, any security, under circumstances that would require the registration of the Ordinary Shares under the Securities Act.
|
|
7.12.3
|
Rule 144A information: The Company agrees that for so long as any of the Offer Shares remain outstanding and are “restricted securities” (within the meaning of Rule 144(a)(3) under the Securities Act) during any period in which it is neither subject to Section 13 or 15(d) of the Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b) thereunder, it will provide to any holder or beneficial owner of such restricted securities or to any prospective purchaser of such restricted securities designated by such holder or beneficial owner, upon the request of such holder, beneficial owner or prospective purchaser, the information required to be provided by Rule 144A(d)(4) under the Securities Act.
|
|
7.12.4
|
Restriction on resales: For so long as any Offer Shares are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will not, and will procure that its Affiliates do not, resell in the United States any Offer Shares that have been reacquired by any of them.
|
|
7.12.5
|
Qualification for sale: The Company will arrange for the qualification of the Offer Shares for offer and sale by the Managers through their Affiliates or agents under the laws of such states of the United States or other jurisdictions as the Joint Global Coordinators may agree with the Company and the Selling Shareholder and shall maintain such qualifications in effect for so long as required for the offering and resale of the Offer Shares, provided, however, that, in connection therewith, the Company shall not be obliged to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not qualified. The Company will immediately advise the Joint Global Coordinators of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offer Shares, for sale in any jurisdiction or the initiation or threatening of any proceedings for such purposes.
|
|
7.12.6
|
Rule 144A eligible securities: For so long as the Offer Shares are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will not become an “open-end company”, “unit investment trust” or “face-amount certificate company”, as such terms are defined in, and that it is not registered or required to be registered under Section 8 of, the US Investment Company Act of 1940, as amended.
|
|
7.12.7
|
PFIC: The Company will not become a “passive foreign investment company” within the meaning of Section 1297 of the US Internal Revenue Code of 1986.
|
|
7.12.8
|
Stabilisation: Neither the Company nor any of its Affiliates, (which, for the avoidance of doubt, shall not include the Managers and the Selling Shareholder and their respective officers and directors in respect of whom no undertaking is made), nor any person acting on its or their behalf, will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, the stabilisation, in violation of applicable laws or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offer Shares.
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7.13
|
Selling Shareholder compliance with US and other laws
|
|
7.13.1
|
Directed selling efforts: Neither it nor any of its Affiliates, nor any person acting on its or their behalf, will engage in any “directed selling efforts” (as defined in Regulation S) with respect to the Ordinary Shares.
|
|
7.13.2
|
Restriction on resales: For so long as any Offer Shares are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, it will not, and will procure that its Affiliates do not, resell in the United States any Offer Shares reacquired by any of them.
|
|
7.13.3
|
Stabilisation: It has not taken, and will not take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, the stabilisation, in violation of applicable laws or manipulation, of the price of any security of the Company to facilitate the sale or resale of the Offer Shares.
|
7.14
|
Each of the Managers severally and not jointly, agree to the selling restrictions as set out in Schedule 5.
|
8.1
|
Subject to the conditions in Clause 6 having been satisfied or waived and this Agreement not having been terminated in accordance with its terms prior to the First Closing Date, the Selling Shareholder undertakes to pay each of the Managers, on the First Closing Date the amounts of commissions and fees provided for in the relevant Engagement Letter.
|
8.2
|
Following any exercise of the Overallotment Option and subject to the Option Conditions having been satisfied or waived and this Agreement not having been terminated in accordance with its terms prior to the Option Closing Date, the Selling Shareholder undertakes to pay to each of the Managers, on the Option Closing Date, the amounts of commissions and fees provided for in the relevant Engagement Letter.
|
8.3
|
The commissions and fees to be paid pursuant to clauses 8.1 and 8.2 above shall be paid to each of the Managers separately within 20 days upon receipt by the Selling Shareholder of each Manager’s invoice.
|
9.1
|
Selling Shareholder costs and expenses
|
|
9.1.1
|
all fees and expenses payable or incurred in connection with Admission (including listing fees);
|
|
9.1.2
|
all costs and expenses payable in connection with the preparation, printing, distribution and, where applicable, filing of each of the Offer Documents (or any supplement or amendments thereto), this Agreement and any other document relating to the Global Offer;
|
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25 |
|
9.1.3
|
all filing fees and other related expenses in connection with the qualification of the Offer Shares for offering and sale in any jurisdiction pursuant to the Global Offer (including, without limitation, all fees and expenses in relation to advice received from any overseas lawyers in relation to the Global Offer);
|
|
9.1.4
|
the cost of preparing and despatching any certificates in respect of the Offer Shares;
|
|
9.1.5
|
all fees and expenses payable to Euroclear, any transfer agent, registrar or depository;
|
|
9.1.6
|
all legal and other professional fees, disbursements and expenses incurred by the Selling Shareholder;
|
|
9.1.7
|
all legal, accounting, valuation, actuarial, insurance, environmental and other professional fees, disbursements and expenses, including the legal expenses of each of the Managers;
|
|
9.1.8
|
all costs and expenses relating to any roadshows, printing, public relations, marketing and advertising expenses, courier, postage and telecommunications expenses;
|
|
9.1.9
|
all travel and other out-of-pocket expenses incurred by each of the Managers (including (i) DealAxis/Bookbuilder costs and (ii) such expenses incurred by their legal advisers) in connection with the Global Offer, Admission and the arrangements referred to in, or contemplated by, this Agreement and any agreement among the Managers;
|
|
9.1.10
|
all VAT payable by the Company pursuant to Clause 10;
|
|
9.1.11
|
all Stamp Taxes (together with interest and penalties payable thereon) and VAT payable by the Selling Shareholder pursuant to Clause 10; and
|
|
9.1.12
|
all other costs and expenses incurred by the Company or the Selling Shareholder arising out of or incidental to the Global Offer and the arrangements referred to in, or contemplated by, this Agreement.
|
10
|
10.1
|
Selling Shareholder undertakings on Stamp Taxes
|
|
10.1.1
|
The Selling Shareholder (or failing which the Company) undertakes to pay to the Joint Global Coordinators (on behalf of the Managers) not later than five (5) days before the same becomes due to any relevant Taxation authority an amount equal to any Stamp Taxes, together with any interest and penalties arising in connection with:
|
|
(i)
|
the execution and delivery of this Agreement or the Stock Lending Agreement; and
|
|
(ii)
|
the transactions contemplated by this Agreement or the Stock Lending Agreement
|
|
10.1.2
|
The undertaking in Clause 10.1.1, shall not apply to United Kingdom stamp duty unless:
|
|
(i)
|
stamp duty reserve tax would be chargeable in connection with the relevant transaction if such stamp duty were not paid; or
|
|
(ii)
|
such stamp duty is paid in order to produce the stamped instrument before any court, arbitrator, referee or public authority and such instrument could not be given in evidence or relied on before such court, arbitrator, referee or public authority without the payment of such duty.
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10.2
|
Value Added Tax
|
|
10.2.1
|
Where under the terms of this Agreement the Company or, as the case may be, the Selling Shareholder is liable to indemnify or reimburse or otherwise compensate the Joint Global Coordinators or the other Managers (or any of them) in respect of any costs, charges, expenses, losses or other amounts (a “Relevant Cost”), the payment shall include an amount equal to any VAT thereon not otherwise recoverable by the recipient or the representative member of any VAT group of which it forms part, subject to that person or representative member using all reasonable endeavours to recover such amount of VAT as may be practicable. If the Relevant Cost relates to a supply made to the Joint Global Coordinators or the Managers (or any of them) in their capacity as agents of the Company or, as the case may be, the Selling Shareholder, which is treated for VAT purposes as a supply made direct to the Company or, as the case may be, the Selling Shareholder, the Joint Global Coordinators or the other Managers (or any of them) shall use reasonable endeavours to procure that the supplier issues to the Company or, as the case may be, the Selling Shareholder a valid VAT invoice in respect of the Relevant Cost.
|
|
10.2.2
|
If any payment from the Company or, as the case may be, the Selling Shareholder under this Agreement constitutes the consideration for a taxable supply for VAT purposes, then in addition to that payment the payer shall pay any VAT due, unless the reverse charge procedure applies, subject to provision of a valid VAT invoice.
|
10.3
|
Deductions and withholding taxes
|
10.4
|
Gross up
|
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27 |
|
10.4.1
|
after payment of such Taxation (including any Taxation which would have been charged in the absence of any reliefs); and
|
|
10.4.2
|
after giving credit for any relief available to the recipient in respect of the matter giving rise to the payment
|
11.1
|
Company Warranties
|
11.2
|
Selling Shareholder Warranties
|
11.3
|
Manager Warranties
|
11.4
|
Repetition of Warranties
|
11.5
|
Effect of certificates
|
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11.6
|
Warrantor undertakings
|
11.7
|
If at any time prior to the Completion Date, any of the Managers (i) receives notice of the type referred to in Clause 11.6 or (ii) becomes aware that any of the representations, Warranties or undertakings set out in this Clause 11 or Schedule 2 was, is, has become or is reasonably likely to become untrue, inaccurate, misleading or breached in any respect which, in its sole opinion, is material, the Joint Global Coordinators (on behalf of the Managers) may (without prejudice to their right to terminate this Agreement pursuant to Clauses 14 and 16 and without prejudice to the conditions set out in Clause 6) require the Company and the Selling Shareholder at their own expense to amend, update or supplement the Prospectus (after having consulted with the Joint Global Coordinators as to the contents of such amendment or supplement and complied with all reasonable requirements of the Joint Global Coordinators in relation thereto) and/or require the Company at its own expense to make such Announcements or despatch such communications, and/or take such other steps as it reasonably considers necessary or desirable in connection with the untruth, inaccuracy or misleading nature of the representation, warranty or undertaking concerned.
|
12.1
|
The Company hereby undertakes with each of the Managers and their respective Affiliates, including their respective directors, officers, employees and agents, in each case whether present or future (each an “Indemnified Person” and in relation to each Manager, its “Indemnified Persons”) to indemnify and hold each Indemnified Person harmless from and against all and any Claims and Losses which any Indemnified Person may incur in investigating, preparing, disputing or defending, or providing evidence in connection with, any Claim (whether or not such Indemnified Person is an actual or potential party to such Claim), or in establishing any Claim or mitigating any Loss on its part or in seeking advice regarding any Claim or in any other way in connection with or related to the indemnity contained in this Clause 12.1 which shall be additional and without prejudice to any rights which such Indemnified Person may have at common law or otherwise and which arise, directly or indirectly, in connection with or out of:
|
|
12.1.1
|
there being any untrue statement or alleged untrue statement of a material fact in the Offer Documents (or any of them) or an omission or alleged omission to state in any of the Offer Documents a material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading except insofar as such Losses or Claims are caused by any such untrue statement or omission contained in the information supplied by the Managers and listed in Schedule 7 hereto;
|
|
12.1.2
|
the Offer Documents (or any of them) not containing or fairly presenting, or being alleged not to contain or to fairly present, all the information required by, or in a manner required by, law or regulation to be stated therein;
|
|
12.1.3
|
any actual or
alleged breach by the Company of any of its obligations under this Agreement (including, for the avoidance of doubt, any
actual or alleged breach by the Company of any of the Warranties or undertakings contained or referred to in this Agreement, and any circumstances constituting such a breach), or under the arrangements contemplated by the Offer Documents, or any of them, or under any other agreement to be entered into by the Company in connection with the Global Offer or Admission;
|
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|
12.1.4
|
any actual or alleged failure by the Company or any of its Directors, agents, employees or advisers to comply with the rules and regulations of the Exchanges or any other applicable requirement or statute, law or regulation in any jurisdiction in relation to the offering of the Offer Shares;
|
|
12.1.5
|
the distribution, issue or approval of the Offer Documents or any of them, or any other documents or materials in connection with the Global Offer and/or Admission, including any statement contained in any document issued by or on behalf of the Company, information provided or publicly generated (in writing or orally), not being, or being alleged not to be, complete, true, accurate, fair and reasonable or being, or being alleged to be, misleading; or
|
|
12.1.6
|
the offering of the Firm Shares to retail investors in the Netherlands, Belgium, France or Portugal, provided, however, that no Indemnified Person shall be entitled to be indemnified by any Indemnifying Party in respect of any Claims or Losses under this Clause 12.1.6 to the extent that they are judicially determined in a final adjudication by a court of competent jurisdiction to result primarily from the wilful default or gross negligence of such Indemnified Person, in which case such Indemnified Party shall repay to the relevant Indemnifying Party any amount received from such Indemnifying Party in respect of such Claims or Losses pursuant to this Clause 12.1.6.
|
12.2
|
The Selling Shareholder shall indemnify each Indemnified Person against all Claims which may be instituted, made, threatened or alleged against or otherwise involve, any Indemnified Person and all Losses suffered by such Indemnified Person including (without limitation) all Losses which any Indemnified Person may incur in investigating, preparing, disputing or defending, or providing evidence in connection with, any Claim (whether or not such Indemnified Person is an actual or potential party to such Claim), or in establishing any Claim or mitigating any Loss on its part or in seeking advice regarding any Claim or in any other way in connection with or related to the indemnity contained in this Clause 12.2 which shall be additional and without prejudice to any rights which such Indemnified Person may have at common law or otherwise and which arise, directly or indirectly, in connection with or out of:
|
|
12.2.1
|
the actual or alleged breach by the Selling Shareholder of any of the representations, Warranties or undertakings given under this Agreement or of any other obligation of the Selling Shareholder pursuant to this Agreement; or
|
|
12.2.2
|
the Selling Shareholder Information containing any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
|
12.3
|
Each of the Company, with respect to the indemnity set out in Clause 12.1, and the Selling Shareholder, with respect to the indemnity set out in Clause 12.2, is herein referred to as an “Indemnifying Party”.
|
12.4
|
Exclusion of liability
|
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12.5
|
Conduct of Claims
|
|
12.5.1
|
Each Indemnified Person shall notify the relevant Indemnifying Party as soon as reasonably practicable of any Claim being made, taken or threatened, against any Indemnified Person which is reasonably likely to give rise to a Claim under Clause 12 and shall keep the relevant Indemnifying Party reasonably informed of progress in respect of any such Claim, including steps proposed to be taken to defend any related proceedings, and shall, to the extent reasonably practicable, consult with the relevant Indemnifying Party as to any such Claim, proceedings or steps and provide information and copies of such documents relating to the Claim as the Indemnifying Party may request, provided that such Indemnified Person shall not be under any obligation to provide the Indemnifying Party with a copy of any document which is or may be legally privileged. Any failure to notify the relevant Indemnifying Party, to keep the relevant Indemnifying Party informed or to consult with the relevant Indemnifying Party as aforesaid shall not relieve the relevant Indemnifying Party of any obligations under this Agreement except to the extent that the relevant Indemnifying Party is materially prejudiced by such omission and shall not relieve the relevant Indemnifying Party of any other obligation or liability that the relevant Indemnifying Party may have to any Indemnified Person otherwise than under this Agreement.
|
|
12.5.2
|
Each Indemnified Person shall not admit liability in relation to or settle any such Claim without the prior written consent of the relevant Indemnifying Party (such consent not to be unreasonably withheld or delayed).
|
|
(a)
|
includes an unconditional release of the Managers from all liability arising out of such Claim; and
|
|
(b)
|
does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any of the Managers
|
|
12.5.3
|
If the relevant Indemnifying Party so elects, subject to:
|
|
(i)
|
the relevant Indemnified Person’s insurers confirming that rights under its policies of insurance will not be prejudiced; and
|
|
(ii)
|
the relevant Indemnified Person being indemnified to its reasonable satisfaction against any cost, claim or expense which it might suffer or incur,
|
|
(i)
|
the use of the legal advisers chosen by the Indemnifying Party to represent such Indemnified Person would present such legal advisers with a conflict of interest (based upon advice of counsel to such Indemnified Person);
|
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|
(ii)
|
the actual or potential defendants in, or targets of, any such action include both the relevant Indemnified Person and the Indemnifying Party and such Indemnified Person concludes that there may be legal defences available to it which are different from or additional to those available to the Indemnifying Party (based upon advice of counsel to the relevant Indemnified Person);
|
|
(iii)
|
the Indemnifying Party shall not have employed legal advisers satisfactory to the relevant Indemnified Person to represent the Indemnifying Party within reasonable time after notice of the institution of such action; or
|
|
(iv)
|
the Indemnifying Party authorises the relevant Indemnified Person to employ separate legal advisers at the expense of the Indemnifying Party.
|
12.6
|
If the Indemnifying Party assumes the defence of the action, the Indemnifying Party shall not be liable for any fees and expenses of legal advisers of the relevant Indemnified Person incurred thereafter in connection with the action, except as stated above.Each Indemnifying Party shall promptly notify the Joint Global Coordinators (on behalf of the Managers) of any limitation, restriction or exclusion (whenever arising and whether relating to the time period during which a Claim can be made, the quantum of a Claim or otherwise) on the extent to which the Indemnifying Party and/or any of its Affiliates may claim against any third party or parties and/or of any waiver or release of any right of the Indemnifying Party or any Group Company or any of their respective Affiliates to so claim (each a “Limitation”) in respect of anything which may arise, directly or indirectly, out of or is based upon or is in connection with the Global Offer, Admission or the subject matter of the obligations or services to be performed under this Agreement or in connection with the Global Offer or Admission by any of the Managers on their behalf.
|
12.7
|
If any Indemnifying Party enters into any Limitation, that Indemnifying Party shall:
|
|
12.7.1
|
not be entitled to recover any amount from any Indemnified Person which, in the absence of such Limitation, the relevant Manager would have been entitled to recover pursuant to the Civil Liability (Contribution) Act 1978;
|
|
12.7.2
|
indemnify each Indemnified Person in respect of any increased liability to any third party which would not have arisen in the absence of such Limitation; and
|
|
12.7.3
|
take such other action as any of the Managers may require to ensure that the Indemnified Person is not prejudiced as a consequence of such agreement or arrangement.
|
13
|
13.1
|
If the indemnification provided for in Clause 12 is for any reason (including because such indemnification would be contrary to public policy) unavailable or insufficient to hold harmless an Indemnified Person in respect of any Losses referred to therein, save where such insufficiency arises from any limitation to or exclusion of liability for indemnification pursuant to Clause 12.4, then the relevant Indemnifying Party shall, subject always to Clause 13.6, contribute to the aggregate amount of such Losses incurred by such Indemnified Person, in each case as incurred:
|
|
13.1.1
|
in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Party on the one hand and each of the Managers on the other hand from the Global Offer; or
|
|
13.1.2
|
if
the allocation provided by Clause 13.1.1 is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to
in Clause 13.1.1 but
also the relative fault of the Indemnifying Party on the one hand and each of the Managers on the other hand, in connection with the matters which resulted in such Losses, as well as any other relevant equitable considerations.
|
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13.2
|
The benefits received by the Indemnifying Party on the one hand and each of the Managers on the other hand, in connection with the Global Offer shall be deemed to be in the same respective proportions as, with respect to the Indemnifying Party, the total net proceeds from the Global Offer (before deducting expenses) received by the Selling Shareholder and, with respect to each of the Managers, the total fees and commissions received by each of the Managers, bear to the total gross proceeds from the Global Offer.
|
13.3
|
The relative fault of the Indemnifying Party on the one hand and each of the Managers on the other hand will be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or by any of the Managers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
|
13.4
|
Each Indemnifying Party and each of the Managers agrees that it would not be just and equitable if a contribution pursuant to this Clause 13 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Clause 13.
|
13.5
|
Notwithstanding any other provision of Clauses 12 and 13.1 to 13.4:
|
|
13.5.1
|
no Indemnified Person shall be entitled to recover from any individual party more by way of a contribution under Clauses 12 and 13.1 to 13.4 than it would have been able to recover from such party had the indemnities in Clause 12 been available to such Indemnified Person; and
|
|
13.5.2
|
no Indemnifying Party shall be liable to pay any amount pursuant to Clauses 12 and 13.1 to 13.8 in excess of the amount it would have been liable to pay had the indemnities in Clause 12 been available to such Indemnified Person.
|
13.6
|
Notwithstanding the provisions of Clauses 12 and 13.1 to 13.4, none of the Managers shall be required to contribute any amount in excess of the amount by which the total gross proceeds from the Global Offer underwritten by them under this Agreement exceed the amount of any damages which the relevant Manager has otherwise been required to pay and has actually paid by reason of any untrue or alleged untrue statement or omission or alleged omission.
|
13.7
|
No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to any contribution from any person who was not guilty of such fraud or fraudulent misrepresentation.
|
13.8
|
For the purposes of Clauses 12 and 13.1 to 13.4, each Indemnified Person shall have the same rights to contribution as the Manager to which it is affiliated. The respective obligations of the Managers to contribute pursuant to Clauses 12 and 13.1 to 13.4 are several in proportion to the number of Firm Shares underwritten by each of them hereunder, and not joint nor joint and several.
|
13.9
|
Each of the Managers agrees on its behalf and on behalf of each of their Indemnified Persons that, in the event that more than one of them has a Claim arising out of the same facts under this Clause 13, it will consult with the other Managers as to whether it is appropriate to conduct such Claims jointly.
|
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13.10
|
No Double Recovery
|
14
|
14.1
|
If, in the case of the Firm Shares, at any time before the First Closing Date (or, in the case of any Option Shares, the Option Closing Date):
|
|
14.1.1
|
any statement contained in any Offer Document, when taken together with the information contained in the Disclosure Package, is or has become or has been discovered to be untrue, incorrect or misleading in any material respect, or any matter has arisen which would, if the Offer Documents, when taken together with the information contained in the Disclosure Package, were to be issued at that time, constitute a material inaccuracy or omission therefrom;
|
|
14.1.2
|
any matter has arisen which would require the publication of a supplementary prospectus pursuant to the Prospectus Rules;
|
|
14.1.3
|
there has been a breach by the Company or the Selling Shareholder of any of the Warranties or undertakings contained in this Agreement or any other provisions of this Agreement;
|
|
14.1.4
|
in the opinion of the Joint Global Coordinators acting in good faith and following consultation where practicable with the Company and Selling Shareholder, there shall have been a Material Adverse Change (whether or not foreseeable at the date of this Agreement);
|
|
14.1.5
|
there shall have occurred or, in the opinion of the Joint Global Coordinators following consultation where practicable with the Company and the Selling Shareholder, it is reasonably likely that there will occur:
|
|
(i)
|
any material adverse change in the financial markets in France, the Netherlands, Belgium, Portugal, the United Kingdom or the United States, or the international financial markets, any outbreak or escalation of hostilities, war, act of terrorism, declaration of emergency or martial law or other calamity or crisis or event or any change or development in national or international political, financial, economic, monetary or market conditions or currency exchange rates or controls; or
|
|
(ii)
|
suspension of, or occurrence of material limitations to, trading in any securities of the Company by the Exchanges or any exchange, or of trading generally on the Exchanges, the London Stock Exchange or the New York Stock Exchange, or minimum or maximum prices for trading having been fixed, or maximum ranges for prices of securities having been required, by any of said exchanges or by order of any governmental authority, or a material disruption in commercial banking or securities settlement or clearance services in France, the Netherlands, Belgium, the United Kingdom, Portugal or the United States; or
|
|
(iii)
|
any exchange controls having been imposed by France, the Netherlands, Belgium, Portugal, the United Kingdom or the United States; or
|
|
(iv)
|
declaration of a banking moratorium by France, the Netherlands, Belgium, Portugal, the United Kingdom or the United States;
|
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|
14.1.6
|
the application for Admission is refused by any of the Exchanges or, in the judgement of the Company and/or the Selling Shareholder, will not be granted,
|
|
14.1.7
|
allow the Global Offer to proceed on the basis of the Prospectus, subject, if the Joint Global Coordinators so request, to the publication by the Company of a supplementary prospectus, provided that the Company shall not publish or cause to be published any such supplementary prospectus without the prior written consent of the Joint Global Coordinators; or
|
|
14.1.8
|
give notice to the Company and the Selling Shareholder to terminate this Agreement (in the case of a notice given on or before the First Closing Date) or terminate the obligations of the Managers in relation to the Option Shares (in the case of a notice given after the First Closing Date).
|
14.2
|
In the event of the publication of a supplementary prospectus, the Joint Global Coordinators shall have the right by notice in writing to the Company and the Selling Shareholder (in addition to any right under Clauses 14.1 and 15.1.2 or otherwise to terminate this Agreement) to postpone the First Closing Date for such period, not exceeding five Business Days, as the Joint Global Coordinators shall determine in agreement with the Company and the Selling Shareholder.
|
14.3
|
If any notice is given by the Joint Global Coordinators to the Company and the Selling Shareholder pursuant to this Clause 14 prior to the First Closing Date, the Company and the Selling Shareholder shall, withdraw any application to the AFM for approval of the Prospectus and to the Exchanges for admission of the Ordinary Shares to listing and trading on their regulated markets.
|
14.4
|
If this Agreement is terminated pursuant to the provisions of this Clause 14, the obligations of each of the parties hereunder shall immediately cease to have any effect, provided that:
|
|
14.4.1
|
any accrued rights or obligations of any party under this Agreement and any of the other provisions of this Agreement shall continue to be in full force and effect;
|
|
14.4.2
|
the Selling Shareholder and the Company shall pay the costs and expenses specified in Clause 9; and
|
|
14.4.3
|
the provisions of Clauses 1, 8, 9, 10, 12, 13, 16, 17, 18 and 19 shall remain in full force and effect.
|
15
|
15.1
|
If one or more of the Managers defaults in the performance of its obligations on a Closing Date to purchase Firm Shares under this Agreement (the “Defaulted Shares”), the Joint Global Coordinators shall have the right, but not the obligation, within 24 hours thereafter, to make arrangements for one or more of the other Managers (each a “Non-Defaulting Manager”) to procure purchasers for or, failing which, to purchase all, but not less than all, of the Defaulted Shares in such amounts as the Joint Global Coordinators may determine, upon and subject to the terms set out in this Agreement. If the Joint Global Coordinators have not completed such arrangements within such 24-hour (or other agreed) period, then:
|
|
15.1.1
|
if
the number of Defaulted Shares does not exceed 10 per cent. of the aggregate number of Firm Shares to be purchased on
such date, each of the Non-Defaulting Managers shall be obliged, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all Non-Defaulting Managers, provided that in no event shall the number of Firm Shares (or, as the case may be, Option Shares) that any Non-Defaulting Manager has agreed to purchase on such Closing Date be increased pursuant to this Clause 15 by an amount in excess of one-ninth of such number of Firm Shares (or, as the case may be, Option Shares) without the written consent of such Non-Defaulting Manager; or
|
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|
15.1.2
|
if the number of Defaulted Shares exceeds 10 per cent. of the aggregate number of Firm Shares to be purchased on such date, unless notice to the contrary in writing is given to the Company and the Selling Shareholder prior to the expiry of such 24-hour period, this Agreement shall terminate (in the case of default in respect of Option Shares being by way of a termination of the Managers’ obligations in respect of such Option Shares pursuant to Clause 3.3) without liability on the part of any Non-Defaulting Manager.
|
15.2
|
Neither termination nor any other action taken pursuant to this Clause 15 shall relieve any defaulting Manager from liability in respect of its default.
|
15.3
|
In the event of any such default which does not result in the termination of this Agreement, the Joint Global Coordinators, the Company and the Selling Shareholder shall have the right (without obligation) to postpone the Closing Date for a period not exceeding seven Business Days in order to effect any required changes in the Prospectus or in any other documents or arrangements.
|
16
|
16.1
|
Except as otherwise provided in this Agreement, any notice, demand or other communication to be given under, or in connection with, this Agreement shall be in writing and be signed by or on behalf of the party giving it. Any notice shall be served by leaving it at, or by sending it by fax, pre-paid recorded delivery, special delivery to, the address (marked for the attention of the relevant party) set out in Clause 16.4 (or as otherwise notified from time to time under this Agreement). If sent by fax, the notice shall be sent to the fax number, where provided, of the relevant party set out in Clause 16.4.
|
16.2
|
Any notice served, in accordance with Clause 16.1, shall be deemed to have been duly received:
|
|
16.2.1
|
in the case of delivery by hand, when delivered;
|
|
16.2.2
|
in the case of a facsimile transmission, at the time of transmission; and
|
|
16.2.3
|
in the case of pre-paid recorded delivery, special delivery or registered post, at 8.00 a.m. on the second Business Day following the date of posting,
|
16.3
|
In proving service in accordance with Clause 16.2, it will be sufficient to prove:
|
|
16.3.1
|
in the case of a letter, that such letter was left at or delivered to the correct address of the party to be served as provided in this Agreement or properly stamped, addressed to the address of the party to be served in this Clause 16 and placed in the post; and
|
|
16.3.2
|
in the case of a facsimile transmission, that such facsimile was duly transmitted to the number of the party to be served given in this Clause 16 and an electronic acknowledgement was received.
|
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16.4
|
All notices, demands or other communications given under this Agreement shall be given to the following addresses and numbers:
|
If to the Company to: | ||
Address: | Beursplein 5, 1012 JW Amsterdam, The Netherlands | |
Fax Number: | + 31 20 5504899 | |
For the attention of: | General Counsel | |
If to ICE or
|
||
ICE Europe to: | ||
Address:
|
2100 RiverEdge Parkway, Suite 500, Atlanta, Georgia 30328, United States of America
|
|
Fax Number: | +1 770 937 0020 | |
For the attention of: | Scott Hill | |
With a copy to: | Legal | |
If to ABN AMRO to: | ||
Address: | Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands | |
Fax Number: | +31 20 3831661 | |
For the attention of: | Rijnhard Snouckaert | |
If to J.P. Morgan to: | ||
Address: | 25 Bank Street, Canary Wharf, London, E14 5JP, United Kingdom | |
Fax Number: | +44 20 3493 1453 | |
For the attention of: | Equity Syndicate Desk | |
If to Société Générale to: | ||
Address: | 75886 Paris, Cedex 18, France | |
Fax Number: | +33 (0)1 42 13 75 51 | |
For the attention of: | CORI/COR/SYN Attn: Equity Syndicate | |
If to Goldman Sachs International to: | ||
Address:
|
Peterborough Court, 133 Fleet Street, London EC4A 2BB, United Kingdom
|
|
Fax Number: | +44 (0) 20 7774 4477 | |
For the attention of: | Antoine de Guillenchmidt | |
If to ING to: | ||
Address:
|
Bijlmerplein 888, 1102 MG Amsterdam, the Netherlands
|
|
Fax Number: | +31 20 563 8502 | |
For the attention of: | Kim Balt |
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If to Morgan Stanley to: | ||
Address: | 25 Cabot Street, Canary Wharf, London E14 4QA, United Kingdom | |
Fax Number: | +44 20 7425 8990 | |
For the attention of: | Head of Equity Capital Markets | |
If to Espirito Santo Investment Bank to: | ||
Address: | 10 Paternoster Square, London EC4M 7AL, United Kingdom | |
Fax Number: | +44 20 7456 9189 | |
For the attention of: | Erik R F Anderson | |
If to BBVA to: | ||
Address:
|
Ciudad BBVA-(Edificio Oceanía), Calle Sauceda 28, 2ª Planta, 28050 Madrid
|
|
Fax Number: | +34 34 91 5379796 | |
For the attention of: | Miguel Ángel Prieto Martín | |
If to BMO to: | ||
Address: | 95 Queen Victoria Street, London EC4V 4HG, United Kingdom | |
Fax Number: | +44(0) 20 7248 5691 | |
For the attention of: | Neil Haycock | |
If to BPI to: | ||
Address: | Rua Tenente Valadim 284, 4100-476 Porto, Portugal | |
Fax Number: | +351 22 6000856 | |
For the attention of: | Legal Department | |
If to CM-CIC Securities to: | ||
Address: | 6, Avenue de Provence, 75441 Paris, Cedex 09, France | |
Fax Number: | +33 1 45 96 77 88 | |
For the attention of: | Eric Le Boulch | |
If to KBCS to: | ||
Address: | Havenlaan 12, 1080 Brussels, Belgium | |
Fax Number: | +32 2 429 17 64 | |
For the attention of: | Erik De Clippel | |
If to Mitsubishi UFJ Securities to: | ||
Address:
|
Ropemaker Place, 25 Ropemaker Street, London EC2Y 9AJ, United Kingdom
|
|
Fax Number: | +44 20 7577 2872 | |
For the attention of: | Legal – Capital Markets |
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17
|
17.1
|
Assignment
|
17.2
|
Successors
|
17.3
|
Release, compromise etc.
|
17.4
|
No waiver
|
17.5
|
Joint Global Coordinators and the Managers acting solely for certain persons
|
17.6
|
Time of the essence
|
17.7
|
Counterparts
|
17.8
|
Entire agreement
|
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17.9
|
Severability
|
17.10
|
Further assurance
|
17.11
|
Survival of representations, warranties and obligations
|
17.12
|
Third party rights
|
17.12.1
|
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement except as set out in this Clause 17.12 but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
|
17.12.2
|
Each Indemnified Person shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce its rights under Clauses 12 and 13 provided that, save to the extent notified in writing to the relevant Indemnified Person, each Manager (without obligation) will have the sole conduct of any action to enforce such rights on behalf of its Indemnified Persons. Save as provided in this Clause 17.12.2, Indemnified Persons other than the relevant Manager will not be entitled directly to enforce their rights under this Agreement, under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
|
17.12.3
|
Any of the Managers, the Company and the Selling Shareholder may agree to terminate this Agreement in accordance with its terms or vary any of its terms without the consent of any Indemnified Person and none of the Managers will have responsibility to any Indemnified Person under or as a result of this Agreement.
|
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17.13
|
Liabilities between Managers
|
17.14
|
Conflict of interest
|
17.15
|
Remedies
|
18
|
Process Agent
|
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19
|
Governing law and jurisdiction
|
19.1
|
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
19.2
|
Each party to this Agreement irrevocably:
|
|
19.2.1
|
agrees that the courts of England are to have exclusive jurisdiction to settle any disputes (including claims for set-off and counter-claims) in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by, this Agreement or otherwise arising under or in connection with this Agreement; and
|
|
19.2.2
|
submits to the exclusive jurisdiction of the English courts and agrees that any proceedings in respect of such claim or matter may be brought in such courts.
|
19.3
|
Each party to this Agreement irrevocably waives any objection to any such court as is referred to in Clause 19.2 on grounds of inconvenient forum or otherwise as regards proceedings in connection with this Agreement and further irrevocably agree that a judgment or order of any such court in connection with this Agreement shall be conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction.
|
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42 |
/s/Anthony Attia
|
/s/Dominique Cerutti
|
|
By: Anthony Attia
|
By: Dominique Cerutti
|
|
Title: Member of the Managing Board
|
Title: Chairman of the Managing Board
|
/s/Scott A. Hill
|
||
By: Scott A. Hill
|
||
Title: Chief Financial Officer
|
/s/Scott A. Hill
|
||
By: Scott A. Hill
|
||
Title: Director
|
/s/R W Snouckaert
|
/s/GC Van Schuppen
|
|
By: R W Snouckaert
|
By: GC Van Schuppen
|
|
Title: Managing Director
|
Title: Managing Director
|
/s/Nadim Haswani
|
|
By: Nadim Haswani
|
|
Title: Vice President
|
A17927651 |
43 |
/s/Franck Robard
|
/s/Thierry Bastos
|
|
By: Franck Robard
|
By: Thierry Bastos
|
|
Title: Co-Head of ECM – Financial institutions
|
Title:Co-Head ECM FI
|
/s/Antoine de Guillenchmidt
|
||
By: Antoine de Guillenchmidt
|
||
Title: Managing Director
|
/s/Willem-Jan Meyer
|
/s/Kim Balt
|
|
By: Willem-Jan Meyer
|
By: Kim Balt
|
|
Title: Managing Director
|
Title: Managing Director
|
/s/Adam Pickard
|
||
By: Adam Pickard
|
||
Title: Executive Director
|
/s/Isabel Bermejo
|
/s/Alberto Arroyo
|
|
By: Isabel Bermejo
|
By: Alberto Arroyo
|
|
Title: Managing Director
|
Title: Executive Director
|
A17927651 |
44 |
/s/Rui Ribeiro da Silva
|
/s/Miguel Pessanha Moreira
|
|
By: Rui Ribeiro da Silva
|
By: Miguel Pessanha Moreira
|
|
Title: Executive
|
Title: Proxy
|
/s/Rupert Newall
|
/s/Jeffrey Couch
|
|
By: Rupert Newall
|
By: Jeffrey Couch
|
|
Title: Managing Director
|
Title: Managing Director
|
/s/Eric Le Boulch
|
||
By: Eric Le Boulch
|
||
Title: CEO
|
/s/Erik Anderson
|
/s/John Riddell
|
|
By: Erik Anderson
|
By: John Riddell
|
|
Title: Managing Director ECM
|
Title: Managing Director of FIG, Investment Banking
|
/s/Erik de Clippel
|
||
By: Erik De Clippel
|
||
Title: Attorney in fact
|
A17927651 |
45 |
/s/An-chi Chen-Tanner
|
|
By: An-chi Chen-Tanner
|
|
Title: Authorised Signatory
|
A17927651 |
46 |
(1)
|
(2)
|
(3)
|
Name of Selling Shareholder
|
Number of
Firm Shares |
Maximum
Number of Option Shares |
ICE EUROPE PARENT LTD
|
42,248,881
|
4,210,823
|
A17927651 |
47 |
(1)
Name of Manager
|
(2)
Number of
Firm Shares |
(3)
Pro rata
proportion (%) |
ABN AMRO BANK N.V.
|
9,505,998
|
22.50
|
J.P. MORGAN SECURITIES PLC
|
9,505,998
|
22.50
|
SOCIÉTÉ GÉNÉRALE
|
9,505,998
|
22.50
|
GOLDMAN SACHS INTERNATIONAL
|
3,168,666
|
7.50
|
ING BANK N.V.
|
5,281,108
|
12.50
|
MORGAN STANLEY & CO. INTERNATIONAL PLC
|
3,168,666
|
7.50
|
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
|
422,489
|
1.00
|
BANCO PORTUGUÊS DE INVESTIMENTO, S.A.
|
211,245
|
0.5
|
BMO CAPITAL MARKETS LIMITED
|
422,489
|
1.00
|
CM-CIC SECURITIES
|
211,245
|
0.5
|
EXECUTION NOBLE & CO LIMITED
|
211,245
|
0.5
|
KBC SECURITIES NV
|
211,245
|
0.5
|
MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC
|
422,489
|
1.00
|
Total
|
42,248,881
|
100.00
|
A17927651 |
48 |
1
|
Offer Documents
|
1.1
|
All statements contained in any of the Offer Documents are (or, to the extent not yet published, will be when published) true and accurate in all material respects and not misleading. None of the Offer Documents contains (or, to the extent not yet published, will) contain any untrue statement of a material fact or omitted (taken together) to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
|
1.2
|
The Company is not aware of any non-public fact or circumstance (excluding, for the avoidance of doubt, any fact or circumstance disclosed or to be disclosed in the Offer Documents) (i) that, if made public, would be expected to have a material effect upon the market price of the Ordinary Shares or upon the Company or the Group, (ii) that would require it to make a publication and/or notification or publish a supplement to the Prospectus pursuant to the Dutch Civil Code (Burgerlijk Wetboek), the Dutch Financial Supervision Act, the Euroclear Rules, the Listing Rules, the Prospectus Rules, the Disclosure and Transparency Rules and all other relevant laws and regulations, or (iii) in respect of which it is relying on a legal exemption from an obligation to immediately disclose any such information.
|
1.3
|
All expressions of opinion, intention or expectation contained in each of the Offer Documents are (or, to the extent not yet published, will be when published) made in good faith and reasonably arrived at after due and careful enquiry.
|
1.4
|
Statements to the AFM or the Exchanges
|
|
1.4.1
|
All statements made or information provided by or on behalf of the Company to the AFM or the Exchanges are (or, when made, will be) true and accurate in all respects and were and are not (or, when made, will not be) misleading and all expressions of opinion, intention or expectation made by the Company to the AFM were or are (or, when made, will be) truly and honestly held and fairly made on reasonable grounds and/or assumptions after due and careful consideration and enquiry and there are no facts which have not been disclosed to the AFM or the Exchanges which by their omission make any such statements misleading or which are material for disclosure to either of them.
|
|
1.4.2
|
There are no matters other than those disclosed in the Prospectus and in the Disclosure Package or otherwise in writing to the AFM which the Company believes should be taken into account by the AFM or the Exchanges in considering the application for approval of the Prospectus, the making of the Global Offer and the admission of the Ordinary Shares to trading on the Exchanges.
|
1.5
|
Offering materials
|
A17927651 |
49 |
1.6
|
Presentation Materials and Announcements
|
1.7
|
Analyst information
|
2
|
Financial information
|
2.1
|
Financial Statements
|
|
2.1.1
|
give a true and fair view of the state of affairs and financial condition of the Group as at the end of each of the relevant financial periods and of the assets, liabilities, financial position, results, profit, loss, cash flow and changes in equity and profit or loss of the Group for each such period;
|
|
2.1.2
|
are in accordance with IFRS and its interpretations promulgated by the International Accounting Standards Board applied on a consistent basis throughout the periods involved (except as noted therein);
|
|
2.1.3
|
make proper provision or, as appropriate, disclosure for all liabilities (whether actual, deferred, contingent or disputed) or commitments in accordance with IFRS; and
|
|
2.1.4
|
have been prepared after due and careful enquiry by the Company and, where applicable, its subsidiaries, and is prepared on the basis set out in the Prospectus and prepared consistently with the accounting principles of the Group.
|
2.2
|
Off-balance sheet finance
|
2.3
|
Adjustments and estimations
|
A17927651 |
50 |
2.4
|
Targets
|
2.5
|
Independent accountants
|
2.6
|
Provision of financial information to the Reporting Accountants and Statutory Auditors
|
2.7
|
Information in reports
|
2.8
|
Financial reporting procedures
|
|
2.8.1
|
transactions are executed in accordance with management’s general or specific authorisations;
|
|
2.8.2
|
transactions are recorded as necessary to permit preparation of returns and reports, complete and accurate in all material respects, to regulatory bodies as and when required by them and financial statements in accordance with IFRS; and
|
|
2.8.3
|
access to the Group’s assets is permitted only in accordance with management’s general or specific authorisation.
|
A17927651 |
51 |
2.9
|
Working capital
|
|
2.9.1
|
The Company believes that the working capital available to the Group is sufficient to cover the Group’s current financial obligations, that is, for at least the next 12 months following the date of the Prospectus.
|
|
2.9.2
|
The cash flow and working capital projections contained in the Working Capital Report have been prepared on a reasonable basis after due and careful enquiry and take into account all material matters and sensitivities of which the Company is aware concerning the Company and each of the other members of the Group.
|
|
2.9.3
|
All assumptions on which such projections are based are set out and fairly presented in the Working Capital Report and are reasonable and, so far as the Company is aware, there are no other material assumptions which should reasonably be taken into account in the preparation of such projections.
|
2.10
|
No significant change and no Material Adverse Change
|
|
2.10.1
|
there has been no Material Adverse Change; and
|
|
2.10.2
|
there have been no transactions entered into by the Company or any member of the Group, other than those in the ordinary course of business, which are material in the context of the Group taken as a whole.
|
3
|
Corporate organisation and business
|
3.1
|
Due incorporation, power and authority of the Company
|
3.2
|
Due incorporation, power and authority of each Significant Subsidiary
|
|
3.2.1
|
Each Significant Subsidiary has been duly incorporated or organised and is validly existing under the laws of the jurisdiction of its incorporation or organisation and has full power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package.
|
|
3.2.2
|
All information on all Group Companies which is required to be included in the Prospectus pursuant to the Prospectus Rules has been so included.
|
|
3.2.3
|
Except as otherwise disclosed in the Disclosure Package, all of the issued share capital of each Significant Subsidiary has been duly and validly authorised and issued, is fully paid and not subject to any call for the payment of further capital and, to the extent such share capital is owned by the Company, directly or through one or more other Group Companies, free and clear of any pre-emptive rights, security interest, mortgage, pledge, lien, encumbrance, Claim or equity.
|
3.3
|
Share capital
|
|
3.3.1
|
The authorised and issued share capital of the Company and (to the extent described in the Disclosure Package) each Group Company is, and will be on the First Closing Date, as described in the Disclosure Package.
|
A17927651 |
52 |
|
3.3.2
|
All issued and outstanding Ordinary Shares have been duly authorised, were validly issued, fully-paid and are non-assessable and all sums due in respect of the issued share capital of the Company have been paid to and received by the Company. None of the issued share capital of the Company was issued in violation of pre-emptive or other similar rights of any shareholder of the Company. None of the owners or holders of any of the share capital of the Company has any pre-emptive or other rights, in his capacity as such, in relation to the Group other than as set out in the Articles of Association and Dutch law, and no Offer Share will be issued or delivered in violation of the pre-emptive rights of any holder of Ordinary Shares. For the purposes of this paragraph, “non-assessable” means that a holder of Ordinary Shares will not by reason of merely being such a holder, be subject to assessment or calls by the Company or its creditors for further payment on such Ordinary Shares.
|
|
3.3.3
|
Except as otherwise disclosed in the Disclosure Package, there are no outstanding securities or warrants convertible into or exchangeable for rights or options, or agreements to grant warrants, rights or options, to purchase or to subscribe for, or obligations or commitments of the Company or any Group Company to create, issue, sell or otherwise dispose of, any securities (or any such shares, warrants, rights, options or obligations) of the Company or any Group Company.
|
|
3.3.4
|
Except as otherwise disclosed in the Disclosure Package, subject to applicable law and regulation, no Group Company is currently prohibited, directly or indirectly, from declaring or paying any dividends or making any other such distributions, from repaying any loans or advances or from transferring any of its property or assets to any other member of the Group;
|
|
3.3.5
|
There are no restrictions applicable to the Ordinary Shares generally upon the voting or transfer of any of the Ordinary Shares pursuant to the Articles of Association or Dutch law or pursuant to any applicable law or any agreement or other instrument to which the Company or any other Group Company is a party or by which any of them may be bound, except as described in the Prospectus and in the Disclosure Package.
|
|
3.3.6
|
The statements set forth in the Prospectus under the caption “Description of Share Capital and Corporate Governance”, insofar as such statements purport to summarize certain provisions of Dutch law or of the Articles of Association, constitute a fair summary of such provisions.
|
3.4
|
Corporate power
|
A17927651 |
53 |
3.5
|
Authorisation
|
4
|
Compliance with laws and regulations
|
4.1
|
Compliance with laws
|
4.2
|
The Company and the members of the Managing Board or Supervisory Board have at all times complied with the provisions of the Articles of Association and the laws and regulations of the Netherlands (to the extent non-compliance would be material in the context of the Global Offer or Admission).
|
4.3
|
Anti-trust
|
4.4
|
No market abuse
|
A17927651 |
54 |
4.5
|
Statutory books and records
|
5
|
Consents and authorisations
|
5.1
|
Consents and approvals
|
|
5.1.1
|
All consents, approvals, authorisations, orders, registrations, clearances and qualifications of or with any court or governmental, supranational, regulatory, Taxation or stock exchange authority, agency or body having jurisdiction over the Company or any other Group Company or any of their properties, the Regulators or any stock exchange authorities required for the execution and delivery by the Company of this Agreement to be duly and validly authorised and to give effect to the arrangements referred to in or contemplated by this Agreement have been obtained or made and are in full force and effect.
|
|
5.1.2
|
Each Group Company has carried on and is carrying on its businesses and operations in each jurisdiction in which it operates in accordance with all applicable laws, regulations and by-laws and all statutory and other licences, permissions, consents, permits, approvals and authorisations necessary for the carrying on of the businesses and operations of each such Group Company, as now carried on, have been obtained and are valid and subsisting, except where the failure to do so would not reasonably be expected to result in a Material Adverse Change, and with respect to all such Group Companies all conditions applicable to any such licence, permission, consent, permit, approval or authorisation have been and are complied with and there are no circumstances which indicate that any of them is likely to be revoked, rescinded, varied, limited, subjected to the imposition of conditions or further conditions, avoided or repudiated or not renewed, in whole or in part, in the ordinary course of events or otherwise save where any such outcome would not reasonably be expected to result in a Material Adverse Change.
|
|
5.1.3
|
The Company and, to the knowledge of the Company, the Selling Shareholder and the Reference Shareholders have obtained all necessary declarations of no objection from the College of Regulators.
|
5.2
|
Absence of default and conflicts
|
|
5.2.1
|
None of the Group Companies is in violation of its constitutional documents. None of the Group Companies is in default in the performance or observance of any obligation, agreement, undertaking or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease, licence or other agreement or instrument to which any Group Company is a party or by which it or any of them may be bound, or to which any of the property or assets of any Group Company is subject (collectively, “Agreements and Instruments”) except where such violations or defaults would not result in a Material Adverse Change.
|
|
5.2.2
|
The performance of this
Agreement and the consummation of the transactions contemplated herein and in the Prospectus and in the Disclosure Package
(including the Global Offer and the use of the proceeds from the Global Offer, as described in the Prospectus and in the
Disclosure Package) and compliance by the Company with its obligations hereunder, (A) have been and will on or before Admission be duly authorised by all necessary corporate action, (B) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any Group Company pursuant to, (i) the Company’s constitutional documents, or (ii) except to the extent it would not materially and adversely impact the Global Offer, the Agreements and Instruments and (C) nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or such Group Company or any of their assets, properties or operations.
|
A17927651 |
55 |
|
|
As used herein, a “Repayment Event” means any event or condition that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Group Company. |
6
|
Indebtedness
|
6.1
|
Except as disclosed in the Disclosure Package, the Company has no indebtedness outstanding and no outstanding indebtedness of any Group Company has become repayable before its stated maturity, nor has any security in respect of such indebtedness become enforceable by reason of default by any Group Company, and no event has occurred or is, to the Company’s knowledge, impending which, with the lapse of time or the fulfilment of any condition or the giving of notice or the compliance with any other formality, may be reasonably expected to result in any such indebtedness becoming so repayable or any such security becoming enforceable and no Group Company has received notice from any person to whom any indebtedness of any Group Company being indebtedness which is repayable on demand is owed, demanding or threatening to demand repayment of, or to take any steps to enforce any security for, the same, except where such repayment or enforceability would not result in a Material Adverse Change.
|
6.2
|
All the Company’s or the Group’s borrowing facilities, including the €500 million facilities agreement entered into on 6 May 2014 with BNP Paribas S.A. and ING Bank N.V. as mandated lead arrangers, have been duly executed on behalf of the relevant Group Company and are in full force and effect and, except as otherwise disclosed in the Disclosure Package:
|
|
6.2.1
|
all undrawn amounts under such borrowing facilities are or, to the Company’s knowledge, will be capable of drawdown; and
|
|
6.2.2
|
there is nothing which could cause any undrawn amounts under any such borrowing facilities to be unavailable for drawing as required.
|
6.3
|
Save as disclosed in the Disclosure Package, there are no companies, undertakings, partnerships or joint ventures in existence whose results are not (or will not have been) consolidated with the results of the Group, but whose default would affect the indebtedness or increase the contingent liabilities of the Group to an extent which would give rise to a Material Adverse Change.
|
7
|
Insolvency
|
7.1
|
No order has been made,
petition presented, resolution passed or meeting convened for the winding-up (or other process whereby the business concerned
is terminated and the assets of the company concerned are distributed amongst the creditors and/or shareholders or other
contributories) of the Company or any Significant Subsidiary and save as aforesaid there are no cases or proceedings under
any applicable insolvency, reorganisation or similar laws in any jurisdiction concerning the Company or any Significant Subsidiary and no events have occurred which, under applicable laws, would justify any such cases or proceedings.
|
A17927651 |
56 |
7.2
|
So far as the Company is aware, no petition has been presented or other proceedings have been commenced for an administration order to be made (or any other order to be made by which during the period it is in force, the affairs, business and assets of the company concerned are managed by a person appointed for the purpose by a court, governmental agency or similar body) in relation to the Company or any Significant Subsidiary, nor has any such order been made.
|
7.3
|
No receiver (including an administrative receiver), liquidator, trustee, administrator, custodian or similar official has been appointed in any jurisdiction in respect of the whole or any part of the business or assets of the Company or any Significant Subsidiary and to the Company’s knowledge no step has been taken for or with a view to the appointment of such a person.
|
7.4
|
Neither the Company nor any Significant Subsidiary is insolvent or unable to pay its debts as they fall due.
|
8
|
Contracts
|
8.1
|
Except as disclosed in the Disclosure Package, since the Financial Statements Date, no Group Company has entered into any contract or commitment or incurred any liability (including a contingent liability) which is outside the ordinary course of its business or is of an unusual or onerous nature and which might reasonably be expected to be material with respect to the Group taken as a whole.
|
8.2
|
The Group’s business has not been materially and adversely affected by the termination of, or a change in the terms of, any agreement to which a Group Company is party and which is material in the context of the Group’s business or by the loss of a material customer.
|
8.3
|
No event has occurred or is subsisting or, so far as the Company is aware, is about to occur, which constitutes or results in, or would, with the giving of notice and/or lapse of time, constitute or result in, a default or the acceleration or breach of any obligation which is material in the context of the Global Offer under any agreement, instrument or arrangement to which a Group Company is a party or by which it or any of its properties, assets and reserves are bound.
|
9
|
Tax
|
9.1
|
Taxation provisions and reliefs
|
|
9.1.1
|
Proper provision or reserve has been made in the Financial Statements in accordance with IFRS for all Taxation liable to be assessed on each Group Company or for which it is or may become accountable in respect of:
|
|
(i)
|
profits, gains or income (as computed for Taxation purposes) accruing or arising or deemed to accrue or arise on or before the Financial Statements Date; and
|
|
(ii)
|
any transactions effected or deemed to be effected on or before the Financial Statements Date or provided for in the Financial Statements.
|
|
9.1.2
|
Taxation compliance
|
A17927651 |
57 |
9.2
|
Residence
|
9.3
|
Arm’s length transactions
|
9.4
|
Secondary liabilities
|
9.5
|
Withholding and Stamp Taxes
|
10
|
Litigation
|
10.1
|
Save as disclosed in the Prospectus and in the Disclosure Package, no Group Company has any claims outstanding against it or is engaged in, or has within the last 12 months immediately preceding the date of the Prospectus been engaged in, any litigation or arbitration or similar proceedings or in any governmental, regulatory or similar investigation or enquiry, which individually or collectively may have or, during the last 12 months prior to the date of the Prospectus, has had a material effect on the financial or trading position or prospects of the Group taken as a whole or which would materially affect the Global Offer or the consummation of the transactions contemplated by this Agreement by the Company or any Group Company and as far as the Company is aware there is no such claim, litigation, proceeding, investigation or enquiry pending or threatened.
|
10.2
|
Save as disclosed in the
Disclosure Package, neither the Company nor any Group Company has received notice from any regulator of any current
investigation, enquiry, disciplinary proceedings, prohibition, order, penalty or recent censure and, as far as the Company is
aware, no such investigation, enquiry, disciplinary proceeding, prohibition, order, penalty or censure is threatened except as such arise in the ordinary course of the Company’s business and are not expected to be material in the context of the Global Offer.
|
A17927651 |
58 |
11
|
Insurance
|
11.1
|
The Company and each Significant Subsidiary are covered by insurance in such amounts and covering such risks as are adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries and markets and there are no circumstances currently subsisting which would render any such insurance void or voidable.
|
11.2
|
The Company believes that, immediately following the completion of the Global Offer, it and each Significant Subsidiary will continue to be able to be covered by insurance on substantially the same terms as they are now covered.
|
12
|
Pension Schemes
|
12.1
|
Each pension scheme of the Company and each other Group Company, details of which are set out in the Prospectus (the “Scheme” or collectively, the “Schemes”), has been properly funded at the rate recommended by the actuary to each Scheme based on the most recent actuarial valuations for each Scheme, such valuation and rate of funding being in all material respects in accordance with any applicable legislation;
|
12.2
|
proper provision has been made in the Financial Statements for the costs and liabilities of the Schemes;
|
12.3
|
the assets of the Schemes are held by persons approved by the trustees of the Schemes for this purpose; and
|
12.4
|
neither the Company nor any other Group Company has any material obligation to contribute towards the pension arrangements of its Directors or employees or former Directors or employees other than those referred to in the Disclosure Package.
|
13
|
Absence of employment disputes
|
14
|
Intellectual Property
|
14.1
|
All material Intellectual Property required for the carrying on of the businesses of the Group Companies, as such businesses are carried on at the date of this Agreement, is either:
|
|
14.1.1
|
legally and beneficially owned by a Group Company; or
|
|
14.1.2
|
lawfully used by the relevant Group Company with the consent of the owner under licence.
|
14.2
|
The material Intellectual Property which is owned by a Group Company is:
|
|
14.2.1
|
valid and enforceable;
|
|
14.2.2
|
not being infringed by any person; and
|
A17927651 |
59 |
|
14.2.3
|
not the subject of any attack, challenge or opposition, or threatened attack, challenge or opposition, by any person which, if decided against the relevant Group Company, would result in a Material Adverse Change.
|
14.3
|
The processes employed and the products and services dealt in by each Group Company do not materially use, embody or infringe any rights or interests of third parties in Intellectual Property (other than those licensed to the relevant Group Company) and no claims of infringement of any such rights or interests have been made by any third party to the knowledge of the Company.
|
15
|
Title to Property
|
15.1
|
Each of the Company and each other Group Company has good and marketable title to all real property and all fixed assets owned by it and necessary to conduct the businesses now operated by it, and/or has good and marketable title to or has valid rights to lease or otherwise use all other items of real property and all items of personal property, in each case free and clear of all liens, encumbrances, restrictions, cautions, notices or inhibitions and defects except such as:
|
|
15.1.1
|
are fairly described in Disclosure Package; or
|
|
15.1.2
|
do not individually or in aggregate materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any Group Company; or
|
|
15.1.3
|
would not, individually or in aggregate, result in a Material Adverse Change.
|
15.2
|
Any real property and buildings held under lease by the Company or any other Group Company are held by them under valid, subsisting and enforceable leases with such exceptions as are not individually or in aggregate material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or any other Group Company or would not, individually or in aggregate, result in a Material Adverse Change.
|
16
|
Environmental Laws
|
16.1
|
neither the Company nor any Significant Subsidiary is in violation of any applicable statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”); and
|
16.2
|
there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any Significant Subsidiary.
|
A17927651
|
60 |
17
|
U.S. requirements
|
17.1
|
Foreign issuer and no substantial U.S. market interest
|
17.2
|
No directed selling efforts
|
17.3
|
Rule 144A eligibility
|
17.4
|
PFIC
|
17.5
|
Investment company
|
17.6
|
No Registration
|
18
|
Unlawful Transactions
|
18.1
|
Anti-Corruption Laws
|
A17927651
|
61 |
18.2
|
Notwithstanding the foregoing, neither the Company nor any director, officer or, to the knowledge of the Company, any of its Associated Person acting on behalf of, the Company has: (i) used any corporate funds for any unlawful contribution, gift, entertainment of unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated any applicable anti-bribery regulation of any jurisdiction; or (iv) paid any bribe, rebate, pay-off, influence payment, kick-back or other unlawful payment.
|
18.3
|
Anti-Money Laundering
|
18.4
|
OFAC/Sanctions
|
|
18.4.1
|
None of the Company, nor any member of the Group nor any officer or, to the knowledge of the Company, any of its Associated Person acting for or on behalf of the Company or any member of the Group, is a person, or is owned or controlled by a person that is, described or designated in the most current version of any relevant Sanctions List or currently subject to any Sanctions; further, none of the Company or any of its subsidiaries is currently operating in or from, or organised or resident in, a country or territory that is the subject of country- or territory-wide Sanctions.
|
|
18.4.2
|
Neither the Company nor any member of the Group is in violation of any Sanctions (as such Sanctions were in effect at the relevant time) or, to its knowledge, subject to an investigation relating to any Sanctions.
|
|
18.4.3
|
The Company and its subsidiaries maintain policies and procedures that they believe adequate to ensure compliance with applicable Sanctions.
|
18.5
|
Stabilisation
|
A17927651
|
62 |
19
|
Arrangements with Selling Shareholder
|
19.1
|
Save as disclosed in the Disclosure Package, the Group is capable, and following Admission will be capable, of carrying on its business independently of the Selling Shareholder, and all transactions and relationships between the Group Companies and the Selling Shareholder (and its direct and indirect subsidiaries) are on arm’s length terms on a normal commercial basis as described in the Disclosure Package.
|
19.2
|
The descriptions of arrangements or transactions set out under caption “Establishment as an Independent Company” of Section “History of the Business and Establishment as an Independent Company” and under caption “Certain Relationships and Related Party Transactions” of the Prospectus are accurate descriptions in all material respects and fairly summarise the relevant arrangements and transactions.
|
19.3
|
Save as disclosed in the Disclosure Package, there are no arrangements or transactions between any shareholder of the Company and any other Group Company and no person has an interest in or claim against the Company or any other Group Company that would in either such case be required to be described, but have not been so described, in the Prospectus under the Dutch Civil Code, the Dutch Financial Supervision Act, the Listing Rules, the Prospectus Rules or any other applicable laws and regulations.
|
A17927651
|
63 |
|
1
|
Capacity
|
1.1
|
The Selling Shareholder has the right, power and authority, and has taken all action necessary, to sell the Offer Shares to be sold by the Selling Shareholder and to execute this Agreement and any other documents in relation thereto, to pay the fees, commissions and costs provided in this Agreement and to execute, deliver and exercise its rights, and perform its obligations, under this Agreement and the arrangements contemplated by this Agreement in accordance with its terms.
|
1.2
|
All authorisations, consents and approvals required by the Selling Shareholder in connection with the sale of the Offer Shares to be sold by the Selling Shareholder, the execution of this Agreement and any other documents in relation thereto, the performance by the Selling Shareholder of its obligations under this Agreement and the distribution of the Offer Documents in accordance with the provisions set out in the Offer Documents have been and are in full force and effect.
|
1.3
|
This Agreement, and any other documents in relation thereto, have been duly authorised, executed and delivered by the Selling Shareholder and constitute legal, valid, binding and enforceable obligations of the Selling Shareholder.
|
|
2
|
Title
|
2.1
|
At the time of settlement and delivery of the Offer Shares on the First Closing Date and the Option Closing Date, ICE Europe will be the sole legal and beneficial owner of the Offer Shares to be sold by the Selling Shareholder.
|
2.2
|
Each of the Reference Shareholders have acquired prior to the Pricing Date the number of Ordinary Shares it is required to purchase pursuant to the Share Purchase Agreement.
|
2.3
|
The Offer Shares are freely transferable by the Selling Shareholder to the Managers in the manner contemplated in this Agreement and there is no encumbrance, and there is no agreement, arrangement or obligation to create or give an encumbrance, in relation to any of the Offer Shares to be sold by the Selling Shareholder.
|
2.4
|
Other than this Agreement, there is no agreement, arrangement or obligation requiring the transfer, redemption or repayment of, or the grant to a person of the right (conditional or not) to require the transfer, redemption or repayment of, the Offer Shares to be sold by the Selling Shareholder (including, without limitation, an option or right of pre-emption or conversion).
|
|
3
|
Offer Documents
|
3.1
|
The Selling Shareholder Information contained in any of the Offer Documents is (or, to the extent not yet published, will be when published) true and accurate in all material respects and not misleading
|
3.2
|
The Selling Shareholder is not aware of any non-public fact or circumstance (excluding, for the avoidance of doubt, any fact or circumstance disclosed or to be disclosed in the Offer Documents) that, if made public, would be expected to have a material effect upon the market price of the Ordinary Shares or upon the Company or the Group.
|
A17927651
|
64 |
3.3
|
Offering materials
|
|
4
|
Arrangements with Selling Shareholder
|
|
5
|
Authority
|
5.1
|
No material default
|
|
6
|
Compliance with laws and regulations
|
6.1
|
The Selling Shareholder has complied and will comply with all applicable provisions of the Dutch Civil Code, the Dutch Financial Supervision Act, the Listing Rules, the Prospectus Rules and with all other relevant rules and regulations, with respect to anything done by the Selling Shareholder in relation to the Global Offer and the sale and delivery of the Offer Shares.
|
|
7
|
Consents and authorisations
|
8
|
U.S. requirements
|
8.1
|
No directed selling efforts
|
A17927651
|
65 |
8.2
|
No Registration
|
9
|
Unlawful Transactions
|
9.1
|
Anti-Corruption Laws
|
9.2
|
The Selling Shareholder has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with any Anti-Corruption Laws.
|
9.3
|
Anti-Money Laundering
|
9.4
|
OFAC/Sanctions
|
|
9.4.1
|
None of the Selling Shareholder or any officer or, to the knowledge of the Selling Shareholder, any of its Associated Person acting for or on behalf of the Selling Shareholder is a person, or is owned or controlled by a person that is, described or designated in the most current version of any relevant Sanctions List or currently subject to any Sanctions; further, none of the Selling Shareholder or any of its subsidiaries, joint venture partners or subdivisions of such person or entity is currently operating in or from, or organised or resident in, a country or territory that is the subject of country- or territory-wide Sanctions.
|
|
9.4.2
|
The Selling Shareholder is not in violation of any Sanctions (as such Sanctions were in effect at the relevant time) or, to its knowledge, subject to an investigation relating to any Sanctions.
|
A17927651
|
66 |
9.5
|
Stabilisation
|
A17927651
|
67 |
1
|
A copy of the Prospectus and of the Translated Summaries.
|
2
|
A copy of the formal approval letter of the AFM for the Prospectus.
|
3
|
A copy of the Launch Press Announcement.
|
4
|
A copy of the Pricing Statement.
|
5
|
A copy of the admission of the Ordinary Shares to listing and trading on the Exchanges.
|
6
|
A certified copy of the deed of incorporation of the Company.
|
7
|
A certified copy of the Articles of Association as at the date of this Agreement.
|
8
|
A certified copy of the minutes of the meeting of the Managing Board dated 29 April 2014 resolving to list the Company on Euronext Paris, Euronext Brussels and Euronext Amsterdam.
|
9
|
A certified copy of the minutes of the meeting of the Supervisory Board dated 6 May 2014 approving the resolution to list the Company on Euronext Paris, Euronext Brussels and Euronext Amsterdam.
|
10
|
A certified copy of the minutes of the general meeting of the Company dated 19 May 2014 approving the resolution to list the Company on Euronext Paris, Euronext Brussels and Euronext Amsterdam.
|
11
|
A signed copy of the Share Purchase Agreement and of the Reference Shareholders Agreement.
|
12
|
A signed copy of each of the Cornerstone Commitment Letters.
|
13
|
A certified copy of the signed minutes of the meetings, or written resolutions of, the Board of Directors of ICE and ICE Europe, as the case may be, approving this Agreement and (where appropriate) the other documents referred to in this Agreement, the Offer Documents (including the Prospectus) and (where appropriate) the other documents referred to in this Agreement and authorising the steps to be taken by ICE in connection with the Global Offer including the sale of the Firm Shares.
|
14
|
One original letter in the form of Part B of Schedule 4 signed by an authorised representative of ICE and an authorised representative of ICE Europe and dated the date of this Agreement.
|
15
|
An executed copy of the Stock Lending Agreement.
|
16
|
One original signed comfort letter addressed to the Company and the Managers and dated the date of this Agreement, in form and substance satisfactory to the Managers.
|
A17927651
|
68 |
17
|
One copy of the Accountants’ Reports.
|
18
|
One signed copy of the Working Capital Report.
|
A17927651
|
69 |
|
1
|
One original letter in the form of Part A of Schedule 4 signed by an authorised representative of the Company and dated the First Closing Date.
|
|
2
|
To the extent the Selling Shareholder will hold less than 50 per cent. following the First Closing Date, one certified copy of the declaration as to be submitted to the Dutch Trade Register as referred to in article 30 of the Articles of Association immediately after the First Closing Date.
|
|
3
|
One original letter in the form of Part B of Schedule 4 signed by an authorised representative of ICE and an authorised representative of ICE Europe and dated the First Closing Date.
|
|
4
|
One original signed “bring down” comfort letter addressed to the Company and the Managers and dated the First Closing Date, in form and substance satisfactory to the Joint Global Coordinators (on behalf of the Managers).
|
|
5
|
One original of a signed Rule 10b-5 disclosure letter in the agreed form of each of (i) Shearman & Sterling LLP and (ii) Linklaters LLP dated the date hereof, in form and substance satisfactory to the Joint Global Coordinators (on behalf of the Managers).
|
|
6
|
One original of a signed opinion of each of (i) Shearman & Sterling LLP and (ii) Linklaters LLP as to matters of U.S. law dated the date hereof, in form and substance satisfactory to the Joint Global Coordinators (on behalf of the Managers).
|
|
7
|
One original of a signed opinion of each of (i) Shearman & Sterling LLP and (ii) Linklaters LLP as to matters of English law dated the date hereof, in form and substance satisfactory to the Joint Global Coordinators (on behalf of the Managers).
|
|
8
|
One original of a signed opinion of each of (i) Stibbe and (ii) Linklaters LLP as to matters of the laws of the Netherlands dated the date hereof, in form and substance satisfactory to the Joint Global Coordinators (on behalf of the Managers).
|
|
9
|
Confirmation of the Listing Agent that the Offer Shares have been accepted for book entry transfers by Euroclear and will be admitted to trading and listing on the Exchanges (which may be by way of email).
|
A17927651
|
70 |
To:
|
ABN AMRO Bank N.V.
Gustav Mahlerlaan 10
1082 PP Amsterdam
The Netherlands
|
BMO Capital Markets Limited
95 Queen Victoria Street
London EC4V 4HG
United Kingdom
|
|
J.P. Morgan Securities plc
25 Bank Street
Canary Wharf
London E14 5JP
United Kingdom
|
Banco Português de Investimento, S.A.
Rua Tenente Valadim 284
4100-476 Porto
Portugal
|
||
Société Générale
29 boulevard Haussmann
75009 Paris
France
|
CM-CIC Securities
6, Avenue de Provence
75441 Paris, Cedex 09
France
|
||
Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB
United Kingdom
|
Execution Noble & Co Limited
5 Melville Crescent,
Edinburgh EH3 7JA
United Kingdom
|
||
ING Bank N.V.
Amsterdamse Poort
Bijlmerplein 888
1102 MG Amsterdam
The Netherlands
|
KBC Securities NV
Havenlaan 12
1080 Brussels
Belgium
|
||
Morgan Stanley & Co.
International plc 25 Cabot Street
Canary Wharf
London E14 4QA
United Kingdom
|
Mitsubishi UFJ Securities International plc
Ropemaker Place
25 Ropemaker Street
London EC2Y 9AJ
United Kingdom
|
||
Banco Bilbao Vizcaya
Argentaria, S.A. Plaza de San Nicolás, 4
48005 Bilbao (Vizcaya)
Spain
|
A17927651
|
71 |
(i)
|
we have complied with our undertakings and obligations under the Underwriting Agreement in all respects to the extent that they fall due for performance on or before the date of this letter;
|
(ii)
|
none of the representations or warranties referred to in Clause 11 of the Underwriting Agreement were untrue, inaccurate or misleading when made and none of such representations or warranties would be breached or be untrue, inaccurate or misleading were it to be repeated by reference to the facts and circumstances subsisting at the date hereof; and
|
(iii)
|
since the date of the Underwriting Agreement, there has been no material adverse effect or change in or affecting the prospects of the Group taken as a whole, or any material adverse change in or affecting or any development reasonably likely to give rise to or involve a material adverse change in the condition (financial, operational, legal or otherwise) earnings, management, business affairs, solvency or credit rating of the Company and the Group taken as a whole, whether or not arising in the ordinary course of business.
|
for and on behalf of Euronext N.V.
|
Name:
|
Title:
|
A17927651
|
72 |
To:
|
|||
ABN AMRO Bank N.V.
Gustav Mahlerlaan 10
1082 PP Amsterdam
The Netherlands
|
BMO Capital Markets Limited
95 Queen Victoria Street
London EC4V 4HG
United Kingdom
|
||
J.P. Morgan Securities plc
25 Bank Street
Canary Wharf
London E14 5JP
United Kingdom
|
Banco Português de Investimento, S.A.
Rua Tenente Valadim 284
4100-476 Porto
Portugal
|
||
Société Générale
29 boulevard Haussmann
75009 Paris
France
|
CM-CIC Securities
6, Avenue de Provence
75441 Paris, Cedex 09
France
|
||
Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB
United Kingdom
|
Execution Noble & Co Limited
5 Melville Crescent,
Edinburgh EH3 7JA
United Kingdom
|
||
ING Bank N.V.
Amsterdamse Poort
Bijlmerplein 888
1102 MG Amsterdam
The Netherlands
|
KBC Securities NV
Havenlaan 12
1080 Brussels
Belgium
|
||
Morgan Stanley & Co.
International plc 25 Cabot Street
Canary Wharf
London E14 4QA
United Kingdom
|
Mitsubishi UFJ Securities International plc
Ropemaker Place
25 Ropemaker Street
London EC2Y 9AJ
United Kingdom
|
||
Banco Bilbao Vizcaya
Argentaria, S.A. Plaza de San Nicolás, 4
48005 Bilbao (Vizcaya)
Spain
|
A17927651
|
73 |
(i)
|
we have complied with our undertakings and obligations under the Underwriting Agreement in all respects to the extent that they fall due for performance on or before the date of this letter; and
|
(ii)
|
none of the representations or warranties referred to in Clause 11 of the Underwriting Agreement given by us were untrue, inaccurate or misleading when made and none of such representations or warranties would be breached or be untrue, inaccurate or misleading were it to be repeated by reference to the facts and circumstances subsisting at the date hereof.
|
for and on behalf of Intercontinental Exchange, Inc.
|
for and on behalf of ICE Europe Parent Ltd.
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
A17927651
|
74 |
1
|
United States
|
1.1
|
it understands that the Ordinary Shares have not been and will not be registered under the Securities Act and may not be offered or sold within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act;
|
1.2
|
it has not offered or sold, and will not offer or sell, any Offer Shares constituting part of its allotment except in accordance with Rule 903 of Regulation S or Rule 144A;
|
1.3
|
neither it, nor any of its Affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Ordinary Shares.
|
1.4
|
each of the Managers understands that it may, through its US broker-dealer Affiliates, arrange for the offer and resale of Offer Shares in the United States only to QIBs in accordance with Rule 144A or another exemption from, or transaction not subject to, the registration requirements of the Securities Act.
|
2
|
United Kingdom
|
2.1
|
it has complied and will comply with all applicable provisions of Financial Services and Markets Act 2000 with respect to anything done by it in relation to the Ordinary Shares in, from or otherwise involving the United Kingdom; and
|
2.2
|
it has only communicated or caused to be communicated and will only communicate or cause to be communicated in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of Section 21 of Financial Services and Markets Act 2000) received by it in connection with the issue or sale of the Offer Shares in circumstances in which Section 21(1) of Financial Services and Markets Act 2000 does not apply to the Company.
|
3
|
European Economic Area
|
3.1
|
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (2003/71/EC) (each, a “Relevant Member State”), each of the Managers severally, and not jointly or jointly and severally, represents and warrants that it has not made and will not make an offer to the public of any Offer Shares in that Relevant Member State prior to the publication of the Prospectus in relation to the Offer Shares which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in the Relevant Member State, all in accordance with the Prospectus Directive, other than the offers contemplated in the Prospectus in a Relevant Member State after the date of such publication or notification, and except that it may make an offer of any Offer Shares to the public in that Relevant Member State at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
|
A17927651 |
75 |
|
(a)
|
to any legal entity which is a qualified investor as defined under the Prospectus Directive;
|
|
(b)
|
by the Managers to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Joint Global Coordinators for any such offer; or
|
|
(c)
|
in any other circumstances falling within Article 3(2) of the Prospectus Directive,
|
A17927651 |
76 |
ABN AMRO Bank N.V.
|
J.P. Morgan Securities plc
|
Société Générale
|
||
By:
|
By:
|
By:
|
||
Title:
|
Title:
|
Title:
|
A17927651 |
77 |
In respect of ABN AMRO:
|
|
Publicity name
|
ABN AMRO
|
Legal name
|
ABN AMRO Bank N.V.
|
Address
|
Gustav Mahlerlaan 10
1082PP Amsterdam
The Netherlands
|
In respect of J.P. Morgan:
|
|
Publicity name
|
J.P. Morgan
|
Legal name
|
J.P. Morgan Securities plc
|
Address
|
25 Bank Street
Canary Wharf
London E14 5JP
United Kingdom
|
In respect of Société Générale:
|
|
Publicity name
|
Société Générale Corporate & Investment Banking
|
Legal name
|
Société Générale
|
Address
|
29, Boulevard Haussmann
75009 Paris
France
|
In respect of Goldman Sachs International:
|
|
Publicity name
|
Goldman Sachs International
|
Legal name
|
Goldman Sachs International
|
Address
|
Peterborough Court
133 Fleet Street
London EC4A 2BB
United Kingdom
|
In respect of ING:
|
|
Publicity name
|
ING
|
Legal name
|
ING Bank N.V.
|
Address
|
Bijlmerplein 888
1102 MG Amsterdam
The Netherlands
|
In respect of Morgan Stanley:
|
|
Publicity name
|
Morgan Stanley
|
Legal name
|
Morgan Stanley & Co. International plc
|
A17927651 |
78 |
Address
|
25 Cabot Street
Canary Wharf
London E14 4QA
United Kingdom
|
In respect of BBVA:
|
|
Publicity name
|
BBVA
|
Legal name
|
Banco Bilbao Vizcaya Argentaria, S.A.
|
Address
|
Plaza de San Nicolás, 4
48005 Bilbao (Vizcaya)
Spain
|
In respect of BMO:
|
|
Publicity name
|
BMO Capital Markets
|
Legal name
|
BMO Capital Markets Limited
|
Address
|
95 Queen Victoria Street
London EC4V 4HG
United Kingdom
|
In respect of BPI:
|
|
Publicity name
|
BPI
|
Legal name
|
Banco Português de Investimento, S.A.
|
Address
|
Rua Tenente Valadim, n°284
4100-476 Porto
Portugal
|
In respect of CM-CIC Securities:
|
|
Publicity name
|
CM-CIC Securities, a member of ESN
|
Legal name
|
CM-CIC Securities
|
Address
|
6, avenue de Provence
75009 Paris
France
|
In respect of Espirito Santo Investment Bank:
|
|
Publicity name
|
Espírito Santo Investment Bank
|
Legal name
|
Execution Noble & Co Limited
|
Address
|
10 Paternoster Square
London, EC4M 7AL
United Kingdom
|
In respect of KBCS:
|
|
Publicity name
|
KBC Securities
|
Legal name
|
KBC Securities NV
|
Address
|
Havenlaan 12 Avenue du Port
B-1080 Brussels Belgium |
A17927651 |
79 |
In respect of Mitsubishi UFJ Securities:
|
|
Publicity name
|
Mitsubishi UFJ Securities
|
Legal name
|
Mitsubishi UFJ Securities International plc
|
Address
|
Ropemaker Place
25 Ropemaker Street
London EC2Y 9AJ
United Kingdom
|
A17927651 |
80 |
A17927651 |
81 |
A17927651 |
82 |
A17927651 |
83 |
A17927651 |
84 |
A17927651 |
85 |
A17927651 |
86 |
Exhibit 99.1
INTERCONTINENTAL EXCHANGE ANNOUNCES CLOSING OF EURONEXT INITIAL PUBLIC OFFERING
ATLANTA--(BUSINESS WIRE) - June 24, 2014 - Intercontinental Exchange (NYSE:ICE), the leading global network of exchanges and clearing houses, announced the closing of the initial public offering (IPO) of the ordinary shares of Euronext N.V., the pan-European exchange group. Euronext’s ordinary shares are listed under the symbol “ENX” on Euronext Paris, Euronext Amsterdam and Euronext Brussels and commenced trading on June 20, 2014.
ICE, through a wholly-owned subsidiary, sold 42,248,881 ordinary shares of Euronext in the IPO at €20 per share, 23,352,000 ordinary shares of Euronext to a group of European institutional investors that will replace ICE as reference shareholders at €19.20 per share and 188,296 ordinary shares of Euronext to eligible Euronext employees at €16 per share. ICE has granted the underwriters an over-allotment option of up to 4,210,823 ordinary shares of Euronext, which can be exercised for 30 days after the first trade date. Therefore, ICE may continue to hold up to 4,210,823 of the 70,000,000 total issued and outstanding ordinary shares of Euronext if the over-allotment option is not exercised in full. Any shares that are continued to be held by ICE will be subject to a 180-day lockup period. If the over-allotment is exercised in full, the IPO and reference shareholder transaction will represent 100% of the total issued ordinary share capital of Euronext.
Upon the settlement of the IPO transaction, ICE will receive approximately €1.4 billion in cash proceeds, including net cash from Euronext as part of the separation of the business, and excluding the over-allotment option of 4.2 million shares, and net of the share price discounts offered to employees and the reference shareholder group, as well as ICE’s estimated transaction fees.
Jeffrey C. Sprecher, Chairman and CEO of Intercontinental Exchange said, “Our goal from the inception of the acquisition of NYSE Euronext was to establish Euronext as an independent exchange via a public listing. The proceeds will enable us to repay debt, invest for growth and return capital to shareholders. We are pleased to have executed on our plan and are now focused on our strategic initiatives, which include further integrating ICE and Liffe, expanding our clearing capabilities and delivering on our synergy targets.”
For the second quarter of 2014, ICE expects to include Euronext results in discontinued operations and expects to report operating earnings per share (EPS) excluding discontinued operations. ICE also expects to provide GAAP EPS including discontinued operations.
About Intercontinental Exchange
Intercontinental Exchange, Inc. (NYSE: ICE) is the leading network of regulated exchanges and clearing houses for financial and commodity markets. ICE delivers transparent, reliable and accessible data, technology and risk management services to markets around the world through its portfolio of exchanges, including the New York Stock Exchange, ICE Futures and LIFFE.
Trademarks of ICE and/or its affiliates include IntercontinentalExchange, ICE, ICE block design, NYSE Euronext, NYSE, New York Stock Exchange and LIFFE. Information regarding additional trademarks and intellectual property rights of Intercontinental Exchange, Inc. and/or its affiliates is located at https://www.theice.com/terms.jhtml and http://www.nyx.com/terms-use.
Disclaimer
This document is an announcement and not a prospectus for the purposes of applicable measures implementing Directive 2003/71/EC (and amendments thereto, including European Directive 2010/73/EU, to the extent implemented in the relevant Member State (the “Prospectus Directive”)), and as such does not constitute an offer to sell or the solicitation of an offer to purchase securities. A prospectus prepared pursuant to the Prospectus Directive was approved by the AFM on 6 June 2014 and is available on the AFM’s website (www.afm.nl) and on the Company’s website (www.euronext.com/ipo). Any offer of securities to the public that may be deemed to be made pursuant to this communication in any Member State (other than Belgium, France, the Netherlands and Portugal) that has implemented the Prospectus Directive (together with any applicable implementing measures in any Member State) is addressed solely to qualified investors (within the meaning of Article 2(1)(e) of the Prospectus Directive) in that Member State.
This announcement does not constitute or form part of any offer or invitation to sell or issue, or any solicitation of any offer to purchase or subscribe for any shares or any other securities, nor shall it (or any part of it) or the fact of its distribution form the basis of, or be relied on in connection with, any contract therefor. The IPO and the distribution of this announcement and other information in connection with the IPO in certain jurisdictions may be restricted by law and persons into whose possession this announcement or any document or other information referred to herein comes should inform themselves about, and observe, any such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
This communication is directed only at (i) persons who are outside the United Kingdom or (ii) persons who have professional experience in matters relating to investments falling within Article 19(1) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) and (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2) of the Order (all such persons together being referred to as “relevant persons”). Any investment activity to which this communication relates will only be available to and will only be engaged in with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
Neither this announcement, nor any copy of it may be taken, transmitted or distributed, directly or indirectly, into Canada, Australia or Japan or to any persons in any of those jurisdictions or any other jurisdictions where to do so would constitute a violation of the relevant laws of such jurisdiction. The securities referred to herein have not been and will not be qualified under the applicable securities laws of Canada or Japan and, subject to certain exceptions, may not be offered or sold within Canada, Australia or Japan or to any national, resident or citizen of Canada, Australia or Japan.
This announcement does not constitute an offer for sale of, or a solicitation of an offer to purchase or subscribe for, any securities in the United States. No securities of the Company have been, or will be, registered under the Securities Act, and the securities referred to herein may not be offered or sold in the United States absent an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. There will be no public offering of the securities in the United States.
This announcement does not constitute a recommendation concerning the IPO or the ordinary shares of the Company. The price and value of securities can go down as well as up. Past performance is not a guide to future performance. Information in this announcement or any of the documents relating to the IPO cannot be relied upon as a guide to future performance. Potential investors should consult a professional advisor as to the suitability of the IPO for the person concerned.
Forward-Looking Statements
This announcement may include forward-looking statements, which are based on the Company’s current expectations and projections about future events and speak only as of the date hereof. By their nature, forward-looking statements involve known and unknown risks, uncertainties, assumptions and other factors because they relate to events and depend on circumstances that will occur in the future whether or not outside the control of the Company. Such factors may cause actual results, performance or developments to differ materially from those expressed or implied by such forward-looking statements. Accordingly, no undue reliance should be placed on any forward-looking statements. The Company operates in a rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible to predict all risks and uncertainties, nor to assess the impact that these factors will have on the Company. Important factors that could cause actual results to differ materially from those indicated by such forward looking statements include, without limitation, the following: (i) risks related to the establishment of the Company as an independent and publicly-traded company; (ii) the Company’s dependence on trading volumes; (iii) the impact of current and future legislation and regulatory changes; (iv) the Company’s competitive environment; (v) global economic conditions and economic conditions in Europe in particular; (vi) the concentration of the Company’s business in Europe; (vii) the Company’s ability to keep up with rapid technological change; (viii) the Company’s dependence on third parties to provide certain products and services; (ix) the risk of insufficient systems capacity and system failures and the vulnerability of the Company’s networks to security risks; (x) failure to protect the Company’s intellectual property rights or infringements of those of third parties; (xi) the impact of litigation; and (xii) strategic transactions that the Company undertakes may fail to deliver anticipated benefits. Forward-looking statements speak only as at the date at which they are made and the Company undertakes no obligation to update these forward-looking statements. The proposed IPO of the Company is subject to market conditions and there can be no assurance that the proposed IPO of the Company will be completed. The Company’s expectations in relation to dividends and distributable reserves are subject to numerous risks and uncertainties, which may be beyond its control.
Each of Intercontinental Exchange, Inc. and Euronext N.V. expressly disclaims any obligation or undertaking to update, review or revise any forward-looking statements contained in this announcement to reflect any change in its expectations or any change in events, conditions or circumstances on which such statements are based unless required to do so by applicable law.
ICE Media Contacts:
Claire Miller
44 20 7065 7745
claire.miller@theice.com
Brookly McLaughlin
1 312 836 6728
brookly.mclaughlin@theice.com
ICE Investor Contact:
Kelly Loeffler, SVP, Corp. Comm, Marketing and Investor Relations
1 770 857 4726
kelly.loeffler@theice.com