NECESSARY ACTION, IF ANY, IN ORDER TO RENDER
INAPPLICABLE ANY CONTROL SHARE ACQUISITION, BUSINESS COMBINATION, POISON PILL
(INCLUDING ANY DISTRIBUTION UNDER A RIGHTS AGREEMENT) OR OTHER SIMILAR
ANTI-TAKEOVER PROVISION UNDER THE COMPANY'S ARTICLES OF ASSOCIATION (OR SIMILAR
CHARTER DOCUMENTS) OR THE LAWS OF ITS JURISDICTION OF INCORPORATION THAT IS OR
COULD BECOME APPLICABLE TO THE PURCHASERS AS A RESULT OF THE PURCHASERS AND THE
COMPANY FULFILLING THEIR OBLIGATIONS OR EXERCISING THEIR RIGHTS UNDER
14
THE TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION AS A RESULT OF THE
COMPANY'S ISSUANCE OF THE SECURITIES AND THE PURCHASERS' OWNERSHIP OF THE
SECURITIES.
(Y)
SENIORITY.
EXCEPT FOR LIENS SECURING INDEBTEDNESS DISCLOSED IN
THE SEC REPORTS AND WITHOUT CONSIDERATION OF EQUITABLE SUBORDINATION PRINCIPLES,
AS OF THE CLOSING DATE, NO INDEBTEDNESS OF THE COMPANY IS SENIOR TO THE
DEBENTURES IN RIGHT OF PAYMENT, WHETHER WITH RESPECT TO INTEREST OR UPON
LIQUIDATION OR DISSOLUTION, OR OTHERWISE, OTHER THAN INDEBTEDNESS SECURED BY
PURCHASE MONEY SECURITY INTERESTS (WHICH IS SENIOR ONLY AS TO UNDERLYING ASSETS
COVERED THEREBY) AND CAPITAL LEASE OBLIGATIONS (WHICH IS SENIOR ONLY AS TO THE
PROPERTY COVERED THEREBY).
(Z)
DISCLOSURE.
THE COMPANY CONFIRMS THAT NEITHER IT NOR ANY OTHER
PERSON ACTING ON ITS BEHALF HAS PROVIDED ANY OF THE PURCHASERS OR THEIR AGENTS
OR COUNSEL WITH ANY INFORMATION THAT CONSTITUTES OR MIGHT CONSTITUTE MATERIAL,
NONPUBLIC INFORMATION, UNLESS PRIOR THERETO SUCH PURCHASER SHALL HAVE EXECUTED A
WRITTEN AGREEMENT REGARDING THE CONFIDENTIALITY AND USE OF SUCH INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE PURCHASERS WILL RELY ON THE
FOREGOING REPRESENTATIONS IN EFFECTING TRANSACTIONS IN SECURITIES OF THE
COMPANY. ALL DISCLOSURE PROVIDED TO THE PURCHASERS REGARDING THE COMPANY, ITS
BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE SCHEDULES TO
THIS AGREEMENT, FURNISHED BY OR ON BEHALF OF THE COMPANY WITH RESPECT TO THE
REPRESENTATIONS AND WARRANTIES MADE HEREIN ARE TRUE AND CORRECT WITH RESPECT TO
SUCH REPRESENTATIONS AND WARRANTIES AND DO NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING. THE COMPANY ACKNOWLEDGES AND AGREES THAT NO PURCHASER
MAKES OR HAS MADE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY OTHER THAN THOSE SPECIFICALLY SET FORTH IN
SECTION 3.2 HEREOF.
(AA)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE TO REGISTER THE
RESALE OF THE UNDERLYING SHARES FOR RESALE BY THE PURCHASER ON FORM S-3
PROMULGATED UNDER THE SECURITIES ACT.
(BB)
TAX STATUS.
THE COMPANY AND EACH OF ITS SUBSIDIARIES HAS MADE OR
FILED ALL DUTCH, U.S. FEDERAL, STATE AND FOREIGN INCOME AND ALL OTHER TAX
RETURNS, REPORTS AND DECLARATIONS REQUIRED BY ANY JURISDICTION TO WHICH IT IS
SUBJECT (UNLESS AND ONLY TO THE EXTENT THAT THE COMPANY AND EACH OF ITS
SUBSIDIARIES HAS SET ASIDE ON ITS BOOKS PROVISIONS REASONABLY ADEQUATE FOR THE
PAYMENT OF ALL UNPAID AND UNREPORTED TAXES) AND HAS PAID ALL TAXES AND OTHER
GOVERNMENTAL ASSESSMENTS AND CHARGES THAT ARE MATERIAL IN AMOUNT, SHOWN OR