As filed with the Securities and Exchange Commission on June 2, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE
SECURITIES ACT OF 1933
InterXion Holding N.V.
(Exact name of registrant as specified in its charter)
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The Netherlands
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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Tupolevaan 24
1119 NX Schiphol-Rijk
The
Netherlands
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Not Applicable
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(Address of Principal Executive Offices)
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(Zip Code)
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InterXion Holding N.V. 2013 Amended International Equity Based Incentive Plan
(Full title of the plan)
CT
Corporation System
111 Eighth Avenue
New York, New York 10011
United States
(Name and
address of agent for service)
(212) 894-8940
(Telephone number, including area code, of agent for service)
Copy to:
Tracy K.
Edmonson
Latham & Watkins LLP
99 Bishopsgate
London
EC2M 3XF
United Kingdom
+44.20.7710.5810
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act:
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Ordinary Shares, €0.10 nominal value per share
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3,164,496
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$26.10(2)
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$82,593,346(2)
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$10,638(3)
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(1)
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This Registration Statement covers 3,164,496 ordinary shares of InterXion Holding N.V., €0.10 nominal value per share (the “Ordinary Shares”) in regards to which options, restricted shares, or performance
shares may be awarded pursuant to the InterXion Holding N.V. 2013 Amended International Equity Based Incentive Plan (the “2013 Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
there shall also be deemed registered hereby such additional number of ordinary shares of the Registrant as may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
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(2)
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Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, based upon the average of the high and low sales prices for the
Ordinary Shares as quoted on the New York Stock Exchange on May 27, 2014, of $26.10 per share.
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(3)
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The Company previously registered 3,164,496 Ordinary Shares authorized for issuance or award under the InterXion Holding N.V. 2011 International Stock Option and Incentive Master Award Plan (the “Prior Plan”),
all of which, as of June 2, 2014, were unissued and not subject to outstanding awards (the “Carried Forward Shares”). The Company previously paid the required registration fee for the Carried Forward Shares (see Registration Statement
on Form S-8 filed on June 23, 2011 (File No. 333-175099) (the “Prior Registration Statement”) for which the Company paid a total registration fee of $9,986, of which $5,086 related to the Carried Forward Shares). In accordance
with Rule 457(p) of the Securities Act, the Company may offset $5,086, which is the aggregate total dollar amount of the filing fee associated with the Carried Forward Shares, against the total filing fee due for this Registration Statement. The
Company is concurrently filing a Post-Effective Amendment to the Prior Registration Statement to deregister the Carried Forward Shares which were not issued under the Prior Plan.
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EXPLANATORY NOTE
InterXion Holding N.V. (the “Registrant”) has prepared this Registration Statement in accordance with the requirements of
Form S-8 under the Securities Act to register Ordinary Shares issuable pursuant to the InterXion Holding N.V. 2013 Amended International Equity Based Incentive Plan (the “2013 Plan”). This Registration Statement is being filed in
order to register Ordinary Shares which may be offered or sold to participants under the 2013 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The Registrant will send or give the documents containing the information specified in Part I of Form S-8 to 2013 Plan participants
as specified by the Securities and Exchange Commission Rule 428(b)(1) under the Securities Act. The Registrant does not need to file these documents with the Securities and Exchange Commission (the “Commission”) either as a
part of the Registration Statement or as prospectuses or prospectus supplements under Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents, filed with the
Commission by the Registrant, are incorporated by reference into this Registration Statement:
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(1)
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The Registrant’s annual report on Form 20-F for the fiscal year ended December 31, 2013 filed on April 8, 2014;
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(2)
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The Registrant’s current reports on Form 6-K filed on March 26, 2014, April 21, 2014, April 24, 2014 and May 7, 2014 (accepted 8:27 a.m.); and
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(3)
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The description of the Registrant’s Ordinary Shares contained in its Registration Statement on Form 8–A filed with the Commission on January 25, 2011 pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), which incorporates by reference the description of the Registrant’s Ordinary Shares set forth under “Description of Capital Stock” in the Registrant’s Registration
Statement on Form F–1 (File No. 333–171662), as amended, which was originally filed with the Commission on January 12, 2011.
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In addition, all documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold, including
any Form 6-K which the Registrant files with the Commission wherein such Form 6-K is expressly incorporated by reference into this Registration Statement, shall be deemed to be incorporated herein by reference and to be a part hereof from the date
of the filing of such documents with the Commission.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
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Item 4.
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Description of Securities
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Not required to be filed with this Registration Statement.
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Item 5.
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Interests of Named Experts and Counsel
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Not Applicable.
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Item 6.
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Indemnification of Directors and Officers
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Under Dutch law, indemnification provisions
may be included in the articles of association. Accordingly, the Registrant’s articles of association, as amended on January 20, 2012, provide that the Registrant shall indemnify the members of the board of directors and the former members
of the board of directors for damages, fines and various costs and expenses related to claims brought against them in connection with the exercise of their duties. However, there shall be no entitlement to reimbursement if and to the extent that
(i) the laws of the Netherlands would not permit such indemnification; (ii) a Dutch court has established in a final and conclusive decision that the act or failure to act of the person concerned may be characterized as willful
(opzettelijk), intentionally reckless (bewust roekeloos) or seriously culpable (ernstig verwijtbaar), unless Dutch law provides otherwise or this would, in view of the circumstances of the case, be unacceptable according to standards of
reasonableness and fairness, or (iii) the costs, damages or fines payable by the person concerned are covered by any liability insurance and the insurer has paid out the costs or financial loss. The Registrant may take out liability insurance
for the benefit of the directors, and may enter into indemnification agreements with the members of the board of directors to provide for further details on these matters.
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Item 7.
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Exemption from Registration Claimed
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Not Applicable.
The following are the exhibits required by Item 601 of Regulation S-K:
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Exhibit
Number
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Description
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4.1
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InterXion Holding N.V. 2013 Amended International Equity Based Incentive Plan (filed as Exhibit 99.1 to the Registrant’s Current Report on Form 6-K dated March 26, 2014 and incorporated herein by reference).
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5
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Opinion of Loyens & Loeff.
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23.1
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Consent of KPMG Accountants N.V.
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23.2
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Consent of Loyens & Loeff (included in Exhibit 5).
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24
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Power of Attorney (included on signature page).
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(a) The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
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was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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provided
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however
, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Amsterdam, The Netherlands, on June 2, 2014.
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INTERXION HOLDING N.V.
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By
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/s/ David C. Ruberg
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Name:
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David C. Ruberg
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Title:
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Chief Executive Officer
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We, the undersigned officers and directors of InterXion Holding N.V., hereby severally constitute and
appoint David C. Ruberg, our true and lawful attorney, with full power to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said
registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable InterXion Holding N.V. to comply with the provisions of the Securities Act, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and
on the dates indicated.
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Signature
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Title
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Date
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/s/ David C. Ruberg
David C. Ruberg
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Chief Executive Officer and Executive Director (Principal Executive Officer)
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June 2, 2014
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/s/ Josh Joshi
M.V. “Josh” Joshi
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Chief Financial Officer (Principal Financial and Accounting Officer)
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June 2, 2014
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/s/ John C. Baker
John C. Baker
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Chairman and Non-Executive Director
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June 2, 2014
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/s/ Robert M. Manning
Robert M. Manning
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Non-Executive Director
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June 2, 2014
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/s/ David Lister
David Lister
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Non-Executive Director
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June 2, 2014
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/s/ Cees van Luijk
Cees van Luijk
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Non-Executive Director
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June 2, 2014
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/s/ Michel Massart
Michel Massart
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Non-Executive Director
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June 2, 2014
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/s/ Jean F.H.P. Mandeville
Jean F.H.P. Mandeville
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Non-Executive Director
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June 2, 2014
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/s/ Donald J. Puglisi
Donald J. Puglisi
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Authorized Representative in the United States
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June 2, 2014
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EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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InterXion Holding N.V. 2013 Amended International Equity Based Incentive Plan (filed as Exhibit 99.1 to the Registrant’s Current Report on Form 6-K dated March 26, 2014 and incorporated herein by reference).
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5
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Opinion of Loyens & Loeff.
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23.1
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Consent of KPMG Accountants N.V.
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23.2
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Consent of Loyens & Loeff (included in Exhibit 5).
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24
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Power of Attorney (included on signature page).
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Exhibit 5
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POSTAL ADDRESS
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P.O. Box 71170
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1008 BD AMSTERDAM
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The Netherlands
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OFFICE ADDRESS
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Fred. Roeskestraat 100
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1076 ED AMSTERDAM
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The Netherlands
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TELEPHONE
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+31(0)20 578 57 58
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FAX
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+31(0)20 578 58 00
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INTERNET
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www .loyensloeff .com
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To:
InterXion Holding N.V.
Tupolevaan 24
1119 NX Schiphol-Rijk
The Netherlands
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RE
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Dutch law legal opinion – SEC Registration Statement InterXion Holding N.V.
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REFERENCE
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Unknown
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Amsterdam, 2 June 2014
Dear Sir, Madam,
We have acted as your special counsel on certain matters of Dutch law. We
render this opinion in connection with the filing of a registration statement on Form S-8 under the Securities Act of 1933, as amended on 5 April 2012 (the
Securities Act
), relating to the Shares (as defined below).
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2.1
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Capitalised terms used but not (otherwise) defined herein are used as defined in the Schedules to this opinion letter.
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2.2
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In this opinion letter:
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Award Agreements
has the meaning defined in the 2013 Plan;
Board
means the board of managing directors of the Company;
Company
means InterXion Holding N.V., registered with the Trade Register under number 33301892.
Opinion Documents
means the documents listed in
Schedule 1 (Opinion Documents).
Relevant Date
means the date of the Resolutions, the date of the Opinion Documents and the date of this opinion letter.
Resolutions
means the Board Minutes and the Board Resolution.
The public limited company Loyens & Loeff N.V. is established in Rotterdam and is registered with the Trade Register of the Chamber of Commerce and
Industry under number 24370566. Solely Loyens & Loeff N.V. shall operate as contracting agent. All its services shall be governed by its General Terms and Conditions, including, inter alia, a limitation of liability and a nomination of
competent jurisdiction. These General Terms and Conditions have been printed on the reverse side of this page and may also be consulted via www.loyensloeff.com. The conditions were deposited with the Registry of the Rotterdam District Court on 1
July 2009 under number 43/2009.
AMSTERDAM • ARNHEM • BRUSSELS
• EINDHOVEN • LUXEMBOURG • ROTTERDAM • ARUBA
CURACAO • DUBAI
• GENEVA • HONG KONG • LONDON • NEW
YORK • PARIS • SINGAPORE • TOKYO • ZURICH
1/8
SEC
means the Securities
Exchange Commission.
Shares
means the 3,164,496 ordinary shares in the capital of the Company that have been designated for
issuance by the Company pursuant to the 2013 Plan in accordance with its terms as referred to in the Registration Statement.
Trade Register
means the trade register of the Chambers of Commerce in the Netherlands.
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3.1
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For the purpose of rendering this opinion letter, we have only examined and relied upon electronically transmitted copies of the executed Opinion Documents and electronically transmitted copies of the following
documents:
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(a)
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an excerpt of the registration of the Company in the Trade Register dated 13 February 2014 (the
Excerpt
);
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(b)
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the deed of incorporation of the Company dated 6 April 1998;
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(c)
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the deed of amendment and conversion of the articles of association (
statuten
) of the Company dated 11 January 2000;
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(d)
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the articles of association (
statuten
) of the Company dated 20 January 2012 (the
Articles
);
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(e)
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the management board by-laws (
directiereglement
) of the Company dated 25 March 2011 (the
By-Laws
);
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(f)
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the minutes of meeting of the compensation committee of the Company dated 24 May 2013;
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(g)
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the minutes of meeting of the Board dated 30 October 2013 (the
Board Minutes
);
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(h)
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the resolution of the compensation committee of the Company dated 15 March 2014; and
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(i)
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the resolution of the Board adopted by email on various dates as of 13 March 2014 up to and including 17 March 2014 (the
Board Resolution
).
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3.2
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We have undertaken only the following searches and inquiries (the
Checks
) at the date of this opinion letter:
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(a)
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an inquiry by telephone at the Trade Register, confirming that no changes were registered after the date of the Excerpt;
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(b)
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an inquiry by telephone at the bankruptcy clerk’s office (
faillissementsgriffie
) of the court in Amsterdam, the Netherlands, confirming that the Company is not listed in the insolvency register;
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2/8
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(c)
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an online inquiry on the relevant website (www.rechtspraak.nl) of the EU Registrations with the Central Insolvency Register (
Centraal Insolventie Register
) confirming that the Company is not listed on the EU
Registrations with the Central Insolvency Register; and
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(d)
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an online inquiry on the relevant website (http://eur-lex.europa.eu/) of the Annex to Council regulation (EC) No 2580/2001, Annex I of Council regulation (EC) No 881/2002 and the Annex to Council Common Position
2001/931 relating to measures to combat terrorism, all as amended from time to time, confirming that the Company is not listed on such annexes.
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3.3
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We have not reviewed any documents incorporated by reference or referred to in the Opinion Documents (unless included as an Opinion Document) and therefore our opinions do not extend to such documents.
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4.1
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We only express an opinion on matters of Dutch law and the law of the European Union, to the extent directly applicable in the Netherlands, in force on the date of this opinion letter, excluding unpublished case law. We
do not express an opinion on tax law, competition law and financial assistance. The terms the “Netherlands” and “Dutch” in this opinion letter refer solely to the European part of the Kingdom of the Netherlands.
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4.2
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Our opinion is strictly limited to the matters stated herein. We do not express any opinion on matters of fact, on the commercial and other non-legal aspects of the transactions contemplated by the Opinion Documents and
on any representations, warranties or other information included in the Opinion Documents and any other document examined in connection with this opinion letter, except as expressly stated in this opinion letter.
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4.3
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In this opinion letter Dutch legal concepts are sometimes expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to the concepts described by the same English term
as they exist under the laws of other jurisdictions. For the purpose of tax law a term may have a different meaning than for the purpose of other areas of Dutch law.
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4.4
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This opinion letter may only be relied upon under the express condition that any issue of interpretation or liability arising hereunder will be governed by Dutch law and be brought exclusively before the competent court
in Rotterdam, the Netherlands.
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4.5
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This opinion letter is issued by Loyens & Loeff N.V. Individuals or legal entities that are involved in the services provided by or on behalf of Loyens & Loeff N.V. cannot be held liable in any manner
whatsoever.
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The opinion expressed in this paragraph 5 (Opinion) should be read in
conjunction with the assumptions set out in Schedule 2 (Assumptions) and the qualifications set out in
3/8
Schedule 3 (Qualifications). On the basis of these assumptions and subject to these qualifications and any factual matters or information not disclosed to us in the course of our investigation,
we are of the opinion that as at the date of this opinion letter:
The issuance of Shares has been duly authorised and the Shares will be validly
issued, fully paid, validly outstanding and non-assessable upon their issuance.
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6.1
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This opinion letter is addressed to you and may only be relied upon by you in connection with the transactions to which the Registration Statement relates and may not be disclosed to and relied upon by any other person
without our prior written consent.
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6.2
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We hereby consent to the filing of this opinion letter with the SEC as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of the SEC.
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Yours faithfully,
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Loyens & Loeff N.V.
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/s/ Loyens & Loeff N.V.
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4/8
Schedule 1
OPINION DOCUMENTS
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1
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The 2013 amended international equity based incentive plan of the Company dated 17 March 2014, whereby various equity-based instruments may be awarded to Participants (as defined in the 2013 Plan) up to a total
number of 5,273,371 ordinary shares in the capital of the Company (the
2013 Plan
);
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2
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The registration statement on Form S-8, relating to the Shares, filed with the SEC on 2 June 2014 (the
Registration Statement
);
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3
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A format option agreement as provided on 17 February 2014, between the Company and a subscriber under the 2013 Plan (a
Subscriber
), regarding the granting of options on new ordinary shares in the capital of
the Company by the Company to a Subscriber (the
Option Agreement
);
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4
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A format notice as provided on 17 February 2014, regarding the exercise of options granted and exercisable in accordance with the vesting schedule set forth in the Option Agreement, to be completed by a Subscriber
and to be delivered to the Company (the
Exercise Notice
); and
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5
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A format private deed of issuance and transfer of shares as provided on 17 February 2014, by the Company to a Subscriber pursuant to the Option Agreement, following receipt of an Exercise Notice and in accordance
with the 2013 Plan.
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5/8
Schedule 2
ASSUMPTIONS
The opinions in this opinion
letter are subject to the following assumptions:
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1.1
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All signatures are genuine, all original documents are authentic and all copies are complete and conform to the originals.
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1.2
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The information recorded in the Excerpt is true, accurate and complete on the Relevant Date (save for the amount of the issued and outstanding share capital of the Company).
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1.3
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The Opinion Documents will be validly executed in the form of the drafts listed in paragraph 3, 4 and 5 of Schedule 1 (Opinion Documents).
|
|
2.1
|
The Company has been duly incorporated as a
besloten vennootschap met beperkte aansprakelijkheid
(private limited liability company) and is validly existing as a
naamloze vennootschap
(public limited
liability company) under Dutch law.
|
|
2.2
|
The Company has not been dissolved (
ontbonden
), merged (
gefuseerd
) involving the Company as disappearing entity, demerged (
gesplitst
), granted a suspension of payments (
surseance verleend
),
subjected to emergency regulations (
noodregeling
) as provided for in the Act on financial supervision (
Wet op het financieel toezicht
), declared bankrupt (
failliet verklaard
), subjected to any other insolvency proceedings listed
in Annex A or winding up proceedings listed in Annex B of Council Regulation (EC) No 1346/2000 on insolvency proceedings of 29 May 2000, listed on the list referred to in article 2 (3) of Council Regulation (EC) No 2580/2001 of
27 December 2001, listed in Annex I to Council Regulation (EC) No 881/2002 of 27 May 2002 or listed and marked with an asterisk in the Annex to Council Common Position 2001/931 of 27 December 2001 relating to measures to combat
terrorism, as amended from time to time (although not constituting conclusive evidence thereof, this assumption is supported by the contents of the Excerpt and the Checks).
|
|
2.3
|
The Articles are the articles of association (
statuten
) of the Company in force on the Relevant Date (although not constituting conclusive evidence thereof, this assumption is supported by the contents of the
Excerpt).
|
|
3
|
Corporate authorisations
|
|
3.1
|
The Resolutions (a) correctly reflect the resolutions made by the Board to adopt the 2013 Plan, (b) have been made with due observance of the Articles and the By-Laws and (c) remain in full force and
effect.
|
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|
3.2
|
The Company has not established, has not been requested to establish, nor is in the process of establishing any works council (
ondernemingsraad
) and there is no works council, which has jurisdiction over the
transactions contemplated by the Opinion Documents.
|
|
3.3
|
Prior to each date of issuance of Shares under the 2013 Plan, all required resolutions to issue such Shares and the exclusion of any pre-emptive right in relation to the issuance of such Shares (as applicable) will have
been (i) duly adopted and validly passed in accordance with the Articles, the By-Laws and the 2013 Plan and (ii) have not been and will not be amended nullified revoked or declared null and void and any conditions and limitations contained
therein will have been complied with.
|
|
4.1
|
The authorised share capital (
maatschappelijk kapitaal
) of the Company will be sufficient at the date of each issue of Shares under the 2013 Plan.
|
|
4.2
|
The Shares will be issued, upon payment of the exercise price that shall be at least equal to the nominal value of the Shares, in accordance with the 2013 Plan and will be validly accepted by Cede & Co or the
broker on its behalf (as the case may be).
|
|
4.3
|
No fractional Shares will be issued.
|
|
4.4
|
The Company and each Subscriber, do not use inside information (
voorwetenschap
), within the meaning of Section 5:53 (1) of the Act on Financial Supervision (
Wet op het financieel toezicht
) on the
date of the offer of the right to acquire Shares under the 2013 Plan and issue of the Shares.
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Schedule 3
QUALIFICATIONS
The opinions in this
opinion letter are subject to the following qualifications:
|
1.1
|
The opinions expressed herein may be affected or limited by the provisions of any applicable bankruptcy (
faillissement
), suspension of payments (
surseance van betaling
), emergency regulations
(
noodregeling
), other insolvency proceedings and fraudulent conveyance (
actio Pauliana
), reorganisation, and other laws of general application now or hereafter in effect, relating to or affecting the enforcement or protection of
creditors’ rights.
|
|
1.2
|
Non-assessable has no equivalent legal term under Dutch law, but is interpreted to express that the shareholders cannot be required to make any further payments on their fully paid-up shares.
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