EXHIBIT 1.1
[Civil law notary letterhead]
CERTIFICATE
I, Hajo Bart Hendrik Kraak, civil law notary in Amsterdam, hereby certify:
- - that attached to this Certificate is a copy of the articles of association
of the company with limited liability IFCO Systems N.V. having its corporated
seat in Amsterdam, as they read following the deed of amendment to the
articles of association, executed on 27 March 2000, before me, civil law
notary, together with an informal English translation;
- - that in the English translation an attempt has been made to be as literal
as possible; inevitably, differences may occur in translating and if so, the
Dutch text will govern by law;
- - at the Ministerial Certificate of No Objections was granted 22 March 2000
under number B.V. 1.070.445.
Signed in Amsterdam on 26 January 2001
[Seal of the civil law notary in Amsterdam] [signature of H. B. H. Kraak]
[Dutch version of Articles of Incorporation of IFCO Systems N.V. has been
omitted.]
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CONTINUOUS TEXT
of the articles of association of IFCO Systems N.V.
with corporate seat in Amsterdam, as they read after
the deed of amendment to the articles of association
executed on 27 March 2000 before H.B.H Kraak,
civil-law notary in Amsterdam.
The ministerial certificate of no-objection was
granted on 22 March 2000 under number
N.V. 1.070.445.
DEFINITIONS
ARTICLE 1.
In these Articles of Association the following definitions apply:
a. Articles of Association shall mean: the articles of association of the
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Company;
b. The Company shall mean: IFCO Systems N.V., registered in Amsterdam;
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c. The Board of Directors shall mean: the board of management of the Company;
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d. General Meeting shall mean: both the body formed by shareholders and others
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with voting rights as well as the meeting of shareholders and others with
voting rights;
e. Annual Meeting shall mean: the General Meeting with the purpose of
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considering and adopting the Annual Accounts, the annual report and any
other documents required by law;
f. Subsidiary shall mean:
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1. a legal entity in which the Company or one or more of its Subsidiaries,
whether or not pursuant to an agreement with other persons entitled to
vote,
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can jointly or by itself exercise more than half of the voting rights at
the general meeting,
2. a legal entity, of which the Company or one or more of its Subsidiaries
are member or shareholder and, whether or not pursuant to an agreement
with other persons entitled to vote, can jointly or by itself appoint or
remove from office more than half of the members of the board of
management even if all the persons entitled to vote cast their votes;
3. a company acting under its own name in which the Company or one or more
of its Subsidiaries, as partner is or are fully liable for the debts
towards creditors;
g. Group Company shall mean: a legal entity or a company which is associated
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with the Company in a group;
h. Distributable reserves shall mean: that part of the Company's shareholders'
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equity which is in excess of the paid-up and called-up part of the capital,
increased by the reserves which are required by law and by virtue of these
Articles of Association;
i. Annual Accounts shall mean: the balance sheet, the profit and loss account
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and the explanatory notes to these accounts.
NAME AND SEAT
ARTICLE 2.
1. The name of the Company is: IFCO Systems N.V.
2. Its registered seat is in Amsterdam.
3. The Company may have branch offices and branch establishments elsewhere,
both at home and abroad.
OBJECTS
ARTICLE 3.
The object of the Company is to participate in and to manage, control and
finance other enterprises, to provide security for debts of subsidiaries and
group companies of the Company and of third parties, to enter into agreements
concerning the indemnification of its managing directors and to undertake all
that which is connected to the foregoing or in furtherance thereof, all in the
widest sense of the words.
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CAPITAL AND SHARES
ARTICLE 4.
1. The authorized capital amounts to four hundred million Euro
([EURO] 400,000,000.--).
2. It is divided into two hundred million (200,000,000) shares, each with a
nominal value of two Euro ([EURO] 2.--), consisting of one hundred million
(100,000,000) ordinary shares and one hundred million (100,000,000)
preferenc shares. Where these Articles of Association refer to shares and
shareholders, these shall be understood to refer to the aforementioned
classes and holders thereof, unless the contrary is indicated.
3. The preference shares are registered shares and are numbered consecutively.
Share certificates thereof shall not be issued. The ordinary shares shall
be registered shares.
4. If a share belongs to more than one person, the collectively entitled
parties may only have themselves represented vis-a-vis the Company by one
person.
SHARE CERTIFICATES
ARTICLE 5.
1. To the extent the Company is listed on one or more stock exchanges,
ordinary registered shares shall be available:
- in the form of an entry in the share register without issue of a share
certificate; shares of this type are referred to in these Articles of
Association as type I registered shares;
- and - should the Board of Directors so decide - also in the form of an
entry in the shareholders register with issue of a certificate, which
certificate shall consist of a main part without dividend coupon;
- shares of this type and share certificates relating thereto are referred
to in these Articles as type II registered shares and type II share
certificates.
2. The Board of Directors can decide that the registration of type I
registered shares may only take place for one or more quantities of shares
- which quantities are to be specified by the said Board - at the same
time.
3. Type II share certificates shall be available in such denominations as the
Board of Directors shall determine.
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4. All share certificates shall be signed in accordance with the provisions of
article 16 paragraph 1;
the signatures may be effected by printed facsimile.
Furthermore, type II share certificates shall, and all other share
certificates may, be countersigned by one or more persons designated by the
Board of Directors for that purpose.
5. All share certificates shall be identified by numbers and/or letters.
6. The Board of Directors can determine that for the trade at foreign
exchanges share certificates shall be issued complying with the
requirements set by said foreign exchange(s) and not provided with any
dividend sheet.
7. The expression "share certificate" as used in these Articles shall include
a share certificate in respect of more than one share.
DUPLICATES
ARTICLE 6.
1. Upon written request from a shareholder, missing or damaged share
certificates, or parts thereof, may be replaced by new certificates or by
duplicates bearing the same numbers and/or letters, provided the applicant
proves his title and, in so far as applicable, his loss to the satisfaction
of the Board of Directors, and further subject to such conditions as the
Board of Directors may deem fit.
2. In appropriate cases, at its own discretion, the Board of Directors may
stipulate that the identifying numbers and/or letters of missing documents
be published three times, at intervals of at least one month, in at least
three newspapers to be indicated by the Board of Directors announcing the
application made; in such a case new certificates or duplicates may not be
issued until six months have expired since the last publication, always
provided that the original documents have not been produced to the Board of
Directors before that time.
3. The issue of new certificates or duplicates shall render the original
document invalid.
SHAREHOLDERS REGISTER
ARTICLE 7.
1. Notwithstanding the provisions of the law in respect of registered shares,
a register shall be kept by or on behalf of the Company, which register
shall be
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regularly updated and, at the discretion of the Board of Directors, may, in
whole or in part, be kept in more than one copy and at more than one place.
If the listing of the shares of the Company on a stock exchange or a
regulated over the counter market in a country or countries other than the
Netherlands so requires, part or parts of the share register may be kept in
such country or countries.
2. Each shareholder's name, his address and such further data as the Board of
Directors deems desirable, whether at the request of a shareholder or not,
shall be entered in the register.
3. The form and the contents of the shareholders register shall be determined
by the Board of Directors with due regard to the provisions of paragraphs 1
and 2 of this Article.
The Board of Directors may determine that the records shall vary as to
their form and contents according to whether they relate to type I
registered shares or to type II registered shares.
4. Upon request a shareholder shall be given free of charge a declaration of
what is stated in the register with regard to the shares registered in his
name, which declaration may be signed by one of the specially authorized
persons to be appointed by the Board of Directors for this purpose.
5. The provisions of the last four paragraphs shall equally apply to rights of
usufruct or pledge on one or more registered shares, with the proviso that
the other data required by law must be entered in the register.
CONVERSION
ARTICLE 8.
1. Subject to the provisions of Article 5, the holder of type I registered
shares may, upon his request and at his option, have one or more type II
registered shares entered in the shareholders register for the same nominal
amount and have issued to him one or more type II shares certificates.
2. Subject to the provisions of Article 5, the holder of type II registered
shares registered in his name may, after lodging the type II share
certificates with the Company, upon his request and at his option, have one
or more type I registered shares entered in the shareholders register for
the same nominal amount.
A shareholder who requests that type I registered shares are registered in
his
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name may require that such shares are also registered in his name in a
register held outside of the Netherlands as provided in Article 7 paragraph
1.
3. The holder of one or more share certificates may, after lodging the share
certificates with the Company, upon his request and at his option have
issued to him one or more share certificates, of the same type, and for the
same nominal amount, each for as many shares as he requests, subject
however to the provisions of Article 5, paragraph 3.
4. A request as mentioned in this Article shall, if the Board of Directors so
requires, be made on a form obtainable from the Company free of charge,
which shall be signed by the applicant.
TRANSFER OF SHARES
ARTICLE 9.
1. The transfer of a registered share shall be effected either by service upon
the Company of the instrument of transfer or by written acknowledgement of
the transfer by the Company.
2. Where a transfer of a type II registered share is effected by service in
writing of an instrument of transfer on the Company, the Company shall, at
the discretion of the Board of Directors, either endorse the transfer on
the share certificate or cancel the share certificate and issue to the
transferee one or more new share certificates registered in his name to the
same nominal amount.
3. The Company's written acknowledgement of a transfer of a type II registered
share shall, at the discretion of the Board of Directors, be effected
either by endorsement of the transfer on the share certificates or by the
issue to the transferee of one or more new share certificates registered in
his name to the same nominal amount.
4. The provisions of the foregoing paragraphs of this Article shall equally
apply to the allotment of registered shares in the event of a judicial
partition of any community of property or interests, the transfer of a
registered share as a consequence of a judgment execution and the creation
of limited rights in rem on a registered share.
5. The submission of requests and lodging of documents referred to in Articles
5 to 9 inclusive shall be made at an address to be indicated by the Board
of Directors.
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Different addresses may be indicated for the different classes and types of
shares and share certificates among which in any case an address in
Amsterdam.
6. The Company is authorized to charge amounts to be determined by the Board
of Directors not exceeding cost price to those persons who request any
services to be carried out by virtue of Articles 5 to 9 inclusive, provided
that a number of shares, which number shall be determined by the Board of
Directors, will be combined without cost in one share certificate, which
share certificate at request of the shareholder may again without cost, be
divided in simple share certificates or in share certificates which
represent a different number of shares, which number shall be determined by
the Board of Directors.
ISSUE OF SHARES
ARTICLE 10.
1. The General Meeting or the Board of Directors, if designated thereto by the
General Meeting, shall resolve on further issue of shares; if the Board of
Directors has been designated thereto, the General Meeting may not, as long
as such designation is valid, resolve on further issues.
2. The General Meeting or, as the case may be, the Board of Directors shall
determine the price and further conditions of issue, with due observance of
the other relevant provisions in these Articles of Association.
3. If the Board of Directors is designated as authorized to resolve on the
further issue of shares, it shall be determined by the General Meeting when
such designation is made, how many and what class of shares may be issued.
When such designation is made, the duration of the designation, which shall
not exceed five years, shall also be stipulated.
The designation can be renewed each time for a period of no more than five
years.
Unless otherwise stipulated when the designation is made, said designation
cannot be withdrawn.
4. If a resolution of the General Meeting pertaining to an issue or to the
designation of the Board of Directors, as referred to above, is to be
valid, it shall require a prior or simultaneous positive resolution from
each group of holders of shares of the same class whose rights are affected
by the issue.
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5. Within eight days after a resolution of the General Meeting on an issue or
on a designation of the Board of Directors as referred to above, the Board
of Directors shall submit a fall text thereof at the office of the Trade
Register. The Board of Directors shall notify the office of the Trade
Register of each issue of shares within eight days thereafter, stating the
number and class thereof.
6. The provisions in paragraphs 1 to 5, inclusive, of this Article shall apply
accordingly to the granting of rights to take shares but shall not apply to
the issue of shares to a person who is exercising a previously acquired
right to subscribe for shares.
7. Shares shall not be issued below par value, without prejudice to the
provisions in article 80, paragraph 2 of Book 2 of the Dutch Civil Code.
On the issue of an ordinary share, at least the nominal amount shall be
paid up thereon, as well as, in the event the share is taken for a higher
amount, the difference between such amounts.
8. Upon the issue of preference shares it may be stipulated that a part of the
nominal amount, not exceeding three-fourths of the nominal amount, must be
paid up only if and when requested by the Company.
9. Payment shall be made in cash insofar as another form of payment has not
been agreed upon, without prejudice to the provisions in article 80b of
Book 2 of the Dutch Civil Code.
Payment may only be made in foreign currency with the permission of the
Company and, furthermore, with due observance of the provisions in article
80a paragraph 3 of Book 2 of the Dutch Civil Code.
10. The Board of Directors is authorized to effect legal transactions as
referred to in article 94, paragraph 1 of Book 2 of the Dutch Civil Code
without prior approval of the General Meeting.
PRE-EMPTIVE RIGHT
ARTICLE 11.
1. Subject to the provisions in the third sentence of article 96a, paragraph 1
of Book 2 of the Dutch Civil Code, each holder of ordinary shares shall
have a pre-emptive right to ordinary shares to be issued in proportion to
the aggregate nominal amount of his ordinary shares.
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2. When shares are issued, there shall be no pre-emptive rights towards shares
to be issued against any payment other than in cash.
3. With due observance of this Article, the General Meeting or, as the case
may be, the Board of Directors shall resolve, when the resolution in
respect of issue is passed, on the manner and time-frame within which the
pre-emptive night may be exercised.
4. The Board of Directors shall announce an issue with pre-emptive right and
the time-frame within which such may be exercised in the manner as provided
in Article 22.
5. The pre-emptive rights may be exercised for a period of at least two weeks
after the day of announcement.
6. The pre-emptive night may be limited or excluded by resolution of the
General Meeting.
In the proposal thereto, the reasons for the proposal and the choice of the
intended price of issue shall be explained in writing.
The pre-emptive right may also be limited or excluded by the Board of
Directors, if the Board of Directors has been designated by resolution of
the General Meeting for a specific period of no more than five years as
authorized to limit or exclude the pre-emptive right;
such designation is only possible if the Board of Directors has also been
designated previously or simultaneously as referred to in Article 10,
paragraph 1. The designation can be renewed each time for a period not in
excess of five years; the authority granted thereby may only be exercised
with the issue of shares to which the Board of Directors has competently
resolved.
Unless otherwise stipulated in the designation, it may not be withdrawn.
7. A resolution of the General Meeting on the limitation or exclusion of the
preemptive right or on the designation as referred to in the previous
paragraph shall require a majority of at least two-thirds of the votes
cast, if less than half the issued capital is present or represented at the
meeting.
The Board of Directors shall deposit a full text of such resolution at the
office of the Trade Register.
8. In case rights to subscribe for ordinary shares are to be granted, holders
of ordinary shares shall have a pre-emptive right;
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the provisions stipulated above in this Article shall apply accordingly.
Shareholders shall not have a pre-emptive right on shares to be issued to a
person exercising a previously acquired right to subscribe for shares.
OWN SHARES
ARTICLE 12.
1. Upon any issue of shares the Company may not subscribe for shares in its
own capital.
2. The Company may only acquire pursuant to a proposal of the Board of
Directors fully paid-up shares in its own capital for no consideration or
under universal title or if:
a. the distributable reserves are at least equal to the price of
acquisition;
b. the nominal amount of the shares in its capital to be acquired, already
held or held in pledge by the Company or a Subsidiary does not exceed one-
tenth of the issued capital;
c. the authorization for such acquisition has been granted by the General
Meeting. Such authorization shall be valid for no more than eighteen
months. The General Meeting shall determine in its authorization the number
of shares which may be acquired, the manner in which they may be acquired
and the maximum and minimum to be observed in respect of the price of
acquisition.
For the validity of such acquisition shall be decisive the extent of the
Company's shareholders' equity according to the last-adopted balance sheet,
minus the price for the acquisition on the shares in the capital of the
Company and distributions from profits or reserves to others, which the
Company and its Subsidiaries became indebted for after the date of the
balance sheet.
If a financial year has expired for a period in excess of six months
without the Annual Accounts having been adopted, then acquisition other
than under universal title in accordance with this paragraph 2 shall not be
allowed.
The authorization referred to here shall not be required, insofar as the
Company acquires own shares, listed on an official price list of a stock
exchange, in order to transfer such by virtue of an arrangement applicable
to employees of the Company or of a Group Company to such employees.
3. Neither the Company nor any of its Subsidiaries may extend loans, give
security, grant a price guarantee, guarantee in any other way or, severally
or in any other
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way, bind itself in addition to or for other persons with a view to
subscribing for or acquiring shares in the Company.
This prohibition shall, however, not apply in the event mentioned in
article 98c paragraph 2 of Book 2 of the Dutch Civil Code.
4. Alienation of shares held by the Company in its own capital shall only be
effected pursuant to a resolution of the Board of Directors.
With the resolution in respect of alienation, the conditions of such
alienation shall also be determined.
5. No votes can be cast at a General Meeting on a share owned by the Company
or a Subsidiary thereof.
Usufructuaries and pledgees of shares which are owned by the Company and
its Subsidiaries, are not, however, excluded from, exercising their voting
right if the right of usufruct or the right of pledge was created before
the share was held by the Company or a Subsidiary.
The Company or a Subsidiary cannot cast votes on a share in respect of
which it has a right of usufruct or a right of pledge.
6. In determining to which extent shareholders cast votes, are present or
represented, or to which extent the share capital is supplied or is
represented, shares in respect of which the law provides that no votes may
be cast shall not be taken into account.
7. A Subsidiary may not for its own account subscribe for shares in the
capital of the Company, nor have such done.
The acquisition of such shares may only be effected directly or indirectly
by Subsidiaries for their own account under specific title insofar as the
Company may, pursuant to the provisions laid down in the preceding
paragraphs of this Article, acquire shares in its own capital.
A Subsidiary may not,
a. after it has become a Subsidiary; or
b. after the company of which it is a Subsidiary has been converted into
a company with limited liability ("naamloze vennootschap"); or
c. after it has as a Subsidiary acquired shares in the capital of the
Company for no consideration or under universal title,
for a period in excess of three years hold or cause to be held for its own
account
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shares in excess of one-tenth of the issued capital together with the
Company and its other Subsidiaries.
CAPITAL REDUCTION
ARTICLE 13.
1. The General Meeting may, at the proposal of the Board of Directors, resolve
on reduction of the issued capital by canceling shares or by reducing the
nominal amount of shares by means of an amendment of the Articles of
Association.
In this resolution, the shares to which the resolution pertains shall be
indicated and the execution of the resolution shall be laid down.
2. A resolution to cancel shares can relate only to shares which are field by
the Company or to all issued and outstanding preference shares.
3. Reduction of the amount of shares without repayment of capital and without
release from the obligation to pay calls shall be effected in proportion to
all the shares of one and the same class.
4. Partial repayment of capital on shares or release from the obligation to
pay calls shall only be possible in proportion to all the shares or to all
the preference shares exclusively.
5. The pro-rata requirements mentioned in paragraphs 3 and 4 of this Article
may be deviated from with the approval of all the shareholders concerned.
6. A resolution in respect of capital reduction shall require a majority of at
least two-thirds of the votes cast, if less than half the issued capital is
represented at the meeting.
7. The convocation of a meeting in which a resolution is to be passed as
referred to in this Article shall state the purpose of the capital
reduction and the manner of execution.
8. The Company is obliged to publish the resolutions referred to in this
Article in conformity with the provisions of the law.
A resolution to reduce the issued capital shall not come into force as long
as creditors of the Company may oppose the same in conformity with the
relevant provisions of the law.
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RIGHT OF USUFRUCT, RIGHT OF PLEDGE
ARTICLE 14.
1. A right of usufruct or pledge may be created on a share.
In that event, the voting right shall accrue to the shareholder or the
usufructuary or the pledgee, if this has been provided for at the time of
creation of the right of usufruct or pledge.
2. The shareholder who has no voting right and the usufructuary or pledgee who
does have a voting right shall have the rights granted by law to holders of
depositary receipts for shares issued with the cooperation of a company.
3. The rights referred to in paragraph 2 do not accrue to the usufructuary or
pledgee who has no voting rights.
4. A right of pledge may also be created without acknowledgement by or
notification to the Company.
In that event article 239 of Book 3 of the Dutch Civil Code shall apply
accordingly, in which case acknowledgement by or notification of the
Company shall replace the notification referred to in paragraph 3 of that
article.
MANAGEMENT
ARTICLE 15.
1. The Company shall be managed by a Board of Directors, consisting of A
Members and B Members.
The maximum number of Members of the Board of Directors shall be nine and
the number of Members shall be determined by the General Meeting, with the
understanding that there shall be at least one A Member.
Only natural persons may be a Member of the Board of Directors.
2. The Members of the Board of Directors shall be appointed by the General
Meeting.
3. The General Meeting may suspend and dismiss the Members of the Board of
Directors.
4. Even after having been extended, a suspension shall not last for more than
three months.
If no decision has been reached after that time on the lifting of the
suspension or the removal from office, the suspension shall cease to exist.
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5. The B Members of the Board of Directors shall determine the remuneration
and other conditions of employment of the A Members of the Board of
Directors.
The A members of the Board of Directors shall determine the remuneration of
the B Members of the Board of Directors.
6. The field of activity (werkkring) of the B Members regards in particular
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the general course of affairs of the company and its enterprise.
The field of activity of the A Members regards in particular the day to day
management of the Company and its enterprise.
7. A Member of the Board of Director may give a power-of-attorney to one of
the other Members of the Board of Director by means of a signed document,
sent by post or by fax, to represent him at the Board of Directors'
meetings and to vote in his place. However, a Member of the Board of
Directors is not allowed to cast more than two proxy votes.
8. The Board of Directors appoints a chairman (the "Chairman") from among its
members and a chief executive officer (the "Chief Executive Officer") from
among its A members.
9. The Board of Directors shall meet whenever a Member of the Board of
Directors shall so require.
It shall pass resolutions by an absolute majority of votes cast by all
Managing Directors in office.
Blank votes shall be considered null and void.
The Board of Directors may establish rules pertaining to the decision-
making process of the Board of Directors.
10. The Board of Directors may decide to institute committees to which powers
can be delegated by the Board of Directors by virtue of the regulations,
without prejudice to the statutory duties of the Board of Directors.
11. The Board of Directors is authorized to appoint officials who may represent
the Company and to grant to such persons any title and powers as it seems
appropriate.
12. A B member of the Board of Directors shall resign no later than upon the
close of the Annual Meeting held in the fourth year after the year of his
last appointment. Without prejudice to the provisions in the first
sentence, he can then be
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reappointed immediately. The Board Directors shall draw up a roster of
resignation for its B members.
REPRESENTATION
ARTICLE 16.
1. The Company shall be represented by the Board of Directors except to the
extent otherwise provided by law.
In addition, the authority to represent the Company is vested:
- in each A Member of the Board of Directors individually; and
- in a B Member of the Board of Directors acting jointly with an A
Member of the Board of Directors.
2. In all events of the Company having a conflict of interest with one or more
Members of the Board of Directors, the Company shall continue to be
represented in the manner described in paragraph 1 above.
In all events in which the Company has a conflict of interest with a Member
of the Board of Directors in his private capacity, the board resolution
regarding that relevant legal act requires the prior approval of the
General Meeting.
Failure to obtain the approval defined in the present paragraph shall not
affect the Board of Directors or the authority of the Members of the Board
of Directors to represent the Company.
3. If a Member of the Board of Directors is absent or prevented from acting,
the remaining Members of the Board of Directors or the remaining Member of
the Board of Directors shall be charged with the management of the Company.
If the sole Member of the Board of Directors or all the Members of the
Board of Directors are absent or prevented from acting, the person to be
designated for that purpose by the General Meeting shall be charged with
the management of the Company until the situation of absence or other
prevention has ceased to exist in respect of at least one Member of the
Board of Directors.
INDEMNIFICATION, LIMITED LIABILITY
ARTICLE 17.
1. The Company shall indemnify any person who is or was a member of the Board
of Directors and who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil,
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criminal, administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that he is or was a member
of the Board of Directors or proxyholder (procuratiehouder), officer,
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employee or agent of the Company, or is or was serving at the request of
the Company as a member of the Board of Directors or proxyholder
(procuratiehouder), officer, employee, trustee or agent of another company,
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a partnership, joint venture, trust or other enterprise or entity,
including with respect to employee benefit plans maintained or sponsored by
the Company or for the benefit of its or any of its group companies'
employees or consultants, (each an "Indemnitee"), against any and all
liabilities, including all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful or
outside of his mandate.
The termination of any action, suit or proceeding by a judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, in and of itself, create a presumption that the
person did not act in good faith and not in a manner which he reasonably
could believe to be in or not opposed to the best interests of the Company,
and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
2. No indemnification pursuant to paragraph 1 of this Article shall be made in
respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for gross negligence or willful misconduct in
the performance of his duty to the Company, unless and only to the extent
that the court in which such action or proceeding was brought or any other
court having appropriate jurisdiction shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification against such expenses which the court in which such action
or proceeding was brought or such other court having appropriate
jurisdiction shall deem proper.
3. Expenses (including attorneys' fees) incurred by an Indemnitee in defending
a civil or criminal action, suit or proceeding may be paid by the Company
in
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advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of an Indemnitee to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company as authorized in this Article.
Such expenses incurred by Indemnitees may be so advanced upon such terms
and conditions as the Board of Directors decides.
4. The indemnification provided for by this Article shall not be deemed
exclusive of any other right to which a person seeking indemnification or
advancement of expenses may be entitled under the laws of the Netherlands
as from time to time amended or under any by-laws, agreement, resolution of
the General Meeting or of the disinterested Members of the Board of
Directors or otherwise, both as to actions in his official capacity and as
to actions in another capacity while holding such position, and shall
continue as to a person who has ceased to be a member of the Board of
Directors or proxyholder (procuratiehouder), officer, employee, trustee or
----------------
agent and shall also inure to the benefit of the heirs, executors,
administrators and the estate of such a person.
The Company may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and. to the advancement of
expenses to any Indemnitee to the fullest extent of the provisions of this
Article 17 with respect to the indemnification and advancement of expenses
of Indemnitees.
5. The Company may purchase and maintain insurance on behalf of any
Indemnitee, whether or not the Company would have the power to indemnify
him against such liability under the provisions of this Article.
6. Whenever in this Article reference is made to the Company, this shall
include, in addition to the resulting or surviving company also any
constituent company) (including any constituent company of a constituent
company) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power to Indemnify its members
of the board of management or members of the supervisory board, or
proxyholders (procuratiehouder), officers, employees and agents, so that
----------------
any person who is or was a member of the supervisory board, member of the
board of managements or proxyholder (procuratiehouder), officer,
----------------
employee or agent of such constituent company, or is or was serving at the
request of such constituent company as a member of the
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supervisory director, member of the managing board. or proxyholder
(procuratiehouder), officer, employee, trustee or agent of another company,
----------------
a partnership, joint venture, trust or other enterprise or entity, shall
stand in the same position under the provisions of this Article with
respect to the resulting or surviving company as he would have with respec
to each constituent company if its separate existence had continued.
7. No person shall be personally liable to the Company or its shareholders for
monetary damages for breach of fiduciary duty as a member of the Board of
Directors; provided, however, that the foregoing shall not eliminate or
limit the liability of a member of the Board of Directors (1) for any
breach of such individual's duty of loyalty to the Company or its
shareholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) for any
transaction from which the member of the Board of Directors derived an
improper personal benefit or (4) for personal liability which is imposed by
Dutch law, as from time to time amended.
8. No amendment, repeal or modification of this Article 17 shall adversely
affect any right or protection of any person entitled to indemnification or
advancement of expenses under this Article 17 prior to such amendment,
repeal or modification.
FINANCIAL YEAR, ANNUAL ACCOUNTS, ANNUAL REPORT AND PUBLICATION
ARTICLE 18.
1. The financial year shall be equal to the calendar year.
2. Each year, within five months after the close of the financial year -
subject to extension of this period by the General Meeting on the grounds
of circumstances of an exceptional nature by at most six months - the Board
of Directors shall draw up the Annual Accounts.
Within this period the Board of Directors shall also submit the annual
report. The Annual Accounts shall be signed by all the Members of the Board
of Directors.
If the signature of one or more of them is missing, mention thereof shall
be made and the reason therefor stated.
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3. The Board of Directors shall submit the Annual Accounts to the General
Meeting.
4. From the day the Annual Meeting has been convened until the close of that
meeting, the documents referred to in paragraph 2 of this Article shall,
together with the information to be added pursuant to article 392 of Book 2
of the Dutch Civil Code, be deposited at the Company's offices and in
Amsterdam at the place to be mentioned in the convocation for inspection by
all shareholders and other parties with meeting rights and each of them may
obtain copies thereof at no cost.
5. The General Meeting shall adopt the Annual Accounts. The adoption of the
Annual Accounts shall discharge the Members of the Board of Directors for
their management, insofar as such management is apparent from the Annual
Accounts.
6. The Annual Accounts may not be adopted by the General Meeting if it was
unable to ascertain to its satisfaction the statement of the auditor
referred to in Article 19, paragraph 1, which must be attached to the
Annual Account, unless the other information included mentions of a legal
ground why the statement is lacking.
7. The Company shall procure the publication of the documents and information
referred to in this Article, if and insofar as and in the manner as
prescribed in articles 394 et sequens of Book 2 of the Dutch Civil Code.
AUDITOR
ARTICLE 19.
1. The General Meeting shall give, without prejudice to any relevant statutory
provisions, an auditor ("registeraccowitant") or another expert as referred
to in article 393 of Book 2 of the Dutch Civil Code or an organization in
which such experts are working together, the instruction to examine and
audit the Annual Accounts.
That expert shall report on his audit to the Board of Directors and shall
lay down the result of his audit in a report, stating whether the Annual
Accounts give a true and fair view of the financial position of the
Company.
2. If the General Meeting fails to appoint an auditor then the Board of
Directors shall be competent to do so.
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3. The General Meeting or the Board of Directors if it gave the instruction,
shall at all times be authorized to cancel the instruction mentioned in
this Article.
PROFITS
ARTICLE 20.
1. The Company may make distributions to the shareholders and to other persons
entitled to the profits only up to a sum not exceeding the amount of the
distributable reserves.
2. Profits shall be distributed after adoption of the Annual Accounts showing
such is allowed.
3. Each year, the Board of Directors shall determine which part of the
profits - the positive balance of the profit and loss account - shall be
reserved.
4. From the profits remaining after reservation according to the above, a
dividend shall be distributed on the preference shares equal to the average
rate of Euribor plus two calculated over the amounts paid on such shares,
the average being taken over the number of days this rate applied over the
financial year concerned.
5. The balance then remaining shall be distributed as a dividend on ordinary
shares.
6. In calculating the profit appropriation, the shares held by the Company in
its own capital shall not count, unless a usufruct has been created on
these shares.
7. Insofar as profit is available in the Company, the Board of Directors may
resolve on payment of an interim dividend on the ordinary shares on account
of the expected dividend, provided always that the provisions laid down in
paragraph 1 of this Article have been satisfied, such to be shown by an
interim balance sheet as referred to in article 105 paragraph 4 of Book 2
of the Dutch Civil Code.
8. The General Meeting may, following a proposal of the Board of Directors,
resolve to make distributions to the holders of ordinary shares from one or
more reserves which need not be maintained pursuant to the law or to these
Articles of Association.
The provisions of the paragraphs 1, 2, 7 and 9 apply accordingly,
9. The resolutions to distribute (interim) dividends on the ordinary shares
may entail that (interim) dividends will be wholly or partly distributed
not in cash, but in the form of shares in the Company or in a Subsidiary.
10. The (interim) dividend shall be made payable on a day to be determined by
the Board of Directors.
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11. (Interim) dividends which have not been collected within five years after
they became payable shall be forfeited to the Company.
ANNUAL MEETING
ARTICLE 21.
The Annual Meeting shall be held within six months after the close of the
financial year, for the purpose of
a. the discussion of the Annual Accounts and of the other information referred
to in article 392 of Book 2 of the Dutch Civil Code, except in case
extension has been granted for the preparation of the Annual Accounts
pursuant to article 101 of Book 2 of the Dutch Civil Code;
b. adoption of the Annual Accounts, unless an extension as referred to in
paragraph a. of this article has been granted;
c. delivery of the written report made by the Board of Directors on the state
of the Company's affairs and the management conducted during the past
financial year, unless an extension as referred to in a. above has been
granted;
d. effecting all such things as furthermore prescribed by the law;
e. dealing with all such further items of business as stated in the
convocation of the meeting.
CONVOCATION
ARTICLE 22.
1. All convocations for the General Meeting and all announcements,
notifications and communications to shareholders and other parties with
meeting rights shall be effected by means of letters sent to the addresses
as recorded in the register referred to in Article 7, without prejudice to
the relevant provisions of the law.
2. The convocation shall be effected no later than on the fifteenth day before
the day of the meeting.
3. In the convocation the agenda shall be given or it shall be communicated
that shareholders and other parties with meeting rights may inspect the
agenda at the offices of the Company, without prejudice to the relevant
provisions of the law.
4. Insofar as all documents which must be available for inspection by
shareholders and other parties with meeting rights have not been i ncluded
in the convocation, these documents shall be made available at the offices
of the Company and, if the
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Company is listed on a stock exchange, with such paying agent as referred
to in the rules relating to securities of such stock exchange, to be
designated in the convocation for shareholders and other parties with
meeting rights at no cost.
OTHER GENERAL MEETINGS
ARTICLE 23.
1. Other General Meetings shall be held whenever the shareholders and other
parties with meeting rights shall be called and convened for that purpose
by the Board of Directors.
2. If one or more shareholders and/or other parties with meeting rights,
jointly representing at least one-tenth of the issued capital, have
requested the Board of Directors in writing to call and convene a General
Meeting, at the same time specifying the items of the agenda, and the Board
of Directors has not complied with such request in such a way that the
General Meeting can be held within six weeks following such request, they
shall be authorized to call such meeting themselves.
PLACE, CHAIRMANSHIP, MINUTES
ARTICLE 24.
1. General Meetings shall be held in Amsterdam, Schiphol (Haarlemmermeer), The
Hague, Maastricht, Nijmegen or in Venlo, at a location to be stated in the
convocation.
2. General Meetings shall be presided over by the Chairman of the Board of
Directors;
if the Chairman is absent, the member of the Board of Directors designated
by the Board of Directors shall preside and if such member is absent, the
Meeting itself shall choose its chairman.
3. Minutes shall be kept of the business transacted at the meeting.
The minutes shall be acknowledged, in evidence whereof the chairman and the
person who took the minutes shall sign them.
Minutes need not be taken of the business transacted if a notarial record
is made.
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ACCESS
ARTICLE 25.
1. All Members of the Board of Directors, shareholders and other parties with
meeting fights or their authorized agents - the latter with due observance
of the provisions of Article 26 - shall be entitled to attend the General
Meeting, to address the meeting and, insofar as they have voting rights, to
cast their vote thereat.
In order to exercise that right holders of ordinary registered shares,
usufructuaries and pledgees of registered shares with the rights granted by
law under article 88 casu quo article 89 of Book 2 of the Dutch Civil Code
to holders of depositary receipts issued with the cooperation of a company
must express their desire to do so to the Company in writing, such no later
than at the time and place mentioned in the convocation and also - insofar
as it concerns type II registered shares - stating the identifying number
of the share certificate.
2. The time referred to in the previous paragraph cannot be set earlier than
on the seventh day before the day of the meeting.
3. If the voting right on a share accrues to the usufructuary or the pledgee
instead of to the shareholder, the shareholder shall also be authorised
attend the General Meeting and address it, provided that the Company has
been notified of the intention to attend the meeting in accordance with
paragraph 1.
4. The chairman of the meeting shall decide on access to the meeting by others
than those who are entitled thereto by law.
POWER OF ATTORNEY
ARTICLE 26.
Shareholders and other parties with meeting rights may have themselves
represented by written power of attorney.
The Company shall be notified hereof in accordance with the provisions of
Article 25, paragraph 1 of the Articles of Association.
VOTES
ARTICLE 27.
1. Each person entitled to vote or his representative must sign the attendance
list.
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2. Each share confers the right to cast one vote.
3. Insofar as the law or these Articles of Association do not prescribe a
greater majority, resolutions are passed by an absolute majority of the
votes cast.
Resolutions of the General Meeting can only be adopted validly in a meeting
in which no less than one-third of the issued capital is represented.
A new meeting as referred in article 120 paragraph 3 of Book 2 of the Dutch
Civil Code cannot be convened.
4. All votes shall be oral votes.
However, the chairman may resolve to have votes cast by ballot.
In the event of an election of persons, a person with voting rights present
at the meeting may also require that the votes be cast by ballot.
Voting by ballot shall be effected with closed, unsigned ballot papers.
5. If the votes are tied the drawing of lots shall decide if it concerns an
election of persons and the motion shall be defeated if it concerns an item
of business.
6. Blank votes and invalid votes shall count as not having been cast.
7. The Board of Directors shall keep records of the resolutions passed.
The notes shall be deposited at the offices of the Company for inspection
by shareholders and other persons with meeting rights who shall if so
requested be furnished with a transcript or extract of these notes at no
more than the cost price.
AMENDMENT OF ARTICLES OF ASSOCIATION AND LIQUIDATION
ARTICLE 28.
1. A resolution of the General Meeting to amend the Articles of Association or
to dissolve the Company may only be taken at the proposal of the Board of
Directors.
2. The full proposal shall be deposited for inspection by the shareholders and
other parties with meeting rights at the offices of the Company and in
Amsterdam at a location to be mentioned in the convocation as of the day of
convocation to the General Meeting until the conclusion thereof;
the transcripts of this proposal shall be made available for the
shareholders and other parties with meeting rights at no cost.
3. A resolution to dissolve the Company may only be taken in a General Meeting
with a majority of no less than three-fourths of the votes cast.
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4. Upon the dissolution of the Company the liquidation shall be effected by
the Board of Directors.
5. During the liquidation the provisions of these Articles of Association
shall remain in full force as much as possible.
6. The balance of the liquidation shall be distributed as follows:
a. to the holders of preference shares, the amount paid on such shares;
b. the remaining balance shall be distributed to the holders of ordinary
shares in proportion to everyone's nominal possession of said shares.
7. The books and records of the Company shall be kept for seven years after
the completion of the liquidation by the party designated for that purpose
by the General Meeting.
PROVISIONAL CLAUSES
ARTICLE 29.
The Board of Directors shall be authorized to resolve on issues of shares and
limitation or exclusion of the pre-emptive right, as well as to grant the right
to subscribe for shares.
The authority of the Board of Directors to adopt such a resolution pertains to
all shares not yet issued up to a total issued share capital of fifty million
ordinary shares and fifty million preference shares.
The authority referred to herein shall end on the first day of February two
thousand and five subject to the possibility of extension as stipulated in
Article 10 and Article 11 of these Articles of Association.