EXHIBIT 10.1
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RECAPITALISATION AGREEMENT
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between
AEGON N.V.
having its official seat in The Hague
and
Vereniging AEGON
having its official seat in The Hague
ALLEN & OVERY
AMSTERDAM
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RECAPITALISATION AGREEMENT
THIS RECAPITALISATION AGREEMENT (the "Agreement") is dated 17 September 2002 and
entered into by and between:
1. AEGON N.V., a public company under Dutch law ('naamloze vennootschap'),
having its official seat in The Hague, the Netherlands, and its office
address at AEGONplein 50, 2591 TV The Hague (the "Company"); and
2. Vereniging AEGON, an association under Dutch law ('vereniging'), having its
official seat in The Hague, the Netherlands, and its office address at
AEGONplein 50, 2591 TV The Hague (the "Association").
The parties referred to in 1 and 2 shall be jointly referred to as the "Parties"
and each as a "Party".
RECITALS:
(A) The Association is currently the majority shareholder of the Company,
holding approximately 37% of all Common Shares currently in issue and 100%
of the Preferred Shares currently in issue.
(B) The Association intends to offer and sell part of the Common Shares it
holds directly in an offering of Common Shares outside the United States of
America (the "International Equity Offering") and to use the proceeds to
repay part of its outstanding debt.
(C) In addition, the Association and the Company have agreed that the Company
shall repurchase a number of Common Shares from the Association. The
Parties intend that the Common Shares so to be repurchased be forthwith
sold and placed (herplaatst) by the Company in an offering of Common Shares
(the "Primary Equity Offering"). The net proceeds thereof shall be for the
benefit of the Association. The Association is prepared to undertake to
apply an amount equal to EUR 10 per Common Share comprised in the Primary
Equity Offering towards a share premium payment in cash by the Association
in respect of the Preferred Shares it holds.
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(D) Furthermore, the Parties intend to effect a cancellation by the Company of
part of the Preferred Shares held by the Association. The Parties intend
that the number of Preferred Shares involved in this cancellation be such
that, also taking account of the aforementioned share premium payment in
respect of Preferred Shares, the total amount of capital paid-in (nominal
value plus share premium) on each Preferred Share remaining outstanding
will be equal or close to the current market value of a Common Share.
(E) The Association currently holds conditional option rights to Preferred
Shares pursuant to an agreement dated 14 August 1995 (as amended) (the
"Preferred Shares Option Arrangement"), which arrangement purports to
protect the Association against dilution of its shareholding in the Company
to 50% or less under certain circumstances. In connection with the other
transactions contemplated by this Agreement, the Parties also intend to
amend the Preferred Shares Option Arrangement, thereby reducing the
Association's option rights.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following terms shall have the following meaning:
"Common Shares" means common shares in the capital of the Company, having a
nominal value of EUR 0.12 each.
"International Equity Offering" has the meaning ascribed to that term in
Recital (B) hereof.
"Preferred Shares" means preferred shares in the capital of the Company,
having a nominal value of EUR 0.12 each.
"Preferred Shares Option Arrangement" has the meaning ascribed to that term
in Recital (E) hereof.
"Primary Equity Offering" has the meaning ascribed to that term in Recital
(C) hereof.
"Shares" means shares in the capital of the Company. Unless the contrary is
apparent, this shall include both Common Shares and Preferred Shares.
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"Tranche I Shares" and "Tranche II Shares" have the respective meanings
ascribed to those terms in Clause 2.1.
1.2 Where applicable and except insofar as the context otherwise requires, in
this Agreement:
(a) terms denoting the singular shall include the plural and visa versa;
(b) terms denoting the masculine gender shall include the feminine gender;
(c) a reference to any enactment shall be construed as a reference to that
enactment as from time to time amended, extended or re-enacted.
1.3 Section headings and other headings in this Agreement are inserted for ease
of reference only and do not form part of this Agreement for the purpose of
interpretation.
2. SALE AND REPURCHASE OF COMMON SHARES
2.1 The Parties hereby agree to the following transactions:
(i) 143,600,000 Common Shares (the "Tranche I Shares") will be offered and
sold by the Association in the International Equity Offering in
accordance with the following provisions of this Clause 2; and
(ii) 206,400,000 Common Shares (the "Tranche II Shares") are hereby sold by
the Association to the Company, and likewise purchased by the Company
from the Association, and shall be sold and placed by the Company in
the Primary Equity Offering in accordance with the following
provisions of this Clause 2.
2.2 The Primary Equity Offering and the International Equity Offering will be
effected concurrently, in close consultation between the Company and the
Association and in accordance with an underwriting agreement to which both
the Association and the Company will be parties and which will cover both
the Primary Equity Offering and the International Equity Offering. The
International Equity Offering will be effected by the Association through a
private placement outside the US in reliance on Regulation S under the US
Securities Act of 1933.
2.3 On closing of the Primary Equity Offering and the International Equity
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Offering, the Association shall transfer the Tranche I Shares and the
Tranche II Shares to the underwriters in such amounts of shares in bearer
form and shares in registered form, respectively, as the Parties shall
timely determine in accordance with the terms of the underwriting
agreement. Shares in bearer form shall be so transferred from the
Association's following securities account:
securities account number: 457255951
in the name of the Association
at ABN AMRO Bank in Amsterdam
The Tranche II Shares will be so transferred on behalf of the Company.
2.4 The costs connected to the International Equity Offering shall be for the
account of the Association.
2.5 The costs connected to the Primary Equity Offering shall be for the account
of the Association and the proceeds thereof less said costs shall
hereinafter be referred to as the net proceeds of the Primary Equity
Offering.
The purchase price of the Tranche II Shares due by the Company to the
Association shall be equal to the net proceeds of the Primary Equity
Offering and shall be settled between the Company and the Association in
accordance with the provisions in Clause 3.1.
The Tranche II Shares shall be for the account and risk of the Association
until closing of the Primary Equity Offering.
2.6 The Association warrants to the Company that the following is correct:
(a) at the time the Tranche I Shares and the Tranche II Shares are
transferred to the underwriters pursuant to Clause 2.3, the
Association will hold full and unencumbered title to all shares
concerned;
(b) at the time the Association will effect any transfer of Common Shares
under this Agreement, it will not have been deprived of the authority
to transfer shares in the capital of the Company by virtue of Section
2:22a, subsection 1, of the Dutch Civil Code;
(c) at the time the Association will effect any transfer of Common Shares
under this Agreement, the shares concerned will not be subject to
rights of third parties or obligations to transfer to third parties or
claims based on contracts of any nature; and
(d) by the transfer of Common Shares in accordance with the terms of this
Agreement, the full and unencumbered title to the shares concerned
will
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be transferred to the transferee or transferees concerned.
2.7 The sale and closing of the Primary Equity Offering and the International
Equity Offering will shall be contingent on one another The repurchase of
the Tranche II Shares shall be contingent upon sale and closing of the
Primary Equity Offering and the International Equity Offering.
3. SHARE PREMIUM PAYMENTS ON PREFERRED SHARES
3.1 The Association shall make a share premium payment in cash in respect of
the Preferred Shares it holds in an amount equal to EUR 10 per Common Share
comprised in the Primary Equity Offering. This amount shall be paid, to the
extent possible, by setting-off against the purchase price for the Tranche
II Shares due from the Company to the Association as the relevant funds
become available from the Primary Equity Offering. The remainder of the
share premium payment due from the Association shall be effected by it in
cash on the closing date of the Primary Equity Offering and the
International Equity Offering.
3.2 For the purpose of determining the financial rights attached to the
Preferred Shares pursuant to the Company's articles of association as
currently in force, in particular the provisions in article 6 (with respect
to cancellation of shares), article 24.3 (entitlement to profits) and
article 26.4 (entitlement to liquidation surplus), the amount of share
premium paid in accordance with the provisions of Clause 3.1 shall be
considered paid on the Preferred Shares at the time the set-off
contemplated by Clause 3.1 takes effect. In respect of the Company's
financial year 2002, the preferred dividend (expressed in a percentage to
be determined on the basis of article 24.3 of the Company's articles of
association) will for the period 1 January 2002 through 22 September 2002
be calculated over euro 0.12, and for the remainder of the year 2002 over
euro 0.12 plus the amount of share premium paid by the Association pursuant
to Clause 3.1.
3.3 Capital tax due in connection with the foregoing share premium payment
shall be for the account of the Company.
3.4 On the closing date of the Primary Equity Offering and the International
Equity Offering, the Parties will mutually confirm the repurchase price for
the Tranche II Shares in writing.
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4. CANCELLATION OF PREFERRED SHARES
4.1 Subject to the provision in Clause 4.3, the Parties agree that the Company
shall cancel 228,320,000 Preferred Shares and that the equity rights
(including nominal value) attached to the Preferred Shares so cancelled
shall accrue to the Preferred Shares remaining outstanding. The Parties
acknowledge that, as a result of the foregoing transactions, (i) the
aggregate financial rights attached to the Preferred Shares will not
change, but concentrated in a lesser number of Preferred Shares remaining
outstanding; and (ii) on the basis of the current and recent market prices
of the Common Shares, the voting rights/value ratio of the Preferred Shares
remaining outstanding will become equal or close to the voting rights/value
ratio of the Common Shares. Clause 3.3 shall apply by analogy.
If, for any reason a cancellation of said number of Preferred Shares cannot
be achieved, the Parties intend to use any other technique available to
achieve materially the same result.
4.2 The Parties acknowledge that, as a result of the transactions contemplated
by Clause 4.1 and the other transactions contemplated in this Agreement,
the Association will reduce its shareholding in the Company from
approximately 52% to approximately 23.2 %.
4.3 The Parties intend to effect the transactions contemplated in Clause 4.1
immediately after the Company's annual shareholders meeting of 2003 (which
term may be extended by the Company for any special reason the Company may
deem to justify such extension). The agreement set forth in Clause 4.1 is
conditional upon further changes becoming effective to the governance
structure of the Company and its group, if proposed by the management and
supervisory boards of the Company at or prior to the Company's annual
general meeting of shareholders of 2003 (unless that term is extended in
accordance with the foregoing) (and whether or not requiring the approval
from the general meeting of shareholders).
4.4 The Parties mutually undertake that they will negotiate and implement an
amendment to the Preferred Shares Option Arrangement to the effect that the
anti-dilution protection granted to the Association thereunder will be
limited to a level not to exceed the level of the Association's voting
rights resulting from the transactions contemplated by Clause 2.
5. NOTICES
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5.1 All notices and other communications pursuant to this Agreement shall be
sent in writing by registered letter or recorded delivery or by letter
delivered by courier or by fax or in any other manner agreed by the
Parties, to the following addresses (or such other address as the Party
concerned shall have communicated in a manner as referred to herein):
To the Company: AEGON N.V.
Attn. Mr. E. Lagendijk, general counsel
AEGONplein 50,
2591 TV The Hague, The Netherlands
To the Association: Vereniging AEGON
Attn. Mr. P. Tuit, secretary to the Association
AEGONplein 50,
2591 TV The Hague, The Netherlands
5.2 A notice or other communication sent under this Agreement shall be deemed
to be received if:
(a) sent by registered letter: the second day after the registered letter
is sent;
(b) sent by recorded delivery: the date recorded on the receipt of
delivery;
(c) delivered by courier: the date of delivery;
(d) sent by fax provided the fax message is sent by recorded delivery: the
date recorded on the receipt showing receipt of the fax.
6. GOVERNING LAW; RESOLUTION OF DISPUTES
6.1 This Agreement shall be governed and construed in accordance with the laws
of the Netherlands (without reference to Dutch rules of conflicts of laws).
6.2 The Parties shall use their best endeavours to settle any possible disputes
in an amicable way. In the event conciliation fails, all disputes in
connection with this Agreement or further agreements resulting hereof shall
be submitted to the exclusive jurisdiction of the competent court of the
Netherlands.
7. MISCELLANEOUS
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7.1 Public announcements. The Parties shall consult with each other before
issuing any press release or otherwise making any public statement with
respect to this Agreement and the transactions contemplated hereunder.
Subject to mandatory requirements of applicable law, no party shall issue
any such press release or make any such public statement without the prior
consent of the other and will in any event consult with the others
concerning the text of any such public statement which the Party issuing
such statement may be required to make by mandatory requirements of
applicable law.
7.2 Assignment. This Agreement and the provisions hereof shall be binding upon
and shall inure to the benefit of the Parties and their respective
successors and permitted assigns. Neither this Agreement nor any rights or
obligations hereunder shall be assigned or delegated by any Party without
the prior written consent of the others.
7.3 Further assurances. At any time, and from time to time after the date
hereof, each of the Parties shall, without further consideration, execute
and deliver such additional contracts or other documents as shall
reasonably be requested by any other Party in order to carry out the
provisions of this Agreement and the transactions contemplated hereby.
7.4 Official language. The official language of this Agreement shall be the
English language and all notices and other communications hereunder shall
be in English.
7.5 Integration of schedules, etc.; entire understanding. This Agreement and
the documents referred to herein or delivered pursuant hereto (including,
without limitation, the schedules and annexes) contain the entire
understanding of the Parties with respect to their subject matter and
except as provided otherwise therein supersede all prior agreements and
understandings between the Parties with respect to that subject matter.
7.6 Amendment; waiver of provisions. This Agreement may be amended only by
written instrument signed by all Parties. No provisions of this Agreement
may be extended or waived orally, but only by a written instrument signed
by the Party against whom enforcement of such extension or waiver is
sought.
7.7 Partial invalidity. If any one or more of the provisions of this Agreement
or any portion thereof shall be invalid, illegal or unenforceable in any
respect, this Agreement shall be ineffective only as to such provision and
only as to the extent of such invalidity, illegality or unenforceability,
and such invalidity,
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illegality or unenforceability shall not in any way affect or impair the
validity, legality and enforceability of any other provision contained
herein. The Parties agree that each of them shall endeavour in good faith
negotiations to replace any such invalid, illegal or unenforceable
provision(s) (or such portions thereof) with such valid, legal and
enforceable provision(s) the economic effect of which is as close as
possible of that of the invalid, illegal or unenforceable provision(s).
7.8 Counterparts. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be deemed to be an
original and all of which together shall be deemed to be one and the same
agreement.
7.9 No rescission. Each Party hereby waives any right it may have to rescind
('ontbinden') or annul ('vernietigen'), or to seek the rescission or
annulment, of this Agreement for any reason.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
on the date indicated in the heading of the Agreement.
/s/ J.B.M. Streppel /s/ M. van Klatwijk
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AEGON N.V. AEGON N.V.
By: J.B.M. Streppel By: M. van Klatwijk
/s/ P.P. Kohnstamm
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Vereniging AEGON
By: P.P. Kohnstamm