Elsevier/NV/Statwijz/1999/Stw ENG 1999
991.0039
CMS/hv
DEED OF AMENDMENT OF THE ARTICLES OF ASSOCIATION
OF ELSEVIER N.V.
This fifteenth day of April nineteen hundred and ninety-nine, there appeared
before me, Christiaan Maria Stokkermans, civil law notary in Amsterdam:
Mr. Paul Jacob Arjan Goedvolk, civil lawyer, living at Stuurmankade 192, 1019 WC
Amsterdam, born in Rotterdam on the twenty-fifth day of October nineteen hundred
and seventy-one, unmarried and not registered as non-marital partner under Dutch
law, identified by his passport with number: N16281202.
The person appearing declared the following:
At the general meeting of shareholders of the Company (as defined hereinafter),
held on the fourteenth day of April nineteen hundred and ninety-nine, it was
resolved to amend and completely readopt the Articles of Association of Elsevier
N.V., a public company under Dutch law ('naamloze vennootschap'), having its
official seat in Amsterdam and its office address at Van de Sande
Bakhuijzenstraat 4, 1061 AG Amsterdam (the "Company"), as well as to authorize
each Executive Board member, with the right of substitution, to have this deed
executed. The adoption of such resolutions is evidenced by a notarial statement
attached to this deed (Annex). By virtue of the aforementioned substitution the
appearer is authorized to execute this deed, which appears from a written power
of attorney, annexed to this deed (Annex). Adequate proof of the existence of
the proxy has been presented to me, civil law notary.
The Articles of Association of the Company were last amended by a deed, executed
on the nineteenth day of June nineteen hundred and ninety-seven before a deputy
of Albertus Gerardus van Solinge, former civil law notary in Amsterdam, with
respect to which a ministerial Statement of No Objections was granted on the
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thirteenth day of June nineteen hundred and ninety-seven, under number N.V.
208.889.
In implementing the aforementioned resolution, the Articles of Association of
the Company are hereby amended and completely readopted as follows.
CHAPTER I.
Article 1. Definitions.
In these Articles of Association the following words shall have the following
meanings:
a. a "Share":
a Share in the capital of the Company; unless the contrary is apparent,
this shall include each ordinary Share and each class R Share;
b. a "Shareholder":
a holder of one or more Shares; unless the contrary is apparent, this
shall include each holder of ordinary Shares and each holder of class R
Shares;
c. the "Shareholders' Body":
the body of the Company consisting of Shareholders entitled to vote,
together with pledgees and usufructuaries to whom the voting rights
attributable to Shares accrue;
d. a "General Meeting of Shareholders":
a meeting of Shareholders and other persons entitled to attend meetings
of Shareholders which is convened in accordance with the relevant
provisions of these Articles of Association;
e. a "Subsidiary":
a subsidiary of the Company as referred to in Section 2:24a of the Dutch
Civil Code;
f. the "Combined Board":
the body of the Company consisting of all Supervisory Board members in
office and all Executive Board members in office;
g. a "Group Company":
a group company of the Company as referred to in Section 2:24b of the
Dutch Civil Code;
h. the "Supervisory Board":
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the supervisory board of the Company;
i. the "Executive Board":
the executive board of the Company;
j. "in writing":
by letter, by telecopier, by e-mail or by message which is transmitted
via any other current means of communication and which can be received in
the written form;
k. the "Company Secretary":
the person referred to as such in Article 23 of these Articles of
Association (including his deputy, designated in accordance with the
provisions of Article 23.4 of these Articles of Association).
CHAPTER II. NAME, OFFICIAL SEAT AND OBJECTS.
Article 2. Name and Official Seat.
2.1 The Company's name is:
Elsevier N.V.
2.2 The official seat of the Company is in Amsterdam.
Article 3. Objects.
The objects of the Company are to participate in and to administer, manage and
finance companies, as well as to render services to enterprises, in particular
insofar as these enterprises are carried out by Reed Elsevier P.L.C. and
Elsevier Reed Finance B.V. and by companies with which these companies form a
group, as well as the performance of obligations deriving from the Governing
Agreement entered into between Reed International P.L.C., having its registered
office in London, and the Company, which first came into effect on the first day
of January nineteen hundred and ninety-three and which was amended in april
nineteen hundred and ninety-nine, with due observance of all changes which,
since the last mentioned date, have been or will be made thereto, and from all
agreements relating thereto and to which Reed International P.L.C. and the
Company are parties, or shall, from time to time, be parties.
CHAPTER III. AUTHORIZED CAPITAL, SHARES, SHARE CERTIFICATES AND REGISTER OF
SHAREHOLDERS.
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Article 4. Authorized Capital and Shares.
4.1 The authorized capital of the Company is one hundred and forty-four
million euro (EUR 144,000,000).
4.2 It is divided into two billion one hundred million (2,100,000,000)
ordinary Shares with a nominal value of six eurocent (EUR 0.06) each and
thirty million (30,000,000) class R Shares with a nominal value of sixty
eurocent (EUR 0.60) each, provided that at each time one or more class R
Shares are, in accordance with the provisions of Article 4.4 of these
Articles of Association, converted into ordinary Shares, the number of
ordinary Shares of the authorized capital shall be increased by ten times
the number of converted class R Shares, decreasing at the same time the
number of class R Shares of the authorized capital by such number of
class R Shares as are converted. An alteration of the number of each
class of Shares in which the authorized capital is divided shall be
notified to the Commercial Register within eight days.
4.3 The ordinary Shares shall, at the option of the Shareholder, be
registered or made out to bearer. All class R Shares are registered in
the name of the holders. No share certificates shall be issued for
registered Shares.
4.4 Each class R Share may at the option of the holder thereof be converted
into ten ordinary Shares. The holder of a class R Share wishing to
convert one or more of his class R Shares into ordinary Shares shall
notify the Executive Board in writing of his wish to do so. Such written
notice shall state the number of class R Shares involved, whether the
ordinary Shares shall be registered or made out to bearer and the date
per which the conversion is to become effective, being a date not earlier
than seven business days after the date on which the written notice is
received by the Executive Board. At the request of the Shareholder
concerned, the Executive Board shall immediately acknowledge receipt of
the written notice. The conversion of the class R Shares referred to in
the written notice into ordinary Shares shall be effective by operation
of law, as of the date
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specified in the written notice. As from the time of conversion, the
ordinary Share into which the class R Shares are converted shall
attribute the same rights as the other ordinary Shares.
Article 5. Share Certificates.
5.1 Share certificates shall be issued for bearer Shares. They shall be
numbered in the manner to be determined by the Executive Board.
5.2 Apart from single share certificates, the Company may issue multiple
share certificates. At the request of the person entitled thereto,
multiple share certificates shall be issued for such number of ordinary
Shares as the Executive Board shall decide.
5.3 The share certificates shall be signed by a member of the Supervisory
Board and a member of the Executive Board and such signatures will be
valid if reproduced on the certificates in print. One or both of these
signatures may also be replaced by a distinctive company stamp, provided
by the Company or under its supervision. If there is at least one
original signature, no company stamp as described hereinabove is
required. The Executive Board may decide that share certificates must be
co-signed by one or more persons to be designated by the Executive Board.
5.4 Each share certificate shall be provided with a simplified dividend
sheet, without dividend coupons and talon. Such share certificates shall
be referred to hereinafter as CF-certificates.
5.5 A simplified dividend sheet (hereinafter referred to as a CF-dividend
sheet) may only be issued by the Company to a custodian to be designated
by the Shareholder. This custodian may only be designated from a group of
custodians which are accepted as such by the Company and who provide for
the custody of the CF-dividend sheets to be administered by an
organisation independent of the Company but accepted by it. These
custodians shall undertake not to hand-over the CF-dividend sheets in
their custody to any persons other than custodians accepted by the
Company or the Company itself.
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5.6 The Company shall not charge any fee for the issuance of share
certificates.
5.7 The Company has the right to set further rules with respect to the
issuance of CF-certificates.
Article 6. Conversion of Shares; Exchange of Share Certificates.
6.1 At the Shareholder's request, bearer ordinary Shares may be converted
into registered ordinary Shares and vice versa.
6.2 Conversion of bearer ordinary Shares into registered ordinary Shares
shall be effected by the surrendering of share certificates and
simultaneous entry in the Company's register of Shareholders. The
dividend sheets belonging thereto must also be surrendered.
6.3 Conversion of registered ordinary Shares into bearer ordinary Shares
shall be effected at the written request of the Shareholder. If a
usufruct or a right of pledge is created in a Share, the cooperation of
the usufructuary or pledgee shall be required. At the issuance of share
certificates the entry in the register of Shareholders shall be deleted.
6.4 At the request of the Shareholder, single share certificates may be
exchanged for multiple share certificates, and vice versa, each time up
to the same nominal value, with due observance of the provisions of
Article 5.2 of these Articles of Association.
6.5 The Company shall not charge any fee for conversion of Shares or exchange
of share certificates.
6.6 The Executive Board may provide that a request as referred to above in
this Article 6 must be made by filling in and signing a form to be made
available for that purpose by the Company.
Article 7. Duplicates of Share Certificates and Dividend Sheets.
7.1 If one or more share certificates or dividend sheets are lost or have
been damaged, stolen or destroyed, the Executive Board may, on conditions
to be stipulated by it, issue duplicates of share certificates or
dividend sheets to the owner.
7.2 The issue of such duplicates shall render the corresponding original
documents null and void in respect of the Company.
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Article 8. Register of Shareholders.
8.1 The Executive Board shall keep a register of Shareholders in which the
names and addresses of all holders of registered Shares shall be
recorded, indicating the class of Shares. The names and addresses of
usufructuaries and pledgees of registered Shares shall also be entered in
the register, specifying which of the rights attributable to the Shares
accrue to them in accordance with Article 17.2 of these Articles of
Association. The register shall be accurately kept and maintained on a
regular basis.
8.2 Each holder of registered Shares, each usufructuary and each pledgee of
registered Shares shall be obliged to notify his address to the Company
in writing.
8.3 The Executive Board shall set rules with respect to the signing of
registrations and entries in the register of Shareholders.
8.4 On application by a Shareholder, a usufructuary or a pledgee, the
Executive Board shall furnish an extract from the register free of
charge, in so far as it relates to his right to a registered Share. If a
usufruct has been created in the Share or if the Share is pledged, the
extract shall state who has the rights referred to in Article 17.2 of
these Articles of Association.
8.5 The Executive Board shall make the register available in the Company's
office for the inspection of the Shareholders and the usufructuaries and
pledgees of Shares to whom the voting rights accrue. The preceding
sentence shall not apply to that part of the register which is kept
outside the Netherlands in compliance with applicable legislation or
pursuant to the rules of a stock exchange.
CHAPTER IV. ISSUANCE OF SHARES.
Article 9. Resolution to Issue; Conditions of Issuance.
9.1 Shares may be issued pursuant to a resolution of the Shareholders' Body.
This competence shall concern all non-issued Shares of the Company's
authorized capital, except insofar the competence to issue Shares accrues
to the Combined Board in accordance with Article 9.2 hereof.
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9.2 Shares may be issued pursuant to a resolution of the Combined Board, if
and insofar as that board is designated competent to do so by the
Shareholders' Body. Such designation can be made each time for a maximum
period of five years and can be extended each time for a maximum period
of five years. A resolution to make such designation must stipulate the
aggregate nominal value up to which Shares may be issued pursuant to a
resolution of the Combined Board; this aggregate nominal value cannot
exceed one-third of the sum of (i) the Company's issued capital at the
time the resolution to make the designation is adopted and (ii) the
aggregate nominal value of rights, outstanding at such time, granted by
the Company to subscribe for Shares. A resolution of the Shareholders'
Body to designate the Combined Board as a body of the Company competent
to issue Shares cannot be withdrawn, unless provided otherwise in the
resolution to make the designation.
9.3 A resolution of the Shareholders' Body to issue Shares or to designate
another body of the Company competent to do so can only be adopted at the
proposal of the Combined Board.
9.4 Within eight days after a resolution of the Shareholders' Body to issue
Shares or to designate another body of the Company competent to issue
Shares, the complete text of the resolution concerned shall be deposited
at the office of the Commercial Register. Each change to or withdrawal of
the designation shall be notified to the Commercial Register.
9.5 Within eight days after each issuance of Shares, notification thereof
shall be submitted to the office of the Commercial Register specifying
the number and class of the Shares issued.
9.6 The foregoing provisions of this Article 9 shall apply by analogy to the
granting of rights to subscribe for Shares, but shall not apply (with the
exception of Article 9.4) to the issuance of Shares to a person
exercising a right to subscribe for Shares previously granted.
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9.7 The body of the Company resolving to issue Shares shall stipulate the
issue price and the other conditions of issuance in the resolution to
issue.
9.8 If the aggregate nominal value of the Shares to be issued has been
announced and subscriptions are made for a lower aggregate nominal value,
issuance for such lower aggregate nominal value shall only be effected if
the conditions of issuance expressly allow so.
Article 10. Pre-emptive Rights.
10.1 Upon the issuance of Shares, each holder of ordinary Shares and each
holder of class R Shares shall have pre-emptive rights in proportion to
the aggregate nominal value of his Shares. Shares issued to holders of
ordinary Shares shall be ordinary Shares; Shares issued to holders of
class R Shares shall be class R Shares. Insofar as holders of class R
Shares do not make use of their pre-emptive rights, no class R Shares
shall be issued. A Shareholder shall not have a pre-emptive right in
respect of Shares issued against a non-cash contribution. He shall also
not have a pre-emptive right in respect of Shares issued to employees of
the Company or of a Group Company.
10.2 The issuance of Shares with pre-emptive rights and the period during
which such rights can be exercised shall be announced in the Dutch State
Gazette and in a nationally distributed daily newspaper.
10.3 Pre-emptive rights can be exercised during a period of at least two weeks
from the day of announcement in the Dutch State Gazette.
10.4 Prior to each single issuance, the pre-emptive rights may be restricted
or excluded by a resolution of the Shareholders' Body. However, with
respect to an issue of Shares pursuant to a resolution of the Combined
Board, the pre-emptive rights can be restricted or excluded pursuant to a
resolution of the Combined Board if and insofar as that board is
designated competent to do so by the Shareholders' Body. The provisions
of Articles 9.1, 9.2 and 9.3 of these Articles of Association shall
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apply by analogy. Such competence of the Combined Board shall end on the
date on which its competence to issue Shares ends, whatever the
circumstances.
10.5 A resolution of the Shareholders' Body to restrict or exclude the
pre-emptive rights or to designate another body of the Company competent
to do so can only be adopted at the proposal of the Combined Board.
10.6 If a proposal is made to the Shareholders' Body to restrict or exclude
the pre-emptive rights, the reason for the proposal and the choice of the
intended issue price must be set forth in the proposal in writing.
10.7 A resolution of the Shareholders' Body to restrict or to exclude the
pre-emptive rights or to designate another body of the Company competent
to do so shall require a majority of not less than two-thirds of the
votes cast, if less than one-half of the Company's issued capital is
represented at the meeting. Within eight days after adoption of the
resolution, the complete text thereof must be deposited at the office of
the Commercial Register.
10.8 When rights are granted to subscribe for Shares, the Shareholders shall
have pre-emptive rights in respect thereof; the foregoing provisions of
this Article 10 shall apply by analogy. Shareholders shall have no
pre-emptive rights in respect of Shares issued to a person exercising a
right to subscribe for Shares previously granted.
Article 11. Payment on Shares.
11.1 Upon issuance of a Share, the full nominal value thereof must be paid-up,
as well as the difference between the two amounts if the Share is
subscribed for at a higher price, without prejudice to the provisions of
Section 2:80, subsection 2, of the Dutch Civil Code.
11.2 Payment for a Share must be made in cash insofar as no non-cash
contribution has been agreed on.
11.3 The Executive Board shall be allowed to enter into legal acts relating to
non-cash contributions and the other legal acts
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referred to in Section 2:94 of the Dutch Civil Code without the prior
approval of the Shareholders' Body, but only pursuant to a resolution of
the Combined Board.
11.4 Payments for Shares and non-cash contributions shall furthermore be
subject to the provisions of Sections 2:80, 2:80a, 2:80b and 2:94b of the
Dutch Civil Code.
CHAPTER V. OWN SHARES; REDUCTION OF THE ISSUED CAPITAL.
Article 12. Own Shares.
12.1 When issuing Shares, the Company may not subscribe for its own Shares.
12.2 The Company shall be entitled to acquire its own fully paid-up Shares or
depositary receipts thereof, provided that either no valuable
consideration is given or that:
a. the Company's equity after the deduction of the acquisition price, is
not less than the sum of the paid-up and called-up part of the issued
capital and the reserves which must be maintained by virtue of the
law, and
b. the nominal value of the Shares which the Company acquires, holds,
holds in pledge or which are held by a Subsidiary, does not exceed
one-tenth of the Company's issued capital.
For the purpose of applying the provision under a., the amount of equity
shown in the last adopted balance sheet, reduced by the acquisition price
of Shares or depositary receipts thereof and further reduced by
distributions of profits or at the expense of reserves to others, which
have become due from the Company and its Subsidiaries after the balance
sheet date, shall be decisive. An acquisition in accordance with this
Article 12.2 shall not be permitted, if more than six months have elapsed
after the end of a financial year without the annual accounts having been
adopted.
12.3 Acquisition for valuable consideration shall be permitted only if the
Shareholders' Body has authorized the Executive Board to do so. Such
authorization shall be valid for a period not exceeding eighteen months.
The Shareholders' Body shall
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stipulate in the authorization the number of Shares or depositary
receipts thereof which may be acquired, the manner in which they may be
acquired and the limits within which the price must be set. Furthermore,
the approval of the Combined Board shall be required for such
acquisition.
12.4 The Company may, without authorization by the Shareholders' Body, acquire
its own Shares or depositary receipts thereof for the purpose of
transferring such Shares or depositary receipts to employees of the
Company or of a Group Company under a scheme applicable to such
employees, provided such Shares or depositary receipts thereof are quoted
on the price list of a stock exchange.
12.5 Articles 12.2 and 12.3 hereof do not apply to Shares or depositary
receipts thereof which the Company acquires by universal succession in
title.
12.6 In the Shareholders' Body no voting rights may be exercised for any Share
held by the Company or by a Subsidiary, nor for any Share for which the
Company or a Subsidiary holds the depositary receipts. However,
usufructuaries and pledgees of Shares owned by the Company or a
Subsidiary are not excluded from exercising the voting rights, if the
usufruct or pledge was created before the Share was owned by the Company
or a Subsidiary. The Company or a Subsidiary may not exercise voting
rights for Shares in respect of which it holds a usufruct or pledge.
12.7 The Executive Board shall be authorized to alienate Shares held by the
Company or depositary receipts thereof, but only with the approval of the
Combined Board.
12.8 Own Shares and depositary receipts thereof shall furthermore be subject
to the provisions of Sections 2:89a, 2:95, 2:98, 2:98a, 2:98b, 2:98c,
2:98d and 2:118 of the Dutch Civil Code.
Article 13. Financial Assistance.
The Company may not give loans, give security, guarantee the price, or in any
other way answer to or bind itself either severally or jointly for or on behalf
of third parties, with a view to a subscription
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for or an acquisition of Shares or depositary receipts thereof by others. This
prohibition shall not apply if the Shares or depositary receipts thereof are
subscribed for or acquired by or for employees of the Company or of a Group
Company. The prohibition and exception provided for in this Article 13 shall
also apply to Subsidiaries.
Article 14. Reduction of the Issued Capital.
14.1 The Shareholders' Body may, but only at the proposal of the Combined
Board, resolve to reduce the Company's issued capital:
a. by cancellation of Shares; or
b. by reducing the nominal value of Shares by amendment of the Articles
of Association,
provided that the issued capital or the paid-up part of it will not drop
below the amount prescribed by Section 2:67 of the Dutch Civil Code. The
Shares in respect of which such resolution is passed must be designated
therein and provisions for the implementation of such resolution must be
made therein.
14.2 A resolution to cancel may only relate to Shares held by the Company
itself or for which it holds the depositary receipts.
14.3 A reduction of the nominal value of Shares without repayment must be
effected in proportion to all Shares of the same class. This principle
may be deviated from with the consent of all Shareholders concerned.
14.4 A partial repayment on Shares shall be possible only on the
implementation of a resolution to reduce the nominal value of such
Shares. Such repayment must be effected in proportion to all Shares. This
principle may be deviated from with the consent of all Shareholders
concerned.
14.5 A resolution of the Shareholders' Body to reduce the Company's issued
capital requires a prior or simultaneous resolution of approval by each
group of Shareholders of the same class whose rights are prejudiced.
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14.6 For a resolution of the Shareholders' Body to reduce the Company's issued
capital, a majority of at least two-thirds of the votes cast shall be
required if less than one-half of the Company's issued capital is
represented at the meeting. This provision shall apply by analogy to a
resolution of approval as referred to in Article 14.5 hereof.
14.7 The notice convening a General Meeting of Shareholders at which a
resolution referred to in this Article 14 will be passed shall state the
object of the reduction of capital and the manner of implementation. The
persons giving notice of such meeting must simultaneously deposit at the
office of the Company and in Amsterdam at a place to be determined in the
notice, a copy of such proposal, containing the complete text of the
proposed reduction of capital for the inspection of each Shareholder
until the end of the meeting. Each Shareholder as well as each
usufructuary and each pledgee of Shares to whom the voting rights accrue
may obtain a copy of this proposal free of charge.
14.8 A reduction of the issued capital of the Company shall furthermore be
subject to the provisions of Sections 2:99 and 2:100 of the Dutch Civil
Code.
Article 15. Shares Belonging to a Community of Property.
When a Share belongs to a community of property, the Company shall allow only
one person, designated by the persons concerned, to exercise the rights
attributable to such Share.
CHAPTER VI. TRANSFER OF REGISTERED SHARES; USUFRUCT IN SHARES AND PLEDGING OF
SHARES; DEPOSITARY RECEIPTS FOR SHARES.
Article 16. Transfer of Registered Shares.
16.1 The transfer of a registered Share shall require an instrument intended
for such purpose and, save when the Company itself is a party to such
legal act, the written acknowledgement by the Company of the transfer.
The acknowledgement shall be made in the instrument or by a dated
statement of acknowledgement on the instrument or on a copy or extract
thereof signed as a true copy by a civil law notary or the
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transferor. Official service of such instrument or such copy or extract
on the Company shall be considered to have the same effect as an
acknowledgement.
16.2 The provisions of Article 16.1 hereof also apply to the transfer of a
registered Share in the event of an execution as well as to the transfer
of a registered Share in consequence of the partition of a community of
property.
Article 17. Usufruct in Shares and Pledging of Shares; Depositary Receipts for
Shares.
17.1 The provisions of Article 16.1 of these Articles of Association shall
apply by analogy to the creation or transfer of a usufruct and to the
pledging of registered Shares. Registered Shares may also be pledged
without acknowledgement by or service on the Company. In such case,
Section 3:239 of the Dutch Civil Code shall apply by analogy,
substituting acknowledgement by or service on the Company for the
notification referred to in subsection 3 of said statutory provision.
17.2 The Shareholder shall be entitled to exercise the voting rights
attributable to Shares in which a usufruct has been created or which have
been pledged. However, the voting rights shall accrue to the usufructuary
or pledgee if this has been stipulated at the creation of the usufruct or
pledge. The Shareholder who has no voting rights and the usufructuary or
pledgee who does have the voting rights shall have the rights which the
law confers upon holders of depositary receipts issued for Shares with
the Company's co-operation. The rights referred to in the foregoing
sentence shall not accrue to the usufructuary or pledgee of Shares who
has no voting rights.
17.3 The usufructuary shall have the rights inherent in the Share relating to
the acquisition of Shares, it being understood that he shall have to
compensate the Shareholder for the value of these rights insofar as the
usufructuary is not entitled thereto by virtue of his right of usufruct.
17.4 The Company may cooperate in the issuance of depositary receipts for
ordinary Shares, but shall not cooperate in the
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issuance of depositary receipts for class R Shares. Holders of depositary
receipts issued for ordinary Shares with the Company's cooperation, shall
have the rights conferred to them by law, also to the extent such rights
are not expressly referred to in these Articles of Association.
CHAPTER VII. THE EXECUTIVE BOARD.
Article 18. Executive Board Members.
18.1 The Executive Board shall consist of at most five members. The number of
Executive Board members shall be determined by the Combined Board with
due observance of this maximum.
18.2 Executive Board members shall be appointed by the Shareholders' Body. For
each seat on the Executive Board to be filled, the Combined Board shall
make one or more proposals. A resolution of the Shareholders' Body to
appoint an Executive Board member other than in accordance with a
proposal of the Combined Board shall require a majority of at least
two-thirds of the votes cast if less than one-half of the Company's
issued capital is represented at the meeting. At a General Meeting of
Shareholders, votes can only be taken on candidates whose names are
stated for that purpose in the agenda of the meeting. At the same time
notice of the meeting is given, the particulars referred to in Article
18.3 hereof shall be deposited at the Company's office for inspection by
Shareholders as well as usufructuaries and pledgees of Shares to whom the
voting rights accrue, until the end of the meeting, and this shall be
stated in the notice.
18.3 When a proposal or recommendation for appointment of a person as an
Executive Board member is made, the following particulars shall be
stated: his age and the position he holds or has held, insofar as these
are relevant for the performance of the duties of an Executive Board
member. The proposal or recommendation must state the reasons on which it
is based.
18.4 Each member of the Executive Board may be suspended or dismissed at any
time by the Shareholders' Body.
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18.5 Each member of the Executive Board can, at any time, be suspended by the
Supervisory Board. Such suspension may be discontinued by the
Shareholders' Body at any time.
18.6 Any suspension may be extended one or more times, but may not last longer
than three months in the aggregate. If at the end of that period no
decision has been taken on termination of the suspension, or on
dismissal, the suspension shall end.
18.7 An Executive Board member shall retire not later than on the day on which
the first General Meeting of Shareholders is held following the lapse of
three years since his appointment. The Executive Board members shall
retire periodically in accordance with a rotation plan to be drawn up by
the Combined Board.
18.8 The Supervisory Board shall establish the remuneration and further
conditions of employment for each Executive Board member.
Article 19. Duties, Chairperson, Secretary, Allocation of Duties and
Decision-making Process.
19.1 The Executive Board shall be entrusted with the management of the
Company.
19.2 The Combined Board shall appoint one of the Executive Board members as
chairperson of the Executive Board and one or more other Executive Board
members as deputy chairpersons.
19.3 The Company Secretary shall as such also act as the secretary of the
Executive Board.
19.4 The Combined Board may establish rules regarding the decision-making
process and working methods of the Executive Board in addition to the
relevant provisions of these Articles of Association. In this context,
the Combined Board may also determine the duties for which each Executive
Board member in particular shall be responsible. Such rules and
allocation of duties, if established by the Combined Board, must be put
in writing.
19.5 Executive Board resolutions may at all times be adopted in a manner other
than at a meeting, in writing or otherwise,
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provided the proposal concerned is submitted to all Executive Board
members then in office and none of them objects to the relevant manner of
adopting resolutions. Adoption of resolutions in writing shall be
effected by written statements from all Executive Board members then in
office.
19.6 A resolution of the Executive Board may at all times be evidenced by a
written statement to that effect by the president of the Executive Board
or by the Company Secretary.
Article 20. Approval of Executive Board Resolutions.
20.1 The Combined Board may require Executive Board resolutions to be subject
to its approval or to the approval of the Supervisory Board. The
Executive Board shall be notified in writing of such resolutions, which
shall be clearly specified.
20.2 The absence of approval by the Combined Board or by the Supervisory
Board, respectively, of a resolution as referred to in Article 20.1
hereof shall not affect the authority of the Executive Board or its
members to represent the Company.
Article 21. Representation; Conflicts of Interest.
21.1 The Executive Board shall be authorized to represent the Company. Each
member of the Executive Board shall also be authorized to represent the
Company.
21.2 In the event of a conflict of interest between the Company and an
Executive Board member, the Supervisory Board shall designate an
Executive Board member or a Supervisory Board member to represent the
Company. The Shareholders' Body shall be competent at all times to
designate one or more other persons for this purpose.
Article 22. Vacancy or Inability to Act.
22.1 If a seat is vacant on the Executive Board ('ontstentenis') or an
Executive Board member is unable to perform his duties ('belet'), the
remaining member or members of the Executive Board shall be temporarily
entrusted with the management of the Company.
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22.2 If all seats in the Executive Board are vacant or all Executive Board
members are unable to perform their duties, the management of the Company
shall be temporarily entrusted to the Supervisory Board, with the
authority to temporarily entrust the management of the Company to one or
more Supervisory Board members and/or one or more other persons.
Article 23. The Company Secretary.
23.1 The Company shall have a secretary, to be referred to as the Company
Secretary. The Company Secretary shall not be a member of the Executive
Board or of the Supervisory Board. The Company Secretary shall be
appointed by resolution of the Combined Board. A resolution to appoint a
person as Company Secretary can only be adopted if both the majority of
the Executive Board members then in office and the majority of the
Supervisory Board members then in office express their support for such
resolution.
23.2 The Company Secretary may be dismissed at any time by resolution of the
Combined Board. The Company Secretary may also be dismissed by resolution
of the Supervisory Board or by resolution of the Executive Board.
23.3 The Company Secretary shall have the duties and powers expressly
conferred upon him by these Articles of Association. In addition, the
duties and powers of the Company Secretary shall be determined by the
Combined Board.
23.4 If the Company Secretary is absent, his duties and powers shall be
assumed by his deputy, to be designated by the Combined Board.
CHAPTER VIII. THE SUPERVISORY BOARD.
Article 24. Supervisory Board Members.
24.1 The Company shall have a Supervisory Board, consisting of at least six
and at most eight persons. The number of Supervisory Board members shall
be determined by the Combined Board, with due observance of this minimum
and this maximum.
24.2 If fewer than six Supervisory Board members are in office, the
Supervisory Board shall remain competent, but the Combined
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Board shall proceed to supplement the number of members of the
Supervisory Board as soon as reasonably possible.
24.3 Supervisory Board members shall be appointed by the Shareholders' Body. A
resolution of the Shareholders' Body to appoint a Supervisory Board
member other than in accordance with a proposal of the Combined Board
shall require a majority of at least two-thirds of the votes cast if less
than one-half of the Company's issued capital is represented at the
meeting. At a General Meeting of Shareholders, votes can only be taken on
candidates whose names are stated for that purpose in the agenda of the
meeting. At the same time notice of the meeting is given, the particulars
referred to in Article 24.5 hereof shall be deposited at the Company's
office for inspection by Shareholders as well as usufructuaries and
pledgees of Shares to whom the voting rights accrue, until the end of the
meeting, and this shall be stated in the notice.
24.4 Persons aged seventy-two years or more may not be appointed as a
Supervisory Board member.
24.5 When a proposal or recommendation for appointment of a person as a
Supervisory Board member is made, the following particulars shall be
stated: his age, his profession, the number of Shares he holds and the
positions he holds or has held, insofar as these are relevant for the
performance of the duties of a Supervisory Board member. Furthermore, the
names of the legal entities of which he is already a supervisory board
member shall be indicated; if those include legal entities which belong
to the same group, a reference of that group will be sufficient. The
proposal or recommendation must state the reasons on which it is based.
24.6 Each Supervisory Board member may be suspended or dismissed by the
Shareholders' Body at any time.
24.7 Any suspension may be extended one or more times, but may not last longer
than three months in the aggregate. If at the end of that period no
decision has been taken on termination of the suspension, or on
dismissal, the suspension shall cease.
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24.8 A Supervisory Board member shall retire not later than on the day on
which the first General Meeting of Shareholders is held following the
lapse of three years since his appointment. The Supervisory Board members
shall retire periodically in accordance with a rotation plan to be drawn
up by the Combined Board. A Supervisory Board member retiring pursuant to
this Article 24.8 may be re-appointed as long as he has not reached the
age limit.
24.9 A Supervisory Board member shall retire not later than on the day on
which the annual General Meeting of Shareholders is held in the financial
year in which he reaches the age of seventy-two.
24.10 The Combined Board shall establish the remuneration for each Supervisory
Board member.
Article 25. Duties and Powers.
25.1 It shall be the duty of the Supervisory Board to supervise the management
of the Executive Board and the general course of affairs in the Company
and the business connected with it. The Supervisory Board shall assist
the Executive Board by giving advice. In performing their duties the
Supervisory Board members shall act in accordance with the interests of
the Company and the business connected with it.
25.2 The Executive Board shall supply the Supervisory Board in due time with
the information required for the performance of its duties.
25.3 The Supervisory Board may request assistance from experts. The costs of
such assistance shall be for the account of the Company.
25.4 The Supervisory Board may decide that one or more of its members and/or
experts shall have access to the office and the other buildings and
premises of the Company and that such persons shall be authorized to
inspect the books and records of the Company.
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25.5 The Supervisory Board may establish rules regarding its decision-making
process and working methods, in addition to the relevant provisions of
these Articles of Association.
Article 26. Chairperson and Secretary.
26.1 The Supervisory Board shall appoint one of the Supervisory Board members
as chairperson of the Supervisory Board. Furthermore, the Supervisory
Board may appoint one or more deputy chairpersons from among its midst.
26.2 The Company Secretary shall as such also act as the secretary of the
Supervisory Board.
Article 27. Meetings.
27.1 The Supervisory Board shall meet together with the Executive Board unless
the Supervisory Board wishes to meet without the members of the Executive
Board being present.
27.2 The Supervisory Board shall meet whenever its chairperson, two or more
other Supervisory Board members or two or more Executive Board members
deem such to be necessary.
27.3 A Supervisory Board member may be represented at a meeting by another
Supervisory Board member authorized in writing.
27.4 The meetings of the Supervisory Board shall be presided over by the
chairperson or a deputy chairperson of the Supervisory Board. In their
absence, the chairperson of the meeting shall be appointed by a majority
of the votes cast by the Supervisory Board members present at the
meeting.
27.5 Minutes of the meeting shall be kept by the Company Secretary. In his
absence, the chairperson of the meeting shall appoint another secretary
of the meeting.
27.6 The minutes shall be adopted by the Supervisory Board, in the same
meeting or the next. Evidencing their adoption, the minutes shall be
signed by the chairperson and the secretary of the meeting in which the
minutes are adopted.
Article 28. Decision-making Process.
28.1 When making Supervisory Board resolutions, each Supervisory Board member
may cast one vote.
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28.2 All resolutions of the Supervisory Board shall be adopted by a majority
of the votes cast.
28.3 At a meeting, the Supervisory Board may only pass valid resolutions if
the majority of the Supervisory Board members then in office are present
or represented.
28.4 Supervisory Board resolutions may also be adopted in a manner other than
at a meeting, in writing or otherwise, provided the proposal concerned is
submitted to all Supervisory Board members then in office and none object
to the relevant manner of adopting resolutions.
Adoption of resolutions in writing shall be effected by written
statements from all Supervisory Board members then in office.
28.5 A resolution of the Supervisory Board may at all times be evidenced by a
written statement to that effect by the chairperson of the Supervisory
Board or by the Company Secretary.
CHAPTER IX. THE COMBINED BOARD.
Article 29. Members of the Combined Board.
29.1 The Company shall have a Combined Board, consisting of all Supervisory
Board members in office and all Executive Board members in office.
29.2 The chairperson and the deputy chairpersons of the Supervisory Board
shall as such also act as chairperson and deputy chairpersons,
respectively, of the Combined Board.
29.3 The Company Secretary shall as such also act as the secretary of the
Combined Board.
Article 30. Duties and Powers.
30.1 The Combined Board shall have the duties and powers conferred upon it by
or pursuant to these Articles of Association as well as the duties and
powers conferred upon it by or pursuant to the Governing Agreement
referred to in Article 3 of these Articles of Association.
30.2 The Combined Board may establish rules regarding its decision-making
process and working methods, in addition to the relevant provisions of
these Articles of Association.
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Article 31. Meetings.
31.1 The Combined Board shall meet whenever its chairperson or two or more
other members of the Combined Board deem such to be necessary. A meeting
of the Supervisory Board together with the Executive Board shall also
count as a meeting of the Combined Board.
31.2 In a meeting of the Combined Board a Supervisory Board member may be
represented by another Supervisory Board member authorized in writing and
an Executive Board member may be represented by another Executive Board
member authorized in writing.
31.3 The meetings of the Combined Board shall be presided over by the
chairperson or a deputy chairperson of the Combined Board. In their
absence, the chairperson of the meeting shall be appointed by a majority
of the votes cast by the Supervisory Board members present at the
meeting.
31.4 Minutes of the meeting shall be kept by the Company Secretary. In his
absence, the chairperson of the meeting shall appoint another secretary
of the meeting.
31.5 The minutes shall be adopted by the Combined Board, in the same meeting
or the next. Evidencing their adoption, the minutes shall be signed by
the chairperson and the secretary of the meeting in which the minutes are
adopted.
Article 32. Decision-making Process.
32.1 When making Combined Board resolutions, each Combined Board member may
cast one vote. However, if the number of Executive Board members in
office exceeds the number of Supervisory Board members in office, each
Executive Board member shall have a number of votes equal to the number
of Supervisory Board members, and vice versa.
32.2 All resolutions of the Combined Board shall be adopted by a majority of
the votes cast, without prejudice to the provisions of Article 23.1 of
these Articles of Association. If there is a tie, the issue shall be
decided by the chairperson of the Combined Board.
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32.3 At a meeting, the Combined Board may only pass valid resolutions if the
majority of the Supervisory Board members then in office are present or
represented.
32.4 Combined Board resolutions may also be adopted in a manner other than at
a meeting, in writing or otherwise, provided the proposal concerned is
submitted to all Combined Board members then in office and none of them
objects to the relevant manner of adopting resolutions.
Adoption of resolutions in writing shall be effected by written
statements from all Combined Board members then in office.
32.5 A resolution of the Combined Board may at all times be evidenced by a
written statement to that effect by the chairperson of the Combined Board
or by the Company Secretary.
CHAPTER X. FINANCIAL YEAR AND ANNUAL ACCOUNTS; PROFITS AND DISTRIBUTIONS.
Article 33. Financial Year and Annual Accounts.
33.1 The Company's financial year shall be the calendar year.
33.2 Annually, not later than five months after the end of the financial year,
unless by reason of special circumstances this period is extended by the
Shareholders' Body by not more than six months, the Executive Board shall
prepare annual accounts, and shall deposit the same for inspection by the
Shareholders at the Company's office. Within the same period, the
Executive Board shall also deposit the annual report for inspection by
the Shareholders.
33.3 The annual accounts shall consist of a balance sheet, a profit and loss
account and explanatory notes.
33.4 The annual accounts shall be signed by the Executive Board members and
the Supervisory Board members. If the signature of one or more of them is
missing, this shall be stated and reasons for this omission shall be
given.
33.5 Annually, the Supervisory Board shall prepare a report, which shall be
enclosed with the annual accounts and the annual report.
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33.6 Annually, the Company shall appoint a registered accountant or an
organization in which registered accountants work together (hereafter in
this Article 33: an "Accountant") to examine the annual accounts. The
Shareholders' Body shall be authorized to make such appointment. If the
Shareholders' Body fails to make such appointment, the Supervisory Board
shall be competent to make the appointment or, if the Supervisory Board
fails to make the appointment, the Executive Board. The appointment of an
Accountant shall not be restricted by any nomination; the appointment can
at any time be withdrawn by the Shareholders' Body or by those who have
made the appointment; in addition, an appointment made by the Executive
Board may be withdrawn by the Supervisory Board.
33.7 The Accountant shall report on his examination to the Supervisory Board
and the Executive Board.
33.8 The Accountant shall issue a statement on the outcome of his examination.
33.9 The Company shall ensure that the annual accounts, the annual report, the
report of the Supervisory Board and the information to be added by virtue
of the law are kept at its office as from the day on which notice of the
annual General Meeting of Shareholders is given. Shareholders as well as
usufructuaries and pledgees of Shares to whom the voting rights accrue
may inspect the documents at that place and obtain a copy free of charge.
33.10 The annual accounts, the annual report and the information to be added by
virtue of the law shall furthermore be subject to the provisions of Book
2, Title 9, of the Dutch Civil Code.
Article 34. Adoption of the Annual Accounts and Discharge.
34.1 The Shareholders' Body shall adopt the annual accounts. The annual
accounts cannot be adopted if the Shareholders' Body has been unable to
take cognizance of the accountant's
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statement referred to in Article 33.8 of these Articles of Association.
34.2 At the General Meeting of Shareholders at which it is resolved to adopt
the annual accounts, it shall be separately proposed to discharge the
Executive Board members and the Supervisory Board members for the
management pursued and the supervision thereof, respectively, insofar as
such management is reflected in the annual accounts and/or the annual
report.
Article 35. Publication of the Annual Accounts; Half Yearly and Quarterly
Figures.
35.1 The Company shall publish the annual accounts. Publication must take
place within eight days after the adoption, subject to the provisions of
Section 2:394, subsections 2 and 3, of the Dutch Civil Code. Publication
shall take place by deposit of a copy entirely in the Dutch language at
the office of the Commercial Register, with a note thereon of the date of
adoption.
35.2 A copy of the annual report in the Dutch language and of the other
documents referred to in Section 2:392 of the Dutch Civil Code, shall be
published simultaneously with the annual accounts and in the same manner.
With the exception of the information referred to in said Section 2:392,
subsection 1 under a., c., f. and g., the foregoing shall not apply if
the documents are made available for public inspection at the Company's
office, and if a full or partial copy thereof is supplied at not more
than the cost price; the Company shall state this for entry in the
Commercial Register.
35.3 The Company shall publish its half yearly figures as soon as they are
available to the extent required by law and, for as long as Shares or
depositary receipts thereof are quoted on the AEX Stock Exchange or
another stock exchange, to the extent the Stock Exchange Regulations of
Amsterdam Exchanges N.V. or applicable regulations of such other stock
exchange or exchanges respectively, shall require.
Article 36. Profits, Distributions and Losses.
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36.1 Each year, the Combined Board shall determine which part of the profits
shown in the adopted profit and loss account shall be reserved.
36.2 The profits remaining after allocation to reserves pursuant to Article
36.1 hereof shall be paid on the ordinary Shares and the class R Shares
in proportion to the nominal value of each Share. In contravention of the
provision of the preceding sentence, the Combined Board may resolve that
the dividend to be paid on each class R Share shall be lower than the
dividend to be paid on each ordinary Share, resolving at the same time
what amount of dividend shall be paid on each ordinary Share and each
class R Share, respectively, subject to the proviso that the dividend to
be paid out of the annual profits on each class R Share shall, in that
case, not be less than one per cent (1%) of the nominal value of each
class R Share.
36.3 Distributions may be made only insofar as the Company's equity exceeds
the amount of the paid in and called up part of the issued capital,
increased by the reserves which must be kept by virtue of the law.
36.4 If a loss has been suffered during any one year, the Combined Board may
resolve to offset such loss by writing it off against a reserve which the
Company is not required to keep by virtue of the law.
36.5 Dividends shall be paid after adoption of the annual accounts showing
that payment of dividends is permitted.
36.6 The Combined Board may, applying the provisions of Article 36.2 hereof,
resolve to make an interim distribution, provided the requirement of
Article 36.3 hereof has been complied with, as shown by interim accounts.
Such interim accounts shall show the financial position of the Company
not earlier than on the first day of the third month before the month in
which the resolution to make the interim distribution is announced. They
shall be prepared in accordance with generally accepted accounting
principles. The interim accounts shall include the amounts which must be
reserved by virtue of the law. They shall
29
be signed by the members of the Executive Board. If the signature of one
or more of them is missing, this shall be stated and reasons for this
omission shall be given. The interim accounts shall be deposited in the
office of the Commercial Register within eight days after the day on
which the resolution to make the interim distribution has been announced.
36.7 At the proposal of the Combined Board, the Shareholders' Body may resolve
to make a distribution on Shares wholly or partly not in cash but in
Shares.
36.8 The Combined Board may, applying the provisions of Article 36.2 hereof by
analogy, resolve that distributions to holders of Shares shall be made
out of one or more reserves, provided that the amount to be paid on each
class R Share shall, in that case, not be less than one per cent (1%) of
the nominal value of each class R Share. The provision of Article 36.7
hereof shall apply by analogy.
36.9 The date on which dividends and other distributions become payable shall
be announced in accordance with Article 46 of these Articles of
Association.
36.10 For all dividends and other distributions relating to a Share for which a
CF-certificate has been issued, the Company shall be discharged from all
obligations towards the person entitled thereto by placing those
dividends or other distributions at the disposal of, or at the
instruction of, the independent organisation referred to in Article 5.6
of these Articles of Association.
36.11 A claim of a Shareholder for payment of a distribution shall be barred
after five years have elapsed.
CHAPTER XI. THE SHAREHOLDERS' BODY.
Article 37. Annual General Meeting of Shareholders.
37.1 Each year, though not later than in the month of June, a General Meeting
of Shareholders shall be held.
37.2 The agenda of such meeting shall contain, inter alia, the following
subjects for discussion:
a. discussion of the annual report;
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b. discussion and adoption of the annual accounts;
c. discharge of the Executive Board members and of the Supervisory Board
members;
d. appointment of an accountant;
e. other subjects presented for discussion by the Supervisory Board, the
Executive Board or the Combined Board and announced with due
observance of the provisions of these Articles of Association, as for
instance with respect to the designation of a body of the Company
competent to issue Shares and with respect to the authority of the
Executive Board to make the Company acquire own Shares or depositary
receipts thereof.
37.3 Requests to add subjects to the agenda of the annual General Meeting of
Shareholders made by Shareholders shall be honoured, if (i) such requests
are lodged in writing at the Company's office not later than in the month
of February preceding the meeting concerned and (ii) the applicant or
applicants provide evidence, satisfactory to the Executive Board, to
represent, severally or jointly, at least one percent of the Company's
issued capital at the time the request is made, unless in the opinion of
the Supervisory Board and the Executive Board weighty Company interests
would prevent this.
Article 38. Other General Meetings of Shareholders.
Other General Meetings of Shareholders shall be held whenever the Supervisory
Board, the Executive Board, or the Combined Board deems such to be necessary,
without prejudice to the provisions of Sections 2:108a, 2:110, 2:111 and 2:112
of the Dutch Civil Code.
Article 39. Notice and Agenda of Meetings.
39.1 Notice of General Meetings of Shareholders shall be given by the
Supervisory Board, the Executive Board or the Combined Board.
39.2 Notice of the meeting shall be given not later than on the fifteenth day
prior to the day of the meeting.
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39.3 The notice shall specify the subjects to be discussed or shall state that
the Shareholders may have access to more information at the Company's
office, without prejudice to the provisions of Article 14.7 and Article
47.6 of these Articles of Association. The agenda shall be made available
to Shareholders free of charge at the Company's office and in Amsterdam
at the place to be stated in the notice. The term "Shareholders" in this
Article 39.3 shall include usufructuaries and pledgees of Shares to whom
the voting rights accrue.
39.4 The notice shall state the requirements for admittance to the meeting as
described in Articles 43.1 and 43.2 of these Articles of Association.
39.5 The notice shall be given in the manner stated in Article 46 of these
Articles of Association.
Article 40. Venue of Meetings.
General Meetings of Shareholders shall be held in Amsterdam or Rotterdam.
Article 41. Chairperson of the Meeting.
41.1 The General Meetings of Shareholders shall be presided over by the
chairperson of the Supervisory Board or, if he is absent, by one of the
deputy chairpersons of the Supervisory Board, or, if the latter are also
absent, by another member of the Supervisory Board, appointed for that
purpose by the Supervisory Board members present at the meeting. However,
the Supervisory Board may also appoint another chairperson to preside
over the meeting.
41.2 If the chairmanship of the meeting is not provided for in accordance with
Article 41.1 hereof, the meeting shall itself elect a chairperson, with
the proviso that so long as such election has not taken place, the
chairmanship shall be held by a member of the Executive Board designated
for that purpose by the members of the Executive Board present at the
meeting.
Article 42. Minutes.
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42.1 Minutes shall be kept of the proceedings at the General Meeting of
Shareholders by a secretary to be appointed by the chairperson, which
minutes shall be adopted by the chairperson and the secretary and as
evidence thereof shall be signed by them.
42.2 However, the chairperson may determine that notarial minutes shall be
prepared of the proceedings of the meeting. In that case the co-signature
of the chairperson shall be sufficient.
Article 43. Rights at Meetings and Admittance.
43.1 Each Shareholder entitled to vote and each usufructuary or pledgee of
Shares to whom the voting rights accrue shall be entitled to attend the
General Meetings of Shareholders, to address such meetings and to
exercise his voting rights. Where it concerns registered Shares, the
Executive Board must be notified in writing of the intention to attend
the meeting. Such notice must be received by the Executive Board not
later than on the date mentioned in the notice of the meeting. The right
to attend General Meetings of Shareholders and voting rights attributable
to a registered Share can only be exercised, if such Share is recorded in
the Company's register of Shareholders in the name of the Shareholder
concerned, both on the date of the aforementioned notice and on the date
of the meeting. Where it concerns bearer Shares the share certificates
must be lodged not later than on the date mentioned in the notice of the
meeting, at the place mentioned therein.
43.2 The right to take part in the meeting in accordance with Article 43.1
hereof may be exercised by a proxy authorized in writing, provided that
the power of attorney has been received by the Executive Board not later
than on the date mentioned in the notice of the meeting.
43.3 The date mentioned in the notice of the meeting, referred to in Articles
43.1 and 43.2 hereof, cannot be earlier than the seventh day prior to the
date of the meeting.
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43.4 If the voting rights attributable to a Share accrue to the usufructuary
or pledgee, instead of to the Shareholder, the Shareholder shall also be
authorized to attend the General Meetings of Shareholders and to address
such meetings, provided that, where it concerns registered Shares, the
Executive Board has been notified of the intention to attend the meeting
in accordance with Article 43.1 hereof, and, where it concerns bearer
Shares, the lodging as prescribed by Article 43.1 hereof has taken place.
Article 43.2 hereof shall apply by analogy.
43.5 The foregoing provisions of this Article 43 with respect to the exercise
of rights at meetings by holders of bearer Shares and holders of
registered Shares, and their proxies, shall, to the extent possible,
apply by analogy to holders of bearer depositary receipts or registered
depositary receipts, respectively, issued for ordinary Shares with the
Company's cooperation, and their proxies.
43.6 Each ordinary Share confers the right to cast one vote; each class R
Share confers the right to cast ten votes. Holders of depositary receipts
issued for ordinary Shares with the Company's co-operation, or their
proxies, have no voting rights.
43.7 Each person entitled to vote or his proxy must sign the attendance list.
The chairperson of the meeting may decide that the attendance list must
also be signed by other persons present at the meeting.
43.8 The members of the Supervisory Board and the members of the Executive
Board shall, as such, have the right to give advice in the General
Meetings of Shareholders.
43.9 The chairperson of the meeting shall decide whether persons other than
those mentioned above in this Article 43 shall be admitted.
Article 44. Adoption of Resolutions.
44.1 Valid resolutions of the Shareholders' Body can only be adopted at a
General Meeting of Shareholders for which notice is given and which is
held in accordance with the
34
relevant provisions of the law and of these Articles of Association.
44.2 Unless the law or these Articles of Association provide for a greater
majority, all resolutions of the Shareholders' Body shall be adopted by
an absolute majority of the votes cast.
44.3 If a majority of the votes cast is not obtained in an election of
persons, a second free vote shall be taken. If a majority is not obtained
again, further votes shall be taken until either one person obtains a
majority of the votes cast or the election is between two persons only,
both of whom receive an equal number of votes. In the event of such
further elections (not including the second free vote), each election
shall be between the candidates in the preceding election, with the
exclusion of the person who received the smallest number of votes in such
preceding election. If in the preceding election more than one person
have received the smallest number of votes, it shall be decided which
candidate should not participate in the new election by randomly choosing
a name. If votes are equal in an election between two persons, it shall
be decided who is elected by randomly choosing a name.
44.4 If the votes are equal with regard to resolutions not concerning an
election of persons, the proposal shall be deemed to have been rejected.
44.5 All voting shall take place orally. The chairperson is, however, entitled
to decide that votes be cast by a secret ballot. If it concerns the
holding of a vote on persons, anyone present at the meeting with voting
rights may demand a vote by secret ballot. Votes by secret ballot shall
be cast by means of secret, unsigned ballot papers. Blank and invalid
votes shall not be counted as votes. Resolutions may be adopted by
acclamation if none of the persons with voting rights present at the
meeting objects.
44.6 When determining how many votes are cast, how many Shareholders are
present or represented or which part of the
35
Company's issued capital is represented, no account shall be taken of
Shares for which no vote can be cast.
44.7 The chairperson's decision at the meeting on the result of a vote shall
be final and conclusive. The same shall apply to the contents of an
adopted resolution if a vote is taken on an unwritten proposal. However,
if the correctness of such decision is challenged immediately after it is
pronounced, a new vote shall be taken if either the majority of the
persons with voting rights present at the meeting or, where the original
vote was not taken by roll call or in writing, any person with voting
rights present at the meeting, so demands. The legal consequences of the
original vote shall be made null and void by the new vote.
Article 45. Meetings of Holders of Shares of a Specific Class.
45.1 Meetings of holders of ordinary Shares shall be convened by the Executive
Board, the Supervisory Board or the Combined Board. Articles 38 through
44 of these Articles of Association shall apply to such meetings by
analogy.
45.2 Meetings of holders of class R Shares shall be convened by the Executive
Board, the Supervisory Board, the Combined Board or by a holder of one or
more class R Shares. Articles 45.3 through 45.10 hereof shall apply to
such meetings.
45.3 Notice of a meeting of holders of class R Shares shall be given not later
than on the fifth day prior to the day of the meeting. In urgent cases,
such to be determined by the persons convening the meeting, this term can
be reduced to the second day prior to the day of the meeting.
45.4 The notice shall be given in writing and shall be mailed to the addresses
of the holders of class R Shares as well as of the usufructuaries and
pledgees of class R Shares to whom the voting rights accrue as recorded
in the register. The notice shall specify the venue of the meeting and
the subjects to be discussed.
45.5 Each class R Share confers the right to cast one vote.
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45.6 Each holder of one or more class R Shares, as well as each usufructuary
and each pledgee of class R Shares to whom the voting rights accrue may,
either in person or by proxy authorized in writing, attend the meetings
of holders of class R Shares and address the meeting.
45.7 The meeting may be attended by the holders of class R Shares, or their
proxies, as well as by the usufructuaries and pledgees of class R Shares
to whom the voting rights accrue, or their proxies, the members of the
Executive Board and the members of the Supervisory Board. The chairperson
shall decide whether persons other than the aforementioned shall be
admitted.
45.8 As long as all issued class R Shares are represented at a meeting, valid
resolutions can be adopted on all subjects coming up for discussion,
provided they are adopted unanimously, even if the requirements for the
convening and holding of meetings have not been observed.
45.9 The resolutions of the meeting of the holders of class R Shares may,
unless there are usufructuaries and pledgees of class R Shares to whom
the voting rights accrue, also be adopted in writing instead of at a
meeting provided they are adopted by the unanimous vote of all holders of
class R Shares entitled to vote.
45.10 Articles 41, 42, 43,7, 43.8 and 44 of these Articles of Association shall
apply by analogy to the meetings of holders of class R Shares.
Article 46. Notices and Announcements.
All notices of General Meetings of Shareholders and all announcements to
Shareholders and to usufructuaries and pledgees of Shares to whom the voting
rights accrue, shall be made by advertisement in one or more nationally
distributed daily newspapers and in the Official Price List of Amsterdam
Exchanges N.V.
Article 47. Amendment of Articles of Association and Dissolution.
37
47.1 A resolution to alter Articles 4.4, 18, 20, 24, 34, 36 and 47 of these
Articles of Association or to dissolve the Company can be adopted only at
the proposal of the Combined Board.
47.2 A resolution to amend these Articles of Association shall require an
absolute majority of the votes cast, provided such resolution is passed
at the proposal of the Combined Board.
47.3 For the adoption of a resolution to amend these Articles of Association,
a majority of two thirds of the votes cast is required if the resolution
is not passed at the proposal of the Combined Board.
47.4 For the adoption of a resolution as referred to in Article 47.3 hereof it
shall also be required that at least one-half of the Company's issued
capital be represented at the meeting at which the proposal concerned is
dealt with. If it turns out that the requirement mentioned in the
previous full sentence has not been satisfied, no second meeting shall be
convened in which that requirement is not applicable.
47.5 A resolution to dissolve the Company requires an absolute majority of the
votes cast.
47.6 When a proposal is to be made to the General Meeting of Shareholders to
alter the Articles of Association or to dissolve the Company, it must
always be stated in the notice of the meeting. When it concerns an
amendment of the Articles of Association, a copy of the proposal in which
the proposed alteration is quoted in full, must at the same time be filed
for inspection in the Company's office and in Amsterdam in the place to
be stated in the notice, until the end of that meeting, and be made
available, free of charge, to the Shareholders and to the usufructuaries
and pledgees of Shares to whom the voting rights accrue.
Article 48. Liquidation.
48.1 If the Company is dissolved by a resolution of the Shareholders' Body,
the members of the Executive Board shall be charged with the liquidation
of the Company and the Supervisory Board
38
with the supervision thereof, subject to the relevant provisions of Book
2 of the Dutch Civil Code.
48.2 During the liquidation the provisions of these Articles of Association
shall remain in force to the extent possible.
48.3 Assets which remain after payment of the debts shall be transferred to
the holders of ordinary Shares and the holders of class R Shares in
proportion to the nominal value of their shareholdings.
Article 49. Transitory Provisions.
49.1 At the time this amendment of the Articles of Association takes effect,
the nominal value of each ordinary share - until such time ten cents of a
Dutch guilder (NLG 0.10) - shall be changed into six eurocents (EUR 0.06)
and the nominal value of each class R Share - until such time one Dutch
guilder (NLG 1) - shall be changed into sixty eurocents (EUR 0.60). As a
result hereof, the Company's issued capital shall increase; the amount of
this increase shall be charged to the Company's share premium reserve
fiscally acknowledged.
49.2 Holders of K-certificates issued for bearer ordinary Shares may surrender
such K-certificates at a place designated and published for that purpose
by the Executive Board, against either issuance of CF-certificates or
conversion into registered ordinary Shares, in both cases for an equal
number of ordinary Shares as represented by the K-certificates
surrendered. To the extent this Article 49.2 does not provide otherwise,
the provisions of Article 6 of these Articles of Association shall apply
by analogy to the extent possible. CF-certificates shall only be issued
and conversion into registered ordinary Shares shall only be effected if
the K-certificates surrendered are provided with all uncalled dividend
coupons and talons. As from the first day of January two thousand, rights
to dividends and other distributions as well as the right to attend
General Meetings of Shareholders and voting rights attributable to bearer
ordinary Shares represented by K-certificates can only be exercised if
39
the relevant K-certificates are first surrendered in accordance with the
foregoing provisions of this Article 49.2.
Statement Of No Objections.
With respect to the foregoing amendment of the Articles of Association, a
ministerial Statement of No Objections was granted on the fifteenth day of April
nineteenhundred and ninety-nine, under number B.V. 208.889, which is evidenced
by a written statement from the Dutch Ministry of Justice attached to this deed
(Annex).
Close.
The person appearing is known to me, civil law notary.
This deed, drawn up to be kept in the civil law notary's custody, was executed
in Amsterdam on the date first above written. Before reading out, a concise
summary of the contents of this deed was given to the person appearing. He then
declared that he had taken note of the contents thereof and did not want to have
the complete deed read to him. Thereupon, after limited reading, this deed was
signed by the person appearing and by me, civil law notary.