EXHIBIT 1.1
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UNOFFICIAL TRANSLATION
OF THE DEED OF AMENDMENT OF
THE ARTICLES OF ASSOCIATION
JAMES HARDIE INDUSTRIES N.V.
dated 1 September 2005
On the first day of September two thousand and five appears before me, Professor
Martin van Olffen, notaris (civil-law notary) practising in Amsterdam:
Reinier Hans Kleipool, kandidaat-notaris (candidate civil-law notary), employed
by De Brauw Blackstone Westbroek N.V., a limited liability company, with
corporate seat in The Hague, with address at: 2596 AL The Hague, the
Netherlands, Zuid-Hollandlaan 7, at the office in Amsterdam, born in
Geldermalsen on the twenty-fourth day of September nineteen hundred and
seventy-nine. The person appearing declares that on the twenty-second day of
August two thousand and five the general meeting of shareholders of JAMES HARDIE
INDUSTRIES N.V., a limited liability company, with corporate seat in Amsterdam
and address at: 1077ZX Amsterdam, Strawinskylaan 3077a, resolved to amend the
articles of association of this company and to authorise the person appearing to
execute this deed.
Pursuant to those resolutions the person appearing declares that he amends the
company's articles of association such that these shall read in full as follows
ARTICLES OF ASSOCIATION:
CHAPTER I
DEFINITIONS.
ARTICLE 1.
Capitalised terms used in these articles of association shall have the following
meaning:
ARTICLES these articles of association;
ASTC the ASX Settlement and Transfer Corporation Pty
Ltd, the holder of an Australian clearing and
settlement facility licence granted under the
Corporations Act;
ASTC OPERATING RULES the Australian law governed operating rules of
the ASTC, regulating the settlement, clearing
and registration of, among other things, the
CUFS, as amended, varied or waived (with
respect to the Company or generally) from time
to time;
ASX The Australian Stock Exchange Limited;
BUSINESS DAY(S) Monday to Friday inclusive, except New Year's
Day, Good Friday, Easter Monday, Christmas Day,
Boxing Day, and any other day that ASX or NYSE
declares is not a business day;
CEO the member of the Managing Board who has been
appointed as chief executive officer pursuant
to article 15.1 of these Articles;
CHESS Clearing House Electronic Sub-Register System
as such term is defined in the ASTC Operating
Rules;
COMPANY James Hardie Industries N.V.;
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CORPORATIONS ACT Australian Corporations Act 2001 (Cth) and the
rules and regulations issued pursuant thereto,
as re-enacted, amended or modified from time to
time;
CUFS(S) any CHESS Unit(s) of Foreign Securities as
defined in the ASTC Operating Rules and the
Corporations Act and which are issued or made
available in respect of Share(s);
CUFS HOLDER(S) any record owner of CUFS(s) according to the
terms and conditions of the ASTC Operating
Rules and the Corporations Act;
GENERAL MEETING as the context may require, the corporate body
(orgaan) comprising Shareholders who are
entitled to vote and others persons who are
entitled to vote, or the meeting (bijeenkomst)
of the Shareholders and other persons who are
entitled to attend such meetings;
INFORMATION MEETING the information meeting to be held in advance
of each General Meeting pursuant to article 36
of these Articles;
JOINT BOARD the board as composed or re-instituted in
accordance with article 27 of these Articles;
JOINT BOARD RULES the rules governing the internal organisation
of the Joint Board (gecombineerde raad
reglement) as may be adopted pursuant to
article 27 of these Articles;
JOINT HOLDER(S) in respect of an asset, any person who jointly
together with one or more other participants
(deelgenoten) holds legal title to such asset;
LAW unless provided otherwise in these Articles,
the law of the Netherlands;
LISTING RULES the listing rules of the ASX and the NYSE as
amended or modified from time to time;
MANAGEMENT RULES the rules governing the internal organisation
of the Managing Board (directiereglement) as
may be adopted pursuant to article 15 of these
Articles;
MANAGING BOARD the managing board as appointed and composed in
accordance with article 14 of these Articles;
NYSE The New York Stock Exchange;
PRESCRIBED RATE the base rate charged by the Company's
principal banker to corporate customers from
time to time in respect of overdraft loans in
excess of one hundred thousand United States
dollars ($100,000) calculated on a daily basis
and a year of three hundred and sixty-five
(365) days;
SHARE(S) any share(s) comprised in the authorised share
capital of the Company pursuant to article 4.1.
of these Articles;
SHAREHOLDER(S) any person who by Law holds legal title
(juridisch gerechtigde) to the Shares;
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SHAREHOLDER'S RIGHTS the right to vote on Shares, the right to
receive dividends and other distributions on
Shares and the right to participate in any
General Meeting;
SCH the Securities Clearing House as defined in,
and so designated pursuant to, section 779B of
the Corporations Act;
SCH BUSINESS RULES the Australian law governed business rules of
SCH governing inter alia the CUFSs;
SUPERVISORY BOARD the supervisory board as appointed and composed
in accordance with article 22 of these
Articles;
SUPERVISORY RULES the rules governing the internal organisation
of the Supervisory Board (commissarissen
reglement) as may be adopted pursuant to
article 23 of these Articles;
USUFRUCT the right to use (gebruiken), and receive the
proceeds of (de vruchten genieten van), another
person's assets.
CHAPTER II
NAME. SEAT.
ARTICLE 2.
The name of the Company is: James Hardie Industries N.V.
Its corporate seat is in Amsterdam.
OBJECTS.
ARTICLE 3.
The objects of the Company are:
a. to participate in, to take an interest in any other way in and to conduct
the management of business enterprises of whatever nature;
b. to raise funds by the issues of debt or equity or in any other way and to
finance third parties;
c. to provide guarantees, including guarantees for debts of third parties,
and to perform all activities which are incidental to or which may be conducive
to, or connected with, any of the foregoing.
SHARE CAPITAL. ISSUANCE OF SHARES. PRE-EMPTIVE RIGHTS.
ARTICLE 4.
4.1. The authorised share capital of the Company amounts to one billion one
hundred and eighty million euro (EUR 1,180,000,000). It is divided into two
billion (2,000,000,000) shares of fifty-nine eurocents (EUR 0.59) each.
4.2. Subject to the approval of the Joint Board the Supervisory Board shall have
the power to resolve upon the issue of Shares and to determine the price
and further terms and conditions of such share issue, if and in so far as
the Supervisory Board has been designated by the General Meeting as the
authorised corporate body (orgaan) for this purpose. A designation as
referred to above shall only be valid for a specific period of not more
than five years and may from time to time be extended with a period of not
more than five years.
4.3. If a designation as referred to in article 4.2 of these Articles is not in
force, the General Meeting shall have power to resolve upon the issue of
Shares, but only upon the
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proposal of and for a price and on such further terms and conditions to be
determined by the Supervisory Board, subject to the approval of the Joint
Board.
4.4. In the event of an issue of Shares, the Shareholders shall have a
pre-emptive right in proportion to the number of Shares held by them.
Should a Shareholder not or not fully exercise his pre-emptive right, the
remaining Shareholders shall be similarly entitled to pre-emptive rights in
respect of the Shares that have not been claimed.
If the latter collectively do not or do not fully exercise their
pre-emptive rights, the Supervisory Board, and if a designation as referred
to in article 4.2 of these Articles is not in force, the General Meeting,
shall be due to decide to whom the Shares which have not been claimed shall
be issued and such issue may be made at a higher price. There shall be no
pre-emptive right to Shares issued against a contribution other than in
cash or issued to employees of the Company or of a group company. The
Company shall notify all Shareholders of an issue of Shares in respect of
which pre-emption rights exist and of the period of time within which such
rights may be exercised with due observance of article 10.2 of these
Articles.
The Supervisory Board shall have the power to limit or exclude any
pre-emptive rights to which Shareholders shall be entitled, but only if and
in so far as it has been granted such authority by the General Meeting, and
provided further that the Supervisory Board can only exercise such
authority if at that time it also has authority to resolve upon the issue
of Shares. The provisions in the second sentence of article 4.2 of these
Articles shall equally apply.
4.5. If a designation as referred to in article 4.2 of these Articles is not in
force, the General Meeting shall have power to limit or exclude any
pre-emptive rights to which Shareholders shall be entitled, but only upon
the proposal of the Supervisory Board.
4.6. This article 4 shall equally apply to the granting of rights to subscribe
for Shares (such as stock options), but shall not apply to the issue of
Shares to a person who exercises a previously acquired right to subscribe
for Shares, in which case no pre-emptive right exists (and no further
action pursuant to articles 4.2 and 4.3 of these Articles shall be
required).
ISSUANCE PRICE. PAYMENT ON SHARES. CALLS ON SHARES.
ARTICLE 5.
5.1. Without prejudice to what has been provided in section 2:80, subsection 2
Dutch Civil Code, Shares shall at no time be issued below par. Upon
subscription of a Share, the amount to be paid thereon shall be equal to
the nominal value of such Share and - if such Share is subscribed for a
higher amount - the difference between such amounts. It may be stipulated
that a part of the nominal value, not exceeding three-fourths (3/4)
thereof, shall be due for payment after the Company has so called for it to
be paid.
5.2. Calls on Shareholders in respect of any part of the nominal value unpaid on
the Shares pursuant to article 5.1. shall be made with due observance of
the following:
a. the Managing Board may cause the Company to call at any time on
Shareholders in respect of any part of the nominal value unpaid on the
Shares which is not by the terms of issue of those Shares made payable
at fixed times;
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b. each Shareholder shall, on receiving at least fourteen (14) days'
notice specifying the time and place of payment, pay to the Company at
the time and place so specified the amount called on the Shareholder's
Shares;
c. the Managing Board may revoke or postpone a call;
d. a call may be required to be paid by instalments;
e. a call is made at such time or times specified in the resolution of
the Managing Board authorising the call.
5.3. If and so long as the Shares are quoted on the ASX, calls shall be made,
and notice of those calls given, in accordance with the Listing Rules.
5.4. Joint Holders of a Share are jointly and severally liable to pay any call
in respect of the Share.
5.5. If a sum called or otherwise payable to the Company in respect of a Share
is not paid before or on the date fixed for payment, the Shareholder from
whom such sum is due shall pay:
a. interest on the sum from the day fixed for payment of the sum to the
time of actual payment at a rate determined by the Managing Board but
not exceeding the sum of the Prescribed Rate plus five per cent (5%);
and
b. any costs and expenses incurred by the Company by reason of
non-payment or late payment of the sum.
5.6. The Managing Board may waive payment of some or all of the interest or
costs and expenses as referred to in article 5.5 under b, wholly or in
part.
5.7. Any sum that, under the terms of issue of a Share, becomes payable at a
fixed date shall, for the purposes of these Articles, be taken to be duly
called and payable on the date on which under the terms of issue the sum
becomes payable.
5.8. The Managing Board may accept from a Shareholder the whole or a part of the
amount unpaid on a Share even if that amount has not been called. The
Managing Board may authorise payment by the Company of interest on the
whole or any part of an amount accepted under this article 5.8 until the
amount becomes payable, at a rate, not exceeding the Prescribed Rate, which
is agreed between the Managing Board and the Shareholder paying the sum. At
the time the amount accepted under this article 5.8 becomes payable
pursuant to a call by the Company, the Company shall treat and accept the
amount so paid in advance by the Shareholder as a payment on Shares and
shall off set (verrekenen) the amount payable by the Company to the
Shareholder pursuant to the first sentence of this Article 5.8. against the
amount payable by the Shareholder to the Company pursuant to the call. The
Managing Board may at any time repay the whole or any part of any amount
paid in advance on serving the Shareholder with one (1) month's notice of
its intention to do so.
5.9. Payments on Shares must be made in cash to the extent that no other
contribution has been agreed upon. If the Company so agrees, payment in
cash can be made in a currency other than in Euro.
5.10. A Shareholder shall not be entitled to vote at a General Meeting unless
all calls and other sums presently payable by the Shareholder in respect of
any of his Shares have been paid.
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ACQUISITION BY THE COMPANY OF SHARES. CANCELLATION OF SHARES AND CAPITAL
REDUCTION.
ARTICLE 6.
6.1. The Company may acquire Shares for valuable consideration if and in so far
as:
a. its shareholders equity (eigen vermogen) less the purchase price to be
paid by the Company for such Shares is not less than the aggregate
amount of the paid up and called up share capital and the reserves
which must be maintained by Law;
b. the aggregate par value of the Shares which the Company acquires,
already holds or on which it holds a right of pledge, or which are
held by a subsidiary of the Company, amounts to no more than one-tenth
of the aggregate par value of the issued share capital; and
c. the General Meeting has authorised the Managing Board to acquire such
shares, which authorisation shall be valid for no more than eighteen
months on each occasion,
subject to any further applicable statutory provisions and the provisions
of these Articles and the Listing Rules.
6.2. Shares thus acquired may again be disposed of by the Company.
Notwithstanding what has been provided in article 6.1, the Managing Board
shall not cause the Company to acquire Shares or dispose of such Shares
other than subject to the approval of the Joint Board. If depositary
receipts for Shares have been issued, such depositary receipts shall for
the application of the provisions of articles 6.1 and 6.2 be treated as
Shares. In addition, CUFSs shall for the application of the provisions of
articles 6.1 and 6.2 be treated as Shares.
6.3. In the General Meeting no votes may be cast in respect of any Share held by
the Company or by a subsidiary of the Company. No votes may be cast in
respect of any Share if (i) the depositary receipt for such Share, or (ii)
the CUFS issued in respect thereof is held by the Company or by a
subsidiary of the Company. However, the holders of a right of Usufruct and
the holders of a right of pledge (pandrecht) on Shares held by the Company
or by a subsidiary of the Company, are nonetheless not excluded from the
right to vote such Shares, if the right of Usufruct or the right of pledge
was granted prior to the time such Shares were acquired by the Company or
by a subsidiary of the Company. Neither the Company nor a subsidiary of the
Company may cast votes in respect of a Share on which it holds a right of
Usufruct or a right of pledge. Shares in respect of which voting rights may
not be exercised by Law or pursuant to these Articles shall not be
considered outstanding or otherwise taken into account when determining to
what extent the Shareholders have cast their votes, to what extent
Shareholders are present or represented at the General Meeting or to what
extent the share capital is provided or represented.
6.4. Upon the proposal of the Managing Board the General Meeting shall have
power to decide to cancel Shares acquired by the Company or depositary
receipts of which were acquired by the Company or to reduce the share
capital in another manner, subject however to applicable statutory
provisions. A proposal of the Managing Board, as referred to in the
preceding sentence, is subject to the approval of the Joint Board.
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6.5. A partial repayment or release must be made pro rata to all Shares. The pro
rata requirements may be waived by agreement of all Shareholders.
SHARES. SHARE CERTIFICATES.
ARTICLE 7.
7.1. Shares shall be issued in registered form only.
7.2. Shares shall be available in the form of an entry in the share register
with or without the issue of a share certificate, which share certificate
shall consist of a main part (mantel) only. Share certificates will, at the
discretion of the Managing Board, be issued upon the request of a
Shareholder.
7.3. Share certificates shall be available in such denominations as the Managing
Board shall determine.
7.4. All share certificates shall be signed on behalf of the Company by one or
more members of the Managing Board with due observance of article 18.1 of
these Articles; the signature may be effected by printed facsimile. In
addition, all share certificates may be signed on behalf of the Company by
one or more persons designated by the Managing Board for that purpose.
7.5. All share certificates shall be identified by numbers and/or letters.
7.6. The Managing Board can determine that for the purpose to permit or
facilitate trading of Shares at a foreign stock exchange, share
certificates shall be issued in such form as the Managing Board may
determine, in order to comply with the Listing Rules.
7.7. The expression "share certificate" as used in these Articles shall include
a share certificate in respect of more than one share.
MISSING OR DAMAGED SHARE CERTIFICATES.
ARTICLE 8.
8.1. Upon written request by or on behalf of a Shareholder, and further subject
to such conditions as the Managing Board may deem appropriate, missing or
damaged share certificates may be replaced by new share certificates
bearing the same numbers and/or letters, provided the Shareholder who has
made such request, or the person making such request on his behalf,
provides satisfactory evidence of his title and, in so far as applicable,
the loss of the share certificates to the Managing Board.
8.2. If, as and when the Managing Board deems such appropriate, the replacement
of missing share certificates may be made subject to the publication of the
request also stating the numbers and/or letters of the missing share
certificates, in at least three daily published newspapers to be designated
by the Managing Board.
8.3. The issue of a new share certificate shall render the share certificates
that it replaces invalid.
8.4. The issue of new certificates may in appropriate cases, at the discretion
of the Managing Board, be published in newspapers to be indicated by the
Managing Board.
SHARE REGISTER. OTHER REGISTERS.
ARTICLE 9.
9.1. With due observance of the applicable statutory provisions in respect of
registered shares, a share register shall be kept by or on behalf of the
Company, which register shall be regularly updated and, at the discretion
of the Managing Board, may, in whole or in part, be kept in more than one
copy and at more than one address.
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Part of the register may be kept abroad in order to comply with applicable
foreign statutory provisions or the Listing Rules.
9.2. Each Shareholder's name, his address and such further information as
required by Law and such further information as the Managing Board deems
appropriate, whether at the request of a Shareholder or not, shall be
recorded in the share register.
9.3. The form and the contents of the share register shall be determined by the
Managing Board with due observance of the provisions of articles 9.1 and
9.2 of these Articles.
9.4. Upon his request a Shareholder shall be provided with written evidence of
the contents of the share register with regard to the Shares registered in
his name free of charge, and the statement so issued may be validly signed
on behalf of the Company by a person to be designated for that purpose by
the Managing Board.
9.5. The provisions of articles 9.2 through 9.4 inclusive of these Articles
shall equally apply to persons who hold a right of Usufruct or a right of
pledge on one or more shares.
9.6. The Managing Board shall have power and authority to permit inspection of
the share register and to provide information recorded therein as well as
any other information regarding the direct or indirect shareholding of a
Shareholder of which the Company has been notified by that Shareholder to
the authorities entrusted with the supervision and/or implementation of the
trading of CUFSs on the ASX.
9.7. The Company shall establish and maintain any such registers as required to
be established and maintained by it under the Corporations Act, the Listing
Rules or the ASTC Operating Rules, including but not limited to a register
of debenture holders and of option holders.
9.8. The Managing Board shall have power and authority to permit auditing of the
Company's registers at such intervals, and by such persons in such manner,
as required by the Listing Rules and the ASTC Operating Rules.
NOTICES.
ARTICLE 10.
10.1. Notices of meetings and notifications which by Law or pursuant to these
Articles must be made to Shareholders shall be given by way of an
announcement in a nationally distributed newspaper in the Netherlands and
by at least one of the following means, determined at the discretion of the
Managing Board:
a. serving it on the Shareholder personally; or
b. sending it by post to the Shareholder's address as shown in the share
register or other registers as mentioned in article 9 of these
Articles or the address supplied by the Shareholder to the Company for
the giving of notices; or
c. transmitting it to the fax number supplied by the Shareholder to the
Company for the giving of notices; or
d. transmitting it electronically to the electronic mail address given by
the Shareholder to the Company for the giving of notices; or
e. serving it in any manner contemplated in this article 10.1 on a
Shareholder's attorney as specified by the Shareholder in a notice
given pursuant to article 10.4.
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10.2. Without prejudice to the provisions of article 10.1, the Company shall
notify all Shareholders of an issue of Shares in respect of which
pre-emption rights exist and of the period of time within which such rights
may be exercised by way of an advertisement in the National Gazette
(Staatscourant) and in a nationally distributed newspaper in the
Netherlands, unless the notification to all Shareholders takes place in
writing to the address as supplied by the Shareholder to the Company for
the giving of notices as referred to in article 10.1. under b.
10.3. Any Shareholder who failed to leave his address or update the Company on
any change of address is not entitled to receive any notice but the Company
may elect to serve such notices to any fax number or an electronic mail
address notified by the Shareholder to the Company.
10.4. A Shareholder may, by written notice to the Company left at or sent to the
registered office, request that all notices to be given by the Company be
served on the Shareholder's attorney at an address specified in the notice
and the Company may do so in its discretion.
10.5. Notices to a Shareholder whose address for notices is outside the country
from where the notice is sent, shall be sent by airmail, air courier, fax
or electronic mail.
10.6. Where a notice is sent by post, airmail or air courier, service of the
notice shall, to the fullest extent permitted by Law, be taken to be
effected by properly addressing and posting or delivering to the air
courier a letter containing the notice and to have been effected on the day
after the date of its posting or delivery to the air courier.
10.7. In proving service of any notice it will be sufficient to prove that the
letter containing the notice was properly addressed and put into the post
office or other public postal receptacle or delivered to the air courier.
10.8. Where a notice is sent by fax or electronic transmission, service of the
notice shall, to the fullest extent permitted by Law, be taken to be
effected by properly addressing and sending or transmitting the notice and
to have been effected on the day it is sent.
10.9. A notice may be given by the Company to a person entitled to a Share in
consequence of the death or bankruptcy of a Shareholder:
a. by serving it on the person personally;
b. by sending it by post addressed to the person by name or by the title
of representative of the deceased or assignee of the bankrupt or by
any like description at the address (if any) supplied for the purpose
by the person;
c. if such an address has not been supplied, at the address to which the
notice might have been sent if the death or bankruptcy had not
occurred;
d. by transmitting it to the fax number supplied by the person to the
Company; or
e. if such a fax number has not been supplied, by transmitting it to the
fax number to which the notice might have been sent if the death or
bankruptcy had not occurred; or
f. by transmitting it to the electronic mail address supplied by the
person to the Company.
10.10. Unless provided otherwise in these Articles where a period of notice is
required to be given, the day on which the notice is deemed to be served
will, but the day of doing the act or other thing will not be included in
the number of days or other period.
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10.11. Notifications which by Law or under these Articles are to be addressed to
the General Meeting may take place by including the same in the notice of
the General Meeting or in a document which has been made available for
inspection at the offices of the Company, provided this is mentioned in the
notice of the meeting.
10.12. Notices of meetings and notifications which by Law or pursuant to these
Articles must be made to Shareholders shall also be given to CUFS Holder(s)
provided the Shares are quoted on the ASX, any other persons entitled by
Law to attend a General Meeting and to any other person to whom the Company
is required to give notice under the Listing Rules, and any reference to
Shareholder(s) in this article 10 must be read as a reference to CUFS
Holder(s), any such person(s) entitled by Law to attend a General Meeting
and to any such other person to whom the Company is required to give notice
under the Listing Rules, with such notices and notifications to be written
in the English language and any other language determined by the Company.
10.13. Any notice as referred to in article 10.1 through article 10.12
inclusive, will be sent with due observance of the Listing Rules.
10.14. Notifications of Shareholders and other notifications to be addressed to
the Managing Board, the Supervisory Board or the Joint Board shall be sent
by letter to the office of the Company or to the addresses of all members
of the Managing Board, the Joint Board or the Supervisory Board.
TRANSFER OF REGISTERED SHARES.
ARTICLE 11.
11.1. The transfer of title to the Shares or the transfer of title to or a
termination of a right of Usufruct on Shares or the creation or release of
a right of Usufruct or of a right of pledge on Shares shall be effected by
way of a written instrument and in accordance with the (further) provisions
set forth in section 2:86, or, as the case may be, section 2:86c Dutch
Civil Code. In addition, upon the transfer of a Share in respect of which a
share certificate has been issued, such share certificate must be delivered
to the Company. The Company can acknowledge the transfer of a Share in
respect of which a share certificate has been issued by endorsement on the
share certificate or by issuance of a new share certificate to the
transferee, at the discretion of the Managing Board.
11.2. If the transfer concerns Shares that have not been fully paid-up the
acknowledgement by the Company can only be made if the written instrument
bears a fixed date (authentieke of geregistreerde onderhandse akte). After
the transfer or allocation (toedeling) of partially paid up Shares, each of
the previous Shareholders shall remain jointly and severally liable
vis-a-vis the Company for the amount to be paid on the Shares transferred
or allocated. The Managing Board together with the Supervisory Board could
discharge any previous Shareholder from further joint and several liability
by means of the execution of an authentic or registered private deed
bearing a fixed date (authentieke of geregistreerde onderhandse akte); in
such case the joint and several liability of the previous Shareholder will
remain to exist for payments called for within one year after the date on
which said authentic or registered deed is executed.
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11.3. The provisions of article 11.1 shall equally apply to (i) the allotment of
Shares in the event of a partition of any joint holding, (ii) the transfer
of Shares as a consequence of foreclosure of a right of pledge and (iii)
the creation or transfer of limited rights in rem on Shares.
11.4. Any requests made pursuant to and in accordance with articles 8, 9 and 11
may be sent to the Company at such address(es) as to be determined by the
Managing Board, at all times including an address in the municipality or
city where the ASX has its principal place of business.
FEES AND EXPENSES.
ARTICLE 12.
Without prejudice to article 9.4, the Company is authorised to charge such
amounts as may be determined by the Managing Board provided they do not exceed
cost price, to persons who have made a request pursuant to and in accordance
with articles 8, 9 and 11.
JOINT HOLDING.
ARTICLE 13.
If Shares, CUFSs or depositary receipts for Shares issued with the co-operation
of the Company are included in a joint holding, the Joint Holders may only be
represented vis-a-vis the Company by a person who has been designated by them in
writing for that purpose. The Joint Holders may also designate more than one
person. If the joint holding comprises Shares, the Joint Holders may determine
at the time of the designation of the representative or thereafter - but only
unanimously - that, if a Joint Holder so wishes, a number of votes corresponding
to his interest in the joint holding will be cast in accordance with his
instructions.
MANAGING BOARD. NUMBER OF MEMBERS OF THE MANAGING BOARD.
APPOINTMENT.
ARTICLE 14.
14.1. The Company shall be managed by the Managing Board comprising of at least
two (2) or more members under the guidance of the Supervisory Board. The
number of members of the Managing Board shall be determined by the
Supervisory Board.
14.2. Other than the CEO, no member of the Managing Board shall hold office for
a continuous period in excess of three (3) years or past the end of the
third annual General Meeting following such member's appointment, whichever
is the longer, without submitting for re-election. If no members of the
Managing Board would otherwise be required to submit for re-election but
the Listing Rules require that a member of the Managing Board is appointed,
the member to retire at the end of the annual General Meeting will be the
member, other than the CEO, who has been longest in office since their last
appointment, but, as between persons, other than the CEO, who became a
member of the Managing Board on the same day, the one to retire shall
(unless they otherwise agree among themselves) be determined by lot.
A member of the Managing Board, other than the CEO, retiring pursuant to
this article 14.2 shall be eligible for re-election and shall hold office
as a member of the Managing Board until the end of the General Meeting at
which such member retires.
14.3. Members of the Managing Board shall be appointed by the General Meeting.
If a member of the Managing Board is to be appointed, the Supervisory Board
as well as any Shareholder shall have the right to make nominations.
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14.4. Nominations by Shareholders must be made no less than thirty-five (35)
Business Days (or in the case the General Meeting is held at the request of
one or more Shareholders thirty (30) Business Days) before the date of the
General Meeting at which the appointment of members of the Managing Board
is to be considered.
The nominations shall be included in the notice of the General Meeting at
which the appointment shall be considered. If nominations have not been
made or have not been made in due time, this shall be stated in the notice
and the General Meeting may appoint a member of the Managing Board at its
discretion.
14.5. Members of the Managing Board are not required to hold any Shares.
CHAIR OF THE MANAGING BOARD. CEO. ORGANISATION OF THE MANAGING BOARD. PREVENTED
FROM ACTING.
ARTICLE 15.
15.1. The Supervisory Board shall appoint one of the members of the Managing
Board as chair of the Managing Board.
The Supervisory Board shall appoint one of the members of the Managing
Board to hold the most senior executive position in the Company and such
person shall have the title and role of chief executive officer or such
other title as the Supervisory Board determines, for the period and on the
terms as the Supervisory Board thinks fit. Subject to the terms of any
agreement entered into between the Company and the chief executive officer
in a particular case, the Supervisory Board may at any time revoke such
appointment.
15.2. The appointment as chair or chief executive officer automatically
terminates if the chair or the chief executive officer, respectively,
ceases for any reason to be a member of the Managing Board.
15.3. With due observance of these Articles, subject to the approval of the
Supervisory Board, the Managing Board may adopt Management Rules and the
Managing Board shall have authority, subject to the approval of the
Supervisory Board, to amend the Management Rules from time to time. Also,
subject to the approval of the Supervisory Board, the Managing Board may
divide the duties among the members of the Managing Board, whether or not
by way of a provision to that effect in the Management Rules. The
Management Rules may include directions to the Managing Board concerning
the general financial, economic, personnel and social policy of the
Company, to be taken into consideration by the Managing Board in the
performance of its duties.
15.4. In case one, more or all members of the Managing Board are prevented from
acting or are absent, the Supervisory Board is authorised to designate one
or more persons temporarily in charge of management (belet en ontstentenis
persoon). In case one or more members of the Managing Board are prevented
from acting or is absent, the remaining member(s) of the Managing Board may
also be temporarily responsible for the entire management. In case all
members of the Managing Board are prevented from acting or are absent and
the Supervisory Board has not designated one or more persons temporarily in
charge of the management, the Supervisory Board shall temporarily be in
charge of the management. Failing one or more members of the Managing
Board, the Supervisory Board shall take the necessary measures as soon as
possible in order to have a definitive arrangement made.
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RESOLUTIONS OF THE MANAGING BOARD. CONFLICT OF INTEREST.
ARTICLE 16.
16.1. Resolutions of the Managing Board shall be validly adopted, if adopted by
absolute majority of votes, in a meeting at which at least two (2) of the
members of the Managing Board are present.
In case of absence, a member of the Managing Board may issue a proxy only
to another member of the Managing Board, provided however that a member of
Managing Board can only act as proxy for not more than one other member of
the Managing Board.
Each member of the Managing Board has the right to cast one vote. In case
of a tie vote, if more than two members of the Managing Board are present
at the meeting, the chair of the Managing Board shall have a decisive vote.
In case of a tie vote, if only two members of the Managing Board are
present at the meeting, the proposal shall be rejected.
16.2. The Managing Board may adopt its resolutions in writing without holding a
meeting, provided that the proposals for such resolutions have been
communicated in writing to all members of the Managing Board and no member
of the Managing Board has objected to this method of adoption of a
resolution.
16.3. A certificate signed by a member of the Managing Board confirming that the
Managing Board has adopted a particular resolution, shall constitute
evidence of such resolution vis-a-vis third parties.
16.4. The Management Rules shall include provisions on the manner of convening
board meetings and the internal procedure at such meetings. These meetings
may be held by telephone conference communications, as well as by video
communications, provided all participating members of the Managing Board
can hear each other simultaneously.
16.5. Without prejudice to article 16.6, a member of the Managing Board who has
a material personal interest in a matter that relates to the affairs of the
Company must give all of the other members of the Managing Board notice of
his or her interest.
16.6. A member of the Managing Board with a material personal interest in a
matter that relates to the affairs of the Company is not required to give
notice in the following circumstances:
a. if the interest:
(i) arises because the member of the Managing Board is a Shareholder
of the Company and is held in common with the other Shareholders
of the Company; or
(ii) arises in relation to the member's remuneration as a member of
the Managing Board; or
(iii) relates to a contract the Company is proposing to enter into
that is subject to approval by the General Meeting and will not
impose any obligation on the Company if it is not approved by the
General Meeting; or
(iv) arises merely because the member of the Managing Board is a
guarantor or has given an indemnity or security for all or part
of a loan (or proposed loan) to the Company; or
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(v) arises merely because the member of the Managing Board has a
right of subrogation in relation to a guarantee or indemnity
referred to above; or
(vi) relates to a contract that insures, or would insure, the member
of the Managing Board against any liability such member incurs or
would incur as an officer of the Company (but only if the
contract does not make the Company or a related company the
insurer); or
(vii) relates to any payment by the Company or another company in
respect of an officer or any contract relating to such an
indemnity; or
(viii) is in a contract, or proposed contract, with, or for the
benefit of, or on behalf of, another company and arises merely
because the member of the Managing Board is a director of the
other company; or
b. if all of the following conditions are met:
(i) the member of the Managing Board has already given notice of the
nature and extent of the interest and its relation to the affairs
of the Company;
(ii) if a person who was not a member of the Managing Board at the
time the notice above was given, is appointed as a managing
director and the notice was given by that person; and
(iii) the nature or extent of the interest has not materially changed
or increased from that disclosed in the notice; or
c. if the member of the Managing Board has given a standing notice of the
nature and extent of the interest in accordance with article 16.8 and
that standing notice is still effective in relation to the interest.
16.7. Notices of material personal interest given by a member of the Managing
Board must:
a. give details of the nature and extent of the interest of the member of
the Managing Board and the relation of the interest to the affairs of
the Company;
b. be given at a meeting of the Managing Board as soon as practicable
after the member of the Managing Board becomes aware of his or her
interest in the matter; and
c. be recorded in the minutes of the meeting of the Managing Board at
which the notice is given.
16.8. The standing notice referred to in article 16.6 under c:
a. may be given at any time and whether or not the matter relates to the
affairs of the Company at the time the notice is given;
b. must give details of the nature and extent of the interest and be
given:
(i) at a meeting of the Managing Board (either orally or in writing);
or
(ii) to each of the other members of the Managing Board individually
in writing.
c. must be tabled at the next meeting of the Managing Board in the event
that it is given to other members of the Managing Board individually
in written form pursuant to article 16.7 under b.;
d. recorded in the minutes of the meeting at which it is given or tabled.
16.9. A standing notice that is given under article 16.8 takes effect as soon as
it is given and ceases to have effect in the following circumstances:
a. if a person who was not a member of the Managing Board at the time
when the notice was given is appointed as a member of the Managing
Board; and
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b. if the nature or extent of the interest materially changed or
increases from that that disclosed in the notice.
16.10. A member of the Managing Board who has a material personal interest in a
matter that is being considered at a meeting of the Managing Board or Joint
Board may neither be present while the matter is being considered at such
meeting nor vote on the matter, except in the following circumstances:
a. if the material personal interest is a matter that is not required to
be disclosed under article 16.6;
b. if the members of the Managing Board who do not have a material
personal interest in the matter have passed a resolution that:
(i) identified the member of the Managing Board, the nature and the
extent of the interest of the member of the Managing Board in the
matter and in relation to the affairs of the Company; and
(ii) states that the other members of the Managing Board are satisfied
that the interest should not disqualify the member of the
Managing Board from voting or being present.
16.11. If, after application of article 16.10, no member of the Managing Board,
other than the member(s) in respect of whom the conflict exists, would
remain to be entitled to be present while the matter is being considered at
the meeting of the Managing Board and to vote on the matter, the member(s)
of the Managing Board in respect of whom the conflict exists may call a
General Meeting and the General Meeting may pass a resolution to decide as
to whether or not such member(s) are entitled to be present while the
matter is being considered at such meeting and to vote on the matter.
16.12. Articles 16.6 up to and including 16.11 shall not derogate from article
18.4.
MANDATORY PRIOR APPROVAL FOR MANAGEMENT ACTION.
ARTICLE 17.
17.1. Without prejudice to any other applicable provisions of these Articles,
the Managing Board shall require the prior approval of the Supervisory
Board for any action specified from time to time by a resolution to that
effect adopted by the Supervisory Board, of which the Managing Board has
been informed in writing.
17.2. Without prejudice to any other applicable provisions of these Articles,
the Managing Board shall require the prior approval of the General Meeting
if required by Law and the provisions of these Articles, as well as for
such resolutions as are clearly defined by a resolution to that effect
adopted by the General Meeting, of which the Managing Board has been
informed in writing.
17.3. Without prejudice to any other applicable provisions of these Articles,
the Managing Board shall furthermore require the approval of the
Supervisory Board, the Joint Board and the General Meeting for resolutions
of the Managing Board regarding a significant change in the identity or
nature of the Company or the enterprise, including in any event:
a. the transfer of the enterprise or practically the entire enterprise to
a third party;
b. to conclude or cancel any long-lasting co-operation by the Company or
a subsidiary ('dochtermaatschappij') with any other legal person or
company or as a fully liable general partner of a limited partnership
or a general partnership, provided that such co-operation or the
cancellation thereof is of essential importance to the Company;
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c. to acquire or dispose of a participating interest in the capital of a
company with a value of at least one/third of the sum of the assets
according to the consolidated balance sheet with explanatory notes
thereto according to the last adopted annual accounts of the Company,
by the Company or a subsidiary ('dochtermaatschappij').
17.4. A lack of the approval of the Supervisory Board, Joint Board or the
General Meeting as mentioned in paragraphs 1 to 3 of this article may not
be invoked by or against third parties.
17.5. If a serious private bid is made for a business unit or a participating
interest and the value of the bid exceeds the threshold referred to in
paragraph 3 under c., and such bid is made public, the Managing Board
shall, at its earliest convenience, make public its position on the bid and
the reasons for this position.
REPRESENTATION. CONFLICT OF INTEREST.
ARTICLE 18.
18.1. The entire Managing Board is authorised to represent the Company and bind
it vis-a-vis third parties. The Company may also be represented by the CEO,
acting individually, and may also be represented by two members of the
Managing Board acting jointly.
18.2. The Managing Board may grant special and general powers of attorney to
persons, whether or not such persons are employed by the Company,
authorising them to represent the Company and bind it vis-a-vis third
parties. The scope and limits of such powers of attorney shall be
determined by the Managing Board. The Managing Board may in addition grant
to such persons such titles as it deems appropriate.
18.3. The Managing Board shall have the power to enter into and perform
agreements and all legal acts (rechtshandelingen) contemplated thereby as
specified in section 2:94, subsections 1 and 2 Dutch Civil Code insofar as
such power is not expressly excluded or limited by any provision of these
Articles.
18.4. If a member of the Managing Board has a conflict of interest with the
Company (whether acting in his personal capacity by entering into an
agreement with the Company or conducting any litigation against the Company
or whether acting in any other capacity), he as well as any other members
of the Managing Board, shall have the power to represent the Company, with
due observance of the provisions of the first paragraph, unless the General
Meeting designates a person for that purpose or the law provides for the
designation in a different manner. Such person may also be the member of
the Managing Board in respect of whom such conflict of interest existed.
REMUNERATION OF THE MEMBERS OF THE MANAGING BOARD.
ARTICLE 19.
19.1. The General Meeting shall adopt on the proposal of the Supervisory Board
the policy in the area of remuneration of the Managing Board. To the extent
that the Company has established an employees' council pursuant to
statutory provisions, the remuneration policy shall in written form and
together with the submission to the General Meeting be submitted to the
employees' council for examination.
19.2. The salary, the bonus, if any, and the other terms and conditions of
employment (including pension benefits) of the members of the Managing
Board will, with due observance of the policy as referred to in the
preceding paragraph, be determined by the Supervisory Board. The
Supervisory Board will submit for approval by the General Meeting
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a proposal regarding the arrangements for the remuneration in the form of
Shares or CUFSs or rights to acquire Shares or CUFSs. This proposal
includes at least how many Shares or CUFSs or rights to acquire Shares or
CUFSs may be awarded to the Managing Board and which criteria apply to an
award or a modification.
19.3. The members of the Managing Board shall be paid for their services as a
member of the Managing Board by way of fee, wage, salary, bonus, commission
or participation in profits, but not by a commission on, or percentage of,
turnover.
19.4. The remuneration to which a member of the Managing Board is entitled may
be provided to a member in cash or in such other form as is agreed between
the Company and such member. A member of the Managing Board may elect to
forgo some or all of the member's entitlement to cash remuneration in
favour of another agreed form of remuneration and vice versa.
19.5. The members of the Managing Board shall also be entitled to be paid or
reimbursed for all travelling and other expenses properly incurred by them
in attending and returning from any Managing Board meeting, meeting of any
committee of the members of the Managing Board, General Meeting or
otherwise in connection with the business or affairs of the Company.
19.6. Subject to applicable Law and the Listing Rules, a member of the Managing
Board may be engaged by the Company in any other capacity and may be
appointed on such terms as to remuneration, tenure of office and otherwise
as may be agreed with the Company.
19.7. In addition to any other amounts payable under these Articles, the Company
may make any payment or give any benefit to any member of the Managing
Board or a member of the managing board of a subsidiary of the Company or
any other person in connection with the such member's retirement,
resignation from or loss of office or death while in office, if it is made
or given in accordance with the Law and the Listing Rules.
19.8. Subject to this article 19, the Company may:
a. make contracts or arrangements with a member of the Managing Board or
a person about to become a member of the Managing Board or a member of
the managing board of a subsidiary of the Company under which such
member or any person nominated by such member is paid or provided with
a lump sum payment, pension, retiring allowance or other benefit on or
after such member or person about to become a member of the Managing
Board or of the managing board of a subsidiary of the Company ceases
to hold office for any reason;
b. make any payment under any contract or arrangement referred to in
paragraph a. above; and
c. establish any fund or scheme to provide lump sum payments, pensions,
retiring allowances or other benefits for:
(i) members of the Managing Board, on them ceasing to hold office; or
(ii) any person including a person nominated by the member of the
Managing Board, in the event of such member's death while in
office,
(iii) and from time to time pay to the fund or scheme any sum as the
Company considers necessary to provide those benefits.
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19.9. The Company may impose any conditions and restrictions under any contract,
arrangement, fund or scheme referred to in article 19.8 as it thinks
proper.
19.10. The Company may authorise any subsidiary of the Company to make a similar
contract or arrangement with the members of its Managing Board and make
payments under it or establish and maintain any fund or scheme, whether or
not all or any of the members of its managing board are also a member of
the Managing Board.
SUSPENSION OR DISMISSAL OF MEMBERS OF THE MANAGING BOARD.
ARTICLE 20.
20.1. The General Meeting shall at any time be entitled to suspend or dismiss a
member of the Managing Board.
20.2. The Supervisory Board shall also at any time be entitled to suspend (but
not to dismiss) a member of the Managing Board. During his suspension, a
member of the Managing Board will not receive any salary or other payments
unless his employment agreement or the resolution regarding his suspension
provides otherwise.
20.3. Within three months after a suspension of a member of the Managing Board
has taken effect, a General Meeting shall be held, in which meeting a
resolution must be adopted to either terminate or extend the suspension for
a maximum period of another three months. If neither such resolution is
adopted nor the General Meeting has resolved to dismiss the member of the
Managing Board, the suspension shall terminate after the period of
suspension has expired.
The member of the Managing Board shall be given the opportunity to account
for his actions at that meeting.
20.4. Further to article 20.1, a member of the Managing Board shall cease to be
a member of the Managing Board if he:
a. becomes bankrupt, or obtains suspension of payments, or any event
having analogous effect under applicable law, or proposes or makes any
agreement for the deferral, rescheduling or other adjustment of all or
part of his debts;
b. loses his full legal capacity (handelingsbekwaamheid), or any event
having analogous effect under applicable law;
c. resigns by notice in writing to the Company;
d. is absent without the consent of the other members from Managing Board
meetings held during a continuous period of three (3) months;
e. becomes prohibited from being a member of the Managing Board by reason
of any provision of law; or
f. dies.
SUPERVISORY BOARD.
ARTICLE 21.
21.1. The Supervisory Board shall be responsible for supervising the policy
pursued by the Managing Board and the general course of affairs of the
Company and the business enterprise which it operates. The Supervisory
Board shall assist the Managing Board with advice relating to the general
policy aspects connected with the activities of the Company. In fulfilling
their duties the members of the Supervisory Board shall serve the interests
of the Company and the business enterprise which it operates.
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21.2. The Managing Board shall provide the Supervisory Board and the Joint Board
in good time with all relevant information as well as with all other
information as the Supervisory Board and the Joint Board may request, in
connection with the exercise of its duties. At least once per year, the
Managing Board shall inform the Supervisory Board and the Joint Board in
writing in respect of the principles of the strategic plan, the general and
financial risks and the management and control systems of the Company. The
Managing Board shall at that time ask the approval of the Supervisory Board
and the Joint Board for:
a. The operational and financial objectives of the Company;
b. The strategy designed to achieve the objectives; and
c. The parameters to be applied in relation to the strategy, for example
in respect of the financial ratio's.
NUMBER OF MEMBERS OF THE SUPERVISORY BOARD. APPOINTMENT.
ARTICLE 22.
22.1. The Supervisory Board shall consist of at least two (2) members. The
number of members of the Supervisory Board shall be determined by the
Supervisory Board.
22.2. No member of the Supervisory Board shall hold office for a continuous
period in excess of three (3) years or past the end of the third annual
General Meeting following such member's appointment, whichever is the
longer, without submitting for re-election. If no member of the Supervisory
Board would otherwise be required to submit for re-election but the Listing
Rules require that a member of the Supervisory Board is appointed, the
member of the Supervisory Board to retire at the end of the annual General
Meeting will be the member who has been longest in office since their last
election, but, as between persons who became member of the Supervisory
Board on the same day, the one to retire shall (unless they otherwise agree
among themselves) be determined by lot. A retiring member of the
Supervisory Board pursuant to this article 22.2 shall be eligible for
re-election and shall hold office as a member of the Supervisory Board
until the end of the General Meeting at which such member retires. The
Supervisory Board shall draw up a retirement schedule for the members of
the Supervisory Board.
22.3. Members of the Supervisory Board shall be appointed by the General
Meeting, provided however, that in case of a vacancy in the Supervisory
Board at any time after the end of an annual General Meeting and prior to
the subsequent annual General Meeting, the Supervisory Board may appoint
the member(s) of the Supervisory Board so as to fill any vacancy provided
that:
a. the member(s) of the Supervisory Board so appointed by the Supervisory
Board retire(s) no later than at the end of the first annual General
Meeting following his or their appointment; and
b. the number of the members of the Supervisory Board appointed by the
Supervisory Board at any given time shall not exceed one-third (1/3)
of the aggregate number of members of the Supervisory Board as fixed
by the Supervisory Board pursuant to article 22.1, such that if the
resulting number is not a whole number, the number of members to be
appointed by the Supervisory Board shall be rounded downwards to the
nearest whole number.
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22.4. If a member of the Supervisory Board is to be appointed by the General
Meeting, the Supervisory Board as well as any Shareholder shall have the
right to make a nomination.
22.5. Nominations by Shareholders must be made no less than thirty-five (35)
Business Days (or in the case the General Meeting is held at the request of
the Shareholders thirty (30) Business Days) before the date of the General
Meeting at which the appointment of members of the Supervisory Board is to
be considered. The nominations shall be included in the notice of the
General Meeting at which the appointment shall be considered. If
nominations have not been made or have not been made in due time, this
shall be stated in the notice and the General Meeting may appoint a member
of the Supervisory Board at its discretion. Whenever a member of the
Supervisory Board must be appointed the information referred to in section
2:142 subsection 3 Dutch Civil Code shall be made available to the
Shareholders for their prior inspection. In case of a reappointment the
manner in which the candidate has fulfilled his duties as a member of the
Supervisory Board shall be taken into account.
22.6. Members of the Supervisory Board are not required to hold any Shares.
CHAIR OF THE SUPERVISORY BOARD. ORGANISATION OF THE SUPERVISORY BOARD. COMPANY
SECRETARY.
ARTICLE 23.
23.1. The Supervisory Board shall appoint one of its members as its chair. The
Supervisory Board shall be assisted by the Company Secretary, to be
appointed and dismissed, as the case may be, by the Managing Board and the
Supervisory Board jointly, subject to the approval of the Joint Board.
23.2. The Supervisory Board shall adopt a profile of its size and composition,
taking account of the nature of the business, its activities and the
desired expertise and background of the members of the Supervisory Board.
23.3. The Supervisory Board may appoint committees from among its members.
23.4. With due observance of these Articles, the Supervisory Board may adopt
Supervisory Rules and the Supervisory Board shall have the authority to
amend the Supervisory Board Rules from time to time. Furthermore, the
Supervisory Board shall adopt rules for each of its committees and the
Supervisory Board shall have the authority to amend these committee rules
from time to time.
23.5. The Supervisory Board may decide that one or more of its members shall
have access to all premises of the Company and that they shall be
authorised to examine all books, correspondence and other records and to be
fully informed of all actions which have taken place.
23.6. At the expense of the Company, the Supervisory Board may obtain such
advice from experts as the Supervisory Board deems desirable for the proper
fulfilment of its duties.
23.7. If there is only one member of the Supervisory Board in office, such
member shall have all rights and obligations granted to and imposed on the
Supervisory Board and the chair of the Supervisory Board by Law and by
these Articles.
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RESOLUTIONS BY THE SUPERVISORY BOARD. CONFLICT OF INTEREST.
ARTICLE 24.
24.1. Resolutions of the Supervisory Board shall be validly adopted, if adopted
by absolute majority of votes in a meeting at which at least two (2) of the
members of the Supervisory Board are present.
In case of absence, a member of the Supervisory Board may issue a proxy
only to another member of the Supervisory Board, provided however that a
member of Supervisory Board can only act as proxy for not more than one
other member of the Supervisory Board.
Each member of the Supervisory Board has the right to cast one vote. In
case of a tie vote, if more than two members of the Supervisory Board are
present at the meeting, the chair of the Supervisory Board shall have a
decisive vote. In case of a tie vote, if only two members of the
Supervisory Board are present at the meeting, the proposal shall be
rejected.
24.2. The Supervisory Board may adopt its resolutions in writing without holding
a meeting, provided that the proposals for such resolutions have been
communicated in writing to all members of the Supervisory Board and no
member has objected to this method of adoption of a resolution.
24.3. A certificate signed by a member of the Supervisory Board confirming that
the Supervisory Board has adopted a particular resolution, shall constitute
evidence of such resolution vis-a-vis third parties.
24.4. The members of the Managing Board shall attend meetings of the Supervisory
Board at the latter's request.
24.5. Meetings of the Supervisory Board shall be convened by the chair of the
Supervisory Board, either at the request of two or more members of the
Supervisory Board or at the request of the Managing Board. If the chair
fails to convene a meeting so that it can be held within four weeks of the
receipt of the request, the members of the Supervisory Board making the
request are entitled to convene the meeting.
24.6. The Supervisory Rules shall include provisions on the manner of convening
supervisory board meetings and the internal procedure at such meetings.
These meetings may be held by telephone conference communications, as well
as by video communications, provided all participating members of the
Supervisory Board can hear each other simultaneously.
24.7. Articles 16.5 through 16.11 inclusive of these Articles shall, to the
fullest extent possible, equally apply to members of the Supervisory Board.
Any references to member(s) of the Managing Board or the Managing Board in
those articles must be read as a reference to member(s) of the Supervisory
Board or the Supervisory Board, respectively.
REMUNERATION OF THE MEMBERS OF THE SUPERVISORY BOARD.
ARTICLE 25.
25.1. The General Meeting shall, on proposal of the Supervisory Board, determine
the maximum aggregate amount of the remuneration of the members of the
Supervisory Board, which may include an amount designated for members of
the Supervisory Board to be appointed in the future.
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25.2. The remuneration as determined in accordance with article 25.1:
a. shall be divided among the members of the Supervisory Board in the
proportions as they may agree or, if they cannot agree, equally among
them; and
b. may be exclusive of any benefits that the Company provides to members
of the Supervisory Board in satisfaction of legislative schemes
(including benefits provided under superannuation guarantee or similar
schemes).
25.3. Remuneration payable to members of the Supervisory Board shall be by a
fixed sum and not by a commission on or as a percentage of the operating
revenue of the Company.
25.4. The members of the Supervisory Board shall also be entitled to be paid or
reimbursed for all travelling and other expenses properly incurred by them
in attending and returning from any meeting of the Supervisory Board,
meeting of any committee of the Supervisory Board, General Meeting or
otherwise in connection with the business or affairs of the Company.
25.5. Subject to applicable Law and the Listing Rules, a member of the
Supervisory Board may be engaged by the Company in any other capacity and
may be appointed on such terms as to remuneration, tenure of office and
otherwise as may be agreed with the Company.
25.6. Articles 19.7 through 19.10 of these Articles shall, to the fullest extent
possible, equally apply to members of the Supervisory Board. Any references
to member(s) of the Managing Board in those articles must be read as a
reference to member(s) of the Supervisory Board.
SUSPENSION OR DISMISSAL OF MEMBERS OF THE SUPERVISORY BOARD.
ARTICLE 26.
26.1. A member of the Supervisory Board may at any time be suspended or
dismissed by the General Meeting with due observance of article 22 of these
Articles.
26.2. Within three months after a suspension of a member of the Supervisory
Board has taken effect, a General Meeting shall be held, in which meeting a
resolution must be adopted to either terminate or extend the suspension for
a maximum period of another three months. If neither such resolution is
adopted nor the General Meeting has resolved to dismiss the member of the
Supervisory Board, the suspension shall terminate after the period of
suspension has expired. The member of the Supervisory Board shall be given
the opportunity to account for his actions at that meeting.
26.3. Further to article 26.1, a member of the Supervisory Board shall cease to
be a member of the Supervisory Board if he:
a. becomes bankrupt, or obtains suspension of payments, or any other
event having analogous effect under applicable law, or proposes or
makes any agreement for the deferral, rescheduling or other adjustment
of all or part of his debts;
b. loses its full legal capacity (handelingsbekwaamheid), or any other
event having analogous effect under applicable law;
c. resigns by notice in writing to the Company;
d. is absent without the consent of the other members of the Supervisory
Board from meeting of the Supervisory Board held during a continuous
period of three (3) months;
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e. becomes prohibited from being a member of the Supervisory Board by
reason of any provision of Law; or
f. dies.
JOINT BOARD.
ARTICLE 27.
27.1. The Company shall have a Joint Board comprising not less than three (3)
and no more than twelve (12) members, or such greater number as determined
by the General Meeting. Without prejudice to the preceding sentence, the
number of members of the Joint Board shall be determined by the chair of
the Supervisory Board.
The Joint Board will be responsible for overseeing the general course of
affairs of the Company and has the other powers as described in these
Articles.
The Joint Board shall consist of all members of the Supervisory Board, the
CEO and, if the chair of the Supervisory Board decides thereto, one or more
other members of the Managing Board, to be designated by the chair of the
Supervisory Board, provided however that the number of members of the
Managing Board being on the Joint Board can never be greater than the
number of members of the Supervisory Board.
The chair of the Supervisory Board shall adopt a resolution to designate
one or more members of the Managing Board as member(s) of the Joint Board
in writing and shall communicate such resolution to all members of the
Joint Board, including the designated members of the Managing Board.
27.2. The Joint Board may resolve by unanimous votes at a meeting at which all
members of the Joint Board are present or represented to abolish the Joint
Board. The Joint Board shall no longer be instituted from the date such
resolution has been filed with the trade register of the competent Chamber
of Commerce and Industry as referred to in section 2:77 Dutch Civil Code.
27.3. Following any resolution of the Joint Board as referred to in article 27,
paragraph 2, the Supervisory Board may resolve to re-institute a Joint
Board. Any such re-institution of the Joint Board shall be effective as
from the date of filing of such resolution with the trade register of the
competent Chamber of Commerce and Industry as referred to in section 2: 77
Dutch Civil Code. If and so long as a Joint Board has been instituted, the
provisions of this article shall apply to the Joint Board and its members,
without prejudice to what has otherwise been provided in these Articles
concerning the Joint Board and its members.
27.4. If and so long as the Joint Board is not instituted, the powers and
authorities of the Joint Board shall vest in the Supervisory Board, and the
powers and authorities of the chair of the Joint Board shall vest in the
chair of the Supervisory Board.
27.5. The members of the Joint Board shall resign or be suspended or dismissed
from the Joint Board simultaneously with their resignation, suspension or
dismissal as member of the Managing Board or Supervisory Board.
27.6. The Joint Board shall appoint one of its members as chair of the Joint
Board. The Joint Board may adopt Joint Board Rules.
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27.7. Unless otherwise provided in these Articles, resolutions of the Joint
Board shall be validly adopted by an absolute majority of votes in a
meeting at which at least three (3) of the members of the Joint Board are
present, provided however that, unless there are no members of the
Supervisory Board in office, at least one member of the Supervisory Board
must be present or represented at the meeting and the votes cast in favour
of the resolution must include the vote of at least one member of the
Supervisory Board. In case of absence, a member of the Joint Board may
issue a proxy, however, only to another member of the Joint Board. Each
member of the Joint Board has the right to cast one vote. In case of a tie
vote, the chair of the Joint Board shall have a decisive vote.
27.8. The Joint Board may adopt its resolutions in writing without holding a
meeting, provided that the proposals for such resolutions have been
communicated to all members and no member has objected to this method of
adoption of a resolution.
27.9. A certificate signed by a member of the Joint Board confirming that the
Joint Board has adopted a particular resolution, shall constitute evidence
of such resolution vis-a-vis third parties.
27.10. The Joint Board shall meet whenever the chairman of the Joint Board or
two or more of its members so request. Meetings of the Joint Board shall be
convened by the chair of the Joint Board. If the chair fails to convene a
meeting so that it can be held within four weeks of the receipt of the
request, the members of the Joint Board who have requested a meeting of the
Joint Board to be held are entitled to convene such meeting.
27.11. The Joint Board Rules shall include provisions on the manner of convening
board meetings and the internal procedure at such meetings. These meetings
may be held by telephone conference communications, as well as by video
communications, provided all participating members can hear each other
simultaneously.
INDEMNIFICATION.
ARTICLE 28.
28.1. Unless otherwise provided for by Dutch Law, the Company shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative based on acts or failures to act
in the exercise of his duties as a member of the Managing Board,
Supervisory Board or Joint Board, officer, employee or agent of the
Company, or in the exercise of his duties as a director, officer or agent
of another company, a partnership, joint venture, trust or other enterprise
at the Company's request, against all expenses (including attorneys' fees)
judgements, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding.
28.2. A party involved is not entitled to reimbursement as referred to in
paragraph 1 in case and to the extent that (i) a Dutch court has
established in a final and non-appealable decision that the acts or
omissions to act of the party involved may be characterized as being wilful
misconduct (opzet), intentional recklessness (bewuste roekeloosheid) or
seriously imputable (ernstig verwijtbaar) unless otherwise provided for by
Dutch law or unless such in view of the circumstances of the case would be
unacceptable according to standards of
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reasonableness and fairness or that (ii) the costs or the financial loss of
the party involved are covered by an insurance and the insurer has
reimbursed the costs or financial loss.
28.3. To the extent that a supervisory director, managing director, member of
the Joint Board, officer, employee or agent of the Company has been
successful on the merits or otherwise in defence of any action, suit of
proceeding, referred to in paragraph 1, or in defence of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
28.4. Expenses incurred in defending a civil or criminal action, suit or
proceeding will be paid by the Company in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the member of the Managing Board, Supervisory Board, Joint Board,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorised in this article.
28.5. The indemnification provided for by this article shall not be deemed
exclusive of any other right to which a person seeking indemnification may
be entitled under any by-laws, agreement, resolution of the General Meeting
or of the disinterested members of the Managing Board or otherwise, both as
to actions in his official capacity and as to actions in another capacity
while holding such position, and shall continue as to a person who has
ceased to be a member of the Managing Board, Supervisory Board, Joint
Board, officer, employee or agent and shall also inure to the benefit of
the heirs, executors and administrators of such a person.
28.6. The Company shall have the power to purchase and maintain insurance on
behalf of any person who is or was a member of the Managing Board,
Supervisory Board, Joint Board, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another company, a partnership, joint venture, trust
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity or arising out of his capacity as
such, whether or not the Company would have the power to indemnify him
against such liability under the provisions of this article.
28.7. Whenever in this article reference is made to the Company, this shall
include, in addition to the resulting or surviving company also any
constituent company (including any constituent company of a constituent
company) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power to indemnify its members
of the Managing Board, Supervisory Board, Joint Board, officers, employees
and agents, so that any person who is or was a member of the Managing
Board, Supervisory Board, Joint Board, officer, employee or agent of such
constituent company, or is or was serving at the request of such
constituent company as a director, officer or agent of another company, a
partnership, joint venture, trust or other enterprise, shall stand in the
same position under the provisions of this article with respect to the
resulting or surviving company as he would have with respect to such
constituent company if its separate existence had continued.
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28.8. The Supervisory Board may further execute the foregoing with respect to
members of the Managing Board. The Managing Board may further execute the
foregoing with respect to members of the Supervisory Board, Joint Board,
officers, employees and agents of the Company.
GENERAL MEETING. ANNUAL GENERAL MEETING.
ARTICLE 29.
29.1. The annual General Meeting shall be held within six months after the close
of the financial year.
29.2. At this General Meeting the following subjects shall be considered:
a. the written annual report prepared by the Managing Board on the course
of business of the Company and the conduct of its affairs during the
past financial year;
b. the adoption of the annual accounts;
c. the appointment of member(s) of the Managing Board, in accordance with
the provisions of article 14;
d. the appointment of member(s) of the Supervisory Board, in accordance
with the provisions of article 22; and
e. any other proposal placed on the agenda in accordance with the
provisions of the Law or these Articles.
If the agenda shall include a proposal regarding discharge of liability
(decharge) this will be separate for managing directors and supervisory
directors.
29.3. The Managing Board and the Supervisory Board shall give the General
Meeting the opportunity to ask questions and ask for information. All
reasonable questions will be answered and all reasonable requests for
information will be fulfilled subject to the decision of the chairman of
the General Meeting.
EXTRAORDINARY GENERAL MEETINGS.
ARTICLE 30.
30.1. Without prejudice to articles 30.4 and 30.5, extraordinary General
Meetings shall be called for and held as often as deemed necessary by the
Managing Board and the Supervisory Board and shall be held on the request
of:
a. Shareholders, representing at least five percent (5%) of the issued
share capital of the Company; or
b. at least one hundred (100) Shareholders or one (1) Shareholder
representing at least one hundred (100) CUFS Holders or any relevant
combination so that the request of at least one hundred (100) persons
are taken into account,
with the percentage of votes that the Shareholders represent to be
determined as at midnight (Sydney time) before the date referred to in the
last stanza of article 30.2. The Managing Board will only call a General
Meeting, as referred to in the preceding sentence after having this
proposed to and approved by the Joint Board.
30.2. The request referred to in article 30.1:
a. must be in writing;
b. must state any resolution, and the wording of any resolution, proposed
to be put on the agenda for, and to be adopted at, the General
Meeting;
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c. may state any statement, and the wording of any statement, to be
considered at the General Meeting as referred to in article 30.7;
d. must be signed by the Shareholder(s) making the request;
e. must be given to the Company; and
f. may be given in one or more counterparts,
and if given in more than one counterpart will be taken to be received by
the Company on the date that the last of such requests is received as is
necessary to satisfy the representation requirement set out in article
30.1.
30.3. A General Meeting as requested pursuant to article 30.1 must be called
within twenty-one (21) days after the request is given to the Company. The
meeting is to be held not later than two (2) months after the request is
given to the Company with the notice convening such General Meeting to be
given in accordance with the other provisions of these Articles.
The Company must distribute to all of its Shareholders a copy of the
proposed resolution and, if applicable, the statement as referred to in
article 30.2 under c immediately following the receipt thereof, or as soon
as practicable afterwards, and in the same way, as it is required to give
notice to it's Shareholders pursuant to article 10.1. under a. through e.
inclusive. The Company shall meet the expenses incurred in making the
request provided the copy of the said statement (if any) is received in
time to send it out to the Shareholders together with the notice of the
General Meeting. Unless the Managing Board agrees otherwise, the
Shareholders requesting the General Meeting shall be jointly and
individually liable for the expenses reasonably incurred by the Company in
distributing a copy of the statement (if any) if the Company does not
receive the same in time to send it out with the notice of the General
Meeting.
30.4. If none of the Managing Board or Supervisory Board convene a General
Meeting within the twenty one (21) day period referred to in article 30.3,
Shareholders who represent fifty percent (50%) of the votes of all of the
persons who made, or were so represented in respect of, the request under
article 30.1, may call, and arrange to hold, a General Meeting, to be held
within three (3) months of the request given under article 30.1, at the
cost of the Company, including the reasonable expenses of the Shareholders.
The notice convening such General Meeting must be given in accordance with
the other provisions of these Articles.
30.5. In addition to article 30.1, shareholders representing at least five
percent (5%) of the issued share capital of the Company may call, and
arrange to hold, a General Meeting at the cost of such Shareholders. The
notice convening such General Meeting must be given in accordance with the
other provisions of these Articles. The percentage of votes that
Shareholders represent is to be determined as at midnight (Sydney time)
before the date on which the General Meeting is called.
30.6. Shareholders, who individually or together with other Shareholders may
request an extraordinary General Meeting pursuant to article 30.1, may at
all times give the Company notice of a resolution that they propose to put
on the agenda for, and have adopted at, a General Meeting.
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Such notice:
a. must be in writing;
b. must state the proposed resolution, and the wording of the proposed
resolution;
c. must be signed by the Shareholder(s) making the request;
d. must be given to the Company; and
e. may be given in one or more counterparts, and if given in more than
one counterpart will be taken to be received by the Company on the
date that the last of such requests is received as is necessary to
satisfy the representation requirement set out in article 30.1.
The Managing Board or Supervisory Board shall ensure that such resolution
is considered at the next General Meeting that occurs more than two (2)
months after such notice is given with such notice to be given in
accordance with the other provisions of these Articles. The Company must
give its Shareholders notice of the resolution at the same time, or as soon
as practicable afterwards, and in the same way, as it is required to give
notice to its Shareholders pursuant to article 10.1. under a. through e.
inclusive. The Company shall meet the expenses incurred in giving the
notice if it receives the notice in time to send it out to the Shareholders
with the notice of the General Meeting. Unless the Managing Board agrees
otherwise, the Shareholders requesting the General Meeting shall be jointly
and individually liable for the expenses reasonably incurred by the Company
in giving notice of the resolution if the Company does not receive the
request in time to send it out with the notice of the General Meeting
To the fullest extent permitted by Law, the Company need not comply with
the request if the notice of the proposed resolution is more than one
thousand (1,000) words long or defamatory.
30.7. Shareholders, who individually or together with other Shareholders may
request an extraordinary General Meeting pursuant to article 30.1, may at
all times request the Company give to all its Shareholders a statement
provided by the Shareholders making the request in connection with a
resolution that is proposed to be adopted at a General Meeting or about any
other matter that may properly be considered at a General Meeting.
Such request:
a. must be in writing;
b. must state the statement, and the wording of the statement;
c. must be signed by the Shareholder(s) making the request;
d. must be given to the Company; and
e. may be given in one or more counterparts, and if given in more than
one counterpart will be taken to be received by the Company on the
date that the last of such requests is received as is necessary to
satisfy the representation requirement set out in article 30.1.
The Company must distribute to all of its Shareholders a copy of the
proposed resolution immediately following the receipt thereof, or as soon
as practicable afterwards, and in the same way, as it is required to give
notice to its Shareholders pursuant to article 10.1. under a. through e.
inclusive.
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The Company shall meet the expenses incurred in distributing the statement,
provided it receives the statement in time to send it out to the
Shareholders together with the notice of the General Meeting. Unless the
Managing Board agrees otherwise, the Shareholders making the request shall
be jointly and individually liable for the expenses reasonably incurred by
the Company in distributing the statement if the Company does not receive
the request in time to send it out with the notice of the General Meeting.
To the fullest extent permitted by Law, the Company need not comply with
the request if the statement is more than one thousand (1,000) words long
or defamatory.
PLACE AND NOTICE OF GENERAL MEETINGS.
ARTICLE 31.
31.1. General Meetings shall be held at Amsterdam, Haarlemmermeer (Schiphol
Airport), Rotterdam, or The Hague and at the time and location stated in
the notice convening such General Meeting, without prejudice to article
37.2 under b sub (i) or article 37.3.
31.2. The notice convening a General Meeting pursuant to articles 30.1. through
30.3 inclusive shall be given by either the Managing Board or the
Supervisory Board. The notice convening a General Meeting pursuant to
articles 30.4. and 30.5 shall be given by the Shareholders in accordance
with the said articles.
31.3. Any notice of a General Meeting shall exclusively be given:
a. with due observance of the provisions of articles 10 and 32 and shall
state the location and time of, and in case the General Meeting may be
attended and addressed by way of telephone or video conferencing
pursuant to article 34.3, the details for such conferencing, and
agenda (and possible other information) for, the General Meeting and
the Information Meeting;
b. to every Shareholder and other persons entitled to receive notices of
meetings and notifications pursuant to article 10.12; and
c. to the auditor to the Company.
NOTICE PERIOD. AGENDA.
ARTICLE 32.
32.1. The notice convening a General Meeting shall be sent no later than on the
twenty-eighth day prior to the meeting. The notice shall always contain or
be accompanied by the agenda for the meeting, the place and contact details
for the purpose of receiving proxy appointments and such information as, at
the discretion of the person(s) convening the General Meeting, is deemed
necessary to enable Shareholders to make a well considered decision or
refer where such information shall be publicly available.
32.2. The agenda shall contain such subjects to be considered at the meeting as
the person(s) convening the meeting shall decide. No valid resolutions can
be adopted at a General Meeting in respect of subjects that are not
mentioned in the agenda.
32.3. Without prejudice of the provisions of article 30, one or more
Shareholders representing solely or jointly at least one-hundredth part of
the issued share capital or, as long as the shares of the Company are
admitted to official quotation on a stock exchange as referred to in
article 1, subsection e of the Securities Transactions Supervision Act 1995
(Wet toezicht effectenverkeer 1995), that is under the supervision of the
government or of an authority or organization recognized by the government,
representing a value of at least fifty million euro (EUR 50,000,000)
according to the official price list of the stock exchange
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concerned, can request the Managing Board to place a matter on the agenda,
provided that the Company has received such request at least sixty days
prior to the date of the General Meeting concerned and provided that it is
not detrimental to an overriding interest of the Company.
32.4. The Managing Board and the Supervisory Board shall, after consultation
with the Joint Board, inform the General Meeting by means of explanatory
notes to the agenda of all facts and circumstances relevant to the
proposals on the agenda. These explanatory notes to the agenda shall be put
on the company's website.
CHAIR OF GENERAL MEETINGS. MINUTES.
ARTICLE 33.
33.1. General Meetings shall be presided by the chair of the Supervisory Board.
In case of absence of the chair of the Supervisory Board the meeting shall
be presided by any other person nominated by the Supervisory Board. The
chair of the General Meeting shall appoint the secretary of that meeting.
33.2. The secretary of the meeting shall keep the minutes of the business
transacted at the General Meeting. Minutes shall be adopted and in evidence
of such adoption be signed by the chair and the secretary of the General
Meeting, or alternatively be adopted by a subsequent General Meeting; in
the latter case the minutes shall be signed by the chair and the secretary
of such subsequent General Meeting in evidence of their adoption, unless a
notarial official record (notarieel proces-verbaal) will be drawn up by a
civil law notary (notaris), in which case said official record need only be
signed by the civil law notary and by the witnesses, if any.
The draft minutes of the General Meeting shall be made available, on
request, to shareholders no later than three months after the end of the
meeting, after which the shareholders shall have the opportunity to react
to the draft minutes in the following three months. The minutes shall then
be adopted in the manner as described in the second sentence of this
paragraph.
If a notarial official record (notarieel proces-verbaal) has been drawn up,
the notarial official record shall be made available, on request, no later
than three months after the end of the general meeting.
33.3. A certificate signed by the chairman and the secretary of the meeting
confirming that the General Meeting has adopted a particular resolution,
shall constitute evidence of such resolution vis-a-vis third parties.
33.4. The chair of the General Meeting may request a civil law notary (notaris)
to include the minutes of the meeting in a notarial official record
(notarieel proces-verbaal).
ATTENDANCE OF GENERAL MEETINGS.
ARTICLE 34.
34.1. All Shareholders and other persons entitled to vote at General Meetings
are entitled to attend the General Meetings, to address the General Meeting
and to vote, provided that, and if so required as set out in the notice
convening the meeting, such person has notified the Managing Board in
writing of such person's intention to be present at the General Meeting or
to be represented not later than the time specified in the notice convening
the meeting.
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34.2. The provisions laid down in article 34.1 are mutatis mutandis applicable
on Shares from which the holders of a right of Usufruct or pledge who have
the voting right attached to those Shares derive their rights. In addition,
the provisions laid down in article 34.1 shall equally apply to CUFS
Holders, except that the CUFS Holders shall not have the right to vote.
34.3 If so determined by the Managing Board or the Supervisory Board, General
Meetings may also be attended and addressed (but no voting may so be
established) by means of telephone or video conference, provided each
person entitled to attend and address the General Meeting pursuant to
article 34.1 can hear and be heard at the same time.
34.4. The Managing Board may determine that the persons who are entitled to
attend the General Meeting, as referred to in article 34.1 and article
34.2, are persons who (i) are a Shareholders or persons who are otherwise
entitled to attend the General Meeting as at a certain date, determined by
the Managing Board, such date hereinafter referred to as: the "record
date", and (ii) who are as such registered in a register (or one or more
parts thereof) designated thereto by the Managing Board, hereinafter
referred to as: the "register", regardless of whether they are a
Shareholder or person otherwise entitled to attend the General Meeting at
the time of the General Meeting.
34.5. The record date referred to in article 34.4 cannot be earlier than at a
certain time on the seventh day and not later than at a certain time on the
third day, prior to the date of the General Meeting. The notice (oproeping)
of the General Meeting will contain the procedure for registration, and
lodgement of valid proxies.
PROXIES.
ARTICLE 35.
35.1. Shareholders and other persons entitled to attend a General Meeting may be
represented by proxies duly authorised in writing, and provided notice and
proxy appointments are given in the form approved by the Managing Board in
writing to the Managing Board in accordance with article 34.1 and with due
observance of article 35.2, such proxies shall be admitted to the General
Meeting.
35.2 The instrument appointing the proxy given in accordance with article 35.1,
and any power of attorney or other authority (if any) under which the
instrument is signed, must be deposited not less than forty-eight hours
before the start of the General Meeting or adjourned General Meeting (or
such lesser time as set out in the notice convening the General Meeting),
at the registered office of the Company or at such other place as is
specified for that purpose in the notice convening the General Meeting.
35.3. All matters regarding the admittance to the General Meeting, the exercise
of voting rights and the outcome of the votes, as well as any other matters
regarding the proceedings at the General Meeting shall be decided upon by
the chair of that meeting, with due observance of the provisions of section
2:13 Dutch Civil Code.
INFORMATION MEETING.
ARTICLE 36.
36.1. Information Meetings shall be held no more than seven (7) days prior to
each General Meeting and shall be for the benefit of Shareholders and other
persons entitled to attend a General Meeting who are unable to attend such
General Meeting.
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36.2. Information Meetings shall be held in Australia. The notice convening an
Information Meeting shall be included in the notice convening the General
Meeting and shall be given with due observance of article 31.3.
36.3. No voting will occur at any Information Meeting.
36.4. Subject to articles 34.1 and 35.1 and without limiting any other lodgement
with the Company as set out in the relevant notice of a General Meeting,
the Managing Board shall ensure that Shareholders and other persons
entitled to vote at General Meetings are able to lodge proxies at the
Information Meeting for admission to the General Meeting.
ADOPTION OF RESOLUTIONS. QUORUM. ADJOURNMENTS.
ARTICLE 37.
37.1. Unless provided otherwise by Law or these Articles, resolutions shall be
validly adopted if adopted by an absolute majority of votes cast at a
General Meeting at which at least five (5) % of the issued and outstanding
share capital is present or represented. Blank and invalid votes shall not
be counted.
37.2. If a quorum is not present within thirty (30) minutes after the opening of
the General Meeting:
a. where the meeting was convened upon the request of Shareholders, the
General Meeting will be dissolved;
b. in any other case, provided the Shares are quoted on the ASX:
(i) the meeting stands adjourned to a time and place as the Managing
Board decides provided however that such meeting shall be resumed
as soon as practically possible but not later than twenty four
hours after the time originally fixed for the General Meeting and
that the place may only be altered into a place within the same
municipality as originally fixed for the General Meeting; and
(ii) if at the adjourned meeting a quorum is not present within thirty
(30) minutes after the time appointed for the meeting, the
meeting will be dissolved.
37.3. Provided the Shares are quoted on the ASX, the chair may in order to
procure the orderly conduct of proceedings at the General Meeting (for
instance, to allow for a break, to gain information and advice, to give the
opportunity to deliberate) adjourn the General Meeting from time to time
and from place to place, provided however that such meeting shall be
resumed as soon as practically possible but not later than twenty four
hours after the time originally fixed for the General Meeting and that the
place may only be altered in a place within the same municipality as
originally fixed for the General Meeting. If the chair elects to adjourn
the General Meeting pursuant to the preceding sentence, the chair may
decide whether to seek the approval of the Shareholders present. No
business shall be transacted at any adjourned General Meeting other than
the business left unfinished at the General Meeting from which the
adjournment took place.
37.4. Any resolution to be considered at a General Meeting shall be decided on
written votes and in the manner and at the time the chair of the General
Meeting directs.
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37.5. The chair shall determine any dispute as to the admission or rejection of
a vote and such determination made in good faith shall be final and
conclusive, subject to any judicial examination by any competent court. An
objection to the qualification of a person to vote raised before or at the
General Meeting or adjourned General Meeting shall be decided upon by the
chair of the meeting, whose decision shall be final, subject to any
judicial examination by any competent court.
37.6. If the voting concerns the appointment of a person and more than one
person has been nominated for appointment, then votes shall be taken until
one of the nominees has obtained an absolute majority of the votes cast.
The further votes may, at the chair's discretion, be taken at a subsequent
General Meeting.
37.7. In the case of an equality of votes cast at the General Meeting the chair
has a casting vote.
37.8. Unless depositary receipts for Shares have been issued with the
co-operation of the Company, the Shareholders may adopt a resolution that
they can adopt at a meeting, without holding a meeting. Such a resolution
shall only be valid if all Shareholders entitled to vote have cast their
votes in writing in favour of the proposal concerned and all members of the
Managing Board and the Supervisory Board were been offered the opportunity
to advise on the resolution to be so adopted.
VOTING RIGHT PER SHARE.
ARTICLE 38.
At the General Meeting each Share shall confer the right to cast one vote,
unless provided otherwise by Law or these Articles.
SPECIAL RESOLUTIONS. PROPOSALS TO AMEND THESE ARTICLES OR TO LIQUIDATE OR TO
MERGE AND DEMERGE THE COMPANY.
ARTICLE 39.
39.1. Without prejudice to the quorum requirement as referred to in article
37.1., a resolution of the General Meeting to amend these Articles or to
dissolve the Company shall only be valid if:
a. adopted by at least a three-fourths (3/4) majority of the votes cast
at such General Meeting; and
b. with respect to a proposed amendment of these Articles one complete
copy of the proposal has been freely available for the Shareholders
and the other persons entitled to attend the General Meeting at the
office of the Company as from the day of notice convening such meeting
until the close of that meeting.
39.2. A resolution by the General Meeting to merge or demerge the Company shall
only be valid if adopted by at least a three-fourths (3/4) majority of the
votes cast at such General Meeting.
ANNUAL ACCOUNTS. REPORT OF THE MANAGING BOARD AND DISTRIBUTIONS.
ARTICLE 40.
40.1. The financial year of the Company shall run from the first day of April up
to and including the thirty-first day of March of the following year.
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40.2. Each year the Managing Board shall prepare the annual accounts, consisting
of a balance sheet as at the thirty-first day of March and a profit and
loss account in respect of the preceding financial year, together with the
explanatory notes thereto. The Managing Board shall furthermore prepare a
report on the course of business of the Company and the conduct of its
affairs during the past financial year.
40.3. The Managing Board shall draw up the annual accounts in accordance with
applicable generally accepted accounting principles and all other
applicable provisions of the Law. The annual accounts shall be signed by
all members of the Managing Board and the Supervisory Board; if the
signature of one or more of them is lacking, this shall be disclosed,
stating the reasons thereof.
40.4. The Managing Board shall explain, in a separate chapter of the annual
report the principles of the corporate governance structure of the Company.
This chapter shall reflect how the Company has applied the provisions of
the code of conduct designated pursuant to the order in council (algemene
maatregel van bestuur) as referred to in article 2:391, paragraph 4, Civil
Code to the extent that these provisions are directed to the Managing Board
or Supervisory Board. To the extent that the Company does not comply with
the provisions referred to in the preceding sentence, the Managing Board
shall reflect in the chapter referred to above why and to what extent the
Company deviates from these provisions.
40.5. The Managing Board shall, on behalf of the Company, cause the annual
accounts to be examined by one or more registered accountant(s) designated
for the purposes by the General Meeting or other experts designated for
that purpose in accordance with section 2:393 Dutch Civil Code. The auditor
or the other expert designated shall report on his examination to the
Supervisory Board and the Managing Board and shall issue a certificate
containing the results thereof. The Managing Board shall ensure that the
report on the annual accounts shall be available at the offices of the
Company for the Shareholders.
40.6. Copies of the annual accounts, the annual report of the Managing Board and
the information to be added to each of such documents pursuant to the Law
shall be made freely available at the office of the Company for the
Shareholders and the other persons entitled to attend General Meeting, as
from the date of the notice convening the General Meeting at which meeting
they shall be discussed, until the close thereof.
40.7. The registered accountant or the other expert designated for that purpose
pursuant to article 2:393, Civil Code, may be questioned by the General
Meeting in relation to its statement on the fairness of the annual account.
The registered accountant or the other expert designated for that purpose
pursuant to article 2:393, Civil Code shall therefore be invited to attend
this meeting and be entitled to address this meeting.
ARTICLE 41.
[THIS ARTICLE HAS LAPSED.]
PROFIT AND LOSS. RESERVATION. DIVIDEND.
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ARTICLE 42.
42.1. Out of the profit made in any financial year shall first be retained by
way of reserve, with due observance of applicable provisions of Law
relating to statutory reserves (wettelijke reserves) such portion of the
profit - the positive balance of the profit and loss account - as
determined by the Supervisory Board. The Supervisory Board may determine
how to attribute losses.
42.2. The portion of the profit remaining after application of article 42.1,
shall be at the disposal of the Managing Board, or, if the Managing Board
resolves so, the General Meeting.
42.3. Subject to the Law and these Articles, the Managing Board may, subject to
the approval of the Joint Board, resolve to declare a dividend and fix the
date and amount of payment and determine as to whether or not profits are
distributed to Shareholders either in cash or in Shares or other securities
issued by the Company or by other companies, or a combination thereof,
provided however that a resolution to distribute Shares requires a
resolution of the corporate body authorised to resolve upon the issue of
Shares.
42.4. Subject to the provisions of section 2:105 subsection 4 Dutch Civil Code,
and these Articles the Managing Board may, subject to the approval of the
Joint Board, resolve to declare an interim dividend on Shares. Subject to
the approval of the Joint Board, Iinterim dividends may be distributed to
the Shareholders, in proportion to the number of Shares held by each of
them, either in cash or in Shares or other securities issued by the Company
or by other companies, or a combination thereof, provided however that a
resolution to distribute Shares requires a resolution of the corporate body
authorised to resolve upon the issue of Shares.
42.5. Dividends shall be divisible among the Shareholders in proportion to the
nominal amount paid (or credited as paid) (excluding the amounts unpaid on
those Shares pursuant to article 5) on the Shares of each Shareholder
without prejudice to the other provisions of this article 42. To the extent
one or more payments on Shares are made during the period to which a
dividend relates, the dividend on the amounts so paid on Shares shall be
reduced pro rata to the date of these payments.
42.6. The Company can only declare dividends in so far as its shareholders
equity (eigen vermogen) exceeds the amount of the paid up and called
portion of the share capital, plus the statutory reserves (wettelijke
reserves).
OTHER DISTRIBUTIONS.
ARTICLE 43.
43.1. Next to possible other reserves, the Company may maintain a share premium
reserve for Shares.
43.2. The Managing Board may, subject to the approval of the Joint Board,
declare distributions out of a share premium reserve or out of any other
reserve shown in the annual accounts, not being a statutory reserve
(wettelijke reserve).
43.3. Subject to the Law and these Articles and subject to the approval of the
Joint Board, the Managing Board may resolve to declare a distribution as
referred to in article 43.2. and fix the date and amount of payment and
determine as to whether or not profits are distributed to Shareholders
either in cash or in Shares or other securities issued by the
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Company or by other companies, or a combination thereof, provided however
that a resolution to distribute Shares requires a resolution of the
corporate body authorised to resolve upon the issue of Shares.
43.4. Distributions shall be divisible among the Shareholders in proportion to
the nominal amount paid (or credited as paid) (excluding the amounts unpaid
on those Shares pursuant to article 5) on the Shares of each Shareholder.
43.5. The Company can only declare distributions in so far as its shareholders
equity (eigen vermogen) exceeds the amount of the paid up and called
portion of the share capital, plus the statutory reserves (wettelijke
reserves).
PAYMENT OF DIVIDEND AND OTHER DISTRIBUTIONS.
ARTICLE 44.
44.1. Distributions pursuant to article 42 or article 43 of these Articles shall
be payable as of the date fixed for payment by the Managing Board, subject
to the approval of the Joint Board. No dividend shall carry interest
against the Company.
44.2. Distributions pursuant to article 42 or article 43 of these Articles shall
be made payable at an address or addresses in the Netherlands, to be
determined by the Managing Board, as well as at least one address in each
other country or state where the Shares or CUFSs are traded on a stock
exchange.
44.3. Cash distributions shall be declared in United States Dollars, unless the
Managing Board determines otherwise and may be paid in such currency or
currencies as the Managing Board determines using the rate of exchange
prevailing on a date fixed by the Managing Board.
44.4. The person entitled to a distribution on Shares pursuant to article 42 or
article 43 of these Articles shall be the person in whose name the Share is
registered at a date fixed by the Managing Board.
44.5. Distributions on Shares in cash pursuant to article 42 or article 43 of
these Articles that have not been collected within five years and two days
after have become due and payable shall revert to the Company.
44.6. In the case of a distribution on Shares pursuant to articles 42.3, 43.3 or
article 43.4, any Shares or other securities in the Company or another
company not claimed within a period to be determined by the Managing Board
shall be sold for the account of the persons entitled to the distribution
who failed to claim such Shares or other securities. The net proceeds of
such sale shall thereafter be held at the disposal of the above persons in
proportion to their entitlement; the right to the proceeds shall lapse,
however, if the proceeds are not claimed within five years and two days
after the date fixed for payment of the distribution.
44.7. In the case of a distribution on Shares pursuant to articles 42.3, 43.3 or
article 43.4, any Shares or other securities in the Company or another
company that can not under applicable law be claimed or accepted by a
Shareholder within a period to be determined by the Managing Board may at
the request of the relevant Shareholder be sold for the account of the
persons entitled to such distribution. The net proceeds of such sale shall
thereafter be paid to, or held at the disposal of, the above person; the
right to the proceeds shall lapse, however, if the proceeds are not claimed
within five
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years and two days after the date the Company has notified such person of
the sale and the proceeds arising therefrom.
44.8. The Managing Board may cause the Company to deduct from any dividend or
other distribution payable to a Shareholder all sums of money due and
payable by such Shareholder to the Company on account of calls or otherwise
in relation to Shares.
DISSOLUTION. LIQUIDATION.
ARTICLE 45.
45.1. If the Company is dissolved, the liquidation shall be carried out by the
person(s) designated for that purpose by the General Meeting, under the
supervision of the Supervisory Board.
45.2. The General Meeting shall upon the proposal of the Supervisory Board
determine the remuneration payable to the liquidators and to the person
responsible for supervising the liquidation.
45.3. The liquidation shall take place with due observance of the provisions of
the Law. During the liquidation period these Articles shall, to the extent
possible, remain in full force and effect.
45.4. After settling the liquidation, the liquidators shall render account in
accordance with the provisions of the Law.
45.5. After the Company has ceased to exist, the books and records of the
Company shall remain in the custody of the person designated for that
purpose by the liquidators during a seven (7) year period.
DISTRIBUTION TO SHAREHOLDERS UPON DISSOLUTION.
ARTICLE 46.
After all liabilities of the Company have been settled, including those
incidental to the liquidation, the balance shall then be distributed among the
Shareholders in proportion to the nominal amount paid (or credited as paid)
(excluding the amounts unpaid on those Shares pursuant to article 5) on the
Shares of each Shareholder.
EFFECT OF THESE ARTICLES.
ARTICLE 47.
These Articles are binding on the Company and each Shareholder and the Company,
on the one hand, and each Shareholder severally, on the other hand, is to
observe and perform these Articles so far as they apply to him/it.
HOLDING OF SHARES AND CUFS.
ARTICLE 48.
The Shareholder holds the Shares (and accordingly any holder of CUFS takes its
interests in the Shares) subject to:
a. the provisions of these Articles;
b. any obligations or liabilities which the Shareholder may incur in respect
of the Shares pursuant to these Articles; and
c. any rights or interests of the Company or any third party in the Shares
which may arise under or pursuant to the exercise of any power contained in
these Articles.
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CHAPTER III
LIMITATIONS ON THE RIGHT TO HOLD SHARES.
ARTICLE 49.
Capitalised terms used and not defined in article 1 in this chapter III shall
have the following meaning:
AFFILIATED COMPANIES of a Person:
(i) a Parent Company of the Person;
(ii) a Subsidiary Company of the Person; and/or
(iii) another company where the Person and that company
are both Subsidiary Companies of the same Parent
Company;
ASIC ASSOCIATE Australian Securities and Investments Commission; of a
Person:
(i) an Affiliated Company of the Person; and/or
(ii) another Person with whom such Person has entered
into an agreement for the purpose of holding or
acquiring a Relevant Interest;
AUSTRALIAN LAW AND (i) decisions of an Australian court;
POLICY
(ii) published policy statements, practice notes and
other guidelines and public releases issued by
ASIC; and
(iii) published decisions, rules, policies and other
guidelines and public releases issued by the Panel,
each in relation to the provisions in the Corporations
Act (including predecessors of that legislation) similar
in nature to these Articles;
BID SECURITIES the CUFS or Shares being bid for under a Take-over Bid;
CONTROL over a Person,
(i) the ability to exercise, directly or Indirectly:
(A) more than twenty (20%) of the voting rights in
a general meeting of such Person; or (B) the right
to dismiss or appoint more than fifty percent (50%)
of the members of such Person's managing or
supervisory board; or
(ii) in respect of a Person that is not a legal entity:
being liable (whether actually or contingently)
-alone or together with one or more Affiliated
Companies - for such Person's debts vis-a-vis third
parties;
CORPORATIONS ACT BID a bid for Shares or CUFS made in compliance, so far as
possible, with Parts 6.4, 6.5, 6.6 and 6.8 of the
Corporations Act in respect of off-market bids (as that
term is defined in the Corporations Act) as if the
Company were incorporated in Australia and were the
"target" as defined in those Parts, subject to:
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(i) any requirement under those provisions for a
document to be lodged with ASIC being taken to be
satisfied if the document is given to ASX instead;
and
(ii) any other modifications or exemptions agreed
between the Person making the bid and the
Supervisory Board in accordance with article 49.13;
INDIRECTLY by, through or in concert with:
(i) one or more Affiliated Companies of such Person;
(ii) a nominee or trustee for the Person; or
(iii) another Person with whom such Person has entered
into an agreement for the purpose of holding or
acquiring a Relevant Interest;
ON MARKET TRANSACTION a transaction that is effected on ASX and is:
(i) an on-market transaction as defined in the rules
governing the operation of ASX; or
(ii) if those rules do not define on-market transactions
- effected in the ordinary course of trading on
ASX;
PANEL the Corporations and Securities Panel established under
the Australian Securities and Investments Commission Act
(2001) or any successor or replacement entity;
PARENT COMPANIES of a Person, one or more companies exercising Control
over such Person;
PERSON a natural person, a legal entity or any other legal form
that under applicable law has the power to hold a
Relevant Interest;
RELEVANT INTEREST any interest in Shares that causes or permits a Person
to:
(i) exercise or to influence (or restrain) the exercise
of voting rights on Shares (whether through the
giving of voting instructions or as a proxy or
otherwise); or
(ii) dispose or to influence (or restrain) the disposal
of Shares,
including inter alia the legal ownership of a Share, a
CUFS, a right of pledge (pandrecht) or right of Usufruct
on a Share and an interest under an option agreement to
acquire a Share or a CUFS;
SENIOR COUNSEL an Australian legal practitioner practising in the New
South Wales or Victorian bar who has been appointed by
the Attorney General of New South Wales or Victoria (as
the case may be) as a senior counsel or queen's counsel;
SUBSIDIARY COMPANIES of a Person, one or more companies over which Control is
exercised by such Person;
TAKE-OVER BID a bid for Shares or CUFS that at all relevant times
fulfils the purposes set out in article 49.1 and
complies with the principles in article 49.13.
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49.1. The purposes of this chapter III is to ensure that:
a. the acquisition of control over CUFS or Shares takes place in an
efficient, competitive and informed market; and
b. each Shareholder and CUFS Holder and as well as the Managing Board,
Joint Board and Supervisory Board:
(i) know the identity of any Person who proposes to acquire a
substantial interest in the Company; and
(ii) are given reasonable time to consider a proposal to acquire a
substantial interest in the Company; and
(iii) are given enough information to assess the merits of a proposal
to acquire a substantial interest in the Company; and
c. as far as practicable, the Shareholders and CUFS Holders all have a
reasonable and equal opportunity to participate in any benefits
accruing through a proposal to acquire a substantial interest in the
Company.
In the interpretation of a provision of article 49, a construction that
would promote the purpose or object underlying these Articles is to be
preferred to a construction that would not promote that purpose or object.
49.2. Without prejudice to the exceptions and exemptions as referred to in
articles 49.5 and 49.6, no Person may hold a Share if, because of an
acquisition of a Relevant Interest by any Person in that Share:
a. the number of Shares in respect of which any Person (including,
without limitation, the holder) directly or Indirectly acquires or
holds a Relevant Interest increases:
(i) from twenty percent (20%) or below to more than twenty percent
(20%); or
(ii) from a starting point that is above twenty (20%) and below ninety
percent (90%),
of the issued and outstanding share capital of the Company; or
b. the voting rights which any Person (including, without limitation, the
holder) directly or Indirectly, is entitled to exercise at a General
Meeting on any matter increase:
(i) from twenty percent (20%) or below to more than twenty percent
(20%); or
(ii) from a starting point that is above twenty percent (20%) and
below ninety percent (90%),
of the total number of such voting rights which may be exercised by
any Person at a General Meeting.
For the purposes of this article 49 (including article 49.2), a Person
holds a Share if the Person:
(A) is the legal owner of the Share; or
(B) holds a right of pledge (pandrecht) or right of Usufruct on
Shares, provided the right to vote the Shares so pledged or
subject to the right of Usufruct is included in such right.
Any holding of a Share or acquisition of a Relevant Interest in breach
of this article 49.2 does not cause such acquisition or holding to be
invalid.
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49.2A (a) A Shareholder must give the information referred to in article
49.2A(e) to the Company if:
(i) a Person begins to have, or ceases to have, a substantial holding
in the Company; or
(ii) a Person has a substantial holding in the Company and there is a
movement of at least one percent (1%) in their holding; or
(iii) a Person makes a Take-over Bid for securities of the Company.
The Shareholder must also give the information to the ASX. For the
purposes of this article, a "Substantial Holder" means a Person
referred to in paragraphs (i), (ii) or (iii) above.
(b) The obligation of the Shareholder to provide this information referred
to in article 49.2A(e) is taken to be satisfied if it is provided to
the Company and ASX by the Substantial Holder.
(c) For the purposes of this article, a Person has a substantial holding
in the Company if the total votes attached to Shares in which the
Person directly or Indirectly:
(A) has Relevant Interests; or
(B) would have a Relevant Interest but for the operation of article
49.5(g) or article 49.5(j),
is five percent (5%) or more of the total number of votes attached to
all Shares.
(d) For the purposes of this article there is a movement of at least one
percent (1%) in a Person's holding if the percentage worked out using
the following formula increases or decreases by one (1) or more
percentage points from the percentage they last disclosed under this
article in relation to the Company:
Person's votes
-------------------------- x one hundred (100)
Total votes in the Company
where:
"Person's votes" is the total number of votes attached to all the
Shares (if any) in which the Person directly or Indirectly has a
Relevant Interest.
"Total votes in the Company" is the total number of votes attached to
all Shares.
(e) The information to be given must include:
(i) the Substantial Holder's name and address;
(ii) details of their Relevant Interest in Shares and of the
circumstances giving rise to that Relevant Interest;
(iii) the name of the Shareholders in relation to the Shares in which
the Substantial Holder has a Relevant Interest;
(iv) details of any agreement through which the Substantial Holder
would have a Relevant Interest in Shares in the Company;
(v) the name of each Associate who has a Relevant Interest in Shares
in the Company, together with details of:
(A) the nature of their association with the Associate;
(B) the Relevant Interest of the Associate; and
(C) any agreement through which the Associate has the Relevant
Interest; and
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(vi) if the information is being given because of a movement in their
holding - the size and date of that movement.
(f) The information must be given in the form prescribed by the Company
(if the Company has prescribed a form) and must be accompanied by:
(i) a copy of any document including any agreement that:
(A) contributed to the situation giving rise to the Shareholder
needing to provide the information; and
(B) is in writing and readily available to the Substantial
Holder or Shareholder; and
(ii) a statement by the Substantial Holder or Shareholder giving full
and accurate details of any contract, scheme or arrangement that:
(A) contributed to the situation giving rise to the Shareholder
needing to provide the information; and
(B) is not both in writing and readily available to the
Substantial Holder or Shareholder.
(g) The information does not need to be accompanied by the documents
referred to in article 49.2A(f) if the transaction that gives rise to
the Shareholder needing to provide the information takes place on the
ASX.
(h) The Shareholder must give the information:
(i) within two (2) Business Days after they become aware of the
information as referred to in article 49.2(A)(e); or
(ii) by nine-thirty (9.30 am) on the next trading day of the ASX after
they become aware of the information as referred to in article
49.2(A)(e) if a Take-over Bid is made.
49.3. For the purpose of article 49.2 or article 49.2A, a Person:
a. holding or acquiring a Relevant Interest; or
b. exercising the voting rights at a General Meeting,
shall together with his Affiliated Companies be considered as one Person in
respect of such Relevant Interest or exercise of voting rights, and each of
them, to the extent he holds one or more Shares shall be jointly and
severally liable (hoofdelijk aansprakelijk) for each other's obligations
under these Articles pursuant to article 49.7 under a., and article 50.3
under b. In addition, there may be imposed on each of them the other
remedies referred to in articles 49.7 and 50.3.
49.4. For the purpose of article 49.2 or article 49.2A, if one or more Persons
pursuant to an agreement or a nominee or trustee arrangement act together
for the purpose of:
a. holding or acquiring a Relevant Interest; or
b. exercising the voting rights at a General Meeting; or
c. circumventing the prohibition as referred to in article 49.2 or the
obligation in article 49.2A,
all of them shall be considered as one Person in respect of such Relevant
Interest, exercise of voting rights or circumvention of the prohibition or
obligation. Each of them, to the extent he holds one or more Shares shall
be jointly and severally liable (hoofdelijk aansprakelijk) for each other's
obligations under these Articles pursuant to article 49.7
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under a. and article 50.3 under b. In addition, there may be imposed on
each of them the other remedies referred to in articles 49.7 and 50.3.
49.5. A Person is not considered to hold or acquire a Relevant Interest for the
purpose of article 49.2 or article 49.2A, if the Relevant Interest arises
merely because:
a. that Person acquires a Relevant Interest solely as a nominee or
trustee for a Person who may direct the nominee or trustee as to the
exercise of any power relating to the Relevant Interest;
b. that Person holds Shares as a securities intermediary
(effectenbemiddelaar) within the meaning of section 7 of the 1995 Act
on the supervision of the securities trade (Wet toezicht
effectenverkeer 1995), such as inter alia brokers and dealers,
provided such Person acts on behalf of someone else (and not for his
own account) in the ordinary course of such Person's business and
provided such person is qualified to practise under applicable law;
c. that Person holds Shares as a custodian (bewaarder) or depository in
order to enable the Shares of the Company to be traded on a stock
market of a securities exchange, provided such Person is qualified to
practise under applicable law;
d. that Person holds or acquires a Relevant Interest as a result of a
share repurchase and cancellation of shares;
e. of a charge or other security taken for the purpose of a transaction
entered into by the Person if:
(i) the mortgage, charge or security is taken or acquired in the
ordinary course of the Person's business of providing financial
services and on ordinary commercial terms; and
(ii) the Person whose property is subject to the charge or security is
not an Affiliated Company of the Person;
f. the Person has been appointed to vote as a proxy or representative on
Shares if:
(i) the appointment is for one General Meeting only; and
(ii) neither the Person nor any Affiliated Company gives valuable
consideration for such appointment;
g. of:
(i) an exchange traded option over the Shares; or
(ii) a right to acquire a Relevant Interest given by a (futures)
agreement.
This paragraph g. stops applying to any Relevant Interest when the
obligation to make or take delivery of the Shares arises;
h. a company's articles of association or applicable law gives all
shareholders pre-emptive rights on the transfer of shares if all
shareholders of the relevant company have pre-emptive rights on the
same terms;
i. the Person is a (managing) director of a legal entity having a
Relevant Interest; or
j. of an agreement if the agreement is conditional on a resolution
referred to in article 49.6 under e.
When a Person's Relevant Interest in a Share is disregarded pursuant to
this article 49.5, the Person shall for the purposes of article 49.2 under
b. or article 49.2A be taken not to be entitled to exercise, directly or
Indirectly, the voting rights relating to that Share.
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49.6. The prohibition as referred to in article 49.2 or the obligation as
referred to in article 49.2A shall not apply to the extent that:
a. the holding or acquisition of a Relevant Interest results from the
acceptance of offers under a Take-over Bid;
b. the holding or acquisition of a Relevant Interest is the result of an
On-Market Transaction if:
(i) the acquisition is by or on behalf of the bidder under a
Take-over Bid; and
(ii) the acquisition occurs during the bid period in respect of the
Take-over Bid; and
(iii) the Take-over Bid is for all the Bid Securities; and
(iv) the Take-over Bid is unconditional;
c. the holding or acquisition of a Relevant Interest arises in the
following circumstances:
(i) throughout the six (6) months before the acquisition a Person
directly, or Indirectly, holds a Relevant Interest in the issued
and outstanding share capital of the Company of at least nineteen
percent (19%); and
(ii) as a result of the acquisition, directly, or Indirectly, the
Person would have a Relevant Interest in the issued and
outstanding share capital of the Company not more than three (3)
percentage points higher than he had six (6) months before the
acquisition;
d. the holding or acquisition of a Relevant Interest:
(i) is consistent with the purposes in article 49.1; and
(ii) conforms to the principles in article 49.13 as they apply to the
acquisition or holding, adjusting those principles as appropriate
to meet the particular circumstances of the acquisition or
holding but without derogating from the purposes in article 49.1;
and
(iii) has received the prior approval of the Supervisory Board;
e. the holding or acquisition of a Relevant Interest has been approved
previously by a General Meeting if:
(i) no votes are cast in favour of the resolution by:
(A) the Person proposing to make the acquisition and its
Associates; or
(B) the Person (if any) from whom the acquisition is to be made
and its Associates; and
(ii) the Shareholders were given all information known to the Person
proposing to make the acquisition or its Associates, or known to
the Company, that was material to the decision on how to vote on
the resolution, including:
(A) the identity of the Person proposing to make the acquisition
and its Associates; and
(B) the maximum extent of the increase in that Person's Relevant
Interest in the Company that would result from the
acquisition; and
(C) the Relevant Interest that Person would have as a result of
the acquisition; and
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(D) the maximum extent of the increase in the Relevant Interest
each of that Person's Associates that would result from the
acquisition; and
(E) the Relevant Interest that each of that Person's Associates
would have as a result of the acquisition;
f. the holding or acquisition of a Relevant Interest results from an
acquisition through operation of law including a merger by Law in
accordance with the Dutch Civil Code;
g. the holding or acquisition of a Relevant Interest results from the
acceptance of take-over offers made by the Company for the securities
of another body corporate listed on the stock market of a securities
exchange, which offers are made in accordance with applicable
securities law regulating the conduct of take-overs of bodies
corporate of that kind, where Shares or securities convertible into
Shares are included in the consideration for the acquisition of
securities under those offers;
h. the holding or acquisition of a Relevant Interest results from the
exercise of rights of conversion attaching to securities convertible
into Shares issued in accordance with paragraph g; or
i. the holding or acquisition of a Relevant Interest results from an
issue by the Company under a prospectus to a Person as underwriter or
sub-underwriter to the issue where the prospectus disclosed the effect
or range of possible effects that the issue would have on the number
of Shares in which that Person would have a Relevant Interest and on
the voting rights of that Person.
49.7. Subject to articles 49.8 and 49.9, the Supervisory Board may cause the
Company to exercise any one or more of the following remedies if a breach
by a Person of the provisions of article 49.2 or article 49.2A has occurred
or is continuing:
a. require, by notice in writing, the Shareholder to dispose all or part
of the Shares so held in breach of article 49.2 or article 49.2A
within the time specified in the notice;
b. disregard the exercise by such Person of all or part of the voting
rights arising from the Shares or the right of pledge (pandrecht) or
the right of Usufruct on Shares, provided the right to vote the Shares
so pledged or subject to the right of Usufruct is included in such
right so held in breach of article 49.2 or article 49.2A; or
c. suspend such Person from the right to receive all or part of the
dividends or other distributions arising from the Shares so held in
breach of article 49.2 or article 49.2A.
49.8. The Company may exercise the remedies referred to in article 49.7 if it
first obtains a judgement from the competent courts and acts in accordance
with such judgement, that a breach of the prohibition of article 49.2 or
the obligation in article 49.2A has occurred and is continuing.
49.9. In addition to exercising its rights under articles 49.8 and 49.10, the
Company may exercise the remedies referred to in article 49.7 if it first
obtains advice from, and acts in accordance with the advice of:
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a. a Senior Counsel in the commercial field of at least five (5) years
standing as a Senior Counsel; or
b. a senior partner experienced in Australian mergers and acquisitions of
a major Australian commercial law firm; and
in either case, being independent of (and not associated with) the Company
or any other interested party and without a material personal interest in
the matter. The advisor shall be appointed by the Company, but must be
nominated by:
(i) the president of the Panel; or
(ii) if such Person is unwilling or unable to make the nomination, the
director of the Panel; or
(iii) if such Person is unwilling or unable to make the nomination, a
mediator on the Supreme Court of New South Wales list of approved
mediators nominated by the Company.
The advisor must inter alia be instructed to:
(A) advise whether any breach of article 49.2, article 49.2A or article
50.2 has occurred;
(B) have regard to the purposes under article 49.1 and to the extent
applicable, the principles in article 49.13, Australian Law and Policy
in interpreting these provisions and giving this advice;
(C) in determining whether the exception under article 49.6 under a.
applies to an acquisition or holding of a Relevant Interest pursuant
to a Take-over Bid that is not a Corporations Act Bid, have regard to
the manner in which a bid for CUFS or Shares would have been conducted
under a Corporations Act Bid, including the information which would
have provided to shareholders in connection with such bid;
(D) give the Company and any Person that would be aggrieved by the
exercise of the Company's powers under articles 49.7 or article 50.3
the opportunity, with their legal advisors, to make submissions to the
advisor, prior to the advisor providing the advice;
(E) have regard to issues under Dutch law to the extent relevant to
providing his or her advice and for that purpose to retain, at the
Company's cost, an appropriately qualified expert in Dutch law; and
(F) provide his or her advice as soon as possible.
The Company shall:
1. provide any assistance or information it may possess, which is
reasonably required by the advisor to give this advice;
2. be responsible for paying the advisors' fees and expenses;
3. include in the terms of the advisor's appointment an indemnity by the
Company in favour of the advisor for any loss or liability he or she
may incur in connection with providing this advice, except as a result
if his or her negligence or wilful default; and
4. provide a copy of the advice to the Person who has breached or is
alleged to have breached article 49.2, article 49.2A or article 50.2.
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The Company shall include any other terms and conditions in the appointment
of the advisor which the Person nominating the advisor specifies.
49.10. Where the Company is seeking but has not received advice under article
49.9, the Company may also exercise any of the remedies described in
article 49.7 (other than that as described under a.) by notice in writing
to the Shareholder but so that they have effect for the period commencing
on the date the notice is given and ending on the earlier of:
a. twenty one (21) days after the notice has been given; and
b. one (1) day after the advice under article 49.9 has been provided to
the Company.
49.11. If there are reasonable grounds to believe that a breach of article 49.2
or article 49.2A has occurred, the Supervisory Board must consider whether
to exercise the remedies under article 49.7 or article 50.3 and take advice
as to whether it should exercise those remedies. For that purpose, the
Supervisory Board must give proper consideration to (and include within any
brief for advice) any submission that a breach has occurred from any
Shareholders or any other interested Person or officer of the Company
aggrieved by the alleged breach.
49.12. If the requirements of any notice pursuant to article 49.7 under a. are
not complied with by the Person within the time specified in the notice,
the Company may, as an irrevocable proxy of the Shareholder, without any
further instrument, cause the Shares referred to in the notice to be sold
on any relevant securities exchange on which they are quoted, or, if they
are not so quoted, in accordance with section 2: 87b Dutch Civil Code.
The Company may:
a. appoint a Person as transferor to effect a transfer in respect of any
Shares sold in accordance with this article and to receive and give
good discharge of the purchase money for them;
b. acknowledge the transfer despite the fact that the share certificates
(if any) may not have been delivered to the Company;
c. issue a new share certificate (if required) in which event the
previous certificate(s) (if any) are deemed to have been cancelled;
d. if the Person delivers the relevant share certificates (if any) to the
Company for cancellation, the purchase money less the expenses of any
sale made in accordance with paragraph (b) above must be paid to the
Person whose Shares were sold; and
e. if the Person does not deliver the relevant share certificates (if
any) to the Company, the Company may sue the Person in detinue for
recovery of the share certificates (if any), and the Person is not
entitled to deny or dispute the Company's ownership and right to
possession of any share certificate in any legal action.
The Company may, by notice in writing, at any time require any
Shareholder to provide the Company any information or evidence (on
oath or otherwise verified if the Company reasonably requires) as the
Company may consider likely to be of
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assistance in determining whether or not that Person is eligible to
remain a Shareholder with respect to all his Shares.
Despite anything in this article 49.12, the Company has no liability,
subject to article 49.18, arising from any Person holding Shares in
circumstances which would result in or have the effect of causing an
infringement or contravention of article 49.2 or article 49.2A.
The Company and the members of its Managing Board, Supervisory Board
or Joint Board have no liability to any Person arising from any action
taken by the Company under this article, provided that such action was
taken in good faith.
49.13. In addition to fulfilling the purposes in article 49.1, a Take-over Bid
must comply with the following principles.
a. An offer for Bid Securities must be an offer to buy all the Bid
Securities or a specified proportion of the Bid Securities. The
proportion specified must be the same for all holders of the Bid
Securities.
b. A Person who holds one (1) or more parcels of those securities as
trustee or nominee for, or otherwise on account of, another Person may
accept the offer as if a separate offer had been made in relation to:
(i) each of those parcels; and
(ii) any parcel they hold in its own right;
c. All the offers made must be the same. In applying this paragraph, the
following shall be disregarded:
(i) any differences in the offers attributable to the fact that the
number of Bid Securities that may be acquired under each offer is
limited by the number of Bid Securities held by the holder;
(ii) any differences in the offers attributable to the fact that the
offers relate to Bid Securities having different accrued dividend
or distribution entitlements;
(iii) any differences in the offers attributable to the fact that the
offers relate to Bid Securities on which different amounts are
paid up or remain unpaid;
(iv) any differences in the offers attributable to the fact that the
Person making the offer may issue or transfer only whole numbers
of securities as consideration for the acquisition; and
(v) any additional cash amount offered to holders instead of the
fraction of a security that would otherwise be offered.
d. The consideration offered for Bid Securities must equal or exceed the
maximum consideration that the Person making the offer directly or
Indirectly provided, or agreed to provide, for Shares or CUFS under
any purchase or agreement during the four (4) months before the first
day of the period of the offer.
e. A Person making an offer for Bid Securities must not directly or
Indirectly, during the period of the offer, give, offer to give or
agree to give a benefit to a Person if:
(i) the benefit is likely to induce the Person directly or Indirectly
to:
(A) accept the offer; or
(B) dispose of Shares or CUFS; and
(ii) the benefit is not offered to all holders of Bid Securities.
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f. The period of the offer must:
(i) start on the date the first offer is made; and
(ii) last for at least one (1) month, and not more than twelve (12)
months. If, within the last seven (7) days of the period of the
offer:
(A) the offers are varied to improve the consideration offered
(including by offering an alternative form of consideration); or
(B) the number of Shares in which the Person making the offer
directly or Indirectly holds a Relevant Interest, or both,
increases to more than fifty percent (50%) of the issued and
outstanding share capital of the Company,
the period of the offer is extended so that it ends fourteen (14) days
after the event referred to in paragraph (A) or (B) above.
g. Offers must not be subject to a maximum acceptance condition. A
maximum acceptance condition is one that provides that the offers will
terminate, or the maximum consideration offered will be reduced, if
effectively one or more of the following occurs:
(i) the number of Bid Securities for which the Person making the
offer receives acceptances reaches or exceeds a particular
number; or
(ii) the number of Shares in which the Person making the offer
directly or Indirectly holds a Relevant Interest, or both,
reaches or exceeds a particular percentage of the issued and
outstanding share capital of the Company; or
(iii) the percentage of Bid Securities the Person making the offer has
a Relevant Interest in reaches or exceeds a particular percentage
of Bid Securities in that class.
Offers must not be subject to a discriminatory condition. A
discriminatory condition is a condition that allows the Person making
the offer to acquire, or may result in that Person acquiring, Bid
Securities from some but not all of the people who accept the offers.
Offers must not be subject to a condition if the fulfilment of the
condition depends on:
(i) the opinion, belief or other state of mind of the Person making
the offer or an Affiliated Company; or
(ii) the happening of an event that is within the sole control of, or
is a direct result of action by, any of the following:
(A) the Person making the offer (acting alone or together with
an Affiliated Company); or
(B) an Affiliated Company (acting alone or together with the
Person making the offer or another Affiliated Company of
that Person).
h. The Person making the offer may only vary the offer made by:
(i) improving the consideration offered (including by offering an
additional form of consideration); or
(ii) extending the period of the offer.
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The terms of unaccepted offers must be varied in the same way. Any
person who has already accepted an offer must be entitled to the
improved consideration and, in the case of an addition of a new form
of consideration, be entitled to make a fresh election.
i. A Person making an offer that is unconditional may extend the period
of the offer at any time before the end of the offer. A Person making
an offer that is still subject to conditions may only extend the
period of the offer at least seven (7) days before the end of the
period of the offer unless during that seven (7) day period another
Person announces a bid for Bid Securities or improves the
consideration offered under another bid for Bid Securities.
j. Each offer must be in writing and have the same date. This date is the
day the first offer is made.
k. The Person making the offer must, at the same time it gives its offer
to holders of Bid Securities, also give a document to those holders
setting out all information known to the Person that is material to
the making of the decision by a holder of Bid Securities whether or
not to accept the offer. This document must be given to the Company
and ASX at least fourteen (14) days before it is given to these
holders and must be dated. The date is the date on which the document
is given to ASX. If the Person making the offer becomes aware of:
(i) a misleading or deceptive statement in the document; or
(ii) an omission from the document of information required by article
49.1 or this article 49.13; or
(iii) a new circumstance that:
(A) has arisen since the document was given to the Company; and
(B) would have been required by article 49.1 or this article
49.13 to be included in the document if it had arisen before
the document was given to the Company,
that is material from the point of view of a holder of Bid Securities,
the Person making the offer must prepare a supplementary document that
remedies this defect. The Person making the offer must give the
supplementary document to the Company and give a copy with ASX. The
supplementary document must be dated. The date is the date on which
the supplementary document is given to ASX.
49.14. A bid for Shares or CUFS is taken to comply with the principles in
article 49.13 if it is a Corporations Act Bid at all relevant times. The
Supervisory Board must act reasonably and in a timely manner in agreeing
with a Person making a Corporations Act Bid to any modifications or
exemptions to the application of Parts 6.4, 6.5, 6.6 and 6.8 of the
Corporations Act to a Corporations Act Bid having regard to the purposes in
article 49.1, the principles in article 49.13 and Australian Law and
Policy.
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49.15. If a Take-over Bid is made, the Company must:
a. give to all holders of Bid Securities, ASX and the Person making the
Take-over Bid a document in a timely manner setting out all
information that the holders and their professional advisers would
reasonably require to make an informed assessment whether to accept an
offer under the Take-over Bid. The document must contain this
information:
(i) only to the extent to which it is reasonable for investors and
their professional advisers to expect to see the information in
the document; and
(ii) only if the information is known to any members of the Managing
Board or Joint Board; and
The document must also contain a statement by each member of the
Managing Board and Joint Board:
(A) recommending that offers under the Take-over Bid be accepted or
not accepted, and giving reasons for the recommendation; or
(B) giving reasons why a recommendation is not made.
The document must be dated. The date is the date on which the document
is given to ASX;
b. if it becomes aware of:
(i) a misleading or deceptive statement in the document; or
(ii) an omission from the document of information required by
paragraph a above; or
(iii) a new circumstance that:
(A) has arisen since the document was given to the Person making
the offer; and
(B) would have been required by paragraph a. above to be
included if it had arisen before the document was given to
the Person making the offer,
that is material from the point of view of a holder of Bid Securities,
prepare a supplementary document that remedies this defect and give it
to the Person making the offer and ASX. The supplementary document
must be dated. The date is the date on which the supplementary
document is given to ASX; and
c. if it has been given a document in accordance with article 49.13 under
k. and the Person making the offer makes a request for information
under this paragraph for the purposes of fulfilling the purposes under
article 49.1 and complying with the principles under article 49.13,
the Company must inform the Person of the name and address of each
Person who held Bid Securities and that Person's holding, at the
specified time by the Person making the Offer. The Company must give
the information to the Person making the offer in a timely manner and:
(i) in the form that the Person requests; or
(ii) if the Company is unable to comply with the request - in writing.
If the Company must give the information to the Person in electronic
form, the information must be readable but the information need not be
formatted for the preferred operating system of the Person making the
offer.
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49.16. The Company may, by giving notice in writing, require the holder of a
Share or a CUFS to give to the Company, within two (2) Business Days after
receiving the notice, a statement in writing setting out:
a. full details of the holder's Relevant Interest and of the
circumstances giving rise to that Relevant Interest; and
b. the name and address of each other Person who has a Relevant Interest
together with full details of:
(i) the nature and extent of the Relevant Interest; and
(ii) the circumstances that give rise to the Person's Relevant
Interest; and
c. the name and address of each Person who has given the holder of the
Shares or the Person as referred to in paragraph b. above instructions
about:
(i) the acquisition or disposal of a Relevant Interest; or
(ii) the exercise of any voting or other rights attached to a Relevant
Interest;
(iii) any other matter relating to a Relevant Interest; together with
full details of those instructions (including the date or dates
on which those relevant instructions were given).
A matter referred to in paragraph b. or c. need only be disclosed to
the extent to which it is known to the Person making the disclosure
Where a statement is delivered to the Company containing any details
as referred to in paragraphs b. or c., the Company may, by giving
notice in writing, require a holder of a Share or a CUFS to give to
the Company or to use its best endeavours to procure that any other
Persons as referred to in paragraphs b. or c. above to give to the
Company, within two (2) days after receiving the notice, a statement
in writing setting out the details as referred to in paragraphs a, b.
and/or c. above.
49.17. So long as Shares are quoted on ASX, if the Company becomes subject to
the law of any jurisdiction which applies so as to regulate the acquisition
of control, and the conduct of any take-over, of the Company:
a. the Company shall consult promptly with ASX to determine whether, in
the light of the application of such law:
(i) ASX requires amendment to Chapter III of these articles in order
for these Articles to comply with the Listing Rules as then in
force; or
(ii) any waiver of the Listing Rules permitting the inclusion of all
or part of Chapter III in these Articles has ceased to have
effect; and
b. where:
(i) the Listing Rules require these Articles to contain a provision
and it does not contain such a provision;
(ii) the Listing Rules require these Articles not to contain a
provision and it contains such a provision; or
(iii) any provision of these Articles is or becomes inconsistent with
the Listing Rules,
the Managing Board shall put to the General Meeting a proposal to
amend these Articles so as to make them, to the fullest extent
permitted by Law, consistent with the Listing Rules.
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49.18. The Company shall indemnify a Person who:
a. is or was a Shareholder for the purpose of making CUFS available; and
b. was or is a party or is threatened to be made a party to any
threatened, pending, current or completed action, suit, investigation
or proceeding, whether civil, criminal, administrative or
investigative brought by any other person in connection with any
action taken or not taken by such person or the Company as
contemplated under article 49.7, article 49.12 or article 50.3,
against all expenses (including attorneys' fees) judgements, fines and
amounts paid in settlement which are actually and reasonably incurred
by the person in connection with such action, suit, investigation or
proceeding unless such Shareholder acted in bad faith.
CUFS HOLDERS.
ARTICLE 50
50.1. This article 50 is applicable to CUFS Holders who are bound by these
Articles under the Corporations Act (as modified) or any other applicable
law.
50.2. A CUFS Holder shall not do anything which would result in a breach of
these Articles whether on the part of that Person or another Person bound
by these Articles.
50.3. Where a remedy is exercisable under article 49.7 in respect of Shares and
CUFS are issued in respect of the Shares which are the subject of the
remedy:
a. the Company must give a written notice setting out the name and
holding of the CUFS Holder, whose CUFS relate to the Shares, and such
other information as the Company considers necessary, to the
Shareholder and the Shareholder shall be entitled to rely on the
information contained in that notice for the purposes of these
Articles. A copy of this notice, as well as any notice given to the
Shareholder under article 49.7 or article 49.10, must also be given to
that CUFS Holder;
b. the Supervisory Board may cause the Company to require, by notice in
writing to the CUFS Holder, that the CUFS Holder dispose of such
number of CUFS that relate to the Shares, and within such time, as is
specified in the notice;
c. if the notice to the Shareholder under paragraph a. above states that
the right to receive dividends or other distributions in respect of
any of those Shares has been suspended, the Shareholder shall not,
before receiving notice from the Company that the suspension has been
lifted, distribute, nor direct the Company to distribute, to the CUFS
Holder any dividend or distribution from the Company in respect of the
CUFS which relate to those Shares;
d. if the notice to the Shareholder under paragraph a. above states that
the Company has determined to disregard the exercise of voting rights
attached to particular Shares, the Shareholder shall inform the
Company, as required by the Company, of such directions as to voting
which the Shareholder has received from the CUFS Holders, and the
names of the CUFS Holders concerned, in respect of all Shares held by
the Shareholder, in order to ensure that the exercise of voting rights
attaching to those Shares which are the subject of the Company's
determination, and not other Shares, are disregarded. The Company
shall be entitled to rely upon the information provided by the
Shareholder.
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50.4. If the requirements of a notice under article 50.3 under b. are not
complied with by the Person within the time specified in the notice, the
Company may, as an irrevocable proxy of the CUFS Holder, without any
further instrument, cause the CUFS referred to in the notice to be sold to
the extent permitted by and in accordance with the ASTC Operating Rules and
must pay to the Person whose CUFS were sold the purchase money less the
expenses of the sale.
The Company may, by notice in writing, at any time require any CUFS Holder
to provide the Company any information or evidence (on oath or otherwise
verified if the Company reasonably requires) as the Company may reasonably
consider likely to be of assistance in determining whether or not a breach
of these Articles has occurred or is continuing.
Despite anything in this article 50.4, the Company and the Shareholder have
no liability arising from any Person holding CUFS in circumstances which
would result in or have the effect of causing an infringement or
contravention of article 49.2, article 49.2A or article 50.2.
50.5. A CUFS Holder shall not have any claim against the Company, the members of
its Managing Board, Supervisory Board or Joint Board or the Shareholder for
any action taken by any of them in accordance with article 49 or this
article 50 or the ASTC Operating Rules, provided that such action was taken
in good faith.
CHAPTER IV
RENEWAL PROVISION.
ARTICLE 51.
Articles 49.9 through 49.10 of these Articles shall lapse after a period of five
(5) years from the later of the date referenced in the head of this deed and the
date that the General Meeting last extended the applicability of articles 49.9
through 49.10, subject to the confirmation of such extension by way of the
deposit by the Managing Board on recommendation of the Joint Board of a
declaration with the trade register of the competent Chamber of Commerce and
Industry as referred to in section 2: 77 Dutch Civil Code. If those articles
lapse, the remedies in article 49.7 may thereafter be exercised only if the
Company has obtained a judgement from the competent courts in accordance with
article 49.8.
The required ministerial declaration of no-objection was granted on the
thirtieth day of August two thousand and five, number N.V. 1.000.893.
The ministerial declaration of no-objection and a document in evidence of the
resolutions, referred to in the head of this deed, are attached to this deed.
In witness whereof the original of this deed which will be retained by me,
notaris, is executed in Amsterdam, on the date first mentioned in the head of
this deed.
Having conveyed the substance of the deed and given an explanation thereto and
following the statement of the person appearing that he has taken note of the
contents of the deed and agrees with the partial reading thereof, this deed is
signed, immediately after reading those parts of the deed which the law requires
to be read, by the person appearing, who is known to me, notaris, and by myself,
notaris.
(signed): R.H. Kleipool, M. van Olffen.