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ARTICLES OF ASSOCIATION
of:
Van der Moolen Holding N.V.
with corporate seat in Amsterdam
dated 16 June 2004
SECTION I.
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Definition of terms used.
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Article 1.
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Terms and definitions used in these articles of association shall have the
following meaning:
a. affiliated institution: an affiliated institution within the meaning of the
SGA;
b. accountant: a chartered accountant or another expert as referred to in
article 2:393 Dutch Civil Code or an organisation employing such experts;
c. general meeting: the body composed of shareholders who are entitled to vote
and other persons entitled to do so;
d. general meeting of shareholders: the meeting of shareholders and other
persons entitled to attend meetings;
e. depositary receipts: depositary receipts for shares issued by the company.
Unless stated otherwise, these shall include depositary receipts which are
not issued with the co-operation of the company;
f. holders of depositary receipts: holders of depositary receipts issued with
the co-operation of the company. Unless stated otherwise, these shall also
include persons who have been granted rights as a result of a usufruct or a
right of pledge created on shares, as granted by law to holders of
depositary receipts issued with the co-operation of the company;
g. joint owner: joint owner of a collective depository as referred to in the
SGA;
h. subsidiary:
- a legal entity in which the company or one or more of its
subsidiaries, whether or not pursuant to an agreement with other
persons entitled to vote, may exercise, individually or jointly,
more than one half of the voting rights at the general meeting;
- a legal entity of which the company or one or more of its
subsidiaries is a executive or a shareholder and which, whether or
not pursuant to an agreement with other persons entitled to vote,
may, individually or jointly, appoint or dismiss more than one
half of the executives or the supervisory directors, also in case
all persons entitled to vote will cast their votes.
A subsidiary shall also mean a company operating under its own name and
in which the company or one or more of its subsidiaries is (are) (a)
fully liable partner(s) vis-a-vis creditors; such in accordance with
paragraphs 3 and 4 of article 2:24a Dutch Civil Code;
i. group company: a legal entity or a company which is affiliated with the
company in a group in accordance with article 2:24b Dutch Civil Code;
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j. annual accounts: the balance sheet and the profit and loss account and the
explanatory notes thereto;
k. annual meeting: the general meeting of shareholders convened to approve the
annual accounts and the annual report;
l. Necigef: the central institute within the meaning of the SGA;
m. distributable part of the equity: the distributable part of the equity
exceeding the paid-up and called-in part of the share capital, increased by
the reserves which shall be maintained in accordance with the law;
n. SGA: Securities Giro Administration and Transfer Act; (Wge; Wet giraal
Effectenverkeer);
o. record date: a certain date determined by the executive board in accordance
with article 38.
SECTION II.
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Name, registered office and object.
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Article 2. Name and registered office.
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1. The name of the company is: Van der Moolen Holding N.V.
2. The company is established in Amsterdam.
Article 3. Objects.
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The objects of the Company are: participating in, having control over, managing
and financing other enterprises and companies, granting securities for debts of
others, rendering services to enterprises and companies and everything relevant
thereto or conducive thereto, all in the broadest possible sense.
SECTION III.
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Authorized share capital.
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Article 4. Classes of shares.
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1. The capital of the company amounts to fifteen million eight hundred forty
thousand Euro (EUR 15,840,000).
2. The capital is divided into fifty-four million (54,000,000) common shares
of eight Eurocents (EUR 0.08) each and one million two hundred thousand
(1,200,000) financing preferred shares A, one million two hundred thousand
(1,200,000) financing preferred shares B, one million two hundred thousand
(1,200,000) financing preferred shares C, one million two hundred thousand
(1,200,000) financing preferred shares D, one million two hundred thousand
(1,200,000) financing preferred shares E and thirteen million two hundred
thousand (13,200,000) preferred shares of sixty Eurocents (EUR 0.60) each.
3. The common shares shall be issued in registered form or in bearer form, at
the option of the shareholder. The financing preferred shares are
registered shares or bearer shares, at the option of the executive board
and subject to the approval of the supervisory board and the preferred
shares shall be issued in registered form only. All shares shall be
identified by number. Common registered shares shall be numbered
consecutively from 1 onwards. Registered financing preferred shares shall
be numbered consecutively from FA1, FB1, FC1, FD1 and FE1 onwards.
Preferred shares shall be numbered consecutively from P1 onwards.
4. Where in the articles of association reference is made to shares and
shareholders, these shall include, unless stated otherwise, all classes of
shares referred to in paragraph 2 and the holders thereof.
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Where in the articles of association reference is made to financing
preferred shares and holders of financing preferred shares, these shall
include, unless stated otherwise, all five kinds of financing preferred
shares referred to in paragraph 2 and the holders thereof.
Article 5. Certificates for bearer shares.
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1. Without prejudice to the provisions of paragraph 11 of this article, no
share certificates shall be issued for registered shares.
2. All common bearer shares shall be embodied in one global share certificate.
3. Upon the subscription for the common shares to be issued, the person who,
on behalf of the company, acquires a right to an common share, shall notify
the company in writing that he desires an common registered share; failing
such notification, he shall acquire a right in respect of an common bearer
share in a manner set out hereinafter.
4. The common bearer share certificate shall be signed by or on behalf of a
member of the executive board. The executive board may resolve that the
signature shall be a facsimile signature and may designate one or more
persons to sign the share certificate on behalf of the company.
5. The company will grant a right with respect to an common bearer share to a
person entitled thereto in the following manner (a) the company will enable
Necigef to (cause to) add an common share to the share certificate; and (b)
the person entitled thereto will designate an affiliated institution as
referred to in the SGA (hereinafter: the "affiliated institution"), which
will credit that person accordingly as a joint owner (hereinafter: "joint
owner") of the collective depository as referred to in the SGA. The joint
owners will hereinafter also be referred to as holders of bearer shares
and, to the extent necessary, they will also be recognised as such by the
company.
6. Without prejudice to the provision of article 38, paragraph 5 of these
articles of association, the administration of the share certificate will
be irrevocably assigned to Necigef, and Necigef will be irrevocably
authorized to do anything necessary for that purpose on behalf of the
person(s) entitled thereto with respect to the shares, including the
acceptance and transfer and - on behalf of the company - the co-operation
with adding the share to and deleting the share from the share certificate.
7. In the event that a joint owner of the affiliated institution wishes to
have one or more common bearer shares delivered to him, these common bearer
shares held by the joint owner, up to the maximum amount for which he is a
joint owner at the time this wish is announced, will be converted into the
same number of common registered shares, and (a) Necigef will enable the
company to (cause to) delete these common shares from the share
certificate, (b) the relevant affiliated institution will debit the person
entitled thereto as a joint owner of its collective depositary (c) Necigef
will allocate these common shares to the person entitled thereto with due
observance of the formalities for transfer, (d) the company will recognise
this transfer, and (e) the executive board of the company will (cause to)
enter this person as a holder of registered shares in the shareholders'
register. The company may not charge the shareholder that causes to convert
his shares into registered shares or into bearer shares pursuant to the
provisions of this paragraph or of paragraph 8 of this article, more than
cost.
8. A shareholder may at all times cause to convert one or more of his
registered shares into bearer shares as follows (a) the person entitled
thereto will transfer these shares to Necigef by a deed of transfer, (b)
the company will recognise such transfer, (c) Necigef will enable the
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company to (cause to) add these shares to the share certificate, (d) an
affiliated institution designated by the person will credit the person so
entitled as a joint owner of its collective depositary and (e) the
executive board of the company will delete such person from the
shareholders' register as a holder of the registered shares thus converted.
The provisions referred to hereinabove shall apply accordingly in respect
of financing preferred shares, however without prejudice to the provisions
of article 4, paragraph 3, second sentence. A conversion of a registered
share that is pledged or for which share a right of usufruct exists,
requires the prior written approval of the pledgee or usufructuaree.
9. The executive board can determine that for the purpose to permit or
facilitate trading of shares at a foreign stock exchange, share
certificates for registered shares shall be issued in such form as the
executive board may determine, in order to comply with the requirements set
by such foreign exchange.
10. If share certificates are issued for registered shares, all such share
certificates shall be signed by or on behalf of an executive on behalf of
the company; the signature may be effected by printed facsimile. In
addition all share certificates for registered shares may be validly signed
on behalf of the company by one or more persons designated by the executive
board for that purpose.
11. All share certificates shall be identified by numbers and/or letters.
12. Upon written request by or on behalf of a shareholder, the company may
issue replacement share certificates for share certificates that have been
mislaid, stolen, damaged or destroyed; provided that the shareholder making
the request, or the person making the request on the shareholder's behalf,
provides satisfactory evidence of title to the share(s) and of the loss,
theft, damage or destruction of the share certificate(s). Any issuance of
replacement share certificates shall be subject to such conditions,
including without limitation the provision of indemnity to the company, as
the executive board shall determine.
13. The company may charge the costs of issuing one or more replacement share
certificates to the shareholder or the person making the request on behalf
of the shareholder. Upon issuance of a replacement share certificate, the
original share certificate shall become void and the company shall have no
further obligation with respect to such original share certificate.
Replacement share certificates shall bear the numbers and/or letters of the
share certificates they replace.
Article 6. Shareholders' Register.
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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.
2. The executive board shall be authorized to keep the register in more than
one copy and at more than one address. The executive board also shall be
authorized to keep the register, in whole or in part, outside the
Netherlands in order to comply with applicable foreign statutory provisions
or the rules of a stock exchange on which the shares of the company are
listed.
3. The share register shall include the name and address of each holder of one
or more registered shares, the amount paid-up on each share and such
further information as is required by law or determined by the executive
board to be appropriate.
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4. The executive board shall determine the form and contents of the register
with due observance of the provisions of paragraphs 1, 2 and 3 of this
article.
5. Every entry in the register shall be signed by a member of the executive
board and a member of the supervisory board or by a person authorized by
the executive board for that purpose, subject to the approval of the
supervisory board. The register shall be kept regularly up to date.
6. Upon request by a holder of registered shares the executive board shall
provide that holder of registered shares with an extract from the register
or, at the executive board's option, with other written evidence of the
contents of the register with regard to the shares registered in that
shareholder's name, free of charge. The extract or other evidence shall be
signed by a member of the executive board or by a person designated for
that purpose by the executive board.
7. The provisions of this article regarding shareholders shall equally apply
to persons who hold a right of usufruct or a right of pledge on one or more
registered shares.
8. The executive board and supervisory board shall have power and authority to
permit inspection of the register and to provide information recorded
therein, as well as any other information known to the company regarding
the direct or indirect shareholding of a shareholder, to the extent
required by law or to comply with legal or regulatory requirements or the
requirements of any stock exchange on which the company's shares are
listed.
9. Any shareholder shall have the right, by written request and upon
reasonable notice and during normal business hours, to inspect the
company's share register and a list of its shareholders and their addresses
and shareholdings, and to make copies or extracts therefrom with respect to
its own shares. The request shall be directed to the executives of the
company at its registered office in the Netherlands or at its principal
place of business.
SECTION IV.
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Issuance of shares.
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Article 7. Authorized body. Publication.
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1. Issuance of shares shall occur in accordance with a resolution of the
general meeting upon a proposal of the executive board and subject to the
approval of the supervisory board. The general meeting may appoint the
executive board as the body authorized to issue the shares upon the
approval of the supervisory board. Upon such appointment, the number of
shares to be issued shall have been determined.
2. The appointment of the executive board as the body authorized to issue
shares, which is subject to the approval by the supervisory board, shall be
effected by the articles of association or by a resolution of the general
meeting, for a period not exceeding five (5) years. An appointment effected
by the articles of association may be revoked by an amendment of the
articles of association. An appointment effectuated by a resolution of the
general meeting may, unless otherwise provided at the appointment, not be
revoked.
3. Should the authority of the executive board terminate, the issuance of such
shares shall henceforth be effectuated in accordance with a resolution by
the general meeting, unless the general meeting has appointed the executive
board in accordance with paragraph 1.
4. A resolution to issue shares or to appoint another body as the body
authorized to issue shares may only be taken by the general meeting upon
the proposal of the executive board and subject to approval of the
supervisory board.
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5. The provisions of paragraphs 1 up to and including 4 shall apply
accordingly to the granting of rights to subscribe for shares but shall not
apply to the issuance of shares to a person who exercises a previously
acquired right to subscribe for shares.
6. If the executive board has been designated to be authorized to resolve upon
the issuance of shares and preferred shares are being issued, including the
granting of rights to subscribe for preferred shares, but not the issuance
of preferred shares by virtue of the exercise of such option right:
a. the executive board shall be obliged to convene a general meeting of
shareholders within four weeks of such issuance, at which meeting the
reasons for the issuance shall be explained, unless such explanation
has been given at a general meeting of shareholders held prior to the
issuance;
b. the prior approval of the general meeting of shareholders shall be
required for the specific case, if (i) as a consequence of such
issuance and/or (ii) as a consequence of the prior issuance of
preferred shares by the executive board without said approval or other
co-operation of the general meeting of shareholders, such a number of
preferred shares may be subscribed for and/or have been issued, that
the aggregate nominal amount of the preferred shares issued without
said approval or other co-operation of the general meeting of
shareholders, by the executive board, amounts to a rate higher than
one hundred per cent (100%) of the aggregate nominal value of the
other shares issued prior to such issuance.
7. If preferred shares have been issued pursuant to a resolution to issue
shares, or pursuant a resolution to grant a right to subscribe for shares,
which has been adopted by the executive board without the prior approval or
other co-operation of the general meeting of shareholders, the executive
board shall be obliged to convene a general meeting within two years after
such issuance and to make a proposal to purchase or, as the case may be, to
cancel said issued preferred shares. If at this meeting, no resolution has
been adopted to purchase or, as the case may be, to cancel preferred
shares, the executive board shall be obliged to convene another general
meeting at which a proposal is made, each time within two years after such
proposal has been brought up for discussion; such obligation shall no
longer be in force if said shares are no longer issued or, as the case may
be, if the preferred shares are held by the company.
Article 8. Conditions of issuance. Pre-emptive rights.
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1. A resolution to issue shares shall include the price and further conditions
of issuance. All notifications to shareholders pertaining to the issuance
of shares, a restriction or an exclusion of the pre-emptive right or a
granting of rights to subscribe for shares, shall be made in accordance
with the provisions of article 40.
2. In the event common shares are issued, the holders of common shares shall
have a pre-emptive right in proportion with the number of common shares
they hold. Holders of financing preferred shares and preferred shares shall
not have a pre-emptive right on the shares to be issued; no pre-emptive
rights exist with respect to the issuance of financing preferred shares and
preferred shares. Upon the issuance of shares no pre-emptive right shall
exists on shares which are issued against a contribution other than in cash
or on shares which will be issued to employees of the company or of a group
company. The above provisions shall also apply when rights to subscribe for
shares are granted.
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3. A pre-emptive right may be restricted or excluded by the general meeting.
The general meeting may appoint the body, authorized to issue shares as
referred to in the preceding article, as the corporate body authorized to
restrict or exclude a pre-emptive right. Paragraphs 1 and 2 up to and
including 4 of article 7 shall apply accordingly. Should the corporate body
authorized to issue shares no longer be authorised, its authority to
restrict or exclude pre-emptive rights shall also terminate.
4. Without prejudice to the provisions of article 2:80, paragraph 2 Dutch
Civil Code, shares shall never be issued below par. Common shares and
financing preferred shares shall only be issued against payment in full.
Preferred shares may be issued against payment of at least one quarter of
the nominal value of such shares.
5. The executive board may, subject to the approval of the supervisory board,
resolve on the timing and amount for a further call for preferred shares
that have not been paid up in full. The executive board shall give
immediate notice of such resolution to the holders of preferred shares.
6. If financing preferred shares will be issued, the company shall, if
necessary, arrange for such provisions or arrangements to the effect that
the voting rights on the financing preferred shares are based on the fair
value of the capital contribution on such shares in relation to the price
of common stock on Euronext Amsterdam N.V.
Article 9. Payment for shares.
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1. Payment shall be made in cash, unless another contribution has been agreed
upon. Payment shall be made in Euro, unless the company agrees to payment
in a currency other than Euro. If payment is made in a currency other than
Euro, the obligation to pay shall be deemed fulfilled only to the extent
that the sum paid is freely convertible into Euros at: (a) the rate of
exchange on the day of payment; or (b) if the company requires payment on a
specified date pursuant to the following sentence, at the rate of exchange
on that date. The company may require payment at the rate of exchange on a
specified date no more than two months prior to the date on which payment
must be made if the shares or depositary receipts issued therefor shall
immediately upon their issuance be admitted to a listing at a stock
exchange outside of the Netherlands.
2. The executive board shall both be authorised to perform legal acts with
regard to contributions made to common shares other than in cash and to
perform the other legal acts referred to in article 2:94 Dutch Civil Code
without the prior approval of the general meeting, but with the approval of
the supervisory board.
3. Separate share premium reserves shall be maintained for financing preferred
shares A, B, C and D and E, to be referred to as share premium reserve A,
share premium reserve B, share premium reserve C, share premium reserve D
and share premium reserve E, respectively. The amounts paid for financing
preferred shares shall be booked as share premium reserves to A, B, C, D or
E, as the case may be. No write-offs or payments may be made with regard to
the share premium reserves A, B, C, D and E, except for the provisions of
article 11, paragraph 2, sub b, article 29, paragraph 6 and article 30,
paragraph 3, sub c.
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SECTION V.
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Acquisition by the company of its own shares.
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Article 10.
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1. The company may acquire its own shares for valuable consideration, if and
to the extent:
a. its equity minus the purchase price is not less than the aggregate amount
of the issued and called-up capital, increased by the reserves which must
be maintained in accordance with the law;
b. the nominal value of the shares in its share capital which are to be
acquired, (already) held or held in pledge by the company, or which are
held by a subsidiary, shall not exceed one tenth of the issued capital; and
c. the general meeting has authorized the executive board to acquire such
shares, which authorization may in each case be granted for a maximum of
eighteen months, without prejudice to the statutory provisions and the
provisions of these articles of association.
2. Shares held by the company in its own capital may be disposed of by the
company. Without prejudice to the provisions of paragraph 1, the executive
board shall not be authorised to acquire its own shares as referred to
above, or to dispose of such shares without the prior approval of the
supervisory board. In the event share certificates of the company have been
issued, such certificates shall, when applying this paragraph and the
preceding paragraph, be equal to shares.
3. In the general meeting of shareholders no votes may be cast in respect of a
share held by the company or its subsidiary. Nor may any votes be cast in
respect of a share the depositary receipt of which is held by the company
or a subsidiary. Usufructuaries and pledgees of shares held by the company
or its subsidiary are, however, not excluded from their rights to vote on
such shares, if the right of usufruct or the right of pledge was created
prior to the time such share was held by the company or its subsidiary.
Neither the company nor the subsidiary may cast a vote in respect of a
share on which it holds a right of usufruct or a right of pledge. When
determining to what extent the shareholders may cast votes, are present or
represented, or to what extent the share capital is present or represented,
shares which are excluded from voting rights by virtue of the law or by the
articles of association, shall not be taken into consideration.
SECTION VI.
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Reduction of capital.
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Article 11.
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1. The general meeting may, whether or not upon the proposal of the executive
board, subject to the approval of the supervisory board and with due
observance of the provisions set out in article 2:99 Dutch Civil Code,
resolve to reduce the issued capital:
a. by cancelling shares; or
b. by reducing the amount of the share capital by amendment of the
articles of association.
2. A resolution to cancel shares may only concern:
a. shares held by the company itself or for which the company holds
depositary receipts;
b. all financing preferred shares of a specific class or all preferred
shares or all common shares, in all cases by repayment. Should, after
full cancellation of one or more classes of shares, only one class of
shares remain, such remaining class shall
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no longer be subject to cancellation. Should all financing preferred
shares of a specific class be cancelled, with due observance of the
statutory provisions, an amount shall be paid for each of the shares
cancelled which shall not exceed the profit basis referred to in
article 29, paragraph 2, and which shall, to the extent possible, be a
repayment of the amount paid up for those shares and shall, to the
extent possible, be debited to the share premium reserve for the class
of financing preferred shares concerned and, should this reserve not
be adequate, to the part of the equity which may be paid out. The
amount to be paid out in accordance with the previous complete
sentence may be increased by an amount not exceeding any overdue
dividend as referred to in article 29 paragraph 3, which shall be
calculated for the period up to and including the date on which the
dividend becomes payable. Should, in accordance with the foregoing,
the full amount not be paid out from the relevant share premium
reserve, the balance of that share premium reserve shall be written
off in favour of the general share premium reserve. In the event of
cancellation with repayment of all preferred shares, an amount shall
be paid for each of the shares cancelled which shall be calculated in
accordance with the provisions of article 29, paragraphs 1 and 3. A
resolution of the general meeting to cancel shares of a specific class
may only be taken upon the simultaneous or prior approval of the
meeting of the holders of the shares of this specific class.
3. Partial repayment for shares shall only be possible for the
effectuation of a resolution to reduce the share capital. Such
repayment shall be made either for all shares or for all financing
preferred shares of a particular class or for all preferred shares or
for all common shares. A resolution of the general meeting to reduce
the share capital of one or more classes of shares may only be taken
upon the simultaneous or prior approval of the meeting of the holders
of the relevant class of shares.
SECTION VII.
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Transfer of registered shares.
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Usufruct. Right of pledge.
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Article 12.
1. Any transfer of registered shares or the transfer or termination of a right
of usufruct on registered shares, or the creation or waiver of a right of
usufruct or of a right of pledge on registered shares shall be effected by
written agreement, in accordance with the provisions of article 2:86 Dutch
Civil Code or, as the case may be, of article 2:86c Dutch Civil Code.
2. The provisions of the previous paragraph shall apply accordingly to the
assignment of registered shares in the event of a division of any joint
holding.
3. A shareholder shall have the right to vote in respect of registered shares
on which a right of usufruct or a right of pledge is established. The
usufructuary or the pledgee shall, however, have a right to vote, if such
has been determined upon the creation of such right. A shareholder who is
not entitled to vote and a usufructuary or pledgee who is entitled to vote,
shall have the rights conferred by law to holders of depositary receipts.
The rights referred to in the previous sentence shall not be assigned to a
usufructuary and a pledgee who have no voting rights.
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SECTION VIII.
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The Executive board.
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Article 13. The number of executives. Chairman.
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1. The company shall be managed by a executive board consisting of two or more
executives.
2. The total number of members of the executive board shall be determined by
the supervisory board with due observance of the provisions set out in the
previous paragraph.
3. The supervisory board shall appoint one of the members of the executive
board as chairman.
Article 14. Appointment, suspension and dismissal.
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1. A member of the executive board shall be appointed for a maximum period of
four years, provided however that unless such member of the executive board
has resigned at an earlier date, his term of office shall lapse on the day
of the annual general meeting of shareholders to be held in the fourth year
after the year of his appointment. A member may be re-appointed with due
observance of the preceding sentence. The supervisory board may draw up a
retirement schedule for the members of the executive board that are
appointed for a maximum period.
2. The members of the executive board shall be appointed by the general
meeting. Should a new executive have to be appointed, the supervisory board
shall make a binding nomination. The executive board shall invite the
supervisory board to nominate a candidate within thirty days, in such a way
that with each appointment a choice can be made from at least two persons.
The general meeting may, however, deprive the nomination of its binding
effect by a resolution, adopted by a majority of at least two thirds of the
votes cast, provided that this majority represents more than one half of
the issued capital. The nomination will be included in the convocation for
the general meeting in which the appointment will be discussed.
Should a nomination not - or not timely - have been made, such shall be
stated in the convocation. Should a nomination not - or not timely - have
been made, the general meeting shall be free to appoint someone at its own
discretion.
3. Each member of the executive board may at all times be suspended and
dismissed by the general meeting.
The general meeting may only adopt a resolution to suspend or dismiss an
executive, unless such resolution is adopted on the recommendation of the
supervisory board, with a majority of at least two thirds of the votes
cast, provided that this majority represents more than one half of the
issued capital.
With regard to the subjects referred to in this paragraph and the preceding
paragraph, a second general meeting -making use of article 2:120, paragraph
3 Dutch Civil Code - cannot be convened.
4. Each member of the executive board may at all times be suspended by the
supervisory board.
5. Each suspension may be extended one or more times, but such extension may
not last longer than three months in aggregate. If, at the end of such
period, no decision regarding the termination of the suspension or the
dismissal has been made, the suspension shall terminate.
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Article 15. Remuneration.
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1. The company has a policy in the area of remuneration of the executive
board. The policy will be adopted by the general meeting upon a proposal of
the supervisory board.
2. The remuneration of members of the executive 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 a proposal regarding the arrangements for
the remuneration of members of the executive board in the form of shares or
rights to acquire shares. This proposal includes at least how many shares
or rights to acquire shares may be awarded to the executive board and which
criteria apply to an award or a modification.
3. The company shall not grant its members of the executive board any personal
loans, guarantees or the like.
4. To current and former members of the executive board shall be reimbursed
(i) the costs of conducting a defence against claims in connection with
damages due to acts or omissions in the performance of the duty as a member
of the executive board or another function they fulfil at the request of
the company or conducting a defence in other legal proceedings in which
they are involved in that capacity and (ii) any damages they may be ordered
to pay. The company indemnifies them against financial losses that are a
direct result of this. A party involved has no claim towards the
reimbursement as referred to above and towards indemnification, in case and
to the extent that a court of the Netherlands irrevocably has established
that the acts and omissions may be characterised as being wilfully
misconducted ("opzet"), intentionally reckless ("bewuste roekeloosheid") or
seriously imputable ("ernstig verwijtbaar"). In addition, no right to
indemnification is applicable to the extent that the financial loss is
covered by insurance and the financial loss has been reimbursed by the
insurer. The company may on behalf of the party involved take out insurance
against liability. The supervisory board may by agreement provide further
implementation to the foregoing.
Article 16. Management duties, decision making, assignment of duties.
- ---------------------------------------------------------------------
1. Except for the restrictions provided for in these articles of association,
the executive board shall be charged with the management of the company.
2. The executive board shall draw up, and may from time to time amend,
executive board regulations (directiereglement) to deal with matters that
concern the executive board internally, with due observance of these
articles of association. These regulations shall be subject to the approval
of the supervisory board. The regulations may include an allocation of
tasks amongst the members of the executive board and a delegation of
specified powers. The regulations shall contain provisions concerning the
manner in which meetings of the executive board are called and held. These
meetings may be held by telephone conference or video conference, provided
all participating members of the executive board can hear each other
simultaneously.
3. When determining the assignment of duties, the executive board may
determine the assignment of the specific duties of each member of the
executive board. The assignment of duties shall be subject to the approval
of the supervisory board.
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Article 17. Representation.
- ----------------------------
1. The company shall be represented by the executive board as well as by two
members of the executive board acting jointly.
2. The executive board may appoint persons with a general or restricted right
to represent the company. Each appointment may at all times be withdrawn.
Each of these persons shall represent the company duly observing the
limitation of their authority. Their titles, which may include the word
"director", shall be determined by the executive board.
3. In case of conflicting interests between the company and a member of the
executive board, the company shall be represented by a member of the
executive board or the supervisory board, so designated by the supervisory
board. The general meeting has always the authority to appoint one or more
persons to represent the company.
Article 18. Approval of resolutions of the executive board.
- ------------------------------------------------------------
1. The supervisory board shall be authorised to submit resolutions of the
executive board for its approval. These resolutions shall be clearly
specified and submitted to the executive board in writing.
2. For the purpose of paragraph 1, a management resolution shall be considered
to be equal to a management resolution to approve a resolution of any
corporate body of a company in which the company participates, provided the
latter resolution is subject to such approval.
3. The following management resolutions shall in any case be subject to the
approval of the supervisory board:
a. the issuance and acquisition of shares and debt instruments issued by
the company or debt instruments issued by a limited partnership or a
general partnership of which the company is the fully liable general
partner;
b. the co-operation with the issuance of depositary receipts for shares;
c. the application for the listing or withdrawal of the listing of the
instruments referred to under a and b on the official list of any
stock exchange;
d. the entry into or termination of a continuing co-operation by the
company or a dependent company with another legal person or a company
or as a fully liable partner in a limited partnership or a general
partnership, if such co-operation or the termination thereof is of
far-reaching significance to the company;
e. the acquisition of a participation for the value of at least one tenth
of the amount of the issued share capital and the reserves according
to the company's balance sheet and the explanatory notes thereto, by
the company or a dependent company in the share capital of another
company, as well as the far-reaching increase or decrease of such
participation;
f. investments which require an amount equalling at least one tenth of
the company's issued share capital plus the reserves in accordance
with its balance sheet with the explanatory notes thereto;
g. a proposal to amend the articles of association;
h. a proposal to dissolve the company;
i. to file for bankruptcy or a suspension of payments;
j. the termination of the employment of a substantial number of employees
of the company or of a dependent company as referred to in article
2:152 Dutch Civil Code at the same time or within a short time-span;
k. a far-reaching change to the employment conditions of a substantial
number of employees of the company or of a dependent company;
l. a proposal to decrease the issued share capital;
m. issuance of shares to third parties in a company in which the company
participates as well as restriction or exclusion of pre-emptive rights
upon issuance;
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n. a proposal to merge or demerge within the meaning of Title 7, Book 2
Dutch Civil Code.
4. Without prejudice to any other applicable provisions of these articles of
association, the executive board shall furthermore require the approval of
the supervisory board and the general meeting for resolutions of the
executive 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;
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').
Article 19. Prolonged absence or vacancies.
- -------------------------------------------
In case of prolonged absence of one or more members of the executive board or in
case of vacancies, the remaining member(s)shall be charged temporarily with the
management of the company. In case of prolonged absence of all members or of the
sole member or in case of vacancies, the supervisory board shall be charged
temporarily with the management of the company, with the authority to assign the
management of the company temporarily to one or more persons, whether or not
from among themselves.
SECTION IX.
- -------------
Supervisory Board.
- ------------------
Article 20. Number of members. Appointment.
- --------------------------------------------
1. The company shall have a supervisory board, consisting of at least three
natural legal persons.
2. The total number of members of the supervisory board shall be determined by
the supervisory board in accordance with the provisions of paragraph 1.
3. A person who has reached the age of seventy-two cannot be appointed as
supervisory director.
Article 21. Appointment.
- ------------------------
1. Supervisory directors shall be appointed by the general meeting, for a
period starting on the date of the general meeting in which they are
appointed, and terminating on the date of the general meeting of
shareholders which is held in the fourth year after their appointment in
accordance article 2:108, paragraph 2 Dutch Civil Code. A person may serve
on the supervisory board for a maximum of twelve years.
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2. The provisions of article 14, paragraph 2 shall apply accordingly.
Article 22. Resignation, suspension and dismissal of supervisory directors.
- ---------------------------------------------------------------------------
1. A supervisory director shall resign no later than on the day on which the
annual meeting is held in the financial year in which he reaches the age of
seventy-two (72).
2. Supervisory directors shall resign periodically in accordance with a scheme
to be drawn up by the supervisory board. Each supervisory director thus
resigning may be reappointed until he reaches the age-limit or has served
12 years as supervisory director.
3. Each member of the supervisory board may at all times be suspended and
dismissed by the general meeting. The provisions of paragraphs 2 and 4 of
article 14 shall apply accordingly.
Article 23. Remuneration.
- -------------------------
1. The remuneration of each member of the supervisory board shall be
determined by the general meeting.
2. To current and former members of the supervisory board shall be reimbursed
(i) the costs of conducting a defence against claims of damages due to acts
or omissions in the performance of the duty as a member of the supervisory
board or another function they fulfil at the request of the company or
conducting a defence in other legal proceedings in which they are involved
in that capacity and (ii) any damages they may be ordered to pay. The
company indemnifies them against a loss of fortune that is a direct result
of this to the extent that this is not covered by any insurance. A party
involved has no claim towards the reimbursement as referred to above and
towards indemnification, in case and to the extent that a court of the
Netherlands irrevocably has established that the acts and omissions may be
characterised as being wilfully misconducted ("opzet"), intentionally
reckless ("bewuste roekeloosheid") or seriously imputable ("ernstig
verwijtbaar"). In addition, no right to indemnification is applicable to
the extent that the financial loss is covered by insurance and the
financial loss has been reimbursed by the insurer. The company may on
behalf of the party involved take out insurance against liability on terms
to be determined by the executive board under approval of the supervisory
board. The executive board may by agreement provide further implementation
to the foregoing.
Article 24. Duties and authorities.
- -------------------------------------
1. The supervisory board shall be charged with the supervision of the policy
of the executive board and of the general course of business of the company
and its affiliated company. The supervisory board shall advise the
executive board. When performing their duties, the supervisory directors
shall act in the interest of the company and its affiliated company.
2. The executive board shall provide the supervisory board timely with all
information required for the performance of its duties.
3. The supervisory board shall have access to the buildings and premises of
the company and is authorized to inspect the books and records of the
company. The supervisory board may appoint one or more of its members or an
expert to exercise such authority. The supervisory board may also otherwise
be assisted by experts.
Article 25. Working method and decision-making process.
- -------------------------------------------------------
1. The supervisory board shall appoint one of its members to act as chairman
and a deputy chairman who shall substitute the latter in his absence. The
supervisory board may appoint one of its members or another person as
secretary and shall make an arrangement in case the secretary is absent.
2. In case of the chairman and the deputy chairman being absent from a
meeting, the meeting itself shall appoint a chairman.
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3. The supervisory board shall hold a meeting, whenever such is deemed
necessary by the chairman or by two other supervisory directors or by the
executive board. Such meeting may be held by telephone conference or video
conference, provided all participating members of the supervisory board can
hear each other simultaneously.
4. Minutes of the meeting of the supervisory board shall be drawn up by the
secretary. The minutes of the meeting shall be adopted during the same
meeting or in a subsequent meeting of the supervisory board and shall be
signed by the chairman and the secretary evidence the adoption.
5. All resolutions by the supervisory board shall be adopted by an absolute
majority of the votes cast.
6. The supervisory board may only adopt valid resolutions in a meeting in
which the majority of the supervisory directors is present or represented.
7. A supervisory director may be represented by a co-supervisory director by
virtue of a written proxy. The term "written proxy" shall mean each power
of attorney communicated through standard channels of communication and
which is received in writing. A supervisory director may act as proxy for
one co-supervisory director only.
8. The supervisory board may also adopt resolutions outside a meeting,
provided that the proposals for such resolutions have been communicated to
all supervisory directors and none of them have objected to this method of
adoption. The secretary shall draw up a record on such resolution, with
attached thereto the answers received, which record shall be signed by the
chairman and the secretary.
9. The supervisory board shall hold meetings with the executive board as often
as the supervisory board or the executive board deems such necessary.
SECTION X.
- ----------
The annual accounts and the annual report, profits.
- ---------------------------------------------------
Article 26. Financial year. Annual accounts and annual report.
- --------------------------------------------------------------
1. The financial year of the company shall coincide with be the calendar year.
2. Each year, no later than four months after the end of the financial year,
the executive board shall draw up the annual accounts, consisting of a
balance sheet as at the thirty-first day of December of the preceding year
and a profit and loss account of the preceding financial year with the
explanatory notes thereto. In addition thereto, the executive board shall
draw up a report concerning the course of business in the preceding year.
3. The executive board shall draw up the annual accounts in accordance with
the generally accepted accounting principles and in accordance with any
other statutory provisions.
Article 27.Submission to the supervisory board.
- -----------------------------------------------
1. The executive board shall submit the annual accounts together with the
annual report to the supervisory board.
2. The supervisory board shall submit a preliminary report on the annual
accounts to the general meeting.
3. On behalf of the company, the supervisory board shall have the annual
accounts audited by one or more auditors so designated by the general
meeting of shareholders. The auditor shall inform the supervisory board and
the executive board on the audit and shall issue a report containing the
results of the examination. The supervisory board shall deposit this report
at the offices of the company for inspection by the shareholders.
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Article 28. Submission to the general meeting.
- ----------------------------------------------
1. Copies of the annual accounts, the annual report of the executive board,
the report of the supervisory board and information to be attached to each
of these documents by virtue of the law, shall be available for inspection
by the shareholders and any other persons entitled to attend meetings as of
the date of convocation of the general meeting of shareholders in which
they are to be discussed until the end of this meeting.
2. The general meeting shall adopt the annual accounts.
Article 29. Reserves, dividends.
- ---------------------------------
1. From the profits (i.e. the positive balance of the profit and loss account)
made in any financial year, except as provided in this paragraph 1, the
company shall first distribute a dividend on each preferred share that was
issued and outstanding at any point during the financial year in question.
The dividend shall equal the percentage referred to in the following
sentence multiplied by the amount paid on such share at the commencement of
the financial year for which the distribution is being made. The percentage
referred to in the previous sentence shall be equal to the average of the
European Inter Bank Offering Rate ("EURIBOR") for cash loans with a term of
twelve months, increased by two hundred basis points. The average EURIBOR
rate shall be determined on a weighted basis that reflects the number of
days during the year on which each EURIBOR rate was in effect. If, during
the financial year for which the distribution referred to above is being
made, the amount paid on a preferred share was decreased or if, pursuant to
a resolution on a further call, was increased, the distribution shall be
decreased or increased, as applicable, on a pro rata basis. If preferred
shares were issued in the course of a financial year, the dividend on such
shares shall be decreased pro rata to reflect the number of days during
which the share was unissued. If and to the extent the profit is not
sufficient to make the payment referred to in this paragraph in full, the
deficit shall be distributed against the reserves, with the exception of
the share premium reserves A, B, C, D and E.
2. Insofar as the profit is sufficient, further: the dividends due to each of
the holders of financing preferred shares shall be paid to them in
proportion with the number of days over which dividends are paid.
The dividend - expressed in a percentage of the yield per financing
preferred share of the relevant class referred to hereinafter - to be paid
to holders of financing preferred shares A, B, C, D and E, shall be
determined separately for each class of shares in accordance with a
resolution regarding a first issuance of shares of the relevant class. The
resolution regarding a first issuance of financing preferred shares of a
specific class may also stipulate that the dividend percentage determined
for that class of share shall be adjusted periodically, provided that it is
unambiguous as to when adjustment shall take place and how the current
dividend percentage shall be calculated after adjustment. The dividend
amount to be paid per financing preferred share, being the result of the
calculation described above, shall be rounded off upwards.
The profit basis for a specific class of shares shall be determined by a
resolution regarding a first issuance of financing preferred shares of a
specific class and shall at least be equal to the nominal value of each
financing preferred share.
In case of a partial repayment for financing preferred shares of a specific
class in accordance with the provisions of article 11, paragraph 3, as well
as in case of payment to holders of financing preferred shares of a
specific class in accordance with the provisions of article 30, paragraph
3, the basic yield for such shares shall be decreased by an amount equal to
the amount to be paid out per share of the relevant class, as per the date
on which such dividend becomes or shall be payable unless the payment is
made out of the amount paid up above the basic yield. The term "first
issuance of financing preferred shares of a specific class" used in these
articles of association shall also refer to the first issuance of financing
preferred shares of a specific class after full cancellation thereof in
accordance with the provisions of article 11, paragraph 2.
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3. If, in any financial year the profit or with respect to the payment on the
preferred shares, the reserves, are not adequate to make the payments - or
part thereof - as referred to in paragraph 1 and 2 above, each person's
dividend shall be reduced proportionally and the deficit shall be debited
to the profits or the reserves paid out in subsequent financial years.
Overdue dividends due to holders of preferred shares and holders of
financing preferred shares shall in that case, to the extent possible,
always be supplemented with the dividend due to them over the most recent
financial year.
4. Subsequently, the executive board shall with due observance of the policy
of the company on additions to reserves and on dividends determine which
part of the remaining profits shall be reserved. Such resolution shall be
subject to the approval of the supervisory board. Any remaining balance
shall be at the disposal of the general meeting.
5. If, in any financial year a loss is sustained, no dividends shall be paid
on common shares for that year. Dividends may only be paid in subsequent
years after the loss has been cleared by profits. The general meeting may,
however, upon the proposal by the executive board and in accordance with
the approval of the supervisory board, resolve to clear such loss by
debiting it to the distributable part of the equity. Should the general
meeting resolve to debit a loss to the distributable part of the equity,
the provisions of the first two full sentences of this paragraph shall not
apply.
6. Losses may only be cleared by writing off the losses to the share premium
reserves for financing preferred shares of a specific class after all
remaining reserves which may be used for that purpose have been exhausted.
Writing off a loss to the share premium reserves A, B, C, D or E shall be
done in proportion with the total share premium reserve deposited on each
class of financing preferred shares. Amounts which are written off to the
share premium reserves in the proportion referred to above, shall be
cleared off as soon as possible after payment on the financing preferred
shares and the preferred shares in accordance with the provisions of
paragraphs 1, 2 and 3 of this article and before payment of any other
dividend or reserve which shall not be maintained by law.
7. The executive board may, with due observance to article 2:105 Dutch Civil
Code, and upon the approval of the supervisory board, resolve to pay out an
interim dividend, if and to the extent the profits permit such payments.
Interim dividends may also be paid exclusively on one class of shares.
8. The company may only make payments to the extent its equity exceeds the
issued and paid-up part of the share capital, increased by the statutory
reserves.
9. Shares held by the company in its own capital shall, in accordance with
article 2:105, paragraph 5 Dutch Civil Code, not be taken into account when
determining the distribution of profits.
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Article 30. Payments of dividends in the form of shares and payments debited to
the reserves.
- -------------------------------------------------------------------------------
1. The general meeting may, upon the proposal of the executive board and
subject to approval of the supervisory board, resolve a dividend payment to
be made in full or in part in the form of shares in the company or in
depositary receipts thereof.
2. The general meeting may, upon the proposal of the executive board and
subject to the approval of the supervisory board, make payments to holders
of common shares to the debit of the distributable part of the equity,
except for the share premium reserves A, B, C, D and E. The provisions of
paragraph 1 shall apply accordingly. Payments referred to in this paragraph
may however not be made if and to the extent all dividend payments due in
accordance with in article 29, paragraphs 1, 2 and 3 with regard to
preferred shares and financing preferred shares have not been made.
3. a. The executive board may, subject to the approval of the supervisory
board, resolve to pay out the dividends due in accordance with the
provisions of article 29, paragraph 1 and paragraph 2 to holders of
preferred shares and holders of financing preferred shares, at the
debit of the distributable part of the equity, except for the share
premium reserves A, B, C, D and E.
b. In addition thereto, the executive board may, subject to the approval
of the supervisory board, resolve to pay dividends which are not due
in accordance with the provisions of article 29, paragraph 2 to
holders of financing preferred shares, the aforesaid however
exclusively at the debit of the share premium reserves in whose favour
this payment is made. A resolution by the executive board as referred
to in the preceding full sentence, may only be adopted by the general
meeting simultaneously or upon the prior approval by the meeting of
holders of the relevant class of financing preferred shares.
Article 31. Making dividends and other distributions payable.
- -------------------------------------------------------------
Payment of dividends and other distributions shall be announced in accordance
with the provisions of article 40.
SECTION XI.
- ------------
General meeting of shareholders.
- --------------------------------
Article 32. Annual meeting.
- --------------------------------
1. Annually, no later than six months after the end of the financial year, the
annual meeting shall be held.
2. The agenda for that meeting shall list - inter alia - the following items:
a. consideration of the annual report, the annual accounts and the
particulars to be added thereto pursuant to the statutory regulations;
b. adoption of the annual accounts;
c. the policy of the company on additions to reserves and on dividends;
d. allocation of the profit, in so far as this is at the disposal of the
general meeting;
e. if applicable, the proposal to pay a dividend;
f. discussion of each substantial change in the corporate governance
structure of the company;
g. proposals relating to the composition of the executive board and the
supervisory board, including the filling of any vacancies in the
executive board and the supervisory board;
h. if applicable, the proposal to (re-)appoint the external auditor
('registeraccountant') or another expert appointed thereto in
accordance with section 393 of Book 2 of the Netherlands Civil Code;
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i. any proposals of the executive board, the supervisory board, or
shareholders or holders of receipts, provided that these have been
placed on the agenda with due observance of the requirements of the
law and these articles of association. Without prejudice of the
provision of the previous sentence, the provision of article 34
paragraph 8 is applicable in respect of proposals of shareholders and
holders of receipts.
3. If the agenda of a general meeting includes the granting of discharge to
the members of the executive board and the supervisory board with respect
to the performance of their duties in the respective financial year, the
item of discharge will be put on the agenda as a separate item for the
executive board and the supervisory board, respectively.
4. The executive board and the supervisory board shall provide the general
meeting with all requested information, unless this would be contrary to an
overriding interest of the company. If the executive board and the
supervisory board invoke an overriding interest, they must give reasons.
Article 33. Other meetings.
- ----------------------------
Other general meetings of shareholders shall be held as often as the executive
board or the supervisory board deems necessary and without f prejudice to the
provisions of articles 2:110, 2:111 and 2:112 Dutch Civil Code.
Article 34. Convocation, agenda.
- --------------------------------
1. General meetings of shareholders shall be convened by the supervisory board
or the executive board.
2. The convocation shall occur no later than on the fifteenth day prior to the
day of the meeting.
3. The convocation shall list the items to be discussed or shall state that
shareholders and holders of depositary receipts may take note thereof at
the offices of the company without prejudice to the provisions of article
41, paragraph 2.
4. The convocation shall state the requirements to attend the meeting as
described in article 38.
5. Meetings shall be convened in a manner specified in article 40.
6. Items not listed in the convocation may be announced later on in accordance
with the provisions of article 40 and in accordance with the term allowed
for convocation.
7. Unless the convocation contains all documents which, in accordance with the
law or with the articles of association, shall be available for inspection
by the shareholders or the holders of depositary receipts relevant to this
meeting, these documents shall be available, free of charge, to
shareholders and holders of depositary receipts at the offices of the
company.
8. A matter, the consideration of which has been requested in writing by one
or more holders of shares or depository receipts of shares representing
solely or jointly at least one percent of the issued share capital or,
according to the Official List of Euronext Amsterdam N.V., representing a
value of at least fifty million Euro (EUR 50,000,000), will be placed on
the notice convening a meeting or will be announced in the same manner if
the company has received the request not later than on the sixtieth day
prior to the day of the meeting and provided that it is not detrimental to
the vital interests of the company. Should any items as referred to in the
preceding sentence, have been listed on the agenda, such shall be noted on
the agenda. The agenda shall also state that resolutions regarding such
items may only be adopted with due observance of article 39, paragraph 1,
second sentence.
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Article 35. Place of the meetings.
- -----------------------------------
The general meetings of shareholders shall be held in Amsterdam.
Article 36. Chairmanship.
- -------------------------
1. The general meetings of shareholders shall be presided over by the chairman
of the supervisory board and, in his absence, by the deputy chairman of
such board; in the absence of the latter, the supervisory directors who are
present shall elect a chairman from among themselves The supervisory board
may appoint another person to act as chairman of the general meeting of
shareholders.
2. If, in accordance with the provisions of paragraph 1, no chairman has been
appointed, the meeting itself shall appoint a chairman. Until such
nomination, the meeting shall be chaired by a member of the executive board
appointed by the executive board.
Article 37. Minutes.
- ---------------------
1. The minutes of each shareholders' meeting shall be drawn up by a secretary
appointed by the chairman. The minutes shall be adopted by the chairman and
the secretary and shall be signed by them evidencing the adoption thereof.
2. The supervisory board or the chairman may determine that notarial minutes
shall be drawn up of the proceedings of the meeting. The notarial minutes
shall be co-signed by the chairman.
Article 38. Meeting rights/admittance.
- --------------------------------------
1. The executive board may determine that any person entitled per a certain
date, such date to be determined by the executive board and such date
(hereinafter: the "record date"), to attend the general meeting of
shareholders, may attend the general meeting of shareholders if (i) they
are as such registered in a register (or one or more parts thereof)
designated for that purpose by the executive board, and (ii) at the request
of the applicant the holder of the register has notified the company in
writing prior to the general meeting that such applicant has the intention
to attend the general meeting of shareholders, regardless of who will be
applicant at the time of the general meeting of shareholders. The
notification will state the name and the number of shares or depositary
receipts for which the applicant is entitled to attend the general meeting.
The provision under (ii) on the notification to the company will also apply
to an attorney authorized in writing by an applicant.
2. The record date mentioned in paragraph 1 and the date mentioned in said
paragraph on which the notification of the intention to attend the general
meeting of shareholders shall have been given at the latest cannot be fixed
earlier than at a time on the seventh day, and not later than at a time on
the third day, prior to the date of the general meeting of shareholders.
The convocation of the general meeting of shareholders will include said
times, the place of the meeting and the proceedings for registration and /
or notification.
3. In case the executive board does not exercise the power referred to in
paragraph 1 of this article paragraphs 4 and 5 of this article apply.
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4. Each holder of registered shares entitled to vote and each usufructuary and
pledgee of registered shares who are entitled to vote, are authorized to
attend the general meeting of shareholders, to address the meeting and to
exercise their voting rights, provided that the executive board has been
notified in writing, at the place of the meeting, of their intention to be
present at the meeting, and ultimately on the date as referred to in
paragraph 5.
5. As regards the voting right and/or the right to attend the general meeting,
of holders of bearer shares, the company shall - also in accordance with
articles 2:88 and 2:89 Dutch Civil Code -consider a shareholder to be the
person listed in a written statement of an affiliated institution, which
statement shall state that the number of bearer shares listed in such
statement belongs to its collective depository and that the person listed
in such statement is a joint owner of the collective depository for the
number of common shares concerned and that such person shall remain so
until after the general meeting, provided that the above mentioned
statement has been deposited at the offices of the company. The provisions
of the previous sentence shall apply accordingly to the person having a
right of usufruct or a right of pledge in respect of one or more bearer
shares and to the person who has a voting right in respect of such shares.
The convocation for the general meeting shall state the day on which the
notification to the executive board and the deposit of the statement of the
affiliated institution may occur at the latest; this day may not be fixed
before the seventh day before the day of the general meeting.
Each holder of one or more bearer shares, including a usufructuary or a
pledgee to whom voting rights have been granted, shall be authorized to
attend the general meeting of shareholders, to address the meeting and to
exercise their voting rights, provided that the relevant share certificates
have been deposited at the place as specified in the convocation,
ultimately on the third day prior to the day of the meeting.
6. The right to attend meetings as referred to in paragraphs 4 and 5 may be
exercised by proxy, provided that this proxy has been received by the
executive board at the meeting and ultimately on the day referred to in
paragraph 5, without prejudice to the provisions of paragraph 4 regarding
the notification and the provisions of paragraph 5 regarding the statement
of the affiliated institution.
7. If the voting right have been granted to a usufructuary or a pledgee
instead of to a shareholder, the shareholder shall be entitled to attend
the general meeting of shareholders and to address the meeting, provided
that the provisions of paragraph 4 or paragraph 5, respectively, have been
complied with. The provisions of paragraph 6 shall apply accordingly.
8. Each share amounting to eight Eurocents (EUR 0.08) shall have one voting
right attached thereto.
9. Each person entitled to vote or his representative shall sign the
attendance list.
10. Each holder of depositary receipts shall be authorized to attend the
general meeting of shareholders, to address the meeting and to exercise his
voting rights, provided that the executive board has been notified thereof
in writing. Such notification shall be received by the executive board at
the place of the meeting, ultimately on the day referred to in paragraph 5.
Should depositary receipts have been issued, a holder of a depositary
receipt shall be authorized to attend the meeting and to address the
meeting, provided that his depositary receipts have been deposited at the
place of the meeting and ultimately on a day to be referred to in the
convocation. If registered depositary receipts have been issued with the
co-operation of the company, the holder thereof shall be authorized to
attend the meeting and to address the meeting provided that proof of his
ownership has been deposited at the place of the meeting ultimately on a
day to be referred to in the convocation and the registered depositary
receipts are still registered in the name of such holder per the date of
the meeting. The provisions of the preceding full sentences shall not apply
to a usufructuary and a pledgee as referred to in paragraph 4, and a holder
of registered shares as referred to in paragraph 7.
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11. The right to attend the meeting in accordance with paragraph 10, may be
exercised by written proxy, provided that, without prejudice to the deposit
requirement, such proxy shall be received by the executive board at the
place of the meeting and ultimately on the day referred to in paragraph 5.
12. Members of the supervisory board and members of the executive board shall
have an advisory role at general meetings of shareholders.
13. The chairman shall decide on
the admittance of persons other than those mentioned in this article.
Article 39. Voting.
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1. To the extent Dutch law or the articles of association do not prescribe a
qualified majority or a quorum, all resolutions shall be adopted by an
absolute majority of all votes cast. Unless a proposal to the general
meeting of shareholders is made by the executive board, subject to the
approval of the supervisory board, or Dutch law or these articles of
association stipulate otherwise, a resolution may only be adopted in a in a
legally valid manner, if at the meeting more than half of the issued share
capital is represented. If such part is not represented, a second meeting
in accordance with article 2:120, paragraph 3 Dutch Civil Code may not be
convened.
2. Should in an election of persons an absolute majority not be obtained, a
new free vote shall be held. If no absolute majority is then obtained, a
re-vote shall be held until either one person obtains an absolute majority,
or the votes are equally divided between two persons resulting in a tie
vote. In the event of a re-vote as referred to above (not including the
second free vote), a vote shall be held between the two persons
participating in the previous vote, excluding, however, the person who
obtained the least number of votes. If in that preceding vote more than one
person obtained the least number of votes, lots shall be drawn to determine
which person shall be excluded from the new vote. If there is a tie in a
vote held between two persons, lots shall be drawn to conclude the
election. If, however, there is a tie vote regarding persons who have been
listed on a binding nomination, the person listed first shall be deemed to
have obtained the highest number of votes.
3. If there is a tie vote during an election other than in an election of
persons, the proposal shall be deemed to be rejected.
4. Votes shall be held orally, unless the chairman decides or a person
entitled to vote demands that a vote be held by ballot. Voting by ballot
shall take place by means of folded, unsigned ballot papers.
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5. Blank votes and void votes shall be deemed not to have been cast.
6. Voting by acclamation shall be possible if none of the persons present and
entitled to vote objects thereto.
Article 40. Convocations and announcements.
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All convocations for general meetings of shareholders and all announcements to
shareholders and holders of depositary receipts shall be published in a
nationwide distributed daily newspaper published in the Netherlands and in such
other manner as may be required to comply with applicable stock exchange
regulations or deemed appropriate by the persons convening the meeting. The
notice convening a general meeting of shareholders shall be published or, where
applicable, distributed in other ways no later than on the fifteenth day prior
to the day of the meeting. Further, all holders of registered shares as well as
the usufructuaries and pledgees of such shares shall be convened through letters
sent to their addresses which shall be listed in the register referred to in
article 6.
SECTION XII.
Amendments of the articles of association. Dissolution.
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Article 41.
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1. A resolution to amend the articles of association or to dissolve the
company may only be adopted on the proposal of the executive board, subject
to the approval of the supervisory board.
2. If a proposal to amend the articles of association or to dissolve the
company is made to the general meeting, such shall be stated in the
convocation for the general meeting of shareholders or in the announcement
as referred to in article 34 paragraph 6 and, to the extent such concerns
an amendment of the articles of association, a copy of the proposal, in
which the proposed amendment is included verbatim, shall simultaneously be
deposited for inspection at the offices of the company and shall be
available, free of charge, for the shareholders and holders of depositary
receipts, until the close of the meeting.
Article 42. Liquidation.
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1. In the event of a dissolution of the company by virtue of a resolution of
the general meeting, the executive board shall be charged with the
liquidation of the company and the supervisory board shall be charged with
the supervision thereon, except for the provisions of article 2:23,
paragraph 2 Dutch Civil Code.
2. During the liquidation, the provisions of the articles of association
shall, to the extent possible, remain in force.
3. The balance remaining after the debts
have been settled, shall be distributed among the holders of preferred
shares and the holders of financing preferred shares:
a. any overdue dividends as referred to in article 29, paragraphs 1, 2
and 3, to be calculated over the period up to and including the date
on which the liquidation payment became due;
b. an amount equal to the nominal value paid per preferred share; and
c. an amount per financing preferred share equal to the basic yield
applicable to the class of share concerned.
Any balance then remaining shall be paid out to holders of common shares in
proportion with the total value of the common shares held by each
shareholder.
Should the balance be insufficient to pay the full amounts referred to
above in a, b and c to the holders of preferred shares and the holders of
financing preferred shares, such payments shall be made in proportion with
the amounts to be paid out on the preferred shares and the financing
preferred shares.
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Section XIII.
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Transitional provision.
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Article 43.
1. As per the date of this deed, each issued common share with a nominal value
of fifty Dutch cents (NLG 0.50) shall be converted into three (3) common
shares with a nominal value of eight Eurocents (EUR 0.08) each.
2. The obligation to further pay up the common shares for the amount of one
hundred sixty-two thousand nine hundred forty-nine Euro and twenty-three
Eurocents (EUR 162,949.23), resulting from the split and the change of the
nominal value of the shares as mentioned under 1., shall be satisfied by
charging said amount to the share premium reserve attached to the common
shares.
3. As per the date of this deed, each issued preferred share (either class A
or class B) with a nominal value of one Dutch guilder and twenty-five cents
(NLG 1.25) shall be converted into one financing preferred share (of the
relevant class) with a nominal value of sixty Eurocents (EUR 0.60) each.
4. The obligation to further pay up the financing preferred shares A for the
amount of seven thousand seven hundred thirty-four Euro and eighty-four
Eurocents (EUR 7,734.84) respectively the obligation to further pay up the
financing preferred shares B for the amount of twelve thousand eight
hundred twenty-four Euro and ninety-one Eurocents (EUR 12,824.91),
resulting from the change of the nominal value of the shares as mentioned
under 3., shall be satisfied by charging said amount to the share premium
reserve attached to the respective class of financing preferred shares.
5. Through the execution of this deed the issued share capital of the company
amounts to three million three hundred fifty-nine thousand four hundred
fifty-nine Euro and twenty-eight Eurocents (EUR 3,359,459.28) consisting of
thirty-seven million two hundred eighty-eight thousand four hundred
sixty-one (37,288,461) common shares, with a nominal value of eight
Eurocents (EUR 0.08) each, two hundred thirty-six thousand (236,000)
financing preferred shares A and three hundred ninety-one thousand three
hundred four (391,304) financing preferred shares B, with a nominal value
of sixty Eurocents (EUR 0.60) each.
6. This amendment of the articles of association of the company will become
effective on the first day of May two thousand and one.