Exhibit 99.1
UNOFFICIAL ENGLISH TRANSLATION
OF THE ARTICLES OF ASSOCIATION
of
James Hardie Industries N.V.
with corporate seat in Amsterdam,
the Netherlands
dated October 15, 2002
DEFINITIONS.
ARTICLE 1.
Capitalised terms used in these articles of association shall have the following
meaning:
ARTICLES these articles of association;
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 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 SCH Business Rules;
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COMPANY James Hardie Industries N.V.;
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 SCH Business 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 SCH Business 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
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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 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;
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;
SHAREHOLDER'S RIGHTS the right to vote on Shares, the
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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.
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;
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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
two hundred eighty million euro (EUR 1,280,000,000). It is divided
into two billion (2,000,000,000) shares of sixty-four eurocents (EUR
0.64) each.
4.2. 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 proposal of and for a price
and on such further terms and conditions to be determined by the
Supervisory 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
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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
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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 Joint 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;
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;
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c. the Joint 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 Joint 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
Joint 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 Joint 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 Joint 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 Joint Board may authorise payment by the Company of interest on
the whole or any part of an amount accepted under
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this article 5.8 until the amount becomes payable, at a rate, not
exceeding the Prescribed Rate, which is agreed between the Joint
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 Joint 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.
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
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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 at the proposal 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
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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 Joint 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.
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 Joint Board, be issued
upon the request of a Shareholder.
7.3. Share certificates shall be available in such denominations as the
Joint Board shall determine.
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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 Joint 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 Joint 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 Joint 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 Joint Board.
8.2. If, as and when the Joint 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
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letters of the missing share certificates, in at least three daily
published newspapers to be designated by the Joint 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 Joint Board, be published in newspapers to be
indicated by the Joint 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 Joint Board, may, in whole or in part, be kept in
more than one copy and at more than one address.
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 Joint 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 Joint 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
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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 Joint 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 SCH Business Rules,
including but not limited to a register of debenture holders and of
option holders.
9.8. The Joint 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 SCH Business
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 Joint
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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.
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.
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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
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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.
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
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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.
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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.
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
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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) more members under the supervision 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
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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 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
Joint Board as well as any Shareholder shall have the right to make
nominations.
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.
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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, the Joint Board may adopt
Management Rules and the Joint Board shall have authority to amend
the Management Rules from time to time. Also, the Joint 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 failing, the Joint Board is authorised to
designate a person temporarily in charge of management (belet en
23
ontstentenis persoon). In case a member of the Managing Board is
prevented from acting or is failing, 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 failing, the Joint Board shall temporarily be in
charge of the management. Failing one or more members of the Managing
Board the Joint Board shall take the necessary measures as soon as
possible in order to have a definitive arrangement made.
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 Supervisory 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
24
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
25
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
(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
26
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
27
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
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 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 member 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
28
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.
29
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 Joint 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.
30
REMUNERATION OF THE MEMBERS OF THE MANAGING BOARD.
ARTICLE 19.
19.1. The Joint Board shall determine the salary, the bonus, if any, and
the other terms and conditions of employment (including pension
benefits) of the members of the Managing Board.
19.2. 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.
19.3. 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.
19.4. 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.
19.5. If any member of the Managing Board, with the approval of the Joint
Board, performs extra services or makes any special exertions for the
benefit of the Company, the Company may pay to that member of the
Managing Board such special and additional remuneration as the Joint
Board deems fit having regard to the value to the Company of the
extra services or special exertions. Any special or
31
additional remuneration shall not include a commission on or
percentage of profits or operating revenue or turnover.
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
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 19.8, 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
Company under which the 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 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
32
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.
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 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
33
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
34
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.
21.2. The Managing Board shall provide the Supervisory Board in good time
with all relevant information as well as with all other information
as the Supervisory Board may request, in connection with the exercise
of its duties.
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 Joint 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
35
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.
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 Joint
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
Joint 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 Joint 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 Joint 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 Joint
Board shall be rounded downwards to the nearest whole number.
22.4. If a member of the Supervisory Board is to be appointed by the
General Meeting, the Joint 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
36
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.
22.6. Members of the Supervisory Board are not required to hold any Shares.
CHAIR OF THE SUPERVISORY BOARD. ORGANISATION OF THE SUPERVISORY BOARD.
ARTICLE 23.
23.1. The Supervisory Board shall appoint one of its members as its chair.
23.2. With due observance of these Articles, the Joint Board may adopt
Supervisory Rules and the Joint Board shall have the authority to
amend the Supervisory Board Rules from time to time.
23.3. 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.
23.4. 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.
23.5. If there is only one member of the Supervisory Board
37
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.
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
38
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 16.6 through 16.12 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 Joint Board shall determine the compensation of the members of
the Supervisory Board provided however that, if required by the ASX
Listing Rules:
a. the amount thereof shall not exceed in aggregate a maximum sum
that is from time to time approved by resolution of the
General Meeting; and
b. any notice convening a General Meeting at which it is proposed
to seek approval to increase the maximum aggregate sum
available for remuneration
39
to the members of the Supervisory Board shall specify the
proposed new maximum aggregate sum and the amount of the
proposed increase.
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. shall 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. If any member of the Supervisory Board, with the approval of the
Joint Board, performs extra services or makes any special exertions
for the benefit of the Company, the Company may pay to that member of
the Supervisory Board such special and additional remuneration as the
Joint Board deems fit having regard to the value to the Company of
the extra services or special exertions. Any special or
40
additional remuneration shall not include a commission on or
percentage of profits or operating revenue or turnover.
25.6. 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.
25.7. 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 corporate body (orgaan) which appointed such member
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 or meeting of the Joint
Board, as the case may be, 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, or the Joint
Board, as the case may be, 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
41
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;
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 planning and overseeing the
general course of affairs of the Company and has the other powers as
described in
42
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
43
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 shall appoint one of its members or
someone else as secretary of the Joint Board. The Joint Board may
adopt Joint Board Rules and it may further establish such committees
as it shall deem appropriate.
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.
44
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. 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 (other than an action, suit or proceeding by or in
the right of the Company) by reason of the fact that he is or was a
member of the
45
Managing Board, Supervisory Board or Joint Board, officer, employee
or agent of the Company, or was or is serving at the request of the
Company as a director, officer or agent of another company, a
partnership, joint venture, trust or other enterprise, 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 if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by a judgement, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
not in a manner which he reasonably could believe to be in or not
opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
28.2. 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 by or in the right of the Company to
procure a judgement in its favour, by reason of the fact that he 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
46
enterprise, against all expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defence or
settlement of such action or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and except that no indemnification
shall be made hereunder in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable for gross
negligence or wilful misconduct in the performance of his duty to the
Company, unless and only to the extent that the court in which such
action or proceeding was brought or any other court having
appropriate jurisdiction shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnification against such expenses which the court in
which such action or proceeding was brought or such other court
having appropriate jurisdiction shall deem proper.
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 paragraphs 1 and 2, 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
47
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
directors, 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
48
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.
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 discharge (decharge) of the members of the Managing Board
and Supervisory Board for their duties rendered during the
past financial year;
d. the appointment of member(s) of the Managing Board, in
accordance with the provisions of
49
article 14;
e. the appointment of member(s) of the Supervisory Board, in
accordance with the provisions of article 22; and
f. any other proposal placed on the agenda in accordance with the
provisions of the Law or these Articles.
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 Joint Board, the Managing Board or 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.
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;
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;
50
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 Joint 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
51
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, Supervisory Board or Joint 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.
Such notice:
a. must be in writing;
b. must state the proposed resolution, and the
52
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 Joint Board, 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 Joint 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)
53
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.
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.
54
Unless the Joint 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.
30.8. Extraordinary General Meetings may be called by a single member of
either the Managing Board, the Joint Board or the Supervisory Board
at the Company's expense.
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,
the Supervisory Board or the Joint 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
55
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.
CHAIR OF GENERAL MEETINGS. MINUTES.
ARTICLE 33.
33.1. General Meetings shall be presided by the chair of the Joint Board.
In case of absence of the chair of the Joint Board the meeting shall
be presided by any other person nominated by the Joint Board. The
chair of the General Meeting shall appoint the secretary of
56
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.
33.3. The chair of the Joint Board may request a civil law notary (notaris)
to include the minutes of the meeting in a notarial report (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.
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, the Joint Board or the
Supervisory Board, General Meetings may
57
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
58
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.
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
59
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 Joint 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.
60
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.
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
61
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
62
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.
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, on behalf of the Company, cause the annual
accounts to be examined by one or more registered accountant(s)
designated for the
63
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.
40.5. 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.
DISCHARGE OF MANAGING BOARD, THE SUPERVISORY BOARD AND THE JOINT BOARD.
ARTICLE 41.
To the fullest extent permitted by the Law, the adoption by the General Meeting
of the annual accounts, referred to in article 40, shall fully discharge the
Managing Board, the Supervisory Board and the Joint Board from liability in
respect of the exercise of their duties during the financial year concerned,
unless a proviso is made by the General Meeting, and without prejudice to the
provisions of sections 2:138 and 2:149 Dutch Civil Code.
PROFIT AND LOSS. RESERVATION. DIVIDEND.
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
64
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 Joint Board.
42.3. Subject to the Law and these Articles, the Joint Board may resolve to
declare a divided 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 the General Meeting shall have the authority to
make such distributions in the form of Shares in the Company, if a
designation as referred to in article 4.2 is not in force.
42.4. Subject to the provisions of section 2:105 subsection 4 Dutch Civil
Code, and these Articles the Joint Board may resolve to declare an
interim dividend on Shares. Interim 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 the General Meeting shall have the authority to make
such distributions in the form of Shares in the Company, if a
designation as referred to in article 4.2 is not in force.
42.6. 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
65
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.
42.7. 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 Joint Board may 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, the Joint 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 Company or by other companies, or a
combination thereof, provided however that the General Meeting shall
have the authority to make such distributions in the form of Shares
in the Company, if a designation as referred to in article 4.2 is not
in force.
43.4. Distributions shall be divisible among the Shareholders in proportion
to the nominal amount paid (or credited as paid) (excluding the
amounts unpaid
66
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 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 Joint 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 Joint Board determines otherwise and may be paid in such currency
or currencies as the Joint Board determines using the rate of
exchange prevailing on the date fixed for payment by the Joint 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 the date fixed for payment by the Joint
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.
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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 Joint 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
Joint 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 years and two
days after the date the Company has notified such person of the sale
and the proceeds arising therefrom.
44.8. The Joint 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.
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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.
69
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.
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 Australian Securities and Investments
Commission;
ASSOCIATE 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
70
holding or acquiring a Relevant Interest;
AUSTRALIAN LAW AND POLICY (i) decisions of an Australian court;
(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
71
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:
(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
72
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
73
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.
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
74
(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
75
(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.
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
76
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;
77
(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
(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:
78
(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
79
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 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
80
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
81
(ii) a right to acquire a Relevant Interest given by a
(futures) agreement. This paragraph e. 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.
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
82
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
83
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
(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
84
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
85
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:
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
86
(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
87
(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.
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.
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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
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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
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
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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
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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.
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
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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
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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.
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
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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
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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.
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 Joint Board; and
The document must also contain a statement by each member of
the 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
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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 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:
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(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.
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
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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;
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(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.
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
100
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
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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.
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 SCH
Business 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.
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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 SCH Business 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 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.
TRANSITIONAL PROVISIONS.
DELEGATION OF THE AUTHORITY TO ISSUE SHARES, TO LIMIT AND TO EXCLUDE PRE-EMPTIVE
RIGHTS.
ARTICLE 52.
Effective as per the amendment of these Articles on [ ], and on the proposal of
the Joint Board, the delegation of the authority to issue shares in the capital
of the Company and to grant rights to subscribe for shares, and to exclude or
limit pre-emptive rights relating to such issues and grants to the Joint Board
(the "Delegation"), made by written resolution of the general meeting of
Shareholders of the Company dated the fourteenth day of August two
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thousand and one, is terminated.
Effective as per the amendment of these Articles and on the proposal of the
Joint Board, the Delegation is considered to be granted to the Supervisory
Board, and shall be (i) for a period ending on the fifteenth day of August two
thousand and six, and (ii) up to the maximum number of Shares that may be issued
under the authorised share capital, as set forth in these Articles from time to
time.
MANAGING BOARD APPOINTMENT.
ARTICLE 53.
For the purpose of article 14.2., Donald Ewen Cameron will be deemed to be
appointed as member of the Managing Board as per the date referenced in the head
of these Articles.