EXHIBIT 99.1
[DE BRAUW BLACKSTONE WESTBROEK LOGO]
mav/mhl/mvo/cwe
F:\ondwerk\dt\Dt2003\71065201.zj4e.doc
UNOFFICIAL ENGLISH TRANSLATION
OF THE ARTICLES OF ASSOCIATION
of:
James Hardie Industries N.V.
with corporate seat in Amsterdam,
the Netherlands
dated 5 November 2003
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;
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 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 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
USUFRUCT adopted pursuant to article 23 of these Articles;
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;
b. to raise funds by the issues of debt or equity or in any other way and to
finance third parties;
c. to provide guarantees, including guarantees for debts of third parties,
and to perform all activities which are incidental to or which may be
conducive to, or connected with, any of the foregoing.
SHARE CAPITAL. ISSUANCE OF SHARES. PRE-EMPTIVE RIGHTS.
ARTICLE 4.
4.1. The authorised share capital of the Company amounts to one billion one
hundred and eighty million euro (EUR 1,180,000,000). It is divided into
two billion (2,000,000,000) shares of fifty-nine eurocents (EUR 0.59)
each.
4.2. 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 remaining Shareholders shall be similarly entitled to pre-emptive
rights in respect of the Shares that have not been claimed. If the
latter collectively do not or do not fully exercise their pre-emptive
rights, the Supervisory Board, and if a designation as referred to in
article 4.2 of these Articles is not in force, the General Meeting,
shall be due to decide to whom the Shares which have not been claimed
shall be issued and such issue may be made at a higher price. There
shall be no pre-emptive right to Shares issued against a contribution
other than in cash or issued to employees of the Company or of a group
company. The Company shall notify all Shareholders of an issue of
Shares in respect of which pre-emption rights
exist and of the period of time within which such rights may be
exercised with due observance of article 10.2 of these Articles.
The Supervisory Board shall have the power to limit or exclude any
pre-emptive rights to which Shareholders shall be entitled, but only if
and in so far as it has been granted such authority by the General
Meeting, and provided further that the Supervisory Board can only
exercise such authority if at that time it also has authority to
resolve upon the issue of Shares. The provisions in the second sentence
of article 4.2 of these Articles shall equally apply.
4.5. If a designation as referred to in article 4.2 of these Articles is not
in force, the General Meeting shall have power to limit or exclude any
pre-emptive rights to which Shareholders shall be entitled, but only
upon the proposal of the Supervisory Board.
4.6. This article 4 shall equally apply to the granting of rights to
subscribe for Shares (such as stock options), but shall not apply to
the issue of Shares to a person who exercises a previously acquired
right to subscribe for Shares, in which case no pre-emptive right
exists (and no further action pursuant to articles 4.2 and 4.3 of these
Articles shall be required).
ISSUANCE PRICE. PAYMENT ON SHARES. CALLS ON SHARES.
ARTICLE 5.
5.1. Without prejudice to what has been provided in section 2:80, subsection
2 Dutch Civil Code, Shares shall at no time be issued below par. Upon
subscription of a Share, the amount to be paid thereon shall be equal
to the nominal value of such Share and - if such Share is subscribed
for a higher amount - the difference between such amounts. It may be
stipulated that a part of the nominal value, not exceeding
three-fourths (3/4) thereof, shall be due for payment after the Company
has so called for it to be paid.
5.2. Calls on Shareholders in respect of any part of the nominal value
unpaid on the Shares pursuant to article 5.1. shall be made with due
observance of the following:
a. the 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;
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 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 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
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.
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 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
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 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.
10.4. A Shareholder may, by written notice to the Company left at or sent to
the registered office, request that all notices to be given by the
Company be served on the Shareholder's attorney at an address specified
in the notice and the Company may do so in its discretion.
10.5. Notices to a Shareholder whose address for notices is outside the
country from where
the notice is sent, shall be sent by airmail, air courier, fax or
electronic mail.
10.6. Where a notice is sent by post, airmail or air courier, service of the
notice shall, to the fullest extent permitted by Law, be taken to be
effected by properly addressing and posting or delivering to the air
courier a letter containing the notice and to have been effected on the
day after the date of its posting or delivery to the air courier.
10.7. In proving service of any notice it will be sufficient to prove that
the letter containing the notice was properly addressed and put into
the post office or other public postal receptacle or delivered to the
air courier.
10.8. Where a notice is sent by fax or electronic transmission, service of
the notice shall, to the fullest extent permitted by Law, be taken to
be effected by properly addressing and sending or transmitting the
notice and to have been effected on the day it is sent.
10.9. A notice may be given by the Company to a person entitled to a Share in
consequence of the death or bankruptcy of a Shareholder:
a. by serving it on the person personally;
b. by sending it by post addressed to the person by name or by
the title of representative of the deceased or assignee of the
bankrupt or by any like description at the address (if any)
supplied for the purpose by the person;
c. if such an address has not been supplied, at the address to
which the notice might have been sent if the death or
bankruptcy had not occurred;
d. by transmitting it to the fax number supplied by the person to
the Company; or
e. if such a fax number has not been supplied, by transmitting it
to the fax number to which the notice might have been sent if
the death or bankruptcy had not occurred; or
f. by transmitting it to the electronic mail address supplied by
the person to the Company.
10.10. Unless provided otherwise in these Articles where a period of notice is
required to be given, the day on which the notice is deemed to be
served will, but the day of doing the act or other thing will not be
included in the number of days or other period.
10.11. Notifications which by Law or under these Articles are to be addressed
to the General Meeting may take place by including the same in the
notice of the General Meeting or in a document which has been made
available for inspection at the offices of the Company, provided this
is mentioned in the notice of the meeting.
10.12. Notices of meetings and notifications which by Law or pursuant to these
Articles must be made to Shareholders shall also be given to CUFS
Holder(s) provided the Shares are quoted on the ASX, any other persons
entitled by Law to attend a General Meeting and to any other person to
whom the Company is required to give notice under the Listing Rules,
and any reference to Shareholder(s) in this article 10 must be read as
a reference to CUFS Holder(s), any such person(s) entitled by Law to
attend a General Meeting and to any such other person to whom the
Company is required to give notice under the Listing Rules, with such
notices and notifications to be written in the English language and any
other language determined by the Company.
10.13. Any notice as referred to in article 10.1 through article 10.12
inclusive, will be sent with due observance of the Listing Rules.
10.14. Notifications of Shareholders and other notifications to be addressed
to the Managing
Board, the Supervisory Board or the Joint Board shall be sent by letter
to the office of the Company or to the addresses of all members of the
Managing Board, the Joint Board or the Supervisory Board.
TRANSFER OF REGISTERED SHARES.
ARTICLE 11.
11.1. The transfer of title to the Shares or the transfer of title to or a
termination of a right of Usufruct on Shares or the creation or release
of a right of Usufruct or of a right of pledge on Shares shall be
effected by way of a written instrument and in accordance with the
(further) provisions set forth in section 2:86, or, as the case may be,
section 2:86c Dutch Civil Code. In addition, upon the transfer of a
Share in respect of which a share certificate has been issued, such
share certificate must be delivered to the Company. The Company can
acknowledge the transfer of a Share in respect of which a share
certificate has been issued by endorsement on the share certificate or
by issuance of a new share certificate to the transferee, at the
discretion of the Managing Board.
11.2. If the transfer concerns Shares that have not been fully paid-up the
acknowledgement by the Company can only be made if the written
instrument bears a fixed date (authentieke of geregistreerde
onderhandse akte). After the transfer or allocation (toedeling) of
partially paid up Shares, each of the previous Shareholders shall
remain jointly and severally liable vis-a-vis the Company for the
amount to be paid on the Shares transferred or allocated. The Managing
Board together with the Supervisory Board could discharge any previous
Shareholder from further joint and several liability by means of the
execution of an authentic or registered private deed bearing a fixed
date (authentieke of geregistreerde onderhandse akte); in such case the
joint and several liability of the previous Shareholder will remain to
exist for payments called for within one year after the date on which
said authentic or registered deed is executed.
11.3. The provisions of article 11.1 shall equally apply to (i) the allotment
of Shares in the event of a partition of any joint holding, (ii) the
transfer of Shares as a consequence of foreclosure of a right of pledge
and (iii) the creation or transfer of limited rights in rem on Shares.
11.4. Any requests made pursuant to and in accordance with articles 8, 9 and
11 may be sent to the Company at such address(es) as to be determined
by the Managing Board, at all times including an address in the
municipality or city where the ASX has its principal place of business.
FEES AND EXPENSES.
ARTICLE 12.
Without prejudice to article 9.4, the Company is authorised to charge such
amounts as may be determined by the Managing Board provided they do not exceed
cost price, to persons who have made a request pursuant to and in accordance
with articles 8, 9 and 11.
JOINT HOLDING.
ARTICLE 13.
If Shares, CUFSs or depositary receipts for Shares issued with the co-operation
of the Company are included in a joint holding, the Joint Holders may only be
represented vis-a-vis the Company by a person who has been designated by them in
writing for that purpose. The Joint Holders may
also designate more than one person. If the joint holding comprises Shares, the
Joint Holders may determine at the time of the designation of the representative
or thereafter - but only unanimously - that, if a Joint Holder so wishes, a
number of votes corresponding to his interest in the joint holding will be cast
in accordance with his instructions.
MANAGING BOARD. NUMBER OF MEMBERS OF THE MANAGING BOARD.
APPOINTMENT.
ARTICLE 14.
14.1. The Company shall be managed by the Managing Board comprising of at
least two (2) 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 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.
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 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 method of adoption of
a resolution.
16.3. A certificate signed by a member of the Managing Board confirming that
the Managing Board has adopted a particular resolution, shall
constitute evidence of such resolution vis-a-vis third parties.
16.4. The Management Rules shall include provisions on the manner of
convening board meetings and the internal procedure at such meetings.
These meetings may be held by telephone conference communications, as
well as by video communications, provided all participating members of
the Managing Board can hear each other simultaneously.
16.5. Without prejudice to article 16.6, a member of the Managing Board who
has a material personal interest in a matter that relates to the
affairs of the Company must give all of the other members of the
Managing Board notice of his or her interest.
16.6. A member of the Managing Board with a material personal interest in a
matter that relates to the affairs of the Company is not required to
give notice in the following circumstances:
a. if the interest:
(i) arises because the member of the Managing Board is a
Shareholder of the Company and is held in common with
the other Shareholders of the Company; or
(ii) arises in relation to the member's remuneration as a
member of the Managing Board; or
(iii) relates to a contract the Company is proposing to
enter into that is subject to approval by the General
Meeting and will not impose any obligation on the
Company if it is not approved by the General Meeting;
or
(iv) arises merely because the member of the Managing
Board is a guarantor or has given an indemnity or
security for all or part of a loan (or proposed loan)
to the Company; or
(v) arises merely because the member of the Managing
Board has a right of subrogation in relation to a
guarantee or indemnity referred to above; or
(vi) relates to a contract that insures, or would insure,
the member of the Managing Board against any
liability such member incurs or would incur as an
officer of the Company (but only if the contract does
not make the Company or a related company the
insurer); or
(vii) relates to any payment by the Company or another
company in respect of an officer or any contract
relating to such an indemnity; or
(viii) is in a contract, or proposed contract, with, or for
the benefit of, or on behalf of, another company and
arises merely because the member of the Managing
Board is a director of the other company; or
b. if all of the following conditions are met:
(i) the member of the Managing Board has already given
notice of the nature and extent of the interest and
its relation to the affairs of the Company;
(ii) if a person who was not a member of the Managing
Board at the time the notice above was given, is
appointed as a managing director and the notice was
given by that person; and
(iii) the nature or extent of the interest has not
materially changed or increased from that disclosed
in the notice; or
c. if the member of the Managing Board has given a standing
notice of the nature and extent of the interest in accordance
with article 16.8 and that standing notice is still effective
in relation to the interest.
16.7. Notices of material personal interest given by a member of the Managing
Board must:
a. give details of the nature and extent of the interest of the
member of the Managing Board and the relation of the interest
to the affairs of the Company;
b. be given at a meeting of the Managing Board as soon as
practicable after the member of the Managing Board becomes
aware of his or her interest in the matter; and
c. be recorded in the minutes of the meeting of the Managing
Board at which the notice is given.
16.8. The standing notice referred to in article 16.6 under c:
a. may be given at any time and whether or not the matter relates
to the affairs of the company at the time the notice is given;
b. must give details of the nature and extent of the interest and
be given:
(i) at a meeting of the Managing Board (either orally or
in writing); or
(ii) to each of the other members of the Managing Board
individually in writing.
c. must be tabled at the next meeting of the Managing Board in
the event that it is given to other members of the Managing
Board individually in written form pursuant to article 16.7
under b.;
d. recorded in the minutes of the meeting at which it is given or
tabled.
16.9. A standing notice that is given under article 16.8 takes effect as soon
as it is given and ceases to have effect in the following
circumstances:
a. if a person who was not a member of the Managing Board at the
time when the notice was given is appointed as a member of the
Managing Board; and
b. if the nature or extent of the interest materially changed or
increases from 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 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.
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.
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 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 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 Meeting shall be held, in which
meeting a resolution must be adopted to either terminate or extend the
suspension for a maximum period of another three months. If neither
such resolution is adopted nor the General Meeting has resolved to
dismiss the member of the Managing Board, the suspension shall
terminate after the period of suspension has expired.
The member of the Managing Board shall be given the opportunity to
account for his actions at that meeting.
20.4. Further to article 20.1, a member of the Managing Board shall cease to
be a member of the Managing Board if he:
a. becomes bankrupt, or obtains suspension of payments, or any
event having analogous effect under applicable law, or
proposes or makes any agreement for the deferral, rescheduling
or other adjustment of all or part of his debts;
b. loses his full legal capacity (handelingsbekwaamheid), or any
event having analogous effect under applicable law;
c. resigns by notice in writing to the Company;
d. is absent without the consent of the other members from
Managing Board meetings held during a continuous period of
three (3) months;
e. becomes prohibited from being a member of the Managing Board
by reason of any provision of law; or
f. dies.
SUPERVISORY BOARD.
ARTICLE 21.
21.1. The Supervisory Board shall be responsible for supervising the policy
pursued by the Managing Board and the general course of affairs of the
Company and the business enterprise which it operates. The Supervisory
Board shall assist the Managing Board with advice relating to the
general policy aspects connected with the activities of the Company. In
fulfilling their duties the members of the Supervisory Board shall
serve the interests of the Company and the business enterprise which it
operates.
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 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 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 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 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 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 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 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 these Articles.
The Joint Board shall consist of all members of the Supervisory Board,
the CEO and, if the chair of the Supervisory Board decides thereto, one
or more other members of the Managing Board, to be designated by the
chair of the Supervisory Board, provided however that the number of
members of the Managing Board being on the Joint Board
can never be greater than the number of members of the Supervisory
Board.
The chair of the Supervisory Board shall adopt a resolution to
designate one or more members of the Managing Board as member(s) of the
Joint Board in writing and shall communicate such resolution to all
members of the Joint Board, including the designated members of the
Managing Board.
27.2. The Joint Board may resolve by unanimous votes at a meeting at which
all members of the Joint Board are present or represented to abolish
the Joint Board. The Joint Board shall no longer be instituted from the
date such resolution has been filed with the trade register of the
competent Chamber of Commerce and Industry as referred to in section 2:
77 Dutch Civil Code.
27.3. Following any resolution of the Joint Board as referred to in article
27, paragraph 2, the Supervisory Board may resolve to re-institute a
Joint Board. Any such re-institution of the Joint Board shall be
effective as from the date of filing of such resolution with the trade
register of the competent Chamber of Commerce and Industry as referred
to in section 2: 77 Dutch Civil Code.
If and so long as a Joint Board has been instituted, the provisions of
this article shall apply to the Joint Board and its members, without
prejudice to what has otherwise been provided in these Articles
concerning the Joint Board and its members.
27.4. If and so long as the Joint Board is not instituted, the powers and
authorities of the Joint Board shall vest in the Supervisory Board, and
the powers and authorities of the chair of the Joint Board shall vest
in the chair of the Supervisory Board.
27.5. The members of the Joint Board shall resign or be suspended or
dismissed from the Joint Board simultaneously with their resignation,
suspension or dismissal as member of the Managing Board or Supervisory
Board.
27.6. The Joint Board shall appoint one of its members as chair of the Joint
Board. The Joint Board 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.
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 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 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
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 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 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;
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
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 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) 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.
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 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 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 also be attended and addressed
(but no voting may so be established) by means of telephone or video
conference, provided each person entitled to attend and address the
General Meeting pursuant to article 34.1 can hear and be heard at the
same time.
34.4. The Managing Board may determine that the persons who are entitled to
attend the General Meeting, as referred to in article 34.1 and article
34.2, are persons who (i) are a Shareholders or persons who are
otherwise entitled to attend the General Meeting as at a certain date,
determined by the Managing Board, such date hereinafter referred to as:
the "record date", and (ii) who are as such registered in a register
(or one or more parts thereof) designated thereto by the Managing
Board, hereinafter referred to as: the "register", regardless of
whether they are a Shareholder or person otherwise entitled to attend
the General Meeting at the time of the General Meeting.
34.5. The record date referred to in article 34.4 cannot be earlier than at a
certain time on the seventh day and not later than at a certain time on
the third day, prior to the date of the General Meeting. The notice
("oproeping") of the General Meeting will contain the procedure for
registration, and lodgement of valid proxies.
PROXIES.
ARTICLE 35.
35.1. Shareholders and other persons entitled to attend a General Meeting may
be represented by proxies duly authorised in writing, and provided
notice and proxy appointments are given in the form approved by the
Managing Board in writing to the Managing Board in accordance with
article 34.1 and with due observance of article 35.2, such proxies
shall be admitted to the General Meeting.
35.2 The instrument appointing the proxy given in accordance with article
35.1, and any power of attorney or other authority (if any) under which
the instrument is signed, must be deposited not less than forty-eight
hours before the start of the General Meeting or adjourned General
Meeting (or such lesser time as set out in the notice convening the
General Meeting), at the registered office of the Company or at such
other place as is specified for that purpose in the notice convening
the General Meeting.
35.3. All matters regarding the admittance to the General Meeting, the
exercise of voting rights and the outcome of the votes, as well as any
other matters regarding the
proceedings at the General Meeting shall be decided upon by the chair
of that meeting, with due observance of the provisions of section 2:13
Dutch Civil Code.
INFORMATION MEETING.
ARTICLE 36.
36.1. Information Meetings shall be held no more than seven (7) days prior to
each General Meeting and shall be for the benefit of Shareholders and
other persons entitled to attend a General Meeting who are unable to
attend such General Meeting.
36.2. Information Meetings shall be held in Australia. The notice convening
an Information Meeting shall be included in the notice convening the
General Meeting and shall be given with due observance of article 31.3.
36.3. No voting will occur at any Information Meeting.
36.4. Subject to articles 34.1 and 35.1 and without limiting any other
lodgement with the Company as set out in the relevant notice of a
General Meeting, the Managing Board shall ensure that Shareholders and
other persons entitled to vote at General Meetings are able to lodge
proxies at the Information Meeting for admission to the General
Meeting.
ADOPTION OF RESOLUTIONS. QUORUM. ADJOURNMENTS.
ARTICLE 37.
37.1. Unless provided otherwise by Law or these Articles, resolutions shall
be validly adopted if adopted by an absolute majority of votes cast at
a General Meeting at which at least five (5)% of the issued and
outstanding share capital is present or represented. Blank and invalid
votes shall not be counted.
37.2. If a quorum is not present within thirty (30) minutes after the opening
of the General Meeting:
a. where the meeting was convened upon the request of
Shareholders, the General Meeting will be dissolved;
b. in any other case, provided the Shares are quoted on the ASX:
(i) the meeting stands adjourned to a time and place as
the 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.
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 and more than one
person has been nominated for appointment, then votes shall be taken
until one of the nominees has obtained an absolute majority of the
votes cast. The further votes may, at the chair's discretion, be taken
at a subsequent General Meeting.
37.7. In the case of an equality of votes cast at the General Meeting the
chair has a casting vote.
37.8. Unless depositary receipts for Shares have been issued with the
co-operation of the Company, the Shareholders may adopt a resolution
that they can adopt at a meeting, without holding a meeting. Such a
resolution shall only be valid if all Shareholders entitled to vote
have cast their votes in writing in favour of the proposal concerned
and all members of the Managing Board and the Supervisory Board were
been offered the opportunity to advise on the resolution to be so
adopted.
VOTING RIGHT PER SHARE.
ARTICLE 38.
At the General Meeting each Share shall confer the right to cast one vote,
unless provided otherwise by Law or these Articles.
SPECIAL RESOLUTIONS. PROPOSALS TO AMEND THESE ARTICLES OR TO LIQUIDATE OR TO
MERGE AND DEMERGE THE COMPANY.
ARTICLE 39.
39.1. Without prejudice to the quorum requirement as referred to in article
37.1., a resolution of the General Meeting to amend these Articles or
to dissolve the Company shall only be valid if:
a. adopted by at least a three-fourths (3/4) majority of the
votes cast at such General Meeting; and
b. with respect to a proposed amendment of these Articles one
complete copy of the proposal has been freely available for
the Shareholders and the other persons entitled to attend the
General Meeting at the office of the Company as from the day
of notice convening such meeting until the close of that
meeting.
39.2. A resolution by the General Meeting to merge or demerge the Company
shall only be valid if adopted by at least a three-fourths (3/4)
majority of the votes cast at such
General Meeting.
ANNUAL ACCOUNTS. REPORT OF THE MANAGING BOARD AND DISTRIBUTIONS.
ARTICLE 40.
40.1. The financial year of the Company shall run from the first day of April
up to and including the thirty-first day of March of the following
year.
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 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 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
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 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.
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.
45.1. If the Company is dissolved, the liquidation shall be carried out by
the person(s) designated for that purpose by the General Meeting, under
the supervision of the
Supervisory Board.
45.2. The General Meeting shall upon the proposal of the Supervisory Board
determine the remuneration payable to the liquidators and to the person
responsible for supervising the liquidation.
45.3. The liquidation shall take place with due observance of the provisions
of the Law. During the liquidation period these Articles shall, to the
extent possible, remain in full force and effect.
45.4. After settling the liquidation, the liquidators shall render account in
accordance with the provisions of the Law.
45.5. After the Company has ceased to exist, the books and records of the
Company shall remain in the custody of the person designated for that
purpose by the liquidators during a seven (7) year period.
DISTRIBUTION TO SHAREHOLDERS UPON DISSOLUTION.
ARTICLE 46.
After all liabilities of the Company have been settled, including those
incidental to the liquidation, the balance shall then be distributed among the
Shareholders in proportion to the nominal amount paid (or credited as paid)
(excluding the amounts unpaid on those Shares pursuant to article 5) on the
Shares of each Shareholder.
EFFECT OF THESE ARTICLES.
ARTICLE 47.
These Articles are binding on the Company and each Shareholder and the Company,
on the one hand, and each Shareholder severally, on the other hand, is to
observe and perform these Articles so far as they apply to him/it.
HOLDING OF SHARES AND CUFS.
ARTICLE 48.
The Shareholder holds the Shares (and accordingly any holder of CUFS takes its
interests in the Shares) subject to:
a. the provisions of these Articles;
b. any obligations or liabilities which the Shareholder may incur in
respect of the Shares pursuant to these Articles; and
c. any rights or interests of the Company or any third party in the Shares
which may arise under or pursuant to the exercise of any power
contained in these Articles.
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 has entered
into an agreement for the purpose of 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
CONTROL Take-over Bid; over a Person,
(i) the ability to exercise, directly or
Indirectly:
(A) more than twenty (20%) of the voting rights
in a general meeting of such Person; or
(B) the right to dismiss or appoint more than
fifty percent (50%) of the members of such
Person's managing or supervisory board; or
(ii) in respect of a Person that is not a legal
entity: being liable (whether actually or
contingently) -alone or together with one or more
Affiliated Companies - for such Person's debts
vis-a-vis third parties;
CORPORATIONS ACT BID a bid for Shares or CUFS made in compliance, so
far as possible, with Parts 6.4, 6.5, 6.6 and 6.8
of the Corporations Act in respect of off-market
bids (as that term is defined in the Corporations
Act) as if the Company were incorporated in
Australia and were the "target" as defined in
those Parts, subject to:
(i) any requirement under those provisions for a
document to be lodged with ASIC being taken to be
satisfied if the document is given to ASX
instead; and
(ii) any other modifications or exemptions agreed
between the Person making the bid and the
Supervisory Board in accordance with article
49.13;
INDIRECTLY by, through or in concert with:
(i) one or more Affiliated Companies of such
Person;
(ii) a nominee or trustee for the Person; or
(iii) another Person with whom such Person has
entered
into an agreement for the purpose of holding or
acquiring a Relevant Interest;
ON MARKET TRANSACTION a transaction that is effected on ASX and is:
(i) an on-market transaction as defined in the
rules governing the operation of ASX; or
(ii) if those rules do not define on-market
transactions - effected in the ordinary course of
trading on ASX;
PANEL the Corporations and Securities Panel established
under the Australian Securities and Investments
Commission Act (2001) or any successor or
replacement entity;
PARENT COMPANIES of a Person, one or more companies exercising
Control over such Person;
PERSON a natural person, a legal entity or any other
legal form that under applicable law has the
power to hold a Relevant Interest;
RELEVANT INTEREST any interest in Shares that causes or permits a
Person to:
(i) exercise or to influence (or restrain) the
exercise of voting rights on Shares (whether
through the giving of voting instructions or as a
proxy or otherwise); or
(ii) dispose or to influence (or restrain) the
disposal of Shares,
including inter alia the legal ownership of a
Share, a CUFS, a right of pledge (pandrecht) or
right of Usufruct on a Share and an interest
under an option agreement to acquire a Share or a
CUFS;
SENIOR COUNSEL an Australian legal practitioner practising in
the New South Wales or Victorian bar who has been
appointed by the Attorney General of New South
Wales or Victoria (as the case may be) as a
senior counsel or queen's counsel;
SUBSIDIARY COMPANIES of a Person, one or more companies over which
Control is exercised by such Person;
TAKE-OVER BID a bid for Shares or CUFS that at all relevant
times fulfils the purposes set out in article
49.1 and complies with the principles in article
49.13.
49.1. The purposes of this chapter III is to ensure that:
a. the acquisition of control over CUFS or Shares takes place in
an efficient, competitive and informed market; and
b. each Shareholder and CUFS Holder and as well as the Managing
Board, Joint Board and Supervisory Board:
(i) know the identity of any Person who proposes to
acquire a substantial interest in the Company; and
(ii) are given reasonable time to consider a proposal to
acquire a substantial interest in the Company; and
(iii) are given enough information to assess the merits of
a proposal to acquire a substantial interest in the
Company; and
c. as far as practicable, the Shareholders and CUFS Holders all
have a reasonable and equal opportunity to participate in any
benefits accruing through a proposal to acquire a substantial
interest in the Company.
In the interpretation of a provision of article 49, a construction that
would promote the purpose or object underlying these Articles is to be
preferred to a construction that would not promote that purpose or
object.
49.2. Without prejudice to the exceptions and exemptions as referred to in
articles 49.5 and 49.6, no Person may hold a Share if, because of an
acquisition of a Relevant Interest by any Person in that Share:
a. the number of Shares in respect of which any Person
(including, without limitation, the holder) directly or
Indirectly acquires or holds a Relevant Interest increases:
(i) from twenty percent (20%) or below to more than
twenty percent (20%); or
(ii) from a starting point that is above twenty (20%) and
below ninety percent (90%),
of the issued and outstanding share capital of the Company; or
b. the voting rights which any Person (including, without
limitation, the holder) directly or Indirectly, is entitled to
exercise at a General Meeting on any matter increase:
(i) from twenty percent (20%) or below to more than
twenty percent (20%); or
(ii) from a starting point that is above twenty percent
(20%) and below ninety percent (90%),
of the total number of such voting rights which may be
exercised by any Person at a General Meeting.
For the purposes of this article 49 (including article 49.2),
a Person holds a Share if the Person:
(A) is the legal owner of the Share; or
(B) holds a right of pledge (pandrecht) or right of
Usufruct on Shares, provided the right to vote the
Shares so pledged or subject to the right of Usufruct
is included in such right.
Any holding of a Share or acquisition of a Relevant Interest
in breach of this article 49.2 does not cause such acquisition
or holding to be invalid.
49.2A (a) A Shareholder must give the information referred to in article
49.2A(e) to the Company if:
(i) a Person begins to have, or ceases to have, a
substantial holding in the Company; or
(ii) a Person has a substantial holding in the Company and
there is a movement of at least one percent (1%) in
their holding; or
(iii) a Person makes a Take-over Bid for securities of the
Company.
The Shareholder must also give the information to the ASX. For
the purposes of this article, a "Substantial Holder" means a
Person referred to in paragraphs (i), (ii) or (iii) above.
(b) The obligation of the Shareholder to provide this information
referred to in article 49.2A(e) is taken to be satisfied if it
is provided to the Company and ASX by the Substantial Holder.
(c) For the purposes of this article, a Person has a substantial
holding in the Company if the total votes attached to Shares
in which the Person directly or Indirectly:
(A) has Relevant Interests; or
(B) would have a Relevant Interest but for the operation
of article 49.5(g) or article 49.5(j),
is five percent (5%) or more of the total number of votes
attached to all Shares.
(d) For the purposes of this article there is a movement of at
least one percent (1%) in a Person's holding if the percentage
worked out using the following formula increases or decreases
by one (1) or more percentage points from the percentage they
last disclosed under this article in relation to the Company:
Person's votes x one hundred (100)
-----------------------------------
Total votes in the Company
where:
"Person's votes" is the total number of votes attached to all
the Shares (if any) in which the Person directly or Indirectly
has a Relevant Interest.
"Total votes in the Company" is the total number of votes
attached to all Shares.
(e) The information to be given must include:
(i) the Substantial Holder's name and address;
(ii) details of their Relevant Interest in Shares and of
the circumstances giving rise to that Relevant
Interest;
(iii) the name of the Shareholders in relation to the
Shares in which the Substantial Holder has a Relevant
Interest;
(iv) details of any agreement through which the
Substantial Holder would have a Relevant Interest in
Shares in the Company;
(v) the name of each Associate who has a Relevant
Interest in Shares in the Company, together with
details of:
(A) the nature of their association with the
Associate;
(B) the Relevant Interest of the Associate; and
(C) any agreement through which the Associate
has the Relevant Interest; and
(vi) if the information is being given because of a
movement in their holding - the size and date of that
movement.
(f) The information must be given in the form prescribed by the
Company (if the Company has prescribed a form) and must be
accompanied by:
(i) a copy of any document including any agreement that:
(A) contributed to the situation giving rise to
the Shareholder needing to provide the
information; and
(B) is in writing and readily available to the
Substantial Holder or Shareholder; and
(ii) a statement by the Substantial Holder or Shareholder
giving full and
accurate details of any contract, scheme or
arrangement that:
(A) contributed to the situation giving rise to
the Shareholder needing to provide the
information; and
(B) is not both in writing and readily available
to the Substantial Holder or Shareholder.
(g) The information does not need to be accompanied by the
documents referred to in article 49.2A(f) if the transaction
that gives rise to the Shareholder needing to provide the
information takes place on the ASX.
(h) The Shareholder must give the information:
(i) within two (2) Business Days after they become aware
of the information as referred to in article
49.2(A)(e); or
(ii) by nine-thirty (9.30 am) on the next trading day of
the ASX after they become aware of the information as
referred to in article 49.2(A)(e) if a Take-over Bid
is made.
49.3. For the purpose of article 49.2 or article 49.2A, a Person:
a. holding or acquiring a Relevant Interest; or
b. exercising the voting rights at a General Meeting,
shall together with his Affiliated Companies be considered as one
Person in respect of such Relevant Interest or exercise of voting
rights, and each of them, to the extent he holds one or more Shares
shall be jointly and severally liable (hoofdelijk aansprakelijk) for
each other's obligations under these Articles pursuant to article 49.7
under a., and article 50.3 under b. In addition, there may be imposed
on each of them the other remedies referred to in articles 49.7 and
50.3.
49.4. For the purpose of article 49.2 or article 49.2A, if one or more
Persons pursuant to an agreement or a nominee or trustee arrangement
act together for the purpose of:
a. holding or acquiring a Relevant Interest; or
b. exercising the voting rights at a General Meeting; or
c. circumventing the prohibition as referred to in article 49.2
or the obligation in article 49.2A,
all of them shall be considered as one Person in respect of such
Relevant Interest, exercise of voting rights or circumvention of the
prohibition or obligation. Each of them, to the extent he holds one or
more Shares shall be jointly and severally liable (hoofdelijk
aansprakelijk) for each other's obligations under these Articles
pursuant to article 49.7 under a. and article 50.3 under b. In
addition, there may be imposed on each of them the other remedies
referred to in articles 49.7 and 50.3.
49.5. A Person is not considered to hold or acquire a Relevant Interest for
the purpose of article 49.2 or article 49.2A, if the Relevant Interest
arises merely because:
a. that Person acquires a Relevant Interest solely as a nominee
or trustee for a Person who may direct the nominee or trustee
as to the exercise of any power relating to the Relevant
Interest;
b. that Person holds Shares as a securities intermediary
(effectenbemiddelaar) within the meaning of section 7 of the
1995 Act on the supervision of the securities trade (Wet
toezicht effectenverkeer 1995), such as inter alia brokers and
dealers, provided such Person acts on behalf of someone else
(and not for
his own account) in the ordinary course of such Person's
business and provided such person is qualified to practise
under applicable law;
c. that Person holds Shares as a custodian (bewaarder) or
depository in order to enable the Shares of the Company to be
traded on a stock market of a securities exchange, provided
such Person is qualified to practise under applicable law;
d. that Person holds or acquires a Relevant Interest as a result
of a share repurchase and cancellation of shares;
e. of a charge or other security taken for the purpose of a
transaction entered into by the Person if:
(i) the mortgage, charge or security is taken or acquired
in the ordinary course of the Person's business of
providing financial services and on ordinary
commercial terms; and
(ii) the Person whose property is subject to the charge or
security is not an Affiliated Company of the Person;
f. the Person has been appointed to vote as a proxy or
representative on Shares if:
(i) the appointment is for one General Meeting only; and
(ii) neither the Person nor any Affiliated Company gives
valuable consideration for such appointment;
g. of:
(i) an exchange traded option over the Shares; or
(ii) a right to acquire a Relevant Interest given by a
(futures) agreement.
This paragraph g. stops applying to any Relevant Interest when
the obligation to make or take delivery of the Shares arises;
h. a company's articles of association or applicable law gives
all shareholders pre-emptive rights on the transfer of shares
if all shareholders of the relevant company have pre-emptive
rights on the same terms;
i. the Person is a (managing) director of a legal entity having a
Relevant Interest; or
j. of an agreement if the agreement is conditional on a
resolution referred to in article 49.6 under e.
When a Person's Relevant Interest in a Share is disregarded pursuant to
this article 49.5, the Person shall for the purposes of article 49.2
under b. or article 49.2A be taken not to be entitled to exercise,
directly or Indirectly, the voting rights relating to that Share.
49.6. The prohibition as referred to in article 49.2 or the obligation as
referred to in article 49.2A shall not apply to the extent that:
a. the holding or acquisition of a Relevant Interest results from
the acceptance of offers under a Take-over Bid;
b. the holding or acquisition of a Relevant Interest is the
result of an On-Market Transaction if:
(i) the acquisition is by or on behalf of the bidder
under a Take-over Bid; and
(ii) the acquisition occurs during the bid period in
respect of the Take-over Bid; and
(iii) the Take-over Bid is for all the Bid Securities; and
(iv) the Take-over Bid is unconditional;
c. the holding or acquisition of a Relevant Interest arises in
the following circumstances:
(i) throughout the six (6) months before the acquisition
a Person directly, or Indirectly, holds a Relevant
Interest in the issued and outstanding share capital
of the Company of at least nineteen percent (19%);
and
(ii) as a result of the acquisition, directly, or
Indirectly, the Person would have a Relevant Interest
in the issued and outstanding share capital of the
Company not more than three (3) percentage points
higher than he had six (6) months before the
acquisition;
d. the holding or acquisition of a Relevant Interest:
(i) is consistent with the purposes in article 49.1; and
(ii) conforms to the principles in article 49.13 as they
apply to the acquisition or holding, adjusting those
principles as appropriate to meet the particular
circumstances of the acquisition or holding but
without derogating from the purposes in article 49.1;
and
(iii) has received the prior approval of the Supervisory
Board;
e. the holding or acquisition of a Relevant Interest has been
approved previously by a General Meeting if:
(i) no votes are cast in favour of the resolution by:
(A) the Person proposing to make the acquisition
and its Associates; or
(B) the Person (if any) from whom the
acquisition is to be made and its
Associates; and
(ii) the Shareholders were given all information known to
the Person proposing to make the acquisition or its
Associates, or known to the Company, that was
material to the decision on how to vote on the
resolution, including:
(A) the identity of the Person proposing to make
the acquisition and its Associates; and
(B) the maximum extent of the increase in that
Person's Relevant Interest in the Company
that would result from the acquisition; and
(C) the Relevant Interest that Person would have
as a result of the acquisition; and
(D) the maximum extent of the increase in the
Relevant Interest each of that Person's
Associates that would result from the
acquisition; and
(E) the Relevant Interest that each of that
Person's Associates would have as a result
of the acquisition;
f. the holding or acquisition of a Relevant Interest results from
an acquisition through operation of law including a merger by
Law in accordance with the Dutch Civil Code;
g. the holding or acquisition of a Relevant Interest results from
the acceptance of take-over offers made by the Company for the
securities of another body corporate listed on the stock
market of a securities exchange, which offers are made in
accordance with applicable securities law regulating the
conduct of take-overs of bodies corporate of that kind, where
Shares or securities convertible into Shares are included in
the consideration for the acquisition of securities under
those offers;
h. the holding or acquisition of a Relevant Interest results from
the exercise of rights of conversion attaching to securities
convertible into Shares issued in accordance with paragraph g;
or
i. the holding or acquisition of a Relevant Interest results from
an issue by the Company under a prospectus to a Person as
underwriter or sub-underwriter to the issue where the
prospectus disclosed the effect or range of possible effects
that the issue would have on the number of Shares in which
that Person would have a Relevant Interest and on the voting
rights of that Person.
49.7. Subject to articles 49.8 and 49.9, the Supervisory Board may cause the
Company to exercise any one or more of the following remedies if a
breach by a Person of the provisions of article 49.2 or article 49.2A
has occurred or is continuing:
a. require, by notice in writing, the Shareholder to dispose all
or part of the Shares so held in breach of article 49.2 or
article 49.2A within the time specified in the notice;
b. disregard the exercise by such Person of all or part of the
voting rights arising from the Shares or the right of pledge
(pandrecht) or the right of Usufruct on Shares, provided the
right to vote the Shares so pledged or subject to the right of
Usufruct is included in such right so held in breach of
article 49.2 or article 49.2A; or
c. suspend such Person from the right to receive all or part of
the dividends or other distributions arising from the Shares
so held in breach of article 49.2 or article 49.2A.
49.8. The Company may exercise the remedies referred to in article 49.7 if it
first obtains a judgement from the competent courts and acts in
accordance with such judgement, that a breach of the prohibition of
article 49.2 or the obligation in article 49.2A has occurred and is
continuing.
49.9. In addition to exercising its rights under articles 49.8 and 49.10, the
Company may exercise the remedies referred to in article 49.7 if it
first obtains advice from, and acts in accordance with the advice of:
a. a Senior Counsel in the commercial field of at least five (5)
years standing as a Senior Counsel; or
b. a senior partner experienced in Australian mergers and
acquisitions of a major Australian commercial law firm; and
in either case, being independent of (and not associated with) the
Company or any other interested party and without a material personal
interest in the matter.
The advisor shall be appointed by the Company, but must be nominated
by:
(i) the president of the Panel; or
(ii) if such Person is unwilling or unable to make the nomination,
the director of the Panel; or
(iii) if such Person is unwilling or unable to make the nomination,
a mediator on the Supreme Court of New South Wales list of
approved mediators nominated by the Company.
The advisor must inter alia be instructed to:
(A) advise whether any breach of article 49.2, article 49.2A or
article 50.2 has occurred;
(B) have regard to the purposes under article 49.1 and to the
extent applicable, the principles in article 49.13, Australian
Law and Policy in interpreting these provisions and giving
this advice;
(C) in determining whether the exception under article 49.6 under
a. applies to an acquisition or holding of a Relevant Interest
pursuant to a Take-over Bid that is not a Corporations Act
Bid, have regard to the manner in which a bid for CUFS or
Shares would have been conducted under a Corporations Act Bid,
including the information which would have provided to
shareholders in connection with such bid;
(D) give the Company and any Person that would be aggrieved by the
exercise of the Company's powers under articles 49.7 or
article 50.3 the opportunity, with their legal advisors, to
make submissions to the advisor, prior to the advisor
providing the advice;
(E) have regard to issues under Dutch law to the extent relevant
to providing his or her advice and for that purpose to retain,
at the Company's cost, an appropriately qualified expert in
Dutch law; and
(F) provide his or her advice as soon as possible.
The Company shall:
1. provide any assistance or information it may possess, which is
reasonably required by the advisor to give this advice;
2. be responsible for paying the advisors' fees and expenses;
3. include in the terms of the advisor's appointment an indemnity
by the Company in favour of the advisor for any loss or
liability he or she may incur in connection with providing
this advice, except as a result if his or her negligence or
wilful default; and
4. provide a copy of the advice to the Person who has breached or
is alleged to have breached article 49.2, article 49.2A or
article 50.2.
The Company shall include any other terms and conditions in the
appointment of the advisor which the Person nominating the advisor
specifies.
49.10. Where the Company is seeking but has not received advice under article
49.9, the Company may also exercise any of the remedies described in
article 49.7 (other than that as described under a.) by notice in
writing to the Shareholder but so that they have effect for the period
commencing on the date the notice is given and ending on the earlier
of:
a. twenty one (21) days after the notice has been given; and
b. one (1) day after the advice under article 49.9 has been
provided to the Company.
49.11. If there are reasonable grounds to believe that a breach of article
49.2 or article 49.2A has occurred, the Supervisory Board must consider
whether to exercise the remedies under article 49.7 or article 50.3 and
take advice as to whether it should exercise those remedies. For that
purpose, the Supervisory Board must give proper consideration to (and
include within any brief for advice) any submission that a breach has
occurred from any Shareholders or any other interested Person or
officer of the Company aggrieved by
the alleged breach.
49.12. If the requirements of any notice pursuant to article 49.7 under a. are
not complied with by the Person within the time specified in the
notice, the Company may, as an irrevocable proxy of the Shareholder,
without any further instrument, cause the Shares referred to in the
notice to be sold on any relevant securities exchange on which they are
quoted, or, if they are not so quoted, in accordance with section 2:
87b Dutch Civil Code.
The Company may:
a. appoint a Person as transferor to effect a transfer in respect
of any Shares sold in accordance with this article and to
receive and give good discharge of the purchase money for
them;
b. acknowledge the transfer despite the fact that the share
certificates (if any) may not have been delivered to the
Company;
c. issue a new share certificate (if required) in which event the
previous certificate(s) (if any) are deemed to have been
cancelled;
d. if the Person delivers the relevant share certificates (if
any) to the Company for cancellation, the purchase money less
the expenses of any sale made in accordance with paragraph (b)
above must be paid to the Person whose Shares were sold; and
e. if the Person does not deliver the relevant share certificates
(if any) to the Company, the Company may sue the Person in
detinue for recovery of the share certificates (if any), and
the Person is not entitled to deny or dispute the Company's
ownership and right to possession of any share certificate in
any legal action.
The Company may, by notice in writing, at any time require any
Shareholder to provide the Company any information or evidence
(on oath or otherwise verified if the Company reasonably
requires) as the Company may consider likely to be of
assistance in determining whether or not that Person is
eligible to remain a Shareholder with respect to all his
Shares.
Despite anything in this article 49.12, the Company has no
liability, subject to article 49.18, arising from any Person
holding Shares in circumstances which would result in or have
the effect of causing an infringement or contravention of
article 49.2 or article 49.2A.
The Company and the members of its Managing Board, Supervisory
Board or Joint Board have no liability to any Person arising
from any action taken by the Company under this article,
provided that such action was taken in good faith.
49.13. In addition to fulfilling the purposes in article 49.1, a Take-over Bid
must comply with the following principles.
a. An offer for Bid Securities must be an offer to buy all the
Bid Securities or a specified proportion of the Bid
Securities. The proportion specified must be the same for all
holders of the Bid Securities.
b. A Person who holds one (1) or more parcels of those securities
as trustee or nominee for, or otherwise on account of, another
Person may accept the offer as if a separate offer had been
made in relation to:
(i) each of those parcels; and
(ii) any parcel they hold in its own right;
c. All the offers made must be the same. In applying this
paragraph, the following shall be disregarded:
(i) any differences in the offers attributable to the
fact that the number of Bid Securities that may be
acquired under each offer is limited by the number of
Bid Securities held by the holder;
(ii) any differences in the offers attributable to the
fact that the offers relate to Bid Securities having
different accrued dividend or distribution
entitlements;
(iii) any differences in the offers attributable to the
fact that the offers relate to Bid Securities on
which different amounts are paid up or remain unpaid;
(iv) any differences in the offers attributable to the
fact that the Person making the offer may issue or
transfer only whole numbers of securities as
consideration for the acquisition; and
(v) any additional cash amount offered to holders instead
of the fraction of a security that would otherwise be
offered.
d. The consideration offered for Bid Securities must equal or
exceed the maximum consideration that the Person making the
offer directly or Indirectly provided, or agreed to provide,
for Shares or CUFS under any purchase or agreement during the
four (4) months before the first day of the period of the
offer.
e. A Person making an offer for Bid Securities must not directly
or Indirectly, during the period of the offer, give, offer to
give or agree to give a benefit to a Person if:
(i) the benefit is likely to induce the Person directly
or Indirectly to:
(A) accept the offer; or
(B) dispose of Shares or CUFS; and
(ii) the benefit is not offered to all holders of Bid
Securities.
f. The period of the offer must:
(i) start on the date the first offer is made; and
(ii) last for at least one (1) month, and not more than
twelve (12) months.
If, within the last seven (7) days of the period of the offer:
(A) the offers are varied to improve the consideration
offered (including by offering an alternative form of
consideration); or
(B) the number of Shares in which the Person making the
offer directly or Indirectly holds a Relevant
Interest, or both, increases to more than fifty
percent (50%) of the issued and outstanding share
capital of the Company,
the period of the offer is extended so that it ends fourteen
(14) days after the event referred to in paragraph (A) or (B)
above.
g. Offers must not be subject to a maximum acceptance condition.
A maximum acceptance condition is one that provides that the
offers will terminate, or the maximum consideration offered
will be reduced, if effectively one or more of the following
occurs:
(i) the number of Bid Securities for which the Person
making the offer receives acceptances reaches or
exceeds a particular number; or
(ii) the number of Shares in which the Person making the
offer directly or Indirectly holds a Relevant
Interest, or both, reaches or exceeds a particular
percentage of the issued and outstanding share
capital of the Company; or
(iii) the percentage of Bid Securities the Person making
the offer has a Relevant Interest in reaches or
exceeds a particular percentage of Bid Securities in
that class.
Offers must not be subject to a discriminatory condition. A
discriminatory condition is a condition that allows the Person
making the offer to acquire, or may result in that Person
acquiring, Bid Securities from some but not all of the people
who accept the offers.
Offers must not be subject to a condition if the fulfilment of
the condition depends on:
(i) the opinion, belief or other state of mind of the
Person making the offer or an Affiliated Company; or
(ii) the happening of an event that is within the sole
control of, or is a direct result of action by, any
of the following:
(A) the Person making the offer (acting alone or
together with an Affiliated Company); or
(B) an Affiliated Company (acting alone or
together with the Person making the offer or
another Affiliated Company of that Person).
h. The Person making the offer may only vary the offer made by:
(i) improving the consideration offered (including by
offering an additional form of consideration); or
(ii) extending the period of the offer.
The terms of unaccepted offers must be varied in the same way.
Any person who has already accepted an offer must be entitled
to the improved consideration and, in the case of an addition
of a new form of consideration, be entitled to make a fresh
election.
i. A Person making an offer that is unconditional may extend the
period of the offer at any time before the end of the offer. A
Person making an offer that is still subject to conditions may
only extend the period of the offer at least seven (7) days
before the end of the period of the offer unless during that
seven (7) day period another Person announces a bid for Bid
Securities or improves the consideration offered under another
bid for Bid Securities.
j. Each offer must be in writing and have the same date. This
date is the day the first offer is made.
k. The Person making the offer must, at the same time it gives
its offer to holders of Bid Securities, also give a document
to those holders setting out all information known to the
Person that is material to the making of the decision by a
holder of Bid Securities whether or not to accept the offer.
This document must be given to the Company and ASX at least
fourteen (14) days before it is given to these holders and
must be dated. The date is the date on which the document is
given to ASX. If the Person making the offer becomes aware of:
(i) a misleading or deceptive statement in the document;
or
(ii) an omission from the document of information required
by article 49.1 or this article 49.13; or
(iii) a new circumstance that:
(A) has arisen since the document was given to
the Company; and
(B) would have been required by article 49.1 or
this article 49.13 to be included in the
document if it had arisen before the
document was given to the Company,
that is material from the point of view of a holder of Bid
Securities, the Person making the offer must prepare a
supplementary document that remedies this defect. The Person
making the offer must give the supplementary document to the
Company and give a copy with ASX. The supplementary document
must be dated. The date is the date on which the supplementary
document is given to ASX.
49.14. A bid for Shares or CUFS is taken to comply with the principles in
article 49.13 if it is a Corporations Act Bid at all relevant times.
The Supervisory Board must act reasonably and in a timely manner in
agreeing with a Person making a Corporations Act Bid to any
modifications or exemptions to the application of Parts 6.4, 6.5, 6.6
and 6.8 of the Corporations Act to a Corporations Act Bid having regard
to the purposes in article 49.1, the principles in article 49.13 and
Australian Law and Policy.
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 on which the
document is given to ASX;
b. if it becomes aware of:
(i) a misleading or deceptive statement in the document;
or
(ii) an omission from the document of information required
by paragraph a above; or
(iii) a new circumstance that:
(A) has arisen since the document was given to
the Person making the offer; and
(B) would have been required by paragraph a.
above to be included if it had arisen before
the document was given to the Person making
the
offer,
that is material from the point of view of a holder of Bid
Securities, prepare a supplementary document that remedies
this defect and give it to the Person making the offer and
ASX. The supplementary document must be dated. The date is the
date on which the supplementary document is given to ASX; and
c. if it has been given a document in accordance with article
49.13 under k. and the Person making the offer makes a request
for information under this paragraph for the purposes of
fulfilling the purposes under article 49.1 and complying with
the principles under article 49.13, the Company must inform
the Person of the name and address of each Person who held Bid
Securities and that Person's holding, at the specified time by
the Person making the Offer. The Company must give the
information to the Person making the offer in a timely manner
and:
(i) in the form that the Person requests; or
(ii) if the Company is unable to comply with the request -
in writing.
If the Company must give the information to the Person in
electronic form, the information must be readable but the
information need not be formatted for the preferred operating
system of the Person making the offer.
49.16. The Company may, by giving notice in writing, require the holder of a
Share or a CUFS to give to the Company, within two (2) Business Days
after receiving the notice, a statement in writing setting out:
a. full details of the holder's Relevant Interest and of the
circumstances giving rise to that Relevant Interest; and
b. the name and address of each other Person who has a Relevant
Interest together with full details of:
(i) the nature and extent of the Relevant Interest; and
(ii) the circumstances that give rise to the Person's
Relevant Interest; and
c. the name and address of each Person who has given the holder
of the Shares or the Person as referred to in paragraph b.
above instructions about:
(i) the acquisition or disposal of a Relevant Interest;
or
(ii) the exercise of any voting or other rights attached
to a Relevant Interest;
(iii) any other matter relating to a Relevant Interest;
together with full details of those instructions (including
the date or dates on which those relevant instructions were
given).
A matter referred to in paragraph b. or c. need only be
disclosed to the extent to which it is known to the Person
making the disclosure
Where a statement is delivered to the Company containing any
details as referred to in paragraphs b. or c., the Company
may, by giving notice in writing, require a holder of a Share
or a CUFS to give to the Company or to use its best endeavours
to procure that any other Persons as referred to in paragraphs
b. or c. above to give to the Company, within two (2) days
after receiving the notice, a statement in writing setting out
the details as referred to in paragraphs a, b. and/or c.
above.
49.17. So long as Shares are quoted on ASX, if the Company becomes subject to
the law of any jurisdiction which applies so as to regulate the
acquisition of control, and the
conduct of any take-over, of the Company:
a. the Company shall consult promptly with ASX to determine
whether, in the light of the application of such law:
(i) ASX requires amendment to Chapter III of these
articles in order for these Articles to comply with
the Listing Rules as then in force; or
(ii) any waiver of the Listing Rules permitting the
inclusion of all or part of Chapter III in these
Articles has ceased to have effect; and
b. where:
(i) the Listing Rules require these Articles to contain a
provision and it does not contain such a provision;
(ii) the Listing Rules require these Articles not to
contain a provision and it contains such a provision;
or
(iii) any provision of these Articles is or becomes
inconsistent with the Listing Rules,
the Managing Board shall put to the General Meeting a proposal
to amend these Articles so as to make them, to the fullest
extent permitted by Law, consistent with the Listing Rules.
49.18. The Company shall indemnify a Person who:
a. is or was a Shareholder for the purpose of making CUFS
available; and
b. was or is a party or is threatened to be made a party to any
threatened, pending, current or completed action, suit,
investigation or proceeding, whether civil, criminal,
administrative or investigative brought by any other person in
connection with any action taken or not taken by such person
or the Company as contemplated under article 49.7, article
49.12 or article 50.3,
against all expenses (including attorneys' fees) judgements, fines and
amounts paid in settlement which are actually and reasonably incurred
by the person in connection with such action, suit, investigation or
proceeding unless such Shareholder acted in bad faith.
CUFS HOLDERS.
ARTICLE 50
50.1. This article 50 is applicable to CUFS Holders who are bound by these
Articles under the Corporations Act (as modified) or any other
applicable law.
50.2. A CUFS Holder shall not do anything which would result in a breach of
these Articles whether on the part of that Person or another Person
bound by these Articles.
50.3. Where a remedy is exercisable under article 49.7 in respect of Shares
and CUFS are issued in respect of the Shares which are the subject of
the remedy:
a. the Company must give a written notice setting out the name
and holding of the CUFS Holder, whose CUFS relate to the
Shares, and such other information as the Company considers
necessary, to the Shareholder and the Shareholder shall be
entitled to rely on the information contained in that notice
for the purposes of these Articles. A copy of this notice, as
well as any notice given to the Shareholder under article 49.7
or article 49.10, must also be given to that CUFS Holder;
b. the Supervisory Board may cause the Company to require, by
notice in writing to the CUFS Holder, that the CUFS Holder
dispose of such number of CUFS that relate to the Shares, and
within such time, as is specified in the notice;
c. if the notice to the Shareholder under paragraph a. above
states that the right to receive dividends or other
distributions in respect of any of those Shares has been
suspended, the Shareholder shall not, before receiving notice
from the Company that the suspension has been lifted,
distribute, nor direct the Company to distribute, to the CUFS
Holder any dividend or distribution from the Company in
respect of the CUFS which relate to those Shares;
d. if the notice to the Shareholder under paragraph a. above
states that the Company has determined to disregard the
exercise of voting rights attached to particular Shares, the
Shareholder shall inform the Company, as required by the
Company, of such directions as to voting which the Shareholder
has received from the CUFS Holders, and the names of the CUFS
Holders concerned, in respect of all Shares held by the
Shareholder, in order to ensure that the exercise of voting
rights attaching to those Shares which are the subject of the
Company's determination, and not other Shares, are
disregarded. The Company shall be entitled to rely upon the
information provided by the Shareholder.
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.
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.
[NB THIS ARTICLE HAS BEEN INCLUDED BY AMENDMENT OF THE ARTICLES OF ASSOCIATION,
EFFECTED ON THE SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND ONE].
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 the ninth day of August two
thousand and two, 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 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.
[NB THIS ARTICLE HAS BEEN INCLUDED BY AMENDMENT OF THE ARTICLES OF ASSOCIATION,
EFFECTED ON THE NINTH DAY OF AUGUST TWO THOUSAND AND TWO].
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.
[NB THIS ARTICLE HAS BEEN INCLUDED BY AMENDMENT OF THE ARTICLES OF ASSOCIATION,
EFFECTED ON THE SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND ONE].