<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
Trader.com N.V.
--------------------------------------------------------------------
(Name of Issuer)
Class A Common Stock, par value 0.16 euro
--------------------------------------------------------------------
(Title of Class of Securities)
N87812108
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(CUSIP Number)
Michel Renault Copy to:
General Counsel Laurence S. Markowitz, Esq.
Compagnie Generale d'Industrie Salans Hertzfeld Heilbronn
et de Participations Christy & Viener
89 rue Taitbout 620 Fifth Avenue
75009 Paris, France New York, New York 10020
331-42-85-30-00 (212) 632-5500
--------------------------------------------------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
March 31, 2000
--------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [_]
(Page 1 of 10 Pages)
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<TABLE>
<CAPTION>
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CUSIP No. N87812108 13D Page 2 of 10 Pages
---------
- -----------------------------------------------------------------------------------------------------
<C> <S> <C>
- -----------------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Compagnie Generale d'Industrie et de Participations*
- -----------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [_]
- -----------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -----------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
Not applicable.
- -----------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
[_]
- -----------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- -----------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ------------------------------------------------------------------------
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 12,294,184
EACH ------------------------------------------------------------------------
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
12,294,184
- -----------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,294,184
- -----------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[_]
- -----------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.5%**
- -----------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
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</TABLE>
* Reporting person disclaims beneficial ownership of these shares. See Item
2 of this statement.
** See Item 5 of this Statement.
<PAGE>
SCHEDULE 13D
Item 1 - Security and Issuer
- ----------------------------
The class of equity securities to which this statement relates is the Class
A common shares par value 0.16 euro per share of Trader.com N.V., a company
incorporated in the Netherlands which has its principal offices at Parnasstoren,
Locatellikade 1, 1076 AZ Amsterdam, The Netherlands.
However, for the purpose of describing the shared Voting Power, the Class B
common shares, par value 1.92 euro per share of Trader.com N.V. are also taken
into account (see Items 2 and 5).
Item 2 - Identity and Background
- ---------------------------------
This statement on Schedule 13D is being filed by Compagnie Generale
d'Industrie et de Participations ("CGIP"), a societe anonyme organized under the
Laws of France with its principal executive offices and principal business
address at 89, rue Taitbout, 75009 PARIS, France.
CGIP holds investments in companies engaged in, among other things, IT
services and consulting (Cap Gemini), Automotive equipment (Valeo),
certification and quality control (Bureau Veritas), abrasive pellets
(Wheelabrator Allevard), medical diagnostics and gene therapy (BioMerieux
Alliance) and Energy and Real Estate (Orange Nassau).
The name, business address, present principal occupation and citizenship of
each executive officer and director of CGIP are set forth on Appendix A hereto.
CGIP holds its Class A shares in Trader.com N.V. through certain
subsidiaries which are :
(1) Oranje-Nassau Participaties B.V., a company organized under the Laws of the
Netherlands with its principal executive offices and principal business
address at Hoogoorddreef 7, BP 22885, 1100 DJ Amsterdam, The Netherlands.
Oranje Nassau Participaties B.V. is a wholly-owned subsidiary of Orange
Nassau Groep B.V. which is a wholly owned subsidiary of CGIP.
(2) Trief Corporation, a company organized under the Laws of Luxembourg with
its principal executive office and principal business address at 15b,
boulevard Grande Duchesse Charlotte, L 1331 Luxembourg. CGIP holds 63.83%
of Trief Corporation. The remaining 36.17% of Trief Corporation is held by
Sofiservice, a societe anonyme organized under the Law of France with its
principal executive offices and business address at 89, rue Taitbout, 75009
Paris, France, which is a wholly owned subsidiary of CGIP.
(Page 3 of 10 Pages)
<PAGE>
CGIP holds its Class B shares in Trader.com N.V. through certain
subsidiaries which are Trief Corporation (see here above mentioned) and:
Figema, a societe anonyme organized under the Laws of France with its
principal executive office and principal business address at 89 rue
Taitbout, 75009 Paris. Figema is a wholly owned subsidiary of CGIP.
Shares of CGIP representing a majority of the voting share capital
(67.13%) are held by Marine Wendel, a societe anonyme organized under the Laws
of France, which has its principal executive office and principal business
address at 89, rue Taitbout, 75009 Paris, France. Marine Wendel also holds
investments in companies engaged in, among other things, the treatment of
allergies using immunotherapy (Stallergenes) and an airline company (AOM). The
name, business address, present principal occupation and citizenship of each
executive officer and director of Marine Wendel are set forth in Appendix B
hereto.
Shares of Marine Wendel representing a majority of voting share capital
(68.65%) are held by Wendel Participations, a societe en nom collectif organized
under the Laws of France, which has its principal executive offices and
principal business address at 89, rue Taitbout, 75009 Paris, France. Wendel
Participations, has as its sole investment, its interest in Marine Wendel. The
name, business address, present principal occupation and citizenship of each
executive officer and director of Wendel Participations are set forth in
Appendix C hereto.
Shares of Wendel Participations representing a majority of the voting
share capital (62.37%) are held by Societe de Gerance de Valeurs Mobilieres, a
societe anonyme organized under the Laws of France, which has its principal
executive offices and principal business address at 89, rue Taitbout, 75009
Paris, France. Societe de Gerance de Valeurs Mobilieres also holds an investment
and services company. No person or group of persons owns or controls a majority
of the voting share capital of Societe de Gerance de Valeurs Mobilieres. The
name, business address, present principal occupations of executive officers and
directors of Societe de Gerance de Valeurs Mobilieres are set forth in Appendix
D hereto.
During the last five years neither CGIP nor its three corporate parents
and to the best knowledge of CGIP, none of the executive officers or directors
of CGIP and its three corporate parents have been convicted in any criminal
proceeding (excluding traffic violations or similar misdemeanors) or been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which, he is or was subject to a judgement, decree
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
Item 3 - Source and amount of funds or other consideration
- ----------------------------------------------------------
Working capital.
(Page 4 of 10 Pages)
<PAGE>
Item 4 - Purpose of transaction
- -------------------------------
CGIP acquired Trader.com N.V. Class A shares as an investment.
CGIP's investment in Trader.com is subject to the provisions of the
Shareholders Agreement, the Articles of Association of Trader.com N.V. and the
Registration Rights Agreement, which are attached as exhibits to this Schedule
13D. CGIP may, subject to the Shareholders Agreement, the Articles of
Association of Trader.com N.V. and the Registration Rights Agreement as well as
applicable securities laws, market conditions and its assessment of the business
prospects of Trader.com N.V., acquire additional shares of Trader.com N.V. from
time to time through open market purchases or otherwise, as it determines in its
sole discretion.
CGIP has not determined whether it will acquire additional shares or
fixed any number of shares of Trader.com N.V. it might seek to acquire or any
amount of money it may be willing to invest in Trader.com N.V.
CGIP is continuously evaluating the business and business prospects of
Trader.com N.V, and its present and future interests in, and intentions in
respect to Trader.com N.V., and at any time may decide to dispose of any or all
of the shares of Trader.com N.V. currently owned by it.
Other than as discussed above, CGIP currently has no plans to effect:
a) any extraordinary corporate transaction such as a merger,
reorganization or liquidation, involving Trader.com N.V. or any of
its subsidiaries;
b) a sale or transfer of a material amount of assets of Trader.com N.V.
or any of its subsidiaries;
c) any change in the present Supervisory Board or Management Board of
Trader.com N.V, including any plans or proposals to change the number
or term of members of the Supervisory Board or Management Board or
the filling of any vacancies on the Boards;
d) any material change in the present capitalization or dividend policy
of Trader.com N.V;
e) any other material change in Trader.com N.V's business or corporate
structure;
f) any changes in Trader.com N.V's charter, by-laws or instruments
corresponding thereto or any other actions which may impede the
acquisition of control of Trader.com by any person;
g) the delisting of any class of securities of Trader.com N.V. from a
national securities exchange or the ceasing to be authorized to be
quoted in an interdealer quotation system of a registered national
securities association;
(Page 5 of 10 Pages)
<PAGE>
h) any class of equity securities of Trader.com N.V. becoming eligible
for termination of registration pursuant to Section 12 (g) (4) of the
Act; or
i) any action similar to any of those enumerated above.
CGIP intends to re-evaluate continuously its investment in Trader.com
N.V. and may, based on such re-evaluation, determine at a future date to change
its current position in respect to any action enumerated above.
Item 5 - Interest in Securities of the Issuer
- ---------------------------------------------
a) Oranje-Nassau Participaties B.V. owns 8 043 559 Class A shares of
Trader.com N.V. representing 8.83 % of the share capital and 1.22 % of the
voting capital.
Trief Corporation, owns 4,250,625 Class A shares of Trader.com N.V.
representing 4.66% of the share capital and 0.64% of the voting capital.
Trief Corporation, owns 3,037,881 Class B shares of Trader.com N.V.
representing 3.33% of the share capital and 5.53% of the voting capital.
Figema, a wholly owned subsidiary of CGIP, owns 12,000,000 Class B
shares of Trader.com N.V. representing 13.17% of the share capital and
21.86% of the voting capital.
b) CGIP, Marine Wendel, Wendel Participations and Societe de Gerance de
Valeurs Mobilieres may be deemed to share the voting and dispositive power
of the 27,332,065 shares of Trader.com N.V. by virtue of Marine Wendel's
67.13% voting ownership interest in CGIP, Wendel Participations's 68.65%
voting ownership interest in Marine Wendel and Societe de Gerance de
Valeurs Mobilieres's 62.37% voting ownership interest in Wendel
Participations.
c) CGIP, Marine Wendel, Wendel Participations and Societe de Gerance de
Valeurs Mobilieres, have not, and to the best knowledge of CGIP, no
director or executive officer of CGIP, Marine Wendel, Wendel
Participations, Wendel Participations or Societe de Gerance de Valeurs
Mobilieres, has effected any transaction in shares of Trader.com N.V.
during the period extending from the date 60 days prior to the date hereof.
d) to the best knowledge of CGIP, no other person has the right to
receive the power to direct the receipt of dividends from, or the proceeds
from the sale of the Trader.com N.V. stock owned by CGIP.
e) not applicable
(Page 6 of 10 Pages)
<PAGE>
Item 6 - Contracts, Arrangements, Understandings or Relationships with respect
- ------------------------------------------------------------------------------
to Securities of the Issuer
- ---------------------------
Trader.com N.V. and CGIP have entered into the following:
Shareholders Agreement
On February 18, 2000, CGIP and Trader.com N.V. entered into a
shareholders agreement which was amended and restated in its entirety as of
March 16, 2000, with the holders of all of Trader.com N.V's Class B common
shares relating to the election of supervisory directors, the transferability of
the class B common shares and other matters.
Under the shareholders agreement, the holders of Class B common shares
have agreed that if either holders of Class B common shares affiliated with Mrs.
Blouin MacBain, Mr. MacBain and Mr. Teysonniere or holders of Class B common
shares affiliated with CGIP hold a majority of the Class B common shares, then
the holders of Class B common shares will vote all of their Class B common
shares and otherwise use their best efforts:
- - to cause Trader.com N.V's supervisory board to have 11 members,
- - to cause six members of the supervisory board to be comprised of individuals
designated by the holders of the majority of the Class B common shares,
- - to cause three members of the supervisory board to be comprised of
individuals designated by the holders of a minority of the Class B common
shares,
- - to cause a majority of the members of the management board to be comprised of
individuals designated by holders of a majority of the Class B common shares,
- - to establish a review committee to examine, on behalf of the supervisory
board, matters submitted to the supervisory board by the management board and
to cause this committee to be comprised of the three members of the
supervisory board designated by the holder of a minority of the Class B
common shares and of the two other members of the supervisory board not
designated by the holders of the majority of the Class B common shares,
- - to cause the audit committee to include at least one member of the
supervisory board designated by the holder of a minority of the Class B
common shares, and
- - to vote all of their Class B common shares at any general meeting of
shareholders in favor of all matters submitted by the management board if
approved by the supervisory board.
(Page 7 of 10 Pages)
<PAGE>
The Shareholders Agreement restricts the transfer of Class B common
shares as follows:
- any holder of Class B common shares may at any time convert any of
its Class B Common shares into one Class A common share and eleven
Class C shares for each Class B common shares converted.
- any transfer of Class B common shares will automatically result in
the conversion of those shares into one Class A common share and
eleven Class C shares for each Class B common shares so transferred,
except in the following cases:
- transfers by CGIP and its subsidiaries to CGIP and its
subsidiaries,
- transfers by Floscule to the MacBains, Mr. Teyssonniere, family
members of the MacBains and Mr. Teyssonniere, or entities owned or
for the benefit of these individuals, and
- transfers by CGIP and its permitted transferees to Floscule and
its permitted transferees if Floscule and its permitted
transferees hold a majority of the Class B common shares and
transfers by Floscule and its permitted transferees to CGIP and
its permitted transferees if CGIP and its permitted transferees
hold a majority of the Class B common shares, or
- transfers of Class B common shares that (together with any other
Class B common shares already owned by the purchaser or being
acquired by purchaser (directly or indirectly) at the same time)
represent more than 50% of all the votes that may be cast at a
general meeting of shareholders to a purchaser who agrees to
acquire any and all Class A common shares and Class B common
shares at the same time as it acquires the Class B common shares
pursuant to an offer made by the purchaser to all of Trader's
shareholders and for a price per Class A common share that is
equal to the highest price per Class B common share paid by such
purchaser for the Class B common shares it is buying.
The Shareholders Agreement provides that if Mrs Blouin MacBain, Mr.
MacBain, or Mr. Teysonniere transfer any interest in Floscule or any other
entity owned by Mrs. Blouin MacBain, Mr. MacBain, Mr. Teyssonniere and their
families that holds Class B common shares, that entity must convert all Class B
common shares into Class A common shares and Class C shares it holds unless:
- the purchaser is an unaffiliated third party,
- the transfer is of 100% of that entity,
- the transfer represents the indirect transfer of Class B common
shares representing more than 50% of all the votes that may be cast
at a general meeting of shareholders, and
- the purchaser agrees to acquire any and all Class A common shares and
Class B common shares at the same time as it acquires the applicable
entity pursuant to an offer made by the purchaser to all of
Trader.com N.V's shareholders and for a price per Class A common
share that is equal to the highest implied price per Class B common
shares paid by such purchaser by means of its purchase of the entity
owned by Mrs. Blouin MacBain, Mr. MacBain, Mr. Teyssonniere and their
families that holds Class B common shares.
(Page 8 of 10 Pages)
<PAGE>
Any Class C shares resulting from a conversion of Class B common shares
into Class A common shares must be transferred to Trader.com N.V. by the holder
for no consideration.
The shareholders agreement provides that, if the holders of Class B
common shares affiliated with Mrs. Blouin MacBain, Mr. MacBain and Mr.
Teysonniere hold a majority of the Class B common shares, and if Mrs. Blouin
MacBain, Mr. MacBain and Mr. Teysonniere wish to sell all of their Class B
common shares to a purchaser, they have the option to require CGIP and its
subsidiaries to sell all of their Class B common shares to the same purchaser at
the same price. If CGIP and its subsidiaries hold a majority of the Class B
common shares, then they will have this right.
The shareholders agreement provides that, if the holders of Class B
common shares affiliated with Mrs. Blouin MacBain, Mr. MacBain and Mr.
Teysonniere hold a majority of the Class B common shares and wish to sell all of
their Class B common shares to a purchaser, but the Class B common shares
proposed to be sold do not represent more than 50% of all the votes that may be
cast at a general meeting of shareholders, then CGIP and its subsidiaries have
the right to sell their shares to the purchaser at the same price. If CGIP and
its subsidiaries hold a majority of the Class B common shares, then the holders
of Class B common share affiliated with Mrs. Blouin MacBain, Mr. MacBain and Mr.
Teyssonniere will have this right.
Registration Rights Agreement
On February 18, 2000, CGIP and Trader.com N.V. entered into a
registration rights providing shareholders who are affiliated with CGIP and the
MacBains with the right in some circumstances to cause their shares to be
registered for sale under the Securities Act of 1933.
Beginning 180 days following the closing of the offering, the
shareholders affiliated with CGIP, acting together, and Floscule may each demand
that Trader.com N.V. file one registration statement under the Securities Act
that registers Class A common shares. Trader.com N.V. would only be obligated
to register shares if the aggregate gross proceeds of the public offering were
at least 47.0 million ($50 million).
If, at any time after the offering, Trader.com N.V. proposes to register
any of its securities under the Securities Act, either for its own account or
for the account of any of its security holders, the shareholders affiliated with
CGIP, acting together, and Floscule are each entitled to notice of this
registration and to include their Class A common shares in this registration. In
the event of a registration pursuant to an underwritten public offering of its
common shares, however, the underwriters will have the right, subject to
specified conditions, to limit the number of shares included in the
registration.
Once Trader.com N.V. has qualified to use a registration statement on
Form F-3 to register securities under the Securities Act, the shareholders
affiliated with CGIP, acting together, and Floscule have to right to request
that Trader.com N.V. file a registration statement on Form F-3 or any successor
thereto for a public offering of all or any portion of their Class A common
shares, as long as the reasonably anticipated aggregate price to the public of
the offering would not be less than 9.4 million ($10 million).
(Page 9 of 10 Pages)
<PAGE>
In general, Trader.com N.V. will bear all fees, costs and expenses of
registrations (other than applicable underwriting discounts and selling
commissions). In addition, Trader.com N.V. has agreed to indemnify the
shareholders affiliated with CGIP and Floscule against, and provide contribution
with respect to, liabilities relating to any registration.
Item 7 - Material to be filed as Exhibits
- -----------------------------------------
Description Exhibit
Form of Shareholders Agreement A
Form of Registration Rights Agreement B
Form of Articles of Association of Trader.com N.V. C
Signature
---------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: April 7, 2000
Compagnie Generale d'Industrie et de Participations
By : /s/ Jean-Marc Janodet
Jean-Marc JANODET
Member of the Executive Committee
/s/ Michel Renault
Michel RENAULT
Member of the Executive Committee
acting as representatives of the Chairman and CEO
(Page 10 of 10 Pages)
<PAGE>
APPENDIX A
Executive Officers and Directors
of COMPAGNIE GENERALE D'INDUSTRIE
ET DE PARTICIPATIONS
The following table sets forth the name, residence or business address and
present principal occupation or employment of each executive officer and
director of COMPAGNIE GENERALE D'INDUSTRIE ET DE PARTICIPATIONS and the name,
principal business and address of any corporation or organisation in which such
employment is conducted. Unless otherwise indicated, the business address of
each of the following persons is 89 rue Taitbout, 75009 Paris, France.
<TABLE>
<CAPTION>
b) Present Principal
a) Name and Business Address Business Activity, c) Citizenship
Occupation or Employment
<S> <C> <C>
Ernest-Antoine SEILLIERE (Chairman and CEO) French
Chairman and CEO of Marine Wendel
Jean-Marc JANODET (Executive Officer: French
Chief Financial Officer)
Didier CHERPITEL (Director) French
International Federation of Secretary General of the
Red Cross and Red Crescent International Federation of Red
Societies Cross and Red Crescent Societies
17 Chemin des Crets
CH - 1209 Petit - Saconnex
Arnaud FAYET (Executive Officer in charge of French
Industry and Services)
Michel RENAULT (Executive Offices: French
General Counsel)
Hubert LECLERC de (Director) French
HAUTECLOCQUE Managing Director of
Wendel Participations
Alain MERIEUX (Director) French
Fondation MERIEUX Chairman and CEO of Bio-Merieux
17, rue Bourgelet
69002 LYON, France
Didier PINEAU VALENCIENNE (Director) French
Groupe SCHNEIDER
64, rue de Miromesnil
75008 PARIS, France
Guy de WOUTERS (Director) Belgian
Director of Marine Wendel
Louis-Amedee de MOUSTIER (Director) French
(representative of SOCIETE DE Managing Director of Wendel
GERANCE DE VALEURS Participations
MOBILIERES) Chairman and CEO of
Societe de Gerance de Valeurs
Mobilieres
</TABLE>
<PAGE>
APPENDIX B
Executive Officers and Directors
of MARINE WENDEL
The following table sets forth the name, residence or business address and
present principal occupation or employment of each executive officer and
director of MARINE WENDEL and the name, principal business and address of any
corporation or organization in which such employment is conducted. Unless
otherwise indicated, the business address of each of the following persons is 89
rue Taitbout, 75009 Paris, France.
<TABLE>
<CAPTION>
b) Present Principal
a) Name and Business Address Business Activity, c) Citizenship
Occupation or Employment
<S> <C> <C>
Ernest-Antoine SEILLIERE (Chairman and CEO) French
Chairman and CEO of CGIP
Paul LACOUR (Executive Officer: French
General Secretary)
Jean-Marc JANODET (Director) French
Executive Officer of CGIP
Henri de MITRY (Director) French
Chairman and CEO of
Financiere Franco-
Neerlandaise
Louis-Amedee de MOUSTIER (Director) French
Managing Director of
Wendel Participations
Director of CGIP
Chairman and CEO of Societe
De Gerance de Valeurs Mobilieres
Francois PERIGOT (Director) French
Guy de WOUTERS (Director) Belgian
Director of CGIP
Hubert LECLERC de (Director) French
HAUTECLOCQUE Managing Director of
(representative of SOCIETE Wendel Participations
LORRAINE DE PARTICIPA-
TIONS SIDERURGIQUES)
Bruno ROGER (Director) French
(representative of TRIEF) Partner of
LAZARD Freres & Cie Lazard Freres et Cie
121 Boulevard Haussmann
75382 PARIS CEDEX 8
</TABLE>
<PAGE>
APPENDIX C
Executive Officers and Directors
of WENDEL-PARTICIPATIONS
The following table sets forth the name, residence or business address and
present principal occupation or employment of each executive officer and
director of WENDEL-PARTICIPATIONS and the name, principal business and address
of any corporation or organisation in which such employment is conducted.
Unless otherwise indicated, the business address of each of the following
persons is 89 rue Taitbout, 75009 Paris, France.
<TABLE>
<CAPTION>
b) Present Principal
a) Name and Business Address Business Activity, c) Citizenship
Occupation or Employment
<S> <C> <C>
Louis-Amedee de MOUSTIER (Managing Director) French
(representative of SOCIETE DE
GERANCE ET DE VALEURS
MOBILIERES)
Hubert LECLERC de (Managing Director) French
HAUTECLOCQUE
(representative of SOCIETE
LORRAINE DE PARTICIPA-
TIONS SIDERURGIQUES)
</TABLE>
<PAGE>
APPENDIX D
Executive Officers and Directors
of
SOCIETE DE GERANCE DE VALEURS MOBILIERES
The following table sets forth the name, residence or business address and
present principal occupation or employment of each executive officer and
director of SOCIETE DE GERANCE DE VALEURS MOBILIERES and the name, principal
business and address of any corporation or organisation in which such employment
is conducted. Unless otherwise indicated, the business address of each of the
following persons is 89 rue Taitbout, 75009 Paris, France.
<TABLE>
<CAPTION>
b) Present Principal
a) Name and Business Address Business Activity, c) Citizenship
Occupation or Employment
<S> <C> <C>
Louis-Amedee de MOUSTIER (Chairman and CEO) French
Managing Director of
WENDEL - PARTICIPATIONS
Director of Marine-Wendel
Director of CGIP French
Pierre CELIER (Director) French
Armand VASSELOT de REGNE (Director) French
Humbert de WENDEL (Director)
Executive Manager at Total French
Claude GUILLET de CHATELLUS (Director)
Executive Manager at CCF French
Henri de MITRY (Director)
Chairman and CEO of
Financiere Franco-
Neerlandaise French
Guy de PENNART (Director) French
Christian van ZELLER (Director)
D'OOSTHOVE French
Josselin de ROHAN (Director) French
Philippe de CABROL (Director)
Chairman and CEO of AGIR
</TABLE>
<PAGE>
EXHIBIT A
SHAREHOLDERS AGREEMENT
dated as of
March 16, 2000
among
TRADER.COM N.V.,
FLOSCULE B.V.,
COMPAGNIE GENERALE D'INDUSTRIE ET DE PARTICIPATIONS,
TRIEF CORPORATION S.A.,
FIGEMA S.A.,
JOHN H. MACBAIN,
LOUISE T. BLOUIN MACBAIN
AND
ERIC TEYSSONNIERE DE GRAMONT
SHAREHOLDERS AGREEMENT
<PAGE>
SHAREHOLDERS AGREEMENT dated as of March 16, 2000 among Trader.com N.V., a
Dutch company (the "Company"), Floscule B.V., a Dutch company ("Floscule"),
------- --------
Compagnie Generale d'Industrie et de Participations, a French company ("CGIP"),
----
Trief Corporation S.A., a Luxembourg subsidiary of CGIP ("Trief"), Figema S.A.,
-----
a French subsidiary of CGIP ("Figema"), John H. MacBain, Louise T. Blouin
------
MacBain and Eric Teyssonniere de Gramont.
WITNESSETH:
WHEREAS, Floscule and the subsidiaries of CGIP that are parties to this
Agreement are stockholders of the Company;
WHEREAS, Floscule, CGIP and certain other parties are parties to a
Shareholders Agreement dated as of December 15, 1998 (the "Old Shareholders
----------------
Agreement"); and
- ---------
WHEREAS, the parties hereto desire to enter into a new shareholders
agreement relating to the election of supervisory directors of the Company, the
transferability of certain shares of capital stock of the Company and certain
other matters to be effective upon the completion of the initial public offering
of the Company's Class A common shares.
NOW, THEREFORE, in consideration of the foregoing covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions
-----------
(a) The following terms, as used herein, have the following meanings:
"Articles" means the Articles of Association of the Company, as amended
--------
from time to time.
"CGIP Group" means (i) CGIP, (ii) so long as it is a Wholly-Owned
----------
Subsidiary of CGIP, Trief, (iii) so long as it is a Wholly-Owned Subsidiary of
CGIP, Figema and (iv) the Permitted Transferees of the Persons referred to in
clauses (i) through (iii) hereof. If CGIP is absorbed by Marine Wendel , all
references herein to CGIP shall be deemed to be references to Marine Wendel and
all references herein to the CGIP Group shall be deemed to be references to the
Marine Wendel Group.
"Class A Common Shares" means the Class A common shares, EUR 0.16 nominal
---------------------
value per share of the Company, which shares are entitled to one vote per share.
<PAGE>
-2-
"Class B Common Shares" means the Class B common shares, EUR 1.92 nominal
---------------------
value per share, of the Company, which shares are entitled to 12 votes per
share.
"Class C Shares" means the Class C shares, EUR 0.16 nominal value per
--------------
share, of the Company, which shares are entitled to one vote per share.
"Common Shares" means the Class A Common Shares and the Class B Common
-------------
Shares.
"Floscule Group" means Floscule B.V. and its Permitted Transferees.
--------------
"Floscule Shareholder" means any of Mr. MacBain, Mrs. MacBain, Mr.
--------------------
Teyssonniere and any members of the Floscule Group.
"Initial Public Offering" means the Company's first underwritten public
-----------------------
offering of shares of its capital stock on a recognized stock exchange pursuant
to applicable securities laws.
"MacBains" means Mr. MacBain and Mrs. MacBain.
--------
"Majority Holder" means the Shareholder that beneficially owns the Class B
---------------
Common Shares that account for a majority of the aggregate number of votes
attributable to the Class B Common Shares beneficially owned by both
Shareholders.
"Management Board" means the Management Board (raad van bestuur) of the
---------------- ----------------
Company.
"Minority Holder" means the Shareholder who is not the Majority Holder.
---------------
"Mr. MacBain" means John H. MacBain.
-----------
"Mrs. MacBain" means Louise T. Blouin MacBain.
------------
"Mr. Teyssonniere" means Eric Teyssonniere de Gramont.
----------------
"Permitted Transferee" means:
--------------------
(i) in the case of CGIP, Figema and Trief, (a) any Wholly-Owned
Subsidiary of CGIP, (b) if CGIP is absorbed by Marine Wendel, Marine Wendel and
any Wholly-Owned Subsidiary of Marine Wendel, and (c) if the Floscule Group is
the Majority Holder at the time of any proposed transfer, any member of the
Floscule Group; and
(ii) with respect to Floscule, (a) Mr. and Mrs. MacBain and any of
their descendants (including adopted children); (b) Mr. Teyssonniere and his
heirs, his wife and her descendants (including adopted children); (c) any
corporation, partnership or other entity or nominee 100% of the voting and
beneficial interests in which are owned by one or more of the Persons referred
to in clauses (a) and (b); (d) any trust whose only beneficiaries are one or
more of the Persons referred to in clause (a), (b) and (c); and (e) if the CGIP
Group is the Majority Holder at the time of any proposed transfer, any member of
the CGIP Group.
<PAGE>
-3-
"Person" means an individual, corporation, partnership, association, trust
------
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"Public Offering" means an underwritten public offering of Common Shares of
---------------
the Company on a recognized stock exchange pursuant to applicable securities
laws, including an Initial Public Offering.
"Shareholders Meeting" means the general meeting of the shareholders of the
--------------------
Company.
"Shareholders" means the Floscule Group and the CGIP Group.
------------
"Subordinated Loan Note Instrument" means the Subordinated Loan Note
---------------------------------
Instrument, dated December 15, 1998, between Trader.com International B.V. and
Floscule.
"Supervisory Board" means the Supervisory Board of the Company.
-----------------
"Third Party" means a prospective purchaser of Class B Common Shares in an
-----------
arm's length privately negotiated transaction where such purchaser is not a
Permitted Transferee of the transferring Shareholder.
"Wholly-Owned Subsidiary" means any entity of which all of the securities
-----------------------
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions (other than
directors' qualifying shares or the equivalent) are at the time directly or
indirectly owned by a company. An entity shall be considered a Wholly-Owned
Subsidiary of a company notwithstanding the transfer of record ownership of an
equity interest in such entity to a nominee if such nominee has agreed in
writing that (x) such nominee will vote its equity interest in the entity in
accordance with the instructions of the company that transferred the interest to
the nominee and (y) it is holding the equity interest in the entity solely for
the benefit of the company that transferred the interest to the nominee,
provided that such nominee does not hold record ownership of more than one
percent of the shares in the entity.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Breaching Shareholder 6.1(a)
Drag-Along Notice 4.1(a)
Drag-Along Purchaser 4.1(a)
Drag-Along Sale 4.1(a)
Drag-Along Sale Price 4.1(a)
Effective Date 5.1(a)
Floscule Drag-Along Notice 4.2(a)
Floscule Drag-Along Purchaser 4.2(a)
Floscule Drag-Along Sale 4.2(a)
<PAGE>
-4-
Floscule Drag-Along Sale Price 4.2(a)
Floscule Tag-Along Notice 4.4(a)
Floscule Tag-Along Notice Period 4.4(a)
Floscule Tag-Along Purchaser 4.4(a)
Floscule Tag-Along Sale 4.4(a)
Floscule Tag-Along Sale Price 4.4(a)
Non-Breaching Shareholder 6.1(a)
Non-Requesting Shareholder 6.1(b)
Requesting Shareholder 6.1(b)
Review Committee 2.2(a)
Selling Shareholder 4.3(a)
Shareholders Meeting 2.1(b)
Tag-Along Notice 4.3(a)
Tag-Along Notice Period 4.3(a)
Tag-Along Purchaser 4.3(a)
Tag-Along Sale 4.3(a)
Tag-Along Sale Price 4.3(a)
Tag-Along Shareholder 4.3(a)
Tax-Along Shares 4.3(a)
ARTICLE 2
CORPORATE GOVERNANCE
2.1 Supervisory Board
------------------
(a) Each Shareholder agrees to vote, execute consents, take all other
necessary action (including attending any Shareholders Meeting for the purpose
of satisfying any quorum requirement), at any Shareholders Meeting, or
otherwise, in respect of the Class B Common Shares beneficially owned by it (or
in respect of which it otherwise may have the right to vote, execute consents or
take action) and otherwise use their best efforts:
(i) to cause a majority of the members of the Supervisory Board
to be comprised of individuals designated by the Majority Holder;
(ii) to cause at least 25% of the members of the Supervisory
Board to be comprised of individuals designated by the Minority Holder; and
(iii) to cause the composition of the Supervisory Board
initially to consist of eleven members, of which the Floscule Group shall
be entitled to designate six members and the CGIP Group shall be entitled
to designate three members.
(b) The initial designees of the Majority Holder and the Minority Holder to
the Supervisory Board shall be as follows:
<PAGE>
-5-
<TABLE>
<CAPTION>
Directors Not Designated
Members Designated Members Designated by the Floscule Group
by the Floscule Group by the CGIP Group or the CGIP Group
- ------------------------------ ------------------------------- -------------------------------
<S> <C> <C>
Shelby Bonnie Ernest-Antoine Seilliere Roland Berger
Jaime de Marichalar Arnaud Fayet George Mallinckrodt
Barry Nalebuff Jean-Marc Janodet
Rene Rijntjes
Donald Sobey
Maria Christina van der Sluijs
</TABLE>
(c) Each of the Shareholders hereby agrees that it will vote its Class B
Common Shares (i) with respect to the election, suspension or removal of the
Floscule Group's designees to the Supervisory Board, and with respect to the
election of any member of the Supervisory Board required to be elected to fill a
vacancy caused by the resignation, death or removal of any member of the
Supervisory Board designated by the Floscule Group, in accordance with the
instructions of the Floscule Group from time to time and (ii) with respect to
the election, suspension or removal of the CGIP Group's designees to the
Supervisory Board, and with respect to the election of any member of the
Supervisory Board required to be elected to fill a vacancy created by the
resignation, death or removal of any member of the Supervisory Board designated
by the CGIP Group, in accordance with the instructions of the CGIP Group from
time to time.
2.2 Review Committee
----------------
(a) Each Shareholder agrees to use its best efforts to cause the
Supervisory Board to create a review committee (the "Review Committee") whose
----------------
purpose shall be to examine, on behalf of the Supervisory Board, any and all
matters presented by the Management Board to the Supervisory Board for its
approval, action or consideration. The Review Committee shall review such
matters and, if the Review Committee deems it advisable, within three days of
the presentation to the Review Committee of any such matter by the Management
Board, make a non-binding written recommendation regarding the action or actions
the Review Committee believes the Supervisory Board should take with respect to
such matter. The composition of the Review Committee shall consist of all of
the members of the Supervisory Board not designated by the Majority Holder.
(b) A quorum for any meeting of the Review Committee shall consist of a
majority of the members. A vote of the majority of the members present (in
person or by telephone or videoconference) at any meeting shall be required to
make any non-binding recommendations to the Supervisory Board.
(c) The Review Committee shall meet at such times as its members may
decide. It is intended that any such meetings be held in person, but meetings
may also be held by way of a videoconference or telephone conference.
<PAGE>
-6-
2.3 Shareholder Actions
-------------------
Provided that the proposed resolution has been submitted to and approved by
the Supervisory Board, each Shareholder agrees to vote, execute consents, take
all other necessary action (included attending any Shareholders Meeting for the
purpose of satisfying any quorum requirement), at any Shareholders Meeting or
otherwise, in respect of the Class B Common Shares beneficially owned by it (or
in respect of which it otherwise may have the right to vote, execute consents or
take action) and otherwise use their best efforts to vote as directed by the
Majority Holder:
(a) in favor of (i) the delegation from time to time to the Management
Board, acting with the approval of the Supervisory Board, of the power to
issue, and to grant rights to acquire, shares in the Company's capital and
to exclude preemptive rights with respect to such issuance of shares and
grant of the right to acquire shares and (ii) the prolongation of any such
delegation that has been previously granted;
(b) in favor of (i) the authorization from time to time to the
Management Board to repurchase Class A Common Shares within a range of 70%
to 130% of the Company's quoted share price as of the date of the
repurchase and (ii) the prolongation of any such authorization that has
previously been granted;
(c) in favor of any amendment of the Articles (i) that may be
required, or that may be recommended by the managing underwriter in any
offering of the Company's equity securities, in connection with future
underwritten equity offerings by the Company or (ii) that may be approved
by the Supervisory Board in connection with private placements of debt or
equity securities, or restructurings of the Company, that have been
approved by the Supervisory Board;
(d) in favor of any statutory merger (juridische fusie) or
----------------
demerger (splitsing) that has been approved by the Supervisory Board;
---------
(e) in favor of the payment of dividends whose payment has been
recommended by the Supervisory Board; and
(f) with respect to all other matters presented to the
Shareholders Meeting, in accordance with the instructions from time to time
of the Majority Holder.
Any such instruction of the Majority Holder referred to in the preceding
sentence shall be delivered in writing by the Majority Holder to the Minority
Holder and to each of the members of the Review Committee at least 10 days prior
to the Shareholders Meeting. Nothing herein shall be construed to override the
requirement in the Articles that certain matters be approved by a vote of more
than 75% of the members of the Supervisory Board before they are submitted to a
Shareholders Meeting, or to restrict the freedom of the members of the Board of
Directors designated by the Minority Holder to vote in meetings of the Board of
Directors as they in their sole discretion determine.
<PAGE>
-7-
2.4 Audit Committee of the Supervisory Board
----------------------------------------
(a) The Supervisory Board shall maintain an Audit Committee. The primary
function of the Audit Committee shall be to assist the Supervisory Board in
fulfilling its responsibilities by reviewing: (i) the financial reports and
other financial information provided by the Company to governmental agencies,
the Company's shareholders or to the general public, (ii) the Company's systems
of internal controls regarding finance, accounting, legal compliance and ethics
that management and the Management Board have established, and (iii) the
Company's auditing, accounting and financial reporting processes in general.
(b) The Audit Committee shall be comprised of such number of members of
the Supervisory Board as is determined by the Supervisory Board, each of whom
shall be free from any relationship that, in the opinion of the Supervisory
Board, would interfere with the exercise of his or her independent judgment as a
member of the Committee. The Shareholders shall use their best efforts to
ensure that the Audit Committee shall at all times include at least one member
of the Supervisory Board designated by the Minority Holder.
(c) The members of the Audit Committee shall be elected by the Supervisory
Board and shall serve until their successors shall be duly elected and qualified
or until their earlier resignation or removal. Unless a Chairman is elected by
the full Supervisory Board, the members of the Committee may designate a
Chairman by majority vote of the full Audit Committee membership.
(d) The initial members of the Audit Committee shall be Jean-Marc Janodet,
Arnaud Fayet and George Mallinckrodt.
(e) The Audit Committee shall meet at such times as its members may decide,
as the Management Board may request or as required by law.
2.5 Management Board
----------------
Each Shareholder agrees to vote, execute consents, take all other necessary
action (including attending any Shareholders Meeting for the purpose of
satisfying any quorum requirement), at any Shareholders Meeting or otherwise, in
respect of the Class B Common Shares beneficially owned by it (or in respect of
which it otherwise may have the right to vote, execute consents or take action)
and otherwise use their best efforts to cause a majority of the members of the
Management Board to be comprised of individuals designated by the Majority
Holder; provided, however, the CGIP Group shall be free to vote as they in their
-------- -------
sole discretion determine with respect to any designees of the Floscule Group
other than John MacBain, Louise MacBain and Eric Teyssonniere. The initial
members of the Management Board shall be John MacBain, Louise MacBain, Eric
Teyssonniere and Rudolf Waals.
2.6 CGIP Group Rights
-----------------
The Shareholders shall use their best efforts to ensure that so long as Mr.
and Mrs. MacBain are the beneficial owners of more than 50% of the Unsecured
Subordinated Loan Notes 2008 issued by Trader.com International B.V. pursuant to
the Subordinated Loan Note Instrument, the members of the Supervisory Board
designated by the CGIP Group will have the
<PAGE>
-8-
sole authority to (i) negotiate on behalf of the Company the terms of the
Exchange Notes (as defined in the Subordinated Loan Note Instrument), and (ii)
nominate on behalf of the Company or recommend to the Management Board the
investment bank referred to in Condition 4 of the Subordinated Loan Note
Instrument. It is currently anticipated that the Unsecured Subordinated Loan
Notes 2008 will be paid substantially contemporaneously with the Initial Public
Offering.
In addition, the Shareholders shall use their best efforts to ensure that
the members of the Supervisory Board designated by the CGIP Group will have the
sole authority to (i) determine whether the Company will cause its subsidiary
Mirabridge International BV ("Mirabridge") to exercise the option granted to
----------
Mirabridge under the Call Option Agreement dated as of December 31, 1999 among
Mirabridge and Silk Pattern Ltd, Mr. and Mrs. MacBain and Mr. Teyssonniere and
(ii) to cause Mirabridge to act in respect of any material amendment of, or
waiver or consent granted under, such agreement.
The Company will cause (i) Trader.com International B.V. to refrain from
taking any action described in the first paragraph of this Section 2.6 and (ii)
Mirabridge to refrain from taking any action described in the second paragraph
of this Section 2.6, in each case unless such action is approved by the members
of the Supervisory Board designated by the CGIP Group.
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General
-------
(a) Either Shareholder may at any time sell, assign or transfer any or all
of its Class A Common Shares without restriction to any Person it chooses.
(b) Either Shareholder may at any time convert any or all of its Class B
Common Shares into one Class A Common Share and 11 Class C Shares for each Class
B Common Share converted; provided no such conversion shall be permitted unless
--------
the Shareholder that wishes to convert its Class B Common Shares into Class A
Common Shares and Class C Shares has granted an irrevocable power of attorney to
the Company, as set forth in Section 3.3(d).
(c) Except as provided in Sections 3.2(a) and 3.5(a) hereof, neither
Shareholder may at any time sell, assign or transfer any or all of its Class B
Common Shares to any Person without converting such shares into Class A Common
Shares and Class C Common Shares in accordance with Section 3.3.
(d) Except as provided in Sections 3.2(b) and 3.5(b) hereof, the Floscule
Shareholders may not (directly or indirectly) sell, assign or transfer any
voting or equity interest in any member of the Floscule Group that is a
corporation, partnership or other entity to any Person without first causing the
conversion of all Class B Common Shares held by such member of the Floscule
Group into Class A Common Shares and Class C Shares. The Shareholders shall use
their best efforts to ensure that the Articles shall at all times provide that
upon any transfer in violation of the preceding sentence the Class B Shares held
by such member of the Floscule Group will automatically be converted into Class
A Common Shares and Class C Shares. The provisions of the two preceding
sentences shall not be applicable to any transfer of record
<PAGE>
-9-
ownership of an equity interest in a member of the Floscule Group to a nominee
if such nominee has agreed in writing that (x) such nominee will vote its shares
in the relevant member of the Floscule Group in accordance with the instructions
of one or more members of the Floscule Group and (y) it is holding the equity
interest in the relevant member of the Floscule Group solely for the benefit of
the Floscule Group, provided that such nominee does not hold record ownership of
more than one percent of the shares in the relevant member of the Floscule
Group.
(e) The Shareholders shall use their best efforts to ensure that the
Articles shall at all time provide that if any member of either the CGIP Group
or the Floscule Group shall cease to be a member of the CGIP Group or the
Floscule Group, respectively, then all Class B Common Shares held by such member
of the CGIP Group or the Floscule Group will automatically be converted into
Class A Common Shares and Class C Shares.
3.2 Permitted Transferees
---------------------
(a) Notwithstanding the provisions of Sections 3.1(c) and 3.3(a), any
Shareholder may at any time sell, assign or transfer any or all of its Class B
Common Shares and assign its associated rights and obligations under this
Agreement to one or more of its Permitted Transferees so long as (i) such
Permitted Transferee shall have delivered (or have previously delivered) an
executed Agreement To Be Bound substantially in the form of Exhibit A hereto
---------
agreeing to be bound by the terms of this Agreement as a member of the Floscule
Group or the CGIP Group, as the case may be, hereunder and (ii) the transfer to
such Permitted Transferee is not in violation of applicable securities law. The
Shareholders shall use their best efforts to cause the Articles to provide at
all times that (i) no transfer of Class B Common Shares may be effected without
at least 10 business days' prior notice to the Management Board and to the
Shareholder group that is not transferring Class B Common Shares and (ii) no
transfer of Class C Shares may be effected, other than to the Company with no
consideration, without the approval of all shareholders voting as a single
class.
(b) Notwithstanding the provisions of Section 3.1(d), the Floscule
Shareholders may sell, assign or transfer (directly or indirectly) any or all of
their voting or equity interests in Floscule to one or more members of the
Floscule Group without automatic conversion of the Class B Common Shares so long
as (i) such member of the Floscule Group shall have delivered (or have
previously delivered) an executed Agreement To Be Bound substantially in the
form of Exhibit A hereto agreeing to be bound by the terms of this Agreement as
---------
a member of the Floscule Group hereunder and (b) the transfer to such member of
the Floscule Group is not in violation of applicable securities laws.
3.3 Conversion of Class B Common Shares Into Class A Common Shares
--------------------------------------------------------------
(a) Except as provided in Sections 3.2(a) and 3.5(a), any Class B Common
Shares transferred by a member of the Floscule Group or the CGIP Group shall be
automatically converted into one Class A Common Share and eleven Class C Shares
for each Class B Common Share so transferred.
(b) No Shareholder shall transfer any of its Class B Common Shares to any
Person if such transfer would result in the conversion of such Class B Common
Shares into Class A
<PAGE>
-10-
Common Shares and Class C Shares as set forth in Section 3.3(a) unless the
transferee of such Class B Common Shares has agreed (A) with the Company that
any Class C Shares issued to such transferee by the Company upon such transfer
of Class B Common Shares shall immediately after such issuance be transferred to
the Company without consideration (om niet) and the Company hereby irrevocably
-------
consents to the acquisition of such Class C Shares immediately after issuance
thereof and (B) granted the Company an irrevocable power of attorney to take the
actions on behalf of the transferee described in clause (A) of this sentence.
(c) Shareholders whose Class B Common Shares are converted into Class A
Common Shares and Class C Shares pursuant to Paragraphs 4 or 6 of Article 11 of
the Articles shall, within 24 hours of such conversion becoming effective,
transfer the Class C Shares resulting from such conversion to the Company
without consideration, and grant an irrevocable power of attorney to the
Company, as set forth in Section 3.3(d) below.
(d) Each Shareholder hereby grants the Company an irrevocable power of
attorney for the purpose of entering into any agreements, and granting any
powers of attorney, on behalf of such Shareholder which such Shareholder is
required to enter into or grant pursuant to this Section 3.3
3.4 Improper Transfer
-----------------
Neither the Company nor any transfer agent shall give any effect in the
Company's shareholder's register to any transfer of Class B Common Shares or
Class C Shares not in compliance with this Agreement.
3.5 No Conversion of Class B Common Shares
Upon Transfer of Controlling Interest
-------------------------------------
(a) Notwithstanding the provisions of Sections 3.1(c) and 3.3(a), the
Majority Holder acting alone or the Majority Holder and the Minority Holder
acting together may transfer Class B Common Shares to a bona fide Third Party
not affiliated with the Majority Holder (including without limitation the
Minority Holder) without converting them into Class A Common Shares and Class C
Shares if (i) the Class B Common Shares proposed to be transferred by the
Majority Holder and, if applicable, the Minority Holder represent a majority
voting interest in the Company (or, in the case of a transfer to the Minority
Holder, confers majority voting control of the Company on the Minority Holder)
and (ii) the purchaser complies with Paragraph 3 of Article 11 of the Articles.
(b) Notwithstanding the provisions of Section 3.1(d), the Floscule
Shareholders may sell, assign or transfer (directly or indirectly) all but not
less than all of their voting and equity interests in one or more members of the
Floscule Group without such members of the Floscule Group being required to
convert their Class B Common Shares into Class A Common Shares and Class C
Shares if the requirements of Paragraph 5 of Article 11 of the Articles are
satisfied.
3.6 Prohibition on Other Activities by Floscule
and Certain Other Holding Companies
-----------------------------------
<PAGE>
-11-
Each of the Floscule Shareholders agrees that during the term of this
Agreement he will not permit Floscule to own any material asset other than its
interest in the Class A Common Shares and Class B Common Shares held by
Floscule, to engage in any material business activity other than to own an
interest in the Class A Common Shares and Class B Common Shares held by Floscule
or to incur any material liability. In addition, each of the Floscule
Shareholders agrees that he will not sell an indirect interest in the Class B
Common Shares held by Floscule in a transaction to which Sections 4.2 or 4.4
hereof or Paragraph 5 of Article 11 of the Articles is applicable by means of
the sale of a corporation, trust or other entity owning a beneficial interest in
Floscule unless at the time of such sale such entity and all of its subsidiaries
(a) own no material asset other than their indirect interest in the Class A
Common Shares and Class B Common Shares, (b) engage in no material business
activity other than their indirect ownership interest in the Class A Common
Shares and Class B Common Shares and (c) have no material liabilities.
3.7 Pledges
-------
(a) Each Shareholder agrees that a pledge of Class B Common Shares or any
other arrangement in which a security interest is granted in Class B Common
Shares as security for an extension of credit to or at the request of a
Shareholder (a "Pledge") is not a sale, assignment or transfer of Class B Common
------
Shares within the meaning of Sections 3.1(c) or 3.3(a), and that a Pledge
therefore will not result in an automatic conversion of the Class B Common
Shares involved.
(b) Similarly, (x) the CGIP Group agrees that a Pledge of the shares or
other equity interests of a member of the Floscule Group that owns Class B
Common Shares is not a sale, assignment or transfer of such shares or other
equity interests within the meaning of Sections 3.1(d) and will therefore not
result in an automatic conversion of the Class B Common Shares held by such
member of the Floscule Group pursuant to such Section and (y) the Floscule Group
agrees that a Pledge of the shares or other equity interests of a member of the
CGIP Group that owns Class B Common Shares will not result in such member of the
CGIP Group ceasing to be a member of the CGIP Group within the meaning of
Section 3.1(e) and will therefore not result in an automatic conversion of the
Class B Common Shares held by such member of the CGIP Group pursuant to such
Section.
(c) Each Shareholder agrees that it will not borrow an amount secured by a
Pledge of Class B Common Shares, or secured by a Pledge of shares or other
equity interests in a member of the Floscule Group or the CGIP Group that owns
Class B Common Shares, as the case may be, other than from a bank, brokerage
firm or other financial institution of recognized international standing.
(d) Each Shareholder agrees that it will not borrow an amount secured by a
Pledge of Class B Common Shares in excess of one third of the Market Value (as
defined below) of the Class B Common Shares Pledged.
(e) Similarly, each of the Floscule Group and the CGIP Group agrees not to
borrow an amount secured by a Pledge of shares or other equity interests in a
member of the Floscule Group or the CGIP Group that owns Class B Common Shares,
as the case may be, in excess of
<PAGE>
-12-
(x) one third of the Market Value of the Class B Common Shares owned by such
member of such group plus (y) 100% of the Market Value of the Class A Common
Shares owned by such member of such group.
(f) Each Shareholder agrees to advise the other in writing on each
anniversary of this Agreement whether such Shareholder has exceeded the
borrowing limitations specified in this Section 3.7 during the preceding 12
months, and if so by how much during what periods (such excess borrowing, the
"Excess Amount"). In addition, each Shareholder agrees to pay to the other on
- --------------
each anniversary of this Agreement an amount equal to 12 percent per annum on
the average amount of the Excess Amount during such 12 month period.
(g) The "Market Value" of Class A Common Shares and Class B Common Shares
------------
shall be the same, and shall be equal to the average (rounded to the nearest
penny), for the 20 consecutive trading days ending on and including the
measurement date, of (i) if the Class A Common Shares are quoted on The Nasdaq
Stock Market, the last reported sale price of shares of Class A Common Shares on
the The Nasdaq Stock Market; (ii) if the Class A Common Shares are not traded on
the The Nasdaq Stock Market but are traded on a national securities exchange,
the last reported sale price of Class A Common Shares on the national securities
exchange on which such shares are primarily traded; (iii) if Class A Common
Shares are not quoted on The Nasdaq Stock Market or traded on a national
securities exchange, the average of the closing bid and ask prices for Class A
Common Shares as reported by an established quotation service for over-the-
counter securities; or (iv) if not so reported, the average of the closing bid
and ask prices for Class A Common Shares as furnished by any internationally
recognized brokerage firm selected by the Company for the purpose.
ARTICLE 4
DRAG-ALONG RIGHTS
4.1 Drag-Along Rights of Majority Holder
------------------------------------
(a) If the Majority Holder should desire to sell all, but not less than
all, of its Class B Common Shares to any bona fide Third Party not affiliated
with the Majority Holder (a "Drag-Along Purchaser") other than in a Public
--------------------
Offering (a "Drag-Along Sale"), the Majority Holder may, at its option,
require the Minority Holder to participate in such sale. The Majority Holder
shall provide written notice (a "Drag-Along Notice") of such Drag-Along Sale to
the Minority Holder. The Drag-Along Notice shall identify the Drag-Along
Purchaser, the consideration per Class B Common Share for which the sale is
proposed to be made (the "Drag-Along Sale Price") and all other material terms
---------------------
and conditions of the Drag-Along Sale. Upon delivery of the Drag-Along Notice,
the Minority Holder shall be required, as set forth below, to tender all of its
Class B Common Shares to the Drag-Along Purchaser. Within 10 business days after
the date of the Drag-Along Notice, the Minority Holder shall deliver to a
representative of the Majority Holder designated in the Drag-Along Notice an
irrevocable limited power of attorney authorizing the Majority Holder to
negotiate the sale of all of the Minority Holder's Class B Common Shares
pursuant to the Drag-Along Sale in the following 120 day period and, in
connection therewith,
<PAGE>
-13-
sign any and all related documents, certificates and
notarial or non-notarial deeds of transfer and make any and all related
representations and warranties regarding title to the shares to be sold.
(b) The per share consideration to be paid to the Majority Holder and the
Minority Holder for each Class B Common Share shall be the Drag-Along Sale Price
and shall be the same for all Class B Common Shares.
(c) At closing the Minority Holder shall sell the Class B Common Shares to
be sold on the terms negotiated by the Majority Holder and shall sign any and
all documents or certificates and make any and all customary representations and
warranties regarding title to the Class B Common Shares to be sold and shall be
entitled to receive payment for its Class B Common Shares on the closing date in
cash or in quoted securities which are freely negotiable as from the day of
sale. It is understood that the per share consideration paid to the Minority
Holder for its Class B Common Shares and all other material terms and conditions
shall be no less favorable than those received by the Majority Holder for its
Class B Common Shares.
(d) If, within 120 days after the Majority Holder gives the Drag-Along
Notice, it has not completed the sale of the Class B Common Shares, the Majority
Holder shall return to the Minority Holder all documents delivered to the
Majority Holder pursuant to Section 4.1(a) hereto.
4.2 Drag-Along Rights of Floscule Shareholders
------------------------------------------
(a) If the Floscule Group shall be the Majority Holder and the Floscule
Shareholders should desire to sell (directly or indirectly) all, but not less
than all, of their voting and equity interests in Floscule to any bona fide
Third Party not affiliated with the Majority Holder (a "Floscule Drag-Along
-------------------
Purchaser") other than in a Public Offering (a "Floscule Drag-Along Sale"), the
- --------- ------------------------
Floscule Shareholders may, at their option, require the Minority Holder to
participate in such sale. The Floscule Shareholders shall provide written
notice (a "Floscule Drag-Along Notice") of such Floscule Drag-Along Sale to the
--------------------------
Minority Holder. The Floscule Drag-Along Notice shall identify the Floscule
Drag-Along Purchaser, the implied per Class B Common Share consideration for
which the sale is proposed to be made (the "Floscule Drag-Along Sale Price") and
------------------------------
all other material terms and conditions of the Floscule Drag-Along Sale. Upon
delivery of the Floscule Drag-Along Notice, the Minority Holder shall be
required, as set forth below, to tender all of its Class B Common Shares to the
Floscule Drag-Along Purchaser. Within 10 business days after the date of the
Floscule Drag-Along Notice, the Minority Holder shall deliver to a
representative of the Floscule Shareholders designated in the Floscule Drag-
Along Notice an irrevocable limited power of attorney authorizing the Floscule
Shareholders to negotiate the sale of all of the Minority Holders' Class B
Common Shares pursuant to the Floscule Drag-Along Sale in the following 120 day
period and, in connection therewith, sign any and all related documents,
certificates and notarial or non-notarial deeds of transfer and make any and all
related representations and warranties regarding title to the shares to be sold.
(b) The per share consideration to be paid to the Minority Holder for each
Class B Common Share shall be the Floscule Drag-Along Sale Price.
<PAGE>
-14-
(c) At closing the Minority Holder shall sell the Class B Common Shares to
be sold on the terms negotiated by the Floscule Shareholders and shall sign any
and all documents or certificates and make any and all customary representations
and warranties regarding title to the Class B Common Shares to be sold and shall
be entitled to receive payment for its Class B Common Shares on the closing date
in cash or in quoted securities which are freely negotiable as from the day of
sale. It is understood that the per share consideration paid to the Minority
Holder for its Class B Common Shares and all other material terms and conditions
shall be no less favorable than those received indirectly by the Floscule
Shareholders for their Class B Common Shares.
(d) If, within 120 days after the Floscule Shareholders give the Floscule
Drag-Along Notice, they have not completed the sale of their voting or equity
interests in Floscule, the Floscule Shareholders shall return to the Minority
Holder all documents delivered to the Floscule Shareholders pursuant to Section
4.2(a) hereto.
4.3 Tag-Along Rights of Minority Holder
-----------------------------------
(a) If at any time the Majority Holder proposes to transfer all, but not
less than all, of its Class B Common Shares to a bona fide Third Party not
affiliated with the Majority Holder (a "Tag-Along Purchaser") other than in a
-------------------
Public Offering and in a transaction in which the Tag-Along Purchaser is not
required to comply with Paragraph 3 of Article 11 of the Articles and the
Majority Holder does not exercise its rights under Section 4.1 (a "Tag-Along
---------
Sale"), the Majority Holder (the "Selling Shareholder") shall provide written
- ---- -------------------
notice (the "Tag-Along Notice") of such proposed Tag-Along Sale to the Minority
----------------
Holder (the "Tag-Along Shareholder"). The Tag-Along Notice shall identify the
---------------------
purchaser, the number of Class B Common Shares proposed to be transferred (the
"Tag-Along Shares"), the per share consideration for which the transfer is
- -----------------
proposed to be made (the "Tag-Along Sale Price") and all other material terms
--------------------
and conditions of the proposed Tag-Along Sale. The Tag-Along Shareholder shall,
as to Class B Common Shares held by it, have the right and option, exercisable
as set forth below, to participate in the Tag-Along Sale by selling all, but not
less than all, of its Class B Common Shares to the Tag-Along Purchaser. If the
Tag-Along Shareholder desires to exercise such option, it shall provide the
Selling Shareholder with written irrevocable notice within fifteen Business Days
after the date the Tag-Along Notice is given (the "Tag-Along Notice Period"),
-----------------------
and shall simultaneously provide a copy of such notice to the Company. If the
Tag-Along Purchaser refuses to buy all of the Tag-Along Shareholder's Class B
Common Shares at the price and on the terms set forth above, the Selling
Shareholder shall not be permitted to consummate the Tag-Along Sale.
(b) Each accepting Tag-Along Shareholder shall deliver to the Selling
Shareholder an irrevocable limited power-of-attorney authorizing the Selling
Shareholder to sell or otherwise dispose of the Class B Common Shares to be sold
or otherwise disposed of pursuant to such sale by such Tag-Along Shareholder in
the following 120 day period in accordance with the terms of the Tag-Along Sale
and, in connection therewith, to sign any and all related documents,
certificates and notarial or non-notarial deeds of transfers and to make any and
all related customary representations, warranties or indemnities relating to
ownership of Class B Common Shares. Delivery of the limited power-of-attorney
shall constitute an irrevocable acceptance of the Tag-Along Sale by the Tag-
Along Shareholder.
<PAGE>
-15-
(c) The per share consideration to be paid to the Selling Shareholder and
each Tag-Along Shareholder participating in the Tag-Along Sale shall be the Tag-
Along Sale Price.
(d) Any payments for the Tag-Along Shareholders shall be remitted at
closing to the Dutch notary involved in such sale for the benefit of such Tag-
Along Shareholders.
(e) If at the termination of the Tag-Along Notice Period any Tag-Along
Shareholder shall not have elected to participate in the Tag-Along Sale, such
Tag-Along Shareholder will be deemed to have waived any of and all of its rights
under this Section 4.3 with respect to the sale or other disposition of its
Class B Common Shares pursuant to such Tag-Along Sale. The Selling Shareholder
shall have 120 days in which to sell the applicable Class B Common Shares at a
price not higher than that contained in the Tag-Along Notice and on terms not
more favorable to the Selling Shareholder than were contained in the Tag-Along
Notice. Promptly after any sale pursuant to this Section 4.3, the Selling
Shareholder shall notify the Company of the consummation thereof and shall
furnish such evidence of the completion thereof (including time of completion)
of such sale and of the terms thereof as the Company may request. If, at the
end of such 120-day period, the Selling Shareholder has not completed the sale
of the Class B Common Shares to be sold, the irrevocable limited power of
attorney granted to such Selling Shareholder shall lapse, and all the
restrictions on sale or other disposition contained in this Agreement with
respect to Class B Common Shares shall again be in effect.
(f) Notwithstanding anything contained in this Section 4.3, there shall be
no liability on the part of the Selling Shareholder to any Tag-Along Shareholder
if the sale of Class B Common Shares pursuant to this Section 4.3 is not
consummated for whatever reason. Any decision as to whether to sell Class B
Common Shares shall be at the Selling Shareholder's sole and absolute
discretion.
(g) For the avoidance of doubt, any transfer of Class B Common Shares by
either the Majority Holder or the Minority Holder under the circumstances
described in the first sentence of Section 4.3(a) will result in a conversion of
such Class B Common Shares into Class A Common Shares and Class C Shares in
accordance with Section 3.3(a).
4.4 Tag-Along Rights in Connection with Sale by Floscule Shareholders
-----------------------------------------------------------------
(a) If at any time the Floscule Group shall be the Majority Holder and the
Floscule Shareholders propose to transfer (directly or indirectly) all, but not
less than all, of their voting and equity interests in Floscule to a bona fide
Third Party not affiliated with the Majority Holder (a "Floscule Tag-Along
------------------
Purchaser") other than in a Public Offering and in a transaction in which the
- ---------
Floscule Tag-Along Purchaser is not required to comply with Paragraph 5 of
Article 11 of the Articles and the Floscule Shareholders do not exercise their
rights under Section 4.2 (a "Floscule Tag-Along Sale"), the Floscule
-----------------------
Shareholders shall provide written notice (the "Floscule Tag-Along Notice ") of
--------------------------
such proposed Floscule Tag-Along Sale to the Minority Holder. The Floscule Tag-
Along Notice shall identify the purchaser, the implied per Class B Common Share
consideration for which the transfer is proposed to be made (the "Floscule Tag-
------------
Along Sale Price") and all other material terms and conditions of the proposed
- ----------------
Floscule Tag-Along Sale. The Minority Holder shall, as to Class B Common Shares
held by it, have the right and option, exercisable as set forth below, to
participate in the Floscule Tag-Along Sale by selling all, but
<PAGE>
-16-
not less than all, of its Class B Common Shares to the Floscule Tag-Along
Purchaser. If the Minority Holder desires to exercise such option, it shall
provide the Floscule Shareholders with written irrevocable notice within fifteen
Business Days after the date the Floscule Tag-Along Notice is given (the
"Floscule Tag-Along Notice Period"), and shall simultaneously provide a copy
--------------------------------
of such notice to the Company.
If the Floscule Tag-Along Purchaser refuses to buy all of the Minority Holder's
Class B Common Shares at the price and on the terms set forth above, the
Floscule Shareholders shall not be permitted to consummate the Floscule Tag-
Along Sale.
(b) Each accepting Minority Holder shall deliver to the Floscule
Shareholders an irrevocable limited power-of-attorney authorizing the Floscule
Shareholders to sell or otherwise dispose of the Class B Common Shares to be
sold or otherwise disposed of pursuant to such sale by such Minority Holder in
the following 120 day period in accordance with the terms of the Floscule Tag-
Along Sale and, in connection therewith, to sign any and all related documents,
certificates and notarial or non-notarial deeds of transfers and to make any and
all related customary representations, warranties or indemnities relating to
ownership of Class B Common Shares. Delivery of the limited power-of-attorney
shall constitute an irrevocable acceptance of the Floscule Tag-Along Sale by the
Minority Holder.
(c) The per Class B Common Share consideration to be paid to each Minority
Holder participating in the Floscule Tag-Along Sale shall be the Floscule Tag-
Along Sale Price.
(d) Any payments for the Minority Holders shall be remitted at closing to
the Dutch notary involved in such sale for the benefit of such Minority Holders.
(e) If at the termination of the Floscule Tag-Along Notice Period any
Minority Holder shall not have elected to participate in the Floscule Tag-Along
Sale, such Minority Holder will be deemed to have waived any of and all of its
rights under this Section 4.4 with respect to the sale or other disposition of
its Class B Common Shares pursuant to such Floscule Tag-Along Sale. The
Floscule Shareholders shall have 120 days in which to sell all, but not less
than all, of their voting and equity interests in Floscule at an implied price
per Class B Common Share not higher than that contained in the Floscule Tag-
Along Notice and on terms not more favorable to the Floscule Shareholders than
were contained in the Floscule Tag-Along Notice. Promptly after any sale
pursuant to this Section 4.4, the Floscule Shareholders shall notify the Company
of the consummation thereof and shall furnish such evidence of the completion
thereof (including time of completion) of such sale and of the terms thereof as
the Company may request. If, at the end of such 120-day period, the Floscule
Shareholders have not completed the sale of the voting and equity interests in
Floscule to be sold, the irrevocable limited power of attorney granted to such
Floscule Shareholders shall lapse, and all the restrictions on sale or other
disposition contained in this Agreement with respect to their voting and equity
interests in Floscule shall again be in effect.
(f) Notwithstanding anything contained in this Section 4.4, there shall be
no liability on the part of the Floscule Shareholders to any Minority Holder if
the sale of voting and equity interests in Floscule pursuant to this Section 4.4
is not consummated for whatever reason. Any decision as to whether to sell
voting and equity interests in Floscule shall be at the Floscule Shareholders'
sole and absolute discretion.
<PAGE>
-17-
(g) For the avoidance of doubt, any transfer (directly or indirectly) of
voting or equity interests in Floscule by the Floscule Shareholders under the
circumstances described in the first sentence of Section 4.4(a) will result in a
conversion of all Class B Common Shares held by Floscule into Class A Common
Shares and Class C Shares in accordance with Section 3.3(a).
ARTICLE 5
TERM AND TERMINATION
5.1 Term
----
This Agreement shall become effective ("Effective Date") upon the closing
--------------
of the Initial Public Offering of the Company and shall remain in full force and
effect unless and until terminated pursuant to the terms of this Article 5.
5.2 Grounds for Termination
-----------------------
This Agreement may be terminated at any time:
(a) by the mutual written consent of both Shareholders;
(b) by either the Floscule Group or the CGIP Group if the Class B
Common Shares held by both Shareholders represent in the aggregate less
than 15% of the total voting power of all classes of voting stock of the
Company voting as a single class; and
(c) by either the Floscule Group or the CGIP Group if the Class B Common
Shares held by the Minority Holder represent in the aggregate less than 5%
of the total voting power of all classes of voting stock of the Company
voting as a single class.
<PAGE>
-18-
ARTICLE 6
OBLIGATION TO OFFER TO SELL OR CONVERT CLASS B
COMMON SHARES UNDER CERTAIN CIRCUMSTANCES
6.1 Obligation to Offer to Sell or Convert Class B Common Shares Under
------------------------------------------------------------------
Certain Circumstances
---------------------
(a) If, based on any action, suit or proceeding brought by either
Shareholder (either in the first instance or by means of a counterclaim) (the
"Non-Breaching Shareholder"), a court of competent jurisdiction or governmental
- --------------------------
body shall have issued a non-appealable final order, decree or ruling ("Order")
-----
having the effect of determining that the other Shareholder (the "Breaching
---------
Shareholder") has breached any of the provisions of Article 2 hereof in any
- -----------
material respect, then the Breaching Shareholder shall be required, at the
option of the Non-Breaching Shareholder:
(i) to offer any and all of the Class B Common Shares beneficially
owned by it to the Non-Breaching Shareholder at a price per Class B Common
Share equal to 85% (rounded to the nearest $.01) of the weighted volume
average closing price per share of the Class A Common Shares on the Nasdaq
National Market (or such other securities exchange or automated dealer
quotation system as the Class A Common Shares shall be listed or quoted
on), as reported by Bloomberg L.P. (or other equivalent financial reporting
company), during the twenty business days ending on the date of the Order,
payable in cash; or
(ii) to convert each of the Class B Common Shares beneficially owned
by it into one Class A Common Share and eleven Class C Shares in accordance
with Section 3.3 and 3.6 hereof.
The Non-Breaching Shareholder shall have 20 business days after the
publication of the Order to exercise its rights under this Section 6.1(a) by
delivering a written notice to the Breaching Shareholder of its election to
exercise its rights under Section 6.1(a)(i) hereof. If the Non-Breaching
Shareholder shall exercise its rights under Section 6.1(a)(i) hereof, the
closing shall take place at a time specified by the Non-Breaching Shareholder in
such notice not more than 20 business days after delivery of such notice. If
the Non-Breaching Shareholder exercises its rights under Section 6.1(a)(ii)
hereof, the conversion of such shares shall take place as promptly as
practicable but in any case within 20 business days after delivery of such
notice. The Breaching Shareholder hereby appoints the Non-Breaching Shareholder
its attorney-in-fact for the purpose of executing any notarial deeds or other
agreements or instruments required to effect the conversion required in
connection with an exercise of rights under Section 6.1(a)(i) or (ii).
(b) If either Shareholder (the "Requesting Shareholder") brings an action,
----------------------
suit or proceeding ("Suit") before a court of competent jurisdiction or
----
governmental body to terminate or declare void all or any portion of this
Agreement (other than in accordance with Section 5.2
<PAGE>
-19-
above), then such Requesting Shareholder shall be required, at the option of the
other Shareholder (the "Non-Requesting Shareholder"), to offer for sale or
--------------------------
convert into Class A Common Shares and Class C Shares at the price and in the
manner contemplated by Section 6.1(a)(i) and (ii) and the last paragraph of
Section 6.1(a).
(c) Notwithstanding the foregoing, each of the Majority Holder and the
Minority Holder shall at all times be entitled to bring a Suit alleging that the
other Shareholder has breached one or more provisions of this Agreement.
Whether or not the party bringing the Suit is successful in its Suit, the
provisions of Section 6.1(a) and (b) shall not be applied against the party
bringing the claim of breach solely because it brought such Suit.
ARTICLE 7
MISCELLANEOUS
7.1 Effectiveness.
-------------
This Agreement shall become effective upon the consummation of the Initial
Public Offering; provided that this Agreement shall be void and of no further
--------
effect if the Initial Public Offering is not consummated by December 31, 2000.
7.2 Entire Agreement
----------------
This Agreement constitutes the entire agreement among the parties hereto
and supersedes all prior agreement and understandings, oral and written, among
the parties hereto with respect to the subject matter hereof, including without
limitation (upon effectiveness hereof as provided in Section 7.1) the Old
Shareholders Agreement. This Agreement amends and restates in its entirety the
Shareholders Agreement dated February 18, 2000 among the parties hereto.
7.3 Binding Effect; Benefit
-----------------------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, legal representatives and
permitted assigns. Nothing in this Agreement, expressed or implied, is intended
to confer to any person other than the parties hereto, and their respective
heirs, successors, legal representatives and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
7.4 Assignability
-------------
The CGIP Group and the Floscule Group may not assign their rights and
obligations under this Agreement, except to their Permitted Transferees in
accordance with the provisions of Section 3.2.
7.5 Certain Filings
---------------
<PAGE>
-20-
The Floscule Group and the CGIP Group shall promptly cooperate with each
other (a) in determining whether any action by or in respect of, or filing with,
any governmental body, agency, official or authority is required in connection
with the consummation of the transactions contemplated by this Agreement and (b)
in taking all such actions or making any and all such filings and furnishing all
information required in connection therewith.
7.6 Amendment; Waiver
-----------------
No provision of this Agreement may be waived except by an instrument in
writing executed by the party against whom the waiver is to be effective. No
provision of this Agreement may be amended or otherwise modified except by (and
this Agreement shall be modified upon execution of) an instrument in writing
executed by each of the Shareholders.
7.7 Notices
-------
All notices and other communications given or made pursuant hereto or
pursuant to any other agreement among the parties, unless otherwise specified,
shall be in writing and shall be deemed to have been duly given or made if sent
by fax (with confirmation in writing), delivered personally or sent by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the fax number or address set forth below or at such other addresses
as shall be furnished by the parties by like notice, and such notice or
communication shall be deemed to have been given or made upon receipt:
if to the Company, to:
Trader.com N.V.
Parnassustoren
Locatellikade 1
1076 AZ Amsterdam
The Netherlands
(3120) 2067.30016
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
High Street Tower
Boston, MA 02110
USA
Attn: George W. Lloyd
Telecopy: (617) 248-7100
if to the Floscule Group or either of the MacBains, to:
Parnassustoren
Lacatellikade 1
1076 AZ Amsterdam
<PAGE>
-21-
The Netherlands
Attn: Managing Director
Telecopy: (3120) 6730016
with a copy to Testa, Hurwitz & Thibeault, LLP at the address indicated
above.
if to the CGIP Group, to:
Compagnie Generale d'Industrie et de Participations
89, rue Taitbout
75009 Paris
France
Attn: Ernest-Antoine Seilliere
Telecopy: (33) 1 42 80 68 67
and
Attn: Legal Department
Telecopy: (33) 1 42 85 63 60
with a copy to:
Salans, Hertzfeld & Heilbronn
9, rue Boissy d'Anglas
75008 Paris
France
Attn: George Pinkham
Telecopy: (33) 1 42 68 15 45
if to Mr. Teyssonniere, to:
12 First Street
London SW3 2LD
England
Telecopy: (44) 171 581 9298
with a copy to Testa, Hurwitz & Thibeault, LLP at the address indicated
above.
Any Person who becomes a Shareholder shall provide its address and fax
number to the Company, which shall promptly provide such information to each
other Shareholder.
7.8 Headings
--------
The headings contained in this Agreement are for convenience only and shall
not affect the meaning or interpretation of this Agreement.
7.9 Counterparts
------------
<PAGE>
-22-
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
7.10 Severability
------------
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.
7.11 Applicable Law; Arbitration
---------------------------
This Agreement shall be construed in accordance with and governed by the
laws of the Netherlands without regard to the conflicts of law rules of such
jurisdiction. All disputes arising out of or in connection with the present
Agreement shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by one or more arbitrators
appointed in accordance with the said Rules. The place of arbitration shall be
London and all proceedings shall be conducted in English. However, the
foregoing shall not prevent either of the parties hereto from having recourse to
any measures of conservation or execution envisaged by local law in any country
whatsoever, and, where necessary, applying to any appropriate courts in order to
authorize or ensure application of the said measures of conservation or
execution.
7.12 Specific Enforcement
--------------------
Each party hereto acknowledges that the remedies at law of the other
parties for a breach or threatened breach of this Agreement would be inadequate
and, in recognition of this fact, any party to this Agreement, without posting
any bond, shall be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available.
7.13 Waiver of Rescission
--------------------
Each of the parties hereby waives any right to rescind (ontbinden) this
---------
Agreement or to seek rescission (ontbinding) of this Agreement from any court or
----------
arbitrator for any reason whatsoever.
7.14 Conflict with Articles
----------------------
Subject to applicable law, each Shareholder shall (a) vote his, her or its
Class B Common Shares, and shall take all other actions necessary, to ensure
that the Company's Articles facilitate and are consistent with the provisions of
this Agreement and (b) vote his, her or its shares at any meeting of the
Company's stockholders, or any class thereof, in favor of any action that is
<PAGE>
-23-
expressly permitted by this Agreement and against any action that is expressly
prohibited by the terms of this Agreement. To the extent that one or more
conflicts arise between the provisions of this Agreement and the provisions of
the Articles, the provisions of this Agreement shall, to the fullest extent
permitted by the applicable law, control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TRADER.COM N.V. FLOSCULE B.V.
By: By:
-------------------------- -------------------------
Name: Name:
-------------------------- -------------------------
Title: Title:
-------------------------- -------------------------
COMPAGNIE GENERAL D'INDUSTRIE ET DE TRIEF CORPORATION S.A.
PARTICIPATIONS
By: By:
-------------------------- -------------------------
Name: Name:
-------------------------- -------------------------
Title: Title:
-------------------------- -------------------------
FIGEMA S.A.
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
- -------------------------------- -------------------------------
John H. MacBain Louise T. Blouin MacBain
- --------------------------------
Eric Teyssonniere de Gramont
<PAGE>
EXHIBIT A
FORM OF AGREEMENT TO BE BOUND
[DATE]
To the Parties to the
Shareholders Agreement
dated as of January __, 2000
Dear Sirs:
Reference is made to the Shareholders Agreement dated as of February ___,
2000 (the "Shareholders Agreement"), among Trader.com N.V., a Dutch company,
----------------------
Floscule B.V., a Dutch company, Compagnie Generale d'Industrie et de
Participations, a French company ("CGIP"), Trief Corporation S.A., a Luxembourg
subsidiary of CGIP, Figema S.A., a French subsidiary of CGIP, John H. MacBain,
Louise T. Blouin MacBain and Eric Teyssonniere de Gramont. Capitalized terms
not defined herein have the meanings assigned to them in the Shareholders
Agreement.
In consideration of the covenants and agreements contained in the
Shareholders Agreement and the transfer of the [describe number and class of
purchased shares] (the "Shares") to the undersigned by [Transferor], the
undersigned hereby confirms and agrees to be bound by all of the provisions
thereof as a member of the [Floscule/CGIP] Group thereunder.
This letter shall be construed and enforced in accordance with the laws of
the Netherlands.
Very truly yours,
----------------------------
[Transferee]
<PAGE>
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of February __, 2000 among
Trader.com N.V., a Dutch company (the "Company"), Floscule B.V., a Dutch company
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("Floscule"), Compagnie Generale d'Industrie et de Participations ("CGIP"), a
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French company ("CGIP"), Oranje-Nassau Participaties B.V., a Dutch subsidiary of
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CGIP ("Oranje-Nassau"), Trief Corporation, S.A., a Luxembourg subsidiary of CGIP
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("Trief"), and Figema S.A., a French subsidiary of CGIP ("Figema").
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WHEREAS, the Holders (as defined below) wish to have the right to require
the Company to register Class A Common Shares of the Company under the
Securities Act of 1933; and
WHEREAS, the Company, in consideration of the Holders' support of the
Company's Initial Public Offering (as defined below), is willing to grant such
registration rights;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein.
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"CGIP Group" means CGIP, Oranje-Nassau, Trief, Figema and their Permitted
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Transferees. If CGIP Group is absorbed by Marine Wendel, all references herein
to CGIP shall be deemed to be references to Marine Wendel and all references to
the CGIP Group shall be deemed to be references to the Marine Wendel Group.
"Class A Common Shares" shall mean the Class A Common Shares, EUR 0.16
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nominal value per share, of the Company, as constituted as of the date of this
Agreement.
"Class B Common Shares" shall mean the Class B Common Shares, EUR 1.92
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nominal value per share, of the Company, as constituted as of the date of this
Agreement.
"Commission" shall mean the United States Securities and Exchange
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Commission, or any other United States agency at the time administering the
Securities Act.
"Exchange Act" shall mean the United States Securities Exchange Act of
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1934, as amended, or any similar United States statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Floscule Group" means Floscule and its Permitted Transferees.
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"Holders" means the Floscule Group and the CGIP Group.
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"Initial Public Offering" means the Company's first underwritten public
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offering of Class A Common Shares on a recognized stock exchange pursuant to
applicable securities laws.
"Mr. MacBain" means John H. MacBain.
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"Mrs. MacBain" means Louise T. Blouin MacBain.
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"Mr. Teyssonniere" means Eric Teyssonniere de Gramont.
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"Permitted Transferee" means:
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(i) in the case of CGIP, Oranje-Nassau, Figema and Trief, (a) any wholly-
owned Subsidiary of CGIP, (b) if CGIP is absorbed by Marine Wendel, Marine
Wendel and any Wholly-Owned Subsidiary of Marine Wendel and (c) if the Floscule
Group is the holder of a majority of the outstanding Class B Common Shares at
the time of any proposed transfer, any member of the Floscule Group; and
(ii) with respect to Floscule, (a) Mr. and Mrs. MacBain and any of their
descendants; (b) Mr. Teyssonniere and his heirs, his wife and her descendants;
(c) any corporation, partnership or other entity 100% of the voting and
beneficial interests in which are owned by one or more of the Persons referred
to in clause (a) and (b) ; (d) any trust whose only beneficiaries are one or
more of the Persons referred to in clause (a), (b) and (c); and (e) if the CGIP
Group is the holder of a majority of the outstanding Class B Common Shares at
the time of any proposed transfer, any member of the CGIP Group.
"Person" means an individual, corporation, partnership, association, trust
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or other entity or organization, including a government or political subdivision
or agency or instrumentality thereof.
"Registration Expenses" shall mean the expenses so described in Section 6.
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"Registration Statement" means a registration statement filed by the
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Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on From S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any other
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registrable Shares" shall mean all Class A Common Shares and all Class A
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Common Shares issued or issuable upon the conversion of the Class B Common
Shares held by the Holders; provided, however, that Registrable Shares shall not
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include such number of Class A Common Shares as may be sold within six months
under Rule 144 under the Securities Act. Whenever reference is made in this
Agreement to a request or consent of Holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include Class A
Common Shares issuable upon the conversion of the Class B Common Shares held by
the Holders even if such conversion has not yet been effected.
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"Securities Act" shall mean the United States Securities Act of 1933, as
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amended, or any similar United States statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Wholly-Owned Subsidiary" means any entity all of the securities or other
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ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions (other than
directors' qualifying shares or the equivalent) are at the time directly or
indirectly owned by a company. An entity shall be considered a Wholly-Owned
Subsidiary of a company notwithstanding the transfer of record ownership of an
equity interest in such entity to a nominee if such nominee has agreed in
writing that (x) such nominee will vote its equity interest in the entity in
accordance with the instructions of the company that transferred the interest to
the nominee and (y) it is holding the equity interest in the entity solely for
the benefit of the company that transferred the interest to the nominee,
provided that such nominee does not hold record ownership of more than one
percent of the shares in the entity.
2. Demand Registration. (a) At any time commencing 180 days after the
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Initial Public Offering and for so long as the Company shall not be eligible to
file a Registration Statement on Form F-3 (or any successor form relating to
secondary offerings), each of the Holders may request, in writing, that the
Company effect a registration on Form F-1 or Form F-2 (or any successor form) of
Registrable Shares held by such Holder having an aggregate offering price to the
public of at least $50,000,000.00. Following receipt of any notice pursuant to
this Section 2, the Company shall immediately notify all Holders from whom
notice has not been received and shall use its best efforts to register under
the Securities Act, for public sale in accordance with the method of
distribution specified in such notice from the requesting Holder or Holders, the
number of Registrable Shares specified in such notice (and in all notices
received by the Company from other Holders within 30 days after the giving of
such notice by the Company). If such method of distribution shall be an
underwritten public offering, the Holder of a majority of the Registrable Shares
to be sold in such offering may designate the managing underwriter of such
offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed. If a registration pursuant to this Section 2
is, in whole or in part, an underwritten public offering, the Company shall
provide such assistance with respect to the offering as may be reasonably
requested by the requesting Holders or the underwriters, including, but not
limited to, causing members of the Company's senior management team to
participate in "roadshow" presentations for the purpose of the marketing of the
Registrable Shares to be sold by the underwriters. The Company shall not be
required to effect more than one such registration at the request of each of the
CGIP Group and the Floscule Group under this Section 2; provided that such
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obligation shall be deemed satisfied only when a Registration Statement covering
all Registrable Shares specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting Holders,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto. The Company will use its best efforts to maintain the
effectiveness for up to 90 days (or such shorter period of time as the
underwriters need to complete the distribution of the registered offering) of
any Registration Statement pursuant to this Section 2.
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(b) The Company shall be entitled to include in any Registration Statement
referred to in this Section 2, for sale in accordance with the method of
disposition specified by the requesting Holders, Class A Common Shares to be
sold by the Company for its own account; provided, that if the proposed method
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of disposition specified by the requesting Holders shall be an underwritten
public offering, the shares to be included in such an offering shall be reduced
if and to the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the Registrable Shares to
be sold. Such reduction will be effected as follows:
(i) First, any shares to be sold by the Company shall be reduced; and
(ii) Second, if all of the shares to be sold by the Company are
excluded from the offering, then the Registrable Shares of the requesting
Holders shall be reduced, such reduction to be made pro rata among the
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requesting Holders based on the number of Registrable Shares owned by such
requesting Holders.
Except for registration statements on Form F-4, S-8 or any successor thereto,
the Company will not file with the Commission any other Registration Statement
with respect to its Class A Common Shares, whether for its own account or that
of other stockholders, from the date of receipt of a notice from requesting
Holders pursuant to this Section 2 until the completion of the period of
distribution of the registration contemplated thereby.
3. Piggyback Registration. If at any time the Company proposes to file a
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Registration Statement (other than pursuant to Section 2 or Section 4) to
register any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of other shareholders or both
(except with respect to registration statements or Forms
F-4, S-8 or another form not available for registering the Registrable Shares
for sale to the public), it will give written notice to all Holders of its
intention to do so. Upon the written request of a Holder received by the
Company within 30 days of the giving of any such notice by the Company to
register any of its Registrable Shares, the Company will use its best efforts to
cause the Registrable Shares as to which registration shall have been so
requested to be included in the Registration Statement proposed to be filed by
the Company, all to the extent required to permit the sale or other disposition
by the Holder of such Registrable Shares so registered. In the event that any
registration pursuant to this Section 3 shall be, in whole or in part, an
underwritten public offering of Class A Common Shares, the number of Registrable
Shares to be included in such an underwriting may be reduced (pro rata among the
requesting Holders based upon the number of Registrable Shares owned by such
Holders) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein. Notwithstanding the foregoing and
subject to Section 5, the Company may withdraw any Registration Statement
referred to in this Section 3 without thereby incurring any liability to the
Holders.
4. Registration on Form F-3. At any time after the Company becomes
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eligible to file a Registration Statement on Form F-3 (or any successor form
relating to secondary offerings), each of the Holders may request the Company,
in writing, to effect the registration on Form F-3 (or such successor form), of
Registrable Shares having an aggregate offering price of at least
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$10,000,000.00 (based on the then current public market price). Upon receipt of
any such request, the Company shall promptly give written notice of such
proposed registration to all other Holders. Such Holders shall have the right,
by giving written notice to the Company within 30 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Holder may request in such notice of election.
The Company shall, as expeditiously as possible, use its best efforts to effect
the registration on Form F-3 (or such successor form) of all Registrable Shares
which the Company has been requested to so register. There shall be no limit on
the number of registrations that may be requested and obtained pursuant to
Section 4, provided that the Company shall not be required to effect more than
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one registration during any six-month period pursuant to this Section 4. The
Company will use its best efforts to maintain the effectiveness for up to 30
days of any Registration Statement pursuant to this Section 4.
5. Blackouts. Notwithstanding the provisions of Section 2, 3 or 4 above,
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if at any time the Company is in possession of material non-public information
that the Supervisory Board of the Company determines in good faith is not in the
best interests of the Company to disclose in a Registration Statement but which
information would otherwise be required by the Securities Act to be disclosed in
such Registration Statement or amendment thereto, then the Company may (i) delay
the filing, or requested effectiveness, of any Registration Statement required
to be filed pursuant to Section 2 or Section 4 above for up to 120 days or (ii)
upon notice to the Holders, suspend the use of any Registration Statement that
has been declared effective by the Commission under the Securities Act for up to
120 days; provided that the Company shall not delay the filing or requested
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effectiveness of, or suspend the use of, any Registration Statement for more
than an aggregate of 120 days in any 12-month period.
6. Registration Procedures. If and whenever the Company is required by
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the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective for the periods
specified in Sections 2, 3 and 4 above and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares covered
by such Registration Statement in accordance with the selling Holders' intended
method of disposition set forth in such Registration Statement for such period;
(c) furnish to each seller of Registrable Shares and to each underwriter such
number of copies of the Registration Statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
Registrable Shares covered by such Registration Statement;
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(d) use its best efforts to register or qualify the Registrable Shares
covered by the Registration Statement under the securities or "blue sky" laws of
such jurisdictions as the selling Holders or, in the case of an underwritten
public offering, the managing underwriter, reasonably shall request, and do any
and all other acts and things that may be necessary or desirable to enable the
selling Holders to consummate the public sale or other disposition in such state
of the Registrable Shares owned by the selling Holder, provided, however, that
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the Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) use its best efforts to list the Registrable Shares covered by such
registration statement with any securities exchange on which the Class A Common
Shares of the Company are then listed;
(f) immediately notify each seller of Registrable Shares and each underwriter
under such Registration Statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
prospectus contained in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller of
Registrable Shares, use its best efforts to furnish on the date that Registrable
Shares are delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
stating that such Registration Statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the Registration Statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
Registration Statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Registrable Shares, any
underwriter participating in any distribution pursuant to such Registration
Statement, and any
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attorney, accountant or other agent retained by such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement.
(i) before filing any Registration Statement or any amendments or supplements
thereto, furnish to counsel to the Holders copies of such documents proposed to
be filed, which documents shall be subject to the reasonable approval of such
counsel.
(j) provide copies of all correspondence from the Commission relating to any
Registration Statement as well as copies of correspondence from the Company to
the Commission in response thereto, which correspondence from the Company shall
be subject to the reasonable approval of such counsel.
In connection with each registration hereunder, the selling Holders will
furnish to the Company in writing such information with respect to themselves
and the proposed distribution by them as reasonably shall be necessary in order
to assure compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 2, 3, or 4
covering an underwritten public offering, the Company and each Holder agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
7. Expenses. The Company will pay all Registration Expenses of all
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registrations under this Agreement. For purposes of this Section 7, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company, state "blue sky" fees and expenses, fees of the
National Association of Securities Dealers, Inc., and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of the
selling Holders' own counsel.
8. Indemnification and Contribution. (a) In the event of a registration
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of any of the Registrable Shares under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless each seller of such
Registrable Shares thereunder, each underwriter of such Registrable Shares
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities or "blue sky" laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
Registrable Shares was registered under the Securities Act pursuant to Sections
2, 3 or 4, any preliminary prospectus or final prospectus
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contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
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any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by any such seller, any such underwriter or any such controlling person in
writing specifically for use in such Registration Statement or prospectus.
(b) In the event of a registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of such Registrable
Shares thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
the Securities Act, each of the officers and directors of the Company, each
underwriter (if any) and each person who controls such underwriter within the
meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities or "blue sky" laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement under which such
Registrable Shares was registered under the Securities Act pursuant to Sections
2, 3 or 4, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
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hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
Registration Statement or prospectus, and provided, further, however, that the
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liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
Registration Statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such seller from the sale of Registrable Shares covered by such
Registration Statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action or proceeding involving a claim referred to in
Sections 8(a) and 8(b) above, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability
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which it may have to such indemnified party other than under this Section 8 and
shall only relieve it from any liability which it may have to such indemnified
party under this Section 8 if and to the extent the indemnifying party is
materially prejudiced by such omission. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
with counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 8 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected,
provided, however, that, if the defendants in any such action include both the
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indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any Holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 8 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 8 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
8; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Shares offered by the Registration Statement
bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such holder will be
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required to contribute any amount in excess of the public offering price of all
such Registrable Shares offered by it pursuant to such registration statement;
and (B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
9. Information by Holder. Each Holder including Registrable Shares in any
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registration shall promptly furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
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10. Lock-Up Agreement. Each Holder, if requested by the Company and the
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managing underwriter of an underwritten public offering by the Company of Class
A Common Shares or other securities of the Company pursuant to a Registration
Statement, shall agree not to sell publicly or otherwise transfer or dispose of
any Registrable Shares or other securities of the Company held by such Holder
(other than any Registrable Shares to be sold in the public offering to which
such Registration Statement pertains) for (i) 90 days following the effective
date of such Registration Statement in the case of a public offering other than
an Initial Public Offering and (ii) 180 days following the effective date of
such Registration Statement in the case of the Initial Public Offering, or, in
both cases, such shorter time as may be acceptable to such managing underwriter.
Such agreement shall be in writing in form and substance satisfactory to the
Company and such managing underwriter. The Company may impose stop-transfer
instructions with respect to such shares subject to the foregoing restrictions
until the end of said 90-day or 180-day period, as the case may be.
11. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Shares to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to each holder of Registrable Shares forthwith upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents so filed by the Company as such holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Registrable Shares without
registration.
12. General.
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(a) Successors and Assigns. The rights of the Holders under this
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Agreement may not be assigned without the written consent of the Company and the
Holder group that is not assigning its rights under this Agreement; provided
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that each of the members of the Floscule Group and the CGIP Group may assign its
rights under this Agreement to its Permitted Transferees if and to the extent
that it transfers Registrable Shares to such Permitted Transferees in accordance
with the terms of the Shareholders Agreement dated as of the date hereof among
the Company, the parties to this Agreement, Mr. MacBain, Mrs. MacBain and Mr.
Teyssonniere.
(b) Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return
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receipt requested, sent by internationally recognized air courier or sent by
telecopier or telex, addressed as follows:
if to Trader.com N.V. at:
Parnassustoren
Locatellikade 1
1076 AZ Amsterdam
The Netherlands
Attn: Managing Director
Telecopy: (3120) 67.30016
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02116
USA
Attn: George W. Lloyd, Esq.
Telecopy: (617) 248-7100
if to Floscule B.V. at:
Parnassustoren
Lacatellikade 1
1076 AZ Amsterdam
The Netherlands
Attn: Managing Director
Telecopy: (3120) 6730016
with a copy to:
Testa, Hurwitz & Thibeault, LLP at the address indicated above.
if to Compagnie Generale d'Industrie et de Participations,
Oranje-Nassau Participaties B.V., Figema or Trief Corporation S.A. at:
89 rue Taitbout
75009 Paris
France
Attn: Ernst-Antoine Seilliere
Telecopy: (33) 1 42 80 68 67
and Attn: Legal Department
Telecopy: (33) 1 42 85 63 60
with a copy to:
<PAGE>
-12-
Salans, Hartzfeld and Heilbronn
9 rue Boissy d'Anglas
75008 Paris
France
Attn: George Pinkham, Esq.
Telecopy: (33) 1 42 68 15 45
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company or to the Holders in accordance with the provisions of
this paragraph.
(c) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
provisions thereof relating to conflict of law.
(d) Amendments and Waivers. This Agreement may not be amended or
----------------------
modified, and no provision hereof may be waived, without the written consent of
the Company and the Holders. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or waiver.
(e) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Severability. If any provision of this Agreement shall be held to be
------------
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) Entire Agreement. This Agreement represents the complete agreement
----------------
and understanding of the parties hereto in respect to the subject matter
contained herein. This Agreement supercedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the Agreement has been executed by the parties hereto as of
the day and year first above written.
TRADER.COM N.V. FLOSCULE B.V.
By: By:
--------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- --------------------------
COMPAGNIE GENERALE ORANJE NASSAU PARTICIPATIES B.V.
D'INDUSTRIE ET DE PARTICIPATIONS
By: By:
--------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- --------------------------
TRIEF CORPORATION S.A. FIGEMA S.A.
By: By:
--------------------------- -----------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- -------------------------
<PAGE>
EXHIBIT C
SHAREHOLDERS RESOLUTION
The undersigned, being all of the shareholders of Trader.com N.V. (the
"Company") hereby adopt the following Resolutions by unanimous written consent
without a meeting pursuant to Article 53 of the Articles of Association of the
Company (as amended):
Whereas, no depository receipts of shares in the Company have been issued with
the cooperation of the Company, no right of usufruct and no pledge has been
granted on the Company's shares as a result of which a usufructuary or pledgee
has the rights which, pursuant to provisions in the law, are due to holders of
depository receipts of shares issued with the cooperation of the Company;
Whereas, the members of the management board and supervisory board of the
Company have been given the opportunity to advise on the resolutions stated
hereafter;
It is hereby resolved
1. to amend the Articles of Association of the Company according to the
attached draft prepared by Stibbe Simont Monahan & Duhot (the "Deed of
Amendment").
2. to authorize each member of the Management Board of the Company, as well as
each (candidate) civil law notary and each lawyer of the law firm Stibbe
Simont Monahan & Duhot, each of them individually, to apply for the
Ministerial Certificate of No Objection with respect to the Deed of
Amendment, to amend the draft of the Deed of Amendment in such way as may
prove necessary in order to obtain said Certificate and to execute the Deed
of Amendment.
Signed on February 21, 2000
FIGEMA S.A.
By____________________
FLOSCULE B.V.
By____________________
TRIEF CORPORATION, S.A.
<PAGE>
By____________________
ORANJE-NASSAU PARTICIPATIES B.V.
By____________________
CALEDON INTERNATIONAL LIMITED
By____________________
______________________
Francois Jallot
______________________
Jean-Daniel Tordjman
______________________
Robert Fetheratonhaugh
______________________
Allen Atwell
______________________
Claude Schwab
BEACHCAVE CORPORATION N.V.
By____________________
<PAGE>
- 1 -
Draft March 17, 2000
AMENDMENT TO THE ARTICLES OF ASSOCIATION
On this day, the [ ] two thousand, appeared before me, Hajo Bart Hendrik Kraak,
civil law notary in Amsterdam: [ ]
The appearing person declared:
- - that of the company with limited liability: Trader.com N.V., with official
seat in Amsterdam, having its office at 1076 AZ Amsterdam, Locatellikade 1,
Parnassustoren, and filed with the Trade Register under number [ ], the
articles of association were last amended by deed executed on the [ ], before
[ ], civil law notary in [ ], in respect of which amendment the Minister of
Justice on the [ ] two thousand under number N.V. 1.052.556 has advised that
no objections have been apparent;
- - that the General Meeting of the company resolved to amend the articles of
association of the company integrally;
- - that furthermore a decision was made to authorize the appearing person to
execute the deed of amendment to the articles of association;
- - that the resolutions mentioned above are evidenced by a shareholders
resolution which will be annexed to this deed.
Consequently the appearing person declared that the articles of association of
the company are hereby amended as follows:
DEFINITIONS
ARTICLE 1
In these Articles of Association the following definitions apply:
<PAGE>
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Draft March 17, 2000
a. Annual Accounts shall mean: the balance sheet, the profit and loss account
---------------
and the explanatory notes to these accounts;
b. Annual Meeting shall mean: the General Meeting with the purpose of
--------------
considering and approving the Annual Accounts, the annual report and any
other documents required by law;
c. Articles of Association shall mean: the articles of association of the
-----------------------
Company;
d. Board of Management shall mean: the board of management of the Company;
-------------------
e. CGIP shall mean: Compagnie Generale d' Industrie et de Participations, a
----
company incorporated under the laws of France;
f. CGIP Group shall mean: (a) CGIP, (b) so long as it is a Wholly-Owned
----------
Subsidiary of CGIP, Trief, (c) so long as it is a Wholly-Owned Subsidiary of
CGIP, Figema, and (d) any other Wholly-Owned Subsidiary of CGIP. If CGIP is
absorbed in accordance with the laws of France by Marine Wendel, all
references herein to CGIP shall be deemed to be references to Marine Wendel
and all references herein to the CGIP Group shall be deemed to be references
to the Marine Wendel Group;
g. Company shall mean: Trader.com N.V., a Dutch limited liability company
-------
("naamloze vennootschap"), registered in Amsterdam;
h. Day shall mean: with respect to the time when any transactions are
---
consummated, the period of twenty-four (24) hours following the time of
consummation of the first of such transactions to be consummated;
i. Directors' qualifying shares shall mean: such shares as directors are
-----------------------------
required to hold in the capital of a company pursuant to applicable law;
j. Distributable reserves shall mean: that part of the Company's shareholders'
----------------------
equity which is in excess of the paid-up and called-up part of the capital,
increased by the reserves which are required by law and by virtue of these
Articles of Association;
k. Figema shall mean: Figema S.A., a company incorporated under the laws of
------
<PAGE>
- 3 -
Draft March 17, 2000
France;
l. Floscule shall mean: Floscule B.V., a private company with limited liability
--------
incorporated under the laws of the Netherlands;
m. Floscule Group shall mean: (a) Floscule, (b) Mr. and Mrs. MacBain and any of
--------------
their descendants (including adopted children); (c) Mr. Teyssonniere and his
heirs, his wife and her descendants (including adopted children); (d) any
company, partnership or other entity in which one or more persons referred to
under (b) and (c) above are entitled to one hundred percent (100%) of the
voting rights and beneficial interests, and (e) any trust, within the meaning
of Article 2 of the Convention on the Law Applicable to Trusts and Their
Recognition of July 1, 1985, whose only beneficiaries are one or more of the
Persons referred to under (b), (c) and (d) above;
n. General Meeting shall mean: both the body formed by shareholders and others
---------------
with voting rights as well as the meeting of shareholders and others with
voting rights;
o. Group Company shall mean: a legal entity or a company which is associated
-------------
with the Company in a group;
p. Marine Wendel shall mean: Marine Wendel, a company incorporated under the
-------------
laws of France
q. Mr. MacBain shall mean: John Howard MacBain;
-----------
r. Mrs. MacBain shall mean: Louise Therese Blouin MacBain;
------------
s. Non-Affiliated Supervisory Director shall mean: a member of the Supervisory
-----------------------------------
Board who is not a party to any financial, business or other relationship
with the Company that would interfere with the exercise of independent
judgment;
t. Person shall mean: any individual, legal entity, partnership or similar body;
------
u. Subsidiary shall mean:
----------
1. a legal entity in which the Company or one or more of its Subsidiaries,
whether
<PAGE>
- 4 -
Draft March 17, 2000
or not pursuant to an agreement with other Persons entitled to vote, can
jointly or by itself exercise more than half of the voting rights at the
general meeting;
2. a legal entity, of which the Company or one or more of its Subsidiaries
are member or shareholder and, whether or not pursuant to an agreement
with other Persons entitled to vote, can jointly or by itself appoint or
remove from office more than half of the members of the board of
management or the supervisory board, even if all the Persons entitled to
vote were to cast their votes;
3. a partnership acting under its own name in which the Company or one or
more of its Subsidiaries, as partner is or are fully liable for the debts
towards creditors;
v. Mr. Teyssonniere shall mean: Eric Teyssonniere de Gramont;
----------------
w. Supervisory Board shall mean: the supervisory board of the Company;
-----------------
x. Stock Exchanges shall mean: one or more stock exchanges as defined in article
----------------
1 paragraph e of the Securities Markets (Supervision) Act 1995;
y. Transfer shall mean: any transfer of B shares or creation of a right of
--------
usufruct on B shares, but shall not include a right of pledge on B shares;
z. Trief shall mean: Trief Corporation S.A., a company incorporated under the
-----
laws of Luxembourg.
aa. Wholly-Owned Subsidiary shall mean: any entity of which all of the
-----------------------
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions (other than directors' qualifying shares or the
equivalent) are at the time directly or indirectly owned by a company.
An entity shall be considered a Wholly-Owned Subsidiary of a company
notwithstanding the transfer of an equity interest in such entity to a
nominee if such nominee has agreed in writing that (x) such nominee will
vote its equity
<PAGE>
- 5 -
Draft March 17, 2000
interest in the entity in accordance with the instructions of the company
that transferred the interest to the nominee and (y) it is holding the
equity interest in the entity solely for the benefit of the company that
transferred the interest to the nominee, provided that such nominee does
not hold ownership of more than one percent of the shares in the entity.
NAME AND SEAT
ARTICLE 2.
1. The name of the Company is: Trader.com N.V.
2. Its registered seat is in Amsterdam.
3. The Company may have branch offices and branch establishments elsewhere, both
at home and abroad.
OBJECTS
ARTICLE 3.
The objects of the Company are:
- - to participate in, to finance, to collaborate with, to conduct the management
of companies and other enterprises and provide advice and other services,
especially those businesses involved in (i) the publication, printing and
distribution, via print and electronic media, of branded classified and
related display advertising information or (ii) the publication of free
distribution newspapers;
- - to acquire, use and/or assign industrial and intellectual property rights and
real property;
- - to invest funds;
- - to provide security for the debts of legal persons or of other companies with
which the company is affiliated in a group;
- - to undertake all that which is connected to the foregoing or in furtherance
thereof,
<PAGE>
- 6 -
Draft March 17, 2000
all in the widest sense of the words.
CAPITAL AND SHARES
ARTICLE 4.
1. The authorized capital amounts to five hundred seventeen million fifty-two
thousand four hundred thirty-six Euro (EURO 517,052,436).
2. It is divided into two billion six hundred twelve million three hundred
seventy-seven thousand seven hundred twenty-five (2,612,377,725) ordinary
class A shares (the "A shares"), each with a nominal value of sixteen
Eurocents (EURO 0.16) and fifty-one million six hundred thousand
(51,600,000) ordinary class B shares, convertible into A shares and ordinary
class C shares (the "B shares"), each with a nominal value of one Euro and
ninety-two Eurocents (EURO 1.92).
If, pursuant to Article 9, Article 11 paragraph 2, 3, 4 and 6 or Article 13
paragraph 1 hereof, B shares are converted into A shares and ordinary class
C shares (the "C shares"), the number of B shares in the authorized capital
will be decreased in an amount equal to the number of B shares that are
converted and the number of authorized A shares and C shares will be
increased in the following proportion: for each B share one A share and
eleven C shares.
Each C share shall have a nominal value of sixteen Eurocents (EURO 0.16).
3. Where these Articles of Association refer to shares and shareholders, these
shall be understood to refer to the aforementioned classes and holders
thereof, unless the contrary is indicated.
4. The B shares and C shares are registered shares and are numbered
consecutively. Share certificates therefor shall not be issued.
The A shares shall be registered shares or bearer shares, at the choice of
the shareholder.
5. If a share belongs to more than one Person, the collectively entitled
parties may only have themselves represented vis-a-vis the Company by one
Person.
<PAGE>
- 7 -
Draft March 17, 2000
SHARE CERTIFICATES
ARTICLE 5.
1. Share certificates for bearer A shares shall be available in the form of a
main part with a simplified dividend sheet only.
The dividend sheet of a bearer share certificate shall be issued by the
Company only to a depositary to be designated by the shareholder.
The designated depositary shall have been admitted as such by the Board of
Management and have given an undertaking to the Company (a) not to
surrender the dividend sheets except to other depositaries admitted by the
Board of Management or to the Company and (b) to arrange for the custody of
the dividend sheets to be administered by an institution authorized to that
effect by the Board of Management.
2. Bearer share certificates shall be available in denominations of one share,
ten shares and one hundred shares, and further in denominations of such
higher numbers of shares as the Board of Management may determine.
3. To the extent the Company is listed on one or more Stock Exchanges
registered A shares shall be available:
- in the form of an entry in the shareholders register without issue of a
share certificate; shares of this type are referred to in these Articles
of Association as type I registered A shares;
- and - should the Board of Management so decide - also in the form of an
entry in the shareholders register with issue of a certificate, which
certificate shall consist of a main part without dividend coupon;
shares of this type and share certificates relating thereto are referred to
in these Articles as type II registered A shares and type II A share
certificates.
4. Type II A share certificates shall be available in such denominations as
the Board
<PAGE>
- 8 -
Draft March 17, 2000
of Management shall determine.
5. All share certificates shall be signed by or on behalf of two members of
the Board of Management; the signatures may be effected by printed
facsimile.
Furthermore, type II A share certificates shall, and all other share
certificates may, be countersigned by one or more persons designated by the
Board of Management for that purpose.
6. All share certificates shall be identified by numbers and/or letters.
7. Subject to the approval of the Supervisory Board, the Board of Management
can determine that for the trade at foreign exchanges share certificates
shall be issued complying with the requirements set by said foreign
exchange(s) and not provided with any dividend sheet.
8. The expression "share certificate" as used in these Articles shall include
a share certificate in respect of more than one share.
DUPLICATES
ARTICLE 6.
1. Upon written request from a shareholder, missing or damaged share
certificates, or parts thereof, may be replaced by new certificates or by
duplicates bearing the same numbers and/or letters, provided the applicant
proves his title and, in so far as applicable, his loss to the satisfaction
of the Board of Management, and further subject to such conditions as the
Board of Management may deem fit.
2. In appropriate cases, at its own discretion, the Board of Management may
stipulate that the identifying numbers and/or letters of missing documents
be published three times, at intervals of at least one month, in at least
three newspapers to be indicated by the Board of Management announcing the
application made;
in such a case new certificates or duplicates may not be issued until six
months
<PAGE>
- 9 -
Draft March 17, 2000
have expired since the last publication, always provided that the
original documents have not been produced to the Board of Management before
that time.
3. The issue of new certificates or duplicates shall render the original
document invalid.
4. The issue of new certificates or duplicates for bearer shares may in
appropriate cases, at the discretion of the Board of Management, be published
in newspapers to be indicated by the Board of Management.
SHAREHOLDERS REGISTER
ARTICLE 7.
1. Without prejudice to the provisions of the law in respect of registered
shares, a register shall be kept by or on behalf of the Company, which
register shall be regularly updated and, at the discretion of the Board of
Management, may, in whole or in part, be kept in more than one copy and at
more than one place.
If the listing of the shares of the Company on a Stock Exchange or a
regulated over the counter market in a country or countries other than the
Netherlands so requires, part or parts of the shareholders register may be
kept in such country or countries.
2. Each shareholder's name, his address and such further data as the Board of
Management deems desirable, whether at the request of a shareholder or not,
shall be entered in the register.
3. The form and the contents of the shareholders register shall be determined by
the Board of Management with due regard to the provisions of paragraphs 1 and
2 of this Article.
The Board of Management may determine that the records shall vary as to their
form and contents according to whether they relate to type I registered A
shares or to type II registered A shares.
4. Upon request a shareholder shall be given free of charge (without regard to
Article
<PAGE>
- 10 -
Draft March 17, 2000
10 paragraph 6) a declaration of what is stated in the register with regard
to the shares registered in his name, which declaration may be signed by one
of the specially authorized persons to be appointed by the Board of
Management for this purpose.
5. The provisions of the last four paragraphs shall equally apply to rights of
usufruct or pledge on one or more registered shares, with the proviso that
the other data required by law must be entered in the shareholders register.
CONVERSION OF A SHARES
ARTICLE 8.
1. Subject to the provisions of Article 5, the holder of a bearer share
certificate may, after lodging the share certificates with the Company, upon
his request and written notice to the Company and at his option, either:
- have one or more type I registered A shares entered in the shareholders
register for the same nominal amount; or
- have one or more type II registered A shares entered in the shareholders
register for the same nominal amount and have issued to him one or more
type II A share certificates.
A shareholder who requests that type I registered A shares are registered in
his name may require that such shares are also registered in his name in a
register held outside of the Netherlands as provided in Article 7
paragraph 1.
2. Subject to the provisions of Article 5, the holder of type I registered A
shares registered in his name may, upon his request and at his option,
either:
- have one or more type II registered A shares entered in the shareholders
register for the same nominal amount and have issued to him one or more
type II A shares certificates, or
- have issued to him, one or more bearer share certificates for the same
nominal amount.
<PAGE>
- 11 -
Draft March 17, 2000
3. Subject to the provisions of Article 5, the holder of type II registered A
shares registered in his name may, after lodging the type II A share
certificates with the Company, upon his request and at his option, either:
- have one or more type I registered A shares entered in the shareholders
register for the same nominal amount; or
- have issued to him one or more bearer share certificates for the same
nominal amount.
A shareholder who requests that type I registered A shares are registered in
his name may require that such shares are also registered in his name in a
register held outside of the Netherlands as provided in Article 7 paragraph
1.
4. A request as mentioned in this Article shall, if the Board of Management so
requires, be made on a form obtainable from the Company free of charge, which
shall be signed by the applicant.
CONVERSION OF B SHARES
ARTICLE 9.
Upon the request of a holder of B shares, each B share shall be converted free
of charge (without regard to Article 10 paragraph 6) into one A share and
eleven C shares, provided that the holder of C shares acquired upon such
conversion, shall be obligated to transfer his C shares without delay to the
Company for no consideration.
TRANSFER OF REGISTERED SHARES
ARTICLE 10.
1. The transfer of a registered share shall be effected either by service upon
the Company of the instrument of transfer or by written acknowledgement of
the transfer by the Company.
2. Where a transfer of a type II registered A share is effected by service in
writing of an instrument of transfer on the Company, the Company shall, at
the discretion of
<PAGE>
- 12 -
Draft March 17, 2000
the Board of Management, either endorse the transfer on the share certificate
or cancel the share certificate and issue to the transferee one or more new
share certificates registered in his name in the same nominal amount.
3. The Company's written acknowledgement of a transfer of a type II registered A
share shall, at the discretion of the Board of Management, be effected either
by endorsement of the transfer on the share certificates or by the issue to
the transferee of one or more new share certificates registered in his name
in the same nominal amount.
4. The provisions of the foregoing paragraphs of this Article shall equally
apply to the allotment of registered shares in the event of a judicial
partition of any community of property or interests, the transfer of a
registered A share as a consequence of a judgement execution and the creation
of limited rights in rem on a registered share.
5. The submission of requests and lodging of documents referred to in Articles 5
to 10 inclusive shall be made at an address to be indicated by the Board of
Management.
Different addresses may be indicated for the different classes and types of
shares and share certificates among which in any case an address in
Amsterdam.
6. The Company is authorized to charge amounts to be determined by the Board of
Management not exceeding cost price to those Persons who request any services
to be carried out by virtue of Articles 5 to 10 inclusive, provided that a
number of shares, which number shall be determined by the Board of
Management, will be combined without cost in one share certificate, which
share certificate at request of the shareholder may again without cost, be
divided in simple share certificates or in share certificates which represent
a different number of shares, which number shall be determined by the Board
of Management.
RESTRICTION ON THE TRANSFER OF B AND C SHARES
<PAGE>
- 13 -
Draft March 17, 2000
ARTICLE 11.
1. To the extent the B shares are held by any member of the CGIP Group, such
holder of B shares may upon at least ten (10) business days prior written
notice to the Company and Floscule freely Transfer any or all of its B shares
to (a) any other member of the CGIP Group, (b) if CGIP is absorbed by Marine
Wendel, Marine Wendel and any Wholly-Owned Subsidiary of Marine Wendel, and
(c) if the members of the Floscule Group together hold at the time of such
Transfer a majority of the B shares, to any member of the Floscule Group, in
each such case without such Transfer resulting in conversion of such B
shares.
To the extent the B shares are held by any member of the Floscule Group, such
holder of B shares may upon at least ten (10) business days prior written
notice to the Company and CGIP freely Transfer any or all of its B shares to
(a) any member of the Floscule Group, and (b) if the members of the CGIP
Group together hold at the time of such Transfer a majority of the B shares,
to any member of the CGIP Group, in each such case without such Transfer
resulting in conversion of such B shares.
2. Any other Transfer can only be effected upon at least ten (10) business days
prior written notice to the Company and to the shareholder group of B shares
that is not transferring B shares, sent to the addresses as recorded in the
shareholders register referred to in Article 7.
Each B share so Transferred shall automatically be converted into one A share
and eleven C shares, provided that, the holder of such C shares shall be
obligated to transfer his C shares without delay to the Company for no
consideration.
3. The second sentence of paragraph 2 of this Article shall not apply to the
Transfer of B shares to a single purchaser or a related group of purchasers
(the "Third Party Acquirer"), in a single transaction or series of related
transactions (the "Relevant Transaction") that are consummated on the same
Day, if (i) the B
<PAGE>
- 14 -
Draft March 17, 2000
shares Transferred to the Third Party Acquirer are, together with all other B
shares the Third Party Acquirer owns, or acquires on the same Day, directly
or indirectly, entitled to more than fifty percent (50%) of the votes that
may be cast at a General Meeting at which all shareholders are present or
represented, and (ii) the Third Party Acquirer acquires on the same Day on
which the Relevant Transaction is consummated all A shares and B shares
tendered by the shareholders of the Company to the Third Party Acquirer
pursuant to an offer made by the Third Party Acquirer to all of the
shareholders of the Company to acquire from such shareholders any and all A
shares and B shares held by such shareholders, for a per share consideration
equal to the highest per share consideration paid by the Third Party Acquirer
for B shares in the Relevant Transaction, which offer is made in substantial
compliance with all applicable laws, regulations and Stock Exchange rules in
each jurisdiction where the A shares are listed on any Stock Exchange.
4. If any Person other than a member of the Floscule Group becomes a legal or
beneficial owner of any shares or other interests in a member of the Floscule
Group that is a company, partnership or other entity, and that holds,
directly or indirectly through one or more intermediaries, B shares, then all
B shares held by such member of the Floscule Group shall automatically be
converted into one A share and eleven C shares, provided that, the holder of
such C shares shall be obligated to transfer his C shares without delay to
the Company for no consideration.
The provisions of the preceding sentence shall not apply to any acquisition
of legal ownership of shares or other interests in a member of the Floscule
Group by a nominee if (i) the transferor gives the Company and CGIP at least
ten (10) business days prior written notice of such Transfer and (ii) the
nominee has agreed in writing with one or more members of the Floscule Group
that (x) such
<PAGE>
- 15 -
Draft March 17, 2000
nominee will vote its shares or other interests in the relevant member of the
Floscule Group in accordance with the instructions of one or more members of
the Floscule Group and (y) it is holding the shares or other interests in the
relevant members of the Floscule Group solely for the benefit of the Floscule
Group, provided that such nominee does not hold the ownership of more than
one percent of the shares in the relevant member of the Floscule Group.
5. The provisions of the first sentence of paragraph 4 of this Article shall
also not apply to the Transfer of all shares or interests in one or more
members of the Floscule Group to a single purchaser or a series of related
purchasers (the "Floscule Acquirer"), in one transaction or a series of
related transactions (the "Relevant Floscule Transactions") that are
consummated on the same Day, if (i) the transferor gives the Company at least
ten (10) business days prior written notice of such Transfer, (ii) the
Floscule Acquirer owns or acquires, in each case directly or indirectly, such
number of B shares that together with the B shares indirectly acquired
pursuant to the Relevant Floscule Transaction are entitled to more than fifty
percent (50%) of the votes that may be cast at a General Meeting at which all
shareholders are present or represented, and (iii) the Floscule Acquirer
acquires on the same Day the Relevant Floscule Transaction is consummated all
A shares and B shares tendered by the shareholders of the Company to the
Floscule Acquirer pursuant to an offer made by the Floscule Acquirer to all
of the shareholders of the Company to acquire from such shareholders any and
all A shares and B shares held by such shareholders, for a per share
consideration equal to the highest implied per B share consideration paid by
the Floscule Acquirer for B shares in the Relevant Floscule Transaction,
which offer is made in substantial compliance with all applicable laws,
regulations and Stock Exchange rules in each jurisdiction where the A shares
are listed on any Stock Exchange.
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6. If any company, partnership or other entity that is a member of the CGIP
Group and is a holder of B shares ceases to be a member of the CGIP Group by
reason of any change in the beneficial ownership of the shares or other
interests in the relevant company, partnership or other entity, then each B
share held by such company, partnership or other entity shall automatically
be converted into one A share and eleven C shares, provided that, the holder
of such C shares shall be obligated to transfer his C shares without delay to
the Company for no consideration.
The provisions of the preceding sentence shall not apply to any acquisition
of legal ownership of shares or other interests in a member of the CGIP Group
by a nominee if (i) the transferor gives the Company at least ten (10)
business days prior written notice of such Transfer and (ii) the nominee has
agreed in writing with one or more members of the CGIP Group that (x) such
nominee will vote its shares or other interests in the relevant member of the
CGIP Group in accordance with the instructions of one or more members of the
CGIP Group and (y) it is holding the shares or other interests in the
relevant members of the CGIP Group solely for the benefit of one or more
members of the CGIP Group.
7. The Company may from time to time require any holder of B shares to provide
the Company with information or confirmatory statements in a form requested
by the Board of Management, concerning (i) the beneficial ownership of the B
shares registered in the name of such holder of B shares, (ii) in the case of
any registered holder of B shares which is a company, the direct and indirect
beneficial ownership of shares in such company and (iii) in the case of any
registered holder of B shares which is a partnership, trust or other entity,
the direct or indirect beneficial ownership of the interests in such
partnership, trust or entity.
8. C shares may not be transferred by any person, other than to the Company
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without consideration, except with the prior written consent of all of the
shareholders of the Company.
ISSUE OF SHARES
ARTICLE 12.
1. The General Meeting or the Board of Management, if designated thereto by the
General Meeting, shall resolve on further issues of shares; if the Board of
Management has been designated thereto, the General Meeting may not, as long
as such designation is valid, resolve on further issues.
A resolution of the Board of Management requires the approval of the
Supervisory Board.
2. The General Meeting or, as the case may be, the Board of Management shall
determine the price and further conditions of issue, with due observance of
the other relevant provisions in these Articles of Association.
3. If the Board of Management is designated as authorized to resolve on the
further issue of shares, it shall be determined by the General Meeting when
such designation is made, how many and what class of shares may be issued.
When such designation is made, the duration of the designation, which shall
not exceed five years, shall also be stipulated.
The designation can be renewed each time for a period of no more than five
years.
Unless otherwise stipulated when the designation is made, said designation
cannot be withdrawn.
4. For the validity of a resolution of the General Meeting pertaining to an
issue or to the designation of the Board of Management, as referred to above,
a prior or simultaneous positive resolution is required from each group of
holders of shares of the same class whose rights are affected by the issue.
5. Within eight days after a resolution of the General Meeting on an issue or
on a
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designation of the Board of Management as referred to above, the Board of
Management shall submit a full text thereof at the office of the Trade
Register.
The Board of Management shall notify the office of the Trade Register of each
issue of shares within eight days thereafter, stating the number and class
thereof.
6. The provisions in paragraphs 1 to 5, inclusive, of this Article shall apply
accordingly to the granting of rights to take shares but shall not apply to
the issue of shares to a Person who is exercising a previously acquired right
to subscribe for shares.
7. Shares shall not be issued below par value, without prejudice to the
provisions in article 80, paragraph 2 of Book 2 of the Dutch Civil Code.
On the issue of an A share, at least the nominal amount shall be paid up
thereon, as well as, in the event the share is taken for a higher amount, the
difference between such amounts.
8. Payment shall be made in cash insofar as another form of payment has not been
agreed upon, without prejudice to the provisions in article 80b of Book 2 of
the Dutch Civil Code.
Payment may only be made in foreign currency with the permission of the
Company and, furthermore, with due observance of the provisions in article
80a paragraph 3 of Book 2 of the Dutch Civil Code.
9. To the extent B shares are issued to a Person not being a holder of B shares,
each B share so issued shall automatically be converted into one A share and
eleven C shares and the holder of such C share shall be obligated to transfer
his C shares without delay to the Company for no consideration.
10. The Board of Management is authorized to effect legal transactions as
referred to in article 94, paragraph 1 of Book 2 of the Dutch Civil Code
without prior approval of the General Meeting, subject however to the
approval of the Supervisory Board.
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PRE-EMPTIVE RIGHT
ARTICLE 13.
1. Subject to the provisions in the third sentence of article 96a, paragraph 1
of Book 2 of the Dutch Civil Code, each holder of A shares and B shares shall
have a pre-emptive right to shares to be issued in proportion to the
aggregate nominal amount of his shares, provided that the holders of shares
of the class to be issued shall have priority in exercising the pre-emptive
right.
2. Holders of C shares shall not have pre-emptive rights.
3. When shares are issued, there shall be no pre-emptive rights in respect of
shares to be issued against any payment other than in cash.
4. With due observance of this Article, the General Meeting or, as the case may
be, the Board of Management shall resolve, when the resolution in respect of
issue is passed, on the manner and time-frame within which the pre-emptive
right may be exercised.
5. The Board of Management shall announce an issue with pre-emptive right and
the time-frame within which such may be exercised in the manner as provided
in Article 28.
6. The pre-emptive rights may be exercised for a period of at least two weeks
after the day of announcement.
7. The pre-emptive right may be limited or excluded by resolution of the
General Meeting.
In the proposal thereto, the reasons for the proposal and the choice of the
intended price of issue shall be explained in writing.
The pre-emptive right may, subject to approval of the Supervisory Board, also
be limited or excluded by the Board of Management, if the Board of Management
has been designated by resolution of the General Meeting for a specific
period of no more than five years as authorized to limit or exclude the pre-
emptive right;
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Draft March 17, 2000
such designation is only possible if the Board of Management has also been
designated previously or simultaneously as referred to in Article 12,
paragraph 1.
The designation can be renewed each time for a period not in excess of five
years; the authority granted thereby may only be exercised together with the
issue of shares to which the Board of Management has competently resolved.
Unless otherwise stipulated with the designation, it may not be withdrawn.
8. A resolution of the General Meeting on the limitation or exclusion of the
pre-emptive right or on the designation as referred to in the previous
paragraph shall require a majority of at least two-thirds of the votes cast,
if less than half the issued capital is present or represented at the
meeting.
The Board of Management shall deposit a full text of such resolution at the
office of the Trade Register.
9. In case rights to subscribe for A shares and B shares are to be granted,
holders of A shares and B shares shall have a pre-emptive right; the
provisions stipulated above in this Article shall apply accordingly.
Shareholders shall not have a pre-emptive right on shares to be issued to a
Person exercising a previously acquired right to subscribe for shares.
OWN SHARES
ARTICLE 14.
1. Upon any issue of shares the Company may not subscribe for shares in its own
capital.
2. The Company may only acquire pursuant to a proposal of the Board of
Management and subject to approval of the Supervisory Board fully paid-up
shares in its own capital for no consideration or under universal title or
if:
a. the distributable reserves are at least equal to the price of acquisition;
b. the nominal amount of the shares in its capital to be acquired, already
held or held in pledge by the Company or a Subsidiary does not exceed one-
tenth of
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Draft March 17, 2000
the issued capital;
c. the authorization for such acquisition has been granted by the General
Meeting. Such authorization shall be valid for no more than eighteen
months.
The General Meeting shall determine in its authorization the number of
shares which may be acquired, the manner in which they may be acquired and
the maximum and minimum to be observed in respect of the price of
acquisition.
For the validity of such acquisition shall be decisive the extent of the
Company's shareholders' equity according to the last-adopted balance sheet,
minus the price for the acquisition of the shares in the capital of the
Company and distributions from profits or reserves to others, which the
Company and its Subsidiaries became indebted for after the date of the
balance sheet.
If a financial year has expired for a period in excess of six months without
the Annual Accounts having been adopted, then acquisition other than under
universal title in accordance with this paragraph 2 shall not be allowed.
The authorization referred to here shall not be required, insofar as the
Company acquires own shares, listed on an official price list of a Stock
Exchange, in order to transfer such by virtue of an arrangement applicable to
employees of the Company or of a Group Company to such employees.
3. Neither the Company nor any of its Subsidiaries may extend loans, give
security, grant a price guarantee, guarantee in any other way or, severally
or in any other way, bind itself in addition to or for other Persons with a
view to subscribing for or acquiring shares in the Company.
This prohibition shall, however, not apply if shares or depositary receipts
are subscribed or acquired by or for employees of the Company or a Group
Company.
4. Alienation of shares held by the Company in its own capital shall only be
effected pursuant to a resolution of the Board of Management, subject to the
approval of the Supervisory Board.
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With the resolution in respect of alienation, the conditions of such
alienation shall also be determined.
5. No votes can be cast at a General Meeting on a share owned by the Company or
a Subsidiary thereof.
Usufructuaries and pledgees of shares which are owned by the Company and its
Subsidiaries, are not, however, excluded from exercising their voting right
if the right of usufruct or the right of pledge was created before the share
was held by the Company or a Subsidiary.
The Company or a Subsidiary cannot cast votes on a share in respect of which
it has a right of usufruct or a right of pledge.
6. In determining to which extent shareholders cast votes, are present or
represented, or to which extent the share capital is present or is
represented, shares in respect of which the law provides that no votes may be
cast shall not be taken into account.
7. A Subsidiary may not for its own account subscribe for shares in the capital
of the Company, nor have such done.
The acquisition of such shares may only be effected directly or indirectly by
Subsidiaries for their own account under specific title insofar as the
Company may, pursuant to the provisions laid down in the preceding paragraphs
of this Article, acquire shares in its own capital.
A Subsidiary may not,
a. after it has become a Subsidiary; or
b. after the company of which it is a Subsidiary has been converted into a
company with limited liability ("naamloze vennootschap"); or
c. after it has as a Subsidiary acquired shares in the capital of the Company
for no consideration or under universal title,
for a period in excess of three years hold or cause to be held for its own
account shares in excess of one-tenth of the issued capital together with the
Company and
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Draft March 17, 2000
its other Subsidiaries.
CAPITAL REDUCTION
ARTICLE 15.
1. The General Meeting may, at the proposal of the Board of Management subject
to the approval of the Supervisory Board, resolve on reduction of the issued
capital by cancelling shares or by reducing the nominal amount of shares by
means of an amendment of the Articles of Association.
In this resolution, the shares to which the resolution pertains shall be
indicated and the execution of the resolution shall be laid down.
2. A resolution to cancel shares can relate only to shares which are held by the
Company or to all outstanding C shares.
3. Reduction of the amount of shares without repayment of capital and without
release from the obligation to pay calls shall be effected in proportion to
all the shares of one and the same class.
4. Partial repayment of capital on shares or release from the obligation to pay
calls shall only be possible in proportion to all the shares or to all the C
shares exclusively.
5. The pro-rata requirements mentioned in paragraphs 3 and 4 of this Article may
be deviated from with the approval of all the shareholders concerned.
6. A resolution in respect of capital reduction shall require a majority of at
least two-thirds of the votes cast, if less than half the issued capital is
represented at the meeting.
7. The convocation of a meeting in which a resolution is to be passed as
referred to in this Article shall state the purpose of the capital reduction
and the manner of execution.
8. The Company is obliged to publish the resolutions referred to in this Article
in conformity with the provisions of the law.
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A resolution to reduce the issued capital shall not come into force as long
as creditors of the Company may oppose the same in conformity with the
relevant provisions of the law.
RIGHT OF USUFRUCT, RIGHT OF PLEDGE
ARTICLE 16.
1. With due observance of Article 11 in the case of a right of usufruct on B
shares, a right of usufruct or pledge may be created on a share.
In that event, the voting right shall accrue to the shareholder or to the
usufructuary, if this has been provided for at the time of creation of the
right of usufruct.
The right to vote cannot be assigned to a pledgee.
2. The shareholder who has no voting right and the usufructuary who does have a
voting right shall have the rights granted by law to holders of depositary
receipts for shares issued with the cooperation of a company.
3. The rights referred to in paragraph 2 do not accrue to the pledgee nor to the
usufructuary who has no voting rights.
4. A right of pledge may also be created without acknowledgement by or
notification to the Company.
In that event article 239 of Book 3 of the Dutch Civil Code shall apply
accordingly, in which case acknowledgement by or notification of the Company
shall replace the notification referred to in paragraph 3 of that article.
MANAGEMENT
ARTICLE 17.
1. The Company shall be managed by a Board of Management, consisting of two or
more members.
Only natural persons may be a member of the Board of Management.
The Supervisory Board shall determine the number of the members of the Board
<PAGE>
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of Management.
The members of the Board of Management shall be appointed by the General
Meeting.
3. The General Meeting may suspend and dismiss the members of the Board of
Management.
The Supervisory Board may also suspend the members of the Board of
Management.
4. Even after having been extended, a suspension shall not last for more than
three months.
If no decision has been reached after that time on the lifting of the
suspension or the removal from office, the suspension shall cease to exist.
5. The Supervisory Board shall determine the remuneration and other conditions
of employment of the members of the Board of Management.
6. The members of the Board of Management shall mutually allocate their duties,
such subject to the approval of the Supervisory Board.
7. The Board of Management shall meet whenever a member of the Board of
Management shall so require.
It shall pass resolutions by an absolute majority of votes cast by all
Managing Directors in office.
Blank votes shall be considered null and void.
The Board of Management may establish rules pertaining to the decision-making
process of the Board of Management.
Such rules shall require the approval of the Supervisory Board.
8. The Board of Management is authorized to appoint officials who may represent
the Company and to grant to such persons any title and powers as it seems
appropriate.
9. Board of Management resolutions relating to any of the following matters
shall be subject to the approval of the Supervisory Board without prejudice
to other
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provisions of the present Articles of Association:
a. the issuance, repurchase or redemption of shares in the capital of the
Company, and the exclusion of pre-emptive rights in connection with any
issuance;
b. the application for listing or withdrawal of listing of any of the shares
in the capital of the Company;
c. the proposal of a legal merger or split;
d. the proposal of an amendment to the Articles of Association;
e. all proposals for resolutions to be adopted by the General Meeting;
f. the application for bankruptcy or for a moratorium of payments;
g. any matters as shall be determined and clearly defined by the Supervisory
Board and notified to the Board of Management in writing.
Failure to obtain the approval defined in the present paragraph shall not
affect the authority of the Board of Management or of the members of the Board
of Management to represent the Company.
REPRESENTATION
ARTICLE 18.
1. The Company shall be represented by the Board of Management except to the
extent otherwise provided by law.
In addition, the authority to represent the Company is vested in two members
of the Board of Management acting jointly.
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2. In all events of the Company having a conflict of interest with one or more
members of the Board of Management, the Company shall continue to be
represented in the manner described in paragraph 1 above.
In all events in which the Company has a conflict of interest with a member
of the Board of Management in his private capacity, the board resolution
regarding that relevant legal act requires the prior approval of the
Supervisory Board.
Failure to obtain the approval defined in the present paragraph shall not
affect the authority of the Board of Management or of the members of the
Board of Management to represent the Company.
3. If a member of the Board of Management is absent or prevented from acting,
the remaining members of the Board of Management or the remaining member of
the Board of Management shall be charged with the management of the Company.
If all the members of the Board of Management are absent or prevented from
acting, the person to be designated for that purpose by the Supervisory
Board shall be charged with the management of the Company until the
situation of absence or other prevention has ceased to exist in respect of
at least one member of the Board of Management.
SUPERVISORY BOARD
ARTICLE 19.
1. The company shall have a Supervisory Board consisting of five or more
natural persons.
The General Meeting shall determine the number of the members of the
Supervisory Board.
2. The duties of the Supervisory Board shall be the supervision of the conduct
of management by the Company's Board of Management and of the general course
of affairs of the Company and of any affiliated enterprise.
The Supervisory Board shall assist the Board of Management by rendering
advice.
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In performing their duties, the members of the Supervisory Board shall be
guided by the interests of the company and of any enterprise affiliated
therewith.
3. The Board of Management shall provide the Supervisory Board the necessary
information in a timely manner.
4. Members of the Supervisory Board shall be appointed by the General Meeting
from a nomination by the Supervisory Board.
These nominations are not binding on the General Meeting.
5. A member of the Supervisory Board shall resign at the close of the General
Meeting at which the annual accounts are considered, held in the year after
the year of his last appointment.
6. Subject to the statutory age limit, resigning members of the Supervisory
Board shall be immediately eligible for re-election.
7. At least two members of the Supervisory Board shall at all times be Non-
Affiliated Supervisory Directors.
8. Members of the Supervisory Board may be suspended or dismissed by the
General Meeting at any time.
A suspension may last no longer than three months in total, even after
having been extended one or more times.
In case no decision on a termination of the suspension or dismissal has been
made following such time, the suspension ends.
9. The Supervisory Board shall at any time have access to all buildings and
premises in use by the Company, and shall be entitled to inspect all of the
Company's books and records and to examine all of the Company's assets.
The Supervisory Board may delegate this authority to one or more of its
members, or an expert.
10. The Supervisory Board shall appoint a chairman from among its members.
11. The Supervisory Board shall hold meetings as often as the chairman or any
two
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Draft March 17, 2000
members shall desire, as often as the Board of Management shall request, or
as often as necessary in pursuance of the provisions of the present Articles
of Association.
12. The Supervisory Board shall appoint a review committee (the "Review
Committee") from among its members, whose purpose shall be to examine, on
behalf of the Supervisory Board, any and all matters presented by the Board
of Management to the Supervisory Board for its approval, action or
consideration.
The Supervisory Board shall appoint an audit committee (the "Audit
Committee") from among its members, whose purpose shall be to make
recommendations, on behalf of the Supervisory Board, to the Board of
Management regarding the selection of independent auditors, reviewing the
results and scope of the audit and other services provided by such
independent accountants.
In addition the Supervisory Board may institute such other committees as it
deems necessary, to which powers can be delegated by the Supervisory Board
by virtue of regulations, without prejudice to the statutory duties of the
Supervisory Board.
13. The Supervisory Board shall adopt resolutions by an absolute majority of the
votes cast at a meeting where a majority of the Supervisory Board is present
or represented, except for resolutions with regard to:
- any transaction in which any member of the Supervisory Board or the Board
of Management has a personal interest, including compensation and other
terms and conditions of employment of any member of the Management Board;
- granting approval to any proposal by the Board of Management to the
amendment of the Articles of Association except for an amendment of the
Articles of Association limited to the increase of the authorized capital
of the Company,
which resolutions shall require more than seventy-five percent (75%) of the
votes
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cast at a meeting where a majority of the Supervisory Board is present or
represented.
14. The Supervisory Board may establish rules pertaining to the decision-making
process of the Supervisory Board.
15. Each member of the Board shall be entitled to cast one vote.
16. A member of the Supervisory Board may be represented at a meeting of the
Supervisory Board only by another member of the Supervisory Board.
17. The Supervisory Board may also adopt valid resolutions without convening a
meeting, provided that all of its members have been consulted and that none
has stated an objection to adopting resolutions in this manner.
18. If it is necessary to provide the shareholders or the Board of Management
with evidence of a resolution adopted by the Supervisory Board, the
signature of the chairman of that Board shall suffice.
INDEMNIFICATION, LIMITED LIABILITY
ARTICLE 20.
1. The Company shall indemnify any person who is or was a member of the Board
of Management or member of the Supervisory Board and 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 by the Company) by reason of the fact
that he is or was a member of the Board of Management or member of the
Supervisory Board or proxyholder (procuratiehouder), officer, employee or
----------------
agent of the Company, or is or was serving at the request of the Company as
a member of the Board of Management or member of the Supervisory Board or
proxyholder (procuratiehouder), officer, employee, trustee or agent of
----------------
another company, a partnership, joint venture, trust or other enterprise or
entity, including with respect to employee benefit plans maintained or
sponsored by the Company or
<PAGE>
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for the benefit of its or any of its group companies' employees or
consultants, (each an "Indemnitee"), against any and all liabilities
including 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 and any appeal therefrom 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 or outside of his mandate.
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, in and 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.
Notwithstanding anything to the contrary in this Article, the Company shall
not indemnify an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Management Board, subject to the
prior approval of the Supervisory Board.
2. The Company shall indemnify any person who is or was a member of the Board
of Management or the Supervisory Board and who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or proceeding by or in the right of the Company to procure a judgement in
its favor, by reason of the fact that he is or was a member of the Board of
Management or the Supervisory Board or was or is an Indemnitee against all
expenses (including attorneys' fees) and amounts paid in settlement actually
and reasonably incurred by him in connection with the defence or settlement
of such
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action, suit or proceeding and any appeal therefrom and shall from time to
time upon request promptly reimburse all expenses as incurred 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, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable 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 of 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.
3. To the extent that an Indemnitee has been successful on the merits or
otherwise in defense of any action, suits or proceeding, referred to in
paragraphs 1 and 2, or in defense of any claim, issue or matter therein, or
an appeal from any such action, he shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise, without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Company, (iii) a plea of guilty or nolo contendere by the
---- ----------
Indemnitee, (iv) an adjudication that the Indemnitee did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and (v) with respect to any criminal
proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his conduct was unlawful, the Indemnitee shall be considered for the
purpose hereof to have been wholly successful with respect thereto.
<PAGE>
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4. No indemnification pursuant to paragraph 1 and 2 of this Article shall be
made 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 of 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.
5. As a condition precedent to his right to be indemnified, the Indemnitee must
notify the Company in writing as soon as practicable of any action, suit,
proceeding or investigation involving him for which indemnity will or could
be sought. With respect to any action, suit, proceeding or investigation of
which the Company is so notified, the Company will be entitled to
participate therein at its own expense and/or to assume the defense thereof
at its own expense, with legal counsel reasonably acceptable to the
Indemnitee. After notice from the Company to the Indemnitee of its election
so to assume such defense, the Company shall not be liable to the Indemnitee
for any legal or other expenses subsequently incurred by the Indemnitee in
connection with such claim, other than as provided below in this paragraph
5. The Indemnitee shall have the right to employ his own counsel in
connection with such claim, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of the Indemnitee unless (i) the employment
of counsel by the Indemnitee has been authorized by the Company, (ii)
counsel to the Indemnitee shall have reasonably concluded that there may be
a conflict of interest or position on any significant issue
<PAGE>
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between the Company and the Indemnitee in the conduct of the defense of such
action or (iii) the Company shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and
expenses of counsel for the Indemnitee shall be at the expense of the
Company, except as otherwise expressly provided by this Article. The Company
shall not be entitled, without the consent of the Indemnitee, to assume the
defense of any claim brought by or in the right of the Company or as to
which counsel for the Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above.
6. Subject to the provisions of paragraph 7 below, in the event that the
Company does not assume the defense of any action, suit, proceeding or
investigation of which the Company receives notice, expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit or proceeding or investigation or any appeal therefrom shall 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 an
Indemnitee to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Company as authorized in this
Article.
Such expenses incurred by Indemnitees may be so advanced upon such terms and
conditions as the Board of Management decides, subject to the prior approval
of the Supervisory Board.
7. In order to obtain indemnification or advancement of expenses pursuant to
paragraph 1, 2, 3, 4 or 6 of this Article, the Indemnitee shall submit to
the Company a written request, including in such request such documentation
and information as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification or advancement of expenses. Any such
indemnification or
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advancement of expenses shall be made promptly, and in any event within 60
days after receipt by the Company of the written request of the Indemnitee,
unless with respect to requests under paragraph 1, 2 or 6 the Company
determines within such 60-day period that the Indemnitee did not meet the
applicable standard of conduct set forth in paragraph 1 or 2, as the case
may be. Such determination shall be made in each instance by (a) a majority
vote of the members of the disinterested members of the Board of Management,
subject to the prior approval of the Supervisory Board, (b) if there are no
such disinterested members, or if such disinterested members so direct, by
independent legal counsel (who may be regular legal counsel to the Company)
in a written opinion, or (c) a court of competent jurisdiction.
8. The right to indemnification or advances as granted by this Article may be
requested by the Indemnitee in any court of competent jurisdiction if the
Company denies such request, in whole or in part, or if no disposition
thereof is made within the 60-day period referred to above in paragraph 7.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the Company.
9. The indemnification and advancement of expenses provided for by this Article
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the laws of
the Netherlands as from time to time amended or under any by-laws,
agreement, resolution of the General Meeting or of the disinterested members
of the Board of Management or Supervisory 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 an Indemnitee who has ceased
to be a member of the Board of Management or member of the Supervisory
Board, or
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proxyholder (procuratiehouder), officer, employee, trustee or agent and
-----------------
shall also inure to the benefit of the heirs, executors, administrators and
the estate of the Indemnitee.
The Company may, to the extent authorized from time to time by the Board of
Management, subject to the prior approval of the Supervisory Board, grant
rights to indemnification and to the advancement of expenses to any Person
in addition to any Person who is or was a member of the Board of Management
or the Supervisory Board to the fullest extent of the provisions of this
Article 20 with respect to the indemnification and advancement of expenses
of such Indemnitees.
10. The Company may purchase and maintain insurance on behalf of any Indemnitee,
against any expense, liability or loss incurred by him in any such capacity,
or arising out of his status as such, whether or not the Company would have
the power to indemnify him against such liability under the provisions of
this Article.
11. 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 board of management or members of the supervisory board, or
proxyholders (procuratiehouder), officers, employees and agents, so that any
----------------
person who is or was a member of the supervisory board, member of the board
of management, or proxyholder (procuratiehouder), officer, employee or agent
----------------
of such constituent company, or is or was serving at the request of such
constituent company as a member of the supervisory board, member of the
managing board, or proxyholder (procuratiehouder), officer, employee,
----------------
trustee or agent of another company, a partnership, joint venture, trust or
other enterprise or entity, shall stand in the
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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.
12. No person shall be personally liable to the Company or its shareholders for
monetary damages for breach of duty as a member of the Board of Management
or member of the Supervisory Board; provided, however, that the foregoing
shall not eliminate or limit the liability of a member of the Board of
Management or Supervisory Board (1) for any gross negligence, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) for any transaction from which the member of
the Board of Management or member of the Supervisory Board derived an
improper personal benefit or (4) for personal liability which is imposed by
Dutch law, as from time to time amended.
13. If an Indemnitee is entitled under any provision of this Article to
indemnification by the Company for some or a portion of the expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with
any action, suit, proceeding or investigation and any appeal therefrom but
not, however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement to which
the Indemnitee is entitled.
14. No amendment, repeal or modification of this Article 20 shall adversely
affect any right or protection of any person entitled to indemnification or
advancement of expenses under this Article 20 prior to such amendment,
repeal or modification.
FINANCIAL YEAR, ANNUAL ACCOUNTS, ANNUAL REPORT AND PUBLICATION
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ARTICLE 21.
1. The financial year shall be equal to the calendar year.
2. Each year, within five months after the close of the financial year -subject
to extension of this period by the General Meeting on the grounds of
circumstances of an exceptional nature by at most six months - the Board of
Management shall draw up the Annual Accounts.
Within this period the Board of Management shall also submit the annual
report.
The Annual Accounts shall be signed by all the members of the Board of
Management and all the members of the Supervisory Board.
If the signature of one or more of them is missing, mention thereof shall be
made and the reason therefor stated.
3. The Board of Management shall submit the Annual Accounts to the General
Meeting.
4. From the day the Annual Meeting has been convened until the close of that
meeting, the documents referred to in paragraph 2 of this Article shall,
together with the information to be added pursuant to article 392 of Book 2
of the Dutch Civil Code, be deposited at the Company's offices and in
Amsterdam at the place to be mentioned in the convocation for inspection by
all shareholders and other parties with meeting rights and each of them may
obtain copies thereof at no cost.
5. The General Meeting shall adopt the Annual Accounts.
The adoption of the Annual Accounts shall discharge the members of the Board
of Management for their management and the members of the Supervisory Board
for their supervision, insofar as such management and such supervision is
apparent from the Annual Accounts.
6. The Annual Accounts may not be adopted by the General Meeting if they have
been unable to ascertain to their satisfaction the statement of the auditor
referred to in Article 22, paragraph 1, which must be attached to the Annual
Accounts,
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unless the other information included mentions a legal ground why the
statement is lacking.
7. The Company shall procure the publication of the documents and information
referred to in this Article, if and insofar as and in the manner as
prescribed in articles 394 et seq. of Book 2 of the Dutch Civil Code.
AUDITOR
ARTICLE 22.
1. The General Meeting shall give, without prejudice to any relevant statutory
provisions, an auditor ("registeraccountant") or another expert as referred
to in article 393 of Book 2 of the Dutch Civil Code or an organization in
which such experts are working together, the instruction to examine and
audit the Annual Accounts.
That expert shall report on his audit to the Board of Management and shall
lay down the result of his audit in a report, stating whether the Annual
Accounts give a true and fair view of the financial position of the Company.
2. If both the General Meeting and the Supervisory Board fail to appoint an
auditor then the Board of Management shall be competent to do so.
3. The General Meeting or the party who gave the instruction, shall at all
times be authorized to cancel the instruction mentioned in this Article. The
Supervisory Board may cancel an instruction by the Board of Management
additionally.
PROFITS
ARTICLE 23.
1. The Company may make distributions to the shareholders and to other persons
entitled to the profits only up to a sum not exceeding the amount of the
distributable reserves.
2. Profits shall be distributed after adoption of the Annual Accounts showing
that
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distribution is allowed.
3. Each year the profits shall be reserved, unless the General Meeting
determines otherwise.
4. Except as provided in paragraph 5, A and B shares shall be entitled to
dividends on a pari passu basis, without regard to the nominal value of the
A shares and the B shares.
5. No stock dividend may be declared or paid with respect to the A shares or
the B shares, unless (i) the same number of shares is simultaneously issued
as a stock dividend with respect to each outstanding A share and B share,
(ii) the dividend so declared and paid to holders of A shares is paid in the
form of A shares (iii) the dividend so declared and paid to holders of B
shares is paid in the form of B shares.
6. C shares shall only be entitled to dividends equal to the nominal value of
the C shares.
7. In calculating the profit appropriation, the shares held by the Company in
its own capital shall not count, unless a usufruct has been created on these
shares.
8. Insofar as profit is available in the Company, the Board of Management,
subject to the approval of the Supervisory Board, may resolve on payment of
an interim dividend on account of the expected dividend, with due observance
of paragraph 4 of this Article, provided always that the provisions laid
down in paragraph 1 of this Article have been satisfied, such to be shown by
an interim balance sheet as referred to in article 105 paragraph 4 of Book 2
of the Dutch Civil Code.
9. The Board of Management, subject to the approval of the Supervisory Board,
may resolve to make distributions to the holders of A shares and B shares
from one or more reserves which need not be maintained pursuant to the law or
to these Articles of Association, with due observance of paragraph 4 of this
Article.
The provisions of the paragraphs 1, 2, 4, 5, 8 and 10 apply accordingly.
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10. The resolutions to distribute dividends or interim dividends may entail that
dividends or interim dividends will be wholly or partly distributed not in
cash, but in the form of shares in the Company or in a Subsidiary.
11. The dividend or interim dividend shall be made payable on a day to be
determined by the Board of Management.
12. Dividends or interim dividends which have not been collected within five
years after they became payable shall be forfeited to the Company.
ANNUAL MEETING
ARTICLE 24.
The Annual Meeting shall be held within six months after the close of the
financial year, for the purpose of:
a. the discussion of the Annual Accounts and of the other information referred
to in article 392 of Book 2 of the Dutch Civil Code, except in case
extension has been granted for the preparation of the Annual Accounts
pursuant to Article 21 paragraph 2;
b. adoption of the Annual Accounts, unless an extension as referred to in
paragraph a. of this article has been granted;
c. delivery of the written report made by the Board of Management on the state
of the Company's affairs and the management conducted during the past
financial year, unless an extension as referred to in a. above has been
granted;
d. effecting all such things as furthermore prescribed by the law;
e. dealing with all such further items of business as stated in the convocation
of the meeting.
CONVOCATION
ARTICLE 25.
1. All convocations for the General Meeting and all announcements,
notifications
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and communications to shareholders and other parties with meeting rights
shall be effected by means of advertisements in a newspaper with nationwide
circulation, without prejudice to the relevant provisions of the law.
Convocations of holders of registered shares will be made by letter sent to
the address as recorded in the register referred to in Article 7.
2. The convocation shall be effected no later than on the thirtieth day before
the day of the meeting.
3. In the convocation the agenda shall be given or it shall be communicated
that shareholders and other parties with meeting rights may inspect the
agenda at the offices of the Company, without prejudice to the relevant
provisions of the law.
4. Insofar as all documents which must be available for inspection by
shareholders and other parties with meeting rights have not been included in
the convocation, these documents shall be made available at the offices of
the Company and, if the Company is listed on a Stock Exchange, with such
paying agent as referred to in the rules relating to securities of such
Stock Exchange, to be designated in the convocation for shareholders and
other parties with meeting rights at no cost.
5. One or more shareholders and/or other parties with meeting rights, jointly
representing at least twenty-five percent of the issued capital, may request
the Board of Management to add proposals to the agenda of a General Meeting,
provided such a request shall have been submitted to the Board of Management
at least fifty days prior to the day that a General Meeting is held.
OTHER GENERAL MEETINGS
ARTICLE 26.
1. Other General Meetings shall be held whenever the shareholders and other
parties with meeting rights shall be called and convened for that purpose by
the Board of Management or by the Supervisory Board.
2. If one or more shareholders and/or other parties with meeting rights,
jointly
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representing at least one-tenth of the issued capital, have requested the
Board of Management or the Supervisory Board in writing to call and convene
a General Meeting, at the same time specifying the items of the agenda, and
the Board of Management or the Supervisory Board has not complied with such
request in such a way that the General Meeting can be held within six weeks
following such request, they shall be authorized to call such meeting
themselves.
PLACE, CHAIRMANSHIP, MINUTES
ARTICLE 27.
1. General Meetings shall be held in Amsterdam or Schiphol (municipality of
Haarlemmermeer), at a location to be stated in the convocation.
2. General Meetings shall be presided over by the Chairman of the Supervisory
Board;
if the Chairman is absent, the member of the Supervisory Board designated by
the Supervisory Board shall preside and if such member is absent, the
Meeting itself shall choose its Chairman.
Until that moment a member of the Board of Management designated by the
Board of Management shall preside temporarily.
3. Minutes shall be kept of the business transacted at the meeting. The minutes
shall be acknowledged, in evidence whereof the Chairman and the person who
took the minutes shall sign them.
Minutes need not be taken of the business transacted if a notarial record is
made.
ACCESS
ARTICLE 28.
1. All members of the Board of Management and of the Supervisory Board,
shareholders and other parties with meeting rights or their authorized
agents- the latter with due observance of the provisions of Article 29 -
shall be entitled to attend the General Meeting, to address the meeting and,
insofar as they have voting rights, to
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cast their vote thereat.
In order to exercise that right holders of ordinary registered shares,
usufructuaries and pledgees of registered shares with the rights granted by
law under article 88 and/or article 89 of Book 2 of the Dutch Civil Code to
holders of depositary receipts issued with the cooperation of a company must
express their desire to do so to the Company in writing, such no later than
at the time and place mentioned in the convocation and also - insofar as it
concerns type II A registered shares- stating the identifying number of the
share certificate.
With respect to ordinary bearer shares, the share certificate must have been
deposited no later than on the day mentioned in the convocation at the place
mentioned in the convocation in exchange for a receipt granting access to
the meeting.
2. The time referred to in the previous paragraph cannot be set earlier than on
the seventh day before the day of the meeting.
3. If the voting right on a share accrues to the usufructuary or the pledgee
instead of to the shareholder, the shareholder shall also be authorised to
attend the General Meeting and address it, provided that the Company has
been notified of the intention to attend the meeting in accordance with
paragraph 1 .
4. The Chairman of the meeting shall decide on access to the meeting by others
than those who are entitled thereto by law.
POWER OF ATTORNEY
ARTICLE 29.
Shareholders and other parties with meeting rights may have themselves
represented by written power of attorney. The Company shall be notified hereof
in accordance with the provisions of Article 28, paragraph 1 of the Articles of
Association.
VOTES
ARTICLE 30.
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1. Each Person entitled to vote or his representative must sign the attendance
list.
2. Each A share and C share confers the right to cast one vote and each B share
confers the rights to cast twelve votes.
3. Insofar as the law or these Articles of Association do not prescribe a
greater majority, resolutions are passed by an absolute majority of the
votes cast, provided, however, that in case of a resolution to be adopted at
the request of Hebdo Mag (U.S.A) Limited, a company incorporated under the
laws of Jersey, the Channel Islands, in order for Hebdo Mag (U.S.A.) Limited
to comply with article 58 of the Companies (Jersey) Law 1991, such
resolution may only be adopted pursuant to a "special resolution" of the
General Meeting, that is a resolution adopted by a majority of two thirds of
the votes cast in a meeting.
Resolutions of the General Meeting can only be adopted validly in a meeting
in which no less than one-third of the issued capital is represented.
4. All votes shall be oral votes.
However, the Chairman may resolve to have votes cast by ballot.
In the event of an election of persons, a person with voting rights present
at the meeting may also require that the votes be cast by ballot.
Voting by ballot shall be effected with closed, unsigned ballot papers.
5. If the votes are tied the drawing of lots shall decide if it concerns an
election of persons and the motion shall be defeated if it concerns an item
of business.
6. Blank votes and invalid votes shall count as not having been cast.
7. The Board of Management shall keep records of the resolutions passed.
The minutes shall be deposited at the offices of the Company for inspection
by shareholders and other Persons with meeting rights who shall if so
requested be furnished with a transcript or extract of these minutes at no
more than the cost price.
AMENDMENT OF ARTICLES OF ASSOCIATION AND LIQUIDATION
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ARTICLE 31.
1. A resolution of the General Meeting to amend the Articles of Association or
to dissolve the Company may only be taken at the proposal of the Board of
Management, which proposal shall require the approval of the Supervisory
Board.
2. The full proposal shall be deposited for inspection by the shareholders and
other parties with meeting rights in Amsterdam at a location to be mentioned
in the convocation as of the day of convocation to the General Meeting until
the conclusion thereof;
the transcripts of this proposal shall be made available for the
shareholders and other parties with meeting rights at no cost.
This shall also be mentioned in the advertisement calling the meeting.
3. A resolution of the General Meeting to amend the Articles of Association in
connection with the following matters shall require the approval of the
meeting of holders of A shares:
- an increase of the authorized B share capital of the Company;
- the amendment of Article 9, Article 11, Article 12 paragraph 9, Article
23 paragraphs 4, 5, 6 and 9, and Article 31 paragraphs 3 and 7;
- any amendment concerning C shares.
4. A resolution to dissolve the Company may only be adopted in a General
Meeting with a majority of no less than three-fourths of the votes cast.
5. Upon the dissolution of the Company the liquidation shall be effected by the
Board of Management.
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6. During the liquidation the provisions of these Articles of Association shall
remain in full force as much as possible.
7. The balance of the liquidation shall be distributed to the holders of A
shares and holders of B shares on a pari passu basis, without regard to the
nominal value of the A shares and the B shares.
C shares shall not share in the liquidation surplus over the nominal value
of the C shares.
8. The books and records of the Company shall be kept for ten years after the
completion of the liquidation by the party designated for that purpose by
the General Meeting.
PROVISIONAL CLAUSES
ARTICLE 32.
The Board of Management shall be authorized to resolve on issues of shares and
limitation or exclusion of the pre-emptive right, as well as to grant the right
to subscribe for shares.
Such resolution shall require the approval of the Supervisory Board.
The authority of the Board of Management to adopt such a resolution pertains to
all shares not yet issued of the authorized capital or any future authorized
capital.
The authority referred to herein shall end on the [ ] two thousand and five
subject to the possibility of extension as stipulated in Article 12 and Article
13 of these Articles of Association.
FINAL STATEMENTS.
Finally the appearing person declared:
- that, upon the present Articles of Association becoming effective, the
thirty-six million five hundred sixty-two thousand one hundred nineteen
(36,562,119) Class B1 ordinary shares and the fifteen million thirty-seven
thousand eight hundred eighty-one (15,037,881) Class B2 ordinary shares
presently issued and
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Draft March 17, 2000
outstanding are converted into fifty-one million six
hundred thousand (51,600,000) B shares;
- that the issued capital amounts to [ ]
- that on [ ] under number N.V. [ ] the Minister of Justice has -according to
the certificate attached to this deed - advised that no objections to the
present amendment to the articles of association have been apparent.
This deed was executed today in Amsterdam.
The substance of this deed was stated and explained to the appearing person.
The appearing person declared not to require a full reading of the deed, to have
taken note of the contents of this deed and to consent to it.
Subsequently, this deed was read out in a limited form, and immediately
thereafter signed by the appearing person and myself, civil-law notary, at [ ].
