<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
----------
ACSYS, INC.
(Name of Subject Company (issuer))
VEDIOR N.V.
TIBERIA B.V.
PLATFORM PURCHASER INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, NO PAR VALUE
(including associated Series A Junior Participating Preferred Stock
Purchase Rights)
(Title of Class of Securities)
00087X 103
(CUSIP Number of Class of Securities)
C.K. ZACHARY MILES
C/O SELECT APPOINTMENTS NORTH AMERICA INC.
60 HARVARD MILL SQUARE
WAKEFIELD, MA 01880
(781) 213-1500
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Filing Persons)
----------
COPY TO:
SCOTT J. DAVIS
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603-3441
(312) 782-0600
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CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
---------------------- ----------------------
$84,182,055 $16,837
- ----------
* Calculated solely for purposes of determining the filing fee, assuming the
purchase of 16,836,411 shares at the tender offer price of $5.00 per share of
common stock.
** Previously paid in connection with the filing made on April 27, 2000.
/ / Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount previously paid: N/A
Form or Registration No.: N/A
Filing Party: N/A
Date filed: N/A
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
/X/ Third party tender offer subject to Rule 14d-1.
/ / Issuer tender offer subject to Rule 13e-4.
/ / Going-private transaction subject to Rule 13e-3.
/ / Amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: / /
================================================================================
<PAGE>
This Amendment No. 2 further amends and supplements the Tender Offer
Statement on Schedule TO (as amended to date, the "Schedule TO") filed with the
Securities and Exchange Commission on April 27, 2000, by Vedior N.V. ("Vedior"),
a company organized under the laws of the Netherlands, Tiberia B.V. ("Tiberia"),
a company organized under the laws of the Netherlands, and Platform Purchaser
Inc., a Georgia corporation (the "Purchaser") and an affiliate of Vedior and to
become, immediately prior to the initial purchase of Shares (as defined below)
under the Offer (as defined below), a wholly owned subsidiary of Tiberia. The
Schedule TO relates to the offer by the Purchaser (the "Offer") to purchase all
the outstanding shares of common stock, no par value per share (including the
associated series A junior participating preferred stock purchase rights, the
"Shares"), of Acsys, Inc., a Georgia corporation (the "Company"), at a purchase
price of $5 per Share, upon the terms and subject to the conditions set forth in
the Offer to Purchase dated April 27, 2000 (the "Offer to Purchase"), and in the
related Letter of Transmittal. The following items in the Schedule TO are hereby
amended in order to amend in the manner described below the disclosure appearing
in the following sections of the Offer to Purchase included in the Schedule TO:
ITEM 3: IDENTITY AND BACKGROUND OF FILING PERSON
The disclosure appearing in Section 9 of the Offer to Purchase
("Certain Information Concerning the Purchaser, Parent and Vedior") is hereby
amended such that the fifth sentence of the first paragraph of such Section 9
is as follows:
Parent is presently a wholly-owned indirect subsidiary of ING (as
defined below) and, at the time of the initial purchase of Shares under the
Offer, Parent's common equity will be owned by a subsidiary of Vedior and
Parent's preferred equity will be owned by a subsidiary of ING Bank Corporate
Investments B.V. ("ING"), an investment company organized under the laws of the
Netherlands and an indirect subsidiary of ING Groep N.V. ("ING Groep"), a
holding company organized under the laws of the Netherlands, with subsidiaries
primarily engaged in financial services.
The disclosure appearing in Schedule I to the Offer to Purchase
under the caption "1. Directors and Executive Officers of Parent" is hereby
amended such that the information relating to the managing directors of
Parent is as follows:
<TABLE>
<CAPTION>
Present principal occupation or
Name, age and position with employment; Material positions
Parent and citizenship held during the past five years
- ---------------------- -------------------------------
<S> <C>
Charles Kenneth Zachary Miles, 50 Chief Financial Officer of Vedior N.V. since
Managing Director December 1999. Group Finance Director of Select
British Appointments (Holdings) PLC from 1988 to date.
Arnold Joannes Marie van der Ven, 41 Member of Management Board of Vedior N.V.
Managing Director since 1997. Chief Financial Officer of Axxicon
Dutch Group N.V. from 1991 to 1997.
</TABLE>
2
<PAGE>
The disclosure appearing in Schedule I to the Offer to Purchase under
the caption "2. Directors and Executive Officers of the Purchaser" is hereby
amended to include the following information relating to an additional director
of the Purchaser:
<TABLE>
<CAPTION>
Principal occupation or
Name, age and position with employment; Material positions
Purchaser and citizenship held during the past five years
- ------------------------- -------------------------------
<S> <C>
John Patrick Unroe, 52 President and Chief Executive Officer of
Director Accountants Incorporated, a subsidiary of
American Select Appointments (Holdings) PLC, from
1997 to date; President and Chief Executive Officer
of Judicial Arbitration and Mediation Services from
1993 to 1997.
</TABLE>
The disclosure appearing in Schedule I to the Offer to Purchase under
the caption "4. Directors and Executive Officers of ING Groep" is hereby amended
such that the information therein relating to Messrs. van der Lugt, Kist,
Lindenbergh, Tilmant and Herkstroter is as follows;
<TABLE>
<CAPTION>
Present principal occupation or
Name, age and position with employment; Material positions
ING Groep and citizenship held during the past five years
- ------------------------- -------------------------------
<S> <C>
G.J.A. van der Lugt, 60 Currently a member of Executive Board; Chairman
Member of Executive Board of Executive Board from 1998 to May 2, 2000, and
Dutch Vice Chairman of Executive Board from 1992 to
1998.
E. Kist, 56 Chairman of Executive Board since May 2, 2000,
Chairman of Executive Board Vice-Chairman of Executive Board from April 1,
Dutch 1999 to May 2, 2000 and member of Executive
Board since 1993.
J.H.M. Lindenbergh, 57 Member of Executive Board since 1995. Vice-
Member of Executive Board Chairman of the Executive Committee of ING
Dutch Nederland since 1988.
3
<PAGE>
M. Tilmant, 48 Vice-Chairman of Executive Board since May 2,
Vice-Chairman of Executive Board 2000, and member of Executive Board since 1998.
Belgian Chairman of Executive Board of Bank Brussels
Lambert from 1997 to 1998. Employed by Bank
Brussels since 1992, where he was appointed
Chairman of its Executive Board in 1997.
C.A.J. Herkstroter, 62 Chairman of Supervisory Board since May 7, 1999
Chairman of Supervisory Board and member since May 8, 1998. President of N.V.
Dutch Koninklijke Nederlandsche Petroleum
Maatschappij and Chairman of the Committee of
Managing Directors of the Royal Dutch/Shell
Group from 1993 to 1998.
</TABLE>
ITEM 7: SOURCE AND AMOUNT OF FUNDS; VEDIOR/ING FINANCING ARRANGEMENTS.
The disclosure appearing in Section 10 of the Offer to Purchase
("Source and Amount of Funds; Vedior/ING Financing Arrangements") is hereby
amended such that the fourth and fifth paragraphs thereof are replaced by the
following:
Parent and the Purchaser will comply with these obligations through
the following arrangements. Immediately prior to the Purchaser's purchase of
Shares pursuant to the Offer, the Purchaser will become a wholly-owned
subsidiary of Parent, the common equity of which will be owned by Vedior Holding
B.V. ("Vedior Holding"), a subsidiary of Vedior, and the preferred equity of
which will be owned by Entero B.V. ("Entero"), a subsidiary of ING. Until
immediately prior to the Purchaser's initial purchase of Shares under the Offer,
all of the outstanding equity of Parent will be owned by Entero. In connection
with these financing arrangements (i) the Purchaser will incur indebtedness owed
to Parent in the amount of approximately $40 million and the Purchaser will
issue its common shares for consideration of approximately $40 million, with the
aggregate proceeds of such transactions to be used to purchase the Shares
pursuant to the Offer, (ii) Parent will incur indebtedness owed to Entero in the
amount of approximately $40 million and (iii) Vedior Holding will purchase for
$13 million all of Parent's outstanding common shares and Entero will obtain $27
million of Parent's preferred equity. The indebtedness to be owed by Parent to
Entero and the Parent preferred equity to be owned by Entero will be
exchangeable into depositary receipts in respect of Vedior common shares at a
fixed exchange rate, with a mandatory exchange to occur at such fixed exchange
rate if the market price of depositary receipts in respect of Vedior common
shares equals or exceeds a certain value for at least 60 consecutive trading
days. After 5 years, Vedior may purchase such exchangeable Parent indebtedness
and preferred equity for the amount originally paid for them by Entero (together
with any accrued and unpaid interest or dividends thereon, respectively, their
"original cost"). If Vedior does not make such purchase, the holder of such
exchangeable indebtedness and preferred equity may (i) exchange its holdings at
their original cost for depositary receipts in respect of Vedior common shares
at their then current market price or (ii) cause Parent to sell its shares of
the Purchaser's (which pursuant to the Merger, will have become the Company's)
common stock, and (a) repay the
4
<PAGE>
exchangeable debt at its original cost out of the proceeds of such sale, (b)
apply the proceeds of such sale against payment of the original cost of Parent's
preferred equity to the holder thereof and (c) distribute any remaining excess
proceeds to Parent for distribution to the holder of Parent's common shares. The
holder of such exchangeable debt also has the option to receive payment in
depositary receipts in respect of Vedior common shares, in lieu of cash, upon
the acceleration of amounts owed under such exchangeable debt if an event of
default thereunder has occurred and is continuing.
The exchangeable indebtedness to be owed by Parent to Entero is to be
unsecured, bear interest at the rate of 9.5% per annum and mature on June 30,
2005. Each of the approximately 30 million shares of the preferred equity of
Parent to be held by Entero is entitled to receive a preferred dividend equal to
8.0% of its Euro 1 par value annually. The indebtedness to be owed by the
Purchaser to Parent is to be unsecured, bear interest at a rate equal to the
interest rate payable on the indebtedness to be owed by Parent to Entero
described above plus 0.2% and mature two business days before such exchangeable
indebtedness to be owed by Parent to Entero will mature. These financing
arrangements are subject to customary closing conditions, including, among
others, that the conditions to the Purchaser's purchase of Shares pursuant to
the Offer have been satisfied. There are currently no alternative financing
arrangements and no plans or arrangements to refinance or repay the loans
described above prior to their scheduled maturity.
The foregoing description is qualified in its entirety by reference to
(i) the Agreement in Principle between ING and VHBV relating to the Acquisition
of Acsys, Inc. (the "FINANCING AGREEMENT IN PRINCIPLE"), a copy of which was
filed as Exhibit (b) to the Tender Offer Statement on Schedule TO filed by
Vedior, Parent and the Purchaser with the Commission on April 27, 2000 (the
"SCHEDULE TO") and (ii) the forms of the following documents, copies of which
are filed as Exhibits (b)(2) - (b)(7) to Amendment No. 2 to the Schedule TO
filed on May 17, 2000: (a) Amendment to the Agreement in Principle between ING
and VHDV relating to the Acquisition of Acsys, Inc., among ING, Vedior Holding
and Vedior; (b) Exchangeable Loan Agreement among Entero, Parent and Vedior; (c)
Loan Agreement between Parent and the Purchaser; (d) Articles of Association of
Parent; (e) Share Exchange Agreement among Entero, Vedior Holding and Vedior;
and (f) Shareholders Agreement between Entero and Vedior Holding. Each of the
foregoing documents should be read in its entirety for a more complete
description of the matters summarized above.
5
<PAGE>
ITEM 12: EXHIBITS.
<TABLE>
<CAPTION>
ITEM DESCRIPTION
<S> <C>
*(a)(1)(A) Offer to Purchase dated April 27, 2000.
*(a)(1)(B) Letter of Transmittal.
*(a)(1)(C) Notice of Guaranteed Delivery.
*(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
*(a)(1)(E) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
*(a)(1)(F) Letter to Shareholders dated April 27, 2000, from the
Chairman of the Board and Chief Executive Officer of
the Company.
*(a)(1)(G) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
*(a)(1)(H) Summary advertisement published April 27, 2000.
*(a)(2) - (4) Not applicable.
*(a)(5) Joint Press Release issued by Vedior and the Company on April 17, 2000.
*(b)(1) Agreement in Principle between ING and VHBV Relating
to the Acquisition of Acsys, Inc., dated as of April
13, 2000, among ING, Vedior Holding and Vedior.
(b)(2) Form of the Amendment to the Agreement in Principle
between ING and VHBV relating to the Acquisition of
Acsys, Inc., among ING, Vedior Holding and Vedior.
(b)(3) Form of the Exchangeable Loan Agreement, among Entero, Parent and Vedior.
(b)(4) Form of the Loan Agreement between Parent and the Purchaser.
(b)(5) Form of the Articles of Association of Parent.
(b)(6) Form of the Share Exchange Agreement, among Entero, Vedior Holding and Vedior.
(b)(7) Form of the Shareholders Agreement, between Entero and Vedior Holding.
6
<PAGE>
(d)(1) Agreement and Plan of Merger, dated as of April 16, 2000, by and among Parent, the
Purchaser, Vedior, Select Appointments North America Inc. and the Company
(incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of the
Company filed on April 18, 2000).
*(d)(2) Employment Agreement, dated September 1997, by and among the Company, ACSYS
Resources, Inc. and Harry J. Sauer.
(d)(3) Amendment of Employment Agreement, dated as of April 16, 2000, by and among Harry
J. Sauer, the Company and Acsys Resources, Inc. (incorporated by reference to Exhibit
10.4 to the Current Report on Form 8-K of the Company filed on April 18, 2000).
*(d)(4) Employment Agreement, dated May 16, 1997, and as amended on May 16, 1997, by and
between the Company and David C. Cooper.
(d)(5) Amendment of Employment Agreement, dated as of April 16, 2000, by and between
David C. Cooper and the Company (incorporated by reference to Exhibit 10.1 to the
Current Report on Form 8-K of the Company filed on April 18, 2000).
(d)(6) Employment Agreement, dated February 7, 2000, by and between the Company and
Patricia Kennedy (incorporated by reference to Exhibit 10.29 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1999).
(d)(7) Amendment of Employment Agreement, dated as of April 16, 2000, by and between
Patricia Kennedy and the Company (incorporated by reference to Exhibit 10.2 to the
Current Report on Form 8-K of the Company filed on April 18, 2000).
(d)(8) Employment Agreement, dated August 21, 1998, between the Company and Brady W.
Mullinax, Jr. (incorporated by reference to Exhibit 10.4 of the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1998).
(d)(9) Amendment of Employment Agreement, dated as of April 16, 2000, by and between
Brady W. Mullinax, Jr. and the Company (incorporated by reference to Exhibit 10.3 to
the Current Report on Form 8-K of the Company filed on April 18, 2000).
(d)(10) Support Agreement, dated as of April 16, 2000, by and among Vedior, the Purchaser,
David C. Cooper and Teri L. Cooper (incorporated by reference to Exhibit 2.2 to the
Current Report on Form 8-K of the Company filed on April 18, 2000).
(d)(11) Support Agreement, dated as of April 16, 2000, by and among Vedior, the Purchaser,
Harry J. Sauer and the Sauer Family Foundation (incorporated by reference to Exhibit 2.3
to the Current Report on Form 8-K of the Company filed on April 18, 2000).
7
<PAGE>
*(d)(12) Confidentiality Agreement, dated May 21, as amended on March 31, 2000, by and among
the Company, Select Appointments (Holdings) PLC and Vedior.
(g) Not applicable.
(h) Not applicable.
</TABLE>
- -------------------------
*Previously filed.
8
<PAGE>
SIGNATURES
After due 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.
VEDIOR N.V.
By: /s/ C.K. Zachary Miles
-----------------------------
Name: C.K. Zachary Miles
Title: Chief Financial Officer
TIBERIA B.V.
By: /s/ A.W.M. Giesen
-----------------------------
Name: A.W.M. Giesen
Title: Managing Director
PLATFORM PURCHASER INC.
By: /s/ C.K. Zachary Miles
-----------------------------
Name: C.K. Zachary Miles
Title: President
Dated: May 17, 2000
9
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
ITEM DESCRIPTION
- ---- -----------
<S> <C>
*(a)(1)(A) Offer to Purchase dated April 27, 2000.
*(a)(1)(B) Letter of Transmittal.
*(a)(1)(C) Notice of Guaranteed Delivery.
*(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
*(a)(1)(E) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
*(a)(1)(F) Letter to Shareholders dated April 27, 2000, from the
Chairman of the Board and Chief Executive Officer of
the Company.
*(a)(1)(G) Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9.
*(a)(1)(H) Summary advertisement published April 27, 2000
(a)(2) - (4) Not applicable.
*(a)(5) Joint Press Release issued by Vedior and the Company on April 17, 2000.
*(b)(1) Agreement in Principle between ING and VHBV Relating to the Acquisition
of Acsys, Inc., dated as of April 13, 2000, among ING, Vedior Holding and
Vedior
(b)(2) Form of the Amendment to the Agreement in Principle between ING and
VHBV relating to the Acquisition of Acsys, Inc., among ING, Vedior
Holding and Vedior.
(b)(3) Form of the Exchangeable Loan Agreement among Entero, Parent and
Vedior.
(b)(4) Form of the Loan Agreement, between Parent and the Purchaser.
(b)(5) Form of the Articles of the Association of Parent.
10
<PAGE>
(b)(6) Form of the Share Exchange Agreement among Entero, Vedior Holding and
Vedior.
(b)(7) Form of the Shareholders Agreement, between Entero and Vedior Holding.
(d)(1) Agreement and Plan of Merger, dated as of April 16, 2000, by and among
Parent, the Purchaser, Vedior, Select Appointments North America Inc. and
the Company (incorporated by reference to Exhibit 2.1 to the Current Report
on Form 8-K of the Company filed on April 18, 2000).
*(d)(2) Employment Agreement, dated September 1997, by and among the
Company, ACSYS Resources, Inc. and Harry J. Sauer.
(d)(3) Amendment of Employment Agreement, dated as of April 16, 2000, by and
among Harry J. Sauer, the Company and Acsys Resources, Inc. (incorporated
by reference to Exhibit 10.4 to the Current Report on Form 8-K of the
Company filed on April 18, 2000).
*(d)(4) Employment Agreement, dated May 16, 1997, and as amended on May 16,
1997, by and between the Company and David C. Cooper.
(d)(5) Amendment of Employment Agreement, dated as of April 16, 2000, by and
between David C. Cooper and the Company (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(6) Employment Agreement, dated February 7, 2000, by and between the
Company and Patricia Kennedy (incorporated by reference to Exhibit 10.29
of the Company's Annual Report on Form 10-K for the year ended December
31, 1999).
(d)(7) Amendment of Employment Agreement, dated as of April 16, 2000, by and
between Patricia Kennedy and the Company (incorporated by reference to
Exhibit 10.2 to the Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(8) Employment Agreement, dated August 21, 1998, between the Company and
Brady W. Mullinax, Jr. (incorporated by reference to Exhibit 10.4 of the
Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1998).
11
<PAGE>
(d)(9) Amendment of Employment Agreement, dated as of April 16, 2000, by and
between Brady W. Mullinax, Jr. and the Company (incorporated by reference
to Exhibit 10.3 to the Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(10) Support Agreement, dated as of April 16, 2000, by and among Vedior, the
Purchaser, David C. Cooper and Teri L. Cooper (incorporated by reference to
Exhibit 2.2 to the Current Report on Form 8-K of the Company filed on April
18, 2000).
(d)(11) Support Agreement, dated as of April 16, 2000, by and among Vedior, the
Purchaser, Harry J. Sauer and The Sauer Family Foundation (incorporated by
reference to Exhibit 2.3 to the Current Report on Form 8-K of the Company
filed on April 18, 2000).
12
<PAGE>
*(d)(12) Confidentiality Agreement, dated May 21, as amended on March 31, 2000,
by and among the Company, Select Appointments (Holdings) PLC and
Vedior.
(g) Not applicable.
(h) Not applicable.
</TABLE>
- ------------------
*Previously filed.
13
<PAGE>
Exhibit (b)(2)
AMENDMENT TO THE AGREEMENT IN PRINCIPLE BETWEEN ING AND VHBV RELATING TO THE
ACQUISITION OF ACSYS, INC ("FALCON")
ING Bank Corporate Investments B.V. ("CI"), Vedior Holding B.V. ("VHBV") and
Vedior N.V. ("VNV") have entered into the agreement in principle referred to
above on April 13, 2000 (the "AIP") which they hereby amend as follows
(capitalized terms having the meaning herein as given thereto in the AIP).
1. With respect to the steps to be taken on the Offer becoming
unconditional but prior to the acceptance of the shares tendered:
- CI will participate in the sharecapital of Bidco B.V. through is
wholly owned subsidiary Entero B.V. ("Entero") and CI will fund
Bidco B.V. with US$ 40 million in debt through Entero.
- Bidco US will be funded by CI through Entero with $ 40 million of
equity in exchange for common shares in Bidco US:
- The equity of Bidco US may be less or more than US$ 5000.
2. With respect to the steps to be taken thereafter:
- As to their shareholding in Bidco B.V., CI, through Entero, and
VHBV will enter into a shareholders agreement.
3. As to the terms of the preferred shares and the convertible debt of
Bidco B.V.
- The conversion right will be in the form of an exchange right,
pursuant whereto the exchangeable loan and the preferred shares
may be sold and transferred by CI, through Entero, or, as the
case may be, purchased and acquired by VNV.
4. As to the management of Bidco B.V.:
- The management may be conferred on an individual or legal entity
not being a trust company.
5. GENERAL
- All amounts expressed in US$ will be paid in Euro.
- All reasonable costs incurred by Bidco US, Bidco B.V., CI and
Entero in preparing the AIP, the other transaction documents and
the filing thereof as well as any taxes due in connection with
the set up of the structure contemplated hereby and with the
transactions relating thereto (other than taxes incurred by CI,
and/or Entero that are in the nature of corporate income taxes)
will be borne by Bidco B.V., to be funded by VHBV.
<PAGE>
- In the preparation and negotiations of the AIP, CI has assumed
that dividends paid by Bidco B.V. to Entero on preferred shares
shall be exempt from taxation under relevant Dutch laws governing
the taxation of dividends.
Should this assumption prove incorrect, the parties shall then
consult in good faith with each other in order to achieve a
mutually acceptable solution with a view to maintaining the
balance of this agreement.
In such event, the parties undertake to attain such a solution
within 10 (ten) business days as from the date on which the
parties have been advised by KPMG Meyburg & Co. that no
favourable tax ruling affirming the assumed exemption can be
obtained.
Agreed by CI, VHBV and VNV on [25] May, 2000
ING Bank Corporate Vedior Holding B.V.
Investments B.V.
By: _________________ By: _________________
Name: Name:
Vedior N.V.
By: _________________
Name:
<PAGE>
Exhibit (b)(3)
EXCHANGEABLE LOAN AGREEMENT
BETWEEN
ENTERO B.V.
AND
TIBERIA B.V.
AND
VEDIOR N.V.
MAY * , 2000
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
page
<S> <C> <C>
Clause 1 -Subject *
Clause 2 -Conditions precedent *
Clause 3 -Payment of principal *
Clause 4 -Exchange right *
Clause 5 -Interest *
Clause 6 -Repayment *
Clause 7 -Costs *
Clause 8 -Payment *
Clause 9 -Representations, warranties and obligations of the Borrower, VNV and the Lender *
Clause 10 -Accelerated maturity *
Clause 11 -Evidence *
Clause 12 -Rights not exclusive; no forfeiture of rights *
Clause 13 -Binding effect and entire agreement; amendment *
Clause 14 -Assignment of rights and obligations *
Clause 15 -Notices; place of residence *
Clause 16 -General conditions *
Clause 17 -Governing law; competent court *
Clause 18 -Confidentiality *
SCHEDULES
Schedule 1 Stock Transfer Form
Schedule 2 Borrowing Notice
Schedule 3 Exercise notice put option
Schedule 4 Exercise option call option
Schedule 5 General conditions of the Lender
</TABLE>
<PAGE>
EXCHANGEABLE LOAN AGREEMENT
THE UNDERSIGNED:
1. TIBERIA B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands (the "BORROWER"),
2. Entero B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands, a wholly-owned subsidiary of ING Bank Corporate Investments
B.V., (the "LENDER"),
3. VEDIOR N.V., a limited liability company under the law of the
Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands ("VNV"),
WHEREAS:
A. ING Bank Corporate Investments B.V., the sole shareholder of the Lender
("CI"), VNV and Vedior Holding B.V. ("VHBV") have entered into an agreement
in principle, dated April 13, 2000, as amended on the date hereof (the
"AIP") pursuant whereto CI has agreed to cause the Lender to provide
financing in the form of equity and loans to the Borrower and Platform
Purchaser Inc., a corporation organised and existing under the laws of the
state of Georgia, United States of America ("PLATFORM"), in order to enable
Platform to acquire shares of common stock in Acsys, Inc., a company under
the laws of the state of Georgia, United States of America ("ACSYS")
pursuant to a tender offer dated April 27, 2000 (the "OFFER") and upon the
Offer having been consummated, Platform is to merge into Acsys in
accordance with and subject to the terms and conditions of an agreement and
plan of merger, dated as of April 16, 2000 (the "PLAN OF MERGER") to which
they each are a party;
B. According to the AIP, the Lender will fund the Borrower with US $ 40
million in debt (the "LOAN") which is exchangeable into depositary receipts
to be issued by Stichting Administratiekantoor van gewone aandelen Vedior,
a "STICHTING" under the law of the Netherlands, with seat in Amsterdam (the
"ADMINISTRATOR"), relating to common shares in the issued share capital of
VNV (the "SHARES");
C. The Lender and the Borrower have further agreed that the Loan will be
expressed in the Euro equivalent of US$ 1 = Euro ---- being a total
principal nominal amount of Euro---.
D. The Works Councils Act ("WET OP DE ONDERNEMINGSRADEN") - to the extent
applicable - has been observed.
E. In addition to this agreement VNV, VHBV and the Lender will enter into a
share exchange agreement the date hereof (the "SHARE EXCHANGE AGREEMENT").
<PAGE>
DECLARE TO HAVE AGREED AS FOLLOWS:
SUBJECT
CLAUSE 1
1.1. The Lender agrees to lend to the Borrower, and the Borrower agrees to
borrow from the Lender, the sum of [--] million Euro ([EURO] --) (the
"PRINCIPAL").
1.2. The Borrower shall use the Principal only for granting a loan in the same
nominal principal amount to Platform in accordance with the terms and
conditions of a loan agreement to be entered into by the Borrower, as
lender, and Platform, as borrower (the "ON-LOAN AGREEMENT") immediately
following the execution of this agreement in order to enable Platform to
purchase all shares tendered in the capital stock of Acsys and to make
payments for any non-tendered shares of common stock in accordance with
the Plan of Merger.
CONDITIONS PRECEDENT
CLAUSE 2
2.1. This agreement shall be subject to the conditions precedent
("OPSCHORTENDE VOORWAARDEN") that on or before May 25, 2000 (9 a.m. New
York City time):
a. the Lender shall have received confirmation from the
Borrower and Platform that all conditions to the Offer
shall have been satisfied;
b. the Lender shall have received an opinion of Sullivan &
Cromwell in form and substance satisfactory to the Lender
as to the validity, enforceability and binding effect of
the documentation relating to the Offer and the
transactions contemplated by this agreement and the AIP and
the effect thereof on ING Bank N.V. and its group
companies with respect to United States federal law;
c. the Lender shall have received an opinion from Mayer, Brown
& Platt in form and substance satisfactory to the Lender in
respect of validity, enforceability and binding effect of
the documentation relating to the issuance of shares in
Platform and validity, enforceability and binding effect of
the documentation contemplated by the AIP to which Platform
is a party, including a confirmation that such shares will
be fully paid and non-assessable and not encumbered with
any security interest;
d. the Lender shall have received a duly executed copy of a
stock transfer form duly and validly executed by the
Borrower in the form of SCHEDULE 1 hereto (the "STOCK
TRANSFER FORM").
2.2. The conditions referred to in paragraphs a, b ,c and d of clause 2.1
shall cease to apply if the Lender informs the Borrower to that effect on
or before the day referred to in clause 2.1.
<PAGE>
PAYMENT OF PRINCIPAL
CLAUSE 3
The Lender shall pay the Principal to the Borrower on or before May 30, 2000, by
transferring such amount to [account info]. The Borrower shall deliver to the
Lender not less than 3 business days prior to the date of funding a duly
executed borrowing notice in the form of SCHEDULE 2.
EXCHANGE RIGHT
CLAUSE 4
4.1 Lender has the right to sell and assign the Loan in its entirety and not
in part to VNV in which event VNV shall have the obligation to acquire
the Loan at a purchase price payable in depository receipts
("CERTIFICATEN") to be issued by the Administrator for Shares, nominal
value NLG 0.05 each (the "RECEIPTS"), at an exchange ratio of one Receipt
per each Euro sixteen ([EURO] 16) of the Outstanding Amount (as
hereinafter defined) so assigned to VNV (the "EXCHANGE PRICE"). The
Lender can exercise this option at any time by sending a notice in the
form of SCHEDULE 3 to the Borrower and VNV, with a copy to the
Administrator. It is expressly agreed that the Lender is only entitled to
exercise this exchange right if simultaneously the Lender or its
affiliate exercises the exchange right pursuant to Clause 1.1 of the
Share Exchange Agreement.
A transfer of the Loan to VNV, in whole and not in part against payment
in the form of Receipts, shall constitute a discharge for the Lender with
respect to its payment of consideration for the Receipts, a discharge for
the Administrator with respect to its obligation to pay up the Shares and
a discharge for VNV in respect of payment of consideration for the
transfer of the Loan.
4.2 If (a) VNV shall (i) split, re-denominate, consolidate or reclassify the
Shares, (ii) alter any right attaching to the Shares (including voting,
dividend and liquidation distribution rights), (iii) issue, redeem or
repurchase Shares or other shares in its share capital against a price
which is less than fair market value at that time (other than the
granting of options and the issuance of shares pursuant thereto to
management and employees in accordance with customary practice), (iv)
engage in a legal merger or demerger, (v) distribute dividends or make
other distributions on the Shares or other shares in its share capital
(other than cash dividends or stock dividends in accordance with
customary practice of VNV), or (vi) perform any other act having an
effect with respect to the Shares similar to the effect of the acts
referred to in (i) to (v), or (b) the Administrator shall take any of the
actions mentioned in (i) to and including (vi) with respect to the
Receipts (except for cash distributions or issuance of depository
receipts in lieu of cash by the Administrator in accordance with
customary practice), VNV shall, within one month after the such action
has been taken, agree with Lender such amendments to this agreement as
are necessary to ensure that the economic and legal effect of Lender's
exchange right remains unaffected by such act.
4.3 If at any time, the price of the Receipts on AEX-stock exchange (or any
successor stock exchange) equals or exceeds Euro twenty ([EURO] 20) for
at least sixty (60) consecutive trading days, the Loan must be exchanged
into Receipts at the Exchange Price by way of assignment as referred to
in clause 4.1.
<PAGE>
4.4 During the month of May 2005 (the "EXERCISE PERIOD"), VNV shall have the
right to purchase, and in such event the Lender shall assign to VNV, the
right to repayment of the nominal amount then outstanding under the Loan
(being the principal plus any overdue interest) (the "OUTSTANDING
AMOUNT") at a purchase price equal to the Outstanding Amount. VNV can
exercise this option by sending the notice in the form of SCHEDULE 4 to
the Lender.
4.5 If VNV does not exercise the option in accordance with clause 4.4, the
Lender may during a period of four weeks after the Exercise Period either
(i) exchange the Outstanding Amount for Receipts by assigning the right
to demand payment of the Outstanding Amount to VNV in which event VNV
must acquire the claim for the Outstanding Amount at a purchase price
payable in Receipts at an exchange price equal to the average closing
price ("SLOTKOERS") of the Receipts on AEX stock exchange (or its
successor stock exchange) during the five trading days immediately prior
to the day on which the Lender exercises this right or (ii) sell, assign
and transfer the shares in Acsys pursuant to the Stock Transfer Form and
apply the proceeds against repayment of Loan and distribute the remaining
proceeds to the Borrower. The Stock Transfer Form is to be used
exclusively for the sale, assignment and transfer of the shares
contemplated by this Clause 4.5.
4.6 Each of VNV and the Borrower hereby unconditionally and irrevocably
undertakes to take or omit to take any action and to execute any document
necessary or desirable to give effect to clause 4.
INTEREST
CLAUSE 5
5.1. The Borrower shall pay to the Lender interest on the Principal or, if
part of the Principal has been repaid or converted, on the amount of
Principal outstanding at any time at an annual rate of 9.5% (9.5
percent).
5.2. After the end of each calendar quarter, the interest due over that period
shall be calculated. The Borrower shall also pay compound interest on the
interest due but not paid calculated at a rate of 9.5% per annum. For the
purposes of clause 5.3, the interest shall be deemed to have been paid to
the Lender on the first day following the period in respect of which it
has been calculated.
5.3. The interest shall accrue from the day on which the underlying amount is
paid to the Borrower up to and including the day before that on which
said amount is due for repayment to the Lender.
5.4. The interest shall be paid each calendar quarter in arrears, on the first
day following the end of the period over which it is due. The interest
for the period running from the day on which the Borrower receives the
Principal up to and including the last day of the then current calendar
quarter shall be paid on the first day of the next succeeding calendar
quarter.
5.5. To calculate the interest due over a particular period, the annual
interest shall be multiplied by a fraction the numerator of which is the
actual number of days in that period and the denominator 360.
<PAGE>
REPAYMENT
CLAUSE 6
6.1. The Loan shall be repaid in full on June 30, 2005 prior to 12:00
Amsterdam time.
6.2. The Borrower may not prepay the Principal or any part thereof.
COSTS
CLAUSE 7
The Borrower shall reimburse the Lender for all reasonable costs incurred by the
latter in preparing, concluding or performing this agreement and setting up the
financing and acquisition structure in accordance with the AIP. In addition, the
Borrower or VNV shall pay, or cause to be paid, all and any amounts due by way
of capital tax or any other tax which is the result of the setting up of the
structure contemplated by the AIP and transactions relating thereto and the
Borrower shall indemnify the Lender in respect of any taxes payable by the
Lender as a result of the structure and transactions contemplated by the AIP
other than for taxes that are in the nature of corporate income taxes. VNV
agrees to reimburse the Borrower in respect of all payments made or to be made
by the Borrower to the Lender pursuant to this clause 7.
PAYMENT
CLAUSE 8
8.1. All payments under this agreement shall be made by debiting account no.
-----("AUTOMATISCHE INCASSO").
8.2. The amount due must be credited to the correct account no later than on
the due date with same day value. If the due date is not a business day,
the payment must be credited to the account no later than on the next
business day together with interest. Business day shall mean a day on
which banks in the Netherlands are open to receive payments.
8.3. If a payment to the Lender has not been made by the due date, the
Borrower shall be in default without any notice and it shall owe the
Lender interest at a monthly rate of 1.00% (one percent) on the overdue
amount. Interest shall accrue from the day on which the default
commences, up to and including the day on which it ends. In calculating
the interest, the overdue amount shall, upon expiry of each month, be
increased by the interest due over that period.
8.4. Each debt under this agreement shall be paid in its full nominal amount.
Each payment must be effected in the currency in which the debt is
expressed. The costs of making a payment shall be for the account of the
Borrower.
<PAGE>
8.5. The Borrower may not set off a debt under this agreement against any
claim on the Lender or suspend its payment on any ground. The Lender may
set off a debt under this agreement against any claim on the Borrower by
notifying the latter thereof.
8.6. If any statutory provision requires the Borrower to withhold any amount
from a payment, it shall, upon making the payment, pay such additional
amount as is necessary to ensure that the Lender receives the full
nominal amount of the debt. The additional payment shall be for the
account of the Borrower.
8.7. A payment to the Lender shall be allocated in the following order:
a. to damage and costs as referred to in clause 10.3;
b. to interest as referred to in clause 8.3;
c. to interest as referred to in clause 5;
d. to the Principal, to the extent that it may be repaid.
REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF THE BORROWER, VNV AND THE LENDER
CLAUSE 9
9.1 The Borrower and VNV hereby represent and warrant (each as to themselves
only) that the following statements are true and correct as of the date
hereof and as of each interest payment date contemplated by clause 5:
(a) The Borrower is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated and
existing under the law of the Netherlands.VNV is a company with limited
liability ("NAAMLOZE VENNOOTSCHAP") validly incorporated and existing
under the laws of the Netherlands.
(b) Each of the Borrower and VNV has the corporate power to enter into this
agreement, the AIP and the agreements contemplated thereby (hereinafter
the "TRANSACTION DOCUMENTS") to which it is a party and to perform its
obligations thereunder. VNV also represents that ANT is empowered to
issue Receipts on behalf of the Administrator pursuant to a valid power
of attorney.
(c) Each of the Borrower and VNV has taken all corporate action to enable it
to enter into this agreement and the other Transaction Documents to which
it is a party and to ensure that this agreement and any other Transaction
Document to which it is a party is legal valid and binding.
(d) The execution and delivery of the Transaction Documents by the Borrower
and VNV do not and will not (i) violate or result in a material violation
of any agreement to which the Borrower or VNV is a
<PAGE>
party, (ii) conflict with any constitutive documents of the Borrower or
VNV or (iii) conflict with any applicable law, regulation or official or
judicial order.
9.2. The Lender hereby represents and warrants that the following statements
are true and correct as of the date hereof:
(a) The Lender is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated and
existing under the law of the Netherlands.
(b) The Lender has the corporate power to enter into this agreement and the
other Transaction Documents to which it is a party and to perform its
obligations thereunder.
(c) The Lender has taken all corporate action to enable it to enter into this
agreement and the other Transaction Documents to which it is a party and
to ensure that this agreement and any other Transaction Document to which
it is a party is legal valid and binding.
(d) The execution and delivery by the Lender of the Transaction Documents to
which it is a party do not and will not (i) violate or result in a
material violation of any agreement to which the Lender is a party, (ii)
conflict with any constitutive documents of the Lender or (iii) conflict
with any applicable law, regulation or judicial order.
9.3. The Borrower and VNV hereby undertake that :
(a) Each of the Borrower and VNV shall deliver, and the Borrower shall cause
Acsys to deliver, the following:
(i) as soon as they become available but and in any event within
120 days after the end of each of its financial years the audited
consolidated financial statements of each of VNV, the Borrower and Acsys;
(ii) as soon as they become available and in any event within 60
days after each of the three first financial quarters the consolidated
quarterly financial statements (and in the case of the second financial
quarter the consolidated semi-annual financial statements) as at the end
of the relevant calendar quarter of each of VNV, the Borrower and Acsys;
such accounts:
(i) in the case of audited financial statements to include a
profit and loss account, balance sheet, cashflow statement and directors
and auditors report thereon;
(ii) in the case of semi-annual and quarterly consolidated
financial statements, to include a profit and loss account, balance
sheet, cashflow statement and management commentary for the entities
included in the relevant statements.
<PAGE>
(b) The Borrower shall comply with reasonable requests from the Lender for
information necessary to the Lender to form an opinion about the
Borrower's or Acsys' financial position or to establish whether there are
any grounds to be concerned that the Borrower will fail to perform its
obligations under this agreement or that the Lender's rights of recourse
will be adversely affected.
ACCELERATED MATURITY
CLAUSE 10
10.1. Without prejudice to any of its other rights and obligations, the Lender
may, at its option, terminate all of its obligations under this agreement
with immediate effect, and demand immediate payment of all of its claims
under this agreement in their nominal amount, by notifying the Borrower,
whether in the country in which the Borrower is established or in any
country in which any property or debtor of the Borrower is located one of
the following events (an "EVENT OF DEFAULT") has occurred and is
continuing:
a. The Borrower has failed to perform any obligation under this
agreement to pay interest as referred to in clause 5 or to repay
Principal on the day such payment becomes due and payable unless
such failure is the result of a technical failure in the payment
system in which case such payment has not been made as soon as
practicably possible.
b. The Borrower shall fail to make payments of dividends annually of
8% of the nominal value of the preferred shares of the Borrower
issued or to be issued to Entero B.V.
c. Any of the Borrower or VNV has failed to perform any obligation
under this agreement other than an obligation referred to in
paragraph a, and, to the extent that such non-performance is
capable of remedy in the reasonable opinion of the Lender, no
performance has taken place within 10 business days after the
Lender has given the Borrower or VNV a notice of default; for the
purposes of this paragraph, any statement which clearly
demonstrates that the Lender requires performance shall constitute
a notice of default ("INGEBREKESTELLING").
d. The Administrator fails to issue Receipts as contemplated by this
agreement.
e. Any of the representations and warranties made by the Borrower or
VNV in this agreement was incorrect, incomplete or misleading when
made.
f. Any of the Borrower, VNV, VHBV, Platform or Acsys has ceased to
exist or has been dissolved, has been converted into another legal
form or has been involved in a legal merger or division (other
than the merger of Platform into Acsys).
g. Any of the Borrower, VNV, VHBV, Platform or Acsys has been
declared bankrupt, or it has been granted suspension of payments,
on a temporary basis or otherwise, or any of the Borrower, VNV,
VHBV, Platform or Acsys has lost the free management or disposal
of its
<PAGE>
property in any other way, the foregoing irrespective of
whether that state is final, or any of the Borrower, VNV, VHBV,
Platform or Acsys has offered its creditors a composition outside
a bankruptcy or suspension of payments.
h. The Borrower ceases to own the 100% issued and outstanding capital
stock of Platform prior to the merger with Acsys and subsequent to
the merger of Platform into Acsys the Borrower does not own 100%
of the issued and outstanding capital stock of Acsys.
i. One or more parties (other than the Administrator or any other
entity which holds or acquires Shares for the sole purpose of
issuing depository receipts therefor with the co-operation of VNV)
acquires control ("ZEGGENSCHAP") in the business enterprise
("ONDERNEMING") of VNV within the meaning of the
"SER-Fusiegedragsregels 1975", whether through the transfer,
issue, pledging or transmission of shares or through an agreement
with any shareholder of third party.
j. VNV ceases to own either directly or indirectly 100% of the issued
and outstanding shares of VHBV.
k. One or more assets of the Borrower has become subject to a
security right, other limited right or attachment, other than by
virtue of clause 18 of the General Conditions of the Dutch
Association of Banks ("Nederlandse Vereniging van Banken) other
than as contemplated by any financing arrangements to be entered
into or entered into between VNV of its group companies and ING
Bank N.V. or any one or more, acting alone or in its capacity of
arranger, agent or lender.
l. The Borrower has assumed any additional indebtedness for borrowed
money (other than pursuant to this agreement or in respect of
advances made to cover expenses incurred in connection with the
preparation of this agreement and the other Transaction Documents)
or any liability, directly or indirectly, as surety, joint and
several co-debtor, guarantor or otherwise, for the debts of a
third party.
m. Any litigation, arbitration, or administrative or regulatory
proceeding is commenced by or against a member of the group formed
by VNV and its subsidiaries which could reasonably be expected to
be adversely determined against such party and which, if adversely
determined, (whether by itself or together with any related
claims) could reasonably be expected to have an effect which is
materially adverse to (i) the business, operations or financial
condition of the Borrower, VNV, VHBV or Acsys or (ii) the ability
of the Borrower, VNV, VHBV, Acsys or the Administrator to perform
the obligations contemplated by the Transaction Documents.
n. A body of the Borrower, VNV or VHBV has passed a resolution which,
under the law or the articles of association, is a prerequisite
for the existence of a Event of Default, or the Borrower, VNV or
VHBV has undertaken, or has otherwise become obliged, whether or
not subject to a condition or time limit, to carry out an act
which will constitute a Event of Default if it is carried out.
<PAGE>
o. VHBV (or any of its permitted successors or assigns) has breached
any of its obligations under the Shareholders Agreement among VHBV
and Entero B.V. dated as of May *, 2000 .
p. an "Event of Default" as defined in the On.Loan Agreement shall
have occurred and be continuing.
q. an "Event of Default" as defined in the Share Exchange Agreement
shall have occurred and be continuing.
r. Any of the issued and outstanding shares of VHBV or its permitted
successors in the Borrower shall become subject to a right of
pledge or executorial attachment (EXECUTORIAAL BESLAG) other than
as contemplated by any financing arrangements entered into or to
be entered into between VNV and ING Bank N.V. acting alone or in
its capacity of arranger, agent or lender.
s. Either VNV or VHBV changes or terminates the principal nature of
its business in which it is engaged ("HOUDSTER- EN/OF
FINANCIERINGSMAATSCHAPPIJ VAN ONDERNEMINGEN ACTIEF IN HET
UITZENDWEZEN").
t. Any circumstance occurs which in the Lender's reasonable opinion
justifies the fear that any of the Borrower or VNV will fail to
perform its obligations under this agreement the On.Loan
Agreement, the Shareholders Agreement and the Share Exchange
Agreement, or any one of them or that the Lender's rights of
recourse will be adversely affected.
10.2. If an Event of Default or an event which with notice or passage of time
would constitute an Event of Default occurs or threatens to occur, the
Borrower and VNV shall immediately notify the Lender thereof.
10.3. The Borrower and VNV must compensate the Lender for all damage suffered
by the latter as a result of the Event of Default occurring or in the
Lender's reasonable opinion threatening to occur, irrespective of whether
the Event of Default can be attributed to the Borrower or VNV. The duty
to compensate shall also include any reasonable costs made by the Lender
to prevent the Event of Default, to prevent or limit damage or to enforce
its rights under this agreement in or out of court.
10.4. It is expressly understood that in lieu of making the payment of all
claims referred to in clause 10.1 in cash the Lender may elect to cause
VNV to deliver Receipts in payment thereof. The number of Receipts to be
delivered will be established on the basis of (X) the Exchange Price or
(Y) the price equal to the average closing price ("SLOTKOERS") of
Receipts on the AEX stock exchange (or its succesor stock exchange)
during the five trading days immediately prior to the day on which the
Lender exercises this right, whichever is lower.
<PAGE>
EVIDENCE
CLAUSE 11
An extract from the Lender's administration shall constitute evidence of the
Borrower's obligations under this agreement, subject to manifest error and right
of the Borrower to prove otherwise.
RIGHTS NOT EXCLUSIVE; NO FORFEITURE OF RIGHTS
CLAUSE 12
Any entitlement of the Lender to any right derived from this agreement shall be
without prejudice to any other rights and claims under this agreement and any
rights and claims at law. No right of the Lender under this agreement or by law
shall be affected by a failure to invoke that right or to protest against the
Borrower's or VNV's failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
CLAUSE 13
13.1. This agreement shall not have any effect until each party has received a
copy of this agreement, validly executed by the other party. The
preceding sentence shall not apply to clauses 7, 15 and 16 nor to this
clause 13.1.
13.2. If part of this agreement becomes invalid or non-binding, the parties
shall remain bound to the remaining part. The parties shall replace the
invalid or non-binding part by provisions which are valid and binding and
the legal effect of which, given the contents and purpose of this
agreement, resembles as much as possible that of the invalid or
non-binding part.
13.3. This agreement may not be rescinded in whole or in part. The mistaken
party shall bear the risk of any mistake made in creating this agreement.
13.4. This agreement together with the AIP and the other Transaction Documents
contains the entire agreement of the parties in relation to its subject
matter. Upon execution of this agreement, all previous agreements and
arrangements made by the parties in relation to its subject matter other
than the AIP and the other Transaction Documents shall end.
13.5. This agreement contains no stipulations for the benefit of a third party
which could be invoked by a third party against a party to this
agreement.
13.6. The schedules to this agreement shall form a part thereof.
13.7. This agreement may only be amended or supplemented in writing.
13.8. Clauses 13.1 up to 13.7 (inclusive) shall apply MUTATIS MUTANDIS to all
agreements connected with this agreement, unless the relevant agreement
expressly provides otherwise.
<PAGE>
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
CLAUSE 14
The Borrower may not assign or procure the assumption of, as the case may be,
rights and obligations under this agreement to or by a third party unless it has
obtained the prior written consent of the Lender. The Lender may give its
consent on a conditional basis.
The Lender may assign its rights and obligations under this agreement only to
another entity which forms part of the same group (within the meaning of Section
2:24b of the Dutch Civil Code) as the Lender.
NOTICES; PLACE OF RESIDENCE
CLAUSE 15
15.1. Notices and other statements in connection with this agreement may only
be given by way of a writ or a letter delivered in person or by a courier
against delivery of a receipt or by way of a registered letter with
acknowledgement of receipt or a telex with receipt of the correct code of
receipt, at the recipient's place of residence as most recently nominated
in accordance with clauses 15.2 and 15.3. Each statement must be in the
Dutch or English language. A statement which does not comply with this
clause 15.1 shall have no effect.
15.2. For all matters relating to this agreement, each party nominates the
address referred to below as its place of residence:
<TABLE>
<S> <C> <C> <C>
(i) the Borrower
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: Board of Management
telefax: **
(ii) the Lender
address: Bijlmerplein 888 HG 04.06
PO box: 1800
postal code and city: 1000 BV Amsterdam
country: The Netherlands
for the attention of: Mr J.P.A.M. Vogels
telefax: 020 - 652 39 73
(iii) VNV
address: Jachthavenweg 112
PO box: **
postal code and city: 1076 DC Amsterdam
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
country: The Netherlands
for the attention of: Chairman of the Board of Management
telefax: **
</TABLE>
15.3. A party may nominate a different place of residence from that referred to
in clause 15.2 by notifying the other party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect.
15.4. Clauses 15.1 to 15.3 (inclusive) shall also apply to all matters relating
to agreements which are connected with this agreement, unless the
relevant agreement expressly provides otherwise.
GENERAL CONDITIONS
CLAUSE 16
The general conditions of the Lender attached to this agreement as SCHEDULE 5
shall apply to this agreement, with the exception of article 20 thereof. In
respect of the attached general conditions all references to the Bank are to be
read to refer to the Lender. In case of inconsistency between this Agreement and
the general conditions, the terms of this Agreement shall apply.
GOVERNING LAW; COMPETENT COURT
CLAUSE 17
17.1. This agreement shall be governed exclusively by Dutch law.
17.2. All disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be resolved
in accordance with the Arbitration Rules of the Netherlands Arbitration
Institute ("Nederlands Arbitrage Instituut").
The arbitral panel shall consist of three members. Each party shall
appoint one member within ten (10) business days after the date one of
the parties has given written notice to the other party or parties of the
fact that in its opinion a dispute exists between two or more of the
parties which cannot be resolved through further negotiation. The third
member shall be jointly appointed by the members so appointed. In the
event a party has not appointed a member in time, such member shall be
appointed with due observance of and in accordance with article 14 of the
Arbitration Rules of the Netherlands Arbitration Institute. The place of
arbitration will be Amsterdam, the Netherlands. It is expressly
understood that the foregoing will not preclude parties from instituting
a summary proceeding ("KORT GEDING").
17.3. Clauses 17.1 and 17.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
<PAGE>
CONFIDENTIALITY
CLAUSE 18
18.1. Each of the parties to this agreement (each a "PARTY") undertakes to each
other Party not to disclose the provisions of this agreement unless with
the express written consent of the other Party.
18.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to any other Party and their respective affiliates or their
activities or products, including information concerning suppliers and
customers and other relationships, ("CONFIDENTIAL INFORMATION"), unless
the performance or enforcement of this agreement so requires.
18.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 18.2 only if the third party is under an obligation
and the third party has committed itself in writing to use or disclose
the Confidential Information only in accordance with this clause. Each
Party shall store Confidential Information, or procure its storage, in a
prudent manner, and shall ensure that no third party obtains knowledge of
it in violation of this clause.
18.4. This clause shall not apply to the extent that the other Party in
question is under an obligation to use or disclose information pursuant
to the law, arbitral decision a binding decision of a court or another
government authority or any stock exchange. Where possible, however, the
disclosing Party shall consult with each other Party prior to disclosure
about the form and contents of the disclosure.
18.5. If this agreement ends the obligations of each Party under this clause
shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed in duplicate in the manner set out below.
1. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
2. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
3. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
<PAGE>
SCHEDULE 1
draft
FORM OF STOCK TRANSFER
CERTIFICATE
ASSIGNMENT SEPERATE FORM CERTIFICATE
FOR VALUE RECEIVED, Tiberia B.V., hereby sells, assigns and transfers unto
_______________ Shares of Common Stock, no par value per share, of Acsys Inc., a
Georgia corporation, (the "Corporation") standing in the name of Tiberia B.V. on
the books of the Corporation, represented by Cerfiticate(s) Number(s) _____
herewith and do hereby irrevocably constitute and appoint any officer of the
Corporation as attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
____________________, __________
Tiberia B.V.
By: __________________________
Name:
Title:
<PAGE>
SCHEDULE 2
draft
BORROWING NOTICE
Entero B.V.
[--]
Dear Sirs,
Reference is made to that certain Exchangeable Loan Agreement among Entero B.V.,
Tiberia B.V. and Vedior N.V. dated May *, 2000.
We hereby request you to make the Loan under the Loan Agreement as follows:
Date : -- May *, 2000
Acc. No. : --
(ABA #:
to the attention of ).
Yours sincerely,
By : ______________________
Date : ______________________
<PAGE>
SCHEDULE 3
draft
NOTICE
EXERCISE OF OPTION
Entero B.V.
Bijlmerplein 888 HG 04.06
Post Office Box 1800
1000 BV Amsterdam
The Netherlands
Vedior N.V.
[--]
Stichting Administratiekantoor van gewone aandelen Vedior
[--]
Dear Sirs,
Reference is made to the Exchangeable Loan Agreement between Entero B.V. (the
"LENDER"), Tiberia B.V. (the "BORROWER")and Vedior N.V. ("VNV") dated May [--],
2000 (the "LOAN AGREEMENT"). All defined terms used in this letter shall have
the meaning given to such terms in the Loan Agreement.
This is to inform you that the undersigned hereby notifies you of its exercise
of the option set forth in Clause 4.1 of the Loan Agreement in respect of a
portion of the Outstanding Amount equal to [EURO] [--].
The undersigned hereby requests VNV and the Administrator to take all required
steps in order to arrange for an issue of -- Receipts to the undersigned on
[date] (three business days from date of notice) including without limitation
preparation of a description of assets to be contributed and a statement of
contribution required pursuant to the provisions of the Dutch Civil Code
(BURGERLIJK WETBOEK).
Sincerely yours
Entero B.V.
By ___________________________
Name:
Title:
<PAGE>
SCHEDULE 4
draft
Entero B.V.
Bijlmerplein 888 HG 04.05
Post Office Box 1800
1000 BV Amsterdam
The Netherlands
Dear Sirs,
Reference is made to the Exchangeable Loan Agreement between _________, a
wholly-owned subsidiary of ING Bank Corporate Investments B.V. (the "LENDER"),
Tiberia B.V. (the "BORROWER") and Vedior N.V. ("VNV") dated May [--], 2000 (the
"LOAN AGREEMENT"). All defined terms used in this letter shall have the meaning
given to such terms in the Loan Agreement.
The undersigned hereby informs you that the undersigned hereby exercises the
option set forth in Clause 4.4 of the Loan Agreement.
We will provide you with transfer documents and payment information within two
business days following this notice
Sincerely yours,
Vedior N.V.
By:_______________________
Name:
<PAGE>
SCHEDULE 5
GENERAL CONDITIONS 1
GENERAL CONDITIONS
(Translation* of the original Dutch text)
* This translation is furnished for the Customer's convenience only. The
original Dutch text, which will be sent upon request, will be binding and
shall prevail in case of any variance between the Dutch text and the English
translation.
These General Conditions were drawn up in September 1995 in consultation between
the Netherlands Bankers' Association and the consumers' organisation
"Consumentenbond" within the framework of the Committee for Consumer Affairs of
the Socio-Economic Council (SER). These consultations resulted in agreement on
all articles with the exception of the provisions on liability laid down in
articles 3, 10 and 31 of these General Conditions.
Consumentenbond appreciates the consequences which the assumption of
far-reaching liability may have for the banking business, but in view of its own
responsibilities it cannot agree to the limitations on liability embodied in
these articles.
The banks appreciate this position but they point out that it is impossible for
them to accept general liability: this would entail unpredictable risks for the
banks, which they cannot and may not allow themselves to assume for a variety of
reasons including the interests of their customers.
In consultation with Consumentenbond, however, both parties have emphasized that
the duty of care laid down in article 2 of the Conditions shall always be the
first consideration and that any clauses restricting liability shall not detract
from this duty.
1. SCOPE
All relations including future ones between the Bank's branch-offices in the
Netherlands and the Customer shall be subject to these General Conditions.
The provisions of these General Conditions shall apply to the extent that it is
not otherwise provided in any special conditions applying to specific services
provided by the Bank.
<PAGE>
2 GENERAL CONDITIONS
2. DUTY OF CARE OF THE BANK
The Bank shall exercise due care when providing services. In its provision of
services the Bank shall take the Customer's interests into account to the best
of its ability, on the understanding that the Bank is not obliged to make use of
non-public information known to the Bank, including information which may affect
prices.
3. USE OF THE SERVICES OF THIRD PARTIES
The Bank shall be entitled to use the services of third parties in executing
orders of the Customer and in performing other agreements with the Customer
and also to place goods and/or documents of title of the Customer in the
custody of third parties in the name of the Bank.
The Bank shall exercise due care in selecting such third parties. The Bank shall
not be liable for shortcomings of such third parties, if it can prove that it
exercised due care in selecting them. If in such case the Customer has suffered
damage, the Bank shall in any case assist the Customer as much as possible in
remedying such damage. This shall leave intact any liability of the Bank under
Article 10.
4. THE BANK OR THIRD PARTIES AS THE OTHER PARTY
In executing orders for the purchase and sale of goods and/or documents of
title, the Bank shall be entitled, at its option, to deal either with itself or
with third parties as the other party.
5. RISK OF DISPATCHES
If the Bank, by order of the Customer, dispatches moneys or securities to the
Customer or to third parties, such dispatch shall be at the Bank's risk.
<PAGE>
GENERAL CONDITIONS 3
If the Bank, by order of the Customer, dispatches other goods and/or
documents of title to the Customer or to third parties, such dispatch shall
be at the Customer's risk.
6. STATEMENT OF ADDRESS BY THE CUSTOMER
The Customer shall inform the Bank of the address to which documents intended
for him are to be sent. The Customer shall give written notice of any change of
address.
7. ORDERS ETC. INTENDED FOR SEVERAL BRANCH-OFFICES
Orders, statements and communications from the Customer to the Bank must be
addressed separately to each of the branch-offices of the Bank for which
these orders, statements and communications are intended, unless the Bank has
expressly designated another address. If written orders, statements and
communications are intended for a branch-office of the Bank - expressly
stated by the Customer - other than the branch-office that received these
documents, the latter branch-office shall forward such documents.
8. CHANGES IN THE POWER OF REPRESENTATION OF THE CUSTOMER
If the Customer has granted powers of representation to a person, the Customer
shall notify the Bank in writing of any change in or withdrawal of such powers
notwithstanding their entry in public registers, in default of which
notification such change or withdrawal cannot be invoked against the Bank.
9. USE OF FORMS
The Customer must see to it that orders, statements and communications to the
<PAGE>
4 GENERAL CONDITIONS
Bank are clear and that they contain the correct data. Orders for transfers
shall be executed by the Bank on the basis of the account number stated by the
Customer and the Bank is not obliged to verify the accuracy of the information
stated in the order.
Forms must be fully completed by the Customer. Other data carriers or means of
communication approved by the Bank must be used by the Customer in accordance
with the directions of the Bank.
The Bank shall be entitled not to execute orders if such orders have been given
without the use of forms drawn up or approved by the Bank or of other data
carriers or means of communications approved by the Bank. The Bank may require
communications to be made in a specific form.
10. EXECUTION OF PAYMENT ORDERS
The Bank guarantees the proper execution within a reasonable time of
correctly given orders for the transfer of amounts in Dutch guilders,
provided that such orders can be processed entirely within the giro-circuit
in the Netherlands of the banks associated with the "BankGiroCentrale"
(BankGiroCentre).
Any shortcomings in the execution of such payment orders will make the Bank
liable to indemnify the Customer for the damage suffered as a result up to a
maximum of five hundred Dutch guilders per payment order, without prejudice
to the provisions of the second paragraph of article 31 and without prejudice
to the Bank's obligation - unless otherwise agreed - to see to it that these
payment orders will as yet be executed correctly and without further costs.
The Bank shall not invoke the aforesaid maximum of five hundred guilders if
in an individual case it would not be reasonable and fair to do so.
If, in case of correctly given payment orders which cannot be processed
entirely within the said giro-circuit, the payee's account as specified by
the Customer should fail to be credited, the Bank shall upon the Customer's
request and free of charge make inquiries and try to achieve that the credit
entry will be made yet. Within four weeks of receipt by the Bank of such
request, the Bank shall furnish
<PAGE>
GENERAL CONDITIONS 5
the Customer with a written statement concerning the results of the
inquiries, stating the relevant data.
If the Customer wishes payment orders as referred to in the first paragraph of
this article to be executed by or on a specific date, such execution must be
expressly agreed upon with the Bank.
The above provisions do not prejudice the Bank's authority not to execute
payment orders if the balance of the account does not allow such execution or if
such execution is barred by an attachment of the Customer's account or by other
comparable circumstances.
11. EVIDENTIAL FORCE OF THE BANK'S RECORDS
An abstract from the Bank's records signed by the Bank shall serve as prima
facie evidence vis-a-vis the Customer, subject to rebuttal evidence produced by
the Customer.
12. EXAMINATION OF BANK DOCUMENTS
If the Bank finds that it has made an error or a mistake in any confirmation,
statement of account, note or other statement to the Customer, the Bank shall be
bound to notify the Customer as soon as possible.
The Customer is obliged to examine the confirmations, statements of account,
notes or other statements sent to him by the Bank immediately upon receipt. In
addition, the Customer must check whether orders given by him or on his behalf
have been executed correctly and completely by the Bank. When finding any
inaccuracy or incompleteness, the Customer shall notify the Bank as soon as
possible.
In the above cases the Bank shall be obliged to rectify its mistakes and errors.
<PAGE>
6 GENERAL CONDITIONS
13. APPROVAL OF BANK DOCUMENTS
If the Customer has contested the contents of confirmations, statements of
accounts, notes or other statements of the Bank to the Customer within twelve
months after such documents can reasonably be deemed to have reached the
Customer, the contents of such documents shall be deemed to have been
approved by the Customer. If such docments contain any arithmetical errors,
the Bank may and shall rectify such errors, even after the expiry of the said
twelve months' period.
14. LOSS ETC. OF FORMS
The forms, data carriers and means of communication which the Bank has put at
the disposal of the Customer, must be kept and handled by the Customer with
care.
If the Customer becomes aware of any irregularity such as loss, theft or
misuse with respect to these forms, data carriers or means of communication,
he shall inform the Bank without dalay. Up to the moment this information is
received by the Bank, the consequences of the use of these forms, data
carriers or means of communication shall be for the account and at the risk
of the Customer, unless the Customer proves that blame can be imputed to the
Bank. After the said moment such consequences shall be for the account and at
the risk of the Bank, unless the Bank proves that intent or gross negligence
can be imputed to the Customer.
Any communication concerning irregularities must be confirmed by the Customer
to the Bank in writing.
If notice of termination of the relationship between the Customer and the
Bank has been given, the Customer shall return to the Bank any unused forms
as well as other data carriers and means of communication put at his disposal
by the Bank.
<PAGE>
GENERAL CONDITIONS 7
15. CREDITING AND DEBITING OF INTEREST
At such times as will be determined by the Bank but at least once a year, the
Bank shall credit or debit, as the case may be, the current interest to the
account of the Customer. If the time at which the current interest is
credited to the said account does not coincide with the time at which the
current interest is debited to such account, the Bank shall inform the
Customer in writing.
16. COMMISSIONS AND FEES
The Bank is authorized to charge commissions and fees to the Customer for its
services. If the amount of these commissions and fees has not been previously
agreed upon between the Customer and the Bank, the Bank shall charge its
usual commissions and fees. The Bank shall see to it that information about
this is in any case available at its branch-offices.
17. CREDIT ENTRIES UNDER RESERVE
Each credit entry is made subject to the proviso that, if the Bank is still
to receive the counter-value for such entry, such counter-value will timely
and duly come into its possession. Failing this, the Bank shall be entitled
to reverse the credit entry. If the Customer's guilder account has been
credited on account of documents denominated in a foreign currency or on
account of other items which, as far as the guilder-equivalent is concerned,
are subject to fluctuations in value, the reversal shall be effected by
making a debit entry up to the amount for which the Customer could have
acquired such foreign currency or such items on the day of the reversal.
18. LIEN
The Bank shall have a lien in all goods, documents of title and securities
which are in the possession or will come into the possession of the Bank or
of a third party on the Bank's behalf from or for the benefit of the Customer
on any account.
<PAGE>
8 GENERAL CONDITIONS
whatsoever and in all shares forming part of a collective deposit within the
meaning of the Securities Giro Administration and Transfer Act ("Wet giraal
effectenverkeer") which are in the possession or will come into the possession
of the Bank, as security for all and any present and future debts owing by the
Customer to the Bank on any account whatsoever. In its capacity as the
Customer's attorney the Bank is authorized to pledge all present and future
debts owing by the Bank to the Customer on any account whatsoever to the Bank
itself as security for all and any present or future debts receivable by the
Bank from the Customer on any account whatsoever.
If the Customer wishes to dispose of part of the collateral, the Bank shall
release such part of the collateral provided that the balance of the collateral
remaining after such release offers sufficient coverage for all current or
future debts receivable by the Bank from the Customer.
The Bank shall not be entitled to sell the collateral unless the Customer's debt
to the Bank has become due and payable. In addition, the Bank shall not sell
the collateral before the customer has made default. The Bank's right to sell
the collateral is limited to the extent of Customer's debt.
After the Bank has exercised its right to sell collateral, it shall give the
Customer written notice thereof as soon as possible.
19. RIGHT OF SET-OFF
The Bank shall at all times be entitled to set off all and any debts receivable
by the Bank from the Customer, whether or not due and payable and whether or not
contingent, against any debts owed by the Bank to the Customer, whether due and
payable or not, regardless of the currency in which such debts are denominated.
If, however, the Customer's debt to the Bank or the Bank's debt to the Customer
is not yet due and payable - and provided that the Customer's debt and the
Bank's debt are expressed in the same currency - the Bank shall not exercise its
right of
<PAGE>
GENERAL CONDITIONS 9
set-off except in the event of an attachment being levied upon the Bank's debt
to the Customer or recovery being sought from such debt in any other way, or in
the event that a right in rem is created thereon or the Customer assigns the
Bank's debt to a third party by singular title.
Debts expressed in foreign currency shall be set off at the rate of exchange
pertaining on the day of set-off.
If possible, the Bank shall inform the Customer in advance that it will exercise
its right of set-off.
20. GIVING SECURITY
Upon demand the Customer shall provide adequate security for the fulfilment of
his existing obligations towards the Bank. If the security that has been given
is no longer adequate, the Customer is bound to supplement or replace such
security upon demand. Any such demand shall be made in writing and shall specify
the reason for it. The extent of the security so demanded must bear a reasonable
proportion to the amount of the relative obligations of the Customer.
21. IMMEDIATELY DUE FOR PAYMENT
If the Customer has been given notice of default and still fails to perform any
of his obligations towards the Bank, the Bank shall be entitled to make the
Customer's debts to the Bank immediately due and payable by giving notice. Such
notice shall be made in writing and shall specify the reason for the giving
thereof.
22. CUSTODY OF SECURITIES
The custody of securities which form part of a collective deposit within the
meaning of the Securities Giro Administration and Transfer Act ("Wet giraal
effectenverkeer") held by the Bank shall be subject to the provisions of this
Act
<PAGE>
10 GENERAL CONDITIONS
and to the provision set forth in the next sentence. To the extent these
securities are susceptible of drawings by lot, the Bank shall see to it that
each time a drawing takes place, there shall be allotted to each Customer
individually an amount of securities - designated for redemption - corresponding
to his entitlement.
The custody of all other securities is assumed by ING Bank
Effectenbewaarbedrijf N.V. or by ING Bank Global Custody N.V. to the extent
that they accept such custody under their own conditions. Such custody shall
be subject to the "Rules for the custody of securities" and the "Rules for
bearer securities held outside the Netherlands and for non-bearer
securities", respectively, which rules are set for below after the final
article of these General Conditions.
23. USE OF THE SERVICES OF THIRD PARTIES FOR THE CUSTODY OF SECURITIES
The securities of the Customer which the Bank has placed in the custody of
third parties pursuant to article 3, shall form part of the aggregate of
securities deposited in the name of the Bank with such third parties in one
of the Bank's general securities deposits. The Bank shall not be bound to
cause the serial numbers of these securities to be recorded separately for
each individual Customer.
24. ADMINISTRATION OF SECURITIES DEPOSITS
The Bank is charged with the administration of the Customer's securities
deposit to the extent that the securities deposit consists of securities
admitted to the official quotation on the Official Market or the Parallel
Market of the Amsterdam Stock Exchange.
The duties incidental to this administration include inter alia the duty to
collect interests, redemption payments and dividends, to exercise or realize
subscription rights, to obtain new coupon or dividend sheets, to effect
conversions and to lodge securities for the purpose of meetings.
<PAGE>
GENERAL CONDITIONS 11
If, pursuant to article 3, the Bank has placed securities of the Customer in
the custody of third parties, such third parties shall be charged with the
duties incidental to the administration of these securities, without
prejudice to the Bank's liability under article 3 and without prejudice to
the Bank's obligation to pass on to the Customer any amounts received by the
Bank from such third parties for the benefit of the Customer on account of
interest, redemption payments, dividend or on any other account.
25. SECURITIES NOT SUBJECT TO LIEN
The lien referred to in article 18 does not extend to securities deposited
with the Bank exclusively for specific purposes such as the collection of
interests, redemption payments and dividends, obtaining new coupon or dividend
sheets, effecting conversions or attending meetings.
26. PERIOD OF VALIDITY OF STOCK EXCHANGE ORDERS; REDUCTIONS OF THE LIMIT
The Bank will keep stock exchange orders on its books for a period of time to
be determined by the Bank.
As from the day on which securities are quoted ex-dividend or ex-rights of
subscription, any limit set by the Customer for the purchase or sale of such
securities shall be reduced by the arithmetical value for the dividend or the
subscription right, as the case may be, but only if such reduction of the
limit arises from the regulations or customs applying to the securities in
question.
27. DEFECTIVE SECURITIES
The Bank shall be liable for any defects of securities acquired by the
Customer as a result of transactions concluded by the Bank with itself as
the other party, or as the result of transactions in securities admitted to
the official quotation on the
<PAGE>
12 GENERAL CONDITIONS
official Market or the Parallel Market of the Amsterdam Stock Exchange.
If pursuant to the above provision the Bank is liable, it shall, at the
Customer's option, either as yet deliver securities of the same kind but
without defects or refund the amount charged together with interest thereon,
in both cases against return of the securities originally acquired by the
Customer.
28. COSTS
The costs of legal assistance incurred by the Bank in court proceedings or in
proceedings before a consumer disputes committee on account of a dispute
between the Customer and the Bank shall be for the account of the Customer or
for the account of the Bank, as the case may be, if and to the extent that
the decision or award of such court or such committee includes an award of
costs.
Any costs the Bank has to incur in or out of court if the Bank becomes
involved in legal proceedings or disputes between the Customer and a third
party, shall be for the Customer's account.
Without prejudice to the above provisions all other costs arising for the
Bank from the relationship with the Customer shall be for the Customer's
account within the limits of reasonableness.
29. LAWS OF THE NETHERLANDS; DISPUTES
The relations between the Customer and the Bank shall be governed by the law
of the Netherlands.
Disputes between the Customer and the Bank shall be brought before the
competent Netherlands Court, unless the law or international conventions
contain a mandatory provision to the contrary.
Notwithstanding the foregoing, if the Bank is acting as the plaintiff the
Bank shall
<PAGE>
GENERAL CONDITIONS 13
be entitled to bring disputes before the foreign court having jurisdiction
over the Customer.
Notwithstanding the foregoing, if the Customer is acting as the plaintiff the
Customer shall be entitled to refer disputes to any Consumer Disputes
Committee or Committee of Good Offices to whose competence the Bank has
submitted, within the limits of the rules governing the Committee in question.
30. TERMINATION OF THE RELATIONSHIP
Both the Customer and the Bank may terminate the relationship between the
Customer and the Bank. If the relationship is terminated by the Bank it
shall, upon request, inform the Customer of the reason for such termination.
After notice of termination has been given, the existing individual
agreements between the Customer and the Bank shall be settled as soon as
possible but subject to the applicable time periods. During such settlement
the present General Conditions shall remain in full force.
31. LIABILITY OF THE BANK
Without prejudice to the other provisions of these General Conditions the
Bank shall be liable if any shortcoming in the performance of any obligation
vis-a-vis the Customer is imputable to the Bank or attributable to the Bank by
virtue of the law, any legal act or generally prevailing views.
In any case, insofar as liability is not already excluded by operation of the
law, the Bank shall not be liable if a shortcoming of the Bank is the result
of:
- international conflicts;
- violent or armed actions;
- measures taken by any domestic, foreign or international government
authority;
- measures taken by any supervisory authority;
- boycotts;
<PAGE>
GENERAL CONDITIONS 14
- labour disturbances among the staff of third parties or the Bank's
own staff;
- power failures or breakdown in communication links or equipment or
software of the Bank or of third parties.
Should any circumstance referred to in the preceding paragraph occur, then
the Bank shall take such measures as may reasonably be required from it in
order to reduce the resulting adverse effects for the Customer.
32. DEVIATION FROM THE GENERAL CONDITIONS
Any deviation from the present General Conditions shall be laid down in
writing. Deviations which have not been laid down in writing may be proved by
the parties by all means of evidence admitted by the law.
33. AMENDMENT OF AND ADDITIONS TO THE GENERAL CONDITIONS
Amendments of and additions to the present General Conditions shall not take
effect until after representative Dutch consumers' and employers'
organizations have been consulted about such amendments and additions and also
about the manner in which the Customer will be notified of their contents.
Such notification will in any case have to be made before the expiry of the
thirty days' period referred to below.
The amendments and additions adopted after the said consultations shall be
filed at the Registrar's office of the District Court of Amsterdam. Such
filing shall be announced by a publication in at least three daily newspapers
with national circulation. The amendments and additions which have
been filed in this manner shall be binding upon the Bank and the Customer as
of the thirtiest day after the date of the abovementioned publication.
A copy of these General Conditions has been filed by the Netherlands Bankers'
Association at the Registrar's office of the District Court of Amsterdam on
22 December 1995.
<PAGE>
GENERAL CONDITIONS 15
EXPLANATORY NOTES TO THE GENERAL BANKING CONDITIONS
1. The General Conditions (GC) contain rules for all transactions between
the Customer and the Bank. Such transactions take place within the framework
of the relationship into which the Customer and the Bank have entered.
Such a relationship can be confined to one single agreement, for instance a
transfer account. Of course it can also comprise several elements, such as
the renting of a safe-deposit box or a deposit for moneys or securities. In
the GC all these elements taken together are referred to as the "relation".
The GC do not, however, provide exhaustive regulations for all the elements of
which a relation can be composed. To each separate element further conditions
may - and in practice nearly always will - apply. A savings account e.g. may
be subject to specific additional conditions, which may moreover vary
according to the type of savings account chosen by the Customer. Home
financing is another product offered in various types, each subject to its
own specific conditions. The rules found in the GC are therefore mainly basic
rules regulating the relation between the Customer and the Bank.
For the most common services the Bank has brochures and leaflets, which
provide more detailed information.
2. This article provides that the Bank must exercise due care in its
transactions with the Customer, taking the interests of the Customer into
account to the best of its ability. But the Bank may not disclose all
information at its disposal to just any person coming along. Certain
information is confidential or is provided to the Bank subject to an
undertaking of secrecy. So the Customer will have to proceed on the
assumption that all advice given to him, e.g. about securities transactions,
is based exclusively on public information.
3. There are transactions which the Bank can fully settle "in-house", for
instance the sale of foreign currency over the counter. In a number of cases,
however, the Bank must use the services of third parties to execute orders or
other transactions.
<PAGE>
Exhibit (b)(4)
LOAN AGREEMENT
BETWEEN
TIBERIA B.V.
AND
PLATFORM PURCHASER, INC.
MAY *, 2000
<PAGE>
CONTENTS
page
Clause 1 - Subject *
Clause 2 - Payment of Principal *
Clause 3 - Interest *
Clause 4 - Repayment *
Clause 5 - Costs
Clause 6 - Payment *
Clause 7 - Breach and damages *
Clause 8 - General *
Clause 9 - Governing law; competent court *
SCHEDULES
Schedule 1 - Exchangeable Loan Agreement -
<PAGE>
LOAN AGREEMENT
THE UNDERSIGNED:
1. Platform Purchaser, Inc., a legal entity incorporated under the law of
The State of Georgia, [with registered office in **, **], (the
"BORROWER"),
and
2. Tiberia B.V., a private company with limited liability, with corporate
seat in Amsterdam, and office address at Amsterdam, the Netherlands,
("LENDER"),
WHEREAS:
a. The Lender will enter or has entered into an exchangeable loan agreement
with Entero B.V., a wholly-owned subsidiary of ING Bank Corporate
Investments B.V. on the date hereof (the "EXCHANGEABLE LOAN AGREEMENT") a
copy of which is attached hereto as SCHEDULE 1. The aggregate principal
of the loan (the "LOAN") to be made under the Exchangeable Loan Agreement
(the "LOAN PRINCIPAL") shall be Euro [--]
([EURO] --) (the "LOAN PROCEEDS"),
b. The purpose of the issuance of the Loan is to lend the Loan Proceeds to
the Borrower.
[c. **.]
DECLARE TO HAVE AGREED AS FOLLOWS:
SUBJECT
CLAUSE 1
The Lender agrees to lend to the Borrower, and the Borrower agrees to borrow
from the Lender, an amount (the "PRINCIPAL") equal to the Loan Principal.
PAYMENT OF PRINCIPAL
CLAUSE 2
2.1. The Lender shall pay the nominal amount of the Principal to the Borrower,
(the "PROCEEDS").
<PAGE>
The Proceeds shall be made available to the Borrower on the same day on
which the Lender receives the Loan Proceeds.
2.2. If the Lender fails to perform clause 2.1, it shall not be in default or
be under any obligation to pay damages, unless the failure is due to its
own fault.
INTEREST
CLAUSE 3
3.1 The Borrower shall pay interest to the Lender.
3.2. The interest percentage payable on the Principal shall be equal to the
interest payable on the Loan Principal (the "LOAN INTEREST") increased by
0.2%. Interest shall be calculated on the basis of the actual number of
days elapsed and a year of 360 days.
3.3. Interest shall be paid two business days before each day on which the
Lender has to pay the corresponding Loan Interest Amount under the
Exchangeable Loan Agreement.
REPAYMENT
CLAUSE 4
4.1. The Borrower shall repay the Principal to the Lender two business days
before the day on which the Lender must repay the Loan Principal under
the Exchangeable Loan Agreement.
4.2. Clause 4.1 shall apply irrespective of whether the Lender has to repay
the Loan Principal on the due date or, for whatever reason, early,
pursuant to article 10.1 of the Exchangeable Loan Agreement or otherwise.
4.3. To the extent that the Lender has to pay interest, premiums or other
additional charges upon repayment of the Loan Principal or a part thereof
or otherwise in connection with the Loan, the Borrower shall pay to the
Lender on the second day before the due date thereof an equal amount of
interest, premium and additional charges.
COSTS
CLAUSE 5
The Borrower shall reimburse the Lender for all costs, including taxes and
duties, incurred by the Lender in connection with this agreement. To cover the
costs, including taxes and duties, incurred by the Lender in connection with the
Loan or this agreement, the Borrower shall pay the Lender within five business
days after receiving a request for payment.
<PAGE>
PAYMENT
CLAUSE 6
6.1. All payments under this agreement shall be made exclusively by way of
transfer to [account no. - ] or such other bank or giro account in the
Netherlands as most recently notified in writing to the debtor by the
creditor, such notification to be effected no later than ten days before
payment.
6.2. The amount due must be credited to the correct account no later than
10.00 a.m. (Amsterdam time) on the due date with same day value.
6.3. Each debt under this agreement shall be paid in its full nominal amount.
Each payment must be effected in the currency in which the debt is
expressed. The costs of making a payment shall be for the account of the
Borrower.
6.4. If any statutory provision requires the Borrower to withhold any amount
from a payment, it shall, upon making the payment, pay such additional
amount as is necessary to ensure that the Lender receives the full
nominal amount of the payment. The additional payment shall be for the
account of the Borrower.
BREACH AND DAMAGES
CLAUSE 7
7.1. If the Borrower fails to perform any obligation under this agreement, it
shall be liable to compensate the Lender for all damage suffered by the
latter.
7.2. The damages to be paid by the Borrower shall include:
a. if the Borrower fails to perform an obligation to pay a money
debt, the actual financial loss resulting therefrom; the payment
of such loss shall replace the statutory interest;
b. all costs incurred by the Lender to obtain payment in or out of
court.
7.3. Failure to timely make any payments hereunder or otherwise perform any
obligations hereunder shall constitute an "Event of Default" under this
agreement as a result of which all amounts outstanding together with
interest, fees and charges payable shall immediately become due and
payable.
GENERAL
CLAUSE 8
Clauses 11, 12, 13 and 14 of the Exchangeable Loan Agreement shall apply MUTATIS
MUTANDIS to this agreement.
<PAGE>
GOVERNING LAW; COMPETENT COURT
CLAUSE 9
9.1. This agreement shall be governed exclusively by Dutch law.
9.2. The provisions of clause 17.2 of the Loan Agreement shall apply MUTATIS
MUTANDIS to this agreement.
9.3. Clauses 9.1 and 9.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
CONFIDENTIALITY
CLAUSE 10
10.1. Each of the Borrower and the Lender (each a "PARTY") undertakes to the
other Party not to disclose the provisions of this agreement unless with
the express written consent of the other Party.
10.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to the other Party and their respective affiliates or their
activities or products, including information concerning suppliers and
customers and other relationships, ("CONFIDENTIAL INFORMATION"), unless
the performance or enforcement of this agreement so requires.
10.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 10.2 only if the third party is under an obligation
and the third party has committed itself in writing to use or disclose
the Confidential Information only in accordance with this clause. Each
Party shall store Confidential Information, or procure its storage, in a
prudent manner, and shall ensure that no third party obtains knowledge of
it in violation of this clause.
10.4. This clause shall not apply to the extent that the Party in question is
under an obligation to use or disclose information pursuant to the law,
arbitral decision a binding decision of a court or another government
authority or any stock exchange. Where possible, however, the disclosing
Party shall consult with the other Party prior to disclosure about the
form and contents of the disclosure.
10.5. If the agreement ends, any right of any Party to use or disclose
Confidential Information shall also end. The obligations of each Party
under this clause shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed in duplicate in the manner set out below.
1. By Tiberia B.V.,
<PAGE>
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
and
2. By Platform Purchaser, Inc.,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
<PAGE>
SCHEDULE 1
<PAGE>
EXCHANGEABLE LOAN AGREEMENT
BETWEEN
ENTERO B.V.
AND
TIBERIA B.V.
AND
VEDIOR N.V.
MAY * , 2000
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
page
<S> <C> <C>
Clause 1 -Subject *
Clause 2 -Conditions precedent *
Clause 3 -Payment of principal *
Clause 4 -Exchange right *
Clause 5 -Interest *
Clause 6 -Repayment *
Clause 7 -Costs *
Clause 8 -Payment *
Clause 9 -Representations, warranties and obligations of the Borrower, VNV and the Lender *
Clause 10 -Accelerated maturity *
Clause 11 -Evidence *
Clause 12 -Rights not exclusive; no forfeiture of rights *
Clause 13 -Binding effect and entire agreement; amendment *
Clause 14 -Assignment of rights and obligations *
Clause 15 -Notices; place of residence *
Clause 16 -General conditions *
Clause 17 -Governing law; competent court *
Clause 18 -Confidentiality *
SCHEDULES
Schedule 1 Stock Transfer Form
Schedule 2 Borrowing Notice
Schedule 3 Exercise notice put option
Schedule 4 Exercise option call option
Schedule 5 General conditions of the Lender
</TABLE>
<PAGE>
EXCHANGEABLE LOAN AGREEMENT
THE UNDERSIGNED:
1. TIBERIA B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands (the "BORROWER"),
2. Entero B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands, a wholly-owned subsidiary of ING Bank Corporate Investments
B.V., (the "LENDER"),
3. VEDIOR N.V., a limited liability company under the law of the
Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands ("VNV"),
WHEREAS:
A. ING Bank Corporate Investments B.V., the sole shareholder of the Lender
("CI"), VNV and Vedior Holding B.V. ("VHBV") have entered into an agreement
in principle, dated April 13, 2000, as amended on the date hereof (the
"AIP") pursuant whereto CI has agreed to cause the Lender to provide
financing in the form of equity and loans to the Borrower and Platform
Purchaser Inc., a corporation organised and existing under the laws of the
state of Georgia, United States of America ("PLATFORM"), in order to enable
Platform to acquire shares of common stock in Acsys, Inc., a company under
the laws of the state of Georgia, United States of America ("ACSYS")
pursuant to a tender offer dated April 27, 2000 (the "OFFER") and upon the
Offer having been consummated, Platform is to merge into Acsys in
accordance with and subject to the terms and conditions of an agreement and
plan of merger, dated as of April 16, 2000 (the "PLAN OF MERGER") to which
they each are a party;
B. According to the AIP, the Lender will fund the Borrower with US $ 40
million in debt (the "LOAN") which is exchangeable into depositary receipts
to be issued by Stichting Administratiekantoor van gewone aandelen Vedior,
a "STICHTING" under the law of the Netherlands, with seat in Amsterdam (the
"ADMINISTRATOR"), relating to common shares in the issued share capital of
VNV (the "SHARES");
C. The Lender and the Borrower have further agreed that the Loan will be
expressed in the Euro equivalent of US$ 1 = Euro ---- being a total
principal nominal amount of Euro---.
D. The Works Councils Act ("WET OP DE ONDERNEMINGSRADEN") - to the extent
applicable - has been observed.
E. In addition to this agreement VNV, VHBV and the Lender will enter into a
share exchange agreement the date hereof (the "SHARE EXCHANGE AGREEMENT").
<PAGE>
DECLARE TO HAVE AGREED AS FOLLOWS:
SUBJECT
CLAUSE 1
1.1. The Lender agrees to lend to the Borrower, and the Borrower agrees to
borrow from the Lender, the sum of [--] million Euro ([EURO] --) (the
"PRINCIPAL").
1.2. The Borrower shall use the Principal only for granting a loan in the same
nominal principal amount to Platform in accordance with the terms and
conditions of a loan agreement to be entered into by the Borrower, as
lender, and Platform, as borrower (the "ON-LOAN AGREEMENT") immediately
following the execution of this agreement in order to enable Platform to
purchase all shares tendered in the capital stock of Acsys and to make
payments for any non-tendered shares of common stock in accordance with
the Plan of Merger.
CONDITIONS PRECEDENT
CLAUSE 2
2.1. This agreement shall be subject to the conditions precedent
("OPSCHORTENDE VOORWAARDEN") that on or before May 25, 2000 (9 a.m. New
York City time):
a. the Lender shall have received confirmation from the
Borrower and Platform that all conditions to the Offer
shall have been satisfied;
b. the Lender shall have received an opinion of Sullivan &
Cromwell in form and substance satisfactory to the Lender
as to the validity, enforceability and binding effect of
the documentation relating to the Offer and the
transactions contemplated by this agreement and the AIP and
the effect thereof on ING Bank N.V. and its group
companies with respect to United States federal law;
c. the Lender shall have received an opinion from Mayer, Brown
& Platt in form and substance satisfactory to the Lender in
respect of validity, enforceability and binding effect of
the documentation relating to the issuance of shares in
Platform and validity, enforceability and binding effect of
the documentation contemplated by the AIP to which Platform
is a party, including a confirmation that such shares will
be fully paid and non-assessable and not encumbered with
any security interest;
d. the Lender shall have received a duly executed copy of a
stock transfer form duly and validly executed by the
Borrower in the form of SCHEDULE 1 hereto (the "STOCK
TRANSFER FORM").
2.2. The conditions referred to in paragraphs a, b ,c and d of clause 2.1
shall cease to apply if the Lender informs the Borrower to that effect on
or before the day referred to in clause 2.1.
<PAGE>
PAYMENT OF PRINCIPAL
CLAUSE 3
The Lender shall pay the Principal to the Borrower on or before May 30, 2000, by
transferring such amount to [account info]. The Borrower shall deliver to the
Lender not less than 3 business days prior to the date of funding a duly
executed borrowing notice in the form of SCHEDULE 2.
EXCHANGE RIGHT
CLAUSE 4
4.1 Lender has the right to sell and assign the Loan in its entirety and not
in part to VNV in which event VNV shall have the obligation to acquire
the Loan at a purchase price payable in depository receipts
("CERTIFICATEN") to be issued by the Administrator for Shares, nominal
value NLG 0.05 each (the "RECEIPTS"), at an exchange ratio of one Receipt
per each Euro sixteen ([EURO] 16) of the Outstanding Amount (as
hereinafter defined) so assigned to VNV (the "EXCHANGE PRICE"). The
Lender can exercise this option at any time by sending a notice in the
form of SCHEDULE 3 to the Borrower and VNV, with a copy to the
Administrator. It is expressly agreed that the Lender is only entitled to
exercise this exchange right if simultaneously the Lender or its
affiliate exercises the exchange right pursuant to Clause 1.1 of the
Share Exchange Agreement.
A transfer of the Loan to VNV, in whole and not in part against payment
in the form of Receipts, shall constitute a discharge for the Lender with
respect to its payment of consideration for the Receipts, a discharge for
the Administrator with respect to its obligation to pay up the Shares and
a discharge for VNV in respect of payment of consideration for the
transfer of the Loan.
4.2 If (a) VNV shall (i) split, re-denominate, consolidate or reclassify the
Shares, (ii) alter any right attaching to the Shares (including voting,
dividend and liquidation distribution rights), (iii) issue, redeem or
repurchase Shares or other shares in its share capital against a price
which is less than fair market value at that time (other than the
granting of options and the issuance of shares pursuant thereto to
management and employees in accordance with customary practice), (iv)
engage in a legal merger or demerger, (v) distribute dividends or make
other distributions on the Shares or other shares in its share capital
(other than cash dividends or stock dividends in accordance with
customary practice of VNV), or (vi) perform any other act having an
effect with respect to the Shares similar to the effect of the acts
referred to in (i) to (v), or (b) the Administrator shall take any of the
actions mentioned in (i) to and including (vi) with respect to the
Receipts (except for cash distributions or issuance of depository
receipts in lieu of cash by the Administrator in accordance with
customary practice), VNV shall, within one month after the such action
has been taken, agree with Lender such amendments to this agreement as
are necessary to ensure that the economic and legal effect of Lender's
exchange right remains unaffected by such act.
4.3 If at any time, the price of the Receipts on AEX-stock exchange (or any
successor stock exchange) equals or exceeds Euro twenty ([EURO] 20) for
at least sixty (60) consecutive trading days, the Loan must be exchanged
into Receipts at the Exchange Price by way of assignment as referred to
in clause 4.1.
<PAGE>
4.4 During the month of May 2005 (the "EXERCISE PERIOD"), VNV shall have the
right to purchase, and in such event the Lender shall assign to VNV, the
right to repayment of the nominal amount then outstanding under the Loan
(being the principal plus any overdue interest) (the "OUTSTANDING
AMOUNT") at a purchase price equal to the Outstanding Amount. VNV can
exercise this option by sending the notice in the form of SCHEDULE 4 to
the Lender.
4.5 If VNV does not exercise the option in accordance with clause 4.4, the
Lender may during a period of four weeks after the Exercise Period either
(i) exchange the Outstanding Amount for Receipts by assigning the right
to demand payment of the Outstanding Amount to VNV in which event VNV
must acquire the claim for the Outstanding Amount at a purchase price
payable in Receipts at an exchange price equal to the average closing
price ("SLOTKOERS") of the Receipts on AEX stock exchange (or its
successor stock exchange) during the five trading days immediately prior
to the day on which the Lender exercises this right or (ii) sell, assign
and transfer the shares in Acsys pursuant to the Stock Transfer Form and
apply the proceeds against repayment of Loan and distribute the remaining
proceeds to the Borrower. The Stock Transfer Form is to be used
exclusively for the sale, assignment and transfer of the shares
contemplated by this Clause 4.5.
4.6 Each of VNV and the Borrower hereby unconditionally and irrevocably
undertakes to take or omit to take any action and to execute any document
necessary or desirable to give effect to clause 4.
INTEREST
CLAUSE 5
5.1. The Borrower shall pay to the Lender interest on the Principal or, if
part of the Principal has been repaid or converted, on the amount of
Principal outstanding at any time at an annual rate of 9.5% (9.5
percent).
5.2. After the end of each calendar quarter, the interest due over that period
shall be calculated. The Borrower shall also pay compound interest on the
interest due but not paid calculated at a rate of 9.5% per annum. For the
purposes of clause 5.3, the interest shall be deemed to have been paid to
the Lender on the first day following the period in respect of which it
has been calculated.
5.3. The interest shall accrue from the day on which the underlying amount is
paid to the Borrower up to and including the day before that on which
said amount is due for repayment to the Lender.
5.4. The interest shall be paid each calendar quarter in arrears, on the first
day following the end of the period over which it is due. The interest
for the period running from the day on which the Borrower receives the
Principal up to and including the last day of the then current calendar
quarter shall be paid on the first day of the next succeeding calendar
quarter.
5.5. To calculate the interest due over a particular period, the annual
interest shall be multiplied by a fraction the numerator of which is the
actual number of days in that period and the denominator 360.
<PAGE>
REPAYMENT
CLAUSE 6
6.1. The Loan shall be repaid in full on June 30, 2005 prior to 12:00
Amsterdam time.
6.2. The Borrower may not prepay the Principal or any part thereof.
COSTS
CLAUSE 7
The Borrower shall reimburse the Lender for all reasonable costs incurred by the
latter in preparing, concluding or performing this agreement and setting up the
financing and acquisition structure in accordance with the AIP. In addition, the
Borrower or VNV shall pay, or cause to be paid, all and any amounts due by way
of capital tax or any other tax which is the result of the setting up of the
structure contemplated by the AIP and transactions relating thereto and the
Borrower shall indemnify the Lender in respect of any taxes payable by the
Lender as a result of the structure and transactions contemplated by the AIP
other than for taxes that are in the nature of corporate income taxes. VNV
agrees to reimburse the Borrower in respect of all payments made or to be made
by the Borrower to the Lender pursuant to this clause 7.
PAYMENT
CLAUSE 8
8.1. All payments under this agreement shall be made by debiting account no.
-----("AUTOMATISCHE INCASSO").
8.2. The amount due must be credited to the correct account no later than on
the due date with same day value. If the due date is not a business day,
the payment must be credited to the account no later than on the next
business day together with interest. Business day shall mean a day on
which banks in the Netherlands are open to receive payments.
8.3. If a payment to the Lender has not been made by the due date, the
Borrower shall be in default without any notice and it shall owe the
Lender interest at a monthly rate of 1.00% (one percent) on the overdue
amount. Interest shall accrue from the day on which the default
commences, up to and including the day on which it ends. In calculating
the interest, the overdue amount shall, upon expiry of each month, be
increased by the interest due over that period.
8.4. Each debt under this agreement shall be paid in its full nominal amount.
Each payment must be effected in the currency in which the debt is
expressed. The costs of making a payment shall be for the account of the
Borrower.
<PAGE>
8.5. The Borrower may not set off a debt under this agreement against any
claim on the Lender or suspend its payment on any ground. The Lender may
set off a debt under this agreement against any claim on the Borrower by
notifying the latter thereof.
8.6. If any statutory provision requires the Borrower to withhold any amount
from a payment, it shall, upon making the payment, pay such additional
amount as is necessary to ensure that the Lender receives the full
nominal amount of the debt. The additional payment shall be for the
account of the Borrower.
8.7. A payment to the Lender shall be allocated in the following order:
a. to damage and costs as referred to in clause 10.3;
b. to interest as referred to in clause 8.3;
c. to interest as referred to in clause 5;
d. to the Principal, to the extent that it may be repaid.
REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF THE BORROWER, VNV AND THE LENDER
CLAUSE 9
9.1 The Borrower and VNV hereby represent and warrant (each as to themselves
only) that the following statements are true and correct as of the date
hereof and as of each interest payment date contemplated by clause 5:
(a) The Borrower is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated and
existing under the law of the Netherlands.VNV is a company with limited
liability ("NAAMLOZE VENNOOTSCHAP") validly incorporated and existing
under the laws of the Netherlands.
(b) Each of the Borrower and VNV has the corporate power to enter into this
agreement, the AIP and the agreements contemplated thereby (hereinafter
the "TRANSACTION DOCUMENTS") to which it is a party and to perform its
obligations thereunder. VNV also represents that ANT is empowered to
issue Receipts on behalf of the Administrator pursuant to a valid power
of attorney.
(c) Each of the Borrower and VNV has taken all corporate action to enable it
to enter into this agreement and the other Transaction Documents to which
it is a party and to ensure that this agreement and any other Transaction
Document to which it is a party is legal valid and binding.
(d) The execution and delivery of the Transaction Documents by the Borrower
and VNV do not and will not (i) violate or result in a material violation
of any agreement to which the Borrower or VNV is a
<PAGE>
party, (ii) conflict with any constitutive documents of the Borrower or
VNV or (iii) conflict with any applicable law, regulation or official or
judicial order.
9.2. The Lender hereby represents and warrants that the following statements
are true and correct as of the date hereof:
(a) The Lender is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated and
existing under the law of the Netherlands.
(b) The Lender has the corporate power to enter into this agreement and the
other Transaction Documents to which it is a party and to perform its
obligations thereunder.
(c) The Lender has taken all corporate action to enable it to enter into this
agreement and the other Transaction Documents to which it is a party and
to ensure that this agreement and any other Transaction Document to which
it is a party is legal valid and binding.
(d) The execution and delivery by the Lender of the Transaction Documents to
which it is a party do not and will not (i) violate or result in a
material violation of any agreement to which the Lender is a party, (ii)
conflict with any constitutive documents of the Lender or (iii) conflict
with any applicable law, regulation or judicial order.
9.3. The Borrower and VNV hereby undertake that :
(a) Each of the Borrower and VNV shall deliver, and the Borrower shall cause
Acsys to deliver, the following:
(i) as soon as they become available but and in any event within
120 days after the end of each of its financial years the audited
consolidated financial statements of each of VNV, the Borrower and Acsys;
(ii) as soon as they become available and in any event within 60
days after each of the three first financial quarters the consolidated
quarterly financial statements (and in the case of the second financial
quarter the consolidated semi-annual financial statements) as at the end
of the relevant calendar quarter of each of VNV, the Borrower and Acsys;
such accounts:
(i) in the case of audited financial statements to include a
profit and loss account, balance sheet, cashflow statement and directors
and auditors report thereon;
(ii) in the case of semi-annual and quarterly consolidated
financial statements, to include a profit and loss account, balance
sheet, cashflow statement and management commentary for the entities
included in the relevant statements.
<PAGE>
(b) The Borrower shall comply with reasonable requests from the Lender for
information necessary to the Lender to form an opinion about the
Borrower's or Acsys' financial position or to establish whether there are
any grounds to be concerned that the Borrower will fail to perform its
obligations under this agreement or that the Lender's rights of recourse
will be adversely affected.
ACCELERATED MATURITY
CLAUSE 10
10.1. Without prejudice to any of its other rights and obligations, the Lender
may, at its option, terminate all of its obligations under this agreement
with immediate effect, and demand immediate payment of all of its claims
under this agreement in their nominal amount, by notifying the Borrower,
whether in the country in which the Borrower is established or in any
country in which any property or debtor of the Borrower is located one of
the following events (an "EVENT OF DEFAULT") has occurred and is
continuing:
a. The Borrower has failed to perform any obligation under this
agreement to pay interest as referred to in clause 5 or to repay
Principal on the day such payment becomes due and payable unless
such failure is the result of a technical failure in the payment
system in which case such payment has not been made as soon as
practicably possible.
b. The Borrower shall fail to make payments of dividends annually of
8% of the nominal value of the preferred shares of the Borrower
issued or to be issued to Entero B.V.
c. Any of the Borrower or VNV has failed to perform any obligation
under this agreement other than an obligation referred to in
paragraph a, and, to the extent that such non-performance is
capable of remedy in the reasonable opinion of the Lender, no
performance has taken place within 10 business days after the
Lender has given the Borrower or VNV a notice of default; for the
purposes of this paragraph, any statement which clearly
demonstrates that the Lender requires performance shall constitute
a notice of default ("INGEBREKESTELLING").
d. The Administrator fails to issue Receipts as contemplated by this
agreement.
e. Any of the representations and warranties made by the Borrower or
VNV in this agreement was incorrect, incomplete or misleading when
made.
f. Any of the Borrower, VNV, VHBV, Platform or Acsys has ceased to
exist or has been dissolved, has been converted into another legal
form or has been involved in a legal merger or division (other
than the merger of Platform into Acsys).
g. Any of the Borrower, VNV, VHBV, Platform or Acsys has been
declared bankrupt, or it has been granted suspension of payments,
on a temporary basis or otherwise, or any of the Borrower, VNV,
VHBV, Platform or Acsys has lost the free management or disposal
of its
<PAGE>
property in any other way, the foregoing irrespective of
whether that state is final, or any of the Borrower, VNV, VHBV,
Platform or Acsys has offered its creditors a composition outside
a bankruptcy or suspension of payments.
h. The Borrower ceases to own the 100% issued and outstanding capital
stock of Platform prior to the merger with Acsys and subsequent to
the merger of Platform into Acsys the Borrower does not own 100%
of the issued and outstanding capital stock of Acsys.
i. One or more parties (other than the Administrator or any other
entity which holds or acquires Shares for the sole purpose of
issuing depository receipts therefor with the co-operation of VNV)
acquires control ("ZEGGENSCHAP") in the business enterprise
("ONDERNEMING") of VNV within the meaning of the
"SER-Fusiegedragsregels 1975", whether through the transfer,
issue, pledging or transmission of shares or through an agreement
with any shareholder of third party.
j. VNV ceases to own either directly or indirectly 100% of the issued
and outstanding shares of VHBV.
k. One or more assets of the Borrower has become subject to a
security right, other limited right or attachment, other than by
virtue of clause 18 of the General Conditions of the Dutch
Association of Banks ("Nederlandse Vereniging van Banken) other
than as contemplated by any financing arrangements to be entered
into or entered into between VNV of its group companies and ING
Bank N.V. or any one or more, acting alone or in its capacity of
arranger, agent or lender.
l. The Borrower has assumed any additional indebtedness for borrowed
money (other than pursuant to this agreement or in respect of
advances made to cover expenses incurred in connection with the
preparation of this agreement and the other Transaction Documents)
or any liability, directly or indirectly, as surety, joint and
several co-debtor, guarantor or otherwise, for the debts of a
third party.
m. Any litigation, arbitration, or administrative or regulatory
proceeding is commenced by or against a member of the group formed
by VNV and its subsidiaries which could reasonably be expected to
be adversely determined against such party and which, if adversely
determined, (whether by itself or together with any related
claims) could reasonably be expected to have an effect which is
materially adverse to (i) the business, operations or financial
condition of the Borrower, VNV, VHBV or Acsys or (ii) the ability
of the Borrower, VNV, VHBV, Acsys or the Administrator to perform
the obligations contemplated by the Transaction Documents.
n. A body of the Borrower, VNV or VHBV has passed a resolution which,
under the law or the articles of association, is a prerequisite
for the existence of a Event of Default, or the Borrower, VNV or
VHBV has undertaken, or has otherwise become obliged, whether or
not subject to a condition or time limit, to carry out an act
which will constitute a Event of Default if it is carried out.
<PAGE>
o. VHBV (or any of its permitted successors or assigns) has breached
any of its obligations under the Shareholders Agreement among VHBV
and Entero B.V. dated as of May *, 2000 .
p. an "Event of Default" as defined in the On.Loan Agreement shall
have occurred and be continuing.
q. an "Event of Default" as defined in the Share Exchange Agreement
shall have occurred and be continuing.
r. Any of the issued and outstanding shares of VHBV or its permitted
successors in the Borrower shall become subject to a right of
pledge or executorial attachment (EXECUTORIAAL BESLAG) other than
as contemplated by any financing arrangements entered into or to
be entered into between VNV and ING Bank N.V. acting alone or in
its capacity of arranger, agent or lender.
s. Either VNV or VHBV changes or terminates the principal nature of
its business in which it is engaged ("HOUDSTER- EN/OF
FINANCIERINGSMAATSCHAPPIJ VAN ONDERNEMINGEN ACTIEF IN HET
UITZENDWEZEN").
t. Any circumstance occurs which in the Lender's reasonable opinion
justifies the fear that any of the Borrower or VNV will fail to
perform its obligations under this agreement the On.Loan
Agreement, the Shareholders Agreement and the Share Exchange
Agreement, or any one of them or that the Lender's rights of
recourse will be adversely affected.
10.2. If an Event of Default or an event which with notice or passage of time
would constitute an Event of Default occurs or threatens to occur, the
Borrower and VNV shall immediately notify the Lender thereof.
10.3. The Borrower and VNV must compensate the Lender for all damage suffered
by the latter as a result of the Event of Default occurring or in the
Lender's reasonable opinion threatening to occur, irrespective of whether
the Event of Default can be attributed to the Borrower or VNV. The duty
to compensate shall also include any reasonable costs made by the Lender
to prevent the Event of Default, to prevent or limit damage or to enforce
its rights under this agreement in or out of court.
10.4. It is expressly understood that in lieu of making the payment of all
claims referred to in clause 10.1 in cash the Lender may elect to cause
VNV to deliver Receipts in payment thereof. The number of Receipts to be
delivered will be established on the basis of (X) the Exchange Price or
(Y) the price equal to the average closing price ("SLOTKOERS") of
Receipts on the AEX stock exchange (or its succesor stock exchange)
during the five trading days immediately prior to the day on which the
Lender exercises this right, whichever is lower.
<PAGE>
EVIDENCE
CLAUSE 11
An extract from the Lender's administration shall constitute evidence of the
Borrower's obligations under this agreement, subject to manifest error and right
of the Borrower to prove otherwise.
RIGHTS NOT EXCLUSIVE; NO FORFEITURE OF RIGHTS
CLAUSE 12
Any entitlement of the Lender to any right derived from this agreement shall be
without prejudice to any other rights and claims under this agreement and any
rights and claims at law. No right of the Lender under this agreement or by law
shall be affected by a failure to invoke that right or to protest against the
Borrower's or VNV's failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
CLAUSE 13
13.1. This agreement shall not have any effect until each party has received a
copy of this agreement, validly executed by the other party. The
preceding sentence shall not apply to clauses 7, 15 and 16 nor to this
clause 13.1.
13.2. If part of this agreement becomes invalid or non-binding, the parties
shall remain bound to the remaining part. The parties shall replace the
invalid or non-binding part by provisions which are valid and binding and
the legal effect of which, given the contents and purpose of this
agreement, resembles as much as possible that of the invalid or
non-binding part.
13.3. This agreement may not be rescinded in whole or in part. The mistaken
party shall bear the risk of any mistake made in creating this agreement.
13.4. This agreement together with the AIP and the other Transaction Documents
contains the entire agreement of the parties in relation to its subject
matter. Upon execution of this agreement, all previous agreements and
arrangements made by the parties in relation to its subject matter other
than the AIP and the other Transaction Documents shall end.
13.5. This agreement contains no stipulations for the benefit of a third party
which could be invoked by a third party against a party to this
agreement.
13.6. The schedules to this agreement shall form a part thereof.
13.7. This agreement may only be amended or supplemented in writing.
13.8. Clauses 13.1 up to 13.7 (inclusive) shall apply MUTATIS MUTANDIS to all
agreements connected with this agreement, unless the relevant agreement
expressly provides otherwise.
<PAGE>
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
CLAUSE 14
The Borrower may not assign or procure the assumption of, as the case may be,
rights and obligations under this agreement to or by a third party unless it has
obtained the prior written consent of the Lender. The Lender may give its
consent on a conditional basis.
The Lender may assign its rights and obligations under this agreement only to
another entity which forms part of the same group (within the meaning of Section
2:24b of the Dutch Civil Code) as the Lender.
NOTICES; PLACE OF RESIDENCE
CLAUSE 15
15.1. Notices and other statements in connection with this agreement may only
be given by way of a writ or a letter delivered in person or by a courier
against delivery of a receipt or by way of a registered letter with
acknowledgement of receipt or a telex with receipt of the correct code of
receipt, at the recipient's place of residence as most recently nominated
in accordance with clauses 15.2 and 15.3. Each statement must be in the
Dutch or English language. A statement which does not comply with this
clause 15.1 shall have no effect.
15.2. For all matters relating to this agreement, each party nominates the
address referred to below as its place of residence:
<TABLE>
<S> <C> <C> <C>
(i) the Borrower
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: Board of Management
telefax: **
(ii) the Lender
address: Bijlmerplein 888 HG 04.06
PO box: 1800
postal code and city: 1000 BV Amsterdam
country: The Netherlands
for the attention of: Mr J.P.A.M. Vogels
telefax: 020 - 652 39 73
(iii) VNV
address: Jachthavenweg 112
PO box: **
postal code and city: 1076 DC Amsterdam
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
country: The Netherlands
for the attention of: Chairman of the Board of Management
telefax: **
</TABLE>
15.3. A party may nominate a different place of residence from that referred to
in clause 15.2 by notifying the other party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect.
15.4. Clauses 15.1 to 15.3 (inclusive) shall also apply to all matters relating
to agreements which are connected with this agreement, unless the
relevant agreement expressly provides otherwise.
GENERAL CONDITIONS
CLAUSE 16
The general conditions of the Lender attached to this agreement as SCHEDULE 5
shall apply to this agreement, with the exception of article 20 thereof. In
respect of the attached general conditions all references to the Bank are to be
read to refer to the Lender. In case of inconsistency between this Agreement and
the general conditions, the terms of this Agreement shall apply.
GOVERNING LAW; COMPETENT COURT
CLAUSE 17
17.1. This agreement shall be governed exclusively by Dutch law.
17.2. All disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be resolved
in accordance with the Arbitration Rules of the Netherlands Arbitration
Institute ("Nederlands Arbitrage Instituut").
The arbitral panel shall consist of three members. Each party shall
appoint one member within ten (10) business days after the date one of
the parties has given written notice to the other party or parties of the
fact that in its opinion a dispute exists between two or more of the
parties which cannot be resolved through further negotiation. The third
member shall be jointly appointed by the members so appointed. In the
event a party has not appointed a member in time, such member shall be
appointed with due observance of and in accordance with article 14 of the
Arbitration Rules of the Netherlands Arbitration Institute. The place of
arbitration will be Amsterdam, the Netherlands. It is expressly
understood that the foregoing will not preclude parties from instituting
a summary proceeding ("KORT GEDING").
17.3. Clauses 17.1 and 17.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
<PAGE>
CONFIDENTIALITY
CLAUSE 18
18.1. Each of the parties to this agreement (each a "PARTY") undertakes to each
other Party not to disclose the provisions of this agreement unless with
the express written consent of the other Party.
18.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to any other Party and their respective affiliates or their
activities or products, including information concerning suppliers and
customers and other relationships, ("CONFIDENTIAL INFORMATION"), unless
the performance or enforcement of this agreement so requires.
18.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 18.2 only if the third party is under an obligation
and the third party has committed itself in writing to use or disclose
the Confidential Information only in accordance with this clause. Each
Party shall store Confidential Information, or procure its storage, in a
prudent manner, and shall ensure that no third party obtains knowledge of
it in violation of this clause.
18.4. This clause shall not apply to the extent that the other Party in
question is under an obligation to use or disclose information pursuant
to the law, arbitral decision a binding decision of a court or another
government authority or any stock exchange. Where possible, however, the
disclosing Party shall consult with each other Party prior to disclosure
about the form and contents of the disclosure.
18.5. If this agreement ends the obligations of each Party under this clause
shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed in duplicate in the manner set out below.
1. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
2. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
3. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],] in ** on **
<PAGE>
SCHEDULE 1
draft
FORM OF STOCK TRANSFER
CERTIFICATE
ASSIGNMENT SEPERATE FORM CERTIFICATE
FOR VALUE RECEIVED, Tiberia B.V., hereby sells, assigns and transfers unto
_______________ Shares of Common Stock, no par value per share, of Acsys Inc., a
Georgia corporation, (the "Corporation") standing in the name of Tiberia B.V. on
the books of the Corporation, represented by Cerfiticate(s) Number(s) _____
herewith and do hereby irrevocably constitute and appoint any officer of the
Corporation as attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
____________________, __________
Tiberia B.V.
By: __________________________
Name:
Title:
<PAGE>
SCHEDULE 2
draft
BORROWING NOTICE
Entero B.V.
[--]
Dear Sirs,
Reference is made to that certain Exchangeable Loan Agreement among Entero B.V.,
Tiberia B.V. and Vedior N.V. dated May *, 2000.
We hereby request you to make the Loan under the Loan Agreement as follows:
Date : -- May *, 2000
Acc. No. : --
(ABA #:
to the attention of ).
Yours sincerely,
By : ______________________
Date : ______________________
<PAGE>
SCHEDULE 3
draft
NOTICE
EXERCISE OF OPTION
Entero B.V.
Bijlmerplein 888 HG 04.06
Post Office Box 1800
1000 BV Amsterdam
The Netherlands
Vedior N.V.
[--]
Stichting Administratiekantoor van gewone aandelen Vedior
[--]
Dear Sirs,
Reference is made to the Exchangeable Loan Agreement between Entero B.V. (the
"LENDER"), Tiberia B.V. (the "BORROWER")and Vedior N.V. ("VNV") dated May [--],
2000 (the "LOAN AGREEMENT"). All defined terms used in this letter shall have
the meaning given to such terms in the Loan Agreement.
This is to inform you that the undersigned hereby notifies you of its exercise
of the option set forth in Clause 4.1 of the Loan Agreement in respect of a
portion of the Outstanding Amount equal to [EURO] [--].
The undersigned hereby requests VNV and the Administrator to take all required
steps in order to arrange for an issue of -- Receipts to the undersigned on
[date] (three business days from date of notice) including without limitation
preparation of a description of assets to be contributed and a statement of
contribution required pursuant to the provisions of the Dutch Civil Code
(BURGERLIJK WETBOEK).
Sincerely yours
Entero B.V.
By ___________________________
Name:
Title:
<PAGE>
SCHEDULE 4
draft
Entero B.V.
Bijlmerplein 888 HG 04.05
Post Office Box 1800
1000 BV Amsterdam
The Netherlands
Dear Sirs,
Reference is made to the Exchangeable Loan Agreement between _________, a
wholly-owned subsidiary of ING Bank Corporate Investments B.V. (the "LENDER"),
Tiberia B.V. (the "BORROWER") and Vedior N.V. ("VNV") dated May [--], 2000 (the
"LOAN AGREEMENT"). All defined terms used in this letter shall have the meaning
given to such terms in the Loan Agreement.
The undersigned hereby informs you that the undersigned hereby exercises the
option set forth in Clause 4.4 of the Loan Agreement.
We will provide you with transfer documents and payment information within two
business days following this notice
Sincerely yours,
Vedior N.V.
By:_______________________
Name:
<PAGE>
SCHEDULE 5
GENERAL CONDITIONS 1
GENERAL CONDITIONS
(Translation* of the original Dutch text)
* This translation is furnished for the Customer's convenience only. The
original Dutch text, which will be sent upon request, will be binding and
shall prevail in case of any variance between the Dutch text and the English
translation.
These General Conditions were drawn up in September 1995 in consultation between
the Netherlands Bankers' Association and the consumers' organisation
"Consumentenbond" within the framework of the Committee for Consumer Affairs of
the Socio-Economic Council (SER). These consultations resulted in agreement on
all articles with the exception of the provisions on liability laid down in
articles 3, 10 and 31 of these General Conditions.
Consumentenbond appreciates the consequences which the assumption of
far-reaching liability may have for the banking business, but in view of its own
responsibilities it cannot agree to the limitations on liability embodied in
these articles.
The banks appreciate this position but they point out that it is impossible for
them to accept general liability: this would entail unpredictable risks for the
banks, which they cannot and may not allow themselves to assume for a variety of
reasons including the interests of their customers.
In consultation with Consumentenbond, however, both parties have emphasized that
the duty of care laid down in article 2 of the Conditions shall always be the
first consideration and that any clauses restricting liability shall not detract
from this duty.
1. SCOPE
All relations including future ones between the Bank's branch-offices in the
Netherlands and the Customer shall be subject to these General Conditions.
The provisions of these General Conditions shall apply to the extent that it is
not otherwise provided in any special conditions applying to specific services
provided by the Bank.
<PAGE>
2 GENERAL CONDITIONS
2. DUTY OF CARE OF THE BANK
The Bank shall exercise due care when providing services. In its provision of
services the Bank shall take the Customer's interests into account to the best
of its ability, on the understanding that the Bank is not obliged to make use of
non-public information known to the Bank, including information which may affect
prices.
3. USE OF THE SERVICES OF THIRD PARTIES
The Bank shall be entitled to use the services of third parties in executing
orders of the Customer and in performing other agreements with the Customer
and also to place goods and/or documents of title of the Customer in the
custody of third parties in the name of the Bank.
The Bank shall exercise due care in selecting such third parties. The Bank shall
not be liable for shortcomings of such third parties, if it can prove that it
exercised due care in selecting them. If in such case the Customer has suffered
damage, the Bank shall in any case assist the Customer as much as possible in
remedying such damage. This shall leave intact any liability of the Bank under
Article 10.
4. THE BANK OR THIRD PARTIES AS THE OTHER PARTY
In executing orders for the purchase and sale of goods and/or documents of
title, the Bank shall be entitled, at its option, to deal either with itself or
with third parties as the other party.
5. RISK OF DISPATCHES
If the Bank, by order of the Customer, dispatches moneys or securities to the
Customer or to third parties, such dispatch shall be at the Bank's risk.
<PAGE>
GENERAL CONDITIONS 3
If the Bank, by order of the Customer, dispatches other goods and/or
documents of title to the Customer or to third parties, such dispatch shall
be at the Customer's risk.
6. STATEMENT OF ADDRESS BY THE CUSTOMER
The Customer shall inform the Bank of the address to which documents intended
for him are to be sent. The Customer shall give written notice of any change of
address.
7. ORDERS ETC. INTENDED FOR SEVERAL BRANCH-OFFICES
Orders, statements and communications from the Customer to the Bank must be
addressed separately to each of the branch-offices of the Bank for which
these orders, statements and communications are intended, unless the Bank has
expressly designated another address. If written orders, statements and
communications are intended for a branch-office of the Bank - expressly
stated by the Customer - other than the branch-office that received these
documents, the latter branch-office shall forward such documents.
8. CHANGES IN THE POWER OF REPRESENTATION OF THE CUSTOMER
If the Customer has granted powers of representation to a person, the Customer
shall notify the Bank in writing of any change in or withdrawal of such powers
notwithstanding their entry in publich registers, in default of which
notification such change or withdrawal cannot be invoked against the Bank.
9. USE OF FORMS
The Customer must see to it that orders, statements and communications to the
<PAGE>
4 GENERAL CONDITIONS
Bank are clear and that they contain the correct data. Orders for transfers
shall be executed by the Bank on the basis of the account number stated by the
Customer and the Bank is not obliged to verify the accuracy of the information
stated in the order.
Forms must be fully completed by the Customer. Other data carriers or means of
communication approved by the Bank must be used by the Customer in accordance
with the directions of the Bank.
The Bank shall be entitled not to execute orders if such orders have been given
without the use of forms drawn up or approved by the Bank or of other data
carriers or means of communications approved by the Bank. The Bank may require
communications to be made in a specific form.
10. EXECUTION OF PAYMENT ORDERS
The Bank guarantees the proper execution within a reasonable time of
correctly given orders for the transfer of amounts in Dutch guilders,
provided that such orders can be processed entirely within the giro-circuit
in the Netherlands of the banks associated with the "BankGiroCentrale"
(BankGiroCentre).
Any shortcomings in the execution of such payment orders will make the Bank
liable to indemnify the Customer for the damage suffered as a result up to a
maximum of five hundred Dutch guilders per payment order, without prejudice
to the provisions of the second paragraph of article 31 and without prejudice
to the Bank's obligation - unless otherwise agreed - to see to it that these
payment orders will as yet be executed correctly and without further costs.
The Bank shall not invoke the aforesaid maximum of five hundred guilders if
in an individual case it would not be reasonable and fair to do so.
If, in case of correctly given payment orders which cannot be processed
entirely within the said giro-circuit, the payee's account as specified by
the Customer should fail to be credited, the Bank shall upon the Customer's
request and free of charge make inquiries and try to achieve that the credit
entry will be made yet. Within four weeks of receipt by the Bank of such
request, the Bank shall furnish
<PAGE>
GENERAL CONDITIONS 5
the Customer with a written statement concerning the results of the
inquiries, stating the relevant data.
If the Customer wishes payment orders as referred to in the first paragraph of
this article to be executed by or on a specific date, such execution must be
expressly agreed upon with the Bank.
The above provisions do not prejudice the Bank's authority not to execute
payment orders if the balance of the account does not allow such execution or if
such execution is barred by an attachment of the Customer's account or by other
comparable circumstances.
11. EVIDENTIAL FORCE OF THE BANK'S RECORDS
An abstract from the Bank's records signed by the Bank shall serve as prima
facie evidence vis-a-vis the Customer, subject to rebuttal evidence produced by
the Customer.
12. EXAMINATION OF BANK DOCUMENTS
If the Bank finds that it has made an error or a mistake in any confirmation,
statement of account, note or other statement to the Customer, the Bank shall be
bound to notify the Customer as soon as possible.
The Customer is obliged to examine the confirmations, statements of account,
notes or other statements sent to him by the Bank immediately upon receipt. In
addition, the Customer must check whether orders given by him or on his behalf
have been executed correctly and completely by the Bank. When finding any
inaccuracy or incompleteness, the Customer shall notify the Bank as soon as
possible.
In the above cases the Bank shall be obliged to rectify its mistakes and errors.
<PAGE>
6 GENERAL CONDITIONS
13. APPROVAL OF BANK DOCUMENTS
If the Customer has contested the contents of confirmations, statements of
accounts, notes or other statements of the Bank to the Customer within twelve
months after such documents can reasonably be deemed to have reached the
Customer, the contents of such documents shall be deemed to have been
approved by the Customer. If such docments contain any arithmetical errors,
the Bank may and shall rectify such errors, even after the expiry of the said
twelve months'period
14. LOSS ETC. OF FORMS
The forms, data carriers and means of communication which the Bank has put at
the disposal of the Customer, must be kept and handled by the Customer with
care.
If the Customer becomes aware of any irregularity such as loss, theft or
misuse with respect to these forms, data carriers or means of communication,
he shall inform the Bank without dalay. Up to the moment this information is
received by the Bank, the consequences of the use of these forms, data
carriers or means of communication shall be for the account and at the risk
of the Customer, unless the Customer proves that blame can be imputed to the
Bank. After the said moment such consequences shall be for the account and at
the risk of the Bank, unless the Bank proves that intent or gross negligence
can be imputed to the Customer.
Any communication concerning irregularities must be confirmed by the Customer
to the Bank in writing.
If notice of termination of the relationship between the Customer and the
Bank has been given, the Customer shall return to the Bank any unused forms
as well as other data carriers and means of communication put at his disposal
by the Bank.
<PAGE>
GENERAL CONDITIONS 7
15. CREDITING AND DEBITING OF INTEREST
At such times as will be determined by the Bank but at least once a year, the
Bank shall credit or debit, as the case may be, the current interest to the
account of the Customer. If the time at which the current interest is
credited to the said account does not coincide with the time at which the
current interest is debited to such account, the Bank shall inform the
Customer in writing.
16. COMMISSIONS AND FEES
The Bank is authorized to charge commissions and fees to the Customer for its
services. If the amount of these commissions and fees has not been previously
agreed upon between the Customer and the Bank, the Bank shall charge its
usual commissions and fees. The Bank shall see to it that information about
this in any case available at its branch-offices.
17. CREDIT ENTRIES UNDER RESERVE
Each credit entry is made subject to the proviso that, if the Bank is still
to receive the counter-value for such entry, such counter-value will timely
and duly come into its possession. Failing this, the Bank shall be entitled
to reverse the credit entry. If the Customer's guilder account has been
credited on account of documents denominated in a foreign currency or on
account of other items which, as far as the guilder-equivalent is concerned,
are subject to fluctuations in value, the reversal shall be effected by
making a debit entry up to the amount for which the Customer could have
acquired such foreign currency or such items on the day of the reversal.
18. LIEN
The Bank shall have a lien in all goods, documents of title and securities
which are in the possession or will come into the possession of the Bank or
of a third party on the Bank's behalf from or for the benefit of the Customer
on any account.
<PAGE>
8 GENERAL CONDITIONS
whatsoever and in all shares forming part of a collective deposit within the
meaning of the Securities Giro Administration and Transfer Act ("Wet giraal
effectenverkeer") which are in the possession or will come into the possession
of the Bank, as security for all and any present and future debts owing by the
Customer to the Bank on any account whatsoever. In its capacity as the
Customer's attorney the Bank is authorized to pledge all present and future
debts owing by the Bank to the Customer on any account whatsoever to the Bank
itself as security for all and any present or future debts receivable by the
Bank from the Customer on any account whatsoever.
If the Customer wishes to dispose of part of the collateral, the Bank shall
release such part of the collateral provided that the balance of the collateral
remaining after such release offers sufficient coverage for all current or
future debts receivable by the Bank from the Customer.
The Bank shall not be entitled to sell the collateral unless the Customer's debt
to the Bank has become due and payable. In addition, the Bank shall not sell
the collateral before the customer has made default. The Bank's right to sell
the collateral is limited to the extent of Customer's debt.
After the Bank has exercised its right to sell collateral, it shall give the
Customer written notice thereof as soon as possible.
19. RIGHT OF SET-OFF
The Bank shall at all times be entitled to set off all and any debts receivable
by the Bank from the Customer, whether or not due and payable and whether or not
contingent, against any debts owed by the Bank to the Customer, whether due and
payable or not, regardless of the currency in which such debts are denominated.
If, however, the Customer's debt to the Bank or the Bank's debt to the Customer
is not yet due and payable - and provided that the Customer's debt and the
Bank's debt are expressed in the same currency - the Bank shall not exercise its
right of
<PAGE>
GENERAL CONDITIONS 9
set-off except in the event of an attachment being levied upon the Bank's debt
to the Customer or recovery being sought from such debt in any other way, or in
the event that a right in rem is created thereon or the Customer assigns the
Bank's debt to a third party by singular title.
Debts expressed in foreign currency shall be set off at the rate of exchange
pertaining on the day of set-off.
If possible, the Bank shall inform the Customer in advance that it will exercise
its right of set-off.
20. GIVING SECURITY
Upon demand the Customer shall provide adequate security for the fulfillment of
his existing obligations towards the Bank. If the security that has been given
is no longer adequate, the Customer is bound to supplement or replace such
security upon demand. Any such demand shall be made in writing and shall specify
the reason for it. The extent of the security so demanded must bear a reasonable
proportion to the amount of the relative obligations of the Customer.
21. IMMEDIATELY DUE FOR PAYMENT
If the Customer has been given notice of default and still fails to perform any
of his obligations towards the Bank, the Bank shall be entitled to make the
Customer's debts to the Bank immediately due and payable by giving notice. Such
notice shall be made in writing and shall specify the reason for the giving
thereof.
22. CUSTODY OF SECURITIES
The custody of securities which form part of a collective deposit within the
meaning of the Securities Giro Administration and Transfer Act ("Wet giraal
effectenverkeer") held by the Bank shall be subject to the provisions of this
Act
<PAGE>
10 GENERAL CONDITIONS
and to the provision set forth in the next sentence. To the extent these
securities are susceptible of drawings by lot, the Bank shall see to it that
each time a drawing takes place, there shall be allotted to each Customer
individually an amount of securities - designated for redemption - corresponding
to his entitlement.
The custody of all other securities is assumed by ING Bank
Effectenbewaarbedrijf N.V. or by ING Bank Global Custody N.V. to the extent
that they accept such custody under their own conditions. Such custody shall
be subject to the "Rules for the custody of securities" and the "Rules for
bearer securities held outside the Netherlands and for non-bearer
securities", respectively, which rules are set for below after the final
article of these General Conditions.
23. USE OF THE SERVICES OF THIRD PARTIES FOR THE CUSTODY OF SECURITIES
The securities of the Customer which the Bank has placed in the custody of
third parties pursuant to article 3, shall form part of the aggregate of
securities deposited in the name of the Bank with such third parties in one
of the Bank's general securities deposits. The Bank shall not be bound to
cause the serial numbers of these securities to be recorded separately for
each individual Customer.
24. ADMINISTRATION OF SECURITIES DEPOSITS
The Bank is charged with the administration of the Customer's securities
deposit to the extent that the securities deposit consists of securities
admitted to the official quotation on the Official Market or the Parallel
Market of the Amsterdam Stock Exchange.
The duties incidental to this administration include inter alia the duty to
collect interests, redemption payments and dividends, to exercise or realize
subscription rights, to obtain new coupon or dividend sheets, to effect
conversions and to lodge securities for the purpose of meetings.
<PAGE>
GENERAL CONDITIONS 11
If, pursuant to article 3, the Bank has placed securities of the Customer in
the custody of third parties, such third parties shall be charged with the
duties incidental to the administration of these securities, without
prejudice to the Bank's liability under article 3 and without prejudice to
the Bank's obligation to pass on to the Customer any amounts received by the
Bank from such third parties for the benefit of the Customer on account of
interest, redemption payments, dividend or on any other account.
25. SECURITIES NOT SUBJECT TO LIEN
The lien referred to in article 18 does not extend to securities deposited
with the Bank exclusively for specific purposes such as the collection of
interests, redemption payments and dividends, obtaining new coupon or dividend
sheets, effecting conversions or attending meetings.
26. PERIOD OF VALIDITY OF STOCK EXCHANGE ORDERS; REDUCTIONS OF THE LIMIT
The Bank will keep stock exchange orders on its books for a period of time to
be determined by the Bank.
As from the day on which securities are quoted ex-dividend or ex-rights of
subscription, any limit set by the Customer for the purchase or sale of such
securities shall be reduced by the arithmetical value for the dividend or the
subscription right, as the case may be, but only if such reduction of the
limit arises from the regulations or customs applying to the securities in
question.
27. DEFECTIVE SECURITIES
The Bank shall be liable for any defects of securities acquired by the
Customer as a result of transactions concluded by the Bank with itself as
the other party, or as the result of transactions in securities admitted to
the official quotation on the
<PAGE>
12 GENERAL CONDITIONS
official Market or the Parallel Market of the Amsterdam Stock Exchange.
If pursuant to the above provision the Bank is liable, it shall, at the
Customer's option, either as yet deliver securities of the same kind but
without defects or refund the amount charged together with interest thereon,
in both cases against return of the securities originally acquired by the
Customer.
28. COSTS
The costs of legal assistance incurred by the Bank in court proceedings or in
proceedings before a consumer disputes committee on account of a dispute
between the Customer and the Bank shall be for the account of the Customer or
for the account of the Bank, as the case may be, if and to the extent that
the decision or award of such court or such committee includes an award of
costs.
Any costs the Bank has to incur in or out of court if the Bank becomes
involved in legal proceedings or disputes between the Customer and a third
party, shall be for the Customer's account.
Without prejudice to the above provisions all other costs arising for the
Bank from the relationship with the Customer shall be for the Customer's
account within the limits of reasonableness.
29. LAWS OF THE NETHERLANDS; DISPUTES
The relations between the Customer and the Bank shall be governed by the law
of the Netherlands.
Disputes between the Customer and the Bank shall be brought before the
competent Netherlands Court, unless the law or international conventions
contain a mandatory provision to the contrary.
Notwithstanding the foregoing, if the Bank is acting as the plaintiff the
Bank shall
<PAGE>
GENERAL CONDITIONS 13
be entitled to bring disputes before the foreign court having jurisdiction
over the Customer.
Notwithstanding the foregoing, if the Customer is acting as the plaintiff the
Customer shall be entitled to refer disputes to any Consumer Disputes
Committee or Committee of Good Offices to whose competence the Bank has
submitted, within the limits of the rules governing the Committee in question.
30. TERMINATION OF THE RELATIONSHIP
Both the Customer and the Bank may terminate the relationship between the
Customer and the Bank. If the relationship is terminated by the Bank it
shall, upon request, inform the Customer of the reason for such termination.
After notice of termination has been given, the existing individual
agreements between the Customer and the Bank shall be settled as soon as
possible but subject to the applicable time periods. During such settlement
the present General Conditions shall remain in full force.
31. LIABILITY OF THE BANK
Without prejudice to the other provisions of these General Conditions the
Bank shall be liable if any shortcoming in the performance of any obligation
vis-a-vis the Customer is imputable to the Bank or attributable to the Bank by
virtue of the law, any legal act or generally prevailing views.
In any case, insofar as liability is not already excluded by operation of the
law, the Bank shall not be liable if a shortcoming of the Bank is the result
of:
- international conflicts;
- violent or armed actions;
- measures taken by any domestic, foreign or international government
authority;
- measures taken by any supervisory authority;
- boycotts;
<PAGE>
GENERAL CONDITIONS 14
- labour disturbances among the staff of third parties or the Bank's
own staff;
- power failures or breakdown in communication links or equipment or
software of the Bank or of third parties.
Should any circumstance referred to in the preceding paragraph occur, then
the Bank shall take such measures as may reasonably be required from it in
order to reduce the resulting adverse effects for the Customer.
32. DEVIATION FROM THE GENERAL CONDITIONS
Any deviation from the present General Conditions shall be laid down in
writing. Deviations which have not been laid down in writing may be proved by
the parties by all means of evidence admitted by the law.
33. AMENDMENT OF AND ADDITIONS TO THE GENERAL CONDITIONS
Amendments of and additions to the present General Conditions shall not take
effect until after representative Dutch consumers' and employers'
organizations have been consulted about such amendments and additions and also
about the manner in which the Customer will be notified of their contents.
Such notification will in any case have to be made before the expiry of the
thirty days' period referred to below.
The amendments and additions adopted after the said consultations shall be
filed at the Registrar's office of the District Court of Amsterdam. Such
filing shall be announced by a publication in at least three daily newspapers
with national circulation. The amendments and additions which have
been filed in this manner shall be binding upon the Bank and the Customer as
of the thirtiest day after the date of the abovementioned publication.
A copy of these General Conditions has been filed by the Netherlands Bankers'
Association at the Registrar's office of the District Court of Amsterdam on
22 December 1995.
<PAGE>
GENERAL CONDITIONS 15
EXPLANATORY NOTES TO THE GENERAL BANKING CONDITIONS
1. The General Conditions (GC) contain rules for all transactions between
the Customer and the Bank. Such transactions take place within the framework
of the relationship into which the Customer and the Bank have entered.
Such a relationship can be confined to one single agreement, for instance a
transfer account. Of course it can also comprise several elements, such as
the renting of a safe-deposit box or a deposit for moneys or securities. In
the GC all these elements taken together are referred to as the "relation".
The GC do not, however, provide exhaustive regulations for all the elements of
which a relation can be composed. To each separate element further conditions
may - and in practice nearly always will - apply. A savings account e.g. may
be subject to specific additional conditions, which may moreover vary
according to the type of savings account chosen by the Customer. Home
financing is another product offered in various types, each subject to its
own specific conditions. The rules found in the GC are therefore mainly basic
rules regulating the relation between the Customer and the Bank.
For the most common services the Bank has brochures and leaflets, which
provide more detailed information.
2. This article provides that the Bank must exercise due care in its
transactions with the Customer, taking the interests of the Customer into
account to the best of its ability.
But the Bank may not disclose all information at its disposal to just any
person coming along. Certain information is confidential or is provided to
the Bank subject to an undertaking of secrecy. So the Customer will have to
proceed on the assumption that all advice given to him, e.g. about securities
transactions, is based exclusively on public information.
3. There are transactions which the Bank can fully settle "in-house", for
instance the sale of foreign currency over the counter. In a number of cases,
however, the Bank must use the services of third parties to execute orders or
other transactions.
When e.g. the Bank purchases securities on a foreign Stock Exchange pursuant
to
<PAGE>
Exhibit (b)(5)
UNOFFICIAL TRANSLATION OF
THE ARTICLES OF ASSOCIATION OF
TIBERIA B.V.
ESTABLISHED IN AMSTERDAM
On this day, the ** day of May, two thousand, appears before me, ** , "notaris"
(civil-law notary), practising in Amsterdam:
** .
The person appearing declares that on the ** day of ** , ** , the sole
shareholder of TIBERIA B.V., a private company with limited liability, with
corporate seat in Amsterdam, the Netherlands, and address at: 1102 MG Amsterdam,
the Netherlands, Bijlmerplein 888 HG 04.06, resolved in writing to amend the
articles of association of the company and to authorise the person appearing to
execute this deed.
Pursuant to those resolutions the person appearing declares to amend the
company's articles of association such that these shall read in full as follows
ARTICLES OF ASSOCIATION:
NAME. CORPORATE SEAT.
ARTICLE 1.
The name of the company is: TIBERIA B.V.
Its corporate seat is in Amsterdam.
<PAGE>
2
OBJECTS.
ARTICLE 2.
The objects of the company are:
(a) to participate in, cooperate with, to finance, administer, manage and to
have an interest in any other way in other companies and/or businesses;
(b) to invest its equity in securities, real property, debt instruments and
other assets, and to acquire, manage, exploit and alienate such
investments and any rights thereto;
(c) to grant security or guarantees for debts of other companies and
businesses, including but not limited to, subsidiaries
("dochtermaatschappijen") and in general legal entities
("rechtspersonen") and companies with which it is joined in a group,
all in the widest sense, including all acts and activities which, directly or
indirectly, may be connected therewith or be conducive thereto.
SHARE CAPITAL AND SHARES.
CLASSES OF SHARES.
ARTICLE 3.
3.1. (a) The authorized share capital of the company amounts to sixty
million Euro (EUR 60,000,000).
(b) The authorized share capital is divided into the following
classes of shares:
(i) one (1) class of common shares, referred to herein as the
"common shares", consisting of twenty million (20,000,000)
shares; and
(ii) one (1) class of cumulative preferred shares, referred to
herein as the "preferred shares", consisting of forty million
(40,000,000) shares.
<PAGE>
3
(c) The common shares and the preferred shares shall entitle its
holders to such rights and obligations as set forth therein
and in these articles of association.
(d) Each common share and each preferred share has a par value of
one Euro (EUR 1).
(e) Whenever in these articles of association reference is made to
the term "share" this shall be deemed a reference to a common
share and a preferred share, and whenever a reference is made
to a "shareholder" this shall be deemed a reference to a
holder of a common share and a holder of a preferred share,
unless explicitly stated otherwise.
3.2. (a) The shares shall be issued in registered form only. No share
certificates shall be issued.
(b) The shares shall be numbered as follows:
(i) the common shares from 1 onwards; and
(ii) the preferred shares from P1 onwards.
3.3. In respect of the subscription for or acquisition of shares in its
share capital, the company may neither grant security rights, give a
guarantee as to the price of the shares, grant guarantees in any
other manner, nor bind itself either jointly or severally in addition
to or for other persons.
3.4. The company may make loans in respect of a subscription for or an
acquisition of shares in its share capital up to an amount not
exceeding the amount of its distributable reserves. The company shall
maintain a non-distributable reserve for an amount equal to the
outstanding amount of the loans as referred to in this paragraph.
<PAGE>
4
3.5. A resolution by the managing board to make a loan as referred to in
the preceding paragraph shall be subject to the approval of the
general meeting of shareholders, referred to herein as the "general
meeting".
ISSUE OF SHARES.
ARTICLE 4.
4.1. Shares shall be issued pursuant to a resolution of the general
meeting. The general meeting shall determine the class of the shares
to be issued as well as the price and further terms and conditions of
the issue. In case the rights of holders of shares of a certain class
shall be prejudiced by the issue of shares, such resolutions shall
also require the prior approval of the meeting of holders of shares
of that class.
4.2. The previous paragraph shall equally apply to a grant of rights to
subscribe for shares, but shall not apply to an issue of shares to a
person who exercises a previously acquired right to subscribe for
shares.
4.3. Shares shall never be issued at a price below par.
4.4. The issue of shares shall be effected by notarial deed, in accordance
with the provisions set out in Section 2:196 of the Civil Code.
4.5. The company is not authorized to cooperate in the issue of
depositary receipts for shares.
PAYMENT FOR SHARES.
ARTICLE 5.
5.1. Shares shall only be issued against payment in full.
5.2. Payment must be made in cash, providing no alternative contribution
has been agreed.
<PAGE>
5
5.3. Payment in cash may be made in a foreign currency, subject to the
company's consent.
PRE-EMPTION RIGHTS.
ARTICLE 6.
6.1. Upon each issue of shares, each holder of shares of the same class as
the shares to be issued, shall have a pre-emption right in proportion
to the aggregate amount of its shares of that class and its shares of
the class which is convertible into the class to be so issued.
6.2. (a) Should a shareholder who is entitled to a pre-emption
right not or not fully exercise such right, the other holders
of shares of the same class shall be similarly entitled to
pre-emption rights in respect of those shares which have not
been claimed.
(b) If the latter collectively do not or do not fully exercise
their pre-emption rights either, then the general meeting
shall be free to decide to whom the shares which have not been
claimed shall be issued, and such issue may be made at a
higher price.
6.3. Pre-emption rights cannot be limited or excluded but may be waived by
the shareholder who is entitled thereto.
6.4. Pre-emption rights may not be disposed of.
6.5. With respect to each issue of shares, the general meeting shall
determine, with due observance of the provisions set out in this
article and simultaneously with the resolution to issue shares, the
manner in which and the period within which the pre-emption rights
may be exercised. Such period
<PAGE>
6
shall be at least thirty (30) business days from the date the
notification referred to in paragraph 6 hereof is sent. Whenever
in these articles of association the term "business day" is used,
this shall mean a day on which banks are generally open for
regular business in the Netherlands.
6.6. The company shall notify each shareholder of an issue of shares and
of the period of time within which the pre-emption rights may be
exercised.
6.7. The provisions of this article shall equally apply to a grant of
rights to subscribe for shares, but shall not apply to an issue of
shares to a person who exercises a previously acquired right to
subscribe for shares.
REPURCHASE OF SHARES.
ARTICLE 7.
7.1. Subject to authorization by the general meeting and with the prior
approval of the meeting of holders of shares of the class to be
repurchased, the managing board may cause the company to acquire
fully paid up shares in its own share capital for a consideration,
provided:
a. the company's equity minus the acquisition price is not less
than the aggregate amount of the issued share capital and the
reserves which must be maintained pursuant to the law; and
b. the aggregate par value of the shares to be so acquired and
the shares already held by the company and by its subsidiary
companies, regardless of their class, does not exceed half of
the aggregate par value of the shares comprised in the issued
share capital.
<PAGE>
7
7.2. Whether or not such acquisition shall be permitted pursuant to the
provisions of paragraph 1 hereof shall be determined on the basis of
(i) the company's equity as shown by the balance sheet, included in
the company's annual accounts as most recently adopted by the general
meeting with due observance of articles 23 and 24 hereof, minus (ii)
(a) the agreed acquisition price for such shares, and (b) any
distribution of profits or reserves to other persons which has become
due by the company and its subsidiary companies after the balance
sheet date. No acquisition pursuant to this paragraph shall be
allowed if a period of six (6) months following the end of a
financial year has expired without the annual accounts for such year
having been adopted.
7.3. Articles 4 and 6 shall equally apply to the disposal of shares
acquired by the company in its own share capital, except that such
disposal may be made at a price below par.
7.4. (a) No votes may be cast in respect of a share held by the
company in its own share capital or held by a subsidiary
company.
(b) Shares which cannot be voted pursuant to sub-paragraph (a)
hereof shall not be taken into account when calculating a
quorum or when determining how votes have been cast.
(c) Shares held by the company in its own share capital shall not
be taken into account when distributions on shares are made.
REDUCTION OF SHARE CAPITAL.
ARTICLE 8.
<PAGE>
8
8.1. The general meeting may resolve to reduce the issued share capital by
cancelling shares or by reducing the par value of shares by an
amendment to the articles of association, provided that the amount of
the issued share capital does not fall below the minimum share
capital as required by law in effect at the time of the resolution.
8.2. A cancellation of shares can apply to shares which are held by the
company itself.
A cancellation of shares can also apply to all shares of a specific
class, provided their par value is repaid.
Partial repayment on shares shall be made either on all shares or
exclusively on all shares of a specific class.
8.3. A resolution to cancel shares of a specific class against repayment
of their par value and a resolution to partially repay the par value
of such shares shall require the prior or simultaneous approval of
the meeting of holders of such shares.
8.4. A reduction of the par value of shares of a specific class without a
repayment or partial repayment of their par value shall be effected
ratably to all shares of that class.
8.5. The notice of a general meeting at which a resolution referred to in
this article is proposed to be adopted shall mention the purpose of
the reduction of the share capital and the manner in which such
reduction shall be effected. The proposal shall specify the shares to
which it applies and shall describe how such resolution if adopted
shall be implemented.
<PAGE>
9
8.6. The company shall file the resolution to reduce the issued share
capital with the trade register of the Chamber of Commerce and
Industry in the district in which the company has its corporate seat
and it shall announce such filing in a national daily newspaper.
SHAREHOLDERS REGISTER.
ARTICLE 9.
9.1. The managing board shall maintain a register in which the names and
addresses of all shareholders shall be recorded, stating (i) the date
on which such shareholder acquired the shares, (ii) the number and
class of shares held by such shareholder, (iii) the date of
acknowledgement by or service upon the company, if applicable, (iv)
the par value paid up on each share, (v) the date of reduction of the
par value of a share, if any, (vi) the date of cancellation of a
share, if applicable, and (vii) any other information that must be
recorded under the law.
9.2. The register shall be kept up to date.
9.3. Upon request and at no cost, the managing board shall provide a
shareholder, a holder of a right of usufruct and a holder of a right
of pledge with an extract from the register regarding their
respective rights in respect of a share.
9.4. The managing board shall make the register available at the office of
the company for inspection by the shareholders.
NOTICES OF MEETINGS AND NOTIFICATIONS.
ARTICLE 10.
<PAGE>
10
10.1. Each shareholder, holder of a right of usufruct and holder of a right
of pledge must provide his address to the managing board.
10.2. Notices of meetings and notifications shall be given by registered or
regular letter or by bailiff's writ.
Notices of meetings and notifications to shareholders shall be sent
to the addresses most recently given to the managing board.
Notifications by shareholders to the managing board shall be sent to
the office of the company.
10.3. The date of a notice of meeting or a notification shall be deemed to
be the date stamped on the receipt issued for a registered letter, or
the date of mailing by the company or the date of service of the
writ, as the case may be.
10.4. Notifications which, pursuant to the law or the articles of
association, are to be addressed to the general meeting may be
included in the notice of such meeting.
TRANSFER OF SHARES.
ARTICLE 11.
Any transfer of shares shall be effected by notarial deed in accordance with the
provisions set out in section 2:196 of the Civil Code.
Unless the company is a party to the transaction effected by such notarial deed,
the rights attached to a share may only be exercised after:
a. the company has acknowledged the transaction;
b. an official copy of the deed has been served upon the company; or
<PAGE>
11
c. the company has acknowledged the transaction on its own initiative by
recording the same in the shareholders register,
all in accordance with the provisions set out in sections 2:196a and 2:196b of
the Civil Code.
RIGHT OF PLEDGE.
ARTICLE 12.
12.1. A right of pledge may be created on shares.
12.2. If a right of pledge is created on shares, the voting rights attached
to the shares concerned may be conferred on the holder of the right
of pledge, provided the creation of the right of pledge has been
approved by the general meeting.
12.3. A holder of the right of pledge to whom the voting rights have not
been conferred shall not have the rights conferred by law on the
holders of depositary receipts for shares issued with the cooperation
of the company.
12.4. The provisions of article 11 shall equally apply to the creation or
release of a right of pledge on shares.
RIGHT OF USUFRUCT.
ARTICLE 13.
13.1. A right of usufruct may be created on shares.
13.2. If a right of usufruct is created on shares, the shareholder shall be
exclusively entitled to the voting rights attached to the shares
concerned and it may not be conferred on the holder of the right of
usufruct.
13.3. The holder of the right of usufruct shall not have the rights
conferred by law on the holders of
<PAGE>
12
depositary receipts for shares issued with the cooperation of the
company.
13.4. The provisions of article 11 shall equally apply to the creation,
transfer or release of a right of usufruct on shares.
RESTRICTIONS ON THE TRANSFER OF SHARES.
ARTICLE 14.
14.1. A transfer of shares in the company, including a transfer by the
company of shares which it has acquired in its own share capital,
cannot be effected without due observance of this article 14.
14.2. The shareholder wishing to transfer one or more shares, shall require
the approval of the general meeting.
The transfer must be effected within three (3) months after the
approval has been granted or is deemed to have been granted.
14.3. The approval shall be deemed to have been granted if the general
meeting, simultaneously with the refusal to grant its approval, does
not furnish the requesting shareholder with the names of one or more
interested parties prepared to purchase all the shares referred to in
the request for approval, against payment in cash, for the purchase
price determined in accordance with paragraph 4 hereof. The company
itself can only be designated as interested party with the approval
of the requesting shareholder.
The approval shall also be deemed to have been granted if, within six
(6) weeks after the request for approval, the general meeting does
not take a decision with respect thereto.
<PAGE>
13
14.4. The purchase price for the shares shall be determined by mutual
agreement between the requesting shareholder and the interested
parties accepted by it.
Failing agreement, the purchase price shall be determined by an
independent expert, to be designated by mutual agreement by the
shareholders.
14.5. Should the shareholders not reach agreement on the designation of the
independent expert, then such designation shall be made by the
President of the Chamber of Commerce and Industry, within the
district in which the company has its address.
14.6. Once the purchase price of the shares has been determined by the
independent expert, then the requesting shareholder shall be free,
during one (1) month after such determination of the purchase price,
to decide whether it will transfer its shares to the designated
interested parties.
MANAGEMENT.
ARTICLE 15.
15.1. The company shall be managed by a managing board.
The general meeting shall determine the number of managing directors.
A legal entity may be appointed as a managing director.
15.2. Managing directors shall be appointed by the general meeting. The
general meeting may at any time suspend and dismiss managing
directors.
15.3. If the general meeting has suspended a managing director, the general
meeting shall within three (3) months after the suspension has taken
effect resolve either to dismiss such managing director or to
<PAGE>
14
terminate or continue the suspension, failing which the suspension
shall lapse.
A resolution to continue the suspension may be adopted only once and
in such event the suspension may be continued for a maximum period of
three (3) months commencing on the day the general meeting has
adopted the resolution to continue the suspension. If within the
period of continued suspension the general meeting has not resolved
either to dismiss the managing director concerned or to terminate
the suspension, the suspension shall lapse.
A managing director who has been suspended shall be given the
opportunity to account for his actions at the general meeting at
which meeting he may cause himself to be assisted by an adviser.
15.4. In the event that one or more managing directors is or are prevented
from acting or if a vacancy exists ("belet of ontstentenis"), the
remaining managing directors or the only remaining managing director
shall temporarily be in charge of the management. In the event that
all managing directors are, or the only managing director is, so
prevented from acting the general meeting shall as soon as possible
take the necessary measures in order to have a definitive
arrangement made.
15.5. The general meeting shall determine the remuneration and, in general,
the (other) terms and conditions of office of the managing directors.
MANAGING BOARD.
ARTICLE 16.
16.1. With due observance of these articles of association, the managing
board may adopt rules
<PAGE>
15
governing its internal proceedings ("directiereglement"). A
resolution by the managing board to adopt or to amend these rules
shall require the prior approval of the general meeting.
Furthermore, the managing directors may divide their duties among
themselves, whether or not by a provision to that effect in the
managing board rules.
16.2. The managing board shall meet whenever a managing director so
requires. A managing director can cause himself to be represented at
a meeting of the managing board by another managing director by
virtue of a proxy duly authorized in writing. The managing board
shall adopt its resolutions by an absolute majority of votes cast.
In a tie vote, the proposal shall have been rejected.
16.3. The managing board may also adopt resolutions without holding a
meeting, provided such resolutions are adopted in writing, by cable
or by telefax and all managing directors have expressed themselves in
favor of the proposal concerned.
Such resolutions shall be recorded in the minute book of the managing
board kept by the managing board; the documents in evidence of the
adoption of such resolutions shall be kept with the minute book.
16.4. The managing board shall require the prior approval of the general
meeting for each of its resolutions to or aimed to:
a. to acquire, encumber, dispose of, rent and let real estate and
other "registered property";
b. to encumber movables and property rights;
<PAGE>
16
c. to enter into loan agreements for the company's account, with
the exception of the drawing of funds as a result of which the
company shall have a debit balance with a bank designated by
the managing board, with the approval of the general meeting,
up to an amount not exceeding the amount which, having been
determined by the general meeting, has been notified to the
managing board;
d. to make loans;
e. to grant and amend a general and continuing power for an
indefinite period of time to represent and sign on behalf of
the company ("procuratie");
f. to hire employees for a fixed period of time exceeding a
period of one year or to dismiss an employee who has been
hired for such fixed period of time;
g. to grant an employee a fixed annual salary;
h. to arrange for collective pension plans and to grant pension
rights other than in accordance with a collective pension
plan;
i. to bind the company for liabilities of others, either by way
of surety or in any other way;
j. to enter into agreements pursuant to which potential disputes
shall be settled by arbitration or by "binding advice" - to
the extent such provision is not included as a standard clause
in contracts - as well as to enter into settlements;
k. to conduct litigation - either as plaintiff or as defendant -
either before an ordinary court
<PAGE>
17
or in arbitration or in order to obtain a "binding advice",
except for legal actions which cannot be postponed or the
purpose of which is solely to reserve rights and also
except for measures taken to collect money claims or claims
on account of goods delivered or services rendered by the
company;
l. to exercise voting rights on shares in a subsidiary company as
well as on shares which form a participation;
m. to establish and close down offices or branches;
n. to expand the affairs of the company with a new line of
business and to close down the business of the company or any
part thereof, including a transfer of ownership or a transfer
of the beneficiary use thereof;
o. to participate, or otherwise take an interest in, or to accept
or dispose of the management of other business enterprises and
to terminate or modify such participation or interest;
p. to enter into, terminate and amend joint venture and pooling
agreements;
q. to present a proposal for a legal merger and legal division;
r. to acquire, encumber and dispose of intellectual property
rights, specifically including industrial property rights and
copyrights and furthermore the granting and acquisition of
licences and sublicences;
s. to acquire fixed business assets;
t. to perform any legal acts other than referred to in this
paragraph, if the interest or value of
<PAGE>
18
such acts to the company exceeds an amount of one hundred
thousand euro (EUR 100,000) or such higher amount as
determined by the general meeting and notified to the
managing board or by which the company shall be bound for a
period exceeding one year.
REPRESENTATION.
ARTICLE 17.
17.1. The managing board as well as each managing director acting
individually shall have power to represent the company.
17.2. If a managing director (i) acting in his personal capacity, enters
into an agreement with the company, or if he, acting in his personal
capacity, conducts any litigation against the company, or (ii) if he,
acting in another capacity, enters into an agreement with the company
or conducts in such capacity any litigation against the company, the
general meeting shall designate a person to represent the company for
that purpose, unless the law provides otherwise for such designation.
Such person may also be the managing director with whom the conflict
of interest exists.
.
17.3. The managing board may grant to one or more persons, whether or not
employed by the company, the power to represent the company
("procuratie") or grant in a different manner the power to represent
the company on a continuing basis.
GENERAL MEETING. ANNUAL AND EXTRAORDINARY MEETINGS.
ARTICLE 18.
<PAGE>
19
18.1. The annual general meeting shall be held within six (6) months after
the end of the financial year.
18.2. The agenda for the annual general meeting shall in any case include
the following items:
a. the consideration of the written annual report by the managing
board concerning the company's affairs and the management as
conducted;
b. the adoption of the annual accounts.
The items referred to above need not be included on the agenda if the
period for preparing the annual accounts and for presenting the
annual report has been extended, or if the agenda includes a proposal
to such effect. Item a. does not have to be included on the agenda if
Section 2:403 of the Civil Code applies to the company.
Furthermore, all other items which have been placed on the agenda
with due observance of article 19, paragraph 3 hereof, shall be
discussed at the annual general meeting.
18.3. An extraordinary general meeting shall be held whenever the managing
board or a shareholder considers this appropriate.
GENERAL MEETING. PLACE. NOTICE.
ARTICLE 19.
19.1. General meetings shall be held in the municipality where the company
has its corporate seat. Resolutions adopted at a general meeting
held elsewhere shall be valid only if the entire issued share
capital is represented at such meeting.
19.2. Shareholders shall be given notice of the general meeting by the
managing board, a managing director
<PAGE>
20
or the shareholder who wishes the meeting to be held.
19.3. Notice shall be given not later than on the fifteenth (15th) day
prior to the date of the meeting.
If the notice period was shorter or if no notice was sent, no valid
resolutions can be adopted unless the resolution is adopted by
unanimous vote at a meeting at which the entire issued share capital
is represented.
The provision of the preceding sentence shall equally apply to
matters which have not been mentioned in the agenda of the meeting as
included in the notice of the meeting, or which have not been
mentioned in the (revised) agenda of the meeting as included in a
supplementary notice, provided such supplementary notice has been
sent with due observance of the notice period.
GENERAL MEETINGS. CHAIRMAN. SECRETARY. MINUTES.
ARTICLE 20.
20.1. The general meeting shall appoint a chairman. The chairman shall
designate the secretary.
20.2. Minutes shall be kept of the business transacted at the meeting
unless a notarial record is prepared thereof. Minutes shall be
adopted and in evidence of such adoption be signed by the chairman
and the secretary of the meeting concerned, or alternatively be
adopted by a subsequent meeting; in the latter case the minutes shall
be signed by the chairman and the secretary of such subsequent
meeting in evidence of their adoption.
<PAGE>
21
20.3. The chairman of the meeting as well as each managing director may at
any time give instructions that a notarial record be prepared at the
expense of the company.
VOTING AT GENERAL MEETING. RESOLUTIONS IN WRITING.
ARTICLE 21.
21.1. Each common share and each preferred share entitles its holder to one
(1) vote for each such share provided however that each shareholder
shall have a maximum of one thousand (1,000) votes, all without
prejudice to the provisions of article 7, paragraph 4(a) hereof.
Blank votes and invalid votes shall be regarded as not having been
cast.
21.2. Unless these articles of association provide otherwise, resolutions
shall be adopted by an absolute majority of votes cast, irrespective
of the issued share capital represented at the general meeting.
21.3. The chairman of the meeting shall determine the manner of voting.
21.4. Shareholders may be represented at a general meeting by a proxy
authorized in writing.
21.5. Managing directors are authorized to attend general meetings and as
such they have authority to advise the general meeting on any
proposed resolutions.
21.6. Shareholders may adopt any resolutions which they can adopt in a
meeting, without holding a meeting, provided that the managing board
have prior knowledge of such resolution.
Such a resolution shall only be valid if all shareholders entitled to
vote have cast their votes
<PAGE>
22
in writing in favor of the proposal concerned. For the purposes
hereof votes cast by cable or by telefax shall be deemed to have been
cast in writing.
The shareholders shall forthwith notify the managing board of the
resolution so adopted.
21.7. A resolution as referred to in paragraph 6 hereof shall be recorded
in the minute book of the general meeting; at the next general
meeting the entry shall be read out by the chairman of that meeting.
Moreover, the documents in evidence of the adoption of such a
resolution shall be kept with the minute book of the general meeting
and as soon as the resolution has been adopted, all shareholders
shall be notified thereof.
CLASS MEETINGS.
ARTICLE 22.
22.1. A class meeting shall be held whenever a resolution by such meeting
is required pursuant to these articles of association or the law.
Furthermore, such meeting shall be held if required by either the
managing board, or a holder of shares of that specific class wishes
that such a meeting is held.
22.2. Articles 19 up to and including 21 shall apply correspondingly to
class meetings.
FINANCIAL YEAR. ANNUAL ACCOUNTS.
ARTICLE 23.
23.1. The financial year shall coincide with the calendar year.
23.2. Annually, within five (5) months after the end of each financial year
- subject to an extension of
<PAGE>
23
such period not exceeding six (6) months by the general meeting by
virtue of extraordinary circumstances - the managing board shall
prepare the annual accounts of the company and shall make these
available at the office of the company for inspection by the
shareholders.
The annual accounts shall be accompanied by (i) the auditor's
certificate, referred to in article 24, if the instructions referred
to in that article have been given, by (ii) the annual report, unless
Section 2:403 of the Civil Code is applicable to the company, and by
(iii) such additional information as required by, and referred to in,
Section 2:392, subsection 1 of the Civil Code, insofar as the
provisions of that subsection apply to the company. The annual
accounts shall be signed by all managing directors; if the signature
of one or more of them is lacking, this shall be disclosed, stating
the reasons thereof.
23.3. Without prejudice to the provisions of paragraph 2, first sentence
hereof, the managing board on behalf of the company, shall ensure
that the annual accounts as prepared by the managing board, the
annual report by the managing board and the additional information
referred to in paragraph 2 hereof shall be available at the office of
the company from the date of the notice of the general meeting at
which they are to be discussed.
Each shareholder may inspect the above documents at the office of the
company and obtain one copy thereof at no cost.
<PAGE>
24
23.4. The adoption of the annual accounts by the general meeting shall
constitute a discharge of the managing board for its management
during the financial year concerned, unless a proviso is made by the
general meeting and without prejudice to the provisions of Sections
2:248 and 2:259 of the Civil Code.
If the company is required, in conformity with article 24, paragraph
1, to instruct an auditor to audit the annual accounts and the
general meeting has been unable to review the auditor's certificate,
the annual accounts can not be adopted, unless the additional
information referred to in paragraph 2, second sentence hereof,
mentions the reasons why such certificate is lacking if such reasons
constitute valid reasons for the purposes of the law.
23.5. If the annual accounts are adopted in an amended form, a copy of the
amended annual accounts shall be made available by the managing board
to the shareholders on behalf of the company, at no cost.
AUDITOR.
ARTICLE 24.
24.1. The company may give instructions to an auditor, as referred to in
Section 2:393 of the Civil Code, to audit the annual accounts as
prepared by the managing board in accordance with subsection 3 of
such section and article 23, paragraph 2 hereof, provided that the
company must give such instructions if the law so requires.
If the law does not require that such instructions be given, the
company may also instruct another expert to audit the annual accounts
as prepared by
<PAGE>
25
the managing board. The auditor and the other experts shall for the
purposes of these articles of association each herein also be
referred to as: the "auditor".
24.2. The general meeting shall be authorized to give the instructions
referred to above on behalf of the company. If the general meeting
fails to do so, then the managing board shall have such authority.
The instructions given to the auditor may be revoked at any time by
the general meeting and by the managing board, the latter however
only if it has given the initial instructions.
24.3. The auditor shall report on his audit to the managing board and shall
issue a certificate containing its results.
24.4. The managing board may give such other assignments to the auditor or
to any other auditor as it deems appropriate, all at the expense of
the company.
PROFIT AND LOSS.
ARTICLE 25.
25.1. Distribution of profits pursuant to this article can be declared
following the adoption by the general meeting of the annual accounts
which show that such distribution is allowed under the law.
25.2. Without prejudice to the provisions of this article 25 and article
26, paragraph 3 hereof, annually, if and to the extent possible, an
amount equal to eight per cent (8%) of its par value shall be paid on
each preferred share. If the profits in any year are not sufficient
to pay of fully pay such amount, then in the following year(s) the
provision of the preceding sentence shall be applied only if such
amounts have
<PAGE>
26
been fully paid. A preferred share shall not entitle its holder to
any other dividend.
25.3. Any profit remaining after application of paragraph 2 hereof, shall,
at the discretion of the general meeting, be wholly or partially
distributed or be carried to reserves.
25.4. A loss shown by the profit and loss account included in the company's
adopted annual accounts, may only be charged to reserves maintained
pursuant to the law, to the extent permitted by law.
PAYMENT DATE. RECORD DATE. INTERIM DIVIDEND.
ARTICLE 26.
26.1. Distributions shall be due and payable to the shareholders of record
four (4) weeks after they have been declared in accordance with
article 25 hereof, on a date to be determined by the managing board.
26.2. Subject to the prior approval of the relevant class meeting, the
managing board may declare a distribution on shares in a form other
than cash or in a combination of cash and a form other than in cash.
26.3. Article 7, paragraph 4(c) shall apply.
26.4. The managing board can declare an interim dividend out of the profits
made in the then current financial year.
AMENDMENT ARTICLES OF ASSOCIATION.
ARTICLE 27.
27.1. The general meeting may resolve to amend these articles of
association.
27.2. A resolution to amend the articles of association, by which the
rights conferred on holders of shares
<PAGE>
27
of a specific class as such are changed or prejudiced (and any
amendment of articles 15 and 16 shall so qualify), and/or by which
a new class of shares is created with rights attached thereto on a
parity with or senior than the rights of the holders of preferred
shares shall require the prior approval of the relevant class
meeting.
LIQUIDATION.
ARTICLE 28.
28.1. If the company is dissolved pursuant to a resolution of the general
meeting, it shall be liquidated by the managing board, if and to the
extent that the general meeting shall not resolve otherwise.
28.2. The general meeting shall determine the remuneration of the
liquidators.
28.3. The liquidation shall take place with due observance of the
provisions of the law. During the liquidation period these articles
of association shall, wherever possible, remain in full force.
28.4. From the assets of the company remaining after all liabilities have
been paid, to the extent possible, the following distributions shall
be made:
(a) to the holders of preferred shares any annual dividend to
which such holders are entitled pursuant to article 25,
paragraph 2 hereof and which has not or not fully been paid in
previous years.
(b) any then remaining amount, to the holders of common shares.
28.5. After the company has ceased to exist, the books and records of the
company shall remain in the custody
<PAGE>
28
of the person designated for that purpose by the liquidators for
a period of seven years.
Finally the person appearing declares that at the time of execution of this deed
the issued share capital of the company amounts to forty-four million five
hundred and fifty-two thousand Euro (EUR 44,552,000) consisting of thirty
million seventy-two thousand and six hundred (30,072,600) cumulative preferred
shares and fourteen million four hundred and seventy-nine thousand four hundred
(14,479,400) common shares, each with a par value of one Euro(EUR 1).
(EUR 1); the existing fifty (50) shares of one thousand Dutch guilders (NLG
1,000) each which were issued at the incorporation of the company are hereby
converted into twenty-two thousand six hundred and ninety (22,690) common shares
of one Euro (EUR 1) each. [NOTE: NUMBERS MAY CHANGE; CONVERSION RATE USED IS 1
USD = 1,1138 EUR; AND 1 NLG = 0,45378 EUR (MAY 9, 2000); 22,690 COMMON SHARES
ARE INCLUDED IN 14,479,000 SHARES]
The required ministerial declaration of no-objection was granted on the ** day
of May, two thousand, number B.V. 108.643.
The draft of this deed, on which the ministerial declaration of no-objection was
endorsed and a document in evidence of the resolutions, referred to in the head
of this deed, are attached to this deed.
In witness whereof this original of this deed, which will be retained by me,
notaris, is executed in Amsterdam, on the date first mentioned in the head of
this deed.
Having conveyed the substance of the deed and given an explanation thereto and
having pointed out the consequences arising from the contents of the deed for
<PAGE>
29
the party and following the statement of the person appearing that [he][she] has
taken note of the contents of the deed and agrees with the same, this deed is
signed immediately after reading of those parts of the deed, which the law
requires to be read, by the person appearing, who is known to me, notaris, and
by myself, notaris[, at][.]
<PAGE>
Exhibit (b)(6)
SHARE EXCHANGE AGREEMENT
BETWEEN
ENTERO B.V.
AND
VEDIOR HOLDING B.V.
AND
VEDIOR N.V.
MAY * , 2000
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
page
<S> <C> <C>
Clause 1 -Exchange right
Clause 2 -Representations, warranties and obligations of Entero, VHBV and VNV *
Clause 3 -Accelerated exchange *
Clause 4 -Rights not exclusive; no forfeiture of rights *
Clause 5 -Binding effect and entire agreement; amendment *
Clause 6 -Assignment of rights and obligations *
Clause 7 -Notices; place of residence *
Clause 8 -Governing law; competent court *
Clause 9 -Confidentiality *
SCHEDULES
Schedule 1 -Stock transfer form
Schedule 2 -Exercise notice put option
Schedule 3 -Exercise option call option
</TABLE>
<PAGE>
SHARE EXCHANGE AGREEMENT
THE UNDERSIGNED:
1. ENTERO B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands (the "ENTERO"),
2. VEDIOR HOLDING B.V., a private company with limited liability under the
law of the Netherlands, with corporate seat and office address in
Amsterdam, the Netherlands (the "VHBV"),
3. VEDIOR N.V., a limited liability company under the law of the
Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands ("VNV"),
WHEREAS:
A. ING Bank Corporate Investments B.V., the sole shareholder of the Lender
("CI"), VNV and VHBV have entered into an agreement in principle, dated
April 13, 2000, as amended on the date hereof (the "AIP") pursuant whereto
CI has agreed to cause Entero to provide financing in the form of equity
and loans to the Borrower and Platform Purchaser Inc., a corporation
organised and existing under the laws of the state of Georgia, United
States of America ("PLATFORM"), in order to enable Platform to acquire
shares of common stock in Acsys, Inc., a company under the laws of the
state of Georgia, United States of America ("ACSYS") pursuant to a tender
offer dated April 27, 2000 (the "OFFER") and upon the Offer having been
consummated, pursuant to the merger of Platform into Acsys in accordance
with and subject to the terms and conditions of an agreement and plan of
merger, dated as of April 16, 2000 (the "PLAN OF MERGER") to which they
each are a party;
B. On the date hereof, (i) Entero has subscribed for ** shares of common stock
(the "COMMON SHARES") and ** shares of cumulative preferred stock (the
"PREFERRED SHARES") in the share capital of Tiberia B.V., a private company
with limited liability under the laws of the Netherlands, with corporate
seat and office address in Amsterdam, the Netherlands ("TIBERIA"), each
such shares with a par value of Euro 1 ([EURO] 1), (ii) Entero has sold and
transferred the Common Shares to VHBV and VHBV has purchased and acquired
such shares, and (iii) Entero and VHBV have entered into a shareholders
agreement in relation to their shareholdings in Tiberia, all pursuant to
and in accordance with the AIP;
C. According to the AIP, the Preferred Shares are exchangeable into depositary
receipts to be issued by Stichting Administratiekantoor van gewone aandelen
Vedior, a "STICHTING" under the law of the Netherlands, with seat in
Amsterdam (the "ADMINISTRATOR"), relating to common shares in the issued
share capital of VNV (the "SHARES");
<PAGE>
D. In addition to this agreement, Entero N.V., VNV and Tiberia will enter
into an exchangeable loan agreement on the date hereof (the "EXCHANGEABLE
LOAN AGREEMENT").
DECLARE TO HAVE AGREED AS FOLLOWS:
EXCHANGE RIGHT
CLAUSE 1
1.1 Entero has the right to sell and assign all of the Preferred Shares to
VNV in which event VNV shall have the obligation to acquire all or such
part of the Preferred Shares at a purchase price payable in depository
receipts ("CERTIFICATEN") to be issued by the Administrator for Shares,
nominal value NLG 0.05 each (the "RECEIPTS"), at an exchange ratio of one
Receipt per each Euro sixteen ([EURO] 16) Exchange Amount (as hereinafter
defined) as calculated on the basis of the Preferred Shares so sold
and transfered to VNV (the "EXCHANGE PRICE"). Entero can exercise this
option at any time by sending a notice in the form of SCHEDULE 2 to VHBV
and VNV with copy to the Administrator. It is expressly agreed that
Entero is only entitled to exercise this exchange right if simultaneously
it or its affiliate exercises the exchange right pursuant to Clause 4.1
of the Exchangeable Loan Agreement.
A transfer of one or more Preferred Shares to VNV against payment in the
form of Receipts, shall constitute a discharge for Entero with respect to
its payment of consideration for the Receipts, a discharge for the
Adminstrator with respect to its obligation to pay up the Shares and a
discharge for VNV in respect of payment of consideration for the transfer
of such Preferred Shares.
1.2 If (a) VNV shall (i) split, re-denominate, consolidate or reclassify the
Shares, (ii) alter any right attaching to the Shares (including voting,
dividend and liquidation distribution rights), (iii) issue, redeem or
repurchase Shares or other shares in its share capital against a price
which is less than fair market value (other than the granting of options
and the issuance of shares pursuant thereto to management and employees
in accordance with customary practice), (iv) engage in a legal merger or
demerger, (v) distribute dividends or make other distributions on the
Shares or other shares in its share capital (other than cash dividends or
stock dividends in accordance with customary practice of VNV), or (vi)
perform any other act having an effect with respect to the Shares similar
to the effect of the acts referred to in (i) to (v), or (b) the
Administrator shall take any of the actions mentioned in (i) to and
including (vi) with respect to the Receipts (except for cash
distributions or issuance of depository receipts in lieu of cash by the
Administrator in accordance with customary practice), VNV shall, within
one month after such action has been taken, agree with Entero such
amendments to this agreement as are necessary to ensure that the economic
and legal effect of Entero's exchange right remains unaffected by such
act.
1.3 If at any time, the price of the Receipts on AEX-stock exchange (or any
successor stock exchange) equals or exceeds Euro twenty ([EURO] 20) for
at least sixty (60) consecutive trading days, the Preferred
<PAGE>
Shares must be exchanged into Receipts at the Exchange Price by way of
assignment as referred to in clause 1.1.
1.4 During the month of May 2005 (the "EXERCISE PERIOD"), VNV shall have the
right to purchase and acquire, and in such event Entero shall sell and
transfer to VNV, the Preferred Shares against a consideration equal to
their aggregate par value plus any unpaid dividends in relation to
previous years during which such Preferred Shares were outstanding, plus
any dividends accrued in the year 2005 (the "EXCHANGE AMOUNT"). VNV can
exercise this option by sending the notice in the form of SCHEDULE 2 to
VHBV and VNV, with a copy to the Administrator.
1.5 If VNV does not exercise the option in accordance with clause 1.4, Entero
may during a period of four weeks after the Exercise Period either (i)
sell and transfer the Preferred Shares for Receipts in which event VNV
must purchase and acquire the Preferred Shares at a purchase price
payable in Receipts at an exchange price equal to the average closing
price ("SLOTKOERS") of the Receipts on AEX stock exchange (or its
successor stock exchange) during the five trading days immediately prior
to the day on which Entero exercises this right or (ii) sell, assign and
transfer the shares in Acsys pursuant to the stock transfer form attached
hereto as SCHEDULE 1, duly and validly executed by Tiberia (the "STOCK
TRANSFER FORM") and apply the proceeds first against payment of all
amounts due and payable under the Exchangeable Loan Agreement, and
distribute the remaining proceeds to Tiberia for distribution on the
Preferred Shares and the Common Shares in that order, with due observance
of the articles of association of Tiberia.The Stock Transfer Form is to
be used exclusively for the sale, assignment and transfer of the shares
in Acsys contemplated by this Clause 1.5. By countersigning this
agreement Tiberia irrevocably undertakes to take or omit to take any
action and to execute any document necessary or desirable to give effect
to Clause 1.
1.6 VNV and VHBV hereby each unconditionally and irrevocably undertakes to
take or omit to take any action and to execute any document necessary or
desirable to give effect to Clause 1.
REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF ENTERO, VHBV AND VNV
CLAUSE 2
2.1 VHBV and VNV hereby represent and warrant that the following statements
are true and correct as of the date hereof and as of each date on which
action is to be implemented as contemplated by clause 1:
(a) Each of VHBV and VNV is a private company with limited liability
("BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly
incorporated and existing under the law of the Netherlands.VNV is
a company with limited liability ("NAAMLOZE VENNOOTSCHAP") validly
incorporated and existing under the laws of the Netherlands.
(b) Each of VHBV and VNV has the corporate power to enter into this
agreement, the AIP and the agreements contemplated thereby
(hereinafter the "TRANSACTION DOCUMENTS") to which it is a party
and to perform its obligations thereunder. VNV also represents
that ANT is
<PAGE>
empowered to issue Receipts on behalf of the Administrator
pursuant to a valid power of attorney.
(c) Each of VHBV and VNV has taken all corporate action to enable it
to enter into this agreement and the other Transaction Documents
to which it is a party and to ensure that this agreement and any
other Transaction Document to which it is a party is legal, valid
and binding.
(d) The execution and delivery of the Transaction Documents by VHBV
and VNV do not and will not (i) violate or result in a material
violation of any agreement to which VHBV or VNV is a party, (ii)
conflict with any constitutive documents of VHBV or VNV or (iii)
conflict with any applicable law, regulation or official or
judicial order.
2.2 Entero hereby represents and warrants that the following statements are
true and correct as of the date hereof and as of each date on which
action is to be implemented as contemplated by clause 1:
(a) Entero is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated
and existing under the law of the Netherlands.
(b) Entero has the corporate power to enter into this agreement, the
AIP and the agreements contemplated thereby (hereinafter the
"TRANSACTION DOCUMENTS") to which it is a party and to perform its
obligations thereunder.
(c) Entero has taken all corporate action to enable it to enter into
this agreement and the other Transaction Documents to which it is
a party and to ensure that this agreement and any other
Transaction Document to which it is a party is legal, valid and
binding.
(d) The execution and delivery of the Transaction Documents by Entero
does not and will not (i) violate or result in a material
violation of any agreement to which Entero is a party, (ii)
conflict with any constitutive documents of Entero or (iii)
conflict with any applicable law, regulation or official or
judicial order.
ACCELERATED EXCHANGE
CLAUSE 3
3.1. Without prejudice to any of its other rights and obligations, Entero may
demand immediate exchange of the Preferred Shares in accordance with this
agreement by notifying VHBV and VNV, with a copy to the Administrator, if
an "Event of Default" has occurred and is continuing, as defined in the
Exchangeable Loan Agreement, such event qualifying as an Event of Default
under this agreement, together with
<PAGE>
a. the Administrator failing to issue Receipts as contemplated by
this agreement; and
b. any of the representations and warranties made by VHBV and VNV in
this agreement being incorrect, incomplete or misleading when
made.
3.2. If an Event of Default or an event which with notice or passage of time
would constitute an Event of Default occurs or threatens to occur, VHBV
and VNV shall immediately notify Entero thereof.
3.3. VHBV and VNV must compensate Entero for all damage suffered by the latter
as a result of the Event of Default occurring or in Entero's reasonable
opinion threatening to occur, irrespective of whether the Event of
Default can be attributed to VHBV or VNV. The duty to compensate shall
also include any reasonable costs made by Entero to prevent the Event of
Default, to prevent or limit damage or to enforce its rights under this
agreement in or out of court.
RIGHTS NOT EXCLUSIVE; NO FORFEITURE OF RIGHTS
CLAUSE 4
Any entitlement of Entero to any right derived from this agreement shall be
without prejudice to any other rights and claims under this agreement and any
rights and claims at law. No right of Entero under this agreement or by law
shall be affected by a failure to invoke that right or to protest against the
VHBV's or VNV's failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
CLAUSE 5
5.1. This agreement shall not have any effect until each party has received a
copy of this agreement, validly executed by the other party. The
preceding sentence shall not apply to clause 7 nor to this clause 5.1.
5.2. If part of this agreement becomes invalid or non-binding, the parties
shall remain bound to the remaining part. The parties shall replace the
invalid or non-binding part by provisions which are valid and binding and
the legal effect of which, given the contents and purpose of this
agreement, resembles as much as possible that of the invalid or
non-binding part.
5.3. This agreement may not be rescinded in whole or in part. The mistaken
party shall bear the risk of any mistake made in creating this agreement.
5.4. This agreement together with the AIP and the other Transaction Documents
contains the entire agreement of the parties in relation to its subject
matter. Upon execution of this agreement, all previous agreements and
arrangements made by the parties in relation to its subject matter other
than the AIP and the other Transaction Documents shall end.
<PAGE>
5.5. This agreement contains no stipulations for the benefit of a third party
which could be invoked by a third party against a party to this
agreement.
5.6. The schedules to this agreement shall form a part thereof.
5.7. This agreement may only be amended or supplemented in writing.
5.8. Clauses 5.1 up to 5.7 (inclusive) shall apply MUTATIS MUTANDIS to all
agreements connected with this agreement, unless the relevant agreement
expressly provides otherwise.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
CLAUSE 6
VNV may not assign or procure the assumption of, as the case may be, rights
and obligations under this agreement to or by a third party unless it has
obtained the prior written consent of Entero. Entero may give its consent on
a conditional basis.
Each of Entero and VHBV may assign its rights and
obligations under this agreement only to another entity which forms part of
the same group (within the meaning of Section 2:24b of the Dutch Civil Code)
but only with or without simultaneous transfer of all of its shares in
Tiberia in accordance with the Shareholders Agreement.
NOTICES; PLACE OF RESIDENCE
CLAUSE 7
7.1. Notices and other statements in connection with this agreement may only
be given by way of a writ or a letter delivered in person or by a courier
against delivery of a receipt or by way of a registered letter with
acknowledgement of receipt or a telex with receipt of the correct code of
receipt, at the recipient's place of residence as most recently nominated
in accordance with clauses 7.2 and 7.3. Each statement must be in the
Dutch or English language. A statement which does not comply with this
clause 7.1 shall have no effect.
7.2. For all matters relating to this agreement, each party nominates the
address referred to below as its place of residence:
<TABLE>
<S> <C> <C>
(i) Entero
address: Bijlmerplein 888 HG 04.06
PO box: 1800
postal code and city: 1000 BV Amsterdam
country: The Netherlands
for the attention of: J.P.A.M. Vogels
telefax: **
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
(ii) VHBV
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: chairman of the managing board
telefax: **
(iii) VNV
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: chairman of the managing board
telefax: **
</TABLE>
7.3. A party may nominate a different place of residence from that referred to
in clause 7.2 by notifying the other party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect.
7.4. Clauses 7.1 to 7.3 (inclusive) shall also apply to all matters relating
to agreements which are connected with this agreement, unless the
relevant agreement expressly provides otherwise.
GOVERNING LAW; COMPETENT COURT
CLAUSE 9
9.1. This agreement shall be governed exclusively by Dutch law.
9.2. All disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be resolved
in accordance with the Arbitration Rules of the Netherlands Arbitration
Institute ("Nederlands Arbitrage Instituut").
The arbitral panel shall consist of three members. Each party shall
appoint one member within ten (10) business days after the date one of
the parties has given written notice to the other party or parties of the
fact that in its opinion a dispute exists between two or more of the
parties which cannot be resolved through further negotiation.The third
member shall be jointly appointed by the members so appointed. In the
event a party has not appointed a member in time, such member shall be
appointed with due observance of and in accordance with article 14 of the
Arbitration Rules of the Netherlands Arbitration Institute. The place of
arbitration will be Amsterdam, the Netherlands. It is expressly
understood that the foregoing will not preclude the parties from
instituting a summary proceeding ("kort geding").
9.3. Clauses 9.1 and 9.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
<PAGE>
CLAUSE 10
CONFIDENTIALITY
10.1. Each Party undertakes to the other Party not to disclose the provisions
of this Shareholders Agreement unless with the express written consent of
the other Party.
10.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to the other Party, the Company and their respective Affiliated
Parties or their activities or products, including information concerning
suppliers and customers and other relationships, ("CONFIDENTIAL
INFORMATION"), unless the performance or enforcement of this agreement so
requires.
10.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 10.2 only if the third party has committed itself in
writing to use or disclose the Confidential Information only in
accordance with this clause. Each Party shall store Confidential
Information, or procure its storage, in a prudent manner, and shall
ensure that no third party obtains knowledge of it in violation of this
clause.
10.4. This clause shall not apply to the extent that the Party in question is
under an obligation to use or disclose information pursuant to the law,
arbitral decision, a binding decision of a court or another government
authority or any stock exchange. Where possible, however, the disclosing
Party shall consult with the other Party prior to disclosure about the
form and contents of the disclosure.
10.5. If the Shareholders Agreement ends the obligations of each Party under
this clause shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed and countersigned in quadruplicate in the manner
set out below.
1. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
2. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
<PAGE>
3. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
4. By ** [Tiberia]
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
<PAGE>
SCHEDULE 1
STOCK TRANSFER FORM
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Tiberia B.V. hereby sells, assigns and transfers unto
___________________ Shares of Common Stock, no par value per share, of Acsys
Inc., a Georgia corporation, (the "Corporation") standing in the name of Tiberia
B.V. on the books of the Corporation, represented by Certificate(s) Number(s)
____ herewith and do hereby irrevocably constitute and appoint any officer of
the Corporation as attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
________________________, ____________
Tiberia B.V.
By: ____________________
Name:
Title:
<PAGE>
SCHEDULE 2
draft
NOTICE
EXERCISE OF OPTION
Entero B.V.
Bijlmerplein 888 HG 04.06
1102 MG Amsterdam
The Netherlands
Vedior N.V.
[--]
Vedior Holding B.V.
[--]
Stichting Administratiekantoor van gewone aandelen Vedior
[--]
Dear Sirs,
Reference is made to the Share Exchange Agreement between Entero B.V.
("ENTERO"), Vedior Holding B.V. ("VHBV") and Vedior N.V. ("VNV") dated May [--],
2000 (the "SHARE EXCHANGE AGREEMENT"). All defined terms used in this letter
shall have the meaning given to such terms in the Share Exchange Agreement.
This is to inform you that the undersigned hereby notifies you of its exercise
of the option set forth in Clause 1.1 of the Share Exchange Agreement in respect
of all Preferred Shares.
The undersigned hereby requests VHBV, VNV and the Administrator to take all
required steps in order to arrange for an issue of -- Receipts to the
undersigned on [date] (two business days) including without limitation
preparation of a description of assets to be contributed and a statement of
contribution required pursuant to the provisions of the Dutch Civil Code
(BURGERLIJK WETBOEK).
Sincerely yours
Entero B.V.
By ___________________________
Name:
Title:
<PAGE>
SCHEDULE 3
draft
Entero B.V.
Biljmerplein 888
HG 04.05
Dear Sirs,
Reference is made to the Share Exchange Agreement between Entero B.V.
("ENTERO"), Vedior Holding B.V. ("VHBV") and Vedior N.V. ("VNV") dated May [--],
2000 (the "LOAN AGREEMENT"). All defined terms used in this letter shall have
the meaning given to such terms in the Loan Agreement.
The undersigned hereby informs you that the undersigned hereby exercises the
option set forth in clause 1.4 of the Loan Agreement.
We will provide you with transfer documents and payment information within two
business days following this notice.
Sincerely yours,
Vedior N.V.
By:_______________________
Name:
<PAGE>
Exhibit (b)(7)
SHAREHOLDERS AGREEMENT
AMONG
ENTERO B.V.
AND
VEDIOR HOLDING B.V.
<PAGE>
CONTENTS
<TABLE>
<S> <C>
Clause 1 Definitions
Clause 2 General
Clause 3 Permitted transfers of shares
Clause 4 Prohibited transfers of shares
Clause 5 Company Equity
Clause 6 Shareholder voting deadlock
Clause 7 No binding effect
Clause 8 Governing law; competent court
Clause 9 Notices
Clause 10 Duration and termination
Clause 11 Assignment
Clause 12 Confidentiality
</TABLE>
<PAGE>
SHAREHOLDERS AGREEMENT
TIBERIA B.V.
THIS SHAREHOLDERS AGREEMENT is made and entered into on this day of May,
2000, by:
1. ENTERO B.V., a private company with limited liability under the laws of
the Netherlands, with corporate seat in Amsterdam, and having its
address at 1102 MG Amsterdam, the Netherlands, Bijlmerplein 888 HG
04.06, ("ENTERO").
and
2. VEDIOR HOLDING B.V., a private company with limited liability under the
laws of the Netherlands, with corporate seat in Amsterdam, and having
its address at 1076 DC Amsterdam, the Netherlands, Jachthavenweg 112,
("VHBV").
WHEREAS:
(i) VHBV and Entero are each a shareholder in TIBERIA B.V., a private
company with limited liability under the laws of the Netherlands, with
corporate seat in Amsterdam, the Netherlands and having its address at
PRESENT: 1012 MG Amstetrdam, Bijlmerplein 888 HG 04.06 (the "COMPANY");
(ii) VHBV is a wholly owned subsidiary of VEDIOR N.V., a limited liability
company under the laws of the Netherlands, with its corporate seat in
Amsterdam, the Netherlands and having its address at 1076 DC Amsterdam,
the Netherlands, Jachthavenweg 112 ("VNV") and Entero is a wholly owned
subsidiary of ING BANK CORPORATE INVESTMENTS B.V., a private company
with limited liability under the laws of the Netherlands, with its
corporate seat in Amsterdam, the Netherlands and having its address at
1102 MG Amsterdam, the Netherlands, Bijlmerplein 888 ("CI"), which in
turn is a direct subsidiary of ING BANK N.V., a limited liability
company under the laws of the Netherlands, with its corporate seat in
Amsterdam, the Netherlands and having its address at 1077 ZZ Amsterdam,
the Netherlands, Strawinskylaan 2631 ("ING");
(iii) CI, VNV and VHBV have entered into an agreement in principle on April
13, 2000, as amended on the date hereof (the "AGREEMENT IN PRINCIPLE"),
pursuant whereto CI has agreed to cause Entero to provide financing in
the form of equity and loans to the Company and Platform Purchaser,
Inc., a corporation organized and existing under the laws of the state
of Georgia, United States of America, ("PLATFORM"), in order to enable
Platform to acquire shares of common stock in ACSYS, INC., a
corporation organized and existing under the laws of the state of
Georgia, United States of America ("ACSYS") pursuant to a tender offer
dated April 27, 2000 (the "OFFER") and upon the Offer having been
consumated, pursuant to the merger of Platform into Acsys in accordance
with and subject to the terms and conditions of an agreement and plan
of merger, dated as of April 16, 2000, to which they each are a party;
(iv) VHBV holds xx shares of common stock in the Company and Entero holds xx
shares of cumulative preferred stock in the Company, each share of
common stock and each share of cumulative preferred stock with a par
value of [EURO]1 and entitling its holder to the rights, benefits and
obligations under applicable Dutch law and the Articles of Association;
<PAGE>
(v) Article 21.1 of the Articles of Association provides that each share of
common stock and each share of cumulative preferred stock in the
Company, entitles its holder to one vote in the Company's general
meeting of shareholders, provided that each shareholder shall have a
maximum of 1,000 votes.
(vi) the Parties wish to enter into this Shareholders Agreement in order to
agree on certain matters regarding (a) the transfer of shares in the
capital of the Company and (b) the voting of their shares in the
Company's general meeting of shareholders with respect to certain
subjects.
IN CONSIDERATION WHEREOF, THE PARTIES AGREE AS FOLLOWS
CLAUSE 1
DEFINITIONS
Capitalised terms used herein and not otherwise defined in this Shareholders
Agreement, shall have the meaning ascribed thereto below, while references to
the singular shall include the plural and vice versa.
AFFILIATED COMPANY
With respect to a Party, a company, other legal entity, partnership or other
enterprise in which that Party or any of its Affiliated Companies has a direct
or indirect interest and over whose operating and financial policies it
exercises a dominant or decisive influence, as well as any company, other legal
entity, partnership or other enterprise holding a direct or indirect decisive
influence in that Party, and any other company, other legal entity, partnership
or other enterprise in which it holds direct or indirect decisive influence or
over which it exercises such influence.
ARTICLES OF ASSOCIATION
The Company's articles of association last amended on the date hereof by deed of
amendment executed before [**] notaris at Amsterdam, as the same may be amended
from time to time hereafter by a valid resolution by the Company's general
meeting of shareholders with due observance of all other requirements of
applicable Dutch law.
BUSINESS DAY
A day on which commercial banks are generally open for business to the public in
the Netherlands.
PARTIES
Entero and VHBV and their permitted assigns, transferees and successors
hereunder.
FINANCING AGREEMENTS
The US$ 40 million exchangeable loan agreement between Entero, Tiberia and VNV,
the US$ 40 million loan agreement between Tiberia and Platform and the share
exchange agreement between Entero and VNV, all dated the date hereof.
SHAREHOLDERS AGREEMENT
This agreement together with all schedules and attachments hereto, as the same
shall read at any time and from time to time.
<PAGE>
CLAUSE 2
GENERAL
2.1 Each of the Parties shall, whenever acting in its capacity of
shareholder of the Company, and as long as the Financing Agreements,
or any one of them, are in force, act in accordance with the
provisions of the Financing Agreements, including but not limited to,
when voting its respective shares in the share capital of the Company
and when exercising any right to which it is or shall at any time and
from time to time be entitled by virtue thereof and pursuant thereto,
the Articles of Association, Dutch law and applicable regulatory
provisions, or any other applicable law or regulatory provisions.
2.2. In the event of inconsistencies between this Shareholders Agreement
and the Articles of Association, this Shareholders Agreement shall
prevail, to the extent permitted by Dutch law.
2.3. Each of the Parties shall refrain from taking any actions which could
cause the Company to act or be in breach of any of its obligations
under or pursuant to the Financing Agreements, to which it is a
party.
CLAUSE 3
PERMITTED TRANSFERS OF SHARES
3.1. Each of the Parties shall at any time and from time to time during the
term of this Shareholders Agreement be permitted to transfer all (but
only all) of its shares in the Company to one of its Affiliated
Companies, provided however that such Affiliated Company shall (i) at
the occasion of such transfer become a party to this Shareholders
Agreement and (ii) such Affiliated Company shall be able to comply with
and perform all of its obligations hereunder, (the burden of proof of
which vests in the transferring Party). In such event the transferring
Party shall notify the other Party of its wish in accordance with
clause 9 of this Shareholders Agreement, observing at least a notice
period of ten (10) Business Days.
3.2 Provided a proposed transfer of shares in the Company by a Party shall
be effected in accordance with clause 3.1, the other Party shall be
under the obligation towards the Party which has notified such other
Party pursuant to and in accordance with clause 3.1, to vote its shares
in the Company in the general meeting of shareholders of the Company
which must be held pursuant to article 14 of Articles of Association,
in favour of the proposal to approve such transfer.
CLAUSE 4
PROHIBITED TRANSFERS OF SHARES
Neither Party shall at any time during the existence of this Shareholders
Agreement transfer one or more of its shares in the capital of the Company to a
third party which is not an Affiliated Party or to more than one of its
Affiliated Companies, nor shall it cooperate in any way in any change of
ownership over its shares in a manner other than transfer.
<PAGE>
CLAUSE 5
COMPANY EQUITY
As long as this Shareholders Agreement is in force, the Parties shall vote their
respective shares in the share capital of the Company in such a way that in any
year in which the profits made by the Company are in excess of the amounts
(which must be), paid on the cumulative preferred shares in accordance with
article 25.2 of the Articles of Association, such excess amounts shall be
carried to reserves and that subsequently no payments shall be declared out of
such reserves.
CLAUSE 6
SHAREHOLDER VOTING DEADLOCK
6.1. In the event of a deadlock with respect to any vote taken in a general
meeting of shareholders of the Company, such deadlock shall constitute
a dispute between the shareholders. Such dispute shall be finally
settled in accordance with the Arbitration Rules of the Netherlands
Arbitration Institute ("Netherlands Arbitrage Instituut").
6.2. The arbitral tribunal shall consist of three members. Each Party shall
appoint one member within ten (10) Business Days after the date of the
general meeting of shareholders referred to in clause 6.1. The third
member shall be jointly appointed by the members so appointed. In the
event a Party has not appointed its member in time, such member shall
be appointed with due observance of and in accordance with article 14
of the Arbitration Rules of the Netherlands Arbitration Institute. The
place of arbitration will be Amsterdam, the Netherlands.
CLAUSE 7
NO BINDING EFFECT
7.1. If part of this Shareholders Agreement is or becomes invalid or
non-binding, the Parties shall remain bound to the remaining part. The
Parties shall replace the invalid or non-binding part by provisions
which are valid and binding and the legal effect of which, given the
contents and purpose of this Shareholders Agreement, is, to the
greatest extent possible, similar to that of the invalid or non-binding
part.
7.2. This Shareholders Agreement may not be rescinded in whole or in part.
ARTICLE 8
GOVERNING LAW; COMPETENT COURT
8.1. This Shareholders Agreement shall be governed exclusively by Dutch law.
8.2 Disputes arising in connection with this Shareholders Agreement,
including disputes concerning the existence and validity thereof, shall
be resolved exclusively by arbitration, mutatis mutandis with due
observance of clause 6 hereof. It is expressly understood that the
foregoing will not preclude the parties from instituting a summary
proceeding ("kort geding").
<PAGE>
8.3 Clauses 8.1 and 8.2 shall also apply to disputes arising in connection
with agreements which are made pursuant to this Shareholders Agreement,
unless the relevant agreement expressly provides otherwise.
CLAUSE 9
NOTICES
9.1. Notices and other statements in connection with this Shareholders
Agreement may only be given by way of a registered letter with
acknowledgement of receipt, and at the recipient's place of residence as
most recently nominated in accordance with Clauses 9.2 and 9.3. A
statement which does not comply with this subclause shall have no effect,
except that writs may be served at a place of residence of the recipient
which is different from the nominated place of residence.
9.2. For all matters relating to this Shareholders Agreement, each party
nominates the address referred to below as its place of residence:
ENTERO
address: Bijlmerplein 888, HG 04.06
PO box: 1800
postal code and town: 1000 DV Amsterdam
country: The Netherlands
for the attention of: J.P.A.M. Vogels
fax: 020 652 39 73
VHBV
address: Jachthavenweg 112
PO box: 75173
postal code and town: 1070 AN Amsterdam
country: The Netherlands
for the attention of: chairman of the board of management
fax: **
9.3. A Party may nominate a different place of residence from that referred to
in Clause 9.2 by notifying the other Party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect if the
nominating Party does not simultaneously nominate a place of residence in
the Netherlands at which writs may be served.
9.4. Clauses 9.1 to 9.3 (inclusive) shall also apply to notices given in
connection with agreements which are made pursuant to this Shareholders
Agreement, unless the relevant agreement expressly provides otherwise.
CLAUSE 10
DURATION AND TERMINATION
<PAGE>
The Shareholders Agreement has been entered into for the period so long as
Entero and VHBV or their permitted successors are a shareholder of the Company
and so long as the Financing Documents, or any one of them, continue(s) to
exist.
CLAUSE 11
ASSIGNMENT
11.1. Neither Party may assign, transfer or otherwise alienate its rights and
obligations under this Shareholders Agreement other than in accordance
with the provisions of this Shareholders Agreement.
11.2. The Party wishing to assign, transfer or otherwise alienate its rights
and obligations under this Shareholders Agreement to an Affiliated
Company, undertakes with the other Parties to cause such Affiliated
Company to become a party to this Shareholders Agreement.
11.3. Neither Party may assign, transfer or otherwise alienate its rights and
obligations under this Shareholders Agreement, in the event the same
would constitute a default by the Company under any Financing Agreement
to which the Company is a party.
CLAUSE 12
CONFIDENTIALITY
12.1. Each Party undertakes to the other Party not to disclose the provisions
of this Shareholders Agreement unless with the express written consent of
the other Party.
12.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to the other Party the Company and their respective Affiliated
Parties or their activities or products, including information concerning
suppliers and customers and other relationships, ("CONFIDENTIAL
INFORMATION"), unless the performance or enforcement of this agreement so
requires.
12.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 12.2 only if the third party has committed itself in
writing to use or disclose the Confidential Information only in
accordance with this clause. Each Party shall store Confidential
Information, or procure its storage, in a prudent manner, and shall
ensure that no third party obtains knowledge of it in violation of this
clause.
12.4. This clause shall not apply to the extent that the Party in question is
under an obligation to use or disclose information pursuant to the law,
arbitral decision a binding decision of a court or another government
authority or any stock exchange. Where possible, however, the disclosing
Party shall consult with the other Party prior to disclosure about the
form and contents of the disclosure.
12.5. If the Shareholders Agreement ends the obligations of each Party under
this clause shall, however, continue to exist.
<PAGE>
IN EVIDENCE WHEREOF: this agreement was signed in two counterparts, together
constituting one and the same document on the date first written above.
<TABLE>
<CAPTION>
VEDIOR HOLDING B.V. ENTERO B.V.
<S> <C>
By: ________________ By: ________________
Name: ________________ Name: ________________
Title: ________________ Title: ________________
By: ________________
Name: ________________
Title: ________________
</TABLE>
