You are here : Administr. office > Terms of administration >  Terms of administration of Administration Office Ballast Nedam (Stichting Administratiekantoor van aandelen Ballast Nedam) (informal translation) Download this document as pdf In effect as of 7 June 2005 Terms of administration of Stichting Administratiekantoor van aandelen Ballast Nedam having its seat in Nieuwegein, as they read after the deed of amendment to the terms of administration executed on 7 June 2005 before H.B.H. Kraak, civil-law notary in Amsterdam. Definitions Article 1. In the terms of administration, the following definitions will apply: the administration office: the foundation Stichting Administratiekantoor van aandelen Ballast Nedam, having its registered office in Nieuwegein, the object of which, according to article 2 of its articles of association, is as follows: The objects of the foundation are: to issue convertible bearer depositary receipts for registered shares in the capital of the public limited liability company: Ballast Nedam N.V. (the ‘company’), which are transferred to the foundation for the purpose of managing such shares; to manage and administer the shares and to collect all payments attached to the shares; to exercise all rights accruing to the shares, including voting rights, with due observance of paragraph 3 of this article; to carry out all such actions as are connected with the above, ensuing therefrom or may be conducive thereto. Any business transaction that could entail commercial risk for the foundation is excluded. In exercising its voting rights, the foundation shall be guided primarily by the interests of the depositary receipt holders, taking the interests of the company and its affiliated enterprise into account. The management board of the foundation shall, upon request, make a statement about how it proposes to vote at the general meeting of shareholders of the company. the company: the public limited liability company Ballast Nedam N.V., registered in Nieuwegein; share: a registered ordinary share; depositary receipt: the rights acquired by the holder of a share with respect to the administration office after transfer for the purpose of managing such shares by virtue of said transfer, which transfer by the holder includes the issue or distribution, respectively, of shares by the company; depositary receipt certificate: a certificate to bearer for one or more depositary receipts, or the scrip of such a certificate. Issue of depositary receipts Article 2. The administration office shall issue convertible bearer depositary receipts for shares in its name in denominations of hundred shares, ten shares and one share. The administration office is entitled, in consultation with the company, to also undertake the issue of depository receipt certificates in other denominations. One or more depository receipts in one or more of the denominations referred to in the previous paragraph, or in other denominations that may be issued in future, may be exchanged at any time in Amsterdam, or in such other locations as may be announced by the administration office, by the holders thereof for one or more depositary receipts in one or more other denominations, which together in total represent the same number of shares as the receipts offered for exchange. For such an exchange, the administration office shall not charge any costs and/or fees to the holders of depositary receipts involved. Depository receipts are issued for shares that: are transferred to the administration office by the shareholder under title of management; are issued to the administration office by the company under title of management, or paid out in the form of bonus shares, stock dividends or in another manner. The administration office collects dividends and other distributions made payable on the shares in cash, and pays such out to the holders of depositary receipts. In the event that scrips are issued, these will be converted into depositary receipt certificates as quickly as possible. The shares that the administration office takes under administration will be registered in the register of shareholders of the company in the name of the administration office, with the note that the administration office cannot do anything with the shares without the cooperation of the third party referred to in article 4. Signing Article 3. The depositary receipt certificates are signed by the administration office, which can be done by facsimile, and either countersigned by the third party referred to in article 4, or stamped with the verification stamp of the third party under the supervision of said third party. Said countersigning or verification stamp serves only as proof that the shares for which the depositary receipts are issued have been registered in the share register of the company in the prescribed manner, without the third party thereby accepting any other liability than that ensuing for him under the terms of administration. Third parties Article 4. The following civil-law notaries officiating in Amsterdam are designated as third parties: P.J. Dortmond, H.B.H. Kraak, P.H.N. Quist, C. Holdinga, as well as their legal substitutes, in their association with the firm Stibbe N.V. in Amsterdam and L.C. Klein, civil-law notary associated to the partnership KleinBinnenkade in Amsterdam. Any third party, his deputy or substitute is authorized to act independently as a third party. The administration office may designate another third party or other third parties in consultation with the company. The name or names of the person(s) designated as third party (parties) will be communicated without delay in an advertisement. Dividends and payments Article 5. The collection of dividends or other payments on the shares, as well as all other prescribed dealings with respect to the shares shall be carried out for the account of the holders of depositary receipts. After receipt of the monies distributed, the dividends shall be made payable at a location in Amsterdam to be communicated at a certain date in an advertisement. In the event that capital repayments in any form are received, the administration office shall account for these in such a way as it deems most fitting. In the event of a choice between a payment in cash and a payment in other securities, the administration office shall communicate the same in an advertisement beforehand and shall therein give the holders of depositary receipts as much opportunity as possible to make a choice themselves up to the fourth day before that on which the choice must have been made by the administration office. In the event that the administration office is not informed of the wishes of the holders of depositary receipts four days before the choice must be made, the administration office shall make the choice as it considers beneficial in the interests of the holders of depositary receipts. In the event that, on the issue of new shares by the company, a pre-emptive right accrues to the holders of depositary receipts, the administration office shall give the holders of depositary receipts the opportunity to exercise said pre-emptive right in respect of depositary receipts mutatis mutandis. In the event that or insofar as holders of depositary receipts do not inform the administration office within the period set by the administration office, or in the manner to be determined by the administration office, that they wish to make use of their pre-emptive right, the administration office shall convert said pre-emptive right into cash inasmuch as possible and make the proceeds therefrom payable to the holders of depositary receipts proportionally. The rights of holders of depositary receipts towards the administration office to the amounts made payable on depositary receipts by the administration office by virtue of dividends or other payments shall lapse after five years from the date as from which these were made payable by the administration office. The bonus shares, upward corrections on shares, stock dividends or the like, paid out to the administration office, shall as much as possible be made available to the holders of depositary receipts in the form of depositary receipts or upward correction on the depositary receipts. Transactions Article 6. The conversion of scrips into final depositary receipts, the delivery of new depositary receipts, the redemption of depositary receipts, creation and conversion, as well as all other transactions with respect to the fund, shall be performed at an address in Amsterdam to be communicated in an advertisement. The opportunity shall be given for making payable, as well as all other transactions, on each working day from nine to twelve ante meridiem and otherwise as shall be further determined by the administration office. CF-certificates Article 7. The depositary receipt certificates may be acquired in the form of certificates consisting of a body and a dividend sheet which is not composed of separate dividend certificates and a talon and which must be held in custody for the exercise of the rights accruing to the holders of depositary receipts as meant in article 5 in accordance with the provisions laid down hereafter (CF-certificates). A dividend sheet which is not composed of separate dividend certificates and a talon shall only be issued by the administration office to a custodian to be designated by the holders of depositary receipts. Said designation should be made from a group of custodians accepted by the administration office for that purpose, whose custody of dividend certificates as meant above is administered by an institution independent of the administration office, acceptable for that purpose to the administration office, and which custodians have undertaken not to deliver such dividend sheets to parties other than custodians and exchange offices acceptable to it without its permission and who shall only take custody under these terms. With respect to the rights accruing to holders of depositary receipts as meant in article 5, the administration office shall, towards the holders of certificates of which the dividend sheet is not composed of separate dividend certificates and a talon, be discharged by making available that accruing to them or a certificate to bearer in respect thereof to, or according to the instructions of, the institution charged with the administration, as meant in this article, to the credit of those for whom the dividend sheets are being kept in custody, in accordance with the provisions of this article, at a time to be announced by the administration office in an advertisement. Exchange Article 8. The administration office declares it is prepared at all times to exchange shares for depositary receipts and depositary receipt certificates of a certain denomination for depositary receipt certificates of another denomination, provided they are of the same total nominal amount, with the understanding that the certificates to be exchanged should be accompanied by all the dividend sheets belonging therewith. The administration office shall charge no costs or fee to the holders of depositary receipts for this. Payment Article 9. The administration office shall pay the dividends it collects and other payments to the holders of depositary receipts without any deduction for costs or commission. All expenses and taxes which may be imposed on the administration office as holder of the original shares by virtue of its possession, or income derived therefrom, can be recovered by the administration office from the holders of the depositary receipts. Conversion Article 10. At the written request of the holders of depositary receipts and against delivery of depositary receipt certificates, consisting of a body and accompanying dividend sheets, the administration office shall transfer to their name an equal nominal amount of original shares. Duplicates Article 11. Lost, missing or damaged depositary receipt certificates can be replaced by the administration office with new depositary receipt certificates at the time and under the terms and guarantees, and after the release of such publications as determined in each separate case by the administration office and the third party. On the issue of these new depositary receipt certificates, the old ones shall become worthless. All costs for the announcement and replacement can be charged to the petitioner. The administration office shall never be held liable for any damage that may be suffered by holders of depositary receipts if it appears at a later date that, despite the terms set and warranties requested in that respect, the delivery of the new depositary receipt certificates has taken place improperly. Rejected certificates Article 12. Duplicate or new depositary receipt certificates shall be delivered in place of depositary receipt certificates rejected by Euronext Amsterdam N.V., provided that all the parts thereof are present and all details thereof can be ascertained. In the event that Euronext Amsterdam N.V. considers desirable, duplicate or new depositary receipt certificates shall be made available at no cost in Amsterdam in place of depositary receipt certificates which either do not or no longer fulfil the provisions laid down in the listing rules of Euronext Amsterdam N.V. pertaining to the technical execution of securities. Costs Article 13. The costs of creating the depositary receipt certificates shall be borne by the company. The costs of conversion shall be for the account of the holders of depositary receipts. On the conversion of the depositary receipts of one share, of ten shares and of one hundred shares, the administration office shall charge a conversion fee of fifty cent (EUR 0.50), one euro seventy-five cent (EUR 1.75) and two euro fifty cent (EUR 2.50) respectively. On conversion of depositary receipts of other denominations a fee of five euro (EUR 5.-) per one thousand depositary receipts will be charged, under the provision that the costs of conversion will at least amount to twelve euro fifty euro (EUR 12.50). Announcements Articel 14. All announcements to be made to holders of depositary receipts, insofar and as long as the depositary receipt certificates are quoted on the Official Market, must be made via advertisements in the Official Pricelist of Euronext Amsterdam N.V., or by virtue of a resolution of the management board of that company, in a replacement official publication, and, furthermore, in one or more other nationally distributed daily newspapers. Insofar as the company is not already obliged thereto by virtue of the provisions in article 28 of the Listing Rules, all publications the company is obliged to release according to the terms of administration or on any other basis must be made available in Amsterdam as soon as possible after publication for the inspection of all parties and copies thereof made available at no cost for holders of depositary receipts. Annual accounts and annual report Article 15. Annually, the annual accounts and the annual report of the company, together with the information to be added by law, must as soon as possible after publication be made available in Amsterdam for the inspection of all parties and copies thereof made available at no cost for holders of depositary receipts. At least once a year, but in any case immediately after publication of the annual accounts and the annual report, the administration office shall release a report to holders of depositary receipts concerning its activities during the year under review, such also stating the nominal amount of the shares taken under administration, which report will be made available in Amsterdam at no cost to holders of depositary receipts via an advertisement. Furthermore, this report will be published on the website of the company. The management board shall report to the company on its activities once a year. This report will be added to the annual accounts of the company. This report shall set out: the number of shares for which depositary receipts have been issued and an explanation of changes in this number; the work carried out in the year under review; the voting behaviour in the general meetings of shareholders held in the year under review; the percentage of votes represented by the foundation during the meetings referred to at c. above; the remuneration of the members of the management board of the foundation; the number of meetings held by the management board and the main items dealt with in them; the costs of the activities of the foundation; any external advise obtained by the foundation; the position of the members of the management board of the foundation; the contact details of the trust office. Liability Article 16. Those parties who lodge depositary receipt certificates to the administration office are liable for any and all damage that is suffered by the administration office due to the fact that the lodged certificates were not, at the time of lodging, the same as all the other certificates of the same type with respect to the benefit of the owner. The depositary receipt holder who is not also the same party who lodged cannot, however, be made liable therefore. Those parties who transferred shares under the title of management are liable for any and all damage that is suffered by the administration office due to the fact that the lodged shares are not the property or not the full property of the transferring party. Article 17. The administration office shall not be liable for damage or disadvantages which are suffered as a result of any transaction with respect to this administration, nor for persons or institutions whose mediation it has used in good faith. Exercise of rights Article 18. In exercising its voting rights, the administration office shall be guided primarily by the interests of the depositary receipts holders, taking the interests of the company and its affiliated enterprise into account. The administration office also undertakes, in the event that a proposal is made to amend the rights attached to the shares taken in administration, to inform the holders of depositary receipts by means of an advertisement, if possible at least fourteen days beforehand, of the intention to use or not use its voting right, without any obligation to mention in which direction the vote will be. The administration office shall, for each separate meeting, issue proxies to depositary receipt holders who so request without any restriction and under all circumstances. Such proxy shall be issued in writing. Each depositary receipt holder may also, for each separate meeting, issue binding voting instructions to the administration office in respect of the shares which the administration office holds on his behalf. Meeting of holders of depositary receipts Article 19. In the event that the administration office considers it desirable to take cognizance of the opinion of holders of depositary receipts vis-à-vis a certain subject, and also if the approval of holders of depositary receipts is required according to these terms of administration, or in case the management board satisfies the request of a convocation as referred to in paragraph 9 of this article, the administration office will convene the holders of depositary receipts by means of an advertisement in the papers as referred to in article 14 of these terms of administration, in which convocation will be included either the contents of the agenda and of all documents cognisance of the holders of certificates is relevant at the discussion of the agenda, or it is mentioned, that and where these documents are to be obtained free of charge. A copy of aforementioned documents will be deposited at Euronext Amsterdam N.V. The convocation, the making available and the deposition, respectively, as meant above, shall take place at the latest on the fifteenth day before the day of the meeting. The meetings shall be presided over by a chairman to be designated by the administration office and be held in Nieuwegein, Utrecht, or in such place as indicated in the convocation. All members of the management board and all holders of depositary receipts or their representatives are authorised to attend the meeting of holders of depositary receipts, to address the meeting and, to the extent they are entitled to vote, to cast their votes. The holders of depositary receipts receive admission to the meeting on presentation of their deposit receipt for their depositary receipts not later than and at the place as mentioned in the announcement to the meeting. Deposit of the declaration of a bank stating that they keep the depositary receipts mentioned in the declaration in deposit and will keep those in deposit until the end of the meeting will be considered equivalent to the deposit of depositary receipts. The chairman of the meeting decides concerning the admission of other persons to the meeting than those referred to above. Each depositary receipt will entitle the holder to one vote in the meeting of holders of depositary receipts. A holder of a collective denomination as referred to in article 2 of these terms of administration will be entitled to the number of votes, equal to the number of depositary receipts embodied in the collective denomination. The meeting rights of holders of depositary receipts can be exercised by a person holding a written power of attorney, provided that the power of attorney has been received by the administration office on the day mentioned in the notice at the latest. The moment referred to in the previous paragraphs cannot be made earlier than the seventh day before the day of the meeting. Resolutions will be made with absolute majority of the votes validly cast. In case of a tie in voting, if the proposal concerns individuals, the drawing of lots will decide and the proposal will be rejected if it concerns matters of business. All voting shall be done orally. The chairman may decide that votes will be cast in writing. Written voting will be done by closed, unsigned ballots. Votings by acclamation is permitted, unless one of the attending holders of depositary receipts opposes thereto. Blank votes and invalidly cast votes will be considered null and void. Holders of depositary receipts, representing at least one tenth part of the capital for which depositary receipts were issued, may require the administration office that a meeting of holders of depositary receipts be convened. Holders of depositary receipts may furthermore require the administration office that a meeting of holders of depositary receipts be convened, in case the administration office is to vote on proposals amending the nature of the company. The request to that effect will be made in writing, specifying the subjects to be discussed. In case holders of depositary receipts have requested the administration office to convene a meeting as referred to in the previous paragraph and the board did not convene such meeting within fourteen days after the request for a meeting to be held within one month after the referred request, the parties requesting such meeting will be authorised to convene the meeting themselves. A meeting which is convened by the parties requesting such meeting, provides its own chairman. The management board keeps a record of the resolutions taken. The notes will be deposited for inspection of holders of depositary receipts at the offices of the administration office. If requested, a certified copy or extract of these notes will be provided to them at no more than the cost price. Amendment of terms of administration Article 20. The terms of administration may, subject to proper notice, be amended. Amendments made to these terms of administration as a result of which the rights and sureties of the holders of depositary receipts are diminished or expenses are imposed on said holders of depositary receipts, will come into force and effect following a three months period since the date of the amendment. Holders of depositary receipts are given the opportunity to convert their depositary receipts at no cost for at least three months after the notice of said amendment. In the event that amendments are necessary or desirable as a result of changes in the securities taken in administration, such amendments shall not entail any right to conversion at no cost for the holders of depositary receipts. Each amendment shall be effective only after approval has been obtained by the company and Euronext Amsterdam N.V. Termination Article 21. Termination of the administration of the shares is only possible with the approval of the company. In the event of the dissolution of the administration office or termination of the administration, this will be communicated in an advertisement. In that case, on the delivery of the depositary receipts, shares will be delivered at no cost for equal nominal amounts. The announcement shall also state the period within which the depositary receipt certificates must be delivered for exchange. This period may not be shorter than two years from the day of the announcement. During this time, the terms of administration remain in force. When this period has elapsed, the administration office is entitled, after consultation with Euronext Amsterdam N.V., and after announcement, to transfer the share under administration either to a third party at the expense of and for the risk of the holders of the then still outstanding depositary receipts, or to sell those shares and place the income therefrom at the disposal of aforesaid holders of depositary receipts. For two months after the announcement, depositary receipts may still be created, provided that at the latest on the fourth day after said announcement in the Official Price List, the administration office is informed of the number of shares to be offered for the acquisition of depositary receipts, while it must be shown that the shares had already been acquired before or on the day of the announcement. Transfer Article 22. Transfer of the administration to another administration office may only take place with the approval of the company, the administration office and the meeting of holder of depositary receipts. In the event that not all parties approve the transfer, the most diligent party may request a decision from Euronext Amsterdam N.V. This decision shall be binding on all parties. Cooperation of the company Article 23. Depositary receipts are issued with the cooperation of the company. All costs associated with the administration shall be for its account, with the exception of the expenses and taxes referred to in article 9 and the costs of conversion referred to in article 13. Applicability of terms of administration Article 24. By acquiring depositary receipts, the holders thereof are considered to have acceded to the provisions of these terms of administration and any possible amendments made thereto and to have given the administration office irrevocable power of attorney to do all that which said administration office shall consider conducive to the interests of the holders of depositary receipts, in a manner to be determined by the administration office with due observance of these terms of administration. Legal relationship Article 25. The legal relationship between the holders of depositary receipts or the former holders of depositary receipts as such, on the one hand, and the administration office as such, on the other hand, is governed by Dutch law. Any and all disputes arising in connection with or as a result of these terms of administration shall be settled in the first instance by the competent judge in Utrecht. Availability of terms of administration Article 26. Copies of the terms of administration are available at no cost at the request of holders of depositary receipts, at the administration office, at the company and at another location in Amsterdam yet to be determined and shall be available there and with the third party meant in article 4 for the inspection of holders of depositary receipts.