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Exhibit 4.9
DE BRAUW BLACKSTONE WESTBROEK
AMENDMENT AGREEMENT
to the Contribution Agreement entered into on 3 December 2004 by and between
NUTRECO HOLDING N.V.
and
STOLT SEA FARM INVESTMENTS B.V.
and
STOLT-NIELSEN S.A.
and co-signed for acknowledgement by
MARINE HARVEST N.V.
relating to the formation of a joint venture in respect of fish farming, processing, marketing and sale activities of Nutreco Holding N.V. and Stolt-Nielsen S.A. to be undertaken by Marine Harvest N.V.
dated 29 April 2005
TABLE OF CONTENTS
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AMENDMENT AGREEMENT
TO THE CONTRIBUTION AGREEMENT
THIS AGREEMENT IS MADE BETWEEN :
(1) NUTRECO HOLDING N.V. , a limited liability company incorporated in the Netherlands, with corporate seat in Boxmeer, the Netherlands, and having its address at 38 Veerstraat, 5831 JN, Boxmeer, the Netherlands (“ Nutreco ”);
(2) STOLT SEA FARM INVESTMENTS B.V. , a private company with limited liability incorporated in the Netherlands, with corporate seat in Schiedam, and having its address at Westerlaan 5, 3016 CK Rotterdam, the Netherlands (“ Stolt B.V. ”); and
(3) STOLT-NIELSEN S.A. , a limited liability company incorporated in Luxembourg, with corporate seat in Luxembourg, and having its address at 23 Avenue Monterey, L-2086 Luxembourg, Luxembourg (“ Stolt ”).
WHEREAS :
A. Nutreco, Stolt B.V. and Stolt entered into a contribution agreement on 3 December 2005 in relation to the formation of a joint venture in respect of fish farming, processing, marketing and sale activities of Nutreco Holding N.V. and Stolt-Nielsen S.A. to be undertaken by Marine Harvest N.V. (the “ Company ”) (the “ Contribution Agreement ”).
B. In accordance with the provisions of Clause 15.5 of the Contribution Agreement, Nutreco, Stolt B.V. and Stolt have agreed to amend Schedule 3 (Part 2) to the Contribution Agreement pursuant to an amendment letter dated 17 March 2005 (the “ Amendment Letter ”).
C. Nutreco, Stolt B.V. and Stolt have further agreed to amend certain other provisions of the Contribution Agreement on the terms and conditions set out in this amendment agreement (the “ Amendment Agreement ”).
HAVE AGREED AS FOLLOWS :
Capitalised terms used herein and not otherwise defined will have the meaning set forth in the Contribution Agreement.
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2.1 The Parties confirm and agree that the Conditions Precedent have been satisfied, with the exception of the condition set out in Clause 3.1.3 of the Contribution Agreement to the extent relating to (i) the First Nations consultation procedure to be followed by Nutreco and Stolt in connection with the execution of their respective disentanglement plan in British Columbia in Canada and (ii) obtaining the consent by Nutreco of the Norwegian Department of Fisheries for the transfer of the licence and the subsidy with respect to Centre for Aquaculture Competence A.S. in connection with the execution of Nutreco’s disentanglement plan in Norway and (iii) obtaining the written consent by Stolt of the Western Isles Enterprise in Scotland for the transfer of the grants with respect to Stolt Sea Farm Ltd (UK) in connection with the execution of Stolt’s disentanglement plan in Scotland.
2.2 The parties confirm that the only anti-trust approvals referred to in Clause 3.1.1 and 3.1.2 of the Contribution Agreement which needed to be obtained in connection with the Transaction were the obtained approval from the European Commission and the Federal Trade Commission in respect of the European Union and the United States of America, respectively.
3. Closing Date and adjustment date
The Closing shall take place on 29 April 2005. Clause 5.1 of the Contribution Agreement shall be amended accordingly.
3.2 Date Closing Financial Statements
The date as at which the Nutreco Closing Financial Statements and Stolt Closing Financial Statements will be drawn up will be 30 April 2005 and the definitions of Nutreco Closing Financial Statements and Stolt Closing Financial Statements, as set out in Schedule 1 of the Contribution Agreement shall be amended as follows: “Nutreco Closing Financial Statements ” means the balance sheet, profit and loss account, cash flow statement and statement of movement on shareholders’ equity in respect of the Nutreco JV Activities for the period from 31 August 2004 until and including 30 April 2005, including an explicit explanation and demonstration of any impact of a change in accounting policy (e.g. to IFRS) from the one used in the Nutreco Accounts;” and “Stolt Closing Financial Statements ” means the balance sheet, profit and loss account, cash flow statement and statement of movement on shareholders’ equity in respect of the Stolt JV Activities for the period from 31 August 2004 until and including 30 April 2005, including an explicit explanation and demonstration of any impact of a change in accounting policy (e.g. to IFRS) from the one used in the Stolt Accounts.”
The Parties shall procure that the Company and the relevant members of the JV Group shall
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comply with the pre closing covenants set out in Clause 4 of the Contribution Agreement until and including 30 April 2005. With respect to the JV Activities of the relevant Stolt JV Companies referred to in Clause 6.1 of this Amendment Agreement and the Nutreco Activities undertaken by and through the Centre for Aquaculture Competence A.S., respectively Stolt and Stolt B.V. and Nutreco, respectively, shall procure that the Company and the relevant members of the JV Group shall comply with such pre closing covenants until the completion of the transfer of the legal ownership of the shares in these companies as referred to in Clause 6.2 and Clause 7.1, respectively, of this Amendment Agreement. Each Party will be liable in case of a breach of its obligations under such pre closing covenants.
4. Intra-group agreements and indebtedness
The intra-group agreements to be terminated pursuant to Clause 4.4 of the Contribution Agreement will be determined and agreed between Stolt B.V. and Nutreco within 2 (two) months after the Closing Date. Clause 4.4 of the Contribution Agreement shall be amended accordingly.
4.2.1 Nutreco, Stolt B.V. and Stolt confirm that each relevant member of its Group has settled in full with the relevant member of the JV Group its respective Intra-Group Receivables and Intra-Group Payables prior to the Closing, with the exception only of the indebtedness under the Shareholder Loan Agreements.
4.2.2 Clause 5.3.1 under (ii) and (iii) of the Contribution Agreement shall be amended in accordance with Clause 4.2.1 of this Amendment Agreement.
In accordance with Clause 5.4 of the Contribution Agreement, the JV Activities in Canada and the Nutreco JV Activities in Poland will be deferred activities (the “ Deferred Activities ”). Closing in respect of the Deferred Activities in Canada shall occur in accordance with the provisions of Clause 5.4 of the Contribution Agreement at the last day of the month following completion of the consultation process with the First Nations in British Columbia. Closing in respect of the Deferred Activities in Poland shall occur in accordance with the provisions of Clause 5.4 of the Contribution Agreement upon completion of the Nutreco disentanglement process in Poland. 5.2 Period between Closing and Closing with respect to the Deferred Activities in Canada
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5.2.1 The Nutreco Contribution Plan included in Schedule 2 (Part 3) to the Contribution Agreement and the Stolt Contribution Plan included in Schedule 3 (Part 3) to the Contribution Agreement relating to the Canadian disentanglement process shall be amended as follows:
(i) Nutreco Canada Inc. will not be contributed to the JV Group at the Closing and will be continued to be owned by Nutreco International B.V. until the Closing of the Deferred Activities;(ii) Stolt Sea Farm Inc. Canada will not be contributed to the JV Group at the Closing and will be continued to be owned by the relevant members of the Stolt group until the Closing of the Deferred Activities;(iii) Nutreco Canada Inc. will continue to sell its products to Marine Harvest USA Inc.;(iv) Stolt Sea Farm Inc. Canada will continue to sell its products to Stolt Sea Farm Inc. Delaware;(v) the US JV Group companies will begin the process of integration as soon as practically possible after the Closing; and(vi) Stolt Sea Farm Inc. Canada will be renamed after the Closing of the Deferred Activities.5.2.2 The Parties shall procure that if reasonably required by the Deferred Activities in Canada during the period between Closing and Closing with respect to the Deferred Activities in Canada, additional funding shall be directly or indirectly supplied through Marine Harvest International B.V.
5.3 Consultations First Nations
The Parties shall, and shall procure that their respective advisors shall, use their best efforts to conclude the consultation process with the First Nations in British Columbia as soon as practicable.
5.4 Closing Poland
Nutreco shall, and shall procure that its advisors shall, use its best efforts to conclude the Nutreco disentanglement process in Poland as soon as practicable.
5.5 No breach of non-compete Clause
The Parties agree that the continuation of the Deferred Activities of Nutreco Canada Inc. and Stolt Sea Farm Inc. Canada and of the relevant member of the Nutreco Group in Poland until the Closing of the relevant Deferred Activities shall not constitute a breach of Clause 20.1 of the Shareholders Agreement.
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6. Transfer beneficiary ownership Stolt JV Companies
6.1 Contrary to paragraph 2 of the Stolt Contribution Plan included in Schedule 3 (Part 3) to the Contribution Agreement, only the beneficiary ownership of the shares in the Stolt JV Companies, with the exception of Stolt Sea Farm Inc. in Canada, has been transferred pursuant to the contribution agreements attached hereto as Schedule 6.1 to SSF Salmon Holdings B.V. prior to the Closing.
6.2 The legal ownership of the shares in the companies referred to in Clause 6.1 shall be transferred to SSF Salmon Holdings B.V. immediately after the transfer of the legal ownership of the shares in these companies is allowed according to the relevant local Laws. Stolt and Stolt B.V. shall, and shall procure that their advisors shall, use their best efforts to comply with the relevant formalities as soon as possible, but in any event no later than 4 (four) weeks after the Closing Date, with the exception of the legal transfer of ownership of the shares in Stolt Sea Farm Ltd (UK), to which Clause 6.3 applies.
6.3 The legal ownership of the shares in Stolt Sea Farm Ltd (UK), shall be transferred to SSF Salmon Holdings B.V. immediately after the necessary consent of the Western Isles Enterprise for the transfer of the grants has been obtained, unless the Company decides otherwise, in which case the Company accepts that it bears the risk that it will have to reimburse the grants to the Western Isles Enterprise. Stolt shall, and shall procure that their advisors shall, use their best efforts to obtain the required consent as soon as possible. The Parties acknowledge that as a condition to granting the consent, the Western Isles Enterprise may demand to be granted a guarantee by SSF Salmon Holdings B.V. as security for the fulfilment of the obligations of Stolt Sea Farm Ltd (UK) in respect of the Western Isles Enterprise grants. The Parties agree to enable SSF Salmon Holdings B.V. to grant such guarantee.
6.4 Schedule 6.4 to this Amendment Agreement sets forth for each relevant jurisdiction the steps to be taken between the Closing and the completion of the transfer of the legal ownership of the shares of the companies referred to in Clause 6.1 in accordance with Clauses 6.2 and 6.3.
6.5 Schedule 3 (Part 3) to the Contribution Agreement shall be amended and read according to Clauses 6.1, 6.2 and 6.3 and Schedule 6.4 to this Amendment Agreement.
7. Centre for Aquaculture Competence A.S.
7.1 The legal ownership of the shares in Centre for Aquaculture Competence A.S. shall be transferred to Marine Harvest Norway AS immediately after the necessary consent of the Norwegian Department of Fisheries has been obtained. Nutreco shall, and shall procure that their advisors shall, use their best efforts to obtain the required consent as soon as possible.
7.2 Schedule 2 (Part 3) to the Contribution Agreement shall be amended and read according to Clause 7.1 of this Amendment Agreement.
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8. Closing documentation
The final form and content of the following agreements and other documents to be executed or entered into in connection with the Closing are agreed and determined below.
8.1 Nutreco Additional Equity Instrument and Stolt Additional Equity Instrument
The Parties have agreed that the Additional Equity Instruments will not be issued at the Closing. The Parties shall discuss and determine the necessity of issuing the Additional Equity Instruments after the Closing Date, but in any event before 31 January 2006. Clause 5.2.2 of the Contribution Agreement and Schedule 9 (part 2) of the Contribution Agreement shall be amended in accordance with Clause 8.1 of this Amendment Agreement.
The deed of contribution to be executed in accordance with Clause 5.2.2 (i) of the Contribution Agreement is attached hereto as Schedule 6.2. Annex 1 to Schedule 4 to the Contribution Agreement shall be amended and read according to Schedule 8.2 to this Amendment Agreement.
8.3 Deed of issue and contribution
The deed of issue and contribution to be executed in accordance with Clause 5.2.2 (ii) of the Contribution Agreement is attached hereto as Schedule 8.3. Annex 2 to Schedule 4 to the Contribution Agreement shall be amended and read according to Schedule 8.3 to this Amendment Agreement.
8.4 Description of contributions
The description of the contributions of the JV Activities to the Company to be executed in accordance with Clause 5.2.2 (v) of the Contribution Agreement is attached hereto as Schedule 8.4.
The auditors’ statements in connection with the contributions of the JV Activities to the Company to be executed in accordance with Clause 5.2.2 (v) of the Contribution Agreement are attached hereto as Schedule 8.5.
8.6 Amended Articles of Association
The Amended Articles of Association to be executed in accordance with Clause 5.2.2 (vi) of the Contribution Agreement are attached hereto as Schedule 8.6. Annex 3 to Schedule 4 to the Contribution Agreement and Schedule 4 (Part 1) to the Shareholders Agreement shall be amended and read according to Schedule 8.6 to this Amendment Agreement.
The resolution of the shareholders’ meeting of the Company evidencing the appointment of the managing and supervisory directors of the Company to be executed in accordance with Clause 5.2.2 (vii) of the Contribution Agreement is attached hereto as Schedule 8.7.
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The Managing Board Rules are attached hereto as Schedule 8.8(a). The resolution of the Managing Board of the Company evidencing the adoption of the Managing Board Rules in accordance with Clause 5.2.2 (viii) of the Contribution Agreement is attached hereto as Schedule 8.8(b). Annex 4 to Schedule 4 to the Contribution Agreement and Schedule 4 (Part 2) to the Shareholders Agreement shall be amended and read according to Schedule 8.8(a) to this Amendment Agreement.
The Supervisory Board Rules are attached hereto as Schedule 8.9(a). The resolution of the Supervisory Board of the Company evidencing the adoption as of the Closing Date of the Supervisory Board Rules to be executed in accordance with Clause 5.2.2 (viii) of the Contribution Agreement is attached hereto as Schedule 8.9(b). Annex 5 to Schedule 4 to the Contribution Agreement and Schedule 4 (Part 3) to the Shareholders Agreement shall be amended and read according to Schedule 8.9(a) to this Amendment Agreement.
The Shareholders Agreement to be executed in accordance with Clause 5.2.2 (ix) of the Contribution Agreement is attached hereto as Schedule 8.10.1. Schedule 5 to the Contribution Agreement shall be amended and read according to Schedule 8.10.1 to this Amendment Agreement.
8.10.2 Stolt Cod and Halibut Activities
The Stolt Cod and Halibut Activities are the activities specified in Schedule 8.10.2 hereto. Schedule 3 (Part 3) to the Shareholders Agreement shall be amended and read according to Schedule 8.10.2 to this Amendment Agreement.
The Initial Business Plan to be approved by the Supervisory Board and to be adopted by the Managing Board in accordance with Clause 8.1 of the Shareholders Agreement is attached hereto as Schedule 8.10.3. Schedule 5 (Part 1) to the Shareholders Agreement shall be amended and read according to Schedule 8.10.3 to this Amendment.
An outline of the Initial Budget which is still to be completed to reflect taxes and interest down to the net income level and budgeted balance sheet which is to be approved by the Supervisory Board and to be adopted by the Managing Board in accordance with Clause 8.1 of the Shareholders Agreement is attached hereto as Schedule 8.10.4. Schedule 5 (Part 2) to the Shareholders Agreement shall be amended and read according to Schedule 8.10.4 to this Amendment Agreement.
8.10.5 Management accounts format
An outline of the format of the management accounts referred to in Clause 9.2 of the Shareholders Agreement, which is still to be completed down to net income level, is attached hereto as Schedule 8.10.5. Schedule 5 (Part 3) to the Shareholders Agreement
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shall be amended and read according to Schedule 8.10.5 to this Amendment Agreement.
8.11 Transitional Services Agreement
The Transitional Services Agreement (including Annex 1 thereto) to be entered into in accordance with Clause 5.2.2 (x)(a) of the Contribution Agreement is attached hereto as Schedule 8.11. Schedule 6 to the Contribution Agreement shall be amended and read according to Schedule 8.11 to this Amendment Agreement.
8.12 Shareholder Loan Agreements
The Shareholder Loan Agreements, containing the terms and conditions of the shareholder loans to be provided to the relevant members of the JV Group in accordance with Clause 5.3 of the Contribution Agreement, are attached hereto as Schedule 8.12.
8.13 Allocation of Nutreco Activities
The Allocation of Nutreco Activities by country and region as referred to in Clause 2.3.1 of the Contribution Agreement will be reflected in the Nutreco Closing Financial Statements. Schedule 2 (Part 4) to the Contribution Agreement shall be amended and read accordingly.
8.14 Allocation of Stolt Activities
The Allocation of Stolt Activities referred to in Clause 2.3.1 of the Contribution Agreement is attached hereto as Schedule 8.14. Schedule 3 (Part 4) to the Contribution Agreement shall be amended and read according to Schedule 8.14 to this Amendment Agreement.
The Parties shall negotiate and agree within 4 (four) weeks after the Closing Date the terms of the Supply Agreement in accordance with the term sheet included in Schedule 6 of the Contribution Agreement. Until the execution of the final documentation, the term sheet set forth in Schedule 6 of the Contribution Agreement and the Current Agreement shall constitute the Supply Agreement referred to in Clause 5.2.2 (x)(6) of the Contribution Agreement, provided that in case of conflict between the provisions of the term sheet and the current existing feed agreements, the provisions of the term sheet shall prevail.
The Parties shall negotiate and agree within 6 months after the Closing Date the terms of the Tuna Supply Agreement in accordance with Clause 4.5 and Clause 5.2.2 (x)(c) of the Contribution Agreement. Clause 4.5 and Clause 5.2.2 (x)(c) of the Contribution Agreement shall be amended accordingly.
11.1 Stolt and Nutreco will roll over the calculation of retirement benefits, and assets and liabilities of their respective pension funds in Norway, the U.K. and The Netherlands as per 31 December 2004 to calculate the assets and liabilities of such pension funds, and the possible under funding, using assumptions proposed by their respective actuarians per the Closing Date.
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11.2 Stolt and Nutreco will discuss the outcome of such actuarial calculations and timely negotiate and agree in good faith a common set of assumptions in accordance with Schedule 8 of the Contribution Agreement to be used for the calculation of the provisions to be used for drawing up the Closing Financial Statements. The Parties will perform calculations based on assumptions to be agreed between Nutreco and Stolt, which will in any event be in between the two sets of assumptions of Stolt and of Nutreco which were discussed during the meeting on 26 April 2005.
11.3 Schedule 8 of the Contribution Agreement shall be amended and read in accordance with Clauses 11.1 and 11.2.
12. Tax indemnity and covenants
12.1 As soon as practicable and in any event no later than 2 (two) weeks after the final agreement or determination of the Nutreco Closing Financial Statements, Nutreco shall prepare the Nutreco Memorandum Country Accounts on the basis of, and taking into account, the Nutreco Closing Financial Statements and deliver the same to Stolt B.V.
12.2 As soon as practicable and in any event no later than 2 (two) weeks after the final agreement or determination of the Stolt Closing Financial Statements, Stolt B.V. shall prepare the Stolt Memorandum Country Accounts on the basis of, and taking into account, the Stolt Closing Financial Statements and deliver the same to Nutreco.
12.3 The Parties procure that within 2 (two) weeks after both the Nutreco Memorandum Country Accounts and the Stolt Memorandum Country Accounts have been prepared and delivered in accordance with Clauses 12.1 and 12.2 of this Amendment Agreement the Memorandum Country Account Overview shall be prepared by the Parties.
12.4 Clause 2 of Schedule 9 (Part 2) of the Contribution Agreement will be amended and read in accordance with Clauses 12.1, 12.2 and 12.3 of this Amendment Agreement.
12.5 The Parties have recognised that the Stolt Contribution Plan has resulted in a step-up of certain trademarks to fair market value for US corporation tax purposes, resulting in additional Relief in the form of additional depreciation allowances in the amount of approximately USD 21,000,000. The Parties have agreed that such additional Relief in the form of additional depreciation allowances in the amount of approximately USD 21,000,000 will be deemed to be a Stolt Contributed Country Relief arising to a JV Company in the United States of America, for which payments will take place under the Stolt Additional Equity Instrument in accordance with Schedule 9 (Part 2) of the Contribution Agreement. The final amount of the additional Relief referred to in this Clause 12.5 will be determined on the basis of the Stolt Closing Financial Statements.
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12.6 For the avoidance of any doubt, the Parties reconfirm that pursuant to the Tax Indemnity and Covenants in Schedule 9 (Part 1) of the Contribution Agreement, (i) any capital tax due by the Company in connection with the contribution of the Nutreco Activities shall be a Tax Liability for which Nutreco has the obligation to indemnify pursuant to Clause 1.5 of Schedule 9 (Part 1) of the Contribution Agreement, and (ii) any capital tax due by the Company in connection with the contribution of the Stolt Activities shall be a Tax Liability for which Stolt has the obligation to indemnify pursuant to Clause 1.5 of Schedule 9 (Part 1) of the Contribution Agreement.
13. Insurance
13.1 The following Insurance Policies of the Nutreco Group will remain in place with respect to the JV Activities until 1 January 2006:
• Fish mortality • Marine equipment & sea cages • Product liability • Property onshore • Hull • Pollution liability • Excess protection and indemnity including Excess liability and Excess collision liability • Directors & Officers liability (the JV Group has been added as insured party) • Fraud (the JV Group has been added as insured party)
13.2 The following Insurance Policies of the Stolt Group will remain in place with respect to the JV Group until 1 September 2005:
• Fish Mortality • Marine equipment & sea cages • General liability including product liability • Property onshore • Hull • Protection & Indemnity • Pension trust liability
13.3 The risk and benefit as of the Closing Date and the surplus and deficit, if any, arising as of the Closing Date in respect of the respective captive insurances of the Parties to the extent relating to the JV Activities as of the Closing Date, shall be for the account of the Company.
13.4 All premiums paid by the Nutreco Group or the Stolt Group in respect of the JV Activities shall, if applicable, only be refunded on a pro rata basis relative to their respective stake in the Company.
13.5 The Parties shall timely arrange new insurances for the JV Group on conditions to be agreed between the Parties.
13.6 Clause 7.4.1 of the Contribution Agreement shall be amended and read according to Clauses 13.1 13.2, 13.4 and 13.4 of this Amendment Agreement.
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14. Draft Closing Financial Statements
The draft Nutreco Closing Financial Statements and draft Stolt Closing Financial Statements shall be accompanied by a (draft) auditor’s review report from Nutreco’s Accountant and Stolt’s Accountant, respectively, instead of an unqualified auditor’s statement from Nutreco’s Accountant and Stolt’s Accountant, respectively. Clause 6.1.2 and 6.2.2 of the Contribution Agreement will be amended accordingly.
15. Nutreco Shareholder Loan Agreement
The amount of the principal of the loan provided by Nutreco to the Company pursuant to the Nutreco Shareholder Loan Agreement shall be EUR 150,000,000 (one hundred and fifty million euro). The Parties shall procure that the relevant members of the Group shall arrange that any amount borrowed by the Company or any other member of the JV Group from Nutreco or any other member of the Nutreco Group as per the Closing Date in excess of the amount of EUR 150,000,000 (one hundred and fifty million euro) shall be contributed by Nutreco or the relevant members of its Group to the Company as non-stipulated share premium in accordance with the relevant legal requirements by deed between the contributor and the Company accompanied by a description of the managing board of the Company and an auditor’s statement as soon as possible. For tax purposes this contribution is effective as per the Closing Date in conjunction with the contribution by Nutreco of the shares of Marine Harvest International B.V. to the Company on the Closing Date. The economic effect of such contribution to the Company shall take effect as of the Closing Date. The amount of such excess will be finally determined and settled as soon as practicable after the final agreement or determination of the Nutreco Closing Financial Statements.
16. Whole Agreement – No other amendments
The Contribution Agreement, the Amendment Letter and the Amendment Agreement contain the whole agreement between Nutreco, Stolt B.V. and Stolt relating to the subject matter of the Contribution Agreement as of the date of the Amendment Agreement, and will be construed accordingly. No provision of the Contribution Agreement, other than those expressly amended by and in accordance with the Amendment Letter or the Amendment Agreement, is or shall be construed as amended and the Contribution Agreement as amended by the Amendment Letter and the Amendment Agreement shall remain in full force and effect.
Clauses 15.1, 15.3, 15.4, 15.5, 15.6, 15.7, 15.9, 15.12, 15.14, 15.16 and 15.17 of the Contribution Agreement shall apply, mutatis mutandis , to this Amendment Agreement.
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In WITNESS WHEREOF Nutreco, Stolt B.V. and Stolt have executed this Amendment Agreement on 29 April 2005
SIGNED by B. Verwilghen on behalf of Nutreco Holding N.V.
SIGNED by J. Chr. Engelhardtsen on behalf of Stolt Sea Farm Investments B.V.
SIGNED by J. Chr. Engelhardtsen on behalf of Stolt-Nielsen S.A.
Signed by Marine Harvest N.V. on 29 April 2005 (i) for acknowledgement of the agreement between Nutreco Holding N.V., Stolt Sea Farm Investments B.V. and Stolt-Nielsen S.A. contained in this Amendment Agreement, and (ii) for agreement with Clause 6.
SIGNED by A. van Driel on behalf of Marine Harvest N.V.
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Schedule 8.2 Deed of contribution
DEED OF ADDITIONAL CONTRIBUTION ON SHARES AND TRANSFER OF SHARES MARINE HARVEST INTERNATIONAL B.V.
On the twenty-ninth day of April two thousand and five appears before me, Reinhard Willem Clumpkens, notaris (civil-law notary) practising in Amsterdam, the Netherlands:
Sabine Mandy Altena, kandidaat-notaris (candidate civil-law notary), employed by De Brauw Blackstone Westbroek N.V., a limited liability company, with corporate seat in The Hague, with address at: 2596 AL The Hague, the Netherlands, Zuid-Hollandlaan 7, at the office in Amsterdam, born in Sneek on the seventeenth day of August nineteen hundred and seventy-four, for the purpose hereof is acting as attorney authorised in writing of:
1. Nutreco Holding N.V. , a limited liability company, with corporate seat in Boxmeer, the Netherlands and address at: 5831 JN Boxmeer, Veerstraat 38, the Netherlands, number N.V. 490.582, hereinafter referred to as: the Contributor , and in that capacity is representing the Contributor;
2. Marine Harvest N.V. , a limited liability company, with corporate seat in Amersfoort, the Netherlands and address at: 3818 KC Amersfoort, Prins Frederiklaan 4, number N.V. 1.297.827, hereinafter referred to as: the Transferee , and in that capacity is representing the Transferee; and
3. Marine Harvest International B.V. , a private company with limited liability, with corporate seat in Amersfoort, the Netherlands and with address at: 3818 KC Amersfoort, Prins Frederiklaan 4, number B.V. 1.319.363, hereinafter referred to as: the Company , and in that capacity is representing the Company,
the person appearing,
DECLARES THAT, WHEREAS: Previous acquisition of shares.
(i) the Contributor is holder of eighteen thousand (18,000) shares in the share capital of the Company, numbered 1 up to and including 18,000, each share having a par value of one euro (EUR 1), together representing the entire issued and paid up share capital of the Company, hereinafter referred to as: the Contribution Shares , which shares are registered in the name of the Contributor, and which shares were acquired by the Contributor on the twenty-ninth day of April two thousand and five pursuant to the issue upon the incorporation of the Company, effected by a notarial deed, executed before me, notaris in Amsterdam, on the twenty-eighth day of April two thousand and five;
Shareholding.
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(ii) the Contributor is holder of forty-five thousand (45,000) shares in the share capital of the Transferee, hereinafter referred to as: the Shares ;
Contribution agreement.
(iii) on the third day of December two thousand and four the Contributor, Stolt-Nielsen S.A., a limited liability company incorporated in Luxembourg, with corporate seat in Luxembourg, and having its address at 23 Avenue Monterey, L-2086 Luxembourg, Luxembourg and Stolt Sea Farm Investments B.V., a private company with limited liability incorporated in the Netherlands, with corporate seat in Schiedam, the Netherlands, and having its address at Westerlaan 5, 3016 CK Rotterdam, the Netherlands entered into an agreement (hereinafter referred to as: the Contribution Agreement ) concerning an additional contribution in kind to be made by the Contributor on the Shares consisting of the Contribution Shares;
(iv) to the extent not already agreed upon in the Contribution Agreement, the Contributor agrees to transfer the Contribution Shares to the Transferee as a contribution in kind on the Shares.
IT IS HEREBY AGREED AND CONFIRMED AS FOLLOWS: Contribution Agreement. Article 1.
1.1. In order to implement the Contribution Agreement the Contributor hereby transfers to the Transferee, who accepts the transfer of the Contribution Shares, hereinafter referred to as: the Contribution . To the extent not already agreed upon in the Contribution Agreement, the Transferee shall not issue new shares in its share capital to the Contributor in return for the Contribution.
1.2. Without prejudice the relevant provisions of the Contribution Agreement, the Contribution is for the account of the Transferee as of the date hereof.
Transfer.
1.3. In order to implement the Contribution Agreement referred to above under 1.1. the Contributor hereby transfers the Contribution to the Transferee, who accepts the transfer of the Contribution.
Payment obligation. Article 2.
2.1. The payment obligation for the Contributor amounts to zero euro (EUR 0).
2.2. The Transferee shall not issue new shares in return for the Contribution.
2.3. The value of the Contribution shall be regarded as (non-stipulated) share premium (in Dutch: “niet-bedongen agio”).
Shareholders’ approval. Article 3.
Article 2 paragraph 5 of the articles of association of the Transferee expressly empowers the managing board of the Transferee to enter into the Contribution Agreement referred to in article 1.
Share transfer restriction. Article 4.
4.1. In accordance with the provisions of article 15 paragraph 4 of the articles of association of the Company, the Contributor hereby resolves in writing as sole shareholder of the Company to approve the present transfer under the share transfer restrictions included in the articles of association of the Company.
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4.2. The managing board of the Company had prior knowledge of the resolution in writing mentioned in paragraph 1 above and have been able to render advice on the resolution to be adopted.
4.3. No depositary receipts of shares in the capital of the Company have been issued with the cooperation of the Company.
Acknowledgement. Article 5.
The Company acknowledges this transfer of the Contribution set out in this deed.
Warranties. Article 6.
The Contributor warrants the Transferee that he is fully entitled to the Contribution Shares, and that the Contribution Shares are neither encumbered with a right of pledge nor with a right of usufruct and they are not subject to any attachments. The Transferee accepts this warranty.
Description and auditor’s certificate. Article 7.
Copies of the description and auditor’s certificate, referred to in section 2:94b Civil Code relating to the transfer of the Contribution to the Transferee are attached to this deed.
Dissolution. Article 8.
8.1. The Contributor and the Transferee waive the right to dissolve the agreement contained in this deed under the provisions of section 6:265 Civil Code.
8.2. Unless otherwise provided in this deed, all that has been agreed between the parties prior to the execution of this deed shall remain in full force and effect, provided however, that a condition subsequent, if any, may no longer be invoked and a condition precedent, if any, is deemed to have been fulfilled.
Sufficient proof of the existence of the powers of attorney has been given to me, notaris. The written powers of attorney to the person appearing are evidenced by three (3) private instruments, which are attached to this deed.
In witness whereof the original of this deed, which is retained by me, notaris, is executed in Amsterdam, on the date first given in the head of this deed.
Having conveyed the substance of this deed to the person appearing she has declared that she has taken cognizance of the contents of the deed and does not require it to be read out to her in full.
Immediately after the reading of those parts of the deed which the law prescribes to be read out, this deed is signed by the person appearing, who is known to me, notaris, and by myself, notaris, at nineteen hours eight minutes.
(signed): S.M. Altena, R.W. Clumpkens.
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Schedule 8.3 Deed of issue and contribution
DEED OF ISSUE MARINE HARVEST N.V. AND DEED OF ADDITIONAL CONTRIBUTION ON SHARES AND TRANSFER OF SHARES SSF SALMON HOLDINGS B.V.
On the twenty-ninth day of April two thousand and five appears before me, Reinhard Willem Clumpkens, notaris (civil-law notary) practising in Amsterdam, the Netherlands:
Sabine Mandy Altena, kandidaat-notaris (candidate civil-law notary), employed by De Brauw Blackstone Westbroek N.V., a limited liability company, with corporate seat in The Hague, with address at: 2596 AL The Hague, the Netherlands, Zuid-Hollandlaan 7, at the office in Amsterdam, born in Sneek on the seventeenth day of August nineteen hundred and seventy-four, for this purpose acting as attorney in writing of:
1. Marine Harvest N.V. , a limited liability company, with corporate seat in Amersfoort, the Netherlands and address at: 3818 KC Amersfoort, Prins Frederiklaan 4, number N.V. 1.297.827,, hereinafter referred to as: Marine Harvest and as such representing Marine Harvest;
2. Stolt Sea Farm Investments B.V. , a private company with limited liability, with its corporate seat in Schiedam, the Netherlands and address at: 3016 CK Rotterdam, Westerlaan 5, the Netherlands, B.V. number 1.304.045, hereinafter referred to as: Stolt and as such representing Stolt,
3. SSF Salmon Holdings B.V. , a private company with limited liability, with its corporate seat in Schiedam, the Netherlands and address at: 3016 CK Rotterdam, Westerlaan 5, the Netherlands, B.V. number 1.304.048, hereinafter referred to as: SSF and as such representing SSF, The person appearing,
DECLARES THAT, WHEREAS: I. Issuance. Issue of shares Marine Harvest.
(i) on the twenty-ninth day of April two thousand and five the general meeting of shareholders of Marine Harvest resolved to:
a. to issue fifteen thousand (15,000) shares in the share capital of Marine Harvest, numbered 45,001 up to and including 60,000, each share with a par value of one euro (EUR 1), hereinafter referred to as: the Shares , against payment in cash of fifteen thousand euro (EUR 15.000) for the Shares; and
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b. exclude the pre-emptive rights.
(ii) the Shares are issued to Stolt, who wishes to accept the Shares.
II. Additional contribution and transfer. a. Previous acquisition of shares.
(iii) Stolt is holder of one hundred eighty (180) shares in the share capital of SSF, numbered 1 up to and including 180, each share having a par value of one hundred euro (EUR 100), hereinafter referred to as: the Contribution Shares , which shares are registered in the name of Stolt, and which shares were acquired by Stolt on the thirtieth day of December two thousand and four pursuant to the issue upon the incorporation of SSF, effected by a not |
AGREEMENTS / CONTRACTS
CLAUSES
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