Set out below is a summary of relevant information concerning the Shares, the Articles of Association and certain provisions of Dutch law.
This summary does not purport to be complete and is qualified in its entirety by reference to, and should be read in conjunction with, the Articles of Association and Dutch law. The full text of the Articles of Association is incorporated in this Prospectus by reference and are available, in Dutch and in English, free of charge on the Company's website.
14.1 General
SBM Offshore N.V. is a public limited liability company (naamloze vennootschap) incorporated under Dutch law by a notarial deed dated 21 September 1965. The Company has its statutory seat (statutaire zetel) in Rotterdam, the Netherlands and its registered office at Karel Doormanweg 66, 3115 JD Schiedam, the Netherlands. The Company is registered with the trade register of the Chamber of Commerce in Rotterdam, the Netherlands under the number 24233482 and its telephone number is +31 (0)10 2320900.
The Company operates under Dutch law. The Shares are subject to, and have been created under, Dutch law.
14.2 Corporate objects
The Company's corporate objects are to participate in, conduct the management of and finance other enterprises in the field of the offshore oil and gas industry as well as other enterprises of any nature, to finance third parties and in any way to provide security or undertake the obligations of third parties and further to do all things that may be incidental or conducive to the foregoing.
14.3 Share capital
The Company's share capital is divided into Ordinary Shares and Preference Shares, which each have a nominal value of EUR 0.25.
At the date of this Prospectus, the Company's authorised share capital amounts to EUR 200,000,000, divided into:
(a) 400,000,000 Ordinary Shares with a nominal value of EUR 0.25 each, of which 189,212,333 Ordinary Shares are issued and outstanding; and
(b) 400,000,000 Preference Shares with a nominal value of EUR 0.25 each, of which none have been issued and outstanding.
At the date of this Prospectus, neither the Company nor any of its Group Companies holds any of its own shares. All outstanding Shares are paid up.
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Set out below is an overview of the Company's authorised and issued share capital on 31 December 2012, 2011 and 2010.
31 December 2012 31 December 2011 31 December 2010
(number
of Shares) Share capital Share capital Share capital
Authorised Issued Authorised Issued Authorised Issued
Ordinary
Shares 400,000,000 189,142,215 400,000,000 171,440,416 200,000,000 168,667,512 Preference
Shares 400,000,000 0 400,000,000 0 50,000,000 0
Total 800,000,000 189,142,215 800,000,000 171,440,416 250,000,000 168,667,512 In 2013, until the date of this Prospectus, the number of outstanding Ordinary Shares increased in total by 70,118 which were all issued by the Company pursuant to employee incentive and similar plans.
In 2012, the number of outstanding Ordinary Shares increased in total by 17,701,799. The Company issued 590,042 Ordinary Shares pursuant to employee incentive and similar plans and 17,111,757 Ordinary Shares in a private placement to HAL on 20 December 2012, see "The Offering – Underwriting Agreement".
In 2011, the number of outstanding Ordinary Shares increased in total by 2,772,904. The Company issued 668,027 Ordinary Shares pursuant to employee incentive plans and 2,104,877 Ordinary Shares as stock dividend. In addition, the Company increased its authorised share capital: (i) from 200,000,000 Ordinary Shares to 400,000,000 Ordinary Shares with a nominal value of EUR 0.25 each, and (ii) from 50,000,000 Preference Shares with a nominal value of EUR 1.00 each to 400,000,000 Preference Shares with a nominal value of EUR 0.25 each, in line with the nominal value of the Ordinary Shares.
In 2010, the number of outstanding Ordinary Shares increased in total by 4,207,532. The Company issued 1,578,684 Ordinary Shares pursuant to employee incentive and similar plans and 2,628,848 Ordinary Shares as stock dividend.
14.4 Register of shareholders
The Shares are in registered form and are only available in the form of an entry in the Company's shareholders' register and not in certificated form. The shareholders' register shall be kept by or on behalf of the Company.
The Company's shareholders' register must be kept accurate and up to date.
The Company's shareholders' register records the names and addresses of the holders of Ordinary Shares and Preference Shares, their addresses and the amount paid up on each Share, the date on which they acquired the Shares, the date of acknowledgement by or giving of notice to the Company, the number of Shares and further information concerning the Shares as determined by the Management Board. The shareholders' register also includes the names and addresses of those with a right of usufruct (vruchtgebruik) or a right of pledge (pandrecht) on those Shares.
When an Ordinary Share is part of a giro depot or a collective depot, the Company will enter the Share in the shareholders' register in the name of the central institute or the affiliated institution, as the case may be, thereby stating that the Share has become part of a giro depot or a collective depot, as the case may be. The name and address of the central institute, respectively the affiliated institution, will be entered in the Company's shareholders' register, mentioning the date on which the Ordinary Shares concerned were included in a collection deposit, respectively the giro deposit, the date of acknowledgement by or giving of notice to the Company, as well as the amount paid on each Ordinary Share, the number of Ordinary Shares and further information concerning the Ordinary Shares as determined by the Management Board.
14.5 Issue of Shares
The General Meeting, or the Management Board if authorised by the General Meeting, as the case may be, and with the approval by the Supervisory Board, may resolve upon further issues of Shares. As long as the Management Board is authorised to issue Shares, the General Meeting may not pass a resolution to issue further Shares.
A resolution of the General Meeting to issue Shares or to designate the Management Board as being authorised to issue Shares, shall be valid only if accompanied by a prior or simultaneous resolution of approval by each group of shareholders of the same class whose rights are prejudiced by the issue.
If the Management Board has been designated as the body authorised to resolve upon further issues of Shares, the number and class of Shares must be specified in such designation. Upon such designation, the duration of the designation shall be set, which shall not exceed five years. The designation may be extended, from time to time, for periods not exceeding five years. Unless such designation provides otherwise, it may not be withdrawn. Although the duration of the designation as provided by law may be a maximum of five years, the Company adheres to the good practice of limiting this duration to 18 months.
If Preference Shares are issued and outstanding, the Management Board shall be obliged to convene a General Meeting within two years after such issue and at that meeting submit a proposal concerning the purchase or cancellation of these Preference Shares. If at that meeting it is not resolved to purchase or to cancel the relevant Preference Shares, the Management Board shall be obliged to each time within two years after such proposal has been placed on the agenda, again convene a General Meeting at which such proposal is again submitted, which obligation will cease as soon as the Preference Shares are no longer issued or are no longer held by a person other than the Company. Ordinary Shares may be issued only against payment in full.
Payment for Shares must be made in cash unless another form of consideration has been agreed.
During the annual general meeting of 2 April 2013, the General Meeting authorised the Management Board, subject to the approval of the Supervisory Board, to issue Ordinary Shares (i) for a period of 18 months up to 10% of the then issued share capital plus a further issue of up to 10% in case of a merger or acquisition and (ii) in addition, for a period of nine months in connection with the Offering up to 10% of the issued share capital at the time of the Offering.
14.6 Pre-emption rights
Holders of Ordinary Shares have a pre-emption right in the event of an issue of Ordinary Shares. Holders of Preference Shares have no pre-emption right on Ordinary Shares or Preference Shares. Holders of Ordinary Shares have no pre-emption right upon (i) the issue of Ordinary Shares issued against a payment in kind, (ii) the issue of Ordinary Shares to employees of the Group and (iii) the issue of Preference Shares.
The General Meeting may resolve to limit or exclude the pre-emption rights, which resolution requires, if less than one-half of the issued share capital is represented at the General Meeting, a majority of at least two-thirds of the votes cast. The General Meeting may designate the Management Board to resolve to limit or exclude the pre-emption rights. This designation may be granted for a specified period of not more than five years and only if the Management Board has also been designated or is simultaneously designated as the body authorised to resolve to issue Shares. The designation may be extended, from time to time, for no longer than five years at a time and only applies as long as the designation to issue Shares is in force. In order for the General Meeting to authorise the Management Board to restrict or exclude the pre-emption right, a majority of at least two-thirds of the votes cast shall be required. A resolution of the Management Board to restrict or exclude the pre-emption rights is subject to the approval of the Supervisory Board.
The General Meeting or the Management Board, as the case may be, with the approval of the Supervisory Board, may determine the manner in which and the period during which the pre-emption right may be exercised when passing the resolution to issue Shares. A notice of an issue where there is a pre-emption right
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and the period during which the pre-emption right can be exercised, must be published simultaneously in the State Gazette (Staatscourant) and in a nationally distributed daily newspaper, and additionally in such a manner as the Management Board, subject to the approval of the Supervisory Board, will seem desirable. The pre-emption right may be exercised during a period of at least two weeks after the day of publication in the State Gazette.
During the annual general meeting of 2 April 2013, the General Meeting authorised the Management Board, subject to the approval of the Supervisory Board, to limit or exclude pre-emption rights for a period of 18 months in connection with an issue of Ordinary Shares up to 10% of the then issued share capital and an additional 10% in case of a merger or acquisition and, in addition, for nine months in connection with the Offering up to 10% of the issued share capital at the time of the Offering.
14.7 Repurchase of Shares
The Company may acquire fully paid-up Shares for no consideration or if: (i) the Company's shareholders' equity less the payment required to make the acquisition does not fall below the sum of called-up and paid-in share capital and any statutory reserves; and (ii) the nominal value of the Shares which the Company acquires, holds or holds as pledge or which are held by a subsidiary does not exceed half of the issued capital. The Management Board needs authorisation by the General Meeting for the repurchase of Shares for consideration.
This authorisation is valid for a maximum of 18 months. As part of the authorisation, the General Meeting specifies the number of Shares that may be repurchased, the manner in which the Shares may be acquired and the price range within which the Shares may be acquired. The authorisation is not required for the acquisition of Shares for employees of the Company or another member of its Group, under a scheme applicable to such employees. The Management Board may resolve, subject to the approval of the Supervisory Board, to dispose of Shares acquired by the Company in its own capital.
Shares held by the Company in its own share capital shall not entitle the Company to any distribution in respect of such Shares. Neither shall Shares in respect of which the Company holds depositary receipts issued therefore entitle the Company to such distribution. For the computation of the amount of profit to be distributed on each Share, the Shares referred to in the preceding sentence shall not be included, unless a usufruct or pledge has been established on such Shares or on depositary receipts issued therefore for the benefit of a person other than the Company. The Company or any of its Group Companies cannot cast votes for Shares belonging to the Company or any of the Group Companies or in respect of which either of them has a right of usufruct or pledge. The pledge and usufructuary of Shares belonging to the Company or a Group Company, respectively, shall also not have voting rights if the usufruct or the pledge was established by the Company or the Group Company, respectively. The Company or a Group Company, respectively, may not vote on a Share in respect of which it holds depositary receipts. When determining to what extent a certain part of the share capital is present or represented or to what extent a majority represents a certain part of the share capital, no account shall be taken of Shares which are not entitled to voting rights; provisions of this paragraph shall apply, mutatis mutandis, with respect to Shares or depositary receipts held by or for the account of legal entities and companies in which the Company itself has a 50% or more direct or indirect interest.
During the annual general meeting of 2 April 2013, the General Meeting authorised the Management Board, subject to the approval of the Supervisory Board, to repurchase Ordinary Shares for a period of 18 months, representing no more than 10% of the issued share capital of the Company. Authorisation was being asked for the repurchase of Ordinary Shares for a price per ordinary share that is between the nominal value of the Ordinary Shares and 110% of the average price of the Ordinary Shares on Euronext Amsterdam during the five trading days prior to the repurchase.
14.8 Capital reduction
The General Meeting may resolve to reduce the issued share capital by cancellation of Shares or by reducing the nominal value of Shares by amending the Company's articles of association. Under Dutch law, the resolution to reduce the issued share capital must specifically state the shares concerned and lay down rules for
the implementation of the resolution. The resolution to cancel Shares may only concern Shares which are held by the Company.
A resolution to reduce the issued share capital requires the approval of the Supervisory Board and a majority of at least two-thirds of the votes cast in the General Meeting if less than one-half of the issued share capital is represented at that meeting. A resolution to reduce the issued share capital shall in addition require the prior simultaneous approval by each group of Shareholders of the same class whose rights are prejudiced.
14.9 Transfer of Shares, transfer restrictions and notification
All Shares are in registered form. The transfer of a registered Ordinary Share or of a restricted right thereto requires a deed of transfer drawn up for that purpose and acknowledgement of the transfer by the Company in writing. The latter condition is not required in the event that the Company is party to the transfer.
If a registered Ordinary Share is transferred for inclusion in a collection deposit, the transfer will be accepted by the intermediary concerned. If a registered Ordinary Share is transferred for inclusion in the giro deposit, the transfer will be accepted by the central institute, being Euroclear Nederland. The transfer and acceptance of Ordinary Shares in a collection deposit or the giro deposit, respectively, can be effected without the cooperation of the other participants in a collection deposit or the giro deposit, respectively.
Upon issue of a new Ordinary Share to Euroclear Nederland respectively to an intermediary, the transfer in order to include the Ordinary Share in the giro deposit respectively a collection deposit will be effected without the cooperation of the other participants in a collection deposit or the giro deposit, respectively.
Any transfer of Preference Shares requires the approval of the Management Board, which approval requires the prior approval of the Supervisory Board.
14.10 General Meeting
The annual General Meeting must be held within six months after the start of each financial year. Typical agenda items are: the report of the Management Board concerning the Company's affairs and the management as conducted during the previous financial year, the report of the Supervisory Board and its committees, the adoption of the Company's annual accounts, the allocation of profits and the approval of the dividend, delegation of authority to issue shares, delegation of authority to restrict or exclude pre-emption rights, the discharge of the Management Board and Supervisory Board, corporate governance, the (re)appointment of the external auditor, the delegation of authority to purchase own Shares and the composition of the Supervisory Board and the Management Board.
Extraordinary General Meetings can be held whenever the Management Board and/or the Supervisory Board deem desirable.
The General Meetings must be convened by the Management Board or the Supervisory Board by sending a convening notice, which must be given no later than the 42nd day before the date of the General Meeting. Such notice must include the location and the time of the meeting, an agenda indicating the items for discussion and any proposals for the agenda. The General Meetings must be held in the municipality of Schiedam, Rotterdam, The Hague, Amsterdam or Haarlemmermeer (Schiphol), the Netherlands. The notice of a General Meeting is given in such manner as shall be authorised by Dutch law including, but not limited to, a written notice, a legible and reproducible message by electronic means and an announcement published by electronic means.
Proposals of shareholders and other persons entitled to attend the General Meetings will only be included in the agenda, if such proposal is made in writing to the Management Board no later than 60 days before the General Meeting and the shareholders or other persons entitled to attend General Meetings, solely or jointly representing shares amounting to at least 1% of the issued share capital, or with a market value of at least EUR 50 million. Under recently adopted legislation, this threshold will be increased to 3% with effect as of
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1 July 2013, except where the articles of association state a lower percentage, as currently is the case for the Company.
Each holder of Shares is entitled to attend the General Meeting, to address the General Meeting and to exercise voting rights pro rata to its shareholding, either in person or by proxy. Each holder of Shares that wishes to attend the General Meeting and to exercise its voting rights must register no later than 28 days before the date
Each holder of Shares is entitled to attend the General Meeting, to address the General Meeting and to exercise voting rights pro rata to its shareholding, either in person or by proxy. Each holder of Shares that wishes to attend the General Meeting and to exercise its voting rights must register no later than 28 days before the date