EXHIBIT 4.2
AMENDMENT OF THE 1983 MERGER AGREEMENT
THIS AMENDMENT AGREEMENT (together with the annex attached hereto: the
"Agreement") is dated 26 May 2003 and entered into by and between:
1. AEGON N.V., a public company, having its seat in The Hague and its office
address at AEGONplein 50, 2591 TV The Hague (the "Company"); and
2. Vereniging AEGON, an association, having its seat in The Hague and its
office address at AEGONplein 50, 2591 TV The Hague (the "Association").
The parties referred to in 1 and 2 above shall be jointly referred to herein as
the "Parties" and each as a "Party".
RECITALS:
(A) On 18 October 1983 the Parties in their names at that time, being
Vereniging AGO (currently Vereniging AEGON) and Ennia N.V. (currently AEGON
N.V.), together with AEGON Nederland N.V., entered into a Merger Agreement
(the "1983 Merger Agreement") which subsequently has been amended several
times. The 1983 Merger Agreement and all amendments thereto have over time
ceased to be effective, except for clause 10 (as amended). This clause 10
now exists as an agreement between the Association and the Company; AEGON
Nederland N.V. is no longer is a party to the 1983 Merger Agreement
pursuant to an agreement to amend the 1983 Merger Agreement dated 14 August
1995, which agreement is co-signed for that purpose by AEGON Nederland N.V.
(B) Pursuant to clause 10 of the 1983 Merger Agreement as amended, the
Association holds conditional option rights to have additional preferred
shares in the capital of the Company issued to it, which provides the
Association under certain circumstances with protection against dilution of
its interest in the voting share capital of the Company to 50% or less.
(C) By effecting certain transactions under a Recapitalization Agreement
between the Company and the Association dated 23 September 2002 (the
"Recapitalization Agreement") the shareholding of the Association was
reduced such that since that, as of 23 September, 2002, the Association
beneficially owns approximately 33% of the Company's voting share capital.
In accordance with clause 4.4 of the Recapitalization Agreement, the
Parties now wish to
limit the anti-dilution protection provided by clause 10 of the 1983 Merger
Agreement to a level not to exceed 33%.
(D) The Parties further intend to have the option rights granted under the 1983
Merger Agreement relate to new class B preferred shares in the capital of
the Company, which shares have been created in the articles of association
of the Company in view of this Agreement by a deed of amendment of the
articles of association executed on 26 May 2003 pursuant to a resolution of
the general meeting of shareholders of the Company dated 9 May 2003.
(E) In addition, the Parties wish to put in writing certain provisions
regarding the right of the Association to alienate or encumber any
preferred shares it holds in the capital of the Company (irrespective of
the class thereof), on the basis of regulations regarding the
transferability of preferred shares as currently implied in the legal
relationship between the Company and the Association.
(F) Except as stated above and as connected to the implementation of the
foregoing, the Parties intend that clause 10 of the 1983 Merger Agreement
shall remain unaltered.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. AMENDMENT OF THE 1983 MERGER AGREEMENT
With effect from the date of this Agreement, clause 10 of the 1983 Merger
Agreement shall be amended and shall read as set forth in the attached Annex.
2. GOVERNING LAW; RESOLUTION OF DISPUTES
2.1 This Agreement shall be governed and construed in accordance with the laws
of the Netherlands (without regard to Dutch rules relating to conflicts of
laws).
2.2 The Parties shall use their best endeavors to settle any dispute with
respect to or arising under this Agreement in an amicable way. In the event
conciliation fails, all disputes in connection with this Agreement or any
further agreements with respect to the subject matter hereof shall be
submitted to the exclusive jurisdiction of a competent court of the
Netherlands.
3. MISCELLANEOUS
3.1 This Agreement may be amended only by a written instrument signed by all
Parties. No provisions of this Agreement may be extended or waived orally,
but only by a written instrument signed by the Party against whom
enforcement of such extension or waiver is sought.
3.2 The governing language of this Agreement shall be the Dutch language and
all notices and other communications hereunder shall be in Dutch.
3.3 If any one or more of the provisions of this Agreement or any portion
thereof shall be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
or impair the validity, legality and enforceability of any other provision
contained herein. The Parties agree that each of them shall negotiate in
good faith to replace any such invalid, illegal or unenforceable
provision(s) (or such portions thereof) with such valid, legal and
enforceable provision(s) that preserve as closely as possible the economic
effect intended by the invalid, illegal or unenforceable provision(s).
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
on the date indicated in the heading of the Agreement.
(Signatures)
/s/ J.B.M. Streppel /s/ P.P. Kohnstamm
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AEGON N.V. Vereniging AEGON
Signed by: J.B.M. Streppel Signed by: P.P. Kohnstamm
ANNEX TO "AMENDMENT OF THE 1983 MERGER AGREEMENT"
Clause 10. Shareholding of Vereniging AEGON
10.1 Each time AEGON N.V. will issue shares and as a result thereof the
percentage voting power of Vereniging AEGON will dilute, Vereniging AEGON
will have the right to have so many class B preferred shares in the
capital of AEGON N.V. issued to it as shall enable Vereniging AEGON to
prevent or correct such dilution. These option rights of Vereniging AEGON
will, however, not apply if and insofar as Vereniging AEGON, as a result
of exercising these option rights, would acquire or increase a percentage
of the total voting power of the share capital of AEGON N.V. of more than
33%. For the purpose of the foregoing, the percentage voting power of
Vereniging AEGON at a particular time shall be calculated as the part of
the voting rights attached to all shares in the capital of AEGON N.V.
which at that time are legally and/or beneficially owned by Vereniging
AEGON, compared to the voting rights attached to all shares in the
capital of AEGON N.V. then outstanding. For the purpose of computing the
percentage voting power of Vereniging AEGON at any time, class A and
class B preferred shares shall be taken into account for the full voting
rights attached thereto pursuant to Article 41.1 of AEGON N.V.'s articles
of association. Class B preferred shares issued pursuant to this Article
10 will be issued at nominal value; AEGON N.V. and Vereniging AEGON may,
however, from time to time, agree to apply a higher issue price.
10.2 The option rights of Vereniging AEGON referred to in clause 10.1 shall
apply at maximum to the non-issued part of the class B preferred shares
included from time to time in AEGON N.V.'s authorised capital and shall
apply irrespective of whether Vereniging AEGON with respect to any
issuance of shares has, exercises or can exercise any pre-emptive rights.
10.3 For the purpose of clause 10.1, shares in the capital of AEGON N.V. which
on 9 May 2003 are held by AEGON N.V. itself will be deemed to be not in
issue as long as they are held by AEGON itself and any transfer or
re-issuance of such shares shall be treated as an issuance of shares.
10.4 Vereniging AEGON shall retain the option rights described in this clause
10 for so long as Vereniging AEGON does not amend its objects as stated
in its articles of association (as they read on 26 May 2003) and does not
alienate any shares it holds in the capital of AEGON N.V., unless such
alienation occurs with the approval of AEGON N.V.'s supervisory board.
For the purpose of the immediately preceding sentence, "alienation" does
not include either (i) any alienation of less than 10% of its interest in
the voting share capital of AEGON N.V. that Vereniging AEGON holds
immediately prior to such alienation or (ii) any alienation of
common or preferred shares by Vereniging AEGON to a company of which
Vereniging AEGON holds all or practically all of the voting shares, for
so long as Vereniging AEGON continues to hold all or practically all of
the voting shares of such company.
10.5 Vereniging AEGON shall not voluntarily alienate or encumber any of the
class A and/or class B preferred shares in the capital of AEGON N.V. it
holds from time to time, except with the prior approval of the
supervisory board of AEGON N.V. If Vereniging AEGON is reasonably forced
to alienate any such preferred shares, Vereniging AEGON will timely
inform AEGON N.V. thereof and grant the supervisory board a reasonable
period of time to designate a party to purchase the relevant preferred
shares at fair value and against immediate payment in cash. If it
concerns class A preferred shares, the supervisory board may require that
Vereniging AEGON, prior to effecting the share transfer, first give the
general meeting of shareholders of AEGON N.V. the opportunity to reduce
the nominal value of those shares without repayment to the same nominal
value as that of the common shares in the capital of AEGON N.V. (or to
such other amount as Vereniging AEGON and the supervisory board will
determine, if appropriate, to take account of a stock split or
combination of common shares or change to the nominal value of common
shares, if any); if the supervisory board makes such request, Vereniging
AEGON and the executive board of AEGON N.V. will cooperate fully with
such reduction of the nominal value of the class A preferred shares. If
the required transfer by Vereniging AEGON concerns class B preferred
shares, the supervisory board may request that they be transferred at a
price not to exceed the average amount paid on the class B preferred
shares plus an amount corresponding to any accrued but unpaid dividend on
the class B preferred shares concerned.
10.6 If, pursuant to clause 10.5, preferred shares are sold to an interested
party designated by the supervisory board of AEGON N.V., the fair value
of the preferred shares concerned will be determined by Vereniging AEGON
and the interested party concerned in joint consultation, or by one or
more experts designated by them. In determining the fair value of the
preferred shares the provisions in the last two sentences of clause 10.5
shall be duly taken into account.
