LAW OFFICES
BØRGE NIELSEN
P. ROSS JENSEN (L)
PEDER FIHL (H)
MORTEN JENSEN (H)
JAN HELLMUND JENSEN (L)
THOMAS SCHULTZ
ANDERS TOLBORG (H)
PETER TORNVIG FRUELUND (H)
ULLA SKOV (L)
MIKKI NIELSEN (L)
LUISE CHRISTENSEN
HASSERISVEJ 174
DK-9000 AALBORG
FAX +45 98 12 98 55
PHONE +45 98 12 98 00
File no. 50-00000020 MJ/MJ/BM
ARTICLES OF ASSOCIATION
of
TK Development A/S
(CVR No. 24 25 67 82)
THE COMPANY'S NAME, REGISTERED OFFICE AND OBJECTS
1.
The name of the company is TK Development A/S (“the Company”). The Company
shall moreover have the ancillary name of Thorkild Kristensen A/S (TK
Development A/S).
The Company's registered office is situated in the Municipality of Aalborg.
The objects for which the Company is established are to buy, build, sell, lease
and let, act as agents for, invest in and advise on real property at home and
abroad, to carry on financial activities and any other business related to or
associated with the above-mentioned activities.
THE COMPANY'S SHARE CAPITAL AND SHARES
2.
The Company's share capital amounts to DKK 560,876,200.00, in words, Danish
kroner five hundred and sixty million eight hundred and seventysix thousand
two hundred 00/100, divided into shares in the denomination of DKK 1.00 or
multiples thereof.
The share capital has been paid up in full.
The Company's Register of Shareholders shall be kept by VP Investor Services
A/S, Helgeshøj Allé 61, P. O. Box 20, DK-2630 Taastrup.
The shares shall be issued to named holders and shall be recorded as such in
the Company's Register of Shareholders.
The shares shall be freely transferable negotiable instruments, and no
shareholder is obligated to let the Company or any third party redeem his
shares, whether in whole or in part.
No share shall confer special rights upon any shareholder.
The shares shall be registered with the Danish Securities Centre.
The transfer of shares shall only be valid vis-à-vis the Company when the
transfer has been registered with the Danish Securities Centre. The Company
shall not be liable for the authenticity or correctness of any such
registration.
2 A.
Deleted.
2 B.
On 30 December 2005, based on the authorization granted to the Supervisory
Board according to the resolution passed by the shareholders at the Company's
General Meeting on 13 October 2005, the Supervisory Board resolved to issue
warrants to the Company's executive staff and the executive staff of
subsidiaries, entitling them to subscribe for shares in the Company for up to
nominally DKK 18,200,000.00. No separate consideration shall be paid for the
warrants.
The warrants may be exercised, in whole or in part, to subscribe for shares in
three six-week window periods (“exercise periods”). The three exercise periods
are (1) the period starting upon the publication of the preliminary
announcement of annual results for the 2008/9 financial year and ending six
weeks later, (2) the period starting upon the publication of the semi-annual
report for 2009/10 and ending six weeks later, and (3) the period starting upon
the publication of the preliminary announcement of annual results for the
2009/10 financial year and ending six weeks later.
The subscription price per share of nominally DKK 20.00 has been fixed at:
DKK 74.541 upon subscription in the first exercise period (calculated on the
basis of payment of the subscription amount on 1 May 2009);
DKK 77.054 upon subscription in the second exercise period (calculated on the
basis of payment of the subscription amount on 1 October 2009);
DKK 80.635 upon subscription in the third exercise period (calculated on the
basis of payment of the subscription amount on 1 May 2010).
The subscription prices set out above were fixed on the basis of a rate of
return of 8 % p.a. If subscription amounts are paid on dates other than those
stipulated above, the price will be adjusted based on an 8 % rate of return
p.a. for the period between the payment dates stipulated and the actual payment
dates. In case of payment before the dates stipulated, the subscription price
will thus be reduced, and in case of payment after the dates stipulated, the
subscription price will be increased to reflect the rate of return in the
intermediate period.
Any new shares subscribed for under the warrants shall have the same rights
pursuant to the Articles of Association as existing shares, and the shares
shall be freely transferable negotiable instruments. The new shares shall be
issued to named holders and shall be recorded as such in the Company's Register
of Shareholders. No restrictions shall apply to the transferability of the new
shares, and they shall not be subject to any redemption obligation. The shares
shall rank for dividend from the time when the newly subscribed shares are
registered with the Danish Commerce and Companies Agency, assuming that they
are registered before the holding of the Annual General Meeting as concerns
the exercise period related to the publication of the preliminary announcement
of annual results. If such new shares are not registered prior to the Annual
General Meeting, and thus do not rank for dividend, the subscriber shall be
compensated herefor, as the subscription prices are subject to the condition
that shares subscribed for during such exercise period shall rank for the
dividend declared at the relevant Annual General Meeting.
No share shall confer special rights upon any shareholder. The shares shall be
registered with the Danish Securities Centre.
The warrants shall also be subject to the following conditions:
1.
The warrant holder can exercise the warrants by submitting a written notice
to the Company's head office in Aalborg within one of the exercise periods.
The Company will acknowledge to the warrant holder the receipt of such notice.
Payment to the Company shall be effected in cash at the same time as the
warrant holder's name is entered in the subscription list and no later than 14
days after the Company has sent its acknowledgement of receipt to the warrant
holder.
2.
Warrants are personal and cannot be transferred or transmitted, which shall
also be the case in the event of division of property on divorce or legal
separation; nor can they be pledged or otherwise used for the purpose of
satisfying the claims of the warrant holder's creditors. But in case of the
employee's death, any unexercised warrants may be appropriated to the surviving
spouse or issue.
3.
The subscription price has been fixed at DKK 74.541, DKK 77.054 and DKK
80.635 for the first, second and third exercise periods, respectively, but
subject to a rate-of-return adjustment in case of actual payment taking place
on dates other than those stipulated, see above, which means that upon
exercising a warrant, a warrant holder may subscribe for one new share of
nominally DKK 20.00 against payment in cash of DKK 74.541, DKK 77.054 or DKK
80.635 or the amount resulting after any rate-of-return adjustment.
4.
If the Company resolves to introduce share classes, each share subscribed
for by exercising warrants shall belong to the share class enjoying the most
privileges.
The subscription price will be adjusted in the event that any steps of the
nature referred to below are taken, following the adoption of the appropriate
decision, after 30 December 2005:
(a)
A capital increase upon new subscription, subject to a preemptive right
for the existing shareholders.
(b)
The issuing of bonus shares.
(c)
A capital reduction, unless it is made to cover losses, effected by the
cancellation of shares of company stock (“treasury shares”) or in any other
lawful manner without distribution of funds to all shareholders.
(d)
The distribution of dividend of more than DKK 0 per share of nominally DKK
20.
(e)
The issuing of additional warrants or the issuing of additional convertible
debentures subject to a preemptive right for the existing shareholders.
(f)
Any changes that are equivalent to any of the steps listed in items (a) -
(e) above that have a comparable impact on the warrant holder.
The subscription price can only be adjusted in the above-mentioned situations
and thus not in the case of a demerger, the issuing of employee shares at a
discount to the market price, and issues without a preemptive right.
In the case of a solvent liquidation of the Company, the warrants shall lapse;
but the warrant holder shall be given access to exercise such warrants prior to
liquidation.
5.
The situations referred to in paragraph 4 above and any adjustment of the
subscription price due to payment taking place earlier or later than the
payment dates stipulated in paragraph 3 shall be administered by the Company's
Supervisory Board, which shall make a final and binding decision on the
implementation and calculation of any adjustment of the warrants, including in
relation to subscription price and share ratio.
6.
If, prior to the warrants having been exercised for the subscription of
shares,
(a)
an offer for compulsory redemption of shares is made pursuant to the
provisions of the Danish Public Limited Companies Act (section 20 b),
(b)
a public takeover bid is made for shares in the Company,
(c)
a statutory takeover bid is made on the basis of an acquisition of
investments or voting rights in the Company that results in an order being
issued to make a redemption offer
or
(d)
a situation arises in which the warrant holder otherwise finds that the
Company's shareholder structure has been changed in such a way that the new
ownership involves a substantial risk of revision of the Company's previous
business policy,
the warrant holder shall be entitled to make a request to subscribe for shares
under the warrants. The right to make a request for the subscription of shares
shall apply from the occurrence of the relevant event and until (1) the expiry
of the time limit pursuant to section 20 b of the Danish Public Limited
Companies Act, (2) the expiry of the time limit stipulated for acceptance of
the relevant public or statutory takeover bid and (3) three months after the
warrant holder has become aware of the situation referred to in paragraph (d)
above. If a request is made to exercise the warrants pursuant to the above
provisions, the subscription price used shall be DKK 57.813 per share of
nominally DKK 20.00, plus an amount equal to 8 % p.a. of DKK 57.813 as from 16
January 2006 until the date of subscription (date of payment) and less an
amount corresponding to the accumulated dividend per share paid in the period
as from 16 January 2006 and until the date of subscription (date of payment).
The said subscription price shall be subject to adjustment in keeping with the
above-mentioned adjustment rules, except the provisions concerning dividend.
In the situations referred to in paragraphs (a), (b) and (c), the shares
subscribed for by the warrant holder on the basis of warrants shall thus be
comprised by the above-mentioned redemption offer or takeover bid.
If in the situation referred to in paragraph (b) above, the Company finds that
the subscription for shares would seriously inconvenience the Company's
shareholders, or, in the situation referred to in paragraph (d) above, the
warrant holder and the Company fail to agree whether the conditions mentioned
in paragraph (d) have been met, the question shall be decided with final and
binding effect for the parties by arbitration according to the “Rules of
Procedure of the Danish Institute of Arbitration (Copenhagen Arbitra¬tion)”.
7.
Upon the merger with companies that are not wholly-owned subsidiaries of the
Company at 30 December 2005, the warrant holder may demand, subject to 14 days'
notice, to subscribe for shares under the warrants for a period of 30 days
after the final adoption of the merger plan. If the warrant holder does not
make such demand to subscribe for shares, and if the Company is not the
continuing company, the warrant shall be changed to a right to subscribe for
shares in the continuing company, and the subscription price shall be adjusted
based on the rate of conversion between the shares of the merging companies.
In the case of scission of the Company, the scission plan shall specifically
state what steps shall be taken regarding the warrants. Warrant holders shall
be entitled to exercise the right to subscribe for shares prior to completion
of the scission.
In the cases referred to in this present paragraph 7, the subscription price
shall be fixed on the basis of the principles set out in paragraph 6.
8.
If the Company should cease to be listed on the Copenhagen Stock Exchange,
the warrant holder shall be entitled at any time to make a request to
subscribe for shares under the warrants, but no earlier than three years after
the allocation of the warrants. The subscription price shall be fixed in
accordance with the principles set out in paragraph 6.
To implement the capital increases following from the exercise of warrants, the
Supervisory Board shall be authorized, during the period ending on 13 October
2010, to increase the Company's share capital by one or more issues by up to a
total of nominally DKK 18,200,000.00 by a cash contribution, without any
preemptive rights for the Company's existing shareholders. Any new shares
subscribed for under the warrants shall have the same rights pursuant to the
Articles of Association as existing shares, and the shares shall be freely
transferable negotiable instruments. The new shares shall be issued to named
holders and shall be recorded as such in the Company's Register of
Shareholders. No restrictions shall apply to the transferability of the new
shares, and they shall not be subject to any redemption obligation. No share
shall confer special rights upon any shareholder. The shares shall be
registered with the Danish Securities Centre.
GENERAL MEETINGS
3.
Annual General Meetings shall be held every year in the municipality where the
Company's registered office is located and sufficiently early to ensure
observance of the time limits for holding Annual General Meetings and filing
annual reports.
In order to be considered at an Annual General Meeting at which the annual
report for the relevant financial year is considered, any proposals from
shareholders shall be submitted in writing to the Company's office no later
than two months after the end of a financial year.
Extraordinary General Meetings shall be held following a resolution adopted by
the shareholders at a General Meeting or by the Supervisory Board, at the
request of the Company's auditor or upon a written request submitted to the
Supervisory Board by shareholders holding in the aggregate not less than
one-tenth of the share capital. This request must contain a specification of
the proposal or proposals desired to be considered at the General Meeting. Such
an Extraordinary General Meeting shall be convened no later than 14 days after
the receipt of the appropriate request.
The shareholders shall be convened to General Meetings by not less than eight
days nor more than four weeks' notice by an advertisement inserted in
"Berlingske Tidende", "Dagbladet Børsen" and "Morgenavisen Jyllands-Posten" or
any other corresponding daily papers as directed by the Supervisory Board, and
by letter to the shareholders of record. In addition to the day and time of the
General Meeting, the convening notice shall moreover contain information about
the agenda and a statement of any proposals submitted for consideration.
At a General Meeting, resolutions can only be adopted in respect of business
included in the agenda and any proposed amendments thereto.
If proposals to alter the Articles of Association are to be considered at a
General Meeting, the essentials of such proposals shall be stated in the
convening notice.
No later than eight days prior to a General Meeting, the agenda and the
complete wording of the proposals to be considered at the General Meeting, and
- with respect to the Annual General Meeting - moreover the annual report, duly
provided with the auditors' report and signed by the members of the Executive
Board and of the Supervisory Board, shall be available for inspection by the
shareholders at the Company's office.
4.
Each share amount of DKK 1.00 shall confer one vote on the holder. The voting
right may by exercised pursuant to a written and dated instrument of proxy.
Such instrument of proxy may not be issued for a period of more than one year.
A shareholder shall only be entitled to exercise his voting right on shares at
General Meetings if he has caused an entry to be made of his holding in the
Register of Shareholders no later than eight days before the relevant General
Meeting, or, within the same time limit, has filed notification and proof of
his holding.
5.
The agenda of the Annual General Meeting shall include the following business:
1.
The Supervisory Board's report on the Company's activities in the past
financial year.
2.
The presentation of the annual report, duly provided with the auditors'
report, together with a motion for its adoption.
3.
A resolution proposing the application of profits or the covering of losses.
4.
Consideration of any proposals from the Supervisory Board and any proposals
from shareholders.
5.
Election of members of the Supervisory Board
6.
Election of accountants to serve as the Company's auditors.
7.
Any other business.
6.
Unless otherwise prescribed by Danish legislation, resolutions put to the vote
of the shareholders at a General Meeting shall be decided by a simple majority
of votes among the persons in attendance. But the adoption of any resolution
to alter the Articles of Association or to wind up the Company is subject to
the affirmative votes of not less than two-thirds of the votes cast as well as
of the voting stock represented at the General Meeting.
7.
General Meetings shall be presided over by a Chairman ap¬pointed by the
Supervisory Board. The Chairman thus appointed shall settle all matters
relating to the transaction of business and the voting.
8.
An account of the proceedings at the General Meeting and the resolutions made
shall be recorded in a minute book authorized by the Supervisory Board for such
purpose. The Chairman of the Meeting and all members of the Supervisory Board
attending the relevant General Meeting shall sign the minutes.
SUPERVISORY BOARD AND EXECUTIVE BOARD
9.
The Company shall be managed by a Supervisory Board composed of not less than
four nor more than seven members, elected by the shareholders at the General
Meeting. The Supervisory Board members shall be elected for a term of one year
at a time, but are eligible for re-election. The Supervisory Board shall elect
a Chairman and a Deputy Chairman from among their number. The Supervisory Board
shall lay down its own rules of procedure. In the event of a tie, the Chairman
shall have a second or casting vote. An account of the proceedings at
Supervisory Board Meetings and the resolutions made shall be recorded in a
minute book authorized by the Supervisory Board for such purpose. All members
of the Supervisory Board attending the relevant Board Meeting shall sign the
minutes.
10.
The Supervisory Board shall appoint an Executive Board, to be composed of one
or more members, to be in charge of the day-to-day management of the Company.
BINDING SIGNATURES
11.
The Company shall be bound in legal transactions by the joint signatures of the
Chairman and the Deputy Chairman, by the joint signatures of the Chairman or
the Deputy Chairman and any member of the Supervisory Board or of the Executive
Board, by the joint signatures of any three members of the Supervisory Board,
by the joint signatures of any two members of the Executive Board, or by the
joint signatures of all members of the Supervisory Board.
FINANCIAL STATEMENTS AND AUDIT
12.
The Company's financial year shall run from 1 February to 31 January, with a
period of conversion from 1 May 2001 to 31 January 2002.
13.
The Company's annual reports shall be audited by one or more stateauthorized
public accountants elected by the shareholders at the General Meeting to serve
for one year at a time.
14.
The Annual Report shall be prepared according to International Financial
Reporting Standards as approved by the EU and additional Danish disclosure
requirements regarding annual reports for listed companies. If a loss relating
to any preceding year has remained unbalanced, then any profit shall first be
applied to balance off such loss.
Any profit available for distribution shall be distributed as resolved by the
shareholders at the General Meeting at the recommendation of the Supervisory
Board.
* * *
The foregoing Articles of Association were adopted at the Company's
Extraordinary General Meeting on 13 October 2005, as subsequently amended in
respect of Article 2 B by a Supervisory Board resolution of 30 December 2005,
including the Supervisory Board's endorsement of 24 January 2006, and as
amended in respect of Articles 2 and 2 A by a Supervisory Board resolution of
30 December 2005.
The foregoing Articles of Association were adopted at the Company's Annual
General Meeting on 29 May 2007.
Morten Jensen
Attorney-at-law
