23rd May 2008 16:50
The following amendments has been made to the 'AGM Agenda' announcement released on 22 May 2008 at 07:39 under
RNS No 0450V
The sole modification relates to the Shareholder Circular and the explanatory notes to Agenda Item 6c, as such that points 6c (ii) and (iii) were deleted and replaced by:
Mr. Alexander Tynkovan may be eligible to participate in the Employee Stock Option Plan, the key-elements of which were approved at the annual general meeting of shareholders of 15 June 2007 (the "ESOP"). Any granting of options to Mr. Alexander Tynkovan under the ESOP will be subject to separate approval by the general meeting of shareholders.
All other details remain unchanged.
The full amended text is shown below.
X5 Retail Group N.V.
X5 Retail Group N.V. (hereinafter: the "Company") invites its shareholders and holders of global depository receipts ("GDRs") to its annual general meeting of shareholders to be held at Prins Bernhardplein 200, 1097 JB Amsterdam, The Netherlands at 11.00 am CET on 16 June 2008 (hereinafter: the "AGM").
AGENDA
1. Opening and announcements
2. Report of the Management Board for the financial year 2007
3. Financial Statements for the financial year 2007
Proposal to adopt the Financial Statements for the financial year 2007
Explanation of dividend policy on additions to reserves and dividends
Allocation of the Company's profits
4. Discharge from liability
Proposal to discharge the members of the Management Board from liability
Proposal to discharge the members of the Supervisory Board from liability
5. Adoption of the Remuneration Policy of the Management Board
6. Composition of the Supervisory Board
Re-appointment of a member of the Supervisory Board
Appointment of a new member of the Supervisory Board
Remuneration of the new member of the Supervisory Board
7. Indemnity arrangement for the Management Board, and designation of the chairman of the Remuneration Committee as authorised person to execute these arrangements on behalf of the Company
8. Indemnity arrangements for Supervisory Board members
9. Proposal to adjust the Employee Stock Option Plan
10. Proposal to amend the Articles of Association
11. Authorisation of the Management Board to have the Company acquiring shares or depository receipts (i.e. GDRs) in its own capital
12. Authorisation of the Management Board, to allow the Company to sell or otherwise dispose, the Company's own issued and fully paid up share capital or depository receipts (i.e. GDRs)
13. Extension of the current designation of the Supervisory Board as the corporate body which is authorised to issue shares, including any granting of rights to subscribe for shares, with the power to restrict or exclude the pre-emptive rights to such shares, in connection with the Employee Stock Option Plan
14. Corporate Governance
15. Any other business and conclusion
Record date
In accordance with article 36, paragraph 10 of the articles of association of the Company (the "Articles of Association"), the Management Board has resolved, as approved by the Supervisory Board, that persons with the right to vote and/or the right to attend the AGM are considered to be those persons who on 22 May 2008 after processing of all debit and credit entries up to and including that day (the "Record Date") are registered in one of the registers mentioned hereafter.
The Company's annual report for the year 2007 (the "2007 Annual Report") and the proposed amendments to the Articles of Association (including an explanatory note regarding such amendments), which are submitted to the general meeting of shareholders of the Company (the "General Meeting") for approval, will be deposited for inspection by the shareholders and other persons entitled to attend the AGM at the Company's offices in Amsterdam, The Netherlands and are available free of charge. Copies will also be available for inspection at the AGM.
The shareholders' register of the Company in Amsterdam, the Netherlands, has been designated as register to certify the shareholders entitled to vote on the shares. The shareholders identified as entitled to vote on the basis of the shareholders register of the Company on the Record Date may exercise their rights to vote and attend the AGM. These shareholders may also exercise their rights to vote and/or attend the AGM by a written proxy, in the English language, duly executed and legalized in accordance with the laws of the country where the proxy is issued. Proxy holders shall present their power of attorney at the AGM.
The register of GDR holders maintained by the Bank of New York (the "Depository") indicates the persons entitled to GDRs on the Record Date and entitled to give voting instructions to the Depositary pursuant to Condition 12 of the GDRs. GDR holders may instruct the Depositary with regard to the exercise of voting rights with respect to Deposited Shares (as defined in the GDR Conditions) by completing, signing and returning to the Depositary the relevant voting documentation forwarded by the Depositary to the GDR holders following receipt by the Depositary from the Company. The deadline for providing instructions to the Depositary will be specified by the Depositary in the information provided to GDR holders. The Depositary will procure the exercise of voting instructions received from GDR holders by the relevant deadline in accordance with the GDR conditions and the normal processes of the Depositary.
Alternatively, GDR holders who wish to vote in person at the AGM will, on request, be granted an exclusive proxy to do so by the Depository. A GDR holder to whom such exclusive proxy has been granted must notify the Management Board of the Company of their intention to attend and vote at the AGM and must provide the Management Board with a copy of such proxy at least five (5) days prior to the AGM. GDR holders who intend to vote in this manner must provide sufficient proof of identification on admission to the AGM. In addition, if the exclusive proxy has been granted by the Depository to a GDR holder which is a legal entity, the person who represents such legal entity at the AGM must provide sufficient proof that he is duly authorised to do so by means of a statement from a local lawyer or notary admitted to practice in the jurisdiction of the GDR holder, duly executed and legalised in accordance with the laws of such jurisdiction.
Amsterdam, 21 May 2008
The Management Board
Shareholder Circular and Explanatory Notes to the Agenda
Item 2
The report of the Management Board for the financial year 2007 will be discussed.
Item 3a
It is proposed to the General Meeting to adopt the Company's financial statements for the financial year 2007 (the "Financial Statements").
Item 3b
The Management Board will give an explanation of the dividend and reservation policy.
Item 3c
The Management Board will give an explanation on how the Supervisory Board proposes to the General Meeting to allocate the profits of the Company, in accordance with article 28, paragraph 1 of the Articles of Association.
Item 4a
It is proposed to the General Meeting to discharge the members of the Management Board from all liability in relation to the exercise of their duties in the financial year 2007, to the extent that such exercise is apparent from the Financial Statements or has been otherwise disclosed to the General Meeting prior to the approval of the Financial Statements.
Item 4b
It is proposed to the General Meeting to discharge the members of the Supervisory Board from all liability in relation to the exercise of their duties in the financial year 2007, to the extent that such exercise is apparent from the Financial Statements or has been otherwise disclosed to the General Meeting prior to the approval of the Financial Statements.
Item 5
The remuneration policy of the Management Board for the year 2008 and subsequent years shall be submitted to the General Meeting for adoption, in accordance with article 135 of book 2 of the Dutch Civil Code and article 14, paragraph 1 of the Articles of Association.
The Company's remuneration policy for the Management Board, as prepared by the Remuneration Committee of the Supervisory Board is set out in the Annual Report.
Item 6a
Under the rotation schedule fixed by the Supervisory Board, Mr. Vladimir Ashurkov will resign as a Supervisory Board member this year at the end of the AGM. Mr. Ashurkov is eligible for re-appointment.
The Supervisory Board proposes to re-appoint Mr. Ashurkov for a four-year period. The Supervisory Board has drawn up the following binding list of candidates in accordance with the Articles of Association:
Mr. Vladimir Ashurkov
Mr. Nigel Robinson
Mr. Ashurkov, a Russian citizen born in 1972, serves as Director of Group Portfolio Management and Control in the Alfa Group Consortium. His main non-executive/ancillary positions include member of the A1 Group Advisory Committee and member of the Russian Technologies Advisory Committee. Prior to joining Alfa Group, Mr. Ashurkov served as Vice President of Strategic Development in Industrial Investors Group (which owns the controlling stake in Far East Shipping Company) and gained experience in other transport and logistics companies and investment banks. Mr. Ashurkov graduated from Moscow Institute of Physics and Technology with a Bachelor of Science (Physics) and from the Wharton School, University of Pennsylvania, with a Master of Business Administration. Mr. Ashurkov has been a member of the Supervisory Board as of 2006 and is currently serving as the chairman of the Remuneration Committee, the Selection and Appointment Committee and the Strategy Committee. Mr. Ashurkov is a member of the Supervisory Board of Alfa Group. Mr. Ashurkov has no shareholding in the Company.
Mr. Nigel Robinson, a British citizen born in 1967, is director of corporate development, finance and control of Alfa Group. Mr. Nigel Robinson joined Alfa Group in January 2000. His responsibilities include co-ordinating the financial control and reporting of all Alfa Group companies and corporate governance for the Group as a whole. Prior to joining Alfa Group, Mr. Robinson was senior manager in the audit and business advisory group at PricewaterhouseCoopers and spent 6 years with PwC in Moscow and St. Petersburg. Mr. Robinson is a British qualified Chartered Accountant and a member of the Institute of Chartered Accountants in England and Wales. He graduated from the Accounting Faculty of Norwich City Institute in the UK. Mr. Robinson has been a member of the Supervisory Board of the Company from May 2006 until October 2006. Mr. Robinson is a member of the Supervisory Board of Alfa Group. Mr. Robinson holds shares in the Company's capital.
Mr. Ashurkov will be re-appointed if not at least 2/3 of the votes represented at the AGM representing at least half the issued share capital of the Company votes against his re-appointment.
Item 6b
The Supervisory Board proposes to appoint Mr. Alexander Tynkovan as third independent member of the Supervisory Board. The Supervisory Board has drawn up the following binding list of candidates in accordance with the Articles of Association:
Mr. Alexander Tynkovan
Mr. Franz Wolf
Mr. Tynkovan, a Russian citizen born in 1967 is the founder and CEO of "M.Video", a leading Russian retail network for selling consumer electronics and home appliances with 13% of the federal market share. "М.Video" is the first and the only public company in its segment. As of 1 April 2008, "М.Video" operates 127 electronics stores in 50 cities of Russia. Mr. Tynkovan graduated summa cum laude from the Moscow Power Engineering Institute, majoring in Aircraft Electric Equipment. With his experience and proven track record in the Russian retail industry Mr. Tynkovan is expected to deliver an important and valuable contribution to the duties of the Supervisory Board and the overall development of the Company. Mr. Tynkovan has no shareholding in the Company.
Mr. Franz Wolf, a German citizen born in 1953 is a director of the CTF Holdings, the ultimate holding company of the Alfa Group since 1998. As member of the board of CTF, Perekrestok and of various other companies within the Alfa Group he has gained substantial experience in managing and supervising the activities of companies, including those of the Perekrestok group. Mr. Wolf is a graduate of the Academy of State and Legal Sciences (Potsdam, Germany). Mr. Wolf has no shareholding in the Company.
Mr. Tynkovan will be appointed if not at least 2/3 of the votes represented at the AGM representing at least half the issued share capital of the Company votes against his appointment.
Item 6c
The General Meeting is requested to grant Mr. Alexander Tynkovan, subject to his appointment to the Supervisory Board, in line with the adopted remuneration scheme of the Supervisory Board, the following compensation:
(i) An annual fixed compensation of Euro 120,000 starting the day of his appointment;
Mr. Alexander Tynkovan may be eligible to participate in the Employee Stock Option Plan, the key-elements of which were approved at the annual general meeting of shareholders of 15 June 2007 (the "ESOP"). Any granting of options to Mr. Alexander Tynkovan under the ESOP will be subject to separate approval by the general meeting of shareholders.
The granting of options on GDRs to members of the Supervisory Board is generally not in line with the Dutch Corporate Governance Code. This deviation is disclosed in the 2007 Annual Report of the Company.
Item 7
It is proposed to the General Meeting to approve indemnity arrangements to be granted by the Company in favour of the Management Board, and to designate Mr. Ashurkov, chairman of the Remuneration Committee of the Supervisory Board, as authorised person to execute these indemnity agreements on behalf of the Company.
In line with common market practice, it is proposed that members of the Management Board will be indemnified and held harmless by the Company against any costs, losses, expenses, penalties, liabilities, judgements or damages of any kind of nature whatsoever arising out of or in connection with the general performance of their duties. However, this indemnification does not apply in case of alleged bad faith (kwade trouw), fraud (bedrog), gross negligence, wilful misconduct or intentional misrepresentation of the relevant person and, further, the Company shall only be required to indemnify the members of the Management Board if their liability is not covered under the directors and officers insurance policy of the Company. This indemnification will include any liability resulting from the Management Board members' involvement in the Company's Rights Offering dated 6 and 8 May 2008, and the acquisition of the Karusel hypermarket chain to be concluded prior to 30 June 2008.
The granting of an indemnity by the Company to the members of the Management Board is in general to be considered as an additional element of their remuneration. Pursuant to article 14 of Articles of Association, the Supervisory Board shall determine the remuneration and further conditions of employment for each member of the Management Board within the scope of the remuneration policy adopted by the General Meeting. As this indemnification to be granted to the members of the Management Board is not covered by the current remuneration policy, approval of the General Meeting is required to grant this indemnification as an additional element of the remuneration of the Management Board.
As with regard to the entering into this indemnification between the Company and the members of Managing Board, the conflict of interest provisions in the Articles of Association apply. Therefore, the General Meeting will be requested to designate the chairman of the Remuneration Committee of the Supervisory Board as representative of the Company upon execution of the respective indemnifications with the individual members of the Management Board in accordance with article 16, paragraph 4 of the Articles of Association.
Item 8
It is proposed to the General Meeting to approve the indemnity arrangements to be granted by the Company to the members of the Supervisory Board.
In line with common market practice, it is proposed that members of the Supervisory Board will be indemnified and held harmless by the Company against any costs, losses, expenses, penalties, liabilities, judgements or damages of any kind of nature whatsoever arising out of or in connection with the general performance of their duties. However, this indemnification does not apply in case of alleged bad faith (kwade trouw), fraud (bedrog), gross negligence, wilful misconduct or intentional misrepresentation of the relevant person and, further, the Company shall only be required to indemnify the members of the Supervisory Board if their liability is not covered under the directors and officers insurance policy of the Company. This indemnification will include any liability resulting from the Supervisory Board members' involvement in the Company's Rights Offering dated 6 and 8 May 2008, and the acquisition of the Karusel hypermarket chain to be concluded prior to 30 June 2008.
The granting of an indemnity by the Company to the members of the Supervisory Board is in general to be considered as an additional element of their remuneration. Pursuant to article 22 of the Articles of Association, the General Meeting shall determine the remuneration for each individual member of the Supervisory Board. Therefore, the granting of this indemnification to the members of the Supervisory Board is submitted to the General Meeting for approval. Item 9
Under the ESOP as approved by the General Meeting on 15 June 2007, the Supervisory Board may adjust the number of GDRs comprised in each option to be granted, to neutralise the effect of a variation in the issued share capital of the Company (i.e. dilution).
In connection with the rights offering of the Company as completed on 6 and 8 May 2008 (the "Rights Offering"), the Supervisory Board considered, amongst other things, that the Rights Offering may affect the expected market value of the GDRs to be issued upon exercise of options under the ESOP.
It is proposed by the Supervisory Board to the General Meeting to approve to increase the aggregate number of GDRs in respect of which options may be granted under the ESOP from 10,824,008 GDRs to 11,261,264 GDRs.
Item 10
It is anticipated that the Articles of Association will be revised in order to align them with new legislation and the wording used in the Dutch Civil Code.
Copies of the proposed amendments of the Articles of Association, including explanatory notes thereto, are available for inspection at the Company's offices in Amsterdam, The Netherlands and at the AGM.
The General Meeting is requested to approve the proposed amendments of the Articles of Association.
Item 11
The General Meeting is requested, in accordance with article 9, paragraph 4, of the current Articles of Association, to authorise the Management Board for a period of 18 months as of the date of the AGM, to allow the Company to purchase, for general corporate purposes, up to 10% of the Company's own issued and fully paid up share capital or depository receipts (i.e. GDRs) representing up to 10% of the Company's issued fully paid up share capital, at or below the market price of the GDRs (as being traded at London Stock Exchange) when such purchase is executed.
The Supervisory Board has resolved, subject to the above delegation by the General Meeting to the Management Board, that in case the amount of Company's own issued share capital or depository receipts (i.e. GDRs) being purchased reaches a level of more than 5% of the Company's own issued share capital, the Management Board shall obtain Supervisory Board approval before proceeding with such purchase, pursuant to article 17, paragraph 3 of the current Articles of Association.
The Company may only acquire its own fully paid up shares or depository receipts (i.e. GDRs) thereof, provided that the part of the Company's net assets which exceeds the aggregate of the issued share capital and the reserves which must be maintained by virtue of the law, is at least equal to the purchase price for the Company's own shares.
Item 12
The General Meeting is requested, in accordance with article 9, paragraph 6, of the current Articles of Association, to authorise the Management Board for a period of 18 months as of the date of the AGM, to allow the Company to sell or otherwise dispose, for general corporate purposes, the Company's own issued and fully paid up share capital or depository receipts (i.e. GDRs) at or above the market price of the GDRs (as being traded at London Stock Exchange) when such disposal is executed.
The Supervisory Board has resolved, subject to the above delegation by the General Meeting to the Management Board, that in case the price of the sale is below the market price when such disposal is executed or if there is any uncertainty over whether the price of the sale may be below the market price when such disposal is executed, the Management Board shall be obligated to receive Supervisory Board approval before proceeding with such sale, pursuant to article 17, paragraph 3 of the current Articles of Association.
Item 13
Pursuant to article 6, paragraph 1 and article 7, paragraph 3 of the Articles of Association, it is proposed to the General Meeting to extend the current designation of the Supervisory Board (as granted by the General Meeting at the annual general meeting of shareholders of 15 June 2007) as the corporate body of the Company which shall be authorised to issue shares or GDRs to the Management Board members, Supervisory Board members, or to any other senior offices or employees of the Company or its subsidiary companies in connection with the ESOP, including any granting of rights to subscribe for shares or GDRs, with the power to restrict or exclude the pre-emptive rights to such shares or GDRs, for a period of eighteen months to be calculated from the date of the AGM.
The designation is limited to 5% of the issued share capital of the Company as at the date of the AGM (for the avoidance of doubt, the issued share capital includes issued shares and/or GDRs owned by the Company (directly or indirectly) in its own capital. The Supervisory Board shall determine the time, price and other conditions of the share or GDR issue in accordance with the ESOP.
Item 14
The Management Board and the Supervisory Board wish to discuss with the General Meeting the deviations by the Company from Dutch Corporate Governance Code, as described in the 2007 Annual Report.
Related Shares:
X5 Retail