Exhibit
4.9


 


Execution Copy


 


	
   

  	
  DE BRAUW

  
	
   

  	
  BLACKSTONE

  
	
   

  	
  WESTBROEK

  



 


Amendment
Agreement


 


relating
to


 


Marine Harvest N.V.


 


among


 


Nutreco Holding N.V.


 


and


 


Stolt Sea Farm Investments B.V.


as
Sellers 


 


and


 


Geveran Trading Co Ltd


as
Purchaser


 


and


 


Greenwich Holdings Ltd. 


as
Guarantor


 


and


 


Pan Fish ASA 


as
Assignee


 


	
  Dated 27 March 2006

  	
   

  	
  Tripolis
  300

  
	
   

  	
   

  	
  Burgerweeshuispad
  301

  
	
   

  	
   

  	
  1070
  HR Amsterdam

  
	
   

  	
   

  	
  The
  Netherlands

  



 

















 


	
   

  	
  Contents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and Interpretation

  	
  4

  
	
  2

  	
  Condition precedent

  	
  4

  
	
  3

  	
  Amendments

  	
  4

  
	
  3.1

  	
  Clause 3.1 (Purchase Price)

  	
  4

  
	
  3.2

  	
  Clause 3.2 (Security)

  	
  4

  
	
  3.3

  	
  New Clause 3.3 (Security)

  	
  5

  
	
  3.4

  	
  Clause 6.2 (Payment)

  	
  5

  
	
  3.5

  	
  Clause 7.3 (Arrangements in the event of
  termination)

  	
  5

  
	
  3.6

  	
  Sellers’ Warranties

  	
  6

  
	
  4

  	
  Assignee’s Warranties

  	
  6

  
	
  5

  	
  Miscellaneous

  	
  6

  
				



 


2

















 


Amendment Agreement


 


THE UNDERSIGNED:


 


(1)    Nutreco
Holding N.V., a public company with limited liability (naamloze vennootschap), with corporate
seat in Boxmeer, the Netherlands, and having its address at Veerstraat 38, 5831
JN Boxmeer, the Netherlands (“Nutreco”);


 


(2)    Stolt Sea
Farm Investments B.V. a private company with limited liability (besloten vennootschap) incorporated in
the Netherlands, with corporate seat in Schiedam, and having its address at
Karel Doormanweg 25, 3115 JD Schiedam the Netherlands (“Stolt”,
Stolt and Nutreco jointly referred to as “Sellers”);


 


(3)    Geveran
Trading Co Ltd, a private company with limited liability
incorporated in Cyprus, with corporate seat in Limassol, Cyprus and having its
address at Deana Beach Apartments, Promachou Eleftherias Street, Ayos
Athanasios, Limassol, Cyprus, (“Purchaser”), and


 


(4)    Greenwich
Holdings Ltd., a private company with limited liability incorporated
in Cyprus, with corporate seat in Limassol, Cyprus and having its address at
Deana Beach Apartments, Promachou Eleftherias Street, Ayos Athanasios, Limassol,
Cyprus (“Guarantor”), and


 


(5)    Pan Fish ASA,
a public company under the laws of Norway, with corporate seat in Stavanger,
Norway and having its address at Maskinveien 32, N-4067 Stavanger, Norway, (“Assignee”)


 


WHEREAS:


 


(A)    The Sellers, the Purchaser and the Guarantor
entered into a share purchase agreement dated 6 March 2006 in respect of all of
the 80,000 issued and outstanding shares (the “Shares”) in the capital of Marine Harvest
N.V. (the “Company”) (the
“Share
Purchase Agreement”).


 


(B)    The Purchaser and Assignee entered into an
Assignment and Assumption Agreement dated 6 March 2006, whereby the Purchaser
has assigned all its rights under the Share Purchase Agreement to Assignee and
Assignee has assumed all of the obligations of the


 


3

















 


Purchaser under the Share
Purchase Agreement.


 


(C)   The parties to this Amendment Agreement have
agreed to have the Purchase Price (as defined in the Share Purchase Agreement)
prepaid by Assignee, on behalf of itself and the Purchaser, to the Sellers on
28 March 2006, rather than have a bank guarantee issued to the Sellers, as was
contemplated in Clause 3.2 of the Share Purchase Agreement.


 


(D)   In this connection the parties to this
Amendment Agreement wish to amend the Share Purchase Agreement on the terms set
out in this Amendment Agreement.


 


IT IS AGREED AS FOLLOWS:


 


1       DEFINITIONS AND
INTERPRETATION


 


Unless otherwise stated in this Amendment Agreement,
terms defined in the Share Purchase Agreement shall have the same meaning when
used in this Amendment Agreement.


 


2       CONDITION PRECEDENT


 


The provisions of this
Amendment Agreement shall be effective only if, not later than 2 p.m. on
Tuesday 28 March 2006, a prepayment in the amount of the Purchase Price shall
have been made to bank account number 69.32.13.876 (Bic code ING BNL 2A) at ING
Bank, with value on the same date, in the name of the Notary, after which the
Notary shall hold the amount of the prepayment on behalf of the Sellers, pro
rata parte their respective ownership of the Shares, and after which the Notary
shall pay said amount to the Sellers in accordance with the Sellers’ joint
instructions.


 


3       AMENDMENTS


 


3.1     Clause 3.1 (Purchase Price)


 


Clause 3.1 (Purchase Price) of the Share Purchase
Agreement is replaced in its entirety by the following provision:


 


“The Purchase
Price for the Shares shall be EUR 1,175,000,000 (one billion one hundred and
seventy-five million Euros) (the “Purchase Price”).”


 


3.2     Clause 3.2 (Security)


 


Clause 3.2 (Security) of the
Share Purchase Agreement is replaced in its entirety by the following
provision:


 


“3.2
(Prepayment)


 


Purchaser
(or Assignee, as the case may be) shall prepay the Purchase Price on 28 March
2006 to bank account number 69.32.13.876 (Bic code ING BNL 2A) at ING Bank,
with


 


4

















 


value
on the same date, in the name of the Notary, after which the Notary shall hold
the amount of the prepayment on behalf of the Sellers, pro rata parte their
respective ownership of the Shares, and after which the Notary shall pay said
amount in accordance with Sellers’ joint instructions.”


 


3.3    New Clause 3.3 (Security)


 


A new Clause 3.3 (Security)
is included in the Share Purchase Agreement, to read as follows: 


 


“3.3
(Security)


 


As
security for the payment obligations of Assignee under a certain Facility
Agreement dated 28 March 2006, the Sellers agree that a first priority pledge
be created and perfected on the Shares in favour of DNB NOR BANK ASA, on the
terms and subject to the conditions of the draft deed of pledge (the “Pledge Deed”) attached to this Amendment Agreement as Attachment
1. The Pledge Deed shall include the proviso that any execution or
enforcement (uitwinning) of the
first priority pledge shall release and fully discharge the Sellers (a) from
their Closing obligations towards the Purchaser as referred to in Clauses 6.3.1
and 6.3.3 of the Share Purchase Agreement and (b) from the Sellers’ obligations
referred to in Clause 7.3, second and third paragraphs, of the Share Purchase
Agreement.


 


3.4    Clause 6.2 (Payment)


 


Clause 6.2 is replaced in its
entirety, to read as follows:


 


“The
Purchase Price shall be deemed to have been paid by the Purchaser through the
prepayment referred to in Clause 3.2 of the Agreement and the Sellers shall
fully discharge the Purchaser for the payment of the Purchase Price so
(pre)paid.”


 


3.5    Clause 7.3 (Arrangements in the event of
termination)


 


The first paragraph of Clause
7.3 of the Share Purchase Agreement is replaced in its entirety, to read as
follows:


 


“If
this Agreement is terminated in accordance with Clause 7.1
(Right of termination), an indemnity payment shall be due by the Purchaser to
the Sellers in an amount equal to the Purchase Price. In that event, the
indemnity amount shall be deemed to have been paid by the Purchaser through the
prepayment referred to in Clause 3.2 of the Agreement and the Sellers shall fully
discharge the Purchaser for the payment of the indemnity amount so (pre)paid.”


 


In the second paragraph of
Clause 7.3 of the Share Purchase Agreement, the opening sentence “Following
receipt of the Purchase Price,” shall be deleted and the paragraph shall start
with the sentence:


 


“Upon
termination of this Agreement in accordance with Clause
7.1 (Right of termination), Sellers shall proceed without undue delay ...”.


 


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The following provision
will be added at the end of this paragraph:


 


“Purchaser and Assignee
shall procure that at the date of transfer of the Shares to a third party in
accordance with the provisions of this Clause 7.3, DNB NOR BANK ASA will fully
co-operate in relinquishing the right of pledge created pursuant to the Pledge
Deed and terminating the Pledge Deed.”


 


3.6    Sellers’ Warranties


 


The Sellers’ Warranties included in Clause 8.1 of the
Share Purchase Agreement shall be qualified by reference to the first priority
pledge which is agreed to be created by the Sellers in respect of the Shares
under the terms of this Amendment Agreement.


 


4       ASSIGNEE’S WARRANTIES


 


Assignee represents and warrants to the Sellers that,
as at the date of this Agreement:


 


(a)    it is validly existing and is a company duly
incorporated under the laws of Norway;


 


(b)    it has the legal right and full power and
authority to enter into and perform its obligations under this Amendment
Agreement and any other documents to be executed by it pursuant to or in
connection with this Amendment Agreement; and


 


(c)    it has taken all corporate action required by
it to authorise it to enter into and to perform its obligations in accordance
with this Amendment Agreement and any other documents to be executed by it
pursuant to or in connection with this Amendment Agreement.


 


5       MISCELLANEOUS


 


5.1     The
provisions of the original Share Purchase Agreement shall, save as amended by
this Agreement, continue in full force and effect.


 


5.2     Clauses
11.5, 11.7, 11.8, 11.10 and 11.11 of the Share Purchase Agreement shall be
deemed to be incorporated in this Amendment Agreement as if expressly set out
herein.


 


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VOORNEMAN GEENEN NOTARISSEN


 


[SEAL]


 


TRUE
COPY


of the deed of


pledge of shares in the
capital of


the public company:


 


Marine Harvest N.V.


with statutory seat in
Amersfoort


 


executed on the 28th
day of March 2006 


before Anton A. Voorneman, 


civil law notary in
Amsterdam.


 


7

















 


DEED
OF PLEDGE OF SHARES IN MARINE HARVEST N.V.


 


On the twenty-eighth day of
March two thousand six appeared before me, Anton Arnaud Voorneman, civil law
notary in Amsterdam: Mr. Joost Willem Friso ter Burg, with office address at
1083 GV Amsterdam, Arent Janszoon Ernststraat 199, born in Zeist on the
twenty-third day of December nineteen hundred seventy-five, in this respect
acting as duly authorized representative in writing of:


 


	
  1.

  	
  a.

  	
  the public company:
  Nutreco Holding N.V., with statutory seat in Boxmeer and having its office
  address at 5831 JN Boxmeer, Veerstraat 38, filed at the Trade Register of the
  Chamber of Commerce for Oost-Brabant under number: 16074305, hereinafter also
  to be referred to as: “Pledgor 1”; and

  
	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  the private company with
  limited liability: Stolt Sea Farm Investments B.V., with statutory seat in
  Schiedam and having its office address at 3016 CK Rotterdam, Westerlaan 5,
  filed at the Trade Register of the Chamber of Commerce for Rotterdam under
  number 24369988, hereinafter also to be referred to as: “Pledgor 2”; Pledgor
  1 and Pledgor 2 are hereinafter collectively also to be referred to as: the
  “Pledgers”;

  
	
   

  	
   

  	
   

  
	
  2.

  	
  the company incorporated
  under the laws of Norway: DnB NOR Bank ASA, with statutory seat at Stranden
  21, N-0250 Oslo, Norway and offices at Lars Hillesgate 30, N-5020, Bergen,
  Norway, filed at the Commercial Register in Brønnøysund under number:
  984851006, hereinafter also to be referred to as: the “Pledgee”;

  
	
   

  	
   

  	
   

  
	
  3.

  	
  the public company: Marine
  Harvest N.V., with statutory seat in Amersfoort and having its office address
  at 3818 HG Amersfoort, P.C. Hooftlaan 3, filed at the Trade Register of the
  Chamber of Commerce for Gooi-en Eemland under number: 32105246, hereinafter
  also to be referred to as: the “Company”; and 

  
	
   

  	
   

  	
   

  
	
  4.

  	
  the company incorporated
  under the laws of Norway: Pan Fish ASA, with statutory seat in Stavanger and
  offices at Maskinveien 32, P.O. Box 342 Forus N-4067 Stavanger, Norway, filed
  at the Norwegian Central Register for business Enterprises under number:
  964118191, hereinafter also to be referred to as: “Pan Fish”.

  
				



 


1

















 


The powers of attorney of
the aforementioned parties will be attached to this deed. The person appearing
before me, acting in the capacity as described above, declared as follows:


 


WHEREAS


 


(A)      On the sixth day of March two thousand six Pledgors, Geveran Trading Co
Ltd (“Geveran”) and Greenwich Holdings Ltd (“Greenwich”) entered into a share
purchase agreement dated six March two thousand six in respect of all of the
existing Shares (as defined below) (the “Share Purchase Agreement”).


 


(B)        Geveran and Pan Fish entered into an assignment and assumption
agreement dated six March two thousand six (the “Assignment and Assumption Agreement”),
whereby Geveran has assigned all its rights under the Share Purchase Agreement
to Pan Fish and Pan Fish has assumed all of the obligations of the Purchaser
under the Share Purchase Agreement.


 


(C)        On the twenty-seventh day of March two thousand six, Pledgors, Geveran,
Greenwich and Pan Fish have entered into an amendment agreement (the “Amendment
Agreement”) in relation to the amendment of certain provisions (identified in
the Amendment Agreement) of the Share Purchase Agreement. 


 


(D)       On the twenty-fourth day of March two thousand six, Pan Fish and the
Pledgee and the Lenders (as defined in the Facility Agreement (as defined
below)) have entered into the Facility Agreement (as defined below) pursuant to
which the Lenders have made available to Pan Fish finance for the payment of
the Purchase Price (as defined in the Share Purchase Agreement).


 


(E)         On the date hereof Pan Fish has pre-paid the Purchase Price in
accordance with Clause 3.2 of the Share Purchase Agreement.


 


(F)         It is a condition precedent under the Facility Agreement that a first
ranking right of pledge is created over the Shares (as defined below) in favour
of the Pledgee for the benefit of the Secured Parties as security for the payment
obligations of Pan Fish under the Facility Agreement.


 


(G)        Pursuant to the Amendment Agreement, Pledgers have agreed that a first ranking
right of pledge be created and perfected on the Shares in favour of the Pledgee
on the terms and subject to this Deed as security for the payment obligations
of Pan Fish under the Facility Agreement.


 


(H)       The Company is entering into this Deed in connection with its
obligations set forth in Clauses 2.3 ,6(b) and 7.3(e) herein.


 


It is agreed as follows:


 


1.               INTERPRETATION


 


1.1         Definitions


 


(a)          Words and expressions defined in the Facility Agreement shall have the
same meaning when used in this Deed, unless otherwise defined herein.


 


(b)         In this Deed: “Civil Code” means the Dutch Civil Code (Burgerlijk
Wetboek).

“Deed” means this deed of pledge
of shares;

“Dividends” means, in relation to
any Share, all present and future:


2

















 


(a)          dividends and distributions of any kind and
any other sum received or receivable in respect of that Share;


 


(b)         rights, shares, money or other assets
accruing or offered by way of redemption, bonus, option or otherwise in respect
of that Share;


 


(c)          allotments, offers and
rights accruing or offered in respect of that Share; and 


 


(d)         other rights and assets attaching to,
deriving from or exercisable by virtue of the ownership of, that Share. 


 


“Enforcement Event” means the occurrence of: 


 


(a)          any event described in Clause 8.2 (Change of
Control) of the Facility Agreement; or 


 


(b)         an Event of Default, resulting in Pan Fish
being in default (verzuim) for the purpose of Section 3:248(1) Civil Code.


 


“Facility Agreement” means the facility agreement dated
twenty-four March two thousand six between, inter alia, Pan Fish, the Lenders
named in that agreement and the Pledgee as Agent and Security Agent. 


 


“Finance Documents” means the Finance Documents as defined in the Facility Agreement.


 


“Parallel Debt” means the parallel debt obligation under the Facility Agreement.


 


“Pledge” means a first ranking (or, where it cannot rank first and without
prejudice to all other rights and claims of the Pledgee, a highest possible
ranking) third party right of pledge over all its present and (in anticipation)
future Shares and Dividends, created or expressed to be created pursuant to
this Deed. 


 


“Pledged Assets” means the
Shares. 


 


“Secured Liabilities” means all present and future obligations owed
by Pan Fish to the Security Agent under the Finance Documents and the Hedging
Finance Documents including, without limitation, its Parallel Debt obligations
to the extent that such obligations are or will be used to pre-pay the Purchase
Price. 


 


“Secured Parties” means the Lenders and the Hedging Banks. 


 


“Shares” means


 


(a)          all issued shares, each having a nominal
value of one euro (EUR 1.), in the share capital of the Company, numbered 1 to
60,000 inclusive, owned by the Pledgors and obtained by them in the following
manner: 


 


(i)    Pledgor 1 acquired forty-five thousand (45,000) shares upon the
incorporation of the Company, effected by a notarial deed executed before Mr P.
Klemann, civil-law notary in Amsterdam, on the twenty ninth day of November two
thousand four; 


 


(ii)   Pledgor 2 acquired fifteen thousand (15,000) shares upon an issue of
shares, effected by a notarial deed executed before Mr R.W. Clumpkens,
civil-law notary in Amsterdam, on the twenty-ninth day of April two thousand
five; the shares held by Pledgor 1 and Pledgor 2 are also referred to in this
Deed as the “existing Shares”; and 


 


3

















 


(b)         all shares in the share capital of the
Company in the future owned by the Pledgors or (to the extent of its interest)
in which it now or in the future has an interest, also referred to in this Deed
as the “future Shares”. 


 


1.2         Interpretation 


 


Any
reference in this Deed to a “Finance Document” or any other agreement or
instrument is a reference to that Finance Document or other agreement or
instrument [as amended, novated, supplemented, restated or replaced and
includes any increase in, extension of or change to any facility made available
under that Finance Document or other agreement or instrument. Any amendment,
novation, supplement, restatement or replacement which would materially affect
the Pledgors’ position under this Deed, will need the prior approval of the
Pledgors. 


 


2.               SECURITY AND ACKNOWLEDGEMENT



 


2. 1      First Ranking Pledge 


 


To
the extent that there is no other legal basis for the creation of the Pledge,
Pan Fish and the Pledgors hereby agree with the Pledgee to create in favour of
the Pledgee, as security for the payment of the Secured Liabilities, the
Pledge. 


 


2.2         Creation and Acceptance 


 


The
Pledgors, as security for the payment of the Secured Liabilities, hereby create
the Pledge in favour of the Pledgee, and the Pledgee hereby accepts the Pledge.


 


2.3         Acknowledgement and
Registration of Pledge 


 


The
Company declares that: 


 


(a)          it has taken notice of the terms and
conditions of this Deed and will fully cooperate with the performance thereof; 


 


(b)         it is not aware of any facts or circumstances
which in any way would cause any of the Pledgors’ representations and
warranties under this Deed to be incorrect;


 


(c)          it hereby acknowledges the Pledge and it
shall, in accordance with section 2:85(1) Civil Code, enter the Pledge in its
shareholders’ register and provide the Pledgee with an extract from the
register: 


 


(i)             in respect of the existing Shares owned by
the Pledgors, promptly after the execution of this Deed; and 


 


(ii)          in respect of any future Shares of which the
Pledgors become the owner, or in which the Pledgors acquire an interest,
promptly upon becoming aware thereof.


 


3.               RESTRICTIONS AND FURTHER
ASSURANCE 


 


3.1         Disposal 


 


Except
as provided for in the Share Purchase Agreement, the Pledgors shall not,
without the written consent of the Pledgee, (and shall not agree to) enter into
a single transaction or a series of transactions (whether related or not and
whether voluntary or involuntary) to sell, lease, assign, transfer or otherwise
dispose of the Pledged Assets except, in the case of Dividends, as permitted by
Clause 4.1 (Dividends before enforcement). 


 


3.2         Further assurance 


 


4

















 


The
Pledgers shall, within their capacity as shareholders of the Company and taking
into account the powers associated therewith, promptly do whatever the Pledgee
requires: 


 


(a)          to create and perfect
the Pledge (including but not limited to executing an additional deed of pledge
in the form of this Deed if the Pledge should not cover future Shares and/or
Dividends); 


 


(b)         to facilitate the realisation of the Pledged
Assets or the exercise of the Pledge or any rights vested in the Pledgee,
including making any registration and giving any notice, order or direction. 


 


4.               PLEDGED ASSETS 


 


4.1         Dividends before enforcement



 


Subject
to Clause 4.2 (Dividends after enforcement), the Pledgors are entitled to
receive and retain any Dividends. The Pledgee grants the Pledgors permission
(as referred to in Section 3:246(4) Civil Code) to receive such Dividends. 


 


4.2         Dividends after enforcement 


 


At
any time while an Enforcement Event is continuing the Pledgee may notify the
Pledgors (with a copy to the Company and Pan Fish) that the right to receive
Dividends and, to the extent allowed by law, any other right in respect of
Dividends shall from then on vest in the Pledgee and upon dispatch of such
notice those rights shall vest exclusively in the Pledgee. 


 


5.               GENERAL UNDERTAKINGS 


 


5.1         No Prejudice 


 


The
Pledgors shall not do, or permit to be done, anything which could prejudice the
Pledge.


 


5.2         Security


 


The Pledgors shall not
create or permit to subsist any security right over any Pledged Asset.


 


5.3         Notification 


 


If
any receiver, bailiff or other person takes possession or makes any claim in
respect of any Pledged Assets (or attempts or expresses an intention to do so),
the Pledgors shall: 


 


(a)          promptly notify that person of the Pledge
(and, in the case of an oral notification, confirm it in writing); and 


 


(b)         promptly notify the Pledgee. 


 


6.               REPRESENTATIONS AND
WARRANTIES 


 


(a)          The Pledgors, each with respect to the Shares
owned by it, as at the date of this Deed:


 


(i)    the Pledgors have the full and unencumbered legal and beneficial title
tot he Shares;


 


(ii)   other than the obligations of Pledgors under the Share Purchase
Agreement, Pledgors have no obligations to deliver the Shares to third parties,
nor are any (restrictive) rights assigned to the Shares; 


 


(iii)  the
Pledgors have (and will continue to have) the power to establish a first ranking
right of pledge on the Shares to the Pledgee; 


 


5

















 


(iv)      all resolutions and approvals required for
the establishment of a first right of pledge on the Shares by the Pledgors for
the benefit of the Pledgee have been approved or obtained;


 


(b)         The Company warrants that:


 


(i)             the Company is a public limited liability
company, founded under the laws of the Netherlands;


 


(ii)          the Company has not been dissolved, nor has a
resolution to dissolve the Company been taken or a proposal submitted for this
purpose. The Company has not been adjudicated bankrupt, is not insolvent and
nor have petitions in bankruptcy or for the granting of a suspension of payment
been filed (or are expected to be);


 


(iii)       the register of shareholders has been kept
fully up to date.


 


7.               ENFORCEMENT


 


7.1         When enforceable


 


As
between Pan Fish, the Pledgors and the Pledgee, the Pledge shall be enforceable
and exercisable while an Enforcement Event is continuing.


 


7.2         Recovery from payments
received


 


As
between the Pledgee and Pan Fish:


 


(a)          Where the Pledgee has received Dividends in the form of cash it may:


 


(i)             apply those Dividends without prior notice in
satisfaction of any Secured Liabilities which are due in accordance with Clause
8 (Application of proceeds); and


 


(ii)          to the extent that, in receiving Dividends,
the Pledgee obtains a currency
other than that of the Secured Liabilities, it may demand that the Secured
Liabilities be paid in the currency collected (and in that case the conversion
of the currency of the Secured Liabilities shall take place at a market rate of
exchange in the Pledgee’s usual course of business).


 


(b)         The
Pledgee shall not be required to notify Pan Fish of the exercise of its rights
under paragraph (a) above.


 


7.3         Power of sale


 


(a)          If an Enforcement Event is continuing and all
or part of the Secured Liabilities are due:


 


(i)             (without prejudice to Clause 7.2) (Recovery
from payments received) the Pledgee may sell all or part of the Pledged Assets
and apply the proceeds in satisfaction of the Secured Liabilities in accordance
with Clause 7.2 (Recovery from payments received) (including Clause
7.2(a)(ii)); and


 


(ii)          the Pledgors shall ensure that any of its
corporate bodies whose approval is required in connection with such sale,
grants its approval without delay.


 


(b)         The Pledgee shall be required to notify the
Pledgors or those who have a limited right (beperkt recht) on or have made an
attachment (beslag) in respect of any Pledged Assets of any proposed or
completed sale.


 


(c)          Only the Pledgee shall have the right to make
an application to the court for a different method of sale, as referred to in
Section 3:251(1) Civil Code.


 


6

















 


(d)         To the extent permitted under the laws of the
Netherlands and the articles of association of the Company, the Pledgors hereby
irrevocably waive, renounce and agree not to exercise any pre-emption rights or
rights of first refusal upon a sale by the Pledgee, which waiver the Pledgee
accepts.


 


(e)          The Company shall do all such things and
shall provide a potential buyer all such information as reasonably required by
the Pledgee to enable the Pledgee to sell the Shares pursuant to this Clause 7.3.


 


(f)            Pan Fish and the Pledgos specifically agree that
after a sale of the Shares to a third party pursuant to Clause 7.3 of
the Share Purchase Agreement or pursuant to Clause 7 of this Deed, as the case
may be, the Pledgors shall be fully discharged from their obligations under the
Share Purchase Agreement to deliver the Shares to Pan Fish.


 


8.               APPLICATION OF PROCEEDS


 


All
amounts received or recovered by the Pledgee in exercise of its rights under this
Deed shall, subject to the rights of any creditors having priority, be applied
in the order provided in the Facility Agreement.


 


9.               LIABILITIES


 


(a)          The Pledgee shall not be liable to the Pledgors
or Pan Fish for damage suffered by the Pledgors or Pan Fish as a result of the
Pledgee exercising or not exercising its rights under this Deed in connection
with the performance of this Deed, except to the extent caused by its own gross
negligence or wilful misconduct.


 


(b)         Pan Fish shall indemnify the Pledgee, the
Pledgors and any Secured Party against any claims made by any governmental
authority or any other third party in connection with the creation of the
Pledge and against any damage suffered and costs incurred by the Pledgee or any
Secured Party in connection with such claims except to the extent caused by its
own gross negligence or wilful misconduct or that of its directors, officers,
employees or agents.


 


(c)          The Pledgee shall use its reasonable efforts
to mitigate the costs and losses referred to above.


 


10.         DISCHARGE OR TERMINATION OF
SECURITY UPON TRANSFER OF SHARES


 


The
Pledgee agrees to relinquish (opzeggen, as
referred to in Section 3:81(2.d.) Civil Code)) the Pledge created under this
Deed and terminate this Deed in the event of a transfer by Pledgors of the
Shares to Pan Fish pursuant to Clause 6.3 of the Share Purchase Agreement or to
a third party pursuant to Clause 7.3 of the Share Purchase Agreement or Clause
7 of this Deed, as the case may be. The Pledgee may elect, at its own
discretion, not to relinquish the Pledge and terminate this Deed, provided (i)
it informs Pledgors thereof in writing at least ten Business Days prior to the
date of transfer of Shares referred to in this Clause 10, and (ii) the Pledgee
fully discharges Pledgors, upon transfer of the Shares, from their obligations
under this Deed and indemnifies Pledgors for any damages suffered by them as a
result of or in connection with the Shares being transferred subject to the
Pledge. The Pledgee acknowledges and agrees that it 


 


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must
fulfil its obligations under this Clause 10 irrespective of the fact whether or
not the Secured Liabilities have been irrevocably paid in full. 


 


11.         REMEDIES OR TIME 


 


11.1 Remedies


 


The
rights, powers and remedies provided by this Deed are cumulative and are not,
nor are they to be construed as, exclusive of any rights, powers and remedies
provided by law. 


 


11.2   Time


 


No
failure on the part of the Pledgee to exercise any of the rights, powers and
remedies provided by this Deed or by law (collectively the “Rights”) shall
operate as a waiver thereof, nor shall any single or partial waiver of any of
the Rights preclude any further or other exercise of that one of the Rights
concerned or the exercise of any other of the Rights. 


 


12.         ILLEGALITY, UNENFORCEABILITY,
RECISION, AMENDMENT 


 


12.1   Illegality and unenforceability 


 


If
a provision of this Deed is or becomes illegal or unenforceable in any
jurisdiction, that shall not affect the legality or enforceability of any other
provision of this Deed and the legality or enforceability in other
jurisdictions of that or any other provision of this Deed. 


 


12.2   Recision


 


This
Deed may not be rescinded in whole or in part.


 


12.3 Amendment


 


This
Deed may only be amended or supplemented in writing. 


 


13.         GOVERNING LAW AND
JURISDICTION 


 


13.1 Governing law 


 


This
Deed is governed by Dutch law. 


 


13.2 Jurisdiction 


 


Save
as provided for in article 13.3, a dispute arising out of or in connection with
this Deed (including a dispute regarding the existence, validity or termination
of this Deed) shall be settled by arbitration in the Netherlands in accordance
with the rules of arbitration of the Netherlands Arbitration Institute (‘Nederlands
Arbitrage Instituut’). The tribunal shall comprise three arbitrators and shall
be located in Amsterdam, the Netherlands. The procedure shall be conducted in
the English language in accordance with the rules of law (“regelen des rechts’).



 


13.3   Court


 


Notwithstanding
article 1 3.2, Pledgee shall have the exclusive right to submit to the
competent court in Amsterdam any dispute arising out or in connection with this
Deed which solely regards the Pledgee and Pan Fish. 


 


The appearer is known to me, notary. THIS DEED, drawn up, has been
executed at Amsterdam, on the day and year mentioned in the heading in this
deed. 


 


The contents of this deed were stated and explained in substance to the
appearer. 


 


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The appearer then declared
to be well informed on and to agree with the contents of this deed and not to
care for a reading out in full. Immediately after partial reading, the appearer
and I, notary, signed this deed. W.s.: J.W.F. ter Burg; A.A. Voorneman.


 


 


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