execution copy Dated August 2008 THE ROYAL BANK OF SCOTLAND GROUP PLC and BANCO SANTANDER S.A. and FORTIS N.V. AND FORTIS SA/NV and RFS HOLDINGS B.V.
EXHIBIT
4.8
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and
BANCO
SANTANDER S.A.
and
FORTIS
N.V. AND FORTIS SA/NV
and
RFS
HOLDINGS B.V.
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relating to the Consortium and Shareholders' Agreement
dated 28 May 2007 between The Royal Bank of Scotland Group PLC, Banco
Santander S.A., Fortis N.V. and Fortis SA/NV and, by accession, Fortis
Nederland (Holding) N.V., and RFS Holdings B.V. (as supplemented and
amended by a Supplemental Consortium and Shareholders’ Agreement dated 17
September 2007).
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execution
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This Amendment Agreement is made on June
2008 between:
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(1)
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THE ROYAL BANK
OF SCOTLAND GROUP PLC, a company incorporated in
Scotland (registered no. SC45551), whose registered office is at
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(“RBS”);
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(2)
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BANCO SANTANDER
S.A., (formerly known as Banco Santander
Central Hispano, S.A.) a company incorporated in
Spain (registered at the Cantabria Commercial
Registry), whose
registered office is at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ (“Santander”);
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(3)
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FORTIS N.V., a company
incorporated in The Netherlands (registered no. 300.72.145 at the Utrecht
Trade Register), whose registered office is at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and FORTIS SA/NV, a company
incorporated in Belgium (registered no. 0.451.406.524), whose registered
office is at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇, ▇▇▇▇▇▇▇ and FORTIS BANK NEDERLAND (HOLDING)
N.V. a company incorporated in The Netherlands (registered no.
30080248), whose registered office is at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (collectively
“Fortis”); and
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(4)
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RFS HOLDINGS
B.V., a company
incorporated in the
Netherlands (registered no. 34273228), whose registered office is at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (“RFS
Holdings”).
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Whereas:
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(A)
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On 28 May
2007, the parties entered into a consortium and shareholders’ agreement
relating to the Investors investment in RFS Holdings and the parties then
supplemented and amended that agreement on 17 September 2007 by entering
into a supplemental agreement (that agreement as amended and supplemented
being the “CSA”).
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(B)
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Part 2 of
Schedule 3 to the CSA sets out the RBS Acquired Businesses, the Santander
Acquired Businesses and the Fortis Acquired Businesses and Part 3 of
Schedule 3 to the CSA sets out the Retained Businesses. Certain changes
require to be made Part 2 of Schedule 3 to the CSA and Part 3 of Schedule
3 to the CSA to reflect agreed changes to the RBS Acquired Businesses, the
Santander Acquired Businesses, the Fortis Acquired Businesses and the
Retained Businesses.
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(C)
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Paragraph 3
of Part D of Schedule 5 to the CSA sets out that no Director shall be
entitled to indemnification from RFS Holdings. The parties wish to delete
this paragraph in order for the provision for the indemnification of
Directors by RFS Holdings may be
made.
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(D)
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Therefore the
parties wish to amend the CSA by this Amendment Agreement and note their
agreement that RBS, Santander and Fortis should seek to effect the changes
contemplated in this Amendment Agreement in the
Articles.
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It is agreed as
follows:
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1
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Definitions
and Interpretations
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1.1
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Definitions
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In this Amendment
Agreement (including the Recitals hereto), unless the subject or context
otherwise requires, words defined in the CSA shall have the same meanings when
used herein.
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1.2
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Interpretation
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The provisions of
Clause 1 of the CSA shall apply to this Supplemental Agreement mutatis
mutandis.
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1.3
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Clauses,
recitals and schedules
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References to
clauses, recitals and schedules are to clauses of, and recitals and schedules
to, the CSA unless the context otherwise requires.
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2
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Specific
Amendments to the CSA
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The parties agree
that the CSA is hereby amended as follows:
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2.1
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Schedule 3 –
Part 2 of the CSA shall be deleted in its entirety and a new Schedule 3 -
Part 2 shall be inserted as set out in Schedule A to this Amendment
Agreement;
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2.2
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Schedule 3 –
Part 3 of the CSA shall be deleted in its entirety and a new Schedule 3 -
Part 3 shall be inserted as set out in Schedule B to this Amendment
Agreement; and
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2.3
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Paragraph 3
of Schedule 5 – Part D of the CSA shall be deleted in its
entirety;
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and that the
amendments in Clauses 2.1 and 2.2 above shall be deemed to have had effect as it
so varied on the original execution of the CSA on 28 May 2007.
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3
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Amendment
to the Articles
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As soon as
reasonably practicable after the date of this Amendment Agreement, each of RBS,
Santander and Fortis agree to use their best endeavours to effect amendments to
the Articles to the extent necessary such that the Articles are consistent with
the terms of this Amendment Agreement.
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Variation
of rights
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The parties
acknowledge and agree that the Specific Amendments to the CSA listed in Clause
2.1 and 2.2 and Schedules A and B of this Amendment Agreement and certain of the
amendments to the Articles contemplated by Clause 3 will, taken together, vary
the rights attached to the R Shares held by RBS, the S Shares held by
Santander, the F Shares held by Fortis and the O Shares held by RBS, Santander
and Fortis in the capital of the Company.
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5
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Conditions
precedent
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5.1
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This
Amendment Agreement is conditional upon the approval of the changes to the
CSA as agreed in this Amendment Agreement by the DNB in accordance with
the declarations of no objection issued by the Dutch Minister of Finance
to the Company, Santander, Fortis and RBS dated 17 September
2007
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5.2
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The changes
to Part 2 of Schedule 3 to the CSA relating to Private Clients India and
Private Clients Indonesia are conditional upon the completion of the sale
of New HBU II N.V. and IFN Finance B.V. by ABN AMRO Bank
N.V.
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6
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General
Provisions
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6.1
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The provisions of Clauses 16
(Confidentiality and Announcements), 19 (Entire Agreement and Non
Reliance), 20 (General) and 22 (Governing Law and Arbitration) of the CSA
shall apply mutatis
mutandis to this Amendment Agreement as if expressly set out
herein.
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6.2
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Except as amended by this Amendment
Agreement, the CSA shall continue in full force and
effect.
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In Witness whereof this
Supplemental Agreement has been entered into the day and year first before
written.
By:
BANCO
SANTANDER S.A.
By:
FORTIS
N.V. and FORTIS SA/NV
By:
FORTIS
BANK NEDERLAND (HOLDING) N.V.
By:
RFS
HOLDINGS B.V.
By:
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Schedule
A
Schedule
3 - Part 2
The
Acquired Businesses
The
assets of, and Liabilities attributable to, Business Units or any business
comprise, subject to Clause 5 and the remaining provisions of this Schedule 3,
those Business Assets and Liabilities reflected in the ABN AMRO Accounts as
being assets and Liabilities of such Business Unit or business.
Part
1. RBS Acquired Businesses
The
Business Assets of the following businesses and Business Units of the ABN AMRO
Group:
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BU
North America (pages 111 to 113 of the ABN AMRO
Accounts)
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BU
Global Clients (pages 53, 117 to 119 and 158 of the ABN AMRO Accounts,
excluding the Brazil Global Clients Business).
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BU
Asia (pages 115 to 117 of the ABN AMRO Accounts) excluding the interest in
Saudi Hollandi
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BU
Europe (excluding Antonveneta) (pages 109 to 111 of the ABN AMRO Accounts,
excluding the Antonveneta profit and loss account and balance
sheet)
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Former
Dutch Wholesale Clients (reported under BU Netherlands, pages 107 to 109
of the ABN AMRO Accounts, in the ABN AMRO Accounts, as explained on page
106 of the ABN AMRO Accounts and the ABN AMRO press release of 7 April
2006).1
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Former
WCS Clients outside Brazil within BU Latin America (reported under BU
Latin America, pages 113 to 115 of the ABN AMRO Accounts, as explained in
the ABN AMRO press release of 7 April 2006).
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Private
Clients India and Private Clients Indonesia
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Interest
in Prime Bank, Pakistan
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Where:
“Brazil Global Clients
Business” means the ABN AMRO BU Global Clients business (as defined
above) as carried on in Brazil, to the extent that such business is comprised
of:
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Fortis and RBS acknowledge that they cannot identify accurately with the
currently available information the clients to be allocated to RBS hereunder.
Fortis will as soon as practicable after the acquisition submit to RBS (i) an
analysis of the relevant corporate client portfolio of BU The Netherlands and a
proposal consistent with the agreed criteria, as well as (ii) one or more
proposals for an alternative split of the aforesaid portfolio if deemed
practical. Fortis and RBS will negotiate in good faith to reach agreement on the
clients to be allocated to RBS accordingly as well as, in the event a different
split of clients is agreed, an appropriate value adjustment. In the absence of
agreement, the matter shall be determined in accordance with clause 9 of the
Agreement.
In relation to the Amsterdam dealing
room, a split of the infrastructure shall be agreed between Fortis and RBS in
order to allow Fortis to continue servicing its clients. It is also acknowledged
by RBS, Fortis and Santander, that the physical operation of transaction banking
and Global Markets shall be allocated to and owned by the relevant unit which is
part of the to be Acquired Business. Dedicated systems supporting
transaction banking activities globally, including international cash
management, international payments and trade finance, shall continue to be
available for the Investors either on a shared services basis, or by
allowing any such Investor(s) to make the copy or copies required to continue
its activities.
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(a)
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the
domestic revenues generated and booked in Brazil by Brazilian-domiciled
global clients;
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(b)
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the
off-shore booked revenues generated in Brazil by Brazilian-domiciled
global clients and by Brazilian-domiciled subsidiaries of
non-Brazilian-domiciled global clients;
and
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(c)
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the
domestic revenues generated and booked in Brazil by Brazilian-domiciled
subsidiaries of non-Brazilian-domiciled global
clients,
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but
for the avoidance of doubt does not include BU Global Clients business revenues
generated outside Brazil by Brazilian-domiciled global clients or
Brazilian-domiciled subsidiaries of non-Brazilian-domiciled global
clients.
Part
2. Santander Acquired Businesses
The
Business Assets of the following businesses and Business Units of the ABN AMRO
Group:
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BU
Latin America (excluding all former WCS Clients outside of Brazil) (pages
113 to 115 of ABN AMRO Accounts)
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BU
Antonveneta (pages 109 to 111 of ABN AMRO Accounts, excluding everything
but the Antonveneta accounts)
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Interbank
and DMC Consumer Finance, Netherlands (reported under BU Netherlands in
pages 107 to 109 of the ABN AMRO Accounts but unidentifiable until full
access to ABN AMRO internal accounting records is available. It is a
business in a sale process by ABN).
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Brazil
Global Clients Business
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Asset
Management Brazil
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Where:
“Asset Management Brazil” means
ABN AMRO Asset Management Distibuidora de Titulos e Valores Mobiliarios S.A.
less the Carve-out Assets (as defined in a Heads of Agreement between Santander
and Fortis dated 26 February 2008).
Part
3. Fortis Acquired Businesses
The
Business Assets of the following businesses and Business Units of the ABN AMRO
Group:
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BU
Private clients (excluding Latin America) (pages 119 to 120 of the ABN
AMRO Accounts, excluding the private banking business LatAM and excluding
Private Clients India and Private Clients Indonesia)
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BU
Netherlands (excluding former Dutch Wholesale Clients and Interbank DMC
Consumer Finance) (pages 107 to 109 of ABN AMRO Accounts, excluding former
Dutch Wholesale Clients and Interbank Consumer Finance)
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BU
Asset Management (excluding Asset Management Brazil) (pages 121 to 122 of
ABN AMRO Accounts)
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The
ABN AMRO Trade Marks (as defined in paragraph 1 of Part 7 of this Schedule
3)
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Part
4 Re- Allocations
The following Business Assets which
are reflected in the Acquired Businesses have been re-allocated from the
different Acquired Businesses and the Retained Businesses respectively with an
effective date for the purpose of the allocation as follows:
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Business
Asset
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From
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To
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Effective
date
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Private
Clients India and Indonesia
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Fortis
Acquired Business
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RBS
Acquired Business
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1
January 2008
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Interest
in Prime Bank
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Retained
Business
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RBS
Acquired Business
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10
October ▇▇▇▇
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▇▇▇▇▇▇
Global Clients
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RBS
Acquired Business
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Santander
Acquired Business
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10
October 2007
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Asset
Management Brazil
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Fortis
Acquired Business
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Santander
Acquired Business
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10
October 2007
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Schedule B
Schedule
3 - Part 3
The
Retained Businesses
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1.
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Retained
Businesses
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ABN
AMRO interest in Capitalia
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BU
Private Equity
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ABN
AMRO interest in Saudi Hollandi
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The
costs of eliminating central group functions and, if any, unallocated
property and unallocated costs
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Unallocated
pension fund deficit or surplus, to the extent not otherwise allocated to
an Acquired Business under Part 5 of Schedule 3
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Other
unallocated assets and Liabilities (including unallocated contingent
Liabilities)
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For
the effective date of certain re-allocations of Business Assets out of the
Retained Businesses to certain Acquired Businesses a reference is made to
Schedule 3 – Part 2.
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