ARTICLES OF INCORPORATION
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OF
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STATIA TERMINALS GROUP N.V.
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NAME, SEAT AND DURATION
ARTICLE 1
1. Name. The name of the company (the "Company") is: Statia Terminals
Group N.V.
2. Statutory Seat, Branches and Branch Offices. The Company has its
statutory seat at Curacao, Netherlands Antilles. The Company may have
one or more branches and/or branch offices outside of Curacao,
Netherlands Antilles.
3. Transfer of Statutory Seat Under Applicable Ordinance. The Company
may transfer its statutory seat to another country and assume the
status of a legal entity formed under the laws of that country in
accordance with the Netherlands Antilles Ordinance on Transfer of
Seat to Third Countries, pursuant to a resolution to that effect
adopted by the Board of Directors (as defined in paragraph 1 of
article 9 hereof), but only if it deems such transfer of seat in the
best interests of the Company, in conformity with these Articles of
Incorporation, with unanimous vote in favor of the motion. In
connection with such transfer, the Board of Directors shall seek, as
soon as possible thereafter, the approval of (i) the meeting of
holders of Series A Stock, Series B Stock and Series C Stock (each as
defined herein) pursuant to a vote in separate meetings (as referred
to in article 18 hereof), and (ii) the General Meeting (as defined in
paragraph 1 of article 12 hereof) thereto.
4. Duration. The Company has been constituted for an indefinite period
of time.
OBJECTS
ARTICLE 2
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1. Objects. The objects of the Company are to incorporate, to
participate in, hold, manage, operate and finance, on an incidental
basis only, entities, legal or otherwise, belonging to the group to
which the company belongs or with respect to which it, directly or
indirectly, holds shares.
2. Related Activities. The Company is entitled to do all that may be
useful or necessary for the attainment of its objects or that is
connected therewith in the widest sense, including (a) to participate
in any other venture or company, and (b) to enter into any agreement,
contract or other arrangement in connection with its objects.
CAPITAL AND SHARES
ARTICLE 3
1. Authorized Capital (Amount). The authorized capital of the Company
amounts to Thirty Seven Thousand United States Dollars (US
$37,000.00).
2. Authorized Capital (Shares). The authorized capital consists of three
hundred seventy thousand (370,000) shares of stock, each with a par
value of Ten United States Cents (US $0.10), and is divided into one
hundred thousand five hundred (100,500) shares of common stock (the
"Common Stock") and two hundred sixty nine thousand five hundred
(269,500) shares of preferred stock (the "Preferred Stock"). The
Preferred Stock is divided into twenty thousand (20,000) shares of 8%
Series A Cumulative Preferred Stock (the "Series A Stock"), ten
thousand (10,000) shares of 8% Series B Cumulative Preferred Stock
(the "Series B Stock"), ten thousand (10,000) shares of 8% Series C
Stock (the "Series C Stock"), twenty thousand (20,000) shares of 2%
Series D Preferred Stock (the "Series D Stock") and two hundred and
nine thousand five hundred (209,500) shares of 2% Series E Preferred
Stock (the "Series E Stock"). The Series A Stock shall be numbered A1
through A20,000, the Series B Stock shall be numbered B1 through
B10,000, the Series C Stock shall be numbered C1 through C10,000, the
Series D Stock shall be numbered D1 through D20,000, and the Series E
Stock shall be numbered E1 through E209,500. The Series A Stock, the
Series B Stock, the Series C Stock and the Series D Stock shall be
non-voting, unless and insofar as provided otherwise in these
Articles of Incorporation. The Common Stock and the Series E Stock
shall have full voting rights. At the time
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of this amendment, all currently issued and outstanding shares in the
capital of the Company, each with a par value of one United States
Dollar (US$ 1.00), will be reclassified as follows: Six thousand
(6,000) shares into sixty thousand (60,000) shares of Common Stock,
each with a par value of Ten United States Dollar Cents (US$ 0.10),
numbered 1 through 60,000, all of which are outstanding. At the time
of this amendment, twenty thousand (20,000) shares of Series A Stock,
numbered A1 through A20,000, ten thousand (10,000) shares of Series B
Stock, numbered B1 through B10,000, ten thousand (10,000) shares of
Series C Stock, numbered C1 through C10,000, twenty thousand (20,000)
shares of Series D Stock, numbered D1 through D20,000 and forty one
thousand (41,000) shares of Series E Stock numbered E1 through
E41,000, as well as twenty-two thousand (22,000) shares of Common
Stock, numbered 60,001 through 82,000, are issued and outstanding.
3. Definitions of "Shares", "Shareholders", "Senior Preferred Stock",
"Senior Holders" and "Series". In these Articles of Incorporation,
unless specifically stated otherwise herein, the term "shares" means,
as applicable, shares of Common Stock and/or shares of one or more
series of Preferred Stock, and the term "shareholders" means holders
of shares of Common Stock and holders of shares of Preferred Stock.
The Series A Stock, the Series B Stock and the Series C Stock shall
together or separately, as applicable, be referred to as the "Senior
Preferred Stock", and the holders of Senior Preferred Stock shall
mean the holders of Series A Stock, the holders of Series B Stock
and/or, as applicable, the holders of Series C Stock, jointly, also
referred to as the "Senior Holders" or each, a "Senior Holder",
unless specifically stated otherwise herein. The Series A Stock, the
Series B Stock and the Series C Stock shall each be referred to as a
"Series" of Senior Preferred Stock.
4. Relative Priorities of Shares. The Series A Stock, the Series B Stock
and the Series C Stock shall be identical and pari passu in all
respects to one another and shall be senior in all respects to the
Series D Stock, the Series E Stock and the Common Stock, except as
specifically provided otherwise in these Articles of Incorporation.
The Series D Stock shall be senior in all respects to the Series E
Stock and the Common Stock, except as specifically provided otherwise
in these Articles of Incorporation. The Series E Stock shall be
senior in all respects to the Common Stock in all respects, except as
specifically provided otherwise in these Articles of Incorporation.
5. Repurchase, Redemption of Shares; Definitions of "Repurchase" and
"Redemption". Subject to the provisions of article 5 hereof, the
Company is entitled to repurchase, acquire and redeem fully paid up
shares in its own capital for valuable consideration, provided that
at all times at least twenty percent (20%) of the authorized capital
of the Company in the form of shares with full voting power remains
outstanding with persons other than the Company itself. The Company
is entitled to cancel repurchased and acquired shares in its own
capital. Notwithstanding the foregoing, shares of Series D Stock,
Series E Stock and Common Stock shall not be acquired, repurchased,
redeemed or canceled by the Company, directly or indirectly, so long
as any shares of Senior
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Preferred Stock are issued and outstanding, unless the holders of
each such Series of Senior Preferred Stock have approved the same in
a Series meeting or by written consent in the manner as described in
paragraph 5 of article 18 hereof. Once acquired, repurchased,
redeemed, or canceled, shares of Series D Stock or Series E Stock
shall not be resold or reissued by the Company and shall be (or shall
remain, if applicable) canceled. For the purpose of these Articles of
Incorporation, the expressions "redeem" or "redemption" when used
with respect to the redeeming or redemption of shares of Senior
Preferred Stock shall mean to refer to the repurchase by and the sale
of such stock by the Senior Holders thereof to the Company in
accordance with the provisions of article 5 hereof.
6. Treatment of Treasury Shares. The Company may not derive any rights
from its treasury shares. For the purpose of determining the issued
and outstanding capital, such shares shall not be included as part of
such capital.
7. Cancellation of Shares. The Board of Directors may, without
instruction or authorization of the General Meeting, cancel shares
which are in the possession of the Company, subject to paragraph 5 of
this article 3.
ISSUANCE OF SHARES; LIQUIDATION PREFERENCE
OF PREFERRED STOCK
ARTICLE 4
1. Registered Form. The shares shall be issued in registered form only.
2. Consideration; Fractional Shares. Shares shall be issued at or above
par. Fractional shares may be issued. Payments on shares may be made
in cash and/or in kind.
3. Terms and Conditions of Issuance. Subject to the terms of these
Articles of Incorporation, shares may be issued at such times, on
such terms and conditions and for such consideration as may be
determined from time to time by the Board of Directors.
4. Liquidation Preference of Preferred Stock; Definition of "Initial
Issuance Date". In the event of a Liquidation Event (as described in
paragraph 6 of article 17 hereof), the holder of each share of
Preferred Stock shall be entitled to a specific amount with respect
to such share (the "Liquidation Preference" of such share). On the
date of the initial issuance of shares of the Senior Preferred Stock
(the "Initial Issuance Date"), the Liquidation Preference of each
share of Preferred Stock shall be One Thousand United States Dollars
(US$1,000.00).
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5. Company may not Subscribe for Shares. When issuing shares, the
Company shall not be entitled to subscribe for its own shares.
REDEMPTION AND REPURCHASE OF SHARES OF SENIOR PREFERRED STOCK;
SERIES B EXCHANGE OPTION AND SERIES D EXCHANGE OPTION
ARTICLE 5
1. Senior Preferred Mandatory Redemption.
1.1. General. On the Series A Mandatory Redemption Date (as defined
below), the Company shall, insofar as legally funds are available
therefor, redeem all the shares of Series A Stock (the "Series A
Mandatory Redemption"). On each Series B Stock Mandatory Redemption
Date (as defined below), the Company shall, insofar as legally funds
are available therefor, redeem all (or, in certain circumstances
provided for in these Articles of Incorporation, a portion of) the
shares of Series B Stock (the "Series B Mandatory Redemption"). On
each Series C Stock Mandatory Redemption Date (as defined below), the
Company shall, insofar as legally funds are available therefor,
redeem all (or, in certain circumstances provided for in these
Articles of Incorporation, a portion of) the shares of Series C Stock
(the "Series C Mandatory Redemption"). The Series A Mandatory
Redemption, the Series B Mandatory Redemption and the Series C
Mandatory Redemption may sometimes collectively be referred to as the
"Senior Preferred Mandatory Redemption".
1.2. Senior Preferred Mandatory Redemption Prices. The redemption price
per share of Series A Stock (the "Series A Mandatory Redemption
Price") in a Series A Mandatory Redemption shall equal (i) the
Liquidation Preference therefor plus (ii) the aggregate per share
Unpaid Dividend Amount (as defined in paragraph 2.9 of article 16
hereof) in the Unpaid Dividend Account (as defined in paragraph 2.2
of article 16 hereof) therefor plus (iii) an amount equal to any
accrued but unpaid dividends per share of Series A Stock to the
Series A Mandatory Redemption Date to the extent that such accrued
and unpaid dividends have not already been recorded in the Unpaid
Dividend Account therefor. The redemption price per share of Series B
Stock (the "Series B Mandatory Redemption Price") in a Series B
Redemption shall equal (i) the Liquidation Preference therefor plus
(ii) the aggregate per share Unpaid Dividend Amount in the Unpaid
Dividend Account therefor plus (iii) an amount equal to any accrued
but unpaid dividends per share of Series B Stock to the Series B
Mandatory Redemption Date to the extent that such accrued and unpaid
dividends have not already been recorded in the Unpaid Dividend
Account therefor. The redemption price per share of Series C Stock
(the "Series C Mandatory
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Redemption Price") in a Series C Mandatory Redemption shall equal (i)
the Liquidation Preference therefor plus (ii) the aggregate per share
Unpaid Dividend Amount in the Unpaid Dividend Account therefor plus
(iii) an amount equal to any accrued but unpaid dividends per share
of Series C Stock to the Series C Mandatory Redemption Date to the
extent that such accrued and unpaid dividends have not already been
recorded in the Unpaid Dividend Account therefor. The Series A
Mandatory Redemption Price, the Series B Mandatory Redemption Price
and the Series C Mandatory Redemption Price may sometimes
collectively or individually be referred to as the "Senior Preferred
Mandatory Redemption Price".
1.3. Senior Preferred Mandatory Redemption Dates.
1.3.1. Series A Mandatory Redemption Date. The "Series A Mandatory
Redemption Date" shall mean the earliest of (i) the first anniversary
of the stated maturity date of those certain 11 3/4% First Mortgage
Notes due 2003 issued by Statia Terminals International N.V., a
Netherlands Antilles company and a wholly owned subsidiary of the
Company, and Statia Terminals Canada Incorporated, a Nova Scotia
company and an Affiliate (as defined below) of the Company (the
"Senior Notes"), (ii) the first anniversary of the first date on
which not more than Ten Million United States Dollars (US
$10,000,000.00) aggregate principal amount of the Senior Notes is
outstanding, other than any Senior Notes held or beneficially owned
by the Company or any Affiliate thereof, and (iii) the date five (5)
days following receipt by the Company of a notice from or on behalf
of the holders of a majority of the shares of Series A Stock then
outstanding and requesting such redemption, such date to be the
Series A Mandatory Redemption Date with respect to all the shares of
Series A Stock.
1.3.2. Series B Mandatory Redemption Date. The "Series B Mandatory
Redemption Date" shall mean the earliest of (i) the second
anniversary date of the Initial Issuance Date, (ii) the first
anniversary of the first date on which not more than Ten Million
United States Dollars (US $10,000,000.00) aggregate principal amount
of the Senior Notes is outstanding, other than any Senior Notes held
or beneficially owned by the Company or any Affiliate thereof, (iii)
the date five (5) days following the giving by the Company to the
holders of the Series B Stock of a notice stating that it is a
"Series B Special Mandatory Redemption Notice", such date to be the
Series B Mandatory Redemption Date with respect to the shares
relating thereto, and (iv) the date five (5) days following receipt
by the Company of a notice from or on behalf of the holders of a
majority of the shares of Series B Stock then outstanding and
requesting such redemption, such date to be the Series B Mandatory
Redemption Date with respect to all the shares of Series B Stock.
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1.3.3. Series C Mandatory Redemption Date. The Series C Mandatory Redemption
Date shall mean the earliest of (i) the first anniversary of the
stated maturity date of the Senior Notes, (ii) the first anniversary
of the first date on which not more than Ten Million United States
Dollars (US $10,000,000.00) aggregate principal amount of the Senior
Notes is outstanding, other than any Senior Notes held or
beneficially owned by the Company or any Affiliate thereof, (iii) the
date five (5) days following the giving by the Company to the holders
of the Series C Stock of a notice stating that it is a "Series C
Special Mandatory Redemption Notice", such date to be the Series C
Mandatory Redemption Date with respect to the shares relating thereto
and (iv) the date five (5) days following receipt by the Company of a
notice from or on behalf of the holders of at least a majority of the
shares of Series C Stock then outstanding and requesting such
redemption, such date to be the Series C Mandatory Redemption Date
with respect to all the shares of Series C Stock.
1.4. Definitions of "Senior Preferred Mandatory Redemption Date",
"Affiliate" and "Person". The Series A Mandatory Redemption Date, the
Series B Mandatory Redemption Date and the Series C Mandatory
Redemption Date may sometimes be collectively referred to as the
"Senior Preferred Mandatory Redemption Date". An "Affiliate" shall
mean any Person (as defined below) directly or indirectly
controlling, or controlled by, or under direct or indirect common
control with such specified Person; "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and
"under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by
agreement or otherwise. A "Person" shall mean any individual, company
(including limited liability company), partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any
other entity.
2. Senior Preferred Optional Redemption.
2.1. General. The Company shall have the option, exercisable from time to
time by a Senior Preferred Redemption Notice given pursuant to
paragraph 4 of this article 5, to redeem all but not less than all
(except as provided in the proviso to paragraph 3 of this article 5)
of the shares of Senior Preferred Stock, on any date (the "Senior
Preferred Optional Redemption Date") fixed by the Board of Directors
and as described in such notice (the "Senior Preferred Optional
Redemption").
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2.2. Senior Preferred Optional Redemption Price. The redemption price per
share of Senior Preferred Stock in a Senior Preferred Optional
Redemption (the "Senior Preferred Optional Redemption Price") shall
equal (i) the Liquidation Preference of such share plus (ii) the
aggregate per share Unpaid Dividend Amount in the Unpaid Dividend
Account therefor and (iii) an amount equal to any accrued but unpaid
dividends per share to the Senior Preferred Optional Redemption Date,
to the extent that such accrued and unpaid dividends have not already
been recorded in the Unpaid Dividend Account therefor.
3. Partial Redemption; Pro Rata Treatment of Redemptions. A redemption
by the Company of a portion of all shares of any Series of Senior
Preferred Stock shall require the consent of the Senior Holder that
holds such shares for such partial redemption. Any Senior Preferred
Mandatory Redemption involving fewer than all the shares of a Series
of Senior Preferred Stock, and any Senior Preferred Optional
Redemption shall be effected in proportion to the number of shares of
Senior Preferred Stock of the applicable Series of Senior Preferred
Stock held by each Senior Holder as indicated in the Register (as
defined in paragraph 1 of article 8 hereof) as of the date of the
sending of the Senior Preferred Redemption Notice; provided, however,
that (i) a Senior Preferred Optional Redemption resulting from the
exercise of the Company's right referred to in the second sentence of
paragraph 8 of article 8 hereof shall be effected only with respect
to the shares to which such right applies, (ii) a Senior Preferred
Optional Redemption referred to in clause (y) of paragraph 4 of this
article 5 shall be effected only with respect to the Exchanged Series
B Shares referred to in such clause (y), and (iii) a Senior Preferred
Optional Redemption referred to in clause (2) of the second sentence
of paragraph 9 of article 8 hereof shall be effected only with
respect to the shares referred to in such clause (2).
4. Senior Preferred Redemption Notice; Definition of "Senior Preferred
Optional Redemption Date"; "Senior Preferred Redemption Date" and
"Senior Preferred Redemption Price". The Company shall give written
notice of each Senior Preferred Mandatory Redemption or Senior
Preferred Optional Redemption to each holder of such Senior Preferred
Stock affected thereby (the "Senior Preferred Redemption Notice"). A
Senior Preferred Redemption Notice shall be given as follows:
(x) in the case of a Senior Preferred Optional Redemption (other
than one referred to in the following clause (y)), the
Senior Preferred Redemption Notice shall be given not fewer
than thirty (30) days and not more than sixty (60) days
before the related Senior Preferred Optional Redemption
Date;
(y) in the case of a Senior Preferred Optional Redemption with
respect to any Exchanged Series B Shares with respect to
which the holder thereof shall have
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given a Series B Exchange Notice as provided in paragraph
8.1.4 of this article 5, the Senior Preferred Redemption
Notice shall be given at any time during the thirty (30)
days after the holder of such Exchanged Series B Shares
shall have given such Series B Exchange Notice, and in such
event the Senior Preferred Optional Redemption Date shall be
the fifth (5th) Business Day (as defined in paragraph 2.3 of
article 16 hereof) following the giving of such Senior
Preferred Optional Redemption Notice; and
(z) in the case of a Senior Preferred Mandatory Redemption, the
Senior Preferred Redemption Notice shall be given within the
shortest practicable time period preceding the related
Senior Preferred Mandatory Redemption Date.
Each Senior Preferred Redemption Notice shall be irrevocable and
shall state the following:
(i) whether such redemption is a Senior Preferred Mandatory
Redemption or a Senior Preferred Optional Redemption and, if
it is a Senior Preferred Mandatory Redemption, reasonably
detailed information about the transaction that shall have
given rise to the Senior Preferred Mandatory Redemption;
(ii) the applicable Senior Preferred Mandatory Redemption Date or
Senior Preferred Optional Redemption Date (the "Senior
Preferred Redemption Date");
(iii) the applicable Senior Preferred Mandatory Redemption Price or
Senior Preferred Optional Redemption Price (the "Senior
Preferred Redemption Price");
(iv) the aggregate number of shares of Senior Preferred Stock to
be redeemed and, if fewer than all shares held by such Senior
Holder are to redeemed, the number of such shares to be
redeemed and their method of selection;
(v) that if fewer than all the shares represented by any
certificate are to be redeemed, a new certificate or
certificates representing the unredeemed shares shall be
issued without cost to the holder thereof;
(vi) that the Senior Holder must duly execute the instrument of
transfer set out on the reverse side of the certificate or
certificates representing the shares to be redeemed to the
effect that such Senior Holder transfers such shares to the
Company and that such certificate or certificates must be
surrendered for payment of the Senior Preferred Redemption
Price at the place or places for such surrender and the
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procedures applicable thereto;
(vii) that dividends on the shares to be redeemed shall cease to
accrue on the applicable Senior Preferred Redemption Date;
and
(viii) all instructions and documents necessary to enable the Senior
Holders to surrender their outstanding shares to be redeemed,
in addition to any information required by law.
Upon the giving of any Senior Preferred Redemption Notice (or, if
earlier, upon the Senior Preferred Mandatory Redemption Date), the
Company shall become obligated to redeem on the applicable Senior
Preferred Redemption Date all shares called for redemption.
5. Certain Redemption Procedures. On or after the Senior Preferred
Redemption Date applicable to any shares of Senior Preferred Stock,
each Senior Holder shall surrender each certificate or certificates
representing such shares to the Company in the manner and at a place
designated therefor in the Senior Preferred Redemption Notice, with
the reverse side of the certificate or certificates duly executed for
the purpose of the transfer of such shares to the Company in
accordance with the instructions set out in the Senior Preferred
Redemption Notice. Such manner shall include personal delivery,
registered mail and overnight delivery service of recognized
standing. Such places shall include the principal office of the
Company and a place in the borough of Manhattan in New York, New
York, United States of America.
6. Effect of Surrender and Redemption. Upon surrender of shares as
contemplated by paragraph 5 of this article 5, payment of the Senior
Preferred Redemption Price with respect to such shares shall be due
to the Senior Holder the name of which appears in the Register and on
such certificate or certificates as the owner thereof, and each
surrendered certificate shall be canceled. As of the applicable
Senior Preferred Redemption Date, unless there shall have been a
default in payment of the Senior Preferred Redemption Price, all
rights of the holders of such shares as such (except the right to
receive the Senior Preferred Redemption Price without interest) shall
cease with respect to such shares, and such shares shall no longer be
deemed to be outstanding for any purpose whatsoever (except as
aforesaid) and such shares shall be canceled thereupon.
7. Effect of Noncompliance by Senior Holders. In the event a shareholder
is required to sell and transfer and surrender its shares to the
Company pursuant to this article 5, and such shareholder refuses to
do so after receiving sufficient notification of the (intended)
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redemption or a summons to comply with the provisions in this article
5, then, as of the applicable Senior Preferred Redemption Date, such
shareholder shall no longer be entitled to exercise its (i)
shareholder's rights, including the right to attend and address
General Meetings and the right, if any, to vote thereat, and (ii)
right to collect and receive any distribution, which shall be
suspended insofar and as long as such shareholder is in default with
the referenced redemption provisions and until the redemption is
finalized pursuant to the terms of these Articles of Incorporation.
In the event the Board of Directors determines that the Senior Holder
was not in fact out of compliance with the redemption provisions set
out in the Articles of Incorporation, then the Company will reimburse
such Senior Holder promptly after demand for any losses and costs
(including reasonable attorneys' fees and disbursements) suffered or
incurred as a result thereof.
8. Series B Exchange and Series D Exchange.
8.1. Series B Exchange.
8.1.1. General; Definition of Received Series B Exchange Equity. If, at any
time on or after the Series B Mandatory Redemption Date, any shares
of Series B Stock are outstanding, each holder of any such shares
shall have the option to cause the Company to exchange (a "Series B
Exchange") any such shares (the "Exchanged Series B Shares") into
shares of Series E Stock and/or, if applicable, Series E Equivalents
(as defined below), shares of Common Stock and securities referred to
in paragraph 8.1.3 of this article 5 (such shares of Series E Stock,
Series E Equivalents, shares of Common Stock and securities being
collectively referred to as the "Received Series B Exchange Equity")
in the manner set forth in this paragraph 8.1; provided, however,
that (i) such option shall not be excercisable at any time after the
three hundred sixty fifth (365th) day after the Series B Mandatory
Redemption Date, and (ii) the Company's obligations under any such
option exercised as provided in this paragraph 8 shall be deemed
satisfied if the Company shall have effected a Senior Preferred
Optional Redemption with respect to such Exchanged Series B Shares on
or before the fifth (5th) Business Day following the thirtieth (30th)
day after the holder of such Exchanged Series B Shares shall have
given the related Series B Exchange Notice.
8.1.2. Amount of Received Series B Exchange Equity; Definitions of "Series B
Exchange Date" and "Series E Equivalents". Subject to paragraph 8.1.3
of this article 5, in each Series B Exchange, the holder of the
related Exchanged Series B Shares shall receive in exchange therefor
(i) a number of shares of Series E Stock equal to p% (as determined
below) of the number of shares of Series E Stock outstanding on the
Initial Issuance Date and/or (as the case may be) p% of the fair
value of Series E Equivalents (as defined below, the fair
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value thereof to be determined as provided below) issued on or after
the Initial Issuance Date and on or before the date of such Series B
Exchange (the "Series B Exchange Date", which shall be determined as
provided in paragraph 8.1.5 of this article 5) plus (ii) for each
share of Series E Stock so received, a number of shares of Common
Stock (the "Received Common Shares") equal to the ratio of (x) the
number of shares of Common Stock outstanding on the Initial Issuance
Date to (y) the number of shares of Series E Stock outstanding on the
Initial Issuance Date (as such ratio shall be adjusted to take into
account any stock splits, reverse stocks splits, stock dividends,
stock subdivisions and any similar event, on or after the Initial
Issuance Date). For the purpose of the foregoing,
p = 10 multiplied by the fraction t/ u;
t = number of Exchanged Series B Shares;
u = number of shares of Series B Stock outstanding on
the Initial Issuance Date (as such ratio shall be
adjusted to take into account any stock splits,
reverse stocks splits, stock dividends, stock
subdivisions and any similar event, on or after the
Initial Issuance Date)
In addition, for the purpose hereof, "Series E Equivalents" shall
mean (1) any securities (other than Received Common Shares) or other
property into which the Series E Stock shall have been exchanged,
converted or otherwise changed, and (2) other property distributed
since the Initial Issuance Date with respect to any shares of Series
E Stock or any Series E Equivalents. The foregoing shall be
determined in good faith by the Board of Directors as evidenced by a
resolution thereof furnished to each holder of Series B Stock
promptly after the time of the issuance of such Series E Equivalents.
The fair value of any Series E Equivalents (as of the time of the
applicable Series B Exchange) shall be determined in good faith by
the Board of Directors as evidenced by a resolution thereof, which
the Company shall furnish to each holder of Series B Stock promptly
after any such holder shall have requested such information;
provided, however, that the Company shall not be obligated to furnish
such information more often than four times annually.
8.1.3. "Affiliated Acquisition Adjustment" with Respect to Amount of
Received Series B Exchange Equity as a Result of "Affiliated
Acquisitions"; Definition of "Affiliated Acquisition Adjustment
Consideration Amount"; Limitation on "Affiliated Acquisitions" in
Certain Circumstances. If the Company shall have determined that any
Affiliated Holder (as defined below) shall have acquired (an
"Affiliated Acquisition"), directly or indirectly, any class or
series of securities forming part of the Received Series B Exchange
Equity with or without consideration, by purchase, by reason of a
distribution
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of rights, options, warrants or by reason of any other right to
subscribe or acquire such additional Received Series B Exchange
Equity or other property (other than pursuant to any generally
applicable management incentive stock plan or any employee stock
incentive award approved by the Board of Directors, as determined in
good faith by the Board of Directors as evidenced by a resolution
thereof), the amount of Received Series B Exchange Equity to be
delivered in exchange for the Exchanged Series B Shares shall at the
election of the holder thereof (which election shall be expressed in
the Series B Exchange Notice as provided below) be adjusted upwards
(the "Affiliated Acquisition Adjustment") on the basis that
(i) such Received Series B Exchange Equity so delivered had been
issued on the Initial Issuance Date, and
(ii) such holder had paid the amount of any consideration (the
"Affiliated Acquisition Adjustment Consideration Amount")
required to acquire such additional Received Series B
Exchange Equity or other property, provided that such holder
shall actually pay to the Company such consideration in
connection with the delivery of such Received Series B
Exchange Equity; provided, however, that the Affiliated
Acquisition Adjustment Consideration Amount shall be deemed
to have been paid to the extent of (x) the aggregate per
share Unpaid Dividend Amount in the Unpaid Dividend Account
with respect to such Exchanged Series B Shares as of the
Series B Exchange Date and (y) an amount equal to any accrued
but unpaid dividends with respect to such Exchanged Series B
Shares as of the Series B Exchange Date to the extent that
such accrued and unpaid dividends have not already been
recorded in such Unpaid Dividend Account.
The foregoing shall be determined in good faith by the Board of
Directors, as determined in good faith by the Board of Directors as
evidenced by a resolution thereof, which the Company shall furnish to
each holder of Series B Stock promptly after any such holder shall
have requested such information; provided, however, that the Company
shall not be obligated to furnish such information other than in
connection with a Series B Exchange.
For purposes of the foregoing, an "Affiliated Holder" shall mean a
holder of capital stock of the Company that is (i) an Affiliate of
the Company, (ii) Castle Harlan Partners II, L.P., a Delaware, United
States of America, limited partnership, or an Affiliate thereof or
(iii) an officer or director of the Company or of an Affiliate of the
Company, or an Affiliate of such officer or director.
From the date on which any Series B Exchange Notice shall have been
given through the
-- 14 --
date on which the related Series B Exchange shall have been effected
(or, if earlier, the date on which the Exchanged Series B Shares
relating thereto shall have been redeemed, repurchased or canceled),
the Company shall not, directly or indirectly (including through a
subsidiary or another Affiliate), take any action to cause or permit
any Affiliated Acquisition to occur.
8.1.4. Series B Exchange Notice. Any holder of shares of Series B Stock that
wishes to cause a Series B Exchange to be effected with respect to
such shares (which shall thereby become Exchanged Series B Shares)
shall give written notice thereof to the Company (the "Series B
Exchange Notice"). Each Series B Exchange Notice shall be irrevocable
and shall state the following:
(i) the aggregate number of Exchanged Series B Shares relating
thereto; and
(ii) the amount of the Affiliated Acquisition Adjustment that the
holder giving such Series B Exchange Notice shall elect to
receive (as determined pursuant to and consistent with
paragraph 8.1.3 of this article 5) and, in that connection,
the Affiliated Acquisition Adjustment Consideration Amount
(as so determined) that such holder shall pay in connection
with the related Series B Exchange, other than any such
Affiliated Acquisition Adjustment Consideration Amount
deemed paid pursuant to the proviso to clause (ii) of the
first paragraph of paragraph 8.1.3 of this article 5.
8.1.5. Series B Exchange Date. The Series B Exchange Date shall be the sixth
(6th) Business Day following the thirtieth (30th) day after the
giving of the related Series B Exchange Notice.
8.1.6. Effect of Series B Exchange Notice. Upon the giving of any Series B
Exchange Notice, the Company shall become obligated to effect a
Series B Exchange with respect to the Exchanged Series B Shares
relating thereto on the applicable Series B Exchange Date.
8.1.7. Certain Exchange Procedures; Company's Notice in Connection
Therewith. On or after a Series B Exchange Date applicable to any
Exchanged Series B Shares, each holder shall
(i) surrender each certificate or certificates representing such
Exchanged Series B Shares to the Company, with the reverse
side of the certificate or certificates duly executed by
such holder to effect the transfer by such holder to the
Company of the Exchanged B Shares, and
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(ii) if applicable, pay to the Company the Affiliated Acquisition
Adjustment Consideration Amount that such holder shall be
obligated to pay in connection with the related Series B
Exchange, other than any such Affiliated Acquisition
Adjustment Consideration Amount deemed paid pursuant to the
proviso to clause (ii) of the first paragraph of paragraph
8.1.3 of this article 5,
all in the manner and at a place designated therefor in the notice
referred to in the last sentence of this paragraph 8.1.7. Such manner
shall include personal delivery, registered mail and overnight
delivery service of recognized standing. Such places shall include
the principal office of the Company and a place in the borough of
Manhattan in New York, New York, United States of America. If such
Series B Exchange is to be effected with respect to fewer than all
the shares represented by any certificate for Series B Stock
surrendered in connection therewith, a new certificate or
certificates representing the shares with respect to which such
Series B Exchange is not to be effected shall be issued without cost
to the holder thereof. Promptly after the giving of the Series B
Exchange Notice, the Company shall send to the holder that gave it a
notice designating (i) the manner and the places referred to in the
first sentence of this paragraph 8.1.7 and (ii) providing all
instructions and documents necessary to enable such holder to
transfer the related Exchanged Series B Shares, and to surrender the
related certificate or certificates, in addition to any information
required by law.
8.1.8. Effect of Transfer, Surrender and Exchange. Upon transfer and
surrender of shares (and, if applicable, payment) as contemplated by
paragraph 8.1.7 of this article 5, delivery of the Received Series B
Exchange Equity with respect to such shares shall be due to such
holder as such holder appears in the Register and on such certificate
or certificates as the owner thereof, and each surrendered
certificate shall be canceled and the Board of Directors of the
Company shall (i) resolve upon the issuance of the shares in the
Company that are part of the Received Series B Exchange Equity, (ii)
issue such shares to such holder pursuant to a deed of issuance and
(iii) transfer the property other than shares in the capital of the
Company that are part of the Received Series B Exchange Equity to
such holder in accordance with the law applicable to such property.
As of the applicable Series B Exchange Date, but subject to the
effectuation of the Series B Exchange, unless there shall have been a
default in delivery of the Received Series B Exchange Equity, all
rights of the holder of the Exchanged Series B Shares as such (except
the right to receive the Received Series B Exchange Equity without
interest) shall cease with respect to such Exchanged Series B Shares,
and such Exchanged Series B Shares shall no longer be deemed to be
outstanding for any purpose whatsoever (except as aforesaid), and
such Exchanged Series B Shares shall be canceled thereupon.
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8.2. Series D Exchange.
8.2.1. General. If, at any time on or after the first anniversary of the
Initial Issuance Date, any shares of Series D Stock shall be
outstanding, each holder of any such shares shall have the option to
cause the Company to exchange (the "Series D Exchange") any such
shares (the "Exchanged Series D Shares") into shares of Series E
Stock and shares of Common Stock (the "Received Series D Exchange
Equity").
8.2.2. Amount of Received Series D Exchange Equity; Definition of "Series D
Exchange Date". In each Series D Exchange, the holder of the related
Exchanged Series D Shares shall receive in exchange therefor (i) a
number of shares of Series E Stock equal to the ratio of (x) the
Liquidation Preference of one share of Series D Stock on the date of
such Series D Exchange (the "Series D Exchange Date", which shall be
determined as provided in paragraph 8.2.4 of this article 5) to (y)
the Liquidation Preference of one share of Series E Senior Preferred
Stock on such Series D Exchange Date plus (ii) without the payment of
any other consideration, the number of shares of Common Stock equal
to the ratio of (x) the number of shares of Common Stock outstanding
on the Initial Issuance Date of the Senior Preferred Stock to (y) the
number of shares of Series E Stock outstanding on the Initial
Issuance Date (as such ratio shall be adjusted to take into account
any stock splits, reverse stocks splits, stock dividends, stock
subdivisions and any similar event, on or after the Initial Issuance
Date).
8.2.3. Series D Exchange Notice. Any holder of shares of Series D Stock that
wishes to cause a Series D Exchange to be effected with respect to
such shares (which shall thereby become Exchanged Series D Shares)
shall give written notice thereof to the Company (the "Series D
Exchange Notice"). Each Series D Exchange Notice shall be irrevocable
and shall state the aggregate number of Exchanged Series D Shares
relating thereto.
8.2.4. Series D Exchange Date. The Series D Exchange Date shall be the sixth
(6th) Business Day following the thirtieth (30th) day after the
giving of the related Series D Exchange Notice.
8.2.5. Effect of Series D Exchange Notice. Upon the giving of any Series D
Exchange Notice, the Company shall become obligated to effect a
Series D Exchange with respect to the Exchanged Series D Shares
relating thereto on the applicable Series D Exchange Date.
8.2.6. Certain Exchange Procedures; Company's Notice in Connection
Therewith. On or after a Series D Exchange Date applicable to any
Exchanged Series D Shares, each holder shall surrender each
certificate or certificates representing such Exchanged Series D
Shares to
-- 17 --
the Company, with the reverse side of such certificate or
certificates duly executed by such holder to effect the transfer by
such holder to the Company of the Exchanged Series D Shares, all in
the manner and at a place designated therefor in the notice referred
to in the last sentence of this paragraph 8.2.6. Such manner shall
include personal delivery, registered mail and overnight delivery
service of recognized standing. Such places shall include the
principal office of the Company and a place in the borough of
Manhattan in New York, New York, United States of America. If such
Series D Exchange is to be effected with respect to fewer than all
the shares represented by any certificate for Series D Stock
surrendered in connection therewith, a new certificate or
certificates representing the shares with respect to which such
Series D Exchange is not to be effected shall be issued without cost
to the holder thereof. Promptly after the giving of the Series D
Exchange Notice, the Company shall send to the holder that gave it a
notice (i) designating the manner and the places referred to in the
first sentence of this paragraph 8.2.6 and (ii) providing all
instructions and documents necessary to enable such holder to
transfer the related Exchanged Series D Shares and to surrender the
related certificate or certificates, in addition to any information
required by law.
8.2.7. Effect of Transfer and Surrender and Exchange. Upon transfer and
surrender of shares as contemplated by paragraph 8.2.6 of this
article 5, delivery of the Received Series D Exchange Equity with
respect to the surrendered shares shall be due to such holder as such
holder appears in the Register and on such certificate or
certificates as the owner thereof, and each surrendered certificate
shall be canceled and the Board of Directors of the Company shall (i)
resolve upon the issuance of the shares in the Company that are part
of the Received Series D Exchange Equity, (ii) issue such shares to
such holder pursuant to a deed of issuance and (iii) transfer the
property other than shares in the capital of the Company that are
part of the Received Series D Exchange Equity to such holder in
accordance with the law applicable to such property. As of the
applicable Series D Exchange Date and the effectuation of the Series
D Exchange, unless there shall have been a default in delivery of the
Received Series D Exchange Equity, all rights of the holder of the
Exchanged Series D Shares as such (except the right to receive the
Received Series D Exchange Equity without interest) shall cease with
respect to such Exchanged Series D Shares, and such Exchanged Series
D Shares shall no longer be deemed to be outstanding for any purpose
whatsoever (except as aforesaid) and such Exchanged Series D Shares
shall be canceled thereupon.
8.3. Certain Provisions Common to Series B Exchange and Series D Exchange.
8.3.1 Issuance, Delivery of Exchange Securities and, as Applicable, Other
Exchange Property; Definitions of "Exchanging Holder" and "Exchange".
If the Company shall issue any
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securities to any shareholder (an "Exchanging Holder") that shall
participate in a Series B Exchange or a Series D Exchange (an
"Exchange"), such securities (i) shall be duly authorized, (ii) shall
be valid and binding obligations of, or interests in, the Company,
(iii) in the case of shares or other equity securities of the
Company, shall be fully paid and nonassessable and (iv) shall be
similarly listed on exchange or quotation system on which all other
securities of the same class or series are listed, insofar as
applicable. The Company shall, to the extent permitted under
applicable law, cause any of its subsidiaries to issue or cause to be
issued any securities participating in the Exchange and take such
other steps necessary or useful in connection with the Exchange,
including the reservation of sufficient amounts for issuance of all
such securities so issuable, which issuance (i) shall be duly
authorized, (ii) shall be valid and binding obligations of, or
interests in, such subsidiary, (iii) in the case of shares or other
equity securities of such subsidiary, shall be fully paid and
nonassessable and (iv) shall be similarly listed on exchange or
quotation system on which all other securities of the same class or
series are listed, insofar as applicable. The Board of Directors
shall in the delivery of any such securities and other property to
such shareholder in connection with an Exchange act in good faith and
follow recognized and standard practice, in its reasonable
discretion.
8.3.2. Regulatory Compliance and Delay. If the effectuation of an Exchange
requires any compliance with applicable law or regulation, the
Company shall cooperate with each Exchanging Holder in that regard,
and any time periods associated with such Exchange provided for in
this paragraph 8 shall be extended to the extent necessary or
reasonably advisable to enable such Exchanging Holder to participate
in such Exchange.
8.4 Reimbursement of Senior Holders in Connection with Certain Adverse
Tax Consequences. If the Board of Directors determines that any
holder of shares of a Senior Preferred Stock will suffer any adverse
tax consequences as a result of the redemption of such shares instead
of the sale and transfer to another third person or entity, then the
Company shall reimburse each such holder for any such adverse tax
consequences.
SHARE CERTIFICATES
ARTICLE 6
1. Classes of Shares that shall be Certificated. Share certificates
shall be issued for shares of Senior Preferred Stock. At the request
of a holder of Series D Stock, Series E Stock and Common Stock, share
certificates may be issued for such shares.
2. Number of Shares Represented by Certificates. Share certificates may
be issued to represent more than one share. If any shares held by a
shareholder are represented by one
-- 19 --
share certificate, and if such shareholder disposes of part of his
shares, such shareholder shall be entitled to request the issuance of
a share certificate representing such shareholder's remaining shares.
3. Form and Manner of Issuance. Share certificates, which shall include
duplicates of share certificates as referred to in article 7 hereof,
shall be issued and signed on behalf of the Company by or on behalf
of the Board of Directors. All costs and expenses of the Company
associated with the issuance of share certificates (including any
duplicates) at the request of a shareholder, will be charged to such
requesting shareholder, unless provided otherwise in these Articles
of Incorporation. Share certificates shall bear such legend or
legends as the Board of Directors deems fit and appropriate in
connection with the issuance of shares. The reverse side of any
certificates issued shall contain a printed form of an instrument of
transfer that can be used by the holders of the shares represented by
such certificates to transfer such shares, or a portion thereof, to a
transferee, which may include the Company in accordance with the
provisions of these Articles of Incorporation.
LOST AND MUTILATED CERTIFICATES
ARTICLE 7
If any shareholder can prove to the satisfaction of the Board of
Directors that any share certificate has been mutilated, mislaid or
destroyed, then, at such shareholder's written request, a duplicate
may be issued by the Board of Directors. Upon the issuance of the
duplicate share certificate (on which it shall be noted that such
certificate is a duplicate), the original share certificate shall be
null and void vis a vis the Company. A mutilated share certificate
may be exchanged for a duplicate certificate upon delivery of the
mutilated certificate to the Board of Directors.
SHAREHOLDERS REGISTER; TRANSFER OF SHARES; NOTICES
ARTICLE 8
1. Shareholder Register; Definition of "Register". The Board of
Directors shall keep a shareholders register (the "Register") in
which the names and addresses of all shareholders shall be
registered, along with the shares issued and the payment thereon by
the shareholders. The Board of Directors shall regularly maintain the
Register and make such appropriate entries it deems fit, including
the registration of any issue, transfer and cancellation of shares.
2. Register of Certain Other Persons. The Board of Directors shall also
register the names
-- 20 --
and addresses of those persons who have a right of usufruct
(vruchtgebruik) or pledge (pand) on the shares.
3. Addresses to be Furnished, etc.. Each shareholder, and holder of a
right of usufruct or pledge on shares is required to provide his
address to the Company. The Company shall be entitled for all
purposes to rely on the name and address of the aforementioned
persons as entered in the Register. Such person may at any time
change his address as entered in the Register by means of a written
notification to the Company at its principal office.
4. Access to Register. At the request of a shareholder, holder of a
right of usufruct or pledge on shares, the Board of Directors shall
furnish an extract of the Register, free of charge, insofar as it
relates to such person's interest in a share.
5. Location of Register. The Register shall be kept by the Board of
Directors at the Company's principal office.
6. Transfer of Shares--General. The transfer of shares, including any
limited rights thereon, shall be effected (i) by serving upon the
Company in the manner prescribed by law, an instrument of transfer,
which, in the case of any certificate or certificates issued and
outstanding with respect to such shares shall include the duly
executed form of instrument of transfer printed on the reverse side
of any such certificates, or (ii) by written acknowledgment by the
Company of the transfer, which acknowledgment shall be signed on
behalf of the Company by or on behalf of the Board of Directors. In
case a share certificate is outstanding, the written acknowledgment
by the Company of the transfer of a share can only be made by an
endorsement on such share certificate. In that case, the transferor
or transferee of a share shall present such share certificate to the
Company for acknowledgment of the transfer on behalf of the Company
to be made thereon. In case no share certificate has been issued, the
registration of the transfer of a share in the Register shall have
the effect of a written acknowledgment by the Company of such
transfer of a share. This paragraph shall also apply in the case of
an allocation of shares resulting from a division and partition of
any community.
7. Transfer of Shares--Assignment of Voting Rights in Certain
Circumstances. If a share is encumbered with a right of usufruct or
pledge, then the voting right, if any, of such share, can be assigned
to the holder of the right of usufruct or pledge.
8. Transfer of Shares--Notice of Proposed Transfer of Senior Preferred
Stock. Each Senior Holder shall provide the Company with notice
thirty (30) days prior to any offer, sale or transfer of any share of
Senior Preferred Stock to any Person other than an Affiliate of
-- 21 --
such Senior Holder (the "Notice of Transfer"). Such Senior Holder
shall have the right to revoke such Notice of Transfer at any time by
further written notice to the Company. During such thirty (30) day
period following receipt of notice by the Company, the Company shall
have the right to repurchase or redeem such share on the same basis
as if it were effecting a Senior Preferred Optional Redemption with
respect to such share and shall be deemed to preserve such right by
delivering a Senior Preferred Optional Redemption Notice at any time
during such thirty (30) day period unless such Senior Holder shall
have revoked such Notice of Transfer prior to such time.
9. Transfer of Shares--Certain Limitations on Transfer of Senior
Preferred Stock. Each Senior Holder, by holding any share of Senior
Preferred Stock, agrees that shares of Senior Preferred Stock may not
be offered or transferred except pursuant to (i) (a) an effective
registration statement under the United States Securities Act of 1933
(the "Securities Act"), (b) Rule 144A under the Securities Act, (c)
Rule 144 under the Securities Act or (d) any other exemption from the
registration requirements of the Securities Act and, (ii) (a)
compliance with any applicable registration or qualification
requirements of any state securities or blue sky laws or (b) an
exemption from any such applicable registration or qualification
requirements provided that, in the case of (i)(c) or (d) or (ii)(b),
such Senior Holder shall furnish at such Senior Holder's expense, an
opinion of counsel knowledgeable in the applicable securities laws
(including in-house or special counsel) to the effect that an
exemption is available with respect to such disposition. If the Board
of Directors or its authorized agents determine to their satisfaction
that any statements by a Senior Holder in any certificate
contemplated by this paragraph 9 are not true or that the continued
ownership of any shares of Senior Preferred Stock by such Senior
Holder will not comply with the preceding sentence, the Company shall
have the right to take either or both of the following actions: (1)
decline to accept such person as an owner of Senior Preferred Stock;
or (2) within five (5) Business Days after the Company has acquired
knowledge of such non-compliance by such Senior Holder, send a notice
to such Senior Holder that the Company shall repurchase or redeem
such shares of such Senior Holder within a thirty (30) day period
following the receipt of such notice on the same basis as if it were
effecting a Senior Preferred Optional Redemption with respect to such
shares, and the Company shall be deemed to preserve such right to
repurchase or to redeem by delivering a Senior Preferred Optional
Redemption Notice during such thirty (30) day period. In connection
with the transfer set out in the foregoing paragraph 8 and this
paragraph 9, the Board of Directors is irrevocably authorized and
empowered to take any and all steps to execute any and all documents
and to do and perform any and all acts for and in the name and on
behalf of such Senior Holder and for and in the name and on behalf of
any person having or claiming to have any right with respect to or
any interest in all or any portion of the shares then or theretofore
owned or held by such Senior Holder, which
-- 22 --
may be necessary or advisable in order to effectuate the sale of
Senior Preferred Stock to the Company, with due observance of the
provisions of the first sentence of paragraph 3 of article 5 hereof
and the provisions of paragraph 7 of article 5 hereof.
10. Notices, etc. Notices and other communications provided for herein
shall be in writing, shall be delivered by hand or overnight courier
services of recognized standing or sent by telecopy, shall be deemed
given when actually received and shall be addressed as follows: if to
a shareholder's address, as shown in the Register of the Company; and
if to the Company, to the Company's principal office or registered
agent, Attention: Secretary.
MANAGEMENT
ARTICLE 9
1. Board of Directors--General. The management of all the affairs,
property and business of the Company shall be vested in a board of
directors (the "Board of Directors"), who shall have and may exercise
all powers except such as are exclusively conferred upon the
shareholders by law or by these Articles of Incorporation, as from
time to time amended.
2. Board of Directors--Number of Members. The number of persons
constituting the Board of Directors shall be not less than two or
more than nine, as fixed from time to time by the General Meeting.
The number of persons constituting the Board of Directors shall,
until changed at any succeeding General Meeting, be the number so
fixed.
3. Board of Directors--Vacancies in General. With due observance of the
provisions of paragraph 5 of this article 9, if one or more directors
are prevented from or are incapable of acting as a director, the
remaining directors may appoint one or more persons to fill such
vacancy or vacancies with the same qualifications, if any, as
determined by the General Meeting to serve until the next General
Meeting.
4. Board of Directors--Removal. Directors may be removed or suspended at
any time by the General Meeting with at least two thirds (2/3rds) of
the votes cast at a meeting at which at least fifty percent (50%) of
the total number of outstanding shares with full voting rights is
present. At any General Meeting at which action is taken to remove a
director, or at any subsequent General Meeting, the shareholders may
fill any vacancy or vacancies created by such action with due
observance of paragraph 2 of this article 9.
5. Board of Directors--Vacancies in Connection with Certain Reductions.
If at any time the number of directors in office shall be reduced to
less than two, the remaining directors shall forthwith call a General
Meeting for the purpose of filling the vacancies in the
-- 23 --
Board of Directors, and provided further that in the event that all
of the directors are prevented from or are incapable of acting as
directors, the Company shall be temporarily managed by any person or
persons previously appointed by the General Meeting so to act who
shall forthwith call a General Meeting for the purpose of electing
one or more directors. If no such General Meeting shall be called, or
if no such person shall have been appointed, any person or persons
holding in the aggregate at least fifty percent (50%) of the issued
and outstanding shares with full voting rights of the Company may
call a General Meeting for the purpose of electing one or more
directors.
6. Board of Directors--Meetings in General and Notice thereof; Waiver of
Notice. Meetings of the Board of Directors shall be held regularly at
such place and at such time as the Board of Directors may from time
to time determine. Special meetings of the Board of Directors shall
be held as and when two directors or the Chairman (as defined in
paragraph 1 of article 10 hereof) shall call the same. Notice of the
time and place of a meeting of the Board of Directors shall be given:
(a) not less than ninety-six (96) hours before such meeting, by
written notice mailed to each director, or
(b) not later than the Business Day immediately preceding the
date of such meeting, by personal delivery, or by telephone
call or by sending a telegram or telefax to each director
receipt of which has been confirmed.
A waiver of notice of any meeting of the Board of Directors signed by
all of the non attending directors, whether before, at, or after the
time of such meeting, shall be deemed equivalent to notice of the
meeting. If all the directors are present at the meeting, notice
shall be deemed to have been duly given.
7. Board of Directors--Quorum. A majority of the members of the Board of
Directors shall constitute a quorum. The resolution of the majority
of the directors present, in person or by proxy as hereinafter
provided, at a meeting at which a quorum is so present, shall
constitute the decision of the Board of Directors. In the absence of
a quorum, any director may adjourn any meeting from time to time
until a quorum shall be present.
8. Board of Directors--Adoption of Resolutions. All resolutions to be
adopted at a meeting of the Board of Directors shall be adopted by
majority of the votes cast, provided that in the event of an equality
of votes, the vote(s) cast by the Chairman shall be decisive.
9. Board of Directors--Meetings by Telephone, etc.. Meetings of the
Board of Directors
-- 24 --
may be held through conference telephone calls or other communication
equipment allowing all persons participating in the meeting to hear
each other or through any other device permitted by law, and
participation in a meeting through any such lawful device or
arrangement shall constitute presence at such meeting.
10. Board of Directors--Action by Written Consent. When action by the
Board of Directors is required or permitted to be taken, action at a
meeting may be dispensed with if all the directors shall consent in
writing to such action taken or being taken.
11. Board of Directors--Proxies. Directors may by telegram, telefax or
other written instrument appoint a proxy to act on their behalf at
any designated meeting or meetings of the Board of Directors. Such
proxy must be another director of the Company.
12. Committees of the Board of Directors. The Board of Directors shall
have the power and authority and power to create and disband
committees of the Board of Directors, and each such committee shall
have the authority and power as may from time to time be delegated to
it by the Board of Directors and shall operate under the ultimate
responsibility of the Board of Directors.
OFFICERS AND REPRESENTATIVES
ARTICLE 10
1. Chairman and other Officers and Agents. The Board of Directors shall
designate a chairman (the "Chairman") from among the directors. The
Board of Directors may further from time to time elect a President,
one or more Vice-Presidents (including Executive or Senior
Vice-Presidents), a Controller, a Treasurer, one or more Assistant
Treasurers, a Secretary, one or more Assistant Secretaries and any
such other officers and agents as it determines proper, all of whom
shall hold office at the pleasure of the Board of Directors. The same
person may hold any two (2) or more of the aforesaid offices but no
officer shall execute, acknowledge or verify an instrument in more
than one capacity if such instrument is required by law or by these
Articles of Incorporation to be executed, acknowledged or verified by
two or more officers. The Chairman must be a director, but the other
officers of the Company need not be members of the Board of
Directors.
2. Representation of the Company. The Company shall be represented at
law and otherwise, and shall be bound with respect to third parties,
by any two directors acting jointly or by any two of the following
persons acting jointly who may be, but are not required to be,
directors (other than the Chairman), who are authorized by the Board
of Directors to represent the Company who shall have the following
titles and occupy the following
-- 25 --
offices.
(i) Chairman;
(ii) President;
(iii) Vice-Presidents (including any Executive Vice-President or
Senior Vice-Presidents);
(iv) Treasurer or Assistant Treasurer;
(v) Officer;
(vi) Secretary or Assistant Secretary;
(vi) Controller or Assistant Controller.
The Board of Directors may also from time to time authorize other
persons, who may or may not be directors, to represent the Company,
who shall have such titles and occupy such additional offices as the
Board of Directors may determine.
3. Additional Power and Authority of Representatives. The persons
holding the above mentioned offices or any other offices which the
Board of Directors may from time to time authorize as herein
provided, shall have such power and authority as the Board of
Directors may from time to time grant each of them respectively.
4. Additional Rules and Regulations. The Board of Directors may adopt
and may amend and repeal such rules, regulations and resolutions as
it may deem appropriate for the conduct of the affairs and the
management of the Company, including rules, regulations and
resolutions setting forth the specific powers and duties of the
holders of the above-mentioned offices (not being directors of the
Company), other persons and committees of the Board of Directors
authorized by the Board of Directors to represent the Company. Such
rules, regulations and resolutions must be consistent with these
Articles of Incorporation. Any restrictions of the powers of
representation of the holders of the above-mentioned offices (other
than any member of the Board of Directors) will take effect on the
day after the resolutions, rules or regulations containing such
restrictions have been filed at the Commercial Register of the
Chamber of Commerce and Industry on the Island where the Company is
established.
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5. Compensation of Representatives. The directors, the holders of the
above-mentioned offices and other persons authorized by the Board of
Directors to represent the Company shall receive such compensation as
the General Meeting may from time to time determine.
INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE
ARTICLE 11
1. Indemnification not in Connection with Actions by or in Right of the
Company. The Company shall have the power to indemnify, and shall
indemnify to the fullest extent permitted by applicable law, any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Company) by reason of the fact
that such person is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another Company, partnership,
joint venture, trust or other enterprise or entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in good
faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Company and with respect to any
criminal action or proceeding, had no reasonable cause to believe
that its conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which was reasonably believed to be in or not opposed to the best
interests of the Company.
2. Indemnification in Connection with Actions by or in Right of the
Company. The Company shall have the power to indemnify, and shall
indemnify to the fullest extent permitted by applicable law, any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of
the fact that such person is or was a director, officer, employee or
agent of the Company or is or was serving at the request of the
Company as a director, officer, employee or agent of another Company,
partnership, joint venture, trust or other enterprise or entity,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall
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be made in respect of any claim, issue or matters as to which such
person shall have been finally adjudged to be liable to the Company
for improper conduct unless and only to the extent that the court in
which such action or suit was brought or any other court having
appropriate jurisdiction shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses, judgments, fines and amounts
paid in settlement which the court in which the action or suit was
brought or such other court having appropriate jurisdiction shall
deem proper.
3 Related Expenses. To the extent that a director, officer, employee or
agent of the Company has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
paragraphs 1 and 2 of this article 11, or in defense of any claim,
issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection therewith.
4. Certain Limitations on Indemnification. Any indemnification under
paragraphs 1 and 2 of this article 11 (unless ordered by a court)
shall be made by the Company only as authorized by contract approved,
or resolution or other action adopted or taken, by the Board of
Directors or by the shareholders.
5. Advancement of Expenses. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Company in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the applicable
director, officer, employee or agent to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Company as authorized by this article 11.
6. Indemnification and Advancement of Expenses not Exclusive. The
indemnification and advancement of expenses provided by or granted
pursuant to the other paragraphs of this article 11 shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
law, agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in its official capacity and as to
action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
7. Insurance. The Company shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company or is or was serving at the request
of the Company as a director, officer, employee or agent of
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another Company, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him
against such liability under the provisions of this article 11.
GENERAL MEETINGS OF SHAREHOLDERS
ARTICLE 12
1. General. All general meetings of shareholders (each, a "General
Meeting") shall be held on one of the Islands of the Netherlands
Antilles.
2. Timing. The annual General Meeting shall be held as early as
reasonably practicable, and in any event not later than the first day
of May, after the close of the Company's preceding financial year.
3. Actions to Be Taken. At the annual General Meeting:
a. the Board of Directors shall render a report on the business
of the Company and the conduct of its affairs during the
preceding financial year;
b. the balance sheet and the profit and loss account shall be
determined, set and adopted after having been submitted
together with an explanatory statement (together, the
"annual accounts"), stating by which standards the movable
and immovable property of the Company have been appraised;
c. the person or persons referred to in paragraph 5 of article
9 hereof shall be appointed;
d. the appropriation of profits shall be made; and
e. such other proposals included in the agenda specified in the
notice of the meeting shall be dealt with.
GENERAL MEETINGS--PLACE, CONVOCATION AND VOTING
ARTICLE 13
1. Timing of General Meetings other than the Annual General Meeting.
Other than the annual General Meeting, all General Meetings shall be
held as often as the Board of Directors shall deem necessary.
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2. Convening by Board of Directors. All General Meetings shall be
convened by the Board of Directors.
3. Request by Shareholders to Convene. Shareholders representing in the
aggregate at least one tenth (1/10th) of the outstanding capital of
the Company or representing in the aggregate a majority of the shares
of any Series of Senior Preferred Stock may request the Board of
Directors to convene a General Meeting, stating the subjects to be
discussed. If the Board of Directors has not convened a meeting
within four (4) weeks after the request, the person(s) who requested
the convening of the meeting shall be authorized to convene the
General Meeting, in which case notice shall be given to the Board of
Directors thereof.
4. Method of Convocation and Notification. All convocations of General
Meetings and all notifications to shareholders shall be made by
letter mailed to the addresses of shareholders appearing in the
Register.
5. Timing of Convocation. The convocation shall take place no later than
ten (10) days prior to the date of the meeting, excluding the date of
the sending of the notice and the date of the meeting.
6. Agenda. The agenda for the meeting shall be specified in the
convocation of the meeting or it shall be stated that the
shareholders may take cognizance thereof at the office of the
Company.
7. Person Presiding. General Meetings shall be presided over by a person
designated each time thereto by the meeting.
8. Majority Votes. All resolutions of General Meetings shall be taken by
an absolute majority of votes, except where otherwise provided in
these Articles of Incorporation.
9. Proxies. Shareholders may be represented at the meeting by a proxy
authorized in writing, which shall include any message transmitted by
current accepted means of communication and received in writing.
10. Vote per Share. At a General Meeting one vote may be cast for each
share of Common Stock, and one (1) vote may be cast for each share of
Series E Stock. Holders of Senior Preferred Stock and holders of
Series D Stock shall not be entitled to vote at a General Meeting,
other than in the case of Article 93A of the Commercial Code of the
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Netherlands Antilles and on such matters as described in article 17
hereof.
11. Interested Votes; Abstentions and Invalidly Cast Votes. Valid votes
may also be cast for the shares of those who, other than as
shareholders of the Company, would acquire any right or be discharged
from any obligation towards the Company by the resolution to be
adopted. Abstentions and invalidly cast votes shall not be counted as
votes at a General Meeting.
12. Agenda Proposals. Proposals of items for an agenda to be made by
shareholders for General Meetings can only be dealt with if presented
to the Board of Directors in writing at such time that they can be
announced within the period of time and in the manner prescribed for
the convocation of General Meetings.
13. Validity of Certain Resolutions as a Result of Unanimous Actions.
Provided and as long as the entire issued share capital is
represented at any General Meeting, valid resolutions may be adopted,
even when the provisions of these Articles of Incorporation with
respect to convocation and specification of the agenda have not or
have only partially been observed, provided that such resolutions are
unanimously adopted.
14. Participations of Directors. Each director shall in its capacity be
entitled to attend and advise the General Meeting.
FINANCIAL YEAR
ARTICLE 14
1. Term of Financial Year. The financial year of the Company shall run
from the first day of January of each year up to and including the
last day of December of such year.
2. First Financial Year. The first financial year shall terminate on the
last day of December of the year nineteen hundred and ninety six
(1996).
ANNUAL ACCOUNTS; BOOKS AND RECORDS
ARTICLE 15
1. Annual Accounts--Timing and Manner of Submission. Within four (4)
months after the close of the Company's financial year, the annual
accounts shall be submitted to the shareholders by the Board of
Directors. Each director shall sign the annual accounts; if the
signature of any director is lacking, then this shall be stated
therein together with the
--31--
reason thereof.
2. Maintenance of Books and Records and Annual Accounts. The Company
shall maintain its books and records, as well as the annual accounts
by which the profits are determined, on the basis of generally
accepted accounting principles in effect in the United States of
America ("US GAAP"), provided however, that any subsidiary and other
participations of the Company, including its investments, shall not
be consolidated but shall be reflected at cost in accordance with US
GAAP.
3. Annual Accounts--Adoption by Annual General Meeting. The annual
accounts shall be adopted by the annual General Meeting.
4. Right to Request Court Ordered Investigation. In addition to the
provisions of Article 132 of the Netherlands Antilles Commercial
Code, at the written request of the holder or holders (if they are
Affiliates of each other) of a majority of the shares of each Series
of Senior Preferred Stock, provided that the Liquidation Preference
of the shares held by such holder or holders equals at least One
Million United States Dollars (US $1,000,000.00), the judge of the
Court of First Instance in Curacao, Netherlands Antilles under, and
subject to the terms and conditions of, such Article 132 of the
Netherlands Antilles Commercial Code, may appoint one or more persons
to conduct an investigation into the management and the conduct of
the affairs of the Company or with regard to a part thereof or to a
certain period of time.
DISTRIBUTION OF PROFITS AND RESERVES;
DIVIDENDS; RESERVE ACCOUNTS
ARTICLE 16
1. Definition and Determination of Profits. The profit of any financial
year, by which term is meant the net profit according to the adopted
annual accounts for such year, shall be determined by the annual
General Meeting, shall be fully allocated to the general reserves of
the Company and may be used for distribution to the holders of shares
in the capital of the Company in accordance with this article 16,
except (i) to the extent that such profit has been distributed by way
of an interim dividend to holders of Senior Preferred Stock in
accordance with the relevant provisions in these Articles of
Incorporation, and (ii) for an amount equal to the Mandatory Other
Capital Stock Profit Allocation (as defined below), which shall be
paid or reserved in accordance with the provisions of paragraph 3 of
this article 16.
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2. Dividends on Senior Preferred Stock.
2.1. Amount; Definition of "Senior Preferred Stock Allocation". Subject to
paragraph 2.9 of this article 16, the holder of a share of Senior
Preferred Stock of any Series shall be entitled to receive, when and
if declared by the Board of Directors out of the Senior Preferred
Stock Available Funds (as defined below), cumulative cash dividends
at the annual rate per share equal to the product of (a) the
Applicable Percentage (as defined below) with respect to such Series
and (b) the sum of the Liquidation Preference and the Unpaid Dividend
Amount (as defined below) of each of such share of Senior Preferred
Stock of such Series as in effect on the applicable Dividend Payment
Date (as defined below). For the purpose of these Articles of
Incorporation, the "Senior Preferred Stock Available Funds" shall
mean (i) the Company's general reserves from time to time, and to the
extent the general reserves shall be insufficient to make a full cash
dividend on any Dividend Payment Date, (ii) any amounts that can be
distributed as interim dividends as a payment of the expected profits
of the current financial year, and to the extent the foregoing
amounts (i) and (ii) are insufficient to make a full cash dividend to
the holders of Senior Preferred Stock in accordance with this article
16 on any Dividend Payment Date, (iii) the aggregate of the Company's
share premium reserves ("agioreserves") in respect of the amounts
contributed by the holder or holders of shares of the Series D Stock,
the Series E Stock and the Common Stock and to the extent the
foregoing amounts (i), (ii) and (iii) are insufficient to make a full
cash dividend to the holders of Senior Preferred Stock in accordance
with this article 16 on any Dividend Payment Date, and (iv) the
aggregate of the remaining share premium reserves of the Company
contributed by the holder or holders of the Senior Preferred Stock..
2.2. Definitions of "Applicable Percentage" and "Triggering Dividend
Payment Date"; Increase of Dividend Rate in Certain Circumstances.
For the purpose hereof, the "Applicable Percentage" for the initial
Dividend Payment Date shall equal eight percent (8%). With respect to
the Initial Dividend Payment Date or any subsequent Dividend Payment
Date (the "Triggering Dividend Payment Date"), if
(x) an Indenture Limitation (as defined below) shall not be in
effect with respect to such Triggering Dividend Payment Date
pursuant to paragraph 2.9 of this article 16 and full cash
dividends shall not have been declared and paid on all the
shares of Senior Preferred Stock at the dividend rate based
on the Applicable Percentage, or
(y) if an Indenture Limitation (as defined below) shall be in
effect with respect to such Triggering Dividend Payment Date
(as defined below) and full cash
--33--
dividends shall not have been declared and paid on all the
shares of Senior Preferred Stock at the dividend rate based
on the Applicable Percentage, to the maximum extent, if any,
permitted by such Indenture Limitation,
the Applicable Percentage for the Dividend Payment Date immediately
following the Triggering Dividend Payment Date for each Series of
Senior Preferred Stock other than the Series B Stock shall equal the
rate of fourteen and three fourths percent (14 3/4%) until the
earliest of (a) the first Dividend Payment Date for which an
Indenture Limitation shall be in effect whereby the Company is not
permitted to pay any cash dividends on the shares of Senior Preferred
Stock, (b) the first Dividend Payment Date for which an Indenture
Limitation shall be in effect whereby cash dividends shall have been
declared and paid to all of the shares of Senior Preferred Stock at
the dividend rate based on the then Applicable Percentage to the
maximum extent permitted by such Indenture Limitation and (c) the
first Dividend Payment Date for which cash dividends shall have been
declared and paid in full on all of the shares of Senior Preferred
Stock at the dividend rate based on the then Applicable Percentage.
Following the earliest of (a), (b) or (c) above, the Applicable
Percentage shall be eight percent (8%). Notwithstanding the
foregoing, if the Company shall for any reason (including by reason
of a prohibition of applicable law) fail to redeem any shares of
Senior Preferred Stock (including the Series B Stock) on the
applicable Senior Preferred Mandatory Redemption Date pursuant to the
applicable provisions of article 5 hereof, the Applicable Percentage
from such date shall equal to the rate of fourteen and three fourths
percent (14 3/4%) until such shares of Senior Preferred Stock shall
be redeemed in full pursuant to article 5 hereof.
2.3. Definitions of "Dividend Payment Date" and "Business Day". Dividends
on the Senior Preferred Stock shall be payable on the fifteenth
(15th) day of each month of May and November or, if any such day is
not a Business Day (as defined below), then on the next succeeding
Business Day (each a "Dividend Payment Date"), commencing on the
first Dividend Payment Date in the year nineteen hundred and ninety
seven (1997) following the Initial Issuance Date. "Business Day"
means a day other than a Saturday, a Sunday or a day on which banking
institutions in New York, New York, United States of America, or the
Netherlands Antilles are authorized or required to remain closed.
2.4. Accrual and Cumulation of Dividends; Holders of Record Entitled
Thereto. Dividends on the Senior Preferred Stock shall accrue and be
cumulative from the respective Initial Issuance Date. Each such
dividend shall be paid to the holders of record of Senior Preferred
Stock as they appear on the Register on such record date, not more
than sixty (60) days nor fewer than ten (10) days preceding the
Dividend Payment Date, as shall be fixed by the Board of Directors.
Dividends shall be paid to the holders of the respective
--34--
Series of Senior Preferred Stock concurrently.
2.5. Proration of Partial Dividends. If dividends are not paid in full or
declared upon the shares of Senior Preferred Stock, all such
dividends declared upon shares of Senior Preferred Stock shall be
paid or declared pro rata among the shares of Senior Preferred Stock.
2.6. Accrual of Dividends and Related Terms. Dividends on the shares of
Senior Preferred Stock shall accrue whether or not earned or declared
and whether or not assets of the Company are legally available
therefor, and the terms "accrued dividends", "dividends accrued" and
"dividends in arrears" shall be deemed to refer to an amount which
shall be equal to dividends thereon at the dividend rate per share of
Senior Preferred Stock for the applicable period, whether or not
earned or declared and whether or not assets for the Company are
legally available therefor, less the amount of all such dividends
paid, or declared in full and sums set aside for the payment thereof.
2.7. Computation of Dividends with Respect to Portions of Annual Dividend
Periods. Dividends payable on the shares of Senior Preferred Stock
for any period less than a full annual dividend period shall be
computed on the basis of a three hundred and sixty (360) day year of
twelve (12) months of thirty (30) days and the actual number of days
elapsed in the period for which such dividends are payable.
2.8. Certain De Minimis Cash Amount Dividends. If the Cash Amount (as
defined in paragraph 2.9 of this article 16) is equal to or less than
Fifty Thousand United States Dollars ($50,000.00) on any Dividend
Payment Date payment of dividends in cash in such Cash Amount shall
not be required, but such dividends shall be subject to paragraph 2.6
of this article 16.
2.9. Amount of Dividends in Certain Circumstances; Definitions of "Cash
Amount", "Unpaid Dividend Amount", "Unpaid Dividend Account",
"Indenture Limitation" and "Senior Notes Indenture". If on any
Dividend Payment Date an Indenture Limitation (as defined below)
shall be in effect, the Company shall determine the amount, if any,
of dividends on the Senior Preferred Stock for such Dividend Payment
Date that the Company shall be permitted to pay in cash consistent
with the Indenture Limitation (the "Cash Amount"). The amount of
dividends payable on such Dividend Payment Date minus the Cash Amount
is hereinafter referred to as the "Unpaid Dividend Amount". The
dividends payable on such Dividend Payment Date shall be payable: (i)
as to the Cash Amount, in cash and (ii) as to the Unpaid Dividend
Amount, by recording on the books of the Company the Unpaid Dividend
Amount per share of Senior Preferred Stock in an account
--35--
set up for such recordation (the "Unpaid Dividend Account"). In
addition, if with respect to any Dividend Payment Date cash dividends
shall not be declared and paid in full on all the shares of Senior
Preferred Stock other than pursuant to an Indenture Limitation, the
Unpaid Dividend Amount per share of Senior Preferred Stock shall be
increased by the amount of cash dividends not so declared and paid in
full in the Unpaid Dividend Account. For the purpose hereof, an
"Indenture Limitation" shall be deemed to be in effect on any date to
the extent that on such date any Section of the Senior Notes
Indenture shall prohibit or make impossible the payment of cash
dividends on the Senior Preferred Stock on such date. The "Senior
Notes Indenture" means that certain indenture pursuant to which the
Senior Notes are issued as such indenture is in effect as of the date
on which it is executed.
2.10. Certain Procedures in Connection with Unpaid Dividend Amounts. If it
shall be necessary to record an Unpaid Dividend Amount in the Unpaid
Dividend Account, the Company shall give notice to each Senior Holder
as promptly as practicable following the date on which the Company
first becomes aware that it will be so necessary or that it will be
or has been effected, as the case may be, but such notice shall in
any event be given no later than the applicable Dividend Payment
Date. The President and the most senior financial officer of the
Company, with such title as may be conferred in paragraph 1 of
article 10 hereof, shall sign such notice on behalf of the Company.
Such notice shall state:
(i) the reason for such recordation of an Unpaid Dividend
Amount, including, if applicable, that an Indenture
Limitation is in effect with respect to the applicable
Dividend Payment Date;
(ii) the applicable Cash Amount, if any, with respect to such
Indenture Limitation;
(iii) the Unpaid Dividend Amount with respect to such Indenture
Limitation;
(iv) if with respect to any Dividend Payment Date cash dividends
shall not be declared and paid in full on all the shares of
Senior Preferred Stock other than to the extent authorized
in connection with such Indenture Limitation, the amount by
which cash dividends shall not have been so declared and
paid in full; and
(v) (a) the nature of any amendment or other modification of the
Senior Notes Indenture since the Initial Issuance Date or
since any previous notice given pursuant to this clause (v)
(enclosing a copy of the same) and (b) that since the
Initial Issuance Date there has not been any amendment or
other modification of
--36--
the Senior Notes Indenture that would create any greater
limitation than the Indenture Limitation on the payment of
cash dividends on the Senior Preferred Stock.
3. Other Dividends.
3.1. Dividends on Series D Stock. After application of paragraph 2 of this
article 16, the holders of shares of Series D Stock shall be entitled
to receive from the profit of any year as determined in accordance
with paragraph 1 of this article 16, a non-cumulative dividend equal
to two percent (2%) of the par value of their shares, and an amount
of profits equal to the amount thereof shall be attributed to a
Series D Stock profit reserve account held for such purpose by the
Company for the Series D Stock or paid out to the holders of such
shares at their request (the "Mandatory Series D Stock Profit
Allocation").
3.2. Dividends on Series E Stock. After application of paragraphs 2 and
3.1 of this article 16, the holders of shares of Series E Stock shall
be entitled to receive from the profit of any year as determined in
accordance with paragraph 1 of this article 16, a non-cumulative
dividend equal to two percent (2%) of the par value on their shares,
and an amount of profits equal to the amount thereof shall be
attributed to a Series E Stock profit reserve account held for such
purpose by the Company for the Series E Stock or paid out to the
holders of such shares at their request (the "Mandatory Series E
Stock Profit Allocation").
3.3. Dividends on Common Stock. After application of paragraphs 2, 3.1 and
3.2 of this article 16, the holders of shares of Common Stock shall
be entitled to receive from the profit of any year as determined in
accordance with paragraph 1 of article 16, a non-cumulative dividend
equal to two percent (2%) of the par value on their shares and an
amount of profits equal to the amount thereof shall be attributed to
a Common Stock profit reserve account held for such purpose by the
Company for the Common Stock or paid out to the holders of such
shares at their request (the "Mandatory Common Stock Profit
Allocation").
3.4. Definition of "Mandatory Other Capital Stock Profit Allocation" and
Computation thereof. The Mandatory Series D Stock Profit Allocation,
the Mandatory Series E Stock Profit Allocation and the Mandatory
Common Stock Profit Allocation shall together hereinafter be referred
to as the "Mandatory Other Capital Stock Profit Allocation". The
Mandatory Other Capital Stock Profit Allocation, and dividends
payable with respect thereto, for any period less than a full annual
dividend period shall be computed on the basis of a three hundred
sixty (360) day year of twelve (12) months of thirty (30) days
--37--
months and the actual number of days elapsed in the period for which
such dividends are payable.
4. Application of General Reserves. The balance after application of
paragraph 2 of this article 16 may be distributed by the Board of
Directors at its discretion, but only to the holders of Senior
Preferred Stock in proportion to the number of shares of Series of
Senior Preferred Stock outstanding. In the event that no shares of
Senior Preferred Stock are outstanding, the balance shall be
distributed to the holders of shares of Series D Stock, Series E
Stock and Common Stock in proportion to the number of shares of such
series or class outstanding, in accordance with the preference as set
forth in paragraph 4 of article 3. In the event that no shares of
Preferred Stock are outstanding, the balance shall be distributed to
the holders of shares of Common Stock in proportion to the number of
shares of Common Stock outstanding.
5. Certain Effects of Losses. In the event that the profit and loss
account shows a loss for any given year, which loss cannot be covered
by the reserves or compensated in another manner, no profit shall be
distributed in any subsequent year, as long as the loss has not been
recovered; provided, however, that such recovery shall not affect the
cumulative preference of the Senior Preferred Stock or the
application of paragraph 2.6 of this article 16.
6. Reserve Accounts. As long as any shares of Senior Preferred Stock are
outstanding, the shares of Series D Stock, Series E Stock and Common
Stock shall not be entitled to any distributions out of the Company's
reserve accounts, including any general reserve accounts or
additional paid in capital reserve accounts, other than the Mandatory
Other Stock Profit Allocation accounts, unless the holders of Senior
Preferred Stock have approved the same in a Series meeting or by
written consent (as described in paragraph 5 of article 18 hereof).
AMENDMENT OF THE ARTICLES OF INCORPORATION; DISSOLUTION AND
LIQUIDATION OF THE COMPANY; PROHIBITION AGAINST CERTAIN ACTIONS
ADVERSE TO SENIOR PREFERRED STOCK ARTICLE 17
1. Resolutions to Amend Articles of Incorporation or to Dissolve
Company. Resolutions to amend these Articles of Incorporation or to
dissolve the Company may only be taken in a General Meeting by at
least a three fourths (3/4ths) majority of votes cast at which
meeting at least two thirds (2/3rds) of the outstanding voting
capital is represented.
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2. Second Meeting in Certain Circumstances. If the required issued
capital is not represented at said meeting, a second meeting shall be
convened, to be held within two (2) months after the first meeting,
at which second meeting valid resolutions may then be taken with a
three fourths (3/4ths) majority of votes cast, irrespective of the
issued and outstanding voting capital represented.
3. Prohibition Against Certain Actions Adverse to Senior Preferred
Stock. Notwithstanding the provisions of Article 93A of the
Netherlands Antilles Commercial Code, the General Meeting shall not,
without the affirmative vote of the holders of at least fifty one
percent (51%) of shares of each Series of Senior Preferred Stock then
outstanding (i) (a) create any class or series of shares ranking
senior to or in parity with the Senior Preferred Stock, either as to
dividends or upon liquidation, (b) amend, alter or repeal any of the
provisions of these Articles of Incorporation so as to affect
adversely the preferences, rights or powers of the shares of such
Series of Senior Preferred Stock or the holders thereof, or (c)
authorize any reclassification of the shares of such Series of Senior
Preferred Stock or (ii) increase the authorized capital of the
Company by an increase of the number of shares of Senior Preferred
Stock. So long as any shares of any Series of Senior Preferred Stock
are issued and outstanding, the Company shall not without the prior
approval of holders of a majority of the shares of such Series, take
any actions which will adversely affect the preferences, priorities,
rights or powers of the Senior Preferred Stock or the holders
thereof.
4. Procedures for Liquidation. In the event of dissolution of the
Company, the liquidation shall take place under such provisions, if
any, as the General Meeting shall determine with due observance of
the remaining paragraphs of this article 17.
5. Allocation of Profits. If the profit and loss account covering the
financial year, closing as on the date of the dissolution of the
Company shows a profit, this profit shall be allocated in conformity
with the provisions of article 16 hereof.
6. Liquidation Event--Definition and Allocation to Senior Preferred
Stock. In case of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or otherwise (a
"Liquidation Event"), the holder of each share of Senior Preferred
Stock shall be entitled to receive, out of the assets of the Company
available for distribution to its shareholders, in cash, (i) the
amount of the Liquidation Preference for such share, plus (ii) the
aggregate per share Unpaid Dividend Amount in the Unpaid Dividend
Account therefor and (iii) an amount equal to all dividends accrued
and unpaid on each such share up to the date fixed for distribution
to the extent that such accrued and unpaid dividends have not already
been recorded in the Unpaid Dividend Account therefor, before any
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distribution shall be made to the holders of any class or series of
shares of the Company other than each of the Series of Senior
Preferred Stock. Any distributions made to the holders of Senior
Preferred Stock under this article 17 shall be made with respect to
the shares of Series Preferred Stock concurrently.
7. Liquidation Event--Proration among Shares of Senior Preferred Stock.
In the event of any Liquidation Event, if the assets distributable
among the holders of the shares of Senior Preferred Stock of any
Series are insufficient to permit the payment in full to the Senior
Holders, the entire assets of the Company so distributable shall be
distributed ratably among the Senior Holders (without regard to
Series) in proportion to the respective amounts that would be payable
per share of Senior Preferred Stock if such assets were sufficient to
permit payment in full.
8. Liquidation Event--Allocation to Series D Stock. After giving effect
to due observance of the provisions of the preceding paragraphs 6 and
7 of this article 17, in case of a Liquidation Event, the holders of
Series D Stock shall be entitled to receive, out of the assets of the
Company available for distribution to its shareholders, in cash, per
share (i) the amount of the Liquidation Preference for such share,
plus (ii) the aggregate amount equal to all dividends accrued and
unpaid on each such share, if any, before any distribution shall be
made to the holders of any other class or series of shares of the
Company (other than Series A Stock, Series B Stock and Series C
Stock).
9. Liquidation Event--Allocation to Series E Stock. After giving effect
to due observance of the provisions of the preceding paragraphs 6, 7
and 8 of this article 17, in case of a Liquidation Event, the holders
of Series E Stock shall be entitled to receive, out of the assets of
the Company available for distribution to its shareholders, in cash,
per share (i) the amount of the Liquidation Preference for such
share, plus (ii) the aggregate amount equal to all dividends accrued
and unpaid on each such share, if any, before any distribution shall
be made to the holders of any shares of any other class or series of
shares of the Company (other than Series A Stock, Series B Stock,
Series C Stock and Series D Stock).
10. Liquidation Event--Allocation to Common Stock. After giving effect to
due observance of the provisions of the preceding paragraphs 6, 7, 8
and 9 of this article 17, in case of a Liquidation Event, the holders
of Common Shares shall be entitled to receive the balance available
for distribution with respect to the capital stock of the Company
which shall be distributed to the holders of Common Stock in
proportion to the number of shares of Common Stock issued and
outstanding.
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11. Liquidation Event--Maintenance of Books and Records. During a period
of ten (10) years after the end of the liquidation relating to the
Liquidation Event, the books and records of the Company shall remain
in the custody of the person designated for that purpose by the
General Meeting.
SEPARATE MEETINGS OF SERIES OF SHARES;
ACTION BY WRITTEN CONSENT
ARTICLE 18
1. General. Separate meetings of the holders of any series or class of
shares can be held and may be convened by the Board of Directors and,
as to meetings of the holders of the respective series or classes of
Preferred Stock or Common Stock, by the holders of ten percent (10%)
of any shares of such series or class issued and outstanding ("series
meeting").
2. Convocation. A convocation of such separate meeting shall be given by
means of a written notice mailed not fewer than ten (10) days and no
more than sixty (60) days prior to the date of the meeting to the
address of each holder of a series or class of shares, appearing in
the Register.
3. Agenda. The notice shall contain the agenda of the meeting or shall
state that it may be examined by the holders of such series or class
of shares for inspection at the registered office of the Company.
4. Separate Meeting in Determination of Board of Directors. Separate
meetings may also be held as often as the Board of Directors deems
necessary.
5. Resolutions Outside Meetings by Written Consent for a Series of Stock
only; Records. Resolutions of holders of a series or class may also
be adopted by written consent (without recourse to a separate meeting
of holders of a series or class as provided herein), provided (i) all
holders of shares of such series or class have had an opportunity to
express themselves in connection with such action by written consent
and (ii) such expression is made in writing. The Board of Directors
shall keep a record of the resolutions thus made by written consent.
Each of the holders of a series or class must procure that the Board
of Directors is informed in writing of the resolutions made by
written consent as soon as possible. The records of the Company shall
be deposited at the offices of the Company for inspection by the
shareholders. Upon request each of them shall be provided with a copy
or an extract of such record at not more that the actual costs.
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6. Application of Provisions of Articles of Incorporation and Laws. All
the provisions of these Articles of Incorporation and the laws of the
Netherlands Antilles as to General Meetings, in as far as possible,
apply to separate meetings, except as otherwise specifically provided
in this article 18.
CERTAIN PROVISIONS RELATING TO PAYMENTS WITH RESPECT TO STOCK:
ADDITIONAL AMOUNTS AND REIMBURSEMENTS WITH RESPECT TO CERTAIN TAXES
AND MECHANICS OF PAYMENTS ARTICLE 19
1. Payments with Respect to Senior Preferred Stock Free and Clear of
Certain Taxes; Payment of "Additional Amounts". All payments made by
the Company with respect to the Senior Preferred Stock (including, to
the extent applicable, the payment of dividends, Senior Preferred
Redemption Price and Liquidation Preference and delivery of Received
Series B Exchange Equity) shall be made free and clear of, and
without withholding or deduction for or on account of, any present or
future tax, duty, levy, impost, assessment or other governmental
charge, including penalties, interest, and any other liabilities
related thereto ("Taxes"), imposed or levied by or on behalf of the
Netherlands Antilles or any political subdivision or any taxing
authority thereof or therein, unless the Company is required to
withhold or deduct such Taxes by law or by the interpretation or
administration thereof. If the Company is required to withhold or
deduct any amount for or on account of such Taxes from any payment
made with respect to the Senior Preferred Stock, the Company shall
pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Senior Holder
(including Additional Amounts) after such withholding or deduction
will not be less than the amount that the Senior Holder would have
received if such Taxes had not been withheld or deducted; provided,
however, that no Additional Amounts shall be payable with respect to
a payment made to a Senior Holder (an "Excluded Holder") (i) with
respect to any Taxes which would not have been so imposed but for the
existence of any present or former connection (other than the mere
holding of Senior Preferred Stock or the receipt of payments with
respect thereto) between such Senior Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of such Senior Holder, if
such Senior Holder is an estate, a trust, a partnership or a
corporation or other company) and the Netherlands Antilles or any
political subdivision or taxing authority thereof or therein, as the
case may be, including such Senior Holder (or such fiduciary,
settlor, beneficiary, member or shareholder) being or having been a
citizen or resident thereof or being or having been engaged in a
trade or business or having been or being present therein or having,
or having had, a permanent establishment therein; (ii) with respect
to any estate, inheritance, gift, sales, transfer or personal
property tax or any similar taxes; or (iii) with respect to
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any taxes that would not have been imposed, due or payable but for a
failure by the Senior Holder to comply with a request by the Company
to satisfy any certification, identification or other reporting
requirements whether imposed by statute, regulation, treaty or
administrative practice concerning nationality, residence in or
connection with the Netherlands Antilles; nor shall Additional
Amounts be paid with respect to any payment on Senior Preferred Stock
to a Senior Holder who is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent that such
payment would be required to be included in the income, for tax
purposes, of a beneficiary or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner who would not
have been entitled to the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the Senior Holder. The
Company shall also, in accordance with applicable law, make such
withholding or deduction and remit the full amount deducted or
withheld to the relevant taxing authority. The Company shall furnish
to the Senior Holders, within thirty (30) days after the date the
payment of any Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Company.
2. Related "Reimbursement Payments". In addition to the obligation to
pay Additional Amounts, the Company shall indemnify and hold harmless
each Senior Holder (other than an Excluded Holder) and will, upon
written request of each Senior Holder (other than an Excluded Holder)
and, provided that reasonable supporting documentation is provided,
reimburse ("Reimbursement Payments") each such Senior Holder for the
amount of (1) any Taxes so levied or imposed and paid by such Senior
Holder as a result of payments made with respect to the Senior
Preferred Stock, and (2) any Taxes so levied or imposed with respect
to any reimbursement under the foregoing clause (1), so that the net
amount received by such Senior Holder after such reimbursement will
not be less than the net amount the Senior Holder would have received
if Taxes on such reimbursement had not been so imposed.
3. Certification as to Additional Amounts; Certain Mentions Deemed to
Include Mention to Additional Amounts and Reimbursement Payments. At
least thirty (30) days prior to each date on which any payment with
respect to the Senior Preferred Stock is due and payable, if the
Company will be obligated to pay Additional Amounts with respect to
such payment, the Company shall deliver to each Senior Holder
entitled to such payment of Additional Amounts a certificate of the
Company signed on behalf of the Company by the president thereof or a
Vice-President thereof stating that such Additional Amounts will be
payable. Whenever the payment of par value, dividends, Senior
Preferred Redemption Price or any other amount payable with respect
to any Senior Preferred Stock is mentioned herein, such mention shall
be deemed to include mention of the payment of
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Additional Amounts and Reimbursement Payments to the extent that, in
such context, Additional Amounts and Reimbursement Payments were or
would be payable in respect thereof.
4. Application to Other Shareholders of Provisions as to Taxes. The
provisions of paragraphs 1, 2 and 3 of this article 19 shall equally
apply to the holders of Series D Stock, Series E Stock and Common
Stock, mutatis mutandis, excluding any such holder that would be an
Excluded Holder, mutatis mutandis, with respect thereto; provided,
however, that any payment that would be made to any such holder
pursuant to such equal application, shall not be made if at the time
of such payment any share of Senior Preferred Stock shall be
outstanding or any amount shall remain unpaid with respect to any
such share; provided further, however, that any payment not made to a
holder of Series D Stock, Series E Stock or Common Stock by reason of
the preceding proviso shall be payable to such holder (on a pro rata
basis with any other similarly situated holder to the extent of funds
available therefor) immediately after no shares of Senior Preferred
Stock shall be outstanding and no amount shall remain unpaid with
respect to any such share, and the amount of such payment so deferred
shall bear interest (payable on a pro rata basis as aforesaid) at the
rate described in the last sentence of paragraph 2.2 of article 16
hereof; provided further, however, that no recordation by the Company
of any such payment so deferred or any such interest shall be treated
as a debt or an obligation to which any payment with respect to any
Senior Preferred Stock shall be junior or subordinated or shall
reduce any amount for payment with respect to any Senior Preferred
Stock.
5. Payments to Shareholders. Payments provided for herein to a
shareholder, including, to the extent applicable, of the payment of
dividends, Senior Preferred Redemption Price, Liquidation Preference,
Additional Amounts and Reimbursement Payments and delivery of
Received Series B Exchange Equity, shall be made to such shareholder
as follows: (i) if such holder shall have specified to the Company by
notice that such shareholder wishes to receive payments by wire
transfer and shall have specified a bank account for such purpose, by
wire transfer of immediately available funds to such account; and
(ii) in all other cases, by check mailed to such shareholder's
address for notices as specified herein.