EXHIBIT 3.2
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The following Amended and Restated Articles of Incorporation
are compiled from the most recent official Restated Articles
of Incorporation and subsequent Amendment.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WILLBROS GROUP, INC.
FIRST: Name. The name of the Corporation is
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WILLBROS GROUP, INC.
SECOND: Purposes. The general purpose of the
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Corporation is to do any and all of the things and to exercise
any and all of the powers hereinafter set forth, in any part
of the world, namely:
(a) To carry on and conduct a general
contracting, engineering and petroleum services and
construction business; to engineer, design, operate, plan,
maintain, erect, construct, improve, enlarge, repair, alter,
renovate, decorate, furnish and engage in work upon
pipelines and related facilities, refineries, buildings,
streets, roads, highways, bridges, viaducts, railroads,
railway structures, piers, docks, mines, shafts, waterworks,
reservoirs, dams, canals, sewer systems, electrical
transmission systems, excavations, and telephone and
telegraph systems, and other structures and works; to employ
mechanics, laborers, artisans, and workmen; to make
contracts and sub-contracts for work and materials; and to
purchase, manufacture, sell and otherwise deal in and with
building and construction materials, machinery, equipment
and supplies of every kind and description.
To construct, engineer, design, purchase,
plan or otherwise acquire, improve, enlarge, repair, alter,
renovate, lease as lessee, maintain, operate, sell or
otherwise dispose of, lease as lessor, mortgage and deal in
and with pipelines, gathering lines, lateral lines, pumping
stations, tanks, compressors, bridges, structures, tunnels,
buildings, plants and communication equipment used for the
transmission,
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storage, processing and distributing of gas, oil, petroleum
products and by-products, dairy products, water,
fertilizers, coal slurries and any and all other products,
commodities and materials, whether of a similar or different
nature.
To explore for, mine, refine, develop,
improve, conduct experimentation on, process, generate,
retrieve, transport, transmit or gather any form of energy
and to design, construct or provide any facilities,
machinery or equipment necessary or convenient to the
conduct of such activities.
(b) To establish, transact and carry on
generally a financial, investment holding, brokerage,
guaranty, consultancy, underwriting, mercantile, trading,
manufacturing, exporting, importing, freight forwarding,
design, engineering, architectural, construction,
installation, maintenance, repair, purchasing, inspection,
shipping, transportation, chartering, leasing, agricultural,
auditing, hostelry, food, beverage, clothing, fishing,
mining, exploration, development, communication,
advertising, and warehousing business and, in general, to
engage in any other lawful business, trade or activity
related to such activities, including without limitation
marine services such as the design, engineering,
construction, fabrication or installation of onshore and
offshore structures, pilings, pipelines, piers, dock
facilities and bridges, the operation of vessels, the
transportation of rigs and offshore facilities, whether or
not such business, trade or activity is similar to the
aforementioned purposes.
(c) To invest the capital of the Corporation,
accretions to capital and the income of the Corporation or
any part thereof, as the Board of Directors may determine,
in real property, including the construction and alteration
of buildings, and in personal property of any description
whatsoever, including mortgages, bonds, shares and other
securities, and from time to time to change said investments
by sale, exchange or otherwise, and to invest the proceeds
of any sale or sales in other investments of a like nature.
(d) To establish, transact and carry on the
business of a manufacturing, merchandising and trading
company; to manufacture, purchase, lease, sublease and
acquire by contract, license or otherwise; to hold, own,
mortgage, pledge, hypothecate, exchange, sell, assign, and
transfer, or otherwise dispose of; and to manage, invest,
trade and deal in and with, both for its own account and for
the account
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of others, raw materials, goods, wares, merchandise,
commodities and other property of every kind, nature and
description.
(e) To establish, transact and carry on the
business of exporters, importers and forwarders as
principal, factor, agent, broker, commission merchant or
otherwise, in the Republic of Panama, and in any and all
colonies, dependencies, dominions, possessions, states,
territories and countries foreign thereto; to export from
and import into the Republic of Panama and from and into any
and all colonies, dependencies, dominions, possessions,
states, territories and countries foreign thereto, as
principal, factor, agent, broker, commission merchant or
otherwise, raw materials, goods, wares, merchandise,
commodities and other property of every kind, nature and
description; to deal in bills of lading, warehouse receipts
and any and all other documents necessary or incidental to
the conduct of such business; to act as factor, agent,
broker, representative, trustee or commission merchant for
any person or company and as trustee without conducting
trust businesses in the Republic of Panama.
(f) To purchase, build, hire, charter, or
otherwise own, hold, use and dispose of steam and other
ships and vessels and their appurtenances; to establish,
operate and maintain steam and other ships and vessels
between any cities, towns and ports in the Republic of
Panama or in any part of the world; and generally to
transport passengers, raw materials, goods, wares,
merchandise, commodities, animals and other property of
every kind, nature and description.
(g) To apply for, purchase, register or in any
manner to acquire, hold, own, use, operate, introduce, sell,
lease, assign, pledge or in any manner dispose of, and in
any manner deal with, patents, patent rights, licenses,
copyrights, trade marks, trade names, formulae, secret
processes, inventions, improvements and processes used in
connection with or secured under leases, patents or similar
rights granted by the Republic of Panama or by any other
country or government or otherwise; to acquire, own, use,
deal in or with, and in any manner dispose of any and all
inventions, improvements, and processes, labels, designs,
brands and other rights; and to work operate, exercise or
develop the same and to carry on any business which the
Corporation may deem advantageous to effectuate, directly or
indirectly, these purposes or any of them.
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(h) To guarantee or become liable for the
payment of money or for the performance of any obligations,
and generally to transact all kinds of guarantee business,
and also to transact all kinds of agency business.
(i) To acquire by original subscription,
syndicate participation, tender, purchase, or otherwise, and
to hold, sell, exchange, surrender, lease, assign, transfer,
mortgage, charge, convert, turn to account, deal in, pledge
or otherwise dispose of shares, stocks, debenture stocks,
scrip, debentures, bonds, mortgages, notes, warrants,
coupons, drafts, obligations, securities, produce,
concessions, options, patents, annuities, licenses,
policies, debts, business concerns and goodwill, claims,
privileges, choses in action, commercial instruments,
evidences of indebtedness and contracts, of every nature and
kind, issued, created or guaranteed by any other person or
company and irrespective of the business which it may be
carrying on or be authorized to carry on, and irrespective
of the locality in which it operates, or issued, created or
guaranteed by any government, public body or authority,
municipal, local or otherwise, and whether of the Republic
of Panama or elsewhere, and while the owner thereof to
receive, collect and dispose of interest and dividends
thereon and income therefrom, and to exercise all the
rights, powers and privileges of ownership, including the
right to vote thereon.
(j) To acquire and undertake the whole or any
part of the business, property and liabilities of any person
or company carrying on any business or possessed of property
suitable for the purposes of the Corporation, and to carry
on, conduct, assist, subsidize, contribute to, dissolve or
liquidate any business so acquired, or any other business
which can be advantageously carried on by the Corporation;
to organize, incorporate, reorganize, aid, assist
(financially or otherwise), amalgamate, consolidate or merge
with any subsidiary or affiliated company, or any other
company and to do any and all things necessary or convenient
to carry such purposes into effect.
(k) To draw, make, accept, indorse, discount,
execute, issue and deal in promissory notes, bills of
exchange, bills of lading, warrants, debentures and other
negotiable or transferable instruments.
(l) To purchase, take on lease or in exchange,
hire or otherwise acquire, hold, sell, mortgage or pledge,
transfer or otherwise dispose of any real and personal
property and any rights and privileges which the Corporation
may think
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necessary or convenient for the purposes of its business;
and to pay for any such property and any rights, interests
or privileges acquired by the Corporation in exchange for
money or other property, rights or interests held by the
Corporation, or for the issuance or assignment and delivery
in exchange therefor (in any manner permitted by law) its
own shares, bonds, debentures, notes, certificates of
indebtedness or other obligations, or any of them, however
evidenced.
(m) To purchase or otherwise acquire, hold,
sell, pledge, transfer or otherwise dispose of, and to
reissue its own capital stock, bonds, debentures, notes or
other securities, obligations or evidences of indebtedness
of the Corporation from time to time to such extent and in
such manner and upon such terms and conditions as the Board
of Directors shall determine; provided, however, that shares
of its own capital stock belonging to the Corporation shall
not be voted upon directly or indirectly.
(n) To borrow money, to issue bonds, promissory
notes, bills of exchange, debentures, and other obligations,
securities and evidences of indebtedness, whether secured by
mortgage, pledge, deed of trust or otherwise, or unsecured,
for money borrowed or in payment of property, real or
personal, purchased or acquired, for labor done or for any
other lawful object; and to mortgage or pledge all or any
part of its properties, rights, interests, easements and
franchises, including after-acquired property or rights, and
any and all shares of stock, bonds, debentures or other
securities, obligations or evidences of indebtedness at any
time owned or held by it.
(o) To insure with any other person or company
against losses, damages, risks and liabilities of all kinds
which may affect the Corporation.
(p) To establish and support or aid in the
establishment and support of associations, institutions,
funds and services calculated to benefit employees or ex-
employees of the Corporation or the dependents or relatives
of such persons, to grant pensions and allowances, to make
payments towards insurance, and to subscribe or guarantee
money for charitable or benevolent objects or for any
exhibition or for any public, general or useful objects.
(q) To make and carry into effect any agreement
or contract for sharing profits, union of interests,
cooperation, joint adventure, reciprocal concession or
otherwise with, and to manage or supervise any person or
company, carrying on or engaged in, or about to carry on or
engage in, any business or transaction which the
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Corporation is authorized to carry on or engage in, or any
business or transaction capable of being conducted so as to
benefit the Corporation directly or indirectly; and to
accept by way of consideration for any such agreement or
contract or for management services, cash or any stock,
debentures or securities of any person or company.
(r) To establish or promote and to cause to be
incorporated any company for the purpose of acquiring all or
any part of the property and liabilities of the Corporation,
or for any other purpose which may seem calculated to
benefit the Corporation directly or indirectly.
(s) To enter into, make, perform and carry out
contracts of every kind for any lawful purpose; to enter
into any arrangements with any governments or authorities,
municipal, local or otherwise and to obtain from any such
government or authority, any rights, privileges and
concessions which the Corporation may consider desirable to
obtain; and to carry out, exercise, and comply with any such
arrangements, rights, privileges and concessions.
(t) To sell, lease or otherwise dispose of the
whole or any part of the assets, rights, property or
undertakings of the Corporation for cash, shares,
debentures, bonds, mortgages or other securities of any
other company, or for such consideration as the Board of
Directors may think fit; and to improve, manage, develop,
exchange, mortgage, turn to account or otherwise deal with
all or any part of the assets, rights and property of the
Corporation.
(u) To lend or advance money or give credit to,
or give guarantee or become security for, stockholders,
officers or directors of the Corporation, to any person,
firm or corporation in which the Corporation has any direct
or indirect beneficial interest, wherever located, any
customers or others having dealings with the Corporation, on
such terms as the Board of Directors may deem expedient.
(v) To have one or more offices and to carry on
and conduct any or all of its operations and business and to
do all such things as are conducive or incidental to the
attainment of its corporate purposes in the Republic of
Panama and in any and all colonies, dependencies, dominions,
possessions, states, territories and counties foreign
thereto; to keep the books and accounts of the Corporation,
including the Stock Register, at any place or places, either
within or without the Republic of Panama; and to procure
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the registration or qualification or recognition of the
Corporation in or under the laws of any colony, dependency,
dominion, possession, state, territory or country in the
world.
(w) To provide for the management of the affairs
of the Corporation abroad in such manner and by such means
as the Board of Directors may from time to time deem
suitable and appropriate and for the delegation to an
attorney or attorneys of the Corporation, who may be any
person or persons, of such powers, authorities and
discretions as the directors may think fit.
(x) To issue shares of the capital stock of the
Corporation for cash, for labor done, for property, real or
personal, or for leases thereof, or for any combination of
any of the foregoing, or in exchange for the stock,
debentures, debenture stock, bonds, securities or
obligations of any person, firm, association, corporation or
other organization.
(y) To accept and vote a proxy or proxies from
individuals, partnerships, persons, firms, associations or
corporations.
(z) To distribute in specie, by way of dividend
or otherwise, among the stockholders, customers or employees
of the Corporation, any shares of stock or securities
belonging to the Corporation or any property or assets of
the Corporation.
(aa) To do any and all of the above acts and
things and to have and exercise any and all of the above
powers in any part of the world and either as principal,
attorney, factor, broker, commission merchant, trustee
(without conducting trust businesses in the Republic of
Panama), agent, contractor or otherwise and either alone or
in conjunction with others and either by or through agents,
trustees or otherwise.
(bb) To do all things necessary for the
accomplishment of the objects and purposes enumerated in
these Articles of Incorporation or any amendment thereto or
necessary or incidental to the protection or benefit of the
Corporation.
(cc) In general, to carry on any lawful business not
prohibited to corporations in any part of the world whether
or not such business is similar in nature to the objects set
forth in these Articles of Incorporation or any amendment
thereto, including without limitation to have and exercise
all the powers conferred by the laws of the Republic of
Panama upon corporations formed under the Act hereinafter
referred to, and to do any or all of the things hereinbefore
set forth to the same extent as natural persons might or
could do.
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It is hereby declared that the word "company" wherever
used in this Article SECOND shall be deemed to include any
partnership or other body of persons, whether incorporated
or not incorporated, and whether organized or domiciled in
the Republic of Panama or elsewhere. The purposes specified
in each paragraph of this Article SECOND shall, except where
otherwise expressed in such paragraph, be in no wise limited
or restricted by reference or inference, from the terms of
any other paragraph and that in the event of any ambiguity
this Article SECOND shall be construed in such a way as to
widen and not to restrict the powers of the Corporation.
With these purposes the Corporation shall have all the
powers outlined in Article 19 of Law 32 of 1927 of the
Republic of Panama as well as any other powers which may be
granted to the Corporation by any other laws in force.
THIRD: Capital. The authorized capital of the
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Corporation shall consist of THIRTY-SEVEN MILLION NINE HUNDRED
SIXTY THOUSAND U.S. DOLLARS (U.S. $37,960,000), consisting of:
THIRTY-FIVE MILLION (35,000,000) shares of common stock, par value
FIVE U.S. CENTS (U.S. $.05) per share ("Common Stock"); THREE
HUNDRED SIXTY-TWO THOUSAND (362,000) shares of preferred
stock, par value ONE HUNDRED U.S. DOLLARS (U.S. $100.00) per
share ("Preferred Stock"); and ONE MILLION (1,000,000)
shares of class A preferred stock, par value ONE U.S. CENT
(U.S. $.01) per share ("Class A Preferred Stock"). Shares
shall all be in nominative form and may not be issued to
bearer.
A. The powers, designations and preferences and
the relative, participating, optional and other special
rights of Common Stock and Preferred Stock, and the
qualifications, limitations and restrictions of such
preferences and/or rights, are as follows:
(a) Dividends. The holders of Preferred
Stock, in preference to the holders of Common Stock, shall
be entitled to receive, when and as declared by the Board of
Directors out of any funds legally available therefore,
cumulative dividends in cash, payable quarterly on the last
day of each of the months of March, June, September and December
in each year commencing with 1996 to holders of Preferred Stock
of record on the first day of the calendar month in which such
dividends
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are payable, of EIGHT U.S. DOLLARS (U.S. $8.00) per share
per annum. Dividends on shares of Preferred Stock shall
first begin to accrue on January 1, 1996, shall be
cumulative, and shall be paid pro rata to the holders of
Preferred Stock. Accrued but unpaid dividends shall not
bear interest.
Commencing January 1, 1996, and for so
long thereafter as any shares of Preferred Stock are
outstanding, no dividend or other distribution shall be
declared or paid on shares of Common Stock with respect to
any calendar year, unless the cumulative dividends on all
outstanding shares of Preferred Stock shall have been paid
in full or contemporaneously are declared and paid through
December 31st of such calendar year. At any time after such
cumulative dividends have been paid in full or
contemporaneously declared and paid through December 31st of
such calendar year, a dividend or other distribution may be
declared or paid on shares of Common Stock; provided that,
after the holders of Common Stock shall have received in any
calendar year commencing January 1, 1996, dividends or other
distributions, in the aggregate, in an amount per share of
Common Stock held by such holders equal to the quotient
obtained by dividing EIGHT U.S. DOLLARS (U.S. $8.00) by the
Conversion Ratio then in effect pursuant to paragraph (d)
below, no further dividends or other distributions shall be
declared or paid on shares of Common Stock during such
calendar year, unless an equivalent dividend or distribution
on the outstanding shares of Preferred Stock shall have been
paid or declared and a sum sufficient for the payment
thereof set apart. For purposes of the declaration or
payment of dividends or other distributions, a dividend or
distribution on shares of Preferred Stock shall be deemed
"equivalent" to a dividend or distribution on shares of
Common Stock if the dividend or distribution declared or
paid on each outstanding share of Preferred Stock entitles
the holder thereof to the same money or other property to
which such holder would have been entitled if such holder
held the number of full and fractional shares of Common
Stock into which such share of Preferred Stock is then
convertible.
(b) Liquidation. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation: (i) each holder of record of shares of Preferred
Stock shall be entitled, before any distribution is made on
shares of
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Common Stock, to be paid ONE HUNDRED U.S. DOLLARS
(U.S. $100.00) per share of Preferred Stock held by such
holder, plus, in each case, an amount equal to all accrued
and unpaid dividends thereon, if any; (ii) thereafter, each
holder of record of shares of Common Stock shall be
entitled, before any further distribution is made on shares
of Preferred Stock, to be paid an amount per share of Common
Stock held by such holder equal to the quotient obtained by
dividing ONE HUNDRED U.S. DOLLARS (U.S. $100.00) by the
Conversion Ratio then in effect pursuant to paragraph (d)
below; and (iii) thereafter, the holders of Common Stock and
Preferred Stock shall be entitled to participate in the net
assets of the Corporation remaining after such dissolution,
liquidation or winding up and after payment or provision for
the payment of the debts and liabilities of the Corporation,
distributing such proceeds pro rata among the holders of
Common Stock and Preferred Stock without priority between
such classes, and for purposes of liquidating distributions
each share of Preferred Stock shall be treated as the number
of full and fractional shares of Common Stock into which
such share of Preferred Stock is then convertible.
The foregoing provisions of this
paragraph (b) shall not, however, be deemed to require the
distribution of assets among the holders of Common Stock and
Preferred Stock in the event of a merger, consolidation, or
sale, transfer or lease of all or substantially all of the
Corporation's assets if such transaction does not in fact
result in the dissolution, liquidation or winding up of the
Corporation.
(c) Voting. Each share of Common Stock
shall entitle the registered holder thereof to one vote on
all matters brought before the stockholders of the
Corporation for a vote. The registered holders of shares of
Preferred Stock shall also be entitled to vote on all
matters brought before the stockholders of the Corporation
for a vote, with each share of Preferred Stock entitling the
registered holder thereof to one vote for each whole share
of Common Stock into which such share of Preferred Stock is
then convertible. Except as set forth below or as otherwise
required by law, the holders of Preferred Stock and the
holders of Common Stock shall vote together as one class on
all matters brought before the stockholders of the
Corporation for a vote.
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The holders of the Preferred Stock
shall be entitled to vote as a class upon any proposed
amendment to the Corporation's Articles of Incorporation, if
and to the extent such amendment would increase or decrease
the aggregate number of authorized shares of Preferred
Stock, increase or decrease the par value of the shares of
Preferred Stock, alter or change the powers, preferences or
special rights of the Preferred Stock so as to affect them
adversely, or authorize a class of equity security of the
Corporation senior to the Preferred Stock.
(d) Conversion. Each share of Preferred Stock
shall be convertible, at the option of the holder thereof, at any
time, into that number of full shares of Common Stock equal to the
Conversion Ratio (as hereinafter defined and as the same may be
adjusted as set forth below). Conversion of a share of Preferred
Stock shall be effected by surrender of the holder's certificate
representing such share of Preferred Stock, accompanied by a written
notice from such holder addressed to the Corporation requesting
conversion. Upon voluntary conversion, holders of converted shares
of Preferred Stock will be issued certificates representing the full
shares of Common Stock (and cash with respect to any fractional interest
in a share of Common Stock as provided below) to which they are entitled.
Upon the effectiveness of the
Corporation's first registration statement covering Common
Stock filed under the United States Securities Act of 1933,
as amended, or any successor to such statute, each share of
Preferred Stock shall immediately and automatically become
converted into that number of full shares of Common Stock
equal to the Conversion Ratio, as the same may be adjusted
as set forth below. Upon automatic conversion, holders of
converted shares of Preferred Stock shall promptly surrender
their certificates representing such shares to the
Corporation, whereupon such holders will be issued
certificates representing the full shares of Common Stock
(and cash with respect to any fractional interest in a share
of Common Stock as provided below) to which they are
entitled.
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The Conversion Ratio at the time of the
first issuance of shares of Preferred Stock shall equal one
(1.0). Thereafter, the Conversion Ratio shall be subject to
the following adjustments:
(i) If the Corporation shall declare a
dividend or distribution of its capital stock or of
evidences of the Corporation's indebtedness or assets
(excluding cash dividends or distributions) on Common Stock,
or effect a stock split or reverse stock split with respect
to Common Stock, or issue shares of its capital stock by
reclassification of shares of Common Stock, the Conversion
Ratio in effect on the record date, for any such stock
dividend or distribution, or the effective date of any such
other event, shall be adjusted proportionately so that the
holder of a share of Preferred Stock thereafter shall be
entitled to receive upon conversion the aggregate number of
shares of Common Stock or other capital stock that such
holder would own or be entitled to receive after the
happening of any of the events mentioned above if such share
of Preferred Stock had been converted immediately prior to
the close of business on such record date or effective date,
as applicable.
(ii) If the Corporation shall effect
any reclassification or similar change of outstanding shares
of Common Stock (other than as set forth in clause (i) of
this paragraph (d)) or a consolidation or merger of the
Corporation with another corporation or a conveyance of all
or substantially all of the assets of the Corporation, a
share of Preferred Stock shall, after such capital
reorganization, reclassification, change, consolidation,
merger or conveyance, be convertible only into the number of
shares of stock or other properties, including cash, to
which a holder of the number of shares of Common Stock
deliverable upon conversion of a share of Preferred Stock
would have been entitled upon such capital reorganization,
reclassification, change, consolidation, merger or
conveyance if such share of Preferred Stock had been
converted immediately prior to the effective date of such
event; and, in any such case, appropriate adjustments (as
determined by the Board of Directors) shall be made in the
application of the provisions set forth in this Article
THIRD with respect to the rights and interests thereafter of
the holders of Preferred Stock to the end that the
provisions set forth in this Article THIRD (including
provisions with respect to changes in
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and other adjustments of the conversion rights in this
paragraph (d)) shall thereafter be applicable, as nearly as
may be reasonable, in relation to any shares of stock or
other securities thereafter deliverable upon the conversion
of a share of Preferred Stock.
(iii) The Corporation shall give
written notice to the holders of Preferred Stock of any
proposed transaction within the scope of clause (i) or (ii)
of this paragraph (d) not less than ten (10) days prior to
the anticipated record date or effective date, as the case
may be, therefor and provide in such written notice a brief
description of the terms and conditions of such transaction.
In connection with the conversion of
any shares of Preferred Stock, no fractions of shares of
Common Stock shall be issued, but the Corporation shall pay
a cash adjustment in respect of such fractional interest in
an amount equal to the fair market value of such fractional
interest as determined by the Board of Directors. If more
than one share of Preferred Stock shall be surrendered for
conversion at any one time by the same holder, the number of
full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of
shares of Preferred Stock so surrendered.
Upon conversion of any shares of
Preferred Stock the holder thereof shall be entitled to
receive from the Corporation, in respect of the shares so
converted, payment in cash of any dividends which have
become payable in accordance with paragraph (a) of this
Article THIRD but remain unpaid. In the event the
Corporation is prevented by applicable corporate law, in
whole or in part, from making such dividend payment, the
Corporation shall have a continuing obligation to make such
payment, which shall survive such conversion, until the same
is paid.
(e) Redemption. On March 31, 2001, the
Corporation, upon notice given as provided below, shall redeem
all then outstanding shares of Preferred Stock by paying
therefor in cash, as provided below, the sum of ONE HUNDRED
U.S. DOLLARS (U.S. $100.00) per share, plus, in each case,
a cash amount equal to all accrued and unpaid dividends thereon,
if any (the "Redemption Price").
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At least ten (10) and not more than
thirty (30) days' previous notice of such redemption of
Preferred Stock shall be mailed to the holders of record of
such Preferred Stock at their respective addresses as the
same shall appear on the books of the Corporation.
On or before March 31, 2001, the
Corporation may provide for the payment of an amount
sufficient to redeem the shares of Preferred Stock called
for redemption by either (i) setting aside the amount,
separate from its other funds, in trust for the benefit of
the holders of the shares to be redeemed, or (ii) depositing
such amount in a bank or trust company as a trust fund, with
irrevocable instructions and authority to the bank or trust
company to give or complete the notice of redemption and to
pay to the holders of the shares of Preferred Stock to be
redeemed, on or after March 31, 2001, the Redemption Price
upon surrender of their respective share certificates. If
the Corporation so provides for payment of the Redemption
Price by either method, then, from and after March 31, 2001,
(i) the shares of Preferred Stock shall be deemed to be
redeemed, (ii) dividends thereon shall cease to accrue,
(iii) such setting aside or deposit shall be deemed to
constitute full payment for the shares, (iv) the shares no
longer shall be deemed to be outstanding, (v) the holders
thereof shall cease to be stockholders with respect to such
shares, and (vi) the holders shall have no rights with
respect thereto, except the right to receive (without
interest) the Redemption Price upon surrender of their stock
certificates. Any interest accruing on funds so set aside
or deposited shall belong to the Corporation. If funds are
deposited with a bank or trust company as provided herein,
and the holders of the shares of Preferred Stock do not,
within three (3) years after such deposit, claim any amount
so deposited for the redemption thereof, the bank or trust
company shall pay over to the Corporation upon demand the
balance of the funds so deposited, and the bank or trust
company thereupon shall be relieved of all responsibility to
such holders.
In the event the Corporation is
prevented by applicable corporate law, in whole or in part,
from making any redemption payments at the time called for
under this paragraph (e), the Corporation shall make such
redemption at the
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appointed time, only to the extent permitted by applicable
corporate law, and shall then complete such redemption (in
one or more later transactions) at such time or times as the
same is permitted by applicable corporate law.
(f) Identical Rights and Privileges.
Except as otherwise expressly provided above in this Article
THIRD, the holders of Common Stock and the holders of
Preferred Stock shall be entitled to the same rights and
privileges.
(g) Restrictions on Transfer to Preserve
Tax Status. It is in the best interests of the
Corporation and its stockholders that the Corporation's
status as a non-controlled foreign corporation ("Non-CFC")
under the United States Internal Revenue Code of 1986, as
amended from time to time (the "Code"), be preserved.
Therefore, any purported Transfer (as hereinafter defined)
of any shares of Common Stock to any person or entity, which
would result in such person or entity, together with any
other person or entity whose shares of Common Stock would be
aggregated with such person or entity for purposes of
Section 957 of the Code, being the beneficial owner of ten
percent (10%) or more of the issued and outstanding shares
of Common Stock, will be subject to a determination by the
Board of Directors in good faith, in its sole discretion,
that such Transfer would not in any way, directly or
indirectly, affect the Corporation's Non-CFC status. The
transferee or transferor proposed to be involved in such
Transfer shall give to the Secretary of the Corporation not
less than thirty (30) days prior written notice of such
proposed Transfer. In the event of an attempted Transfer in
violation of this paragraph (g), the purported transferee
shall acquire no rights whatsoever in such shares of Common
Stock. If the Board of Directors shall at any time
determine in good faith that a Transfer has taken place in
violation of this paragraph (g) or that a person intends to
acquire, has attempted to acquire or may acquire ownership
of any shares of Common Stock in violation of this paragraph
(g), the Board of Directors shall take such action as it
deems advisable to refuse to give effect to or to prevent
such Transfer, including without limitation instituting
proceedings to enjoin such Transfer. In the case of an
ambiguity in the application of any of the provisions of
this paragraph (g), the Board of Directors shall have the
power to determine the application of the provisions of this
paragraph (g) with respect to any situation based on the
facts known to it. For
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purposes of this paragraph (g), the term "Transfer" shall
mean any sale, transfer, gift, assignment, devise or other
disposition of Common Stock, including without limitation
(1) the granting of any option or entering into of any
agreement for the sale, transfer or other disposition of
Common Stock, or (2) the sale, transfer, assignment or other
disposition of any securities or rights convertible into or
exchangeable for Common Stock, whether voluntary or
involuntary, whether of record or beneficially, and whether
by operation of law or otherwise. Nothing in this paragraph
(g) precludes the settlement of any transaction entered into
through the facilities of the New York Stock Exchange.
B. Class A Preferred Stock may be issued from
time to time in one or more series, each of such series to
have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereon or
thereof, as are stated and expressed herein and in the
resolution or resolutions providing for the issue of such
series adopted by the Board of Directors as hereinafter
provided. Authority is hereby expressly granted to the
Board of Directors, subject to the provisions of this
Part B, to authorize the issue of one or more series of Class A
Preferred Stock and, with respect to each series, to fix by
resolution or resolutions providing for the issue of such
series:
(a) The number of shares to constitute such
series and the distinctive designation thereof, provided
that unless otherwise stated in any resolution or
resolutions relating to such series, such number of shares
may be increased or decreased by the Board of Directors in
connection with any classification or reclassification of
unissued shares of Class A Preferred Stock;
(b) The annual dividend rate on the shares
of such series and the date or dates from which dividends
shall accumulate;
(c) Whether the holders of such series are
or are not entitled to participate in earnings of the
Corporation through dividends in excess of (or in lieu of)
dividends at an annual rate and the terms of any such right
to participate;
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(d) Whether or not the shares of such
series shall be subject to redemption, the limitations and
restrictions with respect to such redemption, if any, and
the times of redemption of the shares of such series and the
amounts (or methods of calculating such amounts) which the
holders of such series shall be entitled to receive upon the
redemption thereof, which amounts (or method of calculating
such amounts) may vary at different redemption dates and may
also, with respect to shares redeemed through the operation
of any retirement or sinking fund, be different from the
amounts (or method of calculating such amounts) with respect
to shares otherwise redeemed;
(e) The amount (or method of calculating
such amount) which the holders of such series shall be
entitled to receive upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) Whether or not the shares of such
series shall be subject to the operation of a retirement or
sinking fund and, if so, the extent to and manner in which
it shall be applied to the purchase or redemption of the
shares of such series for retirement or to other corporate
purposes and the terms and provisions relative to the
operation thereof;
(g) Whether or not the shares of such
series shall be convertible into, or exchangeable for,
shares of stock of any other class or classes, or of any
other series of the same class, and if so convertible or
exchangeable, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting
the same, and the other terms and conditions of such
conversion or exchange;
(h) The voting rights, if any, of holders
of shares of such series in addition to the voting rights
provided for by applicable law;
(i) The limitations and restrictions, if
any, to be effective while any shares of such series are
outstanding upon the payment of dividends or making of other
distributions on, and upon the purchase, redemption or other
acquisition
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by the Corporation of Common Stock or any other class or
classes of stock of the Corporation ranking junior to the
shares of such series;
(j) The conditions or restrictions, if any,
upon the creation of indebtedness of the Corporation or upon
the issue of any additional stock (including additional
shares of such series or of any other series or class)
ranking on a parity with or prior to the shares of such
series as to dividends or upon liquidation; and
(k) Any other preference and relative,
participating, optional, or other special rights, and
qualifications, limitations or restrictions thereon or
thereof, as shall not be inconsistent with this Part B.
All shares of any one series of Class A
Preferred Stock shall be identical with each other in all
respects, except that shares of any one series issued at
different times may differ as to the dates from which
dividends thereon shall be cumulative if dividends on such
series accumulate; and all series shall rank equally and be
identical in all respects, except as permitted by the
foregoing provisions of this Part B.
For purpose hereof and of any resolution of
the Board of Directors providing for the classification or
reclassification of any shares of Class A Preferred Stock or
for the purpose of any certificate filed with the Republic
of Panama (unless otherwise provided in any such resolution
or certificate):
(i) The term "outstanding," when used in
reference to shares of stock, shall mean issued shares,
excluding shares held by the Corporation and shares called
for redemption, funds for the redemption of which shall have
been deposited in trust; and
(ii) The amount of dividends "accrued" on
any share of Class A Preferred Stock of any series providing
for cumulative dividends as at any dividend date shall be
deemed to be the amount of any unpaid dividends accumulated
thereon to and including such dividend date, whether or not
earned or declared, and the
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amount of dividends "accrued" on any share of Class A
Preferred Stock of any series as at any date other than a
dividend date shall be calculated thereon to and including
the last preceding dividend date, whether or not earned or
declared, plus an amount equivalent to the pro rata portion
of the periodic dividend with respect thereto at the annual
dividend rate fixed for the shares of such series for the
period after such last preceding dividend date to and
including the date as of which the calculation is made.
FOURTH: Limited Liability. The liability of each
------ -----------------
stockholder is limited to the amount, if any, unpaid on his shares.
FIFTH: Domicile. The domicile of the
----- --------
Corporation is in the Republic of Panama, and the name of its
Resident Agent is the law firm ARIAS, FABREGA & FABREGA, whose
domicile is at Edificio Plaza Bancomer, 50th Street, Panama 5,
Republic of Panama. The Corporation may, as provided for by the
Board of Directors, engage in business and establish branches and
keep its files and assets anywhere in the world. The
Corporation may change its domicile of incorporation and
continue to exist under the laws or jurisdiction of another
country, if authorized by resolution of the Board of
Directors or the stockholders of the Corporation.
SIXTH: Duration. The duration of the
----- --------
Corporation's existence is to be perpetual.
SEVENTH: Board of Directors. The business of the
------- ------------------
Corporation shall be managed under the direction of a Board
of Directors in accordance with the following:
(a) The Board of Directors may exercise all
of the powers of the Corporation except such as are by law,
by these Articles of Incorporation or by the Bylaws
conferred upon or reserved to the stockholders.
(b) The number of directors constituting
the entire Board of Directors shall be not less than three
(3) directors nor more than fifteen (15) directors, the
exact number within such limits to be determined from time
to time by resolution
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adopted by the affirmative vote of a majority of the
directors present at a meeting of the Board of Directors at
which a quorum is present; provided, however, that the
number of directors shall not be reduced so as to shorten
the term of any director at that time in office; and
provided further, that the number of directors constituting
the entire Board of Directors shall be six (6) until
otherwise fixed by a majority of the entire Board of
Directors.
(c) The Board of Directors shall be divided
into three classes, designated Class I, Class II and Class III.
All classes shall be as nearly equal in number as
possible, and no class shall include less than one (1)
director. The terms of office of the directors initially
classified shall be as follows: at the 1996 annual meeting
of stockholders, Class I directors shall be elected for a
one-year term expiring at the next annual meeting of
stockholders; Class II directors shall be elected for a two-
year term expiring at the second succeeding annual meeting
of stockholders; and Class III directors shall be elected
for a three-year term expiring at the third succeeding
annual meeting of stockholders. At each annual meeting of
stockholders after such initial classification, directors to
replace those whose terms expire at such annual meeting
shall be elected to hold office until the third succeeding
annual meeting. Each director shall hold office until the
expiration of that director's term and until that director's
successor is elected and qualifies, unless that director
earlier dies, resigns or is removed. If the number of
directors is changed in accordance with the terms of these
Articles of Incorporation, any increase or decrease shall be
apportioned among the classes so as to maintain the number
of directors in each class as nearly equal in number as
possible.
(d) Nominations of candidates for election
as directors of the Corporation at any meeting of the
stockholders at which election of one or more directors
shall be held (an "Election Meeting") may be made by or at
the direction of the Board of Directors or by any
stockholder entitled to vote at such Election Meeting, in
accordance with the following procedures. Nominations made
by or at the direction of the Board of Directors may be made
at any time. At the request of the Secretary of the
Corporation, each proposed nominee shall provide the
Corporation with such information concerning the proposed
nominee as is required, under the rules of the U.S.
Securities and
- 21 -
Exchange Commission, to be included in the Corporation's
proxy statement soliciting proxies for the nominee's
election as a director. Nominations, other than those made
by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary
of the Corporation. Not less than forty-five (45) days nor
more than ninety (90) days prior to the date of the Election
Meeting, any stockholder who intends to make a nomination at
the Election Meeting shall deliver a notice to the Secretary
of the Corporation setting forth (i) the name, age, business
address and residence address of each nominee proposed in
such notice, (ii) the principal address of each nominee
proposed in such notice; (iii) the number and type of shares
of stock of the Corporation which are beneficially owned by
each such nominee, and (iv) such other information
concerning each such nominee as would be required, under the
rules of the U.S. Securities and Exchange Commission, in a
proxy statement soliciting proxies for the election of such
nominees. Such notice shall include a signed consent of
each such nominee to serve as a director of the Corporation,
if elected. In the event that a person who is validly
designated as a nominee in accordance with this paragraph
shall thereafter become unable or unwilling to stand for
election to the Board of Directors, the Board of Directors
may designate a substitute nominee. If the Chairman of the
Election Meeting determines that a nomination was not made
in accordance with the foregoing procedures, such nomination
shall be void.
(e) Any vacancies in the Board of Directors
for any reason, and any directorships resulting from any
increase in the number of directors, may be filled by the
Board of Directors, acting by a majority of the directors
then in office, although less than a quorum, and any
director so chosen shall hold office until the next election
of the class for which such director shall have been chosen
and until such director's successor shall be elected and
shall qualify.
(f) There shall be no cumulative voting in
the election of directors. Election of directors need not
be by written ballot unless the Bylaws of the Corporation so
provide.
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(g) No director may be removed from office
by the stockholders except for cause with the affirmative
vote of the holders of not less than a majority of the total
voting power of all outstanding securities of the
Corporation then entitled to vote generally in the election
of directors, voting together as a single class.
(h) Notwithstanding the foregoing, whenever
the holders of any one or more classes or series of
preferred stock issued by the Corporation shall have the
right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders,
the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the
terms of these Articles of Incorporation applicable thereto
(including the resolutions adopted by the Board of Directors
pursuant to Article THIRD), and such directors so elected
shall not be divided into classes pursuant to paragraph (c)
of this Article SEVENTH unless expressly provided by such
terms.
(i) Meetings of directors may be held in
the Republic of Panama or in any other country. A majority
of the directors then in office shall constitute a quorum
for the transaction of business at any meeting of the Board
of Directors.
(j) At any meeting of the directors, any
director may be represented and vote by proxy or proxies
(who need not be directors) appointed by an instrument in
writing, public or private, with or without power of
substitution. One or more directors may participate in a
meeting of the Board of Directors, or of a committee of the
Board of Directors, by means of conference telephone or
similar communications equipment by means of which all
persons participating in the meeting can hear each other.
Participation in a meeting by such means shall constitute
presence in person at such meeting.
(k) A director may hold any remunerative
office of profit with the Corporation in addition to the
office of director. No director shall be disqualified from
entering into contracts, arrangements or dealings with the
Corporation and no such contracts, arrangements or dealings
shall be voided, whether they be with the director or
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with a corporation in which he is interested as member or
director or officer or otherwise, and no director shall be
liable to account to the Corporation for any profit arising
out of any such contract, arrangement or dealing, provided
that such director discloses to the directors of the
Corporation his interest in such contract, arrangement or
dealing at or before the time such contract, arrangement or
dealing is determined upon or entered into and such
contract, arrangement or dealing is approved by the Board of
Directors.
(l) The Board of Directors may appoint two
or more of their number to constitute an Executive Committee
or any other committee or committees, who shall have and
exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation to
the extent and subject to the restrictions expressed in
these Articles of Incorporation, the Bylaws or the
resolution appointing such committee or committees.
(m) The Board of Directors may make, alter,
amend and repeal the Bylaws.
(n) The Board of Directors may, without
stockholder approval, cause the Corporation to guaranty
debts and obligations of its wholly- or partly-owned
subsidiaries or entities within the common control of the
stockholders of the Corporation, and pledge, encumber,
hypothecate, or otherwise grant as security, assets of the
Corporation as guaranty or security for said debts.
(o) Notwithstanding any other provisions of
these Articles of Incorporation or the Bylaws of the
Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, these Articles of
Incorporation or the Bylaws of the Corporation), any
proposal to amend or repeal, or adopt any provision
inconsistent with, this Article SEVENTH or any provision of
this Article SEVENTH shall require the affirmative vote of
the holders of seventy-five percent (75%) or more of the
outstanding shares of stock of the Corporation entitled to
vote on such matter.
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(p) To the fullest extent permitted by the
General Corporation Law of the Republic of Panama, as the
same exists or may hereafter be amended, a director of the
Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Board of
Directors may (i) cause the Corporation to enter into
contracts with directors providing for the limitation of
liability set forth in this paragraph (p) to the fullest
extent permitted by law, and (ii) adopt Bylaws or
resolutions or cause the Corporation to enter into contracts
providing for indemnification of directors and officers of
the Corporation and other persons. No amendment to or
repeal of this paragraph (p) shall apply to, or have any
effect on, the liability or alleged liability of any
director of the Corporation for or with respect to any acts
or omissions of such director occurring prior to such
amendment or repeal.
(q) The Board of Directors may, without
stockholder approval, sell, lease, exchange or otherwise
dispose of any part of the assets, rights, property or
undertakings of the Corporation, including its goodwill and
its corporate franchise, upon such terms and conditions and
for such consideration, which may consist in whole or in
part of money or other property, including shares of stock
in, and/or other securities of, any other corporation or
corporations as the Board of Directors deems expedient and
for the best interests of the Corporation; provided,
however, any such sale, lease, exchange or other disposal
that constitutes all or substantially all of the assets,
rights, property and undertakings of the Corporation,
including its goodwill and its corporate franchise, shall
require the affirmative vote of the holders of a majority of
the outstanding shares of stock of the Corporation entitled
to vote on such matter.
EIGHTH: Meetings. All the meetings of the
------ --------
stockholders and of the Board of Directors shall be held at
the office of the Corporation in the Republic of Panama or
at any other place or places, within or without the Republic
of Panama, as may be determined from time to time by the
Board of Directors.
NINTH: Amendment. The Corporation reserves the
----- ---------
right to amend these Articles of Incorporation as from time
to time amended, in the manner now or
- 25 -
hereafter prescribed by law, and all rights conferred on
officers, directors and stockholders herein are granted
subject to this reservation.
TENTH: No Preemptive Right. No stockholder
----- -------------------
shall have a preferential or preemptive right to purchase
or subscribe for any shares of the Corporation, whether
now or hereafter authorized or issued, including any shares
issued pursuant to an increase in authorized capital stock,
or pursuant to the issuance of stock which has previously
been authorized but remains unissued or from a prior issue
that has remained unsold, or in respect of stock that the
Corporation has purchased and which remains outstanding as
treasury stock.