Exhibit 3(a)
Appendix A
ARTICLES OF INCORPORATION OF THE
CORPORATION WITH LIMITED LIABILITY
SCHLUMBERGER N.V.
NAME AND DOMICILE
Article 1
1.1. The Company shall bear the name: SCHLUMBERGER N.V.
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1.2. Abroad and in transactions with foreign entities, persons or
organizations, the name SCHLUMBERGER LIMITED may be used.
1.3. The Company is established in Curacao.
1.4. The Company may change its place of domicile in accordance with the
Netherlands Antilles Ordinance on Transfer of Domicile to Third Countries
pursuant to a resolution of the Board of Directors.
OBJECTS
Article 2
2.1. The objects of the Company are:
(a) to design, develop, produce and supply technology, services, products and
systems and to, throughout the world, engage in any business or activity
related thereto;
(b) to enter into and carry on any mercantile business in any country and to
receive by assignment or purchase or to otherwise acquire any accounts
receivable, bank accounts, securities, bills of exchange, notes, bonds,
letters of credit, stocks or other instruments of value or documents of
title in any country and to collect and hold the proceeds thereof;
(c) to invest its assets in securities, including shares and other
certificates of participation and bonds, debentures or notes, as well as
other claims for interest bearing or non-interest baring debts, however
denominated, and in certificates, receipts, options, warrants or other
instruments representing rights to receive, purchase or subscribe for
securities or evidencing or representing any other rights or interest
therein in any and all forms, as well as derivatives and commodities;
(d) to borrow money and to issue evidences of indebtedness therefore, as well
as to lend money;
(e) to undertake, conduct, assist, promote or engage in any scientific,
technical or business research and development;
(f) to organize and to own, directly or indirectly, and to operate, under the
laws of any state or other government, domestic or foreign, corporations
and other organizations, companies, undertakings, entities, trusts, other
arrangements or persons; to subscribe for any such corporation,
organization, company, undertaking, entity, trust, other arrangement or
person; and to dissolve, liquidate, wind up, reorganize, merge or
consolidate any such corporation, organization, company, undertaking,
entity, trust, other arrangement or person;
(g) to obtain income from the disposition or grant of rights to use
copyrights, patents, designs, secret processes and formulae, trademarks
and other analogous property, from royalties (including rentals) for the
use of industrial, commercial or scientific equipment, and from
compensation or other consideration received for technical assistance or
services;
(h) to establish, participate in and manage limited liability and other
corporations, organizations, companies, undertakings, entities, trusts,
other arrangements or persons of every kind or nature whatsoever, and to
engage in industry and trade;
(i) to guarantee or otherwise secure, and to transfer ownership, to mortgage,
to pledge or otherwise to encumber assets as security for, and otherwise
take action to support, the obligations of the Company and the
obligations of other corporations, organizations, companies, undertakings
entities, trusts, other arrangements or persons, with or without
consideration;
(j) to place in trust all or any of its properties, including securities.
2.2. The Company is entitled to do all that in any way may be useful or
necessary for the attainment of the above objects or that is connected
therewith in the widest sense.
DURATION
Article 3
The Company shall have perpetual existence.
CAPITAL AND SHARES
Article 4
4.1. The authorized capital of the Company shall be SEVENTEEN MILLION UNITED
STATES DOLLARS (US$17,000,000.-), divided into (a) one billion five
hundred million (1,500,000,000) shares of common stock of the par value
of One United States Cent (US$0.01) per share and (b) two hundred million
(200,000,000) shares of preferred stock of the par value of One United
States Cent (US$0.01) per share, which may be issued in different series.
Shares of common stock may be referred to as "common shares" and shares
of preferred stock may be referred to as "preferred shares". The common
shares and the preferred shares, if any, may sometimes be referred to
herein as the "shares". Holders of common shares and preferred shares may
sometimes be referred to as the "shareholders".
4.2. Common shares representing more than twenty percent (20%) of the
authorized capital of the Company have been duly issued and fully paid.
4.3. Common shares, options to purchase or subscribe for common shares and
warrants or rights to subscribe for common shares, shall be issued at
such times, under such conditions and for such consideration, not less
than the par value per share in the case of the issuance of such share,
as may be determined from time to time by the Board of Directors.
4.4. With respect to the issuance of shares, options, warrants or rights to
purchase or subscribe for shares the Board of Directors may enter into
and conclude agreements without necessity of any action by the general
meeting of shareholders:
a. imposing special obligations upon the Company in connection with
the purchase of or subscription for shares;
b. concerning the issue of shares on a basis other than that on which
participation in the Company is open to the public; or
c. providing for the payment for shares by means other than by legal
tender of the Netherlands Antilles.
4.5. Subject to the provisions of this Article, preferred shares may be issued
from time to time in one or more series on such terms and conditions as
may be determined by the Board of Directors by the affirmative vote of at
least three- fourths of the members of the Board of Directors, after
considering the interests of the holders of common shares, for
consideration not less than the par value thereof and not less than fair
value taking into account the terms and conditions for the issuance
thereof and the relative voting, dividend and liquidation rights of such
preferred shares.
4.6. Prior to the issuance of any series of preferred shares, the Board of
Directors shall specify:
a. the distinctive designation of such series and the number of
preferred shares to constitute such series;
b. the annual dividend rate with respect to shares of such series,
which shall be based on the consideration paid on issuance of such
shares and which may be a fixed rate or a rate that fluctuates on
dividend adjustment dates set under a formula or procedure
determined by the Board of Directors prior to issuance, subject,
in all cases, to the following limitations:
(1) the annual dividend rate shall not exceed the greater of
(A) twenty percent (20%) or (B) one hundred and twenty
percent (120%) of the Standard & Poor's Weekly Preferred
Stock Yield Index or, in the event the Standard & Poor's
Weekly Preferred Stock Yield Index is no longer published,
any substantially equivalent preferred stock index, most
recently published before the date of issuance or the
relevant dividend adjustment date; and
(2) the annual dividend rate shall not be less than the smaller
of (A) six percent (6%) or (B) eighty percent (80%) of the
Standard & Poor's Weekly Preferred Stock Yield Index or, in
the event the Standard & Poor's Weekly Preferred Stock
Yield Index is no longer published, any substantially
equivalent preferred stock index, most recently published
before the date of issuance or the relevant dividend
adjustment date;
c. whether such dividends shall be payable annually or in
installments;
d. the rights, if any, of the holders of shares of such series to
convert shares of such series for shares of any other series of
preferred shares or for common shares, provided that shares of any
series shall not be convertible into shares of any series senior
thereto;
e. the rights, if any, of the Company to redeem shares of such series
(in which case the directors shall specify the date on or after
which the shares of such series may be called for redemption by
the
Company and the consideration to be paid therefore, or the manner
by which such consideration shall be calculated) and the rights,
if any, of holders of such shares to require the Company to
purchase such shares, and the provisions, if any, of any sinking
fund or other arrangement to be used in connection with such
redemption or purchase; and
f. any other terms and conditions of such series which are not
inconsistent with these articles of association or Netherlands
Antilles law.
4.7. Certificates for preferred shares may be issued bearing a legend
describing the terms and conditions thereof specified by the Board of
Directors.
4.8. Preferred shares of all series shall rank prior to the common shares with
respect to dividend and liquidation preferences as determined by the
Board of Directors at the time of issuance of any series of preferred
shares. Any series of preferred shares may be ranked by the Board of
Directors as to dividend and liquidation preferences, provided that no
series issued after any other series shall rank prior to such other
series as to such preferences. Any such series may be ranked pari passu
with any one or more other series as the Board of Directors may so
determine.
4.9. Upon liquidation of the Company, the holders of any series of preferred
shares shall be entitled to receive, before any distribution is made to
the holders of any other series of preferred shares ranking junior to
such series as to liquidation preference, and before any distribution to
the holders of common shares, the amount of the liquidation preference of
such shares which shall not exceed the sum of:
(1) the amount paid for such preferred shares on issuance, plus
(2) all accumulated and unpaid dividends on such preferred shares to
the date fixed for distribution.
Article 5
No holder of shares of the Company shall in that capacity have any preferential
or preemptive right to purchase or subscribe for any shares or any options,
warrants or rights to purchase shares or any securities convertible into or
exchangeable for shares which the Company may issue or sell, except those rights
of conversion, if any, of preferred shares specified in or determined in
accordance with Article 4.
Article 6
6.1. The Company may, for its own account and for valuable consideration, from
time to time acquire fully paid shares of its stock, on such terms and
conditions as the Board of Directors may determine, provided that at
least one- fifth part of its authorized capital remains outstanding with
others than the Company. The authority to make any such acquisition is
vested in the Board of Directors. Any shares so acquired may be canceled
by the Board of Directors without the prior approval of the general
meeting of shareholders.
6.2. The Company shall not acquire any voting rights by reason of ownership of
shares of its stock and, in connection with any general meeting of
shareholders, shares owned by the Company shall not be counted as
outstanding, or as present or represented, for the purpose of determining
a quorum or for any other purpose.
6.3. Shares of its stock owned by the Company may be sold at such times, under
such conditions and for such consideration as may be determined from time
to time by the Board of Directors.
Article 7
7.1. The shares shall be in registered form.
7.2. Share certificates for common shares may be issued at the request of the
shareholder.
7.3. The shares shall be entered into a register, which, provided a printed
record can be produced therefrom, may be in computerized form (the
"Register") which is kept by the Board of Directors or by a registrar
designated thereto by the Board of Directors (the "Registrar"). Each
entry shall mention the name of the shareholder, his residence or his
elected domicile, the quantity of his shares and the numbers of the share
certificates, if any, representing such shares. The Register shall not be
open for inspection by third parties or shareholders with respect to
shares other than those registered in their name, except with respect to
shares that have not been paid in full and except further, with respect
to the Registrar, if said Registrar has been requested, or if demand of
said Registrar has been made, to disclose any piece of information in the
Register and failure to disclose such information would lead to liability
of the Registrar.
7.4. Every transfer and devolution of a share shall be entered in the Register
and every such entry shall be signed or otherwise acknowledged by or on
behalf of the Board of Directors or by the Registrar.
7.5. The transfer of shares shall be effected either by serving a deed of
transfer upon the Company or by written acknowledgment of the transfer by
the Company, which acknowledgement can only take place by an annotation
on the share certificate, if share certificates have been issued.
7.6. The entry in the Register provided for in paragraphs 3 and 4 of this
Article shall have the effect of a written acknowledgment of the transfer
by the Company in the event no share certificate has been issued for the
shares concerned.
7.7. If any shareholder shall establish to the satisfaction of the Board of
Directors or the Registrar that his share certificate has been lost or
destroyed, then, at his request, a duplicate may be issued under such
conditions and guarantees (which, if required by the Registrar or the
Board of Directors, may include the provision of an indemnity bond issued
by an insurance company or other type of financial institution or entity)
as the Board of Directors or the Registrar shall determine. By the
issuance of the new share certificates on which shall be
recorded that it is a duplicate, the old certificate in place of which
the new one has been issued shall become null and void. The Board of
Directors or the Registrar may authorize the exchange of new share
certificates for mutilated share certificates. In such case the mutilated
share certificates shall be delivered to the Company and shall be
canceled immediately. The cost of a duplicate or new certificate and any
proper expenses incurred by the Company in connection with the issuance
thereof may, at the option of the Board of Directors or the Registrar, be
charged to the shareholder.
MANAGEMENT
Article 8
8.1. The management of all the affairs, property and business of the Company
shall be vested in a 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 Association.
8.2. The directors shall be elected at a general meeting of shareholders by a
majority of votes cast, in person or by proxy, by the shareholders
entitled to vote. The number of persons constituting the whole Board of
Directors shall be not less than five nor more than twenty-four, as fixed
and elected by the general meeting of shareholders. The number of persons
constituting the whole Board of Directors shall, until changed at any
succeeding general meeting of shareholders, be the number so fixed and
elected. Directors may be suspended or dismissed at any general meeting
of shareholders. At any general meeting of shareholders at which action
is taken to increase the number of the whole Board of Directors or to
suspend or dismiss a director, or at any subsequent general meeting, the
shareholders may fill any vacancy or vacancies created by such action.
8.3. Each director shall be elected to serve until the next annual general
meeting of shareholders and until his successor shall be elected and
qualify, or until his death, resignation or removal.
8.4. Directors need not be Netherlands Antilles citizens or residents of the
Netherlands Antilles or shareholders of the Company.
8.5. In the event that one or more of the directors is prevented from or is
incapable of acting as a director, the remaining directors (or the
remaining director, if there should be only one) may appoint one or more
persons to fill the vacancy or vacancies thereby created on the Board of
Directors until the next general meeting of shareholders, provided that
if at any time the number of directors then in office shall be reduced to
less than a majority of the number constituting the whole Board of
Directors, the remaining directors or director shall forthwith call a
general meeting of shareholders for the purpose of filling the vacancies
on the 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 Board of Directors so to act, who
shall forthwith call a general meeting of shareholders for the purpose of
electing a Board of Directors. Until such general meeting of shareholders
is held the person so designated shall only take such acts of management
that can not suffer any delay. If no such general meeting of shareholders
shall be called, and if no such person shall have been appointed, any
person or persons holding in the aggregate at least five percent of the
outstanding shares of stock of the Company may call a general meeting of
shareholders for the purpose of electing a Board of Directors.
8.6. A majority of the whole Board of Directors shall constitute a quorum for
the conduct of any business and the action 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 action of
the Board of Directors.
8.7. Meetings of the Board of Directors may be held in or outside the
Netherlands Antilles.
8.8. Meetings may be held through telephone conference, video conference or
other real time communication allowing all persons participating in the
meeting to hear each other or through any other device permitted by then
applicable law, and participation in a meeting through any such lawful
device or arrangement shall constitute presence at such meeting.
8.9. Directors may in writing, by telegram, cable, telex, telefax, electronic
mail or other communication device appoint a proxy to act at any meeting
of the Board of Directors, such proxy to be restricted, however, to the
particular meeting specified therein. Such proxy must be another director
of the Company, provided, however, that at any meeting of the Board of
Directors a director may not act as proxy for more than one director.
8.10. When action by the Board of Directors is required or permitted to be
taken, action at a meeting may be dispensed with if all commercially
reasonable efforts have been taken to notify all the directors and if
three fourth of the directors shall consent in writing, by telegram,
cable, telex, telefax, electronic mail or other communication device to
such action taken or being taken, and provided further that all directors
are promptly notified of such action being taken or having been taken.
Article 9
9.1. The Board of Directors shall at least annually elect or appoint the
following officers: a Chairman, a Chief Executive Officer, a Secretary
and a Treasurer, each to serve until his successor is elected and
qualified. The Board of Directors from time to time also may elect or
appoint a Chief Financial Officer, a President, a Vice Chairman of the
Board of Directors, one or more executive Vice Presidents, one or more
Vice Presidents (who may have such additional descriptive designations as
the Board of Directors may determine), 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
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 Association to be
executed, acknowledged or verified by two or more officers. The Chairman
and the Vice Chairman, if any, shall be chosen from among the Board of
Directors, but the other officers of the Company need not be members of
the Board of Directors.
9.2. The Company shall be represented at law and otherwise, and shall be bound
with respect to third parties, by the Board of Directors and by:
(a) those directors authorized by the Board of Directors to represent
the Company, who shall have the following titles and occupy the
following offices:
(i) Chairman; or
(ii) Vice-Chairman;
(b) persons, who may, but are not required to, be directors,
authorized by the Board of Directors to represent the Company, who
shall have the following titles and occupy the following offices:
(i) Chief Executive Officer;
(ii) President;
(iii) Chief Financial Officer;
(iv) one or more Executive Vice Presidents;
(v) one or more Vice Presidents;
(vi) Chief Operating Officer;
(vii) Controller;
(viii) Treasurer; or
(ix) Secretary.
9.3. 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.
9.4. The general meeting of shareholders may grant specific authority to the
Chief Executive Officer, the President or any member of the Board of
Directors to represent the Company with respect to any particular matter
as specified by such general meeting of shareholders.
9.5. 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, respectively, have such power and authority as the Board
of Directors may from time to time grant to the holders of the offices
held by them.
9.6. The Board of Directors may grant general or specific authority to
additional agents or to committees, giving such agents or committees such
general or limited powers or duties as it may deem appropriate.
9.7. In the event of a conflict of interest between the Company and one or
more directors, the Company shall be represented as determined from time
to time by the Board of Directors.
9.8. The Board of Directors may adopt and may amend and repeal such rules,
regulations and resolutions, including By-laws, 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
and other persons authorized by the Board of Directors to represent the
Company. Such rules and regulations and resolutions must be consistent
with these Articles of Association.
9.9. 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 Board of Directors may from time
to time prescribe.
Article 10
10.1. The Company shall have the power to indemnify 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 corporation, 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 such person 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 such person's 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 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 reasonable
cause to believe that such person's conduct was unlawful. The Company
shall indemnify any present or former officer or director of the Company
to the fullest extent allowed by the preceding provisions of this
paragraph 1 of this Article in the event of a "Change of Control".
"Change in Control" means a change in control of the Company which shall
be deemed to have occurred if at any time (i) any entity, person or
organization is or becomes the legal or
beneficial owner, directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's
then outstanding shares without the prior approval of at least two-thirds
of the members of the Board of Directors in office immediately prior to
such entity, person or organization attaining such percentage interest;
(ii) the Company is a party to a merger, consolidation, share exchange,
sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (iii) during any
15-month period, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new
director whose election or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
such period) cease for any reason to constitute at least a majority of
the Board of Directors.
10.2. The Company shall have the power to indemnify 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 corporation, 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
such person reasonably believed to be in or not opposed to the best
interests of the Company and except that no indemnification shall be made
in respect of any claim, issue or matter 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. The Company shall indemnify any present
or former officer or director of the Company to the fullest extent
allowed by the preceding provisions of this paragraph 2 of this Article
in the event of a Change in Control, as defined in paragraph 1 of this
Article.
10.3. To the extent that a present or former director or officer 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, 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.
10.4. Any indemnification under paragraphs 1 and 2 of this Article (unless
ordered by a court) shall be made by the Company only as authorized by
contract approved, or by-laws, resolution or other action adopted or
taken, by the Board of Directors or by the shareholders or as required by
the last sentences of paragraphs 1 and 2 of this Article.
10.5. Expenses (including attorneys' fees) incurred by a present or former
director or a present officer in defending any civil or criminal,
administrative or investigative action, suit or proceeding shall 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 such
person 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. Such expenses (including attorneys' fees)
incurred by former officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the Company deems appropriate.
10.6. The indemnification and advancement of expenses provided by or granted
pursuant to the other paragraphs of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement,
vote of shareholders or disinterested directors, or otherwise, both as to
action in such person's official capacity and as to action in another
capacity while holding such office, and shall, unless otherwise provided
when authorized or ratified, 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.
10.7. 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 another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or
arising out of his status as such, whether or not the Company would have
the power to indemnify such person against such liability under the
provisions of this Article.
10.8. For purposes of this Article, reference to the Company shall include, in
addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee
or agent of such constituent, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in
the same position under the provisions of this Article with respect to
the resulting or surviving corporation if its separate existence had
continued.
10.9. For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the
Company which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and
in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
the Company" as referred to in this Article.
MEETINGS OF SHAREHOLDERS
Article 11
11.1. All general meetings of shareholders shall be held in the Netherlands
Antilles on Curacao, Bonaire, St. Eustatius, Saba or the Dutch part of
St. Maarten.
11.2. The annual general meeting of shareholders shall be held within nine
months after the end of the preceding fiscal year, on a date determined
from year to year by the Board of Directors, for the purpose of electing
directors, reporting on the course of business during the preceding
fiscal year, adopting of the balance sheet and the profit and loss
account for the preceding fiscal year and for any other purposes required
by law, and for such additional purposes as may be specified in the
notice of such meeting.
11.3. Special general meetings of shareholders may be called at any time upon
the direction of the Chairman, the Vice Chairman, the Chief Executive
Officer, the President or the Board of Directors or in the manner
provided for in Article 82 of the Code of Commerce of the Netherlands
Antilles, or by one or more holders of shares representing in the
aggregate a majority of the shares then outstanding, or as provided for
in Article 8.5.
11.4. Notice of meetings of shareholders, whether annual general meetings or
special general meetings, stating the time and place of the meeting,
shall be given to the shareholders not less than twenty (20) or more than
sixty (60) days prior to the date of the meeting in question by notice to
each shareholder at the address thereof appearing in the Register.
11.5. All notices of general meetings of shareholders shall state the matters
to be considered at the meeting.
11.6. Without limiting the manner by which notice otherwise may be given
effectively to shareholders or directors, any notice given by the Company
shall be effective if given by a form of electronic transmission
consented to by the person to whom the notice is given. Any such consent
shall be revocable by written notice received by the Company.
11.7. Notice given pursuant to paragraph 6 of this Article shall be deemed
given: (1) if by facsimile telecommunication, when directed to a number
at which the recipient has consented to receive notice; (2) if by
electronic mail, when directed to an electronic mail address at which the
recipient has consented to receive notice; (3) if by a posting on an
electronic network together with separate notice to the recipient of such
specific posting, upon the later of (A) such posting and (B) the giving
of such separate notice; and (4) if by any other form of electronic
transmission, when directed to the recipient. An affidavit that the
notice has been given by a form of electronic transmission shall, in the
absence of fraud or bad faith, be prima facie evidence of the facts
stated therein.
11.8. For purposes of these articles of association, "electronic transmission"
means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof.
Article 12
12.1. Every shareholder has the right to attend any general meeting in person
or by proxy, which proxy to the extent permitted by applicable law may be
given by electronic transmission, and to address the meeting.
12.2. Each holder of common shares and each holder of preferred shares shall be
entitled to one vote for each common share or preferred share held.
12.3. For the purpose of determining shareholders entitled to notice of and to
vote at any general meeting of shareholders, or entitled to receive
payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
Company may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, sixty (60) days. If the
stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a general meeting of
shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to
be not more than sixty (60) days and, in case of a general meeting of
shareholders, not less than ten (10) days prior to the date on which the
particular action requiring such determination of shareholders is to be
taken. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to
vote at a general meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the date on which notice of the meeting is
mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the
record date for
such determination of shareholders. When a determination of shareholders
has been made as herein provided, such determination shall apply to any
adjournment thereof except where the determination has been made through
the closing of stock transfer books and the stated period of closing has
expired.
Article 13
13.1. Except as otherwise provided herein, no action may be taken at any
general meeting of shareholders unless a quorum consisting of the holders
of at least one-half of the outstanding shares are present at such
meeting in person or by proxy.
13.2. If a quorum is not present in person or by proxy at any general meeting
of shareholders, a second general meeting shall be called in the same
manner as such original meeting of shareholders, to be held within two
months, at which second meeting, regardless of the number of shares
represented (but subject to the provisions of Articles 18, 19 and 21),
valid resolutions may be adopted with respect to any matter stated in the
notice of the original meeting and also in the notice of such second
meeting or which by law is required to be brought before the shareholders
despite the absence of a quorum.
13.3. Subject to the provisions of Articles 18, 19 and 21, the vote in favor by
a majority of the votes cast (excluding any abstentions) shall be
necessary to adopt any resolution at any general meeting of shareholders.
13.4. The Board of Directors from time to time shall appoint a person to
preside at general meetings of shareholders.
13.5. At any general meeting of shareholders, a shareholder may vote upon all
matters before the meeting, even if the decision to be taken would grant
him, in a capacity other than as a shareholder, any right against the
Company or would in such other capacity relieve him of any obligation to
the Company.
SEPARATE MEETINGS
Article 14
14.1. Separate meetings of holders of each series of preferred shares (each a
"Series Meeting") can be held and may be convened by any two or more
members of the Board of Directors.
14.2. Notice of Series Meeting shall be given not less than ten (10) days prior
to the date of the Series Meeting to the address of each holder of
preferred shares of the relevant series appearing in the Register.
14.3. The notice shall contain the agenda of the Series Meeting or shall
mention that it is deposited for inspection by the holder of the relevant
shares at the offices of the Company.
14.4. The Series Meetings do not have to be held in the Netherlands Antilles
but may be held in conjunction with any general meeting of shareholders.
14.5. To a Series Meeting all the provisions of these Articles of Association
and the laws of the Netherlands Antilles as to General Meetings of
Shareholders shall, mutatis mutandis, apply, if not otherwise provided in
this Article.
FISCAL YEAR
Article 15
The fiscal year of the Company shall be the calendar year.
BALANCE SHEET AND PROFIT AND LOSS ACCOUNT
Article 16
16.1. Within eight months after the end of the fiscal year of the Company, the
Board of Directors shall prepare the balance sheet and profit and loss
account with respect to the preceding fiscal year. Subsequently, the
balance sheet and profit and loss account shall be submitted to the
shareholders for inspection and adoption at the annual general meeting of
shareholders in accordance with paragraph 2 of Article 11. From the date
at which the notice of the annual general meeting of shareholders is sent
until the close of the annual general meeting of shareholders, the
balance sheet and profit and loss account shall be available for
inspection by the shareholders at the office of the Company, and at any
additional place, if specified in the notice of such meeting.
16.2. The Board of Directors, with due observance of dividend entitlements of
the holders of preferred shares, is authorized to allocate such part of
the profits to the retained earning reserves as it deems fit.
DISTRIBUTION OF PROFITS
Article 17
17.1. Dividends on the shares of the Company may be declared either in cash,
property (including securities) or in shares of the Company, out of the
profits of the preceding fiscal year or years then available for
distribution. To the extent that profits of any fiscal year which are
available for distribution shall not be distributed, they shall be
carried forward and, unless extinguished as the result of subsequent
operations or otherwise applied by the Board of Directors, shall be
available for distribution in any subsequent year or years.
17.2. The Board of Directors has the authority to declare and make
distributions out of retained earnings reserves or out of the contributed
surplus capital reserves either in cash, property (including securities)
or in shares of the Company without the prior approval of the general
meeting of shareholders.
17.3. If, as appears from the adopted profit and loss statement, a loss has
been suffered which cannot be covered by a reserve or which cannot be
extinguished through the application of undistributed profits from
previous years or otherwise, no distribution of profits shall be effected
in subsequent years so long as such loss has not been made good.
17.4. If dividends are to be distributed, the holders of preferred shares shall
have preference as to such dividends in accordance with the preferences
of such shares as determined at the issuance thereof.
17.5. The Board of Directors may resolve at any time to distribute one or more
interim dividends as an advance payment of the dividend expected to be
determined by the shareholders at the annual general meeting.
DISPOSITION OF THE COMPANY'S ASSETS
Article 18
Notwithstanding any provision of Article 13, any sale or other disposition of
all or substantially all of the assets of the Company, whether for cash,
property, stock or other securities of another company, or for any other
consideration, shall be made only pursuant to a resolution duly adopted at a
general meeting of shareholders by the holder or holders of at least the
majority of the shares of the Company at the time outstanding and entitled to
vote, the notice of which meeting shall have specified the terms of such
proposed sale or other disposition; provided, however, the foregoing shall not
apply to any reorganization or rearrangement of the Company, or of any of its
subsidiaries or of any of its assets in any transaction whereby there shall be
no diminution of the beneficial interest of the shareholders of the Company in
such assets.
LIQUIDATION
Article 19
Notwithstanding any provision of Article 13, any resolution providing for the
dissolution, liquidation or winding up of the Company shall be valid only if
duly adopted at a general meeting of shareholders by the holder or holders of at
least a majority of the shares at the time outstanding and entitled to vote, the
notice of which meeting shall have specified the nature of any such resolution
to be voted upon at such meeting.
ACTION BY SHAREHOLDERS WITHOUT MEETING
Article 20
20.1. Notwithstanding any provision of Article 13, 18, 19 or 21, any action
which by law or by these Articles of Association is required or permitted
to be taken at a general meeting of shareholders may be taken without a
meeting if taken by the written consent of the holder or holders of at
least the majority of the shares of the Company outstanding and entitled
to vote. Each shareholder may evidence his consent by separate instrument
which may be executed by himself or on his behalf by a duly appointed
proxy. Notice of any action proposed to be taken under this Article 20
shall be communicated to each shareholder at his address appearing in the
share register, such notice to designate the date on or before which such
written consent must be received by the Secretary of the Company in order
to be counted. Any shareholder may revoke his consent by instrument
received by the Secretary of the Company on or before the date so
designated, or before written consents from the holders of the majority
of the shares outstanding and entitled to vote have been received by the
Secretary of the Company, whichever first occurs, and not thereafter.
20.2. For the purpose of determining shareholders entitled to notice of and or
to give written consent to any action proposed to be taken under this
Article 20, the Board of Directors of the Company may provide that the
stock transfer books shall be closed for a stated period not to exceed
sixty (60) days. Such books shall be closed for at least ten (10) days
immediately preceding the date on or before which written consents must
be received by the Secretary of the Company in order to be counted. In
lieu of closing the stock transfer books, the Board of Directors may fix
in advance a date as the record date for any such determination of
shareholders, such date in any case to be not earlier than sixty (60)
days prior to the date on or before which written consents must be
received by the Secretary of the Company in order to be counted. If the
stock transfer books are not closed and no record date is fixed for the
determination of shareholders, the date on which notice of the action
proposed to be taken hereunder is mailed shall be the record date for
such determination of shareholders.
AMENDMENTS
Article 21
21.1. Notwithstanding any provision of Article 13, these Articles of
Association may be amended only pursuant to a resolution duly adopted at
a general meeting of shareholders by the holder or holders of at least
the majority of the shares of the Company at the time outstanding and
entitled to vote, the notice of which meeting shall have set forth the
exact text of the proposed amendment or amendments or shall have stated
that a copy of such text has been deposited at the office of the Company
in Curacao for inspection by the shareholders of the Company, and shall
remain available for inspection until the conclusion of said meeting.
21.2. Any amendment to these Articles of Association that would increase or
decrease the authorized number of preferred shares or par value thereof,
or the number of shares of any series thereof, or that would alter or
change the powers, preferences or any special rights of the preferred
shares, or of any series thereof, so as to affect them adversely, shall
require the approval of the holders of a majority of all preferred
shares, or of the preferred shares of the series adversely affected
(voting together as a single class), as the case may be.