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Exhibit 3
UNOFFICIAL TRANSLATION
OF THE ARTICLES OF ASSOCIATION
OF CHICAGO BRIDGE & IRON COMPANY N.V.
ESTABLISHED IN AMSTERDAM, THE NETHERLANDS
AS PER DECEMBER 29, 2000
Chapter I. Definitions.
Article 1.
In the articles of association the following expressions shall have the
following meanings:
a. the general meeting: the body of the company formed by shareholders, and
other persons entitled to vote;
b. the general meeting of shareholders: the meeting of shareholders, and other
persons entitled to attend the general meetings;
c. the distributable part of the net assets: that part of the company's net
assets which exceeds the aggregate of the part of the capital which has
been paid and called up and the reserves which must be maintained by virtue
of the law;
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d. the annual accounts: the balance sheet and profit and loss account with the
explanatory notes;
e. the accountant: a registered accountant or other accountant referred to in
Section 393 of Book 2 of the Civil Code;
f. the annual meeting: the general meeting of shareholders held for the
purpose of discussion and adoption of the annual accounts;
g. group: a group consists of two or more persons acting as a partnership,
limited partnership, syndicate or other group for the purpose of acquiring,
holding or disposing of the company's securities;
h. issued and outstanding share capital: all shares issued by the company for
which votes could be cast in any general meeting of shareholders.
Chapter II.
Name, seat, objects.
Article 2. Name and seat.
1. The name of the company is: Chicago Bridge & Iron Company N.V.
2. The official seat of the company is in Amsterdam.
Article 3. Objects.
The objects of the company are:
a. to incorporate, to own, to participate in any way whatsoever, to manage, to
supervise, to operate and to promote enterprises, companies and businesses;
b. to perform any and all activity of an industrial, financial or commercial
nature;
c. to design, develop, manufacture, market, sell and service products of any
nature, including without limitation any hardware and/or software;
d. to develop and trade in patents, trademarks, copyrights, licenses, know-how
and other intellectual property rights;
e. to borrow, to lend and to raise funds, including the issuance of bonds,
promissory notes or other securities or evidence of indebtedness, as well
as to enter into agreements in connection with the aforementioned;
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f. to furnish advice and to render services to enterprises and companies with
which the company forms a group and to third parties;
g. to render guarantees, to bind the company and to pledge its assets for
obligations of the companies and enterprises with which it forms a group,
including its subsidiaries, and on behalf of third parties;
h. to obtain, alienate, manage and exploit real estate and items of property
in general;
i. to trade in securities and items of property in general; as well as
everything pertaining to the foregoing, relating thereto or in furtherance
thereof, all in the widest sense of the word.
Chapter III.
Capital and shares. Register. Article 4. Authorized capital.
1. The authorized capital amounts to three hundred and fifty thousand Dutch
guilders (NLG 350,000).
2. The authorized capital is divided into thirty-five million (35,000,000)
shares of one cent (NLG 0.01) each.
3. All shares are, at the option of the shareholder, either registered shares
or bearer shares, with due observance of paragraph 3 of article 5.B.
Article 5. Certificates of shares.
1. For bearer shares, share certificates shall be issued. Share certificates
may, at the request of a shareholder, also be issued for registered shares.
Share certificates may, at the discretion of the management board or at the
request of a shareholder, also be issued for registered shares.
2. Multiple certificates shall be issued at a shareholder's request for such
numbers of shares as shall be determined by the management board. At the
holder's request, a multiple certificate shall be exchanged for
certificates of single shares up to the same nominal amount.
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3. The share certificates shall be signed by a member of the management board
or by both a member of the supervisory board and a member of the management
board and such signatures will be valid if reproduced on the certificates
in print. One or, as the case may be, both of these signatures may also be
replaced by a distinctive company stamp, provided by the company or under
its supervision. If there is at least one original signature, then no
company stamp described hereinabove is required.
4. The company shall not charge any fee for the issuance and exchange of share
certificates.
Article 5.A. CF-certificates; K-certificates.
1. A share certificate relating to one or more bearer shares shall be provided
with a simplified dividend sheet, without dividend coupons and voucher.
Such share certificates shall be referred to hereinafter as
CF-certificates.
2. A simplified dividend sheet (hereinafter referred to as a CF-dividend
sheet) may only be issued by the company to a custodian to be designated by
the shareholder. This custodian may only be designated from a group of
custodians which are accepted as such by the company and who provide for
the custody of the CF-dividend sheets to be administered by an organisation
independent of the company but accepted by it. These custodians shall
undertake not to issue the CF-dividend sheets in their charge to any
persons other than custodians accepted by the company or the company
itself.
3. For all dividends and other distributions relating to a share for which a
CF-certificate has been issued, the company shall be released towards the
person entitled thereto by placing those dividends or distributions at the
disposal of, or at the instruction of the independent organisation referred
to in paragraph 2.
4. A share certificate relating to one or more bearer shares may have a
dividend sheet annexed, consisting of dividend coupons and a
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voucher. Such share certificates shall be referred to hereinafter as
K-certificates. The management board decides whether or not K-certificates
shall be issued. A decision of the management board to issue K-certificates
is subject to the approval of the supervisory board.
5. The management board has the right to draw up further rules governing the
issuance of K-certificates, CF-certificates and the conversion of
K-certificates into CF-certificates and vice versa.
Article 5.B. Conversion of shares.
1. Bearer shares may, at the shareholders request, be converted into
registered shares and vice versa, with due observance of paragraph 3 of
this article.
2. Conversion of bearer shares into registered shares shall be effected by the
surrendering of share certificates and simultaneous entry in the register
referred to in article S.D. The dividend sheets belonging thereto must also
be surrendered.
3. Conversion of registered shares into bearer shares shall be effected at the
written request of the shareholder, unless such conversion has been limited
or excluded upon issuance of those shares. If a life interest or a right of
pledge is created in a share, the cooperation of the beneficiary of the
life interest or pledgee shall be required. At the issuance of bearer share
certificates the entry in the register shall be deleted.
4. The company shall not charge any fee for conversion.
Article S.C. Duplicate certificates.
1. In the event of the loss, theft or destruction of share certificates,
coupon sheets, dividend coupons or vouchers relating to bearer shares, the
management board can issue duplicates. The management board may attach
conditions to the issuance of duplicates, including the provision of
security and the payment of costs by the applicant.
2. The issuance of a duplicate shall render the original document of no value
with regard to the company.
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3. The new document shall clearly state that it is a duplicate.
Article S.D. Register of shareholders.
1. The management board shall keep a register containing the names and
addresses of all holders of registered shares.
2. Every holder of one or more registered shares and any person having a life
interest or a right of pledge over one or more such shares shall be obliged
to provide the company in writing with their address.
3. All entries and notes in a register shall be signed by a member of the
management board or by a person authorised thereto by a member of the
management board.
4. Furthermore, article 85, Book 2 of the Civil Code applies to the register.
5. Extracts from the register are not transferable.
Chapter IV. Issuance of shares. Own shares.
Article 6. Issuance of shares. Body competent to issue shares.
1. The issuance of shares shall be effected pursuant to a resolution of the
supervisory board provided that the supervisory board has been designated
by the general meeting as authorized body for this purpose. Such
authorization of the supervisory board shall only take place for a specific
period of no more than five years and may not be extended by more than five
years on each occasion.
2. The provisions of paragraph 1 of this article shall also apply to the
issuance of options to subscribe for new shares.
3. In case the supervisory board is no longer authorized to issue shares, the
general meeting shall be authorized to issue shares upon the proposal of
the supervisory board.
4. The supervisory board is authorised, provided that the supervisory board
has been designated by the general meeting as the body authorized to issue
shares, to issue, at the expense of a reserve of the company, with due
observance of the provisions of article 31, paragraph 3, shares and options
to subscribe for new shares, provided that such shares and options are
issued to employees of the company under a valid employee option scheme
of the company.
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Article 7. Conditions of issuance. Rights of pre-emption.
1. A resolution for the issuance of shares shall stipulate the price and
further conditions of issuance.
2. On the issuance of shares, each shareholder shall have a right of
pre-emption in proportion to the aggregate nominal value of his shares. No
pre-emptive rights shall exist with regard to shares issued against a
contribution other than cash nor with regard to shares issued to employees
of the company or employees of group companies.
3. Shareholders shall have a similar right of pre-emption if options are
granted to subscribe for shares.
4. The company shall inform the shareholders of the issuance of shares in
respect of which there is a right of pre-emption, or, as the case may be,
the granting of options to subscribe for shares in respect of which there
is a right of pre-emption, as well as the period of time during which the
right of pre-emption may be exercised, with due observance of the
applicable provisions of Dutch law.
5. The right of pre-emption may, subject to due observance of the relevant
provisions of the law, be limited or excluded by the supervisory board
provided the supervisory board is designated as the authorized body in this
respect by resolution of the general meeting for a fixed period of time not
exceeding five years. Article 6 paragraph 3 shall apply correspondingly.
Article 8. Payment for shares.
1. The full nominal amount of each share must be paid in on issue, as well as,
if a share is subscribed for at a higher price, the balance of these
amounts.
2. Payment for a share must be made in cash insofar as no other manner of
payment has been agreed on. Payment in foreign currency can be made only
after approval by the company, which approval shall be deemed given upon
acceptance of foreign currency by the company.
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3. The management board shall be authorised to enter into transactions
concerning non-monetary contributions on shares, and the other transactions
referred to in article 94 paragraph 1, Book 2 of the Civil Code, without
the prior approval of the general meeting.
Article 9. Own shares.
1. When issuing shares the company shall not be entitled to subscribe for its
own shares.
2. The company shall be entitled to acquire its own fully paid up shares or
depository receipts in respect thereof, provided either no valuable
consideration is given or provided that:
a. the distributable part of the net assets is at least equal to the
purchase price; and
b. the nominal value of the shares or the depository receipts in respect
thereof to be acquired by the company itself, already held by the
company or pledged for the benefit of the company, or which are held
by a subsidiary, does not exceed one tenth of the issued share
capital.
3. The validity of the acquisition shall be determined by the amount of the
net assets according to the latest adopted balance sheet, decreased by the
consideration for shares in the company's capital or depository receipts in
respect thereof and distributions of profits or by the charge of any
reserve to third parties which have fallen due by the company and its
subsidiaries after the balance sheet date. If more than six months of a
financial year have elapsed and the annual accounts have not been adopted,
any acquisition in conformity with paragraph 2 shall not be permitted.
4. An acquisition for valuable consideration shall be permitted only if the
general meeting has authorized the management board in this respect. The
authorization by the general meeting shall be valid for a period not
exceeding eighteen months. The general meeting shall stipulate in the
authorization how many shares or depositary
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receipts in respect thereof may be acquired, how they may be acquired, and
between what limits the price must be.
5. An acquisition of shares in contravention of paragraphs 2-4 shall be void.
Depositary receipts in respect of shares acquired by the company in
contravention of paragraphs 2-4 shall be transferred to all members of the
management board by operation of law.
6. The transfer of shares owned by the company or depositary receipts in
respect thereof held by the company shall be effected by virtue of a
resolution of the management board, after approval of the supervisory
board. The resolution to such transfer shall also stipulate the conditions
thereof.
7. No voting rights can be exercised in the general meeting in respect of any
share belonging to the company or to any subsidiary of the company; the
same applies to any share in respect of which either the company or any
subsidiary holds depositary receipts. The beneficiary of a life interest in
respect of a share held by the company itself or a subsidiary company is,
however, not excluded from exercising the right to vote if the life
interest was created before the share was held by the company or one of its
subsidiaries. The company or its subsidiary may not exercise voting rights
in respect of shares of which the company has a life interest.
8. In establishing to what extent shareholders exercise voting rights, are
present or are represented, shares for which no voting rights can be
exercised shall not be taken into consideration.
9. The company may take its own shares or depositary receipts in respect
thereof as pledge only if:
a. the shares to be pledged are fully paid up;
b. the aggregate nominal value of the shares and depositary receipts in
respect thereof to be pledged and already held or held in pledge does
not exceed one-tenth of the issued capital, and
c. the general meeting has approved the pledge agreement.
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10. Upon the proposal of the management board - which proposal must have prior
approval from the supervisory board - the general meeting shall have the
power to decide to cancel shares acquired by the company in its own share
capital, subject however to the statutory provisions relating hereto.
Chapter V.
Transfer of shares, rights "in rem".
Article 10. Transfer of shares. Life interest
("vruchtgebruik"). Pledging ("pandrecht"). Depositary
Receipts.
1. The transfer of shares and the creation and transfer of limited rights
thereon shall take place in accordance with the provisions of Dutch law
applicable thereto and, if applicable, in accordance with paragraphs 2 and
3 of this article.
2. If the transfer concerns a registered share for which a share certificate
has been issued, the corresponding share certificate must be delivered to
the company or to its duly authorized representative. The company or its
duly authorized representative on behalf of the company can only
acknowledge the transfer of such share by, at the discretion of the
management board, either (i) endorsement on the share certificate or (ii)
issuance of a new share certificate to the transferee, registered in the
name of the transferee. The provisions of paragraph 3 of article 5 shall
apply accordingly.
3. The provisions of paragraph 2 of this article 10 shall equally apply to the
transfer of a registered share as a consequence of foreclosure of a right
of pledge.
4. The shareholder shall have the voting rights in respect of the shares in
which a life interest has been created. However, the voting rights shall
accrue to the beneficiary of a life interest if it was so stipulated at the
creation of the life interest. The shareholder who holds no voting rights
and the beneficiary of a life interest who does hold voting rights, shall
have the rights
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which the law attributes to holders of depository receipts issued with the
company's cooperation. The rights referred to in the preceding sentence
shall not accrue to the beneficiary of the life interest who holds no
voting rights.
5. The shareholder shall have the rights resulting from a share in which a
life interest has been created relating to the acquisition of newly issued
shares, such as stock dividends, it being understood that he/she shall have
to compensate the beneficiary of the life interest for the value of these
rights insofar as the latter is entitled thereto by virtue of his/her life
interest.
6. When shares are pledged, the voting rights cannot be assigned to the
pledgee. He shall not have the rights which the law attributes to holders
of depository receipts issued with the company's co-operation.
7. The company shall not co-operate with the issuance of depository receipts
in respect of its shares.
Chapter VI.
Management.
Article 11. Management Board.
1. The management of the company shall be constituted by a management board
consisting of one or more members.
2. The number of members shall be determined by the supervisory board.
Article 12. Appointment.
1. The members of the management board shall be appointed by the general
meeting from a nomination of at least two persons for every position to be
filled, which has been drawn up by the supervisory board.
2. The general meeting shall be free to make the appointment if the
supervisory board has not made any nomination within, on or before the date
which is three months after the vacancy occurs.
3. Every nomination made by the supervisory board shall be binding if made on
or before the date which is three months after the vacancy
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occurs. The general meeting can only disturb the binding character of the
nomination by resolution passed by a majority of at least two thirds of the
votes cast, which two thirds of the votes represents more than half of the
issued share capital.
Article 13. Suspension and dismissal.
1. A member of the management board may at any time be suspended or dismissed
by the general meeting.
2. With respect to any suspension or dismissal other than on the proposal of
the supervisory board, the general meeting can only pass a resolution based
on a majority of at least two thirds of the votes cast which two thirds of
the votes represent more than half of the issued share capital.
3. A member of the management board may at any time be suspended by the
supervisory board. Such suspension may be discontinued by the general
meeting at any time.
4. Any suspension may be extended one or more times, but may not last longer
than three months in the aggregate. If at the end of that period no
decision has been taken on termination of the suspension, or on dismissal,
the suspension shall cease.
Article 14. Remuneration.
The remuneration and further conditions of employment of every member of the
management board shall be determined by the supervisory board.
Article 15. Duties of the management board. Decision making process. Allocation
of duties.
1. Subject to the restrictions imposed by these articles of association, the
management board shall be entrusted with the management of the company.
2. The management board may lay down rules regarding its own decisionmaking
process. These rules shall be subject to the approval of the supervisory
board.
3. Meetings of the management board shall only be held in the Netherlands
except that the management board may decide to have telephonic meetings.
The management board may adopt resolutions
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without a meeting provided the proposal concerned is submitted to all
members of the management board and none of them objects to this manner of
adopting resolutions.
4. The management board may determine which duties in particular each member
of the management board will be charged with. The allocation of duties
shall be subject to the approval of the supervisory board.
Article 16. Representation.
1. The management board as such is authorized to represent the company. Each
member of the management board shall also be authorized to represent the
company.
2. The management board may appoint staff members with general or limited
power to represent the company. Each of those staff members shall be
authorized to represent the company with due observance of any restrictions
imposed on him/her. The management board shall determine such staff
members' titles.
3. In the event of a conflict of interest between the company and a member of
the management board, the company shall be represented by a member of the
management board or another person as the supervisory board shall designate
for this purpose.
Article 17. Approval of decisions of the management board.
1. The supervisory board is entitled to require such resolutions of the
management board to be subject to its approval as the supervisory board
shall decide. Such resolutions shall be clearly specified and notified to
the management board in writing.
2. The supervisory board is authorized to give the management board
instructions concerning the general policy of the company for financial,
social and economic matters. The management board shall act in accordance
with such instructions.
3. The lack of approval referred to in this article 17 does not affect the
authority of the management board or its members to represent the company.
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Article 18. Absence or prevention.
If a member of the management board is absent or is prevented from performing
his duties, the remaining members or member of the management board shall be
temporarily entrusted with the entire management of the company. If all members
of the management board or the sole member of the management board are/is absent
or are/is prevented from performing their duties, the management of the company
shall be temporarily entrusted to the supervisory board which shall then be
authorized to entrust the management temporarily to one or more persons, whether
or not from among its members.
Chapter VII. Supervisory board. Article 19. Number of members.
1. The company shall have a supervisory board, consisting of at least six
members, with a maximum of twelve members.
2. With due observance of the provisions of paragraph 1., the number of
members of the supervisory board shall be determined by the supervisory
board.
3. Where the number of members of the supervisory board falls below six,
measures shall be taken forthwith to fill the number of members. In the
meantime the supervisory board shall keep all its powers.
Article 20. Appointment.
1. All members of the supervisory board shall be appointed by the general
meeting from a nomination of at least two persons for every position to be
filled, which has been drawn up by the supervisory board.
2. The provisions in paragraph 2 and 3 of article 12 shall likewise apply to
an appointment by the general meeting.
3. No person who has reached the age of seventy-two may be appointed as a
supervisory board member.
Article 21. Suspension and dismissal. Retirement.
1. Every member of the supervisory board may be suspended or dismissed by the
general meeting at any time.
2. The provisions in paragraph 2 of article 13 shall similarly apply to the
suspension and dismissal of supervisory board members by the general
meeting.
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3. A supervisory board member shall retire no later than at the next annual
meeting held after a period of three years following his appointment. A so
retired member of the supervisory board may be immediately re-elected.
4. Every member of the supervisory board shall retire no later than on the day
on which the annual meeting is held in the financial year in which he
reaches the age of seventy-two.
5. With due observance of the preceding paragraphs the supervisory board shall
draw up a rotation plan.
Article 22. Remuneration.
The general meeting shall determine the remuneration for every member of the
supervisory board.
Article 23. Duties and powers.
1. It shall be the duty of the supervisory board to supervise the activities
of the management board and the general course of affairs in the company
and in the business connected therewith. It shall assist the management
board with advice. In performing their duties, the supervisory board
members shall act in accordance with the interests of the company and of
the business connected therewith.
2. With due observance of these articles of association, the supervisory board
may adopt rules and regulations governing its internal proceedings and
especially pertaining to voting, including voting on nomination of
supervisory directors, and provisions relating to supervisory board
composition and governance and to give effect to matters agreed upon in
shareholder agreements.
3. The management board shall supply the supervisory board, in due time, with
the information required for the performance of its duties.
4. The supervisory board may delegate any of its powers to committees
consisting of such member or members of its body as it thinks fit;
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any committee so formed shall, in the exercise of the power so delegated,
conform to any regulations that may be imposed on it by the supervisory
board.
Article 24. Proceedings and decision-making process.
1. The supervisory board shall elect a chairman from among its members, and a
vice chairman who shall take the place of the chairman in the latter's
absence. It shall appoint a secretary, who need not be a member of the
supervisory board, and shall make arrangements for his/her substitution in
case of absence.
2. In the absence of the chairman and the vice chairman at a meeting, the
board members in attendance shall designate a chairman therefor.
3. The supervisory board shall meet whenever the chairman, or two other
supervisory board members, or the management board, deem(s) such necessary,
but if the supervisory board has not met for six months, any supervisory
board member may call a meeting.
4. The secretary shall keep minutes of the proceedings at meetings of the
supervisory board. The minutes shall be adopted in the same meeting or in
the following meeting of the supervisory board and shall be signed by the
chairman and the secretary as evidence thereof.
5. All resolutions of the supervisory board shall be adopted by a majority of
the votes cast.
6. With the exception of article 25 paragraph 4 under a., resolutions of the
supervisory board shall only be valid if passed at a meeting at which the
majority of the supervisory board members are present or represented. The
supervisory board may also adopt resolutions in a telephone meeting or
without a meeting, provided the proposal concerned is submitted to all
supervisory board members and none of them objects to this manner of
adopting resolutions. The secretary shall draw up a report regarding a
resolution thus adopted and shall attach the replies received to the
report, which shall be signed by the chairman and the secretary.
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7. A supervisory board member may be represented by a comember of the
supervisory board authorized in writing. The expression "in writing" shall
include any message transmitted by current means of communication and
received in writing. A supervisory board member may not act as
representative for more than one co-member.
8. The supervisory board shall meet together with the management board as
often as the supervisory board or management board deems necessary.
Article 25. Indemnification. Limited liability.
1. The company shall 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 he is or was a supervisory director, member of the
management board, officer, employee or agent of the company, or is or was
serving at the request of the company as a supervisory director, member of
the management board, officer, director, employee, trustee or agent of
another company, a partnership, joint venture, trust or other enterprise or
entity, against all expenses (including attorneys' fees), judgements, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful or
outside of his mandate. The termination of any action, suit or proceeding
by a judgement, order, settlement, conviction, or upon a plea of nolo
contender or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and not in a manner which he
reasonably could believe to be
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in or not opposed to the best interest of the company, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
2. The company shall 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 proceeding by or in the right of the company to procure a
judgement in its favour, by reason of the fact that he is or was a
supervisory director, member of the management board, officer or agent of
the company, or is or was serving at the request of the company as a
supervisory director, member of the management board, officer, director,
employee, trustee or agent of another company, a partnership, joint
venture, trust or other enterprise or entity, against all expenses
(including attorneys' fees) judgements, fines and amounts paid in
settlement, actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
company, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to
be liable for gross negligence or wilful misconduct in the performance of
his duty to the company, unless and only to the extent that the court in
which such action or proceeding was brought or any other court having
appropriate jurisdiction shall determine upon application that, despite the
adjudication of liability but in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to indemnification
against such expenses which the court in which such action or proceeding
was brought or such other court having appropriate jurisdiction shall deem
proper.
3. To the extent that a supervisory director, member of the management board,
officer, employee or agent of the company has been successful on the merits
or otherwise in defense of any
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action, suits of proceeding, referred to in paragraphs 1 and 2, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
4. Any indemnification by the company referred to in paragraphs 1 and 2 shall
(unless ordered by a court) only be made upon a determination that
indemnification of the supervisory director, member of the management
board, officer, director, employee, trustee or agent is proper under the
circumstances because he had met the applicable standard of conduct set
forth in paragraph 1 and 2 of this Article 25. Such determination shall be
made:
a. by a majority of supervisory directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or;
b. if there are no supervisory directors who are not named as parties to
such action, suit or proceeding or if the supervisory directors who
are not named as parties to such action, suit or proceeding so direct,
by independent legal counsel in a written opinion; or
c. by the general meeting of shareholders.
5. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the company in advance of the final disposition
of such action, suit or proceeding upon a resolution of the supervisory
board with respect to the specific case upon receipt of an undertaking by
or on behalf of the supervisory director, member of the management board,
officer, director, employee, trustee or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by
the company as authorized in this article.
6. The indemnification provided for by this article shall not be deemed
exclusive of any other right to which a person seeking indemnification may
be entitled under the laws of the Netherlands as from time to time amended
or under any by-laws, agreement,
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resolution of the general meeting of shareholders or of the disinterested
members of the supervisory board or otherwise, both as to actions in his
official capacity and as to actions in another capacity while holding such
position, and shall continue as to a person who has ceased to be a
supervisory director, member of the management board, officer, director,
employee, trustee or agent and shall also inure to the benefit of the
heirs, executors and administrators of such a person.
7. The company shall have the power to purchase and maintain insurance on
behalf of any person who is or was a supervisory director, member of the
management board, officer, employee or agent of the company, or is or was
serving at the request of the company as a supervisory director, member of
the management board, officer, director, employee, trustee or agent of
another company, a partnership, joint venture, trust or other enterprise,
or entity, against any liability asserted against him and incurred by him
in any such capacity or arising out of his capacity as such, whether or not
the company would have the power to indemnify him against such liability
under the provisions of this article.
8. Whenever in this article reference is made to the company, this shall
include, in addition to the resulting or surviving company also any
constituent company (including any constituent company of a constituent
company) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power to indemnify its
supervisory directors, members of the management board, officers, employees
and agents, so that any person who is or was a supervisory director, member
of the management board, officer, employee or agent of such constituent
company, or is or was serving at the request of such constituent company as
a supervisory director, member of the management board, officer, director,
employee, trustee or agent of another company, a partnership, joint
venture, trust or other enterprise or entity, shall stand in the same
position under the provisions of this
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article with respect to the resulting or surviving company as he would have
with respect to such constituent company if its separate existence had
continued.
9. No person shall be personally liable to the company or its stockholders for
monetary damages for breach of fiduciary duty as a supervisory director or
member of the management board; provided, however, that the foregoing shall
not eliminate or limit the liability of a supervisory director or member of
the management board (1) for any breach of such individual's duty of
loyalty to the company or its stockholders, (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (3) for any transaction from which the director derived
an improper personal benefit or (4) for personal liability which is imposed
by Dutch law, as from time to time amended. Any amendment, repeal or
modification of this Article 25 shall not adversely affect any right or
protection of any person with respect to any act or omission occurring
prior to such amendment, repeal or modification.
Chapter VIII.
Annual Accounts. Profits.
Article 26. Financial year. Drawing up the annual accounts.
Deposition for inspection.
1. The fiscal year of the company shall be the calendar year.
2. Annually, and not later than five months after the end of the fiscal year,
the management board shall draw up the annual accounts, unless, by reason
of special circumstances, this period is extended with a maximum extension
of six months by the general meeting.
3. Within the period referred to in paragraph 2, the annual accounts shall be
deposited at the office of the company for inspection by the shareholders.
Within this period of time, the management board shall also submit the
annual report. The statement of the accountant, as mentioned in article 29,
and the additional
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information required by virtue of the law shall be added to the annual
accounts.
4. The annual accounts shall be signed by all the members of the management
board; if the signature of one or more of the members is lacking, this
shall be stated and reasons given.
Article 27. Accountant.
1. The company shall appoint an accountant to audit the annual accounts.
2. Such appointment shall be made by the general meeting. This resolution of
the general meeting shall require the approval of the supervisory board. If
the general meeting fails to make an appointment, the supervisory board
shall be competent to do so or, in the absence of the supervisory board
members or in the event the supervisory board fails to do so, the
management board shall be competent to do so. The appointment of an
accountant shall not be limited by virtue of any nomination; the
appointment may, at all times, be revoked by the general meeting or by the
supervisory board or management board if either of the latter boards has
appointed the accountant.
3. The accountant shall issue a report on his audit examination to the
supervisory board and the management board.
4. The accountant shall give the results of his investigations in a
declaration as to the faithfulness of the annual accounts.
Article 28. Submission to the supervisory board.
1. The management board shall submit simultaneously the annual accounts and
the annual report to the supervisory board.
2. The annual accounts shall be signed by the members of the supervisory
board; if the signature of one or more of them is lacking, this shall be
stated and reasons given.
3. The supervisory board shall present a report on the annual accounts to the
general meeting.
Article 29. Adoption.
1. The company shall ensure that the annual accounts, the annual
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report and the information to be added by virtue of the law are kept at its
office as of the date on which the annual meeting is convened.
Shareholders, and beneficiaries of a life interest in shares to whom the
right to vote the shares accrue, may inspect the documents at such place
and obtain a copy thereof, free of charge.
2. The general meeting shall adopt the annual accounts. The annual accounts
may not be adopted in the event that the general meeting has been unable to
inspect the accountant's declaration referred to in article 27, paragraph
4, unless a legal ground is given in the information required to be added
by law for the lack of the accountant's declaration referred to in article
27, paragraph 4.
3. The unconditional adoption of the annual accounts by the general meeting
shall serve to constitute a discharge of the management board members for
their management and for the supervisory board members for their
supervision insofar as such management and supervision is apparent from the
annual accounts.
Article 30. Publication.
1. The company shall publish the annual accounts within eight days following
the adoption thereof. The publication shall be effected by the deposit of a
complete copy in the Dutch language or, if such copy was not prepared, a
copy in the French, German or English language, at the offices of the Trade
Register in whose district the company has its official seat according to
these articles of association. The date of adoption must be stated on the
copy.
2. If the annual accounts are not adopted within seven months of the
termination of the fiscal year, in accordance with the legal requirements,
then the management board shall, without further delay, publish the
prepared annual accounts in the manner prescribed in paragraph 1; it shall
be noted on the annual accounts that they have not yet been adopted.
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DIE BRAUW BLACKSTONIE WIESTBROIEK 24
3. In the event that the general meeting shall have extended the
period for the preparation of the annual accounts in accordance with
article 28, paragraphs 2, then the last preceding paragraph shall apply
with effect from the date falling two months from the termination of such
period.
4. A copy of the annual report, produced in the same language or in Dutch,
shall, together with the additional information required by virtue of law,
be published at the same time and in the same manner as the annual
accounts. Insofar as the law permits, the foregoing shall not apply if
copies of those documents are held at the office of the company for
inspection by any person and, upon request, full or partial copies thereof
are supplied at a price not exceeding the cost; the company shall make an
official return thereof for filing in the Trade Register.
5. The publication shall be effected with due observance of the applicable
legal exemptions.
Article 31. Profits. Distribution.
1. From the profits appearing from the annual accounts as adopted, such an
amount shall be reserved by the company as shall be determined by the
management board which resolution requires the approval of the supervisory
board. The profits remaining thereafter shall be treated in accordance with
the provisions of the following paragraphs of this article.
2. The profits remaining after the reservation referred to in paragraph 1 are
at the disposal of the general meeting for distribution on the shares
equally and proportionally and/or for reservation.
3. A distribution can only take place up to the distributable part of the net
assets.
4. Distributions of profits shall take place after adoption of the annual
accounts from which it shall appear that approval of such accounts has been
given.
5. The management board may, subject to due observance of the provisions of
article 31, paragraph 3, and with the approval of
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DIE BRAUW BLACKSTONIE WIESTBROIEK 25
the supervisory board resolve to pay an interim dividend in anticipation of
the final dividends.
6. On the proposal of the management board, which proposal shall require the
prior approval of the supervisory board, subject to the due observance of
the provisions of article 31, paragraph 3, the general meeting may resolve
to make distributions at the expense of any reserve.
7. The supervisory board or - in case the supervisory board is no longer
authorised to issue shares in accordance to article 6 - the general
meeting, may determine to distribute stock dividends.
Article 32. Date on which distributions become payable.
Currency.
1. The date on which dividends and other payments become payable shall be
announced in accordance with article 42.
2. The management board may resolve to make payments in the currency of the
country where these payments are made payable.
3. Any claim of a shareholder for payment shall be barred after five years
have elapsed.
Chapter IX.
General meetings of shareholders.
Article 33. Annual meeting.
1. Annually, and not later than six months after the end of the fiscal year,
the annual meeting shall be held.
2. The agenda for such meeting shall set forth, inter alia, the following
points for discussion:
a. the annual report;
b. adoption of the annual accounts;
c. appropriation of profits;
d. filling of any vacancies in the management board and/or supervisory
board and if necessary the appointment of the accountants;
e. other proposals put forward for discussion and announced with due
observance of article 35 by the supervisory board, the
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DIE BRAUW BLACKSTONIE WIESTBROIEK 26
management board or by the shareholders and beneficiaries of a life
interest to whom the voting right has been granted, representing, in
the aggregate, at least one-tenth of the issued capital.
Article 34. Other meetings.
1. Other general meetings of shareholders shall be held as often as the
management board or the supervisory board deems such necessary.
2. Shareholders, and beneficiaries of a life interest to whom the voting right
have been granted, representing in the aggregate at least one-tenth of the
issued capital, may request the management board to convene a general
meeting of shareholders, stating the subjects to be discussed. If the
management board has not convened a meeting within four weeks in such a
manner that the meeting can be held within six weeks after the request has
been made, the persons who have made the request shall be authorized to
convene a meeting themselves.
Article 35. Convocation. Agenda.
1. General meetings of shareholders shall be convened by the management board.
2. The convocation shall be given no later than on the fifteenth day prior to
the date of the meeting.
3. The convocation shall specify the subjects to be discussed. Subjects that
were not specified in the notification may be announced at a later date,
subject to due observance of the requirements set out in this article.
4. The convocation shall be made in the manner stated in article 42.
Article 36. The entire capital is represented.
As long as the entire issued capital is represented at a general meeting of
shareholders, valid resolutions can be adopted on all subjects brought up for
discussion, even if the formalities prescribed by law or by the articles of
association for the convocation and holding of meetings have not been complied
with, provided such resolutions are adopted unanimously.
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DIE BRAUW BLACKSTONIE WIESTBROIEK 27
Article 37. Place of the meetings.
The general meetings of shareholders shall be held in Amsterdam, Rotterdam, The
Hague or Schiphol Airport (municipality Haarlemmermeer). In meetings held
elsewhere, resolutions can be validly adopted provided the entire issued capital
is present.
Article 38. Chairmanship.
1. The general meetings of shareholders shall be presided over by the chairman
of the supervisory board or, in his absence, by the vice chairman of the
supervisory board; in the event that the latter is also absent, the
supervisory board members present shall elect a chairman from their midst.
The supervisory board may designate another person to act as chairman of a
general meeting of shareholders.
2. If the chairman has not been appointed in accordance with paragraph 1, the
shareholders present at such meeting shall, themselves, choose a chairman.
3. The chairman may adopt rules regarding, inter alia, the length of time for
which persons in attendance may speak. The chairman may determine other
rules if he considers this desirable with a view to the orderly proceedings
of the meeting. Any matters regarding the proceedings at the general
meeting of shareholders for which these articles of association contain no
provisions shall be decided upon by the chairman with due observance of the
provisions of article 13 of Book 2 of the Civil Code.
Article 39. Minutes. Records.
1. Minutes of the proceedings at any general meeting of shareholders shall be
kept by a secretary to be designated by the chairman. The minutes shall be
confirmed by the chairman and the secretary and shall be signed by them as
proof thereof.
2. The supervisory board, the chairman or the person who has convened the
meeting may determine that notarial minutes of the proceedings of the
meeting shall be drawn up. The notarial minutes shall be
co-signed by the chairman.
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3. The management board shall keep a record of the resolutions made at this
general meeting. If the management board is not represented at a general
meeting, the chairman of the meeting shall provide the management board
with a transcript of the resolutions made as soon as possible after the
meeting. The records shall be deposited at the offices of the company for
inspection by the shareholders and the holders of depositary receipts. Upon
request, each of them shall be provided with a copy or an extract of such
record at not more than the actual cost thereof. Shareholders in this
respect shall include beneficiaries of a life interest who hold voting
rights.
Article 40. Meeting rights. Admittance.
1. Each shareholder entitled to vote and each beneficiary of a life interest
or pledgee to whom the voting rights accrue shall be entitled to attend the
general meeting of shareholders, to address the meeting and to exercise his
voting rights. Where it concerns registered shares, the management board
must be notified in writing of the intention to attend the meeting. Such
notice must be received by the management board not later than on the date
mentioned in the notice of the meeting. Where it concerns bearer shares the
share certificates must be lodged not later than on the date mentioned in
the notice of the meeting, at the place mentioned therein.
2. The right to take part in the meeting in accordance with paragraph 1 may be
exercised by a proxy authorised in writing, provided that the power of
attorney has been received by the management board not later than on the
date mentioned in the notice of the meeting.
3. The date mentioned in the notice of the meeting, referred to in paragraphs
1 and 2, cannot be prior than the seventh day prior to the date of the
meeting.
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4. If the voting rights on a share accrue to the beneficiary of a
life interest or to a pledgee, instead of to the shareholder, the
shareholder is also authorised to attend the general meeting of
shareholders and to address the meeting, provided that, where it concerns
registered shares, the management board has been notified of the intention
to attend the meeting in accordance with paragraph 1, and, where it
concerns bearer shares, the lodging as prescribed by paragraph 1 has taken
place. Paragraph 2 applies accordingly.
5. Each share confers the right to cast one vote.
6. Each person entitled to vote or his proxy shall sign the attendance list.
7. The members of the supervisory board and of the management board shall, as
such, have the right to advise the general meeting of shareholders.
8. The chairman shall decide whether persons other than those who shall be
admitted in accordance with the above provisions of this article shall be
admitted to the meeting.
Article 41. Votes.
1. Insofar as no greater majority is prescribed by law or these articles of
association, all resolutions of the general meeting shall be adopted by a
majority of the votes cast.
2. To the extent (i) the general meeting of shareholders has the authority to
vote on the matters listed below, (ii) the authority to vote on the matters
listed below has not been delegated to another corporate body of the
company and (iii) there is a person that alone or together with a group
(beneficially) holds more than fifteen percent (15%) of the issued and
outstanding share capital of the company, the general meeting may only
adopt resolutions by a majority consisting of at least eighty percent (80%)
of the entire issued and outstanding share capital:
a. to the extent the management board is not authorized to do so pursuant
to sections 2:331.1 or 2:334ff.l Dutch Civil Code, a resolution for a
legal merger, legal demerger, dissolution, liquidation and legal
division with or to any person;
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b. to the extent the general meeting has not designated the supervisory
board as authorized body to issue shares and without prejudice to the
right of the general meeting of shareholders to designate the
supervisory board to that extent, a resolution to issue shares to all
shareholders, including to a person that, alone or together with a
group, (beneficially) holds more than fifteen percent (15%) of the
issued and outstanding share capital of the company or (beneficially)
held more than fifteen percent (15%) of the issued and outstanding
share capital of the company at any time since the first day of
January two thousand;
c. in case the supervisory board is no longer authorized to issue shares
in accordance to article 6, but without prejudice to the right of the
general meeting to designate the supervisory board to that extent, a
resolution to distribute profits or to distribute reserves in the form
of stock dividend to all shareholders, including to a person that,
alone or together with a group company, (beneficially) holds more than
fifteen percent (15%) of the issued and outstanding share capital of
the company or (beneficially) held more than fifteen percent (15%) of
the issued and outstanding share capital of the company at any time
since the first day of January two thousand;
d. without prejudice to the right of the general meeting to authorize the
management board to resolve that the company shall acquire shares in
its own capital or depositary receipts for those shares for a valuable
consideration, which authorization is valid for a maximum period of
eighteen (18) months, any acquisition of the company, for a valuable
consideration, of shares in its own capital or of depositary receipts
of those shares from all shareholders, including from a person that,
alone or together with a group, (beneficially)
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DIE BRAUW BLACKSTONIE WIESTBROIEK 31
holds more than fifteen percent (15%) of the issued and outstanding
share capital of the company or (beneficially) held more than fifteen
percent (15%) of the issued and outstanding share capital of the
company at any time since the first day of January two thousand;
e. any transaction with a person that, alone or together with a group,
(beneficially) holds more than fifteen percent (15%) of the issued and
outstanding share capital of the company or (beneficially) held more
than fifteen percent (15%) of the issued and outstanding share capital
of the company at any time since the first day of January two thousand
that would otherwise require shareholder approval.
This paragraph does not create any additional rights for the general
meeting that it does not already have under Dutch law or these articles of
association.
3. If, in an election of persons, a majority is not obtained, a second vote
shall be taken. If, again, a majority is not obtained, further votes shall
be taken until either one person obtains the absolute majority or the
election is between two persons who have received an equal number of votes.
In the event of a further election (not including the second free vote),
the election shall be between the persons who participated in the preceding
election, with the exception of the person who received the smallest number
of votes in that preceding election. If, in that preceding election, more
than one person received the smallest number of votes, it shall be decided
by lot who of these persons shall no longer participate in the new
election. If the votes are equal in the election between the two, it shall
be decided by lot who is to be chosen. If there is a tie vote in a vote for
the election of persons out of a binding list of nominees, the first person
on that list shall be elected.
4. If there is a tie vote on a matter other than a vote for the election of
persons, the proposal shall be rejected.
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DIE BRAUW BLACKSTONIE WIESTBROIEK 32
5. Votes need not be held in writing. The chairman is, however, entitled to
decide that a vote shall be by secret ballot. If the vote concerns an
election of persons, any person present at the meeting and entitled to vote
can also demand a vote by a secret ballot.
6. Abstentions and invalid votes shall not be counted as votes that have been
cast.
7. Voting by acclamation shall be allowed if none of the persons present and
entitled to vote objects to it.
8. The chairman's decision at the meeting about the outcome of a vote shall be
final and conclusive. The same shall apply to the contents of an adopted
resolution regarding the voting on an unwritten proposal. If, however, the
correctness of that decision is challenged immediately after its
pronouncement, a new vote shall be taken if either the majority of the
persons present and entitled to vote so requests, or, if the original
voting was taken by roll call or in writing, any person present and
entitled to vote so requests. As a result of the new vote, the original
vote shall have no legal consequence and shall be cancelled.
Chapter X.
Convocation and notification.
Article 42.
1. All announcements for the general meetings of shareholders, all
notifications concerning dividend and other payments and all other
communications to holders of registered shares shall be effected by means
of letters mailed to the addresses as shown in the register of
shareholders. In case there are bearer shares issued any outstanding
announcements, notifications and other communications to shareholders shall
also be effected by means of a notice in a national daily paper and, in
case of a listing on the AEX-Effectenbeurs N.V. in the Official Price List,
without prejudice to the provisions of article 96a paragraph 4, Book 2 of
the Civil Code.
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DIE BRAUW BLACKSTONIE WIESTBROIEK 33
2. The expression "shareholders" in paragraph 1 shall include the
beneficiaries of a life interest and pledgees to which the voting rights on
shares accrue.
Chapter XI.
Amendment of the articles of association and dissolution.
Liquidation.
Article 43. Amendment of the articles of association.
Dissolution.
1. When a proposal to amend the articles of association or to dissolve the
company is to be submitted to the general meeting, such must be mentioned
in the notice of the general meeting of shareholders and, if an amendment
to the articles of association is to be discussed, a copy of the proposal,
setting forth the text of the proposed amendment verbatim, shall at the
same time be deposited at the company's office and, if shares are listed on
the AEX-Effectenbeurs N.V. at the office of a member of the
AEX-Effectenbeurs N.V. to be designated in the notice of the meeting or
another payment office as referred to in the relevant Rules of the
AEX-Effectenbeurs N.V. for inspection and shall be held available for
shareholders as well as for beneficiaries of a life interest and pledgees
to which the voting rights on share accrue, free of charge until the end of
the meeting.
2. A proposal to amend the articles of association to legally merge or to
dissolve the company shall require prior approval of the supervisory board.
Article 44. Liquidation.
1. In the event of dissolution of the company by virtue of a resolution of the
general meeting, the members of the management board shall be charged with
the liquidation of the business of the company, and the members of the
supervisory board with the supervision thereof.
2. During liquidation, the provisions of these articles of association shall
remain in force to the extent possible.
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DIE BRAUW BLACKSTONIE WIESTBROIEK 34
3. The balance remaining after payment of creditors shall be transferred to
the shareholders.
4. The liquidation shall take place in accordance with the provisions of
Section 1 of Volume 2 of the Civil Code.