EXHIBIT 3
The undersigned:
Professor Martin van Olffen, notaris (civil-law notary) practising in Amsterdam,
declares that to the best of his knowledge
(i) the articles of association of the limited liability company: Chicago
Bridge & Iron Company N.V., with its corporate seat in Amsterdam, the
Netherlands, correspond with the document in the Dutch language which is
attached to this certificate;
(ii) the document in the English language attached hereto is an accurate
unofficial translation of such articles of association; and
(iii) the articles of association were partially amended lastly by deed on May
14, 2002, executed before a substitute of Professor M. van Olffen,
notaris (civil-law notary) in Amsterdam, on which amendment the
ministerial declaration of no-objection was granted on May 10, 2002,
number N.V. 579.328.
Signed in Amsterdam, on May 16, 2002.
UNOFFICIAL TRANSLATION
OF THE ARTICLES OF ASSOCIATION OF:
CHICAGO BRIDGE & IRON COMPANY N.V.
WITH CORPORATE SEAT IN AMSTERDAM,
THE NETHERLANDS
AS PER MAY 14, 2002
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;
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
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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;
f. to furnish advice and to render services to enterprises and companies with
which the company forms a group and
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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 share capital amounts to eight hundred thousand euro (EUR
800,000).
2. The authorized share capital is divided into eighty million (80,000,000)
shares of one eurocent (EUR 0.01) each.
3. All shares are in registered form.
ARTICLE 5. CERTIFICATES OF SHARES.
1. At the discretion of the management board or at the request of a shareholder
share certificates may be issued for 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.
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
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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. DUPLICATE CERTIFICATES.
1. In the event of the loss, theft or destruction of share certificates, 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.
3. The new document shall clearly state that it is a duplicate.
ARTICLE 5.B. REGISTER OF SHAREHOLDERS.
1. The management board shall keep a register containing the names and
addresses of all shareholders.
2. Every holder of one or more shares and any person having a life interest or
a right of pledge over one or more shares shall be obliged to provide the
company in writing with their name and address.
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
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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.
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
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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.
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:
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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 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
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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.
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
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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 share for which a share certificate has been
issued, the corresponding share certificate must be delivered to the company
or 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 shares 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
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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 which the law
attributes to holders of depository receipts issued with the company's
co-operation. 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
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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 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
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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 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
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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.
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
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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.
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 POWER
1. It shall be the duty of the supervisory board to supervise the activities of
the management board and
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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; 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,
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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.
7. A supervisory board member may be represented by a co-member 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.
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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 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
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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 action, suits of proceeding, referred to in
paragraphs 1 and 2, or in defense of any claim,
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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
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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, 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
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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 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.
22
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 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
23
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 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
24
the accountant's declaration referred to in article 27, paragraph 4.
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.
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;
25
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 article 31, paragraph
3, and article 105, paragraph 4, of Book 2 of the Civil Code and with the
approval of the supervisory board resolve to pay or distribute an interim
dividend or other interim distribution in anticipation of the final dividend
or final distribution regarding the fiscal year concerned.
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.
26
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. discharge of supervisory directors and management directors;
e. filling of any vacancies in the management board and/or supervisory board
and if necessary the appointment of the accountants;
f. other proposals put forward for discussion and announced with due
observance of article 35 by the supervisory board, the management board
or by shareholders or beneficiaries of a life interest or pledgees to
whom the voting rights have been
27
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
28
association for the convocation and holding of meetings have not been complied
with, provided such resolutions are adopted unanimously.
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
29
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.
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. The management board may determine that any person entitled per a certain
date, such date to be determined by the management board (hereinafter: the
"record date"), to attend the general meeting of shareholders, may attend
the general meeting of shareholders if (i) they are as such registered in a
register (or one or more parts thereof) designated for that purpose by the
management board, and (ii) at the request of the applicant the holder of the
register has notified the company in writing prior to the general meeting
that
30
such applicant has the intention to attend the general meeting of
shareholders, regardless of who will be applicant at the time of the general
meeting of shareholders. The notification will state the name and the number
of shares for which the applicant is entitled to attend the general meeting.
The provision under (ii) on the notification to the company will also apply
to a proxy authorized in writing by an applicant.
2. The record date referred to in paragraph 1 of this article and the date on
which the notification of the intention to attend the general meeting of
shareholders shall have been given at the latest, referred to in paragraph 1
of this article, cannot be fixed earlier than at a time on the seventh day,
and not later than at a time on the third day, prior to the date of the
general meeting of shareholders. The convocation of the general meeting of
shareholders will include said times, the place of the meeting, the
proceedings for registration and/or notification and, if share certificates
have been issued, share certificates must be lodged not later than on the
date referred to in the convocation of the meeting, at the place referred to
in such convocation.
3. In case the management board does not exercise the power to set a record
date as referred to in paragraph 1 of this article, paragraphs 4, 5 and 6 of
this article apply.
4. 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.
The management board must be notified in writing of the intention to attend
the meeting and, if share
31
certificates have been issued, share certificates must be lodged not later
than on the date referred to in the notice of the meeting, at the place
referred to in such notice. The notice of the intention to attend the
meeting must be received by the management board not later than on the date
referred to in the notice of the meeting.
5. The right to take part in the meeting in accordance with paragraph 4 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 referred to in the notice of the meeting.
6. The date referred to in the notice of the meeting, referred to in paragraphs
4 and 5 of this article, cannot be earlier than the seventh day prior to the
date of the meeting.
7. 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
authorized to attend the general meeting of shareholders and to address the
meeting, provided that the management board has been notified of the
intention to attend the meeting in accordance with paragraph 4 of this
article, and, where share certificates have been issued, the lodging as
prescribed by paragraph 4 of this article has taken place. Paragraph 5 of
this article applies accordingly.
8. Each share confers the right to cast one vote.
9. Each person entitled to vote or his proxy shall sign the attendance list.
10. The members of the supervisory board and of the management board shall, as
such, have the right to advise the general meeting of shareholders.
11. The chairman shall decide whether persons other than
32
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.1 Dutch Civil Code, a resolution for a legal
merger, legal demerger, dissolution, liquidation and legal division with
or to any person;
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
33
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) 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
34
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.
35
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 to the shareholders mailed to the addresses as shown in the register
of shareholders.
2. The expression "shareholders" in paragraph 1 shall include the beneficiaries
of a life interest and
36
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 for inspection at the company's office, and shall be held
available for shareholders as well as for beneficiaries of a life interest
and pledgees to whom the voting rights on shares 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.
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.
37
ARTICLE 45. TRANSITIONAL PROVISION.
Each issued bearer share is hereby converted into one (1) registered share.
Holders of bearer shares cannot exercise the rights attached to their shares
until they have handed in their share certificate(s) to the company and are
registered in the register referred to in article 5.B. (new).
This article shall lapse and shall cease to be effective upon receipt by the
company of the share certificate(s) referred to in this article.