Exhibit 3.1a
ARTICLES OF INCORPORATION
OF
STATIA TERMINALS GROUP N.V.
NAME, SEAT AND DURATION
ARTICLE 1
1. NAME. The name of the company is: Statia Terminals Group N.V.
2. STATUTORY SEAT, BRANCHES AND BRANCH OFFICES. The company has its
statutory seat at Curacao, Netherlands Antilles. The company may have
one or more branches and/or branch offices outside of Curacao,
Netherlands Antilles.
3. TRANSFER OF STATUTORY SEAT. The company may transfer its statutory seat
to another country and assume the status of a legal entity formed under
the laws of that country in accordance with the Netherlands Antilles
Ordinance on transfer of seat to third countries, pursuant to a
resolution to that effect adopted by the Board of Directors (as defined
in paragraph 1 of article 10 hereof), but only if it deems such
transfer of seat in the best interests of the company.
4. DURATION. The company has been constituted for an indefinite period of
time.
OBJECTS
ARTICLE 2
1. OBJECTS. The objects of the company are to incorporate, participate in,
hold, manage, operate and finance entities, legal or otherwise,
directly or indirectly, belonging to the Statia group of companies
engaged in the business of marine terminaling in St. Eustatius, and
Point Tupper, Nova Scotia, Canada, as well as (a) to participate in any
other venture or company, (b) to invest its assets in securities,
including shares and other certificates of participation and bonds, as
well as other claims for interest bearing debts however denominated,
and (c) to guarantee or otherwise secure, and to transfer in ownership,
to mortgage, pledge or otherwise to encumber assets as security for the
obligations of the company and for the obligations of third parties,
with or without consideration.
2. RELATED ACTIVITIES. The company is entitled to do all that may be
useful or necessary for the attainment of its objects or that is
connected therewith in the widest sense.
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CAPITAL AND SHARES
ARTICLE 3
1. AUTHORIZED CAPITAL (AMOUNT). The authorized capital of the company
amounts to Three Hundred Thousand United States Dollars (US
$300,000.00).
2. AUTHORIZED CAPITAL (SHARES). The authorized capital consists of thirty
million (30,000,000) shares, each with a par value of One United States
Cent (US $0.01), and is divided into twenty million (20,000,000) class
A common shares (the "class A shares" or the "common shares"), seven
million eight hundred thousand (7,800,000) class B subordinated shares
(the "class B shares" or the "subordinated shares"), and two million
two hundred thousand (2,200,000) class C shares (the "class C shares"
or the "incentive shares"). The class A shares shall be numbered A1
through A20.000.000, the class B shares shall be numbered B1 through
B7.800.000, and the class C shares shall be numbered C1 through
C2.200.000. The class A shares and the class B shares have full voting
rights, whilst the class C shares shall be non-voting. At the date of
this amendment (the "Initial Issue Date"), at least twenty percent of
the authorized capital is issued and outstanding in the form of voting
shares with third parties, consisting of at least 7,600,000 common
shares issued in connection with the initial public offering of such
shares at the Initial Issue Date and 3,800,000 subordinated shares.
3. DEFINITIONS OF "SHARES", "SHAREHOLDERS". In these articles of
incorporation, unless specifically stated otherwise herein, the term
"shares" means class A shares, class B shares and class C shares, and
the term "shareholders" means holders of shares of class A shares,
class B shares and class C shares.
4. REPURCHASE OF SHARES. The company is entitled to repurchase fully paid
up shares in its own capital for valuable consideration, provided that
at all times at least twenty percent of the authorized capital of the
company in the form of voting shares remains outstanding with third
parties.
5. TREATMENT OF TREASURY SHARES. The company may not derive any rights
from its treasury shares. For the purpose of determining its issued and
outstanding capital, such shares shall not be included as part of such
capital.
6. CANCELLATION OF SHARES. The Board of Directors may, without instruction
or authorization of the General Meeting (as defined in paragraph 1 of
article 13 hereof), cancel shares which are in the possession of the
company.
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FORM OF SHARES; ISSUANCE OF SHARES
ARTICLE 4
1. REGISTERED FORM. The shares shall be issued in registered form only.
2. CONSIDERATION; FRACTIONAL SHARES. Shares shall be issued at or above
par. Fractional shares may be issued. Payments on shares may be made in
cash and/or in kind, and in such currency as the Board of Directors
deems fit.
3. TERMS AND CONDITIONS OF ISSUANCE. Subject to the terms of these
articles of incorporation, shares may be issued at such times, for such
considerations and on such terms as may be established from time to
time by the Board of Directors in its sole discretion without the
approval of the shareholders, except as set forth in the next sentence.
During the Subordination Period (as defined in article 5) with respect
to the subordinated shares, the Board of Directors may not issue (i)
more than 4,000,000 common shares, in addition to the common shares
issued on the Initial Issue Date, excluding any common shares issued
upon any exercise of the overallotment option by one or more
underwriters of the common shares, or (ii) any equity securities
ranking senior to the common shares on distribution of dividends (as
set out in article 17) or on any distribution upon dissolution and
liquidation of the company (as set forth in article 18), without the
approval of the holders of a majority of the outstanding common shares,
not including those common shares held by the holder(s) of incentive
shares and their affiliates, if any. For purposes of the foregoing, an
"affiliate" shall mean a holder of shares of the company that is (i)
directly, or indirectly, through one or more intermediaries controlled
by or under control or "common control" (as such terms are further
described in the United States Securities Exchange Act of 1934) with,
the company including but not limited to, any holder of the
subordinated shares and/or incentive shares at the Initial Issue Date,
or (ii) an officer or director of the company or of an affiliate of the
company.
4. EXCEPTION TO RESTRICTION ON ISSUANCE. The restriction set forth in
paragraph 3 of article 4 on issuance of additional common shares shall,
however, not apply to the following issuances: (a) upon exercise of the
over-allotment option by any underwriter of common shares, (b) upon
conversion of any subordinated shares, (c) pursuant to one or more
employee benefit plans of the company, (d) in the event of a
combination or subdivision of any common shares, or (e) in connection
with an acquisition or capital improvement by or of the company that
would have resulted in an increase in Adjusted Operating Surplus (as
defined in article 17) on a per common share and subordinated share,
pro forma basis for the preceding four-quarter period (or within 365
days of the closing of such an acquisition or the completion of such a
capital improvement and the net proceeds from such issuance are used to
repay debt, if any, incurred in connection therewith).
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5. COMPANY MAY NOT SUBSCRIBE FOR SHARES. When issuing shares, the company
shall not be entitled to subscribe for its own shares.
6. PRE-EMPTION. No shareholder shall have any right of pre-emption in
connection with any issuance of shares in the capital of the company or
other equity securities that may be issued by the company.
CLASS B CONVERSION
ARTICLE 5
1. CLASS B SHARES CONVERSION - GENERAL. If, at any time during or after
the Subordination Period (as defined below), any subordinated shares
are outstanding, all of such subordinated shares will convert into
common shares in the manner set forth in this article: (i) if the tests
for ending subordination (as set out below) have been met for any
quarter ending on or after June 30, 2002, one quarter of the aggregate
number of subordinated shares outstanding on the Initial Issue Date
(being 950,000 subordinated shares) will convert into common shares and
(ii) if the tests for ending subordination have been met for any
quarter ending on or after June 30, 2003, an additional quarter of the
aggregate number of subordinated shares outstanding on the Initial
Issue Date (being 950,000 subordinated shares) will convert into common
shares, provided that such conversion of the second one-quarter of the
subordinated shares may not occur until at least one calendar year
following the conversion of the first one-quarter of the subordinated
shares as described above. The Board of Directors shall for the purpose
of such conversion be authorized in its sole discretion to take any and
all necessary steps in connection therewith, including, without
limitation, the determination of the applicable shares, numbered from
B1 onwards representing a quarter of all outstanding subordinated
shares, at each time of a conversion. For the purpose hereof, the
"Subordination Period" shall mean the period from the Initial Issue
Date until the tests set forth below in (a) through (c), inclusive,
have been met for any quarter ending on or after June 30, 2004 for
which:
(a) distributions (in the form of dividends or otherwise) of
Available Cash from Operating Surplus (as such terms are
defined in article 17) on the common and subordinated shares
with respect to each of the three consecutive non-overlapping
four-quarter periods immediately preceding the date of
determination that equaled or exceeded the sum of the Target
Quarterly Distribution (as defined in article 17) on all of
the outstanding common and subordinated shares during such
periods;
(b) the Adjusted Operating Surplus generated by the company during
each of the three consecutive non-overlapping four-quarter
periods immediately preceding
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the date of determination equaled or exceeded the sum of the
Target Quarterly Distribution on all of the common and
subordinated shares that were outstanding on a fully diluted
basis (i.e. after assuming the exercise of all warrants,
vested stock options and conversion of subordinated shares)
during those periods; and
(c) there are no outstanding Common Share Arrearages (as defined
in article 17).
For purpose of the determination of any conversion as set out above for
any quarter (as further described above), the tests for ending
subordination shall be met for any quarter for which:
(d) distributions (in the form of dividends or otherwise) of
Available Cash from Operating Surplus on the common and
subordinated shares with respect to each of the three
consecutive non-overlapping four-quarter periods immediately
preceding the date of determination equaled or exceeded the
sum of the Target Quarterly Distribution on all the
outstanding common and subordinated shares during such
periods;
(e) the Adjusted Operating Surplus generated by the company during
each of the three consecutive non-overlapping four-quarter
periods immediately preceding the date of determination
equaled or exceeded the sum of the Target Quarterly
Distribution on all of the common and subordinated shares that
were outstanding on a fully diluted basis during those
periods; and
(f) there are no outstanding Common Share Arrearages.
2. CONVERSION OF SUBORDINATED SHARES ON EXPIRATION OF THE SUBORDINATION
PERIOD. Upon the expiration of the Subordination Period all outstanding
subordinated shares will convert into common shares. Subject to
paragraph 1 of this article, in each conversion, the relevant
subordinated shares outstanding will convert on a one-for-one basis,
into common shares, and will thereafter participate, among other
things, pro rata with the other common shares then outstanding in
distributions (in the form of dividends or otherwise) of Available Cash
with due observance of the dividend and other distribution rights of
the holders of incentive shares (as described in article 17) in
Available Cash.
3. EFFECT OF SURRENDER AND CONVERSION. Upon conversion of the appropriate
number of subordinated shares in accordance with the foregoing
provisions, the Board of Directors may upon request, issue one or more
share certificates representing the common shares upon conversion of
the subordinated shares, all in accordance with the
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provisions of article 6 of these articles of incorporation. All rights
relating to the subordinated shares converted into common shares shall
cease and such subordinated shares shall no longer be outstanding.
SHARE CERTIFICATES FOR SHARES
ARTICLE 6
1. SHARE CERTIFICATES. Share certificates may be issued for shares.
2. NUMBER OF SHARES REPRESENTED BY CERTIFICATES. Share certificates may be
issued to represent more than one share, or, in the event of the
issuance of a (temporary) global share certificate representing all
common shares issued and outstanding at the Initial Issue Date. If
shares held by a shareholder are represented by one share certificate,
and if such shareholder disposes of part of his or her shares, such
shareholder shall be entitled to request the issuance of a share
certificate representing such shareholder's remaining shares.
3. FORM AND MANNER OF ISSUANCE. Share certificates, if any, which shall
include duplicates of share certificates as referred to in article 7
hereof, shall be issued and signed on behalf of the company by or on
behalf of the Board of Directors or by one or more persons or entities
appointed as transfer agent and/or registrar. All costs and expenses of
the company associated with the issuance of share certificates
(including any duplicates) at the request of a shareholder, may be
charged to such requesting shareholder, unless provided otherwise in
these articles of incorporation. Share certificates shall bear such
legend or legends as the Board of Directors deems fit and appropriate
in connection with the issuance of shares or restrictions on transfer
of shares. The reverse side of any certificates issued shall contain a
printed form of an instrument of transfer that can be used by the
holders of the shares represented by such certificates to transfer such
shares, or a portion thereof, to a transferee, which may include the
company in accordance with the provisions of these articles of
incorporation.
LOST AND MUTILATED CERTIFICATES
ARTICLE 7
LOST AND MUTILATED SHARE CERTIFICATES. If any shareholder can prove to
the satisfaction of the Board of Directors or any transfer agent or
registrar of the company, that any share certificate has been
mutilated, mislaid or destroyed, then, at such shareholder's written
request, a duplicate may be issued by the Board of Directors or any
transfer agent or registrar of the company on such terms and conditions
as the Board of Directors may deem fit. Upon the issuance of the
duplicate share certificate (on which it shall be
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noted that such certificate is a duplicate), the original share
certificate shall be null and void vis-a-vis the company. A mutilated
share certificate may be exchanged for a duplicate certificate upon
delivery of the mutilated certificate to the Board of Directors or any
transfer agent or registrar of the company.
SHAREHOLDERS REGISTER; TRANSFER OF SHARES; NOTICES
ARTICLE 8
1. SHAREHOLDERS REGISTER. The Board of Directors, or registrar or transfer
agent designated pursuant to paragraph 5 of article 8, shall keep a
shareholders register (the "Register") in which the names and addresses
of all shareholders shall be registered, along with the shares issued
to, and the payment thereon by, the shareholders. The Board of
Directors shall regularly maintain the Register, including the
registration in the Register of any issue, transfer and cancellation of
shares.
2. REGISTRATION OF OTHER PERSONS. The Board of Directors shall also
register in the Register the names and addresses of those persons who
have a right of usufruct (VRUCHTGEBRUIK) or pledge (PAND) on the
shares.
3. ADDRESSES TO BE FURNISHED, ETC. Each shareholder, and holder of a right
of usufruct or pledge on shares is required to provide his or her
address to the company. The company shall be entitled for all purposes
to rely on the name and address of the aforementioned persons as
entered in the Register. Such person may at any time change his or her
address as entered in the Register by means of a written notification
to the company at its principal office, or any transfer agent or
registrar of the company.
4. ACCESS TO REGISTER. At the request of a shareholder, or a holder of a
right of usufruct or pledge on shares, the Board of Directors shall
furnish an extract of the Register, free of charge, insofar as it
relates to such person's interest in a share.
5. LOCATION OF REGISTER. The Register shall be kept by the Board of
Directors at the company's principal office, or by a registrar or
transfer agent designated thereto by the Board of Directors at such
other location as it may deem fit. In case the Register is kept at any
location other than the company's principal office, then the registrar
or transfer agent shall be obligated to send to the principal office of
the company a copy thereof from time to time. In case a registrar or
transfer agent is appointed by the Board of Directors, then such
registrar or transfer agent shall be authorized and, as the case may
be, obligated to exercise the rights and fulfill the obligations set
out in this article with respect to the Register.
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6. TRANSFER OF SHARES--GENERAL. With due observance of the provisions of
article 9 hereof, the transfer of shares, including any limited rights
thereon, shall be effected (i) by serving upon the company in the
manner prescribed by law, an instrument of transfer, or (ii) by written
acknowledgment by the company of the transfer, which acknowledgment
shall be signed on behalf of the company by or on behalf of the Board
of Directors or by the registrar or transfer agent of the company. In
case a share certificate is outstanding, the written acknowledgment by
the company of the transfer of a share, including any limited rights
thereon, can only be made by an endorsement of the transfer on such
share certificate. In that case, the transferor or transferee of a
share shall present such share certificate to the company, or its
registrar or transfer agent, for acknowledgment of the transfer on
behalf of the company to be made thereon. In case no share certificate
has been issued, the registration of the transfer of a share in the
Register shall have the effect of a written acknowledgment by the
company of such transfer of a share. This paragraph shall also apply in
the case of an allocation of shares resulting from a division and
partition of any community property.
7. CERTAIN REPURCHASE PROCEDURES. With due observance of paragraph 4 of
article 3 hereof, in case of any repurchase of shares by the company,
the holder shall surrender each certificate or certificates
representing such shares, if any, to the company in the manner and at a
place designated therefor by the company, with the reverse side of the
certificate or certificates duly executed for the purpose of the
transfer of such shares to the company. Such manner shall include
personal delivery, registered mail or overnight delivery service of
recognized standing.
8. EFFECT OF SURRENDER AND REPURCHASE. Upon surrender of the shares for
repurchase by the company, each surrendered certificate shall be
canceled, all rights of the holders of such shares as such shall cease
with respect to such shares, and such shares shall no longer be deemed
to be outstanding for any purpose whatsoever.
9. TRANSFER OF SHARES--ASSIGNMENT OF VOTING RIGHTS OF COMMON SHARES. If a
common share is encumbered with a right of usufruct or pledge, then the
voting right of such common share, can not be assigned to the holder of
the right of usufruct or pledge.
PROHIBITED OWNERSHIP/RESTRICTION ON TRANSFER
ARTICLE 9
1. PROHIBITION ON PERCENTAGE OF OWNERSHIP - GENERAL. Primarily to prevent
the company from becoming, or minimize the duration of its
classification as, a "controlled foreign corporation" or "CFC" (as
defined below) and also to prevent any ownership or transfer of the
common shares which may result in such a classification, the ownership
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by a holder of common shares, directly, indirectly, actually or
constructively (within the meaning of section 958 of the United States
Internal Revenue Code of 1986, as amended (the "Code")), of more than
9.9% of all of the common and subordinated shares issued and
outstanding (the "Ownership Limit") is prohibited, except as otherwise
provided in this article 9 below. For the purpose of the foregoing
Ownership Limit, ownership of common shares and/or subordinated shares
shall be understood to include the holding of voting rights or voting
power relating to such shares by law, agreement or otherwise, in
whatever form.
2. RESTRICTION ON TRANSFER. In order to further the purposes set forth in
paragraph 1 of article 9, any sale, transfer, or other disposition of
any common shares by a holder of common shares (a "Sale") or any other
event relating to any common shares held by such a holder that would
result in a Violation of the Ownership Limit (as defined below) is null
and void to the extent it causes a Violation of the Ownership Limit.
The restriction in the preceding sentence shall not apply to and the
definition of the term "Sale" does not include (i) the conversion of
subordinated shares into common shares, (ii) any subsequent transfer of
the common shares resulting from such conversion, (iii) any pledge,
encumbrance, transfer by operation of law, gift, inheritance or marital
law of any interest in or right to any common shares, as well as any
sale, transfer, or other disposition (other than a Sale) of any
beneficial, as opposed to legal (registered) interest in or right to
any common shares, or (iv) acquisition of any common shares pursuant to
the exercise of compensatory stock options or to an employee benefit
plan of the company or its subsidiaries or affiliates or any subsequent
transfer of any such common shares.
3. DEFINITION CFC - OWNERSHIP LIMIT. For purposes of this article, a
non-United States corporation will be classified as a "controlled
foreign corporation" or "CFC" for United States federal income tax
purposes in any taxable year of such corporation in which more than 50%
of either (i) the total combined voting power of all of its classes of
stock entitled to vote or (ii) the total value of its stock is owned or
considered owned (after applying certain attribution rules), on any day
during a taxable year, by United States persons (as such term is
defined in Section 7701 (a) (30) of the Code) who own or are considered
to own 10% or more of the total combined voting power of all of its
classes of stock entitled to vote. For purposes of this article, a
"Violation of the Ownership Limit" occurs when (1) any person would own
or would be considered to own by virtue of the attribution provisions
of section 958 of the Code and the United States Treasury Regulations
issued thereunder, or (2) any person together with its "affiliates" and
"associates" (as defined in Rule 12b-2 under the United States
Securities Exchange Act of 1934) and any group (within the meaning of
Section 13(d)(3) of such Securities Exchange Act) of which such person
is a part would own or would be
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considered to own by virtue of the beneficial ownership provisions of
Rule 13d-3 under such Securities Exchange Act, in either case more than
the Ownership Limit.
4. PROHIBITION ON OWNERSHIP AND/OR TRANSFERS OTHER THAN BY SALE. With due
observance of the provisions of foregoing paragraphs of this article,
including the restrictions contained therein, any pledge, encumbrance,
transfer by operation of law, gift, inheritance or marital law of any
legal (registered) or beneficial interest in or right to any common
shares, as well as any sale, transfer, or other disposition (other than
a Sale) of any beneficial, as opposed to any interest in or right to
any common shares (other than the conversion of subordinated shares
into common shares, any subsequent transfer of the common shares
resulting from such conversion or the acquisition of any common shares
pursuant to the exercise of compensatory stock options or to an
employee benefit plan of the company or its subsidiaries or affiliates
or any subsequent transfer of any such common shares) (a "Gift") that
would result in a Violation of the Ownership Limit is prohibited to the
extent that such Gift causes a Violation of the Ownership Limit.
5. WAIVER/DECLARATION OF NON-APPLICABILITY. The restrictions on transfer
and ownership described in this article may be waived, or declared not
applicable, and an exemption may be granted from time to time by the
Board of Directors, in its sole discretion, provided the same is
irrevocable with respect to a Transfer (as defined in paragraph 6
article 9 below) or any other event described in this article relating
to ownership by a holder of common shares above the Ownership Limit.
The Board of Directors may, in its sole discretion set the terms and
conditions for the issuance of such waiver, declaration of
non-applicability and/or exemption.
6. RESTRICTIVE MEASURES FOR BENEFIT OF THE COMPANY. In order for the
company to determine, or verify compliance with the restrictions set
out above in this article, the following shall apply: (a) any person
who acquires or attempts or intends to acquire ownership (direct,
indirect, actual or constructive ownership within the meaning of
section 958 of the Code) of common shares that will or may violate the
foregoing restrictions on transferability and ownership is required to
give notice immediately to the company thereof and to provide the
company and the Board of Directors with such other reasonable
information as it may request in order to determine the effect of a
Sale, Gift (a Sale and/or a Gift to be referred to as a "Transfer") or
event on the classification of the company as a CFC or for any other
related purpose, (b) the company shall not recognize a person in the
capacity as shareholder of common shares until its common shares have
been issued in the name of such person (or in the case of a Transfer,
until the common shares so transferred have been registered by or on
behalf of the Board of Directors in the name of such transferee in the
register); until such recognition by or on behalf of the company in the
manner as aforementioned, the
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voting rights, dividend rights and/or other distribution rights
relating to such shares shall be suspended and may not be exercised by
the purported holder thereof, (c) upon the occurrence of a Gift
resulting in a Violation of the Ownership Limit, the acquiror or
transferee shall be required to dispose of the number of common shares
that exceeds the Ownership Limit (the "Excess Common Shares") to a
person whose ownership of any such shares would not violate the
Ownership Limit (a "Qualified Person") within 15 days of the date of
the prohibited Gift. The acquiror or transferee of Excess Common Shares
pursuant to a prohibited Gift (the "Prohibited Transferee") shall be
required to notify the company in writing of its compliance with the
requirement in the preceding sentence within 5 days of any such
compliance (a "Compliance Notice"). If the Prohibited Transferee fails
to provide such a Compliance Notice to the company within 20 days of
the date of the prohibited Gift, the company shall be irrevocably and
exclusively authorized to sell and transfer on behalf of the Prohibited
Transferee the Excess Common Shares to a Qualified Person, at a price
for such shares of no less than the fair market value and to take all
necessary steps in connection therewith. In the event of a Gift, the
acquiror or transferee shall by acceptance or receipt of the relevant
share certificate(s), if any, representing any Excess Common Shares be
deemed to have agreed to the foregoing provisions set out in (c) above.
7. NOTICES, ETC. Notices and other communications provided for herein
shall be in writing, shall be delivered by hand or overnight courier
services of recognized standing or sent by telecopy, shall be deemed
given when actually received and shall be addressed as follows: if to a
shareholder's address, as shown in the Register of the company; and if
to the company, to the company's principal office or its registered
agent, attention: Secretary.
8. APPLICABILITY ON ISSUE OF COMMON SHARES OR SUBORDINATED SHARES. For the
purpose of this article, acquisition by holders of common shares of
common shares or subordinated shares by virtue of an issue or
distribution of such shares to a holder of common shares shall be
equated to a transfer; for the purposes of determining the amount of
the issued capital, the shares to be issued or distributed shall be
included therein.
MANAGEMENT
ARTICLE 10
1. BOARD OF DIRECTORS--GENERAL. The management of all the affairs,
property and business of the company shall be vested in a Board of
Directors (the "Board of Directors"), who shall have and may exercise
all powers except such as are exclusively conferred upon the
shareholders by law or by these articles of incorporation, as from time
to time amended.
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2. BOARD OF DIRECTORS - NUMBER OF MEMBERS/ CLASS OF MEMBERS. The number of
persons constituting the Board of Directors shall be not less than
three or more than fifteen, as fixed from time to time by the General
Meeting. The number of persons constituting the Board of Directors
shall, until changed at any succeeding General Meeting, be the number
so fixed. The Board of Directors shall be divided into three classes,
being class A directors (the "A director(s), class B directors (the "B
director(s)") and class C directors (the "C director (s)"), the
designation of which shall be determined by the General Meeting. Each
director shall be so designated by the General Meeting upon appointment
or reappointment, as the case may be, in case of a vacancy (as defined
in paragraph 4 of this article 10).
3. BOARD OF DIRECTORS - TERM. Each director shall serve, subject to the
provisions of paragraph 6 of this article 10, as director, with due
observance of the following terms: the A directors shall initially
serve - as of the Initial Issue Date - for a period of two years, and
thereafter for six-year periods; the B directors shall initially serve
- as of the Initial Issue Date - for a period of four years, and
thereafter for six-year periods; and the C directors shall serve - as
of the Initial Issue Date - for six-year periods.
4. BOARD OF DIRECTORS - APPOINTMENT. Each director shall be appointed by
the General meeting, with due observance of the following provisions.
In case of a vacancy, upon the expiration of a director's term or
otherwise (each, a "vacancy"), the Board of Directors shall be
authorized pursuant to a duly adopted resolution to nominate for such
vacancy a director for appointment by the General Meeting. Such Board
of Director's resolution shall list at least one name for each such
vacancy, which may include a former director whose term has lapsed. All
resolutions to nominate directors shall be non-binding on the General
Meeting, the General Meeting is free to appoint, by a duly adopted
shareholders resolution in accordance with the provisions of paragraph
8 of article 14, any director so nominated, or reject the nomination.
In case the nominated director(s) are not appointed by the General
Meeting, the Board of Directors must convene within seven days of the
date of the General Meeting, a new meeting, with due observance of the
provisions of article 14 below, at which the vacancy or vacancies shall
be filed. At such subsequent General Meeting, the Board of Directors
may, again, nominate - by non-binding resolution - one director for
each such vacancy for appointment by the General Meeting.
Notwithstanding the foregoing sentence, at such subsequent General
Meeting, the shareholders shall be free to appoint any person or entity
for each vacancy as they deem fit upon rejection of any person
nominated by the Board of Directors. In the event the Board of
Directors wishes to exercise its right to nominate a director, it shall
in the convening of a General Meeting to appoint the director state the
person so nominated by the Board of Directors for each such vacancy.
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5. BOARD OF DIRECTORS--VACANCIES IN GENERAL. If one or more directors are
prevented from or are incapable of acting as a director, the remaining
directors may appoint one or more persons to fill such vacancy or
vacancies with the same qualifications, if any, as determined by the
General Meeting to serve until the immediately following General
Meeting.
6. BOARD OF DIRECTORS--REMOVAL. Directors may be removed or suspended at
any time by the General Meeting. At any General Meeting at which action
is taken to remove a director, or at any subsequent General Meeting,
any vacancy or vacancies created by such action may be filled with due
observance of paragraph 2 of article 10.
7. BOARD OF DIRECTORS--VACANCIES IN CONNECTION WITH CERTAIN REDUCTIONS. If
at any time the number of directors in office shall be reduced to less
than three, the remaining director(s) shall forthwith call and convene
a General Meeting for the purpose of filling the vacancies in the Board
of Directors, and in the event that all of the directors are prevented
from or are incapable of acting as directors, the company shall be
temporarily managed by any person or persons previously appointed by
the General Meeting to so act, who in turn shall forthwith call and
convene a General Meeting for the purpose of appointing three or more
directors. If no such General Meeting shall be called, or if no such
person shall have been appointed, any person or persons holding in the
aggregate at least ten percent of the issued and outstanding voting
shares may call and convene a General Meeting for the purpose of
appointing the directors.
8. BOARD OF DIRECTORS--MEETINGS/NOTICE. Meetings of the Board of Directors
shall be held regularly at such place and at such time as the Board of
Directors may from time to time determine. Special meetings of the
Board of Directors shall be held as often as any two directors or the
Chairman deems necessary, who shall be authorized to call the same.
Notice of the time and place of a meeting of the Board of Directors
shall be given:
(a) not less than ninety-six hours before such meeting, by written
notice mailed to each director, or
(b) not later than the day immediately preceding the date of such
meeting, by personal delivery, or by telephone call or by
sending a telegram or telefax or other means of written
notification to each director, receipt of which has been
confirmed.
A waiver of notice of any meeting of the Board of Directors signed by
all of the non attending directors, whether before, at, or after the
time of such meeting, shall be
14
deemed equivalent to notice of the meeting. If all the directors are
present at the meeting, notice shall be deemed to have been duly given.
9. BOARD OF DIRECTORS--QUORUM. A majority of the members of the Board of
Directors shall constitute a quorum. The resolution of the majority of
the directors present, in person or by proxy as hereinafter provided,
at a meeting at which a quorum is so present, shall constitute the
decision of the Board of Directors. In the absence of a quorum, any
director may adjourn any meeting from time to time until a quorum shall
be present.
10. BOARD OF DIRECTORS--ADOPTION OF RESOLUTIONS. All resolutions to be
adopted at a meeting of the Board of Directors shall be adopted by
majority of the votes cast, provided that in the event of an equality
of votes, the vote(s) cast by the Chairman shall be decisive.
11. BOARD OF DIRECTORS--MEETINGS BY TELEPHONE, ETC. Meetings of the Board
of Directors may be held through conference telephone calls or other
communication equipment allowing all persons participating in the
meeting to hear each other or through any other device permitted by
law, and participation in a meeting through any such lawful device or
arrangement shall constitute presence at such meeting.
12. BOARD OF DIRECTORS--ACTION BY WRITTEN CONSENT. When action by the Board
of Directors is required or permitted to be taken, action at a meeting
may be dispensed with if all the directors shall consent in writing to
such action taken or being taken.
13. BOARD OF DIRECTORS--PROXIES. Directors may by telegram, telefax or
other written instrument appoint a proxy to act on their behalf at any
designated meeting or meetings of the Board of Directors. Such proxy
can only be another director of the company.
14. COMMITTEES OF THE BOARD OF DIRECTORS. The Board of Directors shall have
the power and authority to create and disband committees of the Board
of Directors, and each such committee shall have the authority and
power as may from time to time be delegated to it by the Board of
Directors and shall operate under the ultimate responsibility of the
Board of Directors.
OFFICERS AND REPRESENTATIVES
ARTICLE 11
1. CHAIRMAN AND OTHER OFFICERS AND AGENTS. The Board of Directors may
designate a Chairman (the "Chairman") from among the directors. The
Board of Directors may
15
further from time to time elect a president, one or more
vice-presidents (including executive or senior vice-presidents), a
controller, one or more assistant controllers, a treasurer, one or more
assistant treasurers, a secretary, one or more assistant secretaries
and any such other officers and agents as it determines proper, all of
whom shall hold office at the pleasure of the Board of Directors. The
same person may hold any two or more of the aforesaid offices but no
officer shall execute, acknowledge or verify an instrument in more than
one capacity if such instrument is required by law or by these articles
of incorporation to be executed, acknowledged or verified by two or
more officers. The Chairman must be a director, but the other officers
of the company need not be members of the Board of Directors.
2. REPRESENTATION OF THE COMPANY. The company shall be represented at law
and otherwise, and shall be bound with respect to third parties, by (i)
any two directors acting jointly, (ii) any director together with any
of the following persons listed in (i) through (vii) below, acting
jointly, or (iii) any two of the following persons acting jointly,
provided such persons are authorized by the Board of Directors to
represent the company with the following titles:
(i) Chairman;
(ii) president;
(iii) vice-presidents (including any executive vice-presidents or
senior vice-presidents);
(iv) treasurer or assistant treasurer;
(v) officer;
(vi) secretary or assistant secretary;
(vii) controller or assistant controller.
The Board of Directors may also from time to time authorize other
persons, who may or may not be directors, to represent the company, who
shall have such other titles as the Board of Directors may determine,
provided that at all times any two of such persons can only represent
the company acting jointly.
3. ADDITIONAL POWER AND AUTHORITY OF REPRESENTATIVES. The persons holding
the above mentioned titles which the Board of Directors may from time
to time authorize as
16
herein provided, shall have such power and authority as the Board of
Directors may from time to time grant each of them respectively.
4. ADDITIONAL RULES AND REGULATIONS. The Board of Directors may adopt and
may amend and repeal such rules, regulations and resolutions as it may
deem appropriate for the conduct of the affairs and the management of
the company, including rules, regulations and resolutions setting forth
the specific powers and duties of the holders of the above-mentioned
titles (not being directors of the company), other persons and
committees of the Board of Directors authorized by the Board of
Directors to represent the company. Such rules, regulations and
resolutions must be consistent with these articles of incorporation.
Any restrictions of the powers of representation of the holders of the
above-mentioned titles (other than any director) will take effect on
the day after the resolutions, rules or regulations containing such
restrictions have been filed at the Commercial Register of the Chamber
of Commerce and Industry in Curacao, and such other places in the
Netherlands Antilles where the company conducts its business.
5. COMPENSATION OF REPRESENTATIVES. The directors, the holders of the
above-mentioned titles and any other persons authorized by the Board of
Directors to represent the company shall receive such compensation as
the General Meeting (in the case of the directors) may from time to
time determine or approve and the Board of Directors (in the case of
all other persons not being directors) may from time to time determine.
INDEMNIFICATION, ADVANCEMENT OF EXPENSES AND INSURANCE
ARTICLE 12
1. INDEMNIFICATION NOT IN CONNECTION WITH ACTIONS BY OR IN RIGHT OF THE
COMPANY. The company shall have the power to indemnify, and shall
indemnify to the fullest extent permitted by applicable law, any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the company) by reason of the fact that such
person is or was a director, officer, employee or agent of the company,
or is or was serving at the request of the company as a director,
officer, employee or agent of another company, partnership, joint
venture, trust or other enterprise or entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in good
faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the company and with respect to any
criminal action or proceeding, had no reasonable cause to believe that
its conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that
17
the person did not act in good faith and in a manner which was
reasonably believed to be in or not opposed to the best interests of
the company.
2. INDEMNIFICATION IN CONNECTION WITH ACTIONS BY OR IN RIGHT OF THE
COMPANY. The company shall have the power to indemnify, and shall
indemnify to the fullest extent permitted by applicable law, any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the company to procure a judgment in its favor by reason of the fact
that such person is or was a director, officer, employee or agent of
the company or is or was serving at the request of the company as a
director, officer, employee or agent of another company, partnership,
joint venture, trust or other enterprise or entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the company and except
that no indemnification shall be made in respect of any claim, issue or
matters as to which such person shall have been finally adjudged to be
liable to the company for improper conduct unless and only to the
extent that the court in which such action or suit was brought or any
other court having appropriate jurisdiction shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses, judgments, fines and amounts
paid in settlement which the court in which the action or suit was
brought or such other court having appropriate jurisdiction shall deem
proper.
3. RELATED EXPENSES. To the extent that a director, officer, employee or
agent of the company has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to paragraph 1 and
paragraph 2 of this article, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
4. CERTAIN LIMITATIONS ON INDEMNIFICATION. Any indemnification under
paragraph 1 and paragraph 2 of this article (unless ordered by a court)
shall be made by the company only as authorized by contract approved,
or resolution or other action adopted or taken, by the Board of
Directors or by the shareholders.
5. ADVANCEMENT OF EXPENSES. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the company in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the applicable
director, officer, employee or agent to repay such amount if it shall
18
ultimately be determined that such person is not entitled to be
indemnified by the company as authorized by this article 12.
6. INDEMNIFICATION AND ADVANCEMENT OF EXPENSES NOT EXCLUSIVE. The
indemnification and advancement of expenses provided by or granted
pursuant to the other paragraphs of this article 12 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, agreement, vote
of shareholders or disinterested directors, or otherwise, both as to
action in its official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
7. INSURANCE. The company shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the company or is or was serving at the request of
the company as a director, officer, employee or agent of another
company, partnership, joint venture, trust or other enterprise against
any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether
or not the company would have the power to indemnify him or her against
such liability under the provisions of this article 12.
GENERAL MEETINGS OF SHAREHOLDERS
ARTICLE 13
1. GENERAL. All general meetings of shareholders (each, a "General
Meeting") shall be held on any one of the Islands of the Netherlands
Antilles.
2. TIMING. The annual General Meeting shall be held as early as reasonably
practicable, and in any event not later than the first day of June,
after the close of the company's preceding financial year.
3. ACTIONS TO BE TAKEN. At the annual General Meeting:
a. the Board of Directors shall render a report on the business
of the company and the conduct of its affairs during the
preceding financial year;
b. the balance sheet and the profit and loss account shall be
determined, set and adopted after having been submitted
together with an explanatory statement (together, the "annual
accounts"), stating by which standards the movable and
immovable property of the company have been appraised;
19
c. the person or persons referred to in paragraph 5 of article 10
hereof shall be appointed;
d. the appropriation of profits shall be made; and
e. such other proposals included in the agenda specified in the
notice of the meeting shall be dealt with.
GENERAL MEETINGS--PLACE, CONVOCATION AND VOTING
ARTICLE 14
1. TIMING OF OTHER GENERAL MEETINGS. Other than the annual General
Meeting, all General Meetings shall be held as often as the Board of
Directors shall deem necessary.
2. CONVENING BY BOARD OF DIRECTORS. With due observance of paragraph 3 of
article 14, all General Meetings shall be exclusively convened by the
Board of Directors.
3. REQUEST BY SHAREHOLDERS TO CONVENE. Shareholders representing in the
aggregate at least one tenth of the outstanding capital of the company
may request the Board of Directors to convene a General Meeting,
stating the subjects to be discussed. If the Board of Directors has not
convened a meeting within four weeks after the request, the person(s)
who requested the convening of the meeting shall be authorized to
petition the competent courts of the Netherlands Antilles for
authorization to convene such meeting, but only in accordance with, and
subject to, the provisions of Article 82 of the Commercial Code of the
Netherlands Antilles. A copy of the notice to convene such meeting
shall be sent to the company at its principal office, and shall be
given to the Board of Directors.
4. METHOD OF CONVOCATION AND NOTIFICATION. All convocations of General
Meetings and all notifications to shareholders shall be made by letter
mailed to the addresses of shareholders appearing in the Register.
5. TIMING OF CONVOCATION -RECORD DATE. The convocation shall take place no
later than ten days prior to the date of the meeting, excluding the
date of the sending of the notice and the date of the meeting. The
Board of Directors may set a record date for any General Meeting which
shall be no less than seven days and no more than sixty days prior to
the date of the meeting, to verify the eligibility of shareholders to
vote, as well as to verify the ownership level of any shareholders
under the provisions of article 9 of these articles of incorporation.
20
6. AGENDA. The agenda for the meeting shall be specified in the
convocation of the meeting or it shall be stated that the shareholders
may take cognizance thereof at the principal office of the company.
7. PERSON PRESIDING. General meetings shall be presided over by the
Chairman or any other director, or, in their absence at such meeting,
by a person designated thereto by the meeting.
8. MAJORITY VOTES - QUORUM. All resolutions of General Meetings shall be
taken by an absolute majority of votes, for which meeting a quorum
exists of at least one-third of the aggregate outstanding voting shares
in the capital of the company present or represented thereat, except
where otherwise provided in these articles of incorporation.
9. PROXIES. Shareholders may be represented at the meeting by a proxy
authorized in writing, which shall include any message transmitted by
telegram or telefax or other means of written communication.
10. VOTE PER SHARE. At a General Meeting, one vote may be cast for each
class A share and one vote may be cast for each class B share. Holders
of class C shares shall not be entitled to vote, other than in the case
of, and subject to the provisions of, Article 93a of the Commercial
Code of the Netherlands Antilles, in which case one vote may be cast
for each class C share.
11. INTERESTED VOTES; ABSTENTIONS AND INVALIDLY CAST VOTES. Valid votes may
also be cast for the shares of those who, other than as shareholders of
the company, would acquire any right or be discharged from any
obligation towards the company by the resolution to be adopted.
Abstentions and invalidly cast votes shall not be counted as votes at a
General Meeting.
12. VALIDITY OF CERTAIN RESOLUTIONS AS A RESULT OF UNANIMOUS ACTIONS.
Provided and as long as the entire issued share capital is represented
at any General Meeting, valid resolutions may be adopted, even when the
provisions of these articles of incorporation with respect to
convocation and specification of the agenda have not or have only
partially been observed, provided that such resolutions are unanimously
adopted.
13. PARTICIPATIONS OF DIRECTORS. Each director shall in his or her capacity
be entitled to attend, address and advise the General Meeting.
21
FINANCIAL YEAR
ARTICLE 15
TERM OF FINANCIAL YEAR. The financial year of the company shall run
from the first day of January of each year up to and including the last
day of December of such year.
ANNUAL ACCOUNTS; BOOKS AND RECORDS
ARTICLE 16
1. ANNUAL ACCOUNTS--TIMING AND MANNER OF SUBMISSION. Within five (5)
months after the close of the company's financial year, the annual
accounts shall be submitted to the shareholders by the Board of
Directors. Each director shall sign the annual accounts; if the
signature of any director is lacking, then this shall be stated therein
together with the reason thereof.
2. MAINTENANCE OF BOOKS AND RECORDS AND ANNUAL ACCOUNTS. The company shall
maintain its books and records, as well as the annual accounts by which
the profit is determined, on the basis of generally accepted accounting
principles in effect in the United States of America ("US GAAP").
3. ANNUAL ACCOUNTS--ADOPTION BY ANNUAL GENERAL MEETING. The annual
accounts shall be adopted by the annual General Meeting.
DEFINITIONS/ GENERAL PROVISION ON PROFIT AND RESERVES;
PAYMENT OF MINIMUM QUARTERLY DISTRIBUTION
AND OTHER AMOUNTS TO SHAREHOLDERS
ARTICLE 17
1. DEFINITIONS. For the purpose of the payment by the company of
distributions on its shares by dividend or otherwise, the following
definitions are used. For purposes of this article 17, for accounting
purposes and otherwise, the term "company" shall be deemed to include
Statia Terminals Group N.V. and its subsidiaries on a consolidated
basis in accordance with U.S. GAAP.
(i) ACQUISITION: Acquisition manes any transaction in which the
company acquires (through an asset acquisition, merger, stock
acquisition or other form of investment) control over all or a
portion of the assets, properties or business of another
person for the purpose of increasing the operating capacity or
revenues of the company over the operating capacity or
revenues of the company existing immediately prior to such
transaction.
22
(ii) ADJUSTED OPERATING SURPLUS: For any period, Adjusted Operating
Surplus means:
(1) the Operating Surplus generated during that period,
as adjusted to:
(a) decrease Operating Surplus by:
(1) any net increase in Working Capital Borrowings during that
period, and
(2) any net reduction in cash reserves for Operating Expenditures
during that period not relating to an Operating Expenditure
made during that period; and
(b) increase Operating Surplus by:
(1) any net decrease in Working Capital Borrowings during that
period, and
(2) any net increase in cash reserves for Operating Expenditures
during that period required by any debt instrument for the
repayment of principal, interest or premium.
Adjusted Operating Surplus does not include that portion of Operating
Surplus included in clause (a) (1) of the definition of Operating
Surplus.
(iii) AVAILABLE CASH: For any calendar quarter prior to the
dissolution and liquidation of the company, Available Cash
means:
(a) the sum of:
(1) all of the company's cash and cash equivalents on
hand at the end of that quarter, and
(2) all of the company's additional cash and cash
equivalents on hand on the date of determination of
Available Cash for that quarter resulting from
Working Capital Borrowings made after the end of that
quarter;
LESS
(b) the amount of any cash reserves necessary or appropriate in
the reasonable discretion of the Board of Directors to:
(1) provide for the proper conduct of the company's
business, including reserves for future capital
expenditures and for the company's anticipated future
credit needs, after that quarter,
23
(2) provide funds for Target Quarterly Distributions and
cumulative Common Share Arrearages (as defined below)
for any one or more of the next four quarters, or
(3) comply with applicable law or any loan agreement,
security agreement, mortgage, debt instrument or
other agreement or obligation to which the company is
a party or by which the company or any of its
subsidiaries is bound or to which any of their
respective assets are subject.
With respect to Available Cash, the Board of Directors may not
establish cash reserves pursuant to (b) (2) above if the effect of
those reserves would be that the company is unable to distribute the
Target Quarterly Distribution on all common shares, plus any cumulative
Common Share Arrearage for that quarter; and disbursements made by the
company or cash reserves established, increased or reduced after the
end of that quarter but on or before the date of determination of
Available Cash for that quarter shall be deemed to have been made,
established, increased or reduced for purposes of determining Available
Cash within that quarter if the Board of Directors so determines.
However, Available Cash for the quarter in which the dissolution and
liquidation of the company occurs and any quarter after that will equal
zero.
(iv) CAPITAL IMPROVEMENTS: Additions or improvements to the capital
assets owned by the company or the acquisition of existing, or
the construction of new, capital assets (including terminaling
and storage facilities and related assets), in each case made
to increase the operating capacity or revenue of the Company
existing immediately prior to such addition, improvement,
acquisition or construction.
(v) COMMON SHARE ARREARAGES: Common Share Arrearages means the
amount by which the Target Quarterly Distribution in any
quarter during the Subordination Period exceeds the
distribution of Available Cash from Operating Surplus actually
made for that quarter on all common shares issued and
outstanding on or after the Initial Issue Date, cumulative for
that quarter and all prior quarters during the Subordination
Period; provided that the Common Share Arrearages will not
accrue interest.
(vi) INTERIM CAPITAL TRANSACTIONS: The following transactions, if
they occur prior to the dissolution and liquidation of the
company, are Interim Capital Transactions:
(i) any of the company's borrowings, refinancings of
indebtedness and sales of debt securities (other than
Working Capital Borrowings and other than for items
purchased on open account in the ordinary course of
business);
24
(ii) sales by the company of equity interests (other than
any common shares issued and sold to any of the
company's underwriters of the initial public offering
of the common shares for the exercise of their
over-allotment option at the time of the company's
initial public offering); and
(iii) sales or other voluntary or involuntary dispositions
of the company's assets, except for sales or other
dispositions of:
(a) inventory in the ordinary course of
business,
(b) accounts receivable and other assets in the
ordinary course of business, and
(c) assets as a part of normal retirements or
replacements.
(vii) OPERATING EXPENDITURES: All expenditures, including but not
limited to, taxes, debt service payments and capital
expenditures, are Operating Expenditures, except the
following:
(a) payments or prepayments of principal and premium on
indebtedness:
(1) required in connection with the sale or other
disposition of assets; or
(2) made in connection with the refinancing or refunding
of indebtedness with the proceeds from new
indebtedness or from the sale of equity interests.
For the purpose hereof, at the election and in the reasonable
discretion of the Board of Directors, any payment of principal or
premium will be deemed to be refunded or refinanced by any indebtedness
incurred or to be incurred by the company within 180 days before or
after that payment to the extent of the principal amount of that
indebtedness.
(b) (1) capital expenditures made for Acquisitions or for
Capital Improvements;
(2) payment of transaction expenses relating to Interim
Capital Transactions; or
(3) distribution(s) to shareholders, in the form of
dividend or otherwise.
25
For the purpose hereof, where capital expenditures are made partially
for Acquisitions or Capital Improvements and partially for other
purposes, the Board of Directors' allocation as made in good faith
between the amounts paid for each will be deemed conclusive.
(viii) OPERATING SURPLUS: For any period prior to the date of
dissolution and liquidation of the company on a cumulative
basis, Operating Surplus is:
(a) the sum of:
(1) US$7.5 million,
(2) any net positive working capital on hand as of the
close of business on the Initial Issue Date,
(3) all cash receipts for the period beginning on the
Initial Issue Date and ending on the last day of that
period, other than cash receipts from Interim Capital
Transactions, and
(4) all cash receipts after the end of that period but on
or before the date of determination of Operating
Surplus for that period resulting from Working
Capital Borrowings;
LESS
(b) the sum of:
(1) Operating Expenditures for the period beginning on
the Initial Issue Date and ending with the last day
of that period, and
(2) the amount of cash reserves that is necessary or
advisable to be kept in the reasonable discretion of
the Board of Directors to provide funds for future
Operating Expenditures.
For the purposes hereof, disbursements made or cash reserves
established, increased or reduced after the end of this period but on
or before the date of determination of Available Cash for this period
will be deemed to have been made, established, increased or reduced for
purposes of determining Operating Surplus within this period if the
Board of Directors so determines. However, Operating Surplus for the
quarter in
26
which the company's dissolution and liquidation occurs and any
subsequent quarter will be equal to zero.
(ix) UNRECOVERED INITIAL PRICE: At any time, the Unrecovered
Initial Price is the initial public offering price per common
share issued on the Initial Issue Date (the "Initial Price"),
after:
(1) subtracting all distributions on or after the Initial
Issue Date to shareholders, in the form of dividend
or otherwise, from Interim Capital Transactions;
(2) subtracting any distributions of cash on or after the
Initial Issue Date in connection with the company's
dissolution and liquidation; and
(3) adjusting this price as the Board of Directors
determined is needed to reflect any distribution,
subdivision or combination of the common and/or
subordinated shares on or after the Initial Issue
Date.
(x) WORKING CAPITAL BORROWINGS: Working Capital Borrowings are
borrowings made by the company exclusively for working capital
purposes and made pursuant to a credit facility or other
arrangement that requires all borrowings under that
arrangement to be reduced to a relatively small amount each
year for an economically meaningful period of time, all in the
reasonable judgment of the Board of Directors.
2. DEFINITION AND DETERMINATION OF PROFIT. The profit of any financial
year, by which term is meant the net profit according to the adopted
annual accounts of the company for such year, shall be determined by
the annual General Meeting.
3. AUTHORITY - DISTRIBUTION DIVIDEND/RESERVES. The Board of Directors is
the corporate body authorized to distribute and/or reserve profit of
the company, as established, from time to time in the form of dividends
by the General Meeting. In addition, the Board of Directors may set up,
cancel, and distribute from time to time from one or more reserves to,
or for the benefit of, its shareholders. Distributions shall be paid in
cash unless the Board of Directors has authorized a distribution in
kind.
4. AUTHORITY - DISTRIBUTION INTERIM-DIVIDEND. If and to the extent that
the Board of Directors has the reasonable expectation that sufficient
profit shall be made for the relevant financial year, it may declare
and pay from time to time during a calendar quarter one or more interim
distributions on any class of shares in the form of interim-dividend.
At the time of a declaration and payment of interim dividends, the
Board of Directors may, by a duly adopted resolution thereto, qualify
any amounts payable or paid, which cannot ultimately be covered by the
profit for the relevant financial year,
27
as payment out of freely distributable reserves, including, but not
limited to, capital surplus reserves, insofar as available.
5. CERTAIN EFFECTS OF LOSSES. In the event that the profit and loss
account shows a loss for any given year, which loss cannot be covered
by the reserves or compensated in another manner, no profit can be
distributed in any subsequent year, until such loss has been recovered
or otherwise offset by reserves.
6. PAYMENT OF AVAILABLE CASH/TARGET QUARTERLY DISTRIBUTION.
6.1. GENERAL. The company shall pay, from legally available funds therefore,
on a quarterly basis, all of its Available Cash, in the manner as set
out in this paragraph 6. For the purpose of this paragraph 6 of this
article 17, whenever reference is made to a distribution of Available
Cash, out of Operating Surplus or Interim Capital Transactions, such
distributions shall be, with due observance of the provisions of
paragraph 6.2 through paragraph 6.5 hereof, made by or on behalf of the
company in cash as a distribution from profit, as a dividend or
interim-dividend, as the case may be, or from freely distributable
reserves, including capital surplus reserves, to and for the benefit of
its shareholders.
6.2. TARGET QUARTERLY DISTRIBUTION - COMMON SHARES. The company shall, out
of Available Cash, pay an amount equal to US$0.45 per common share per
calendar quarter (hereinafter referred to as the "Target Quarterly
Distribution") or US$1.80 per common share on an annual basis, plus any
Common Share Arrearages from any prior quarters, prior to any
distributions on the subordinated shares in the manner set forth below
in this article.
6.3. TARGET QUARTERLY DISTRIBUTION - SUBORDINATED SHARES. Only after the
common shares have received the Target Quarterly Distribution plus any
Common Share Arrearages thereon, the company shall, out of Available
Cash, pay on each subordinated share an amount equal to the Target
Quarterly Distribution per calendar quarter, provided however, that no
subordinated share shall be entitled to any arrearages.
6.4. SOURCES OF FUNDS. For the purpose of a distribution by the company to
pay the Target Quarterly Distribution and such other amounts as set out
in this article to its shareholders, the company shall use as source of
funds for payment of Available Cash funds from Operating Surplus and/or
from Interim Capital Transactions, with due observance of the
limitation set out in this article and paragraph 6.8 in particular. In
this respect, for accounting purposes or otherwise, all Available Cash
paid as a distribution to shareholders from any source will be treated
as a distribution from Operating Surplus until the sum of all Available
Cash paid as a distribution since the
28
Initial Issue Date equals the Operating Surplus as of the end of the
quarter prior to that distribution. Any Available Cash in excess of
that amount (regardless of its source) will be deemed to be from
Interim Capital Transactions and paid accordingly. If Available Cash
from Interim Capital Transactions is paid as a distribution for each
common share in an aggregate amount per common share equal to the
Initial Price of that common share, plus any Common Share Arrearages,
the distinction between Operating Surplus and Interim Capital
Transactions will cease, and all distributions of Available Cash will
be treated as if they were made from Operating Surplus.
6.5. DIVIDEND AND OTHER DISTRIBUTIONS. With due observance of the foregoing
paragraph 6.1 through paragraph 6.4, the company shall pay on each
common share, each subordinated share and each incentive share the
following amounts out of Available Cash:
6.5.1. DISTRIBUTIONS FROM OPERATING SURPLUS DURING SUBORDINATION PERIOD.
Distributions of Available Cash from Operating Surplus, if any, for any
quarter during the Subordination Period will be made in the following
manner:
(a) FIRST, 100% to the common shares, pro rata, until each
outstanding common share has been paid an amount equal to the
Target Quarterly Distribution for that quarter;
(b) SECOND, 100% to the common shares, pro rata, until each
outstanding common share has been paid an amount equal to any
Common Share Arrearages accrued and unpaid for any prior
quarters during the Subordination Period;
(c) THIRD, 100% to the subordinated shares, pro rata, until each
outstanding subordinated share has been paid an amount equal
to the Target Quarterly Distribution for that quarter; and
(d) THEREAFTER, any Available Cash from Operating Surplus for that
quarter will be paid among the holders of common shares and
subordinated shares and the holders of incentive shares in the
following manner:
(1) FIRST, 85% to all common and subordinated shares, pro
rata, and 15% to the incentive shares, pro rata,
until the common shares and subordinated shares have
received (including the Target Quarterly
Distribution) a total of $0.495 for that quarter to
each outstanding common share and subordinated share
(the "first additional distribution");
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(2) SECOND, 75% to all common shares and subordinated
shares, pro rata, and 25% to the incentive shares,
until the common and subordinated shares have
received (including the Target Quarterly
Distribution) a total of $0.675 for that quarter to
each outstanding common share and subordinated share
(the "second additional distribution");
(3) THEREAFTER, 50% to all common shares and subordinated
shares, pro rata, and 50% to the incentive shares,
pro rata.
6.5.2. DISTRIBUTION FROM OPERATING SURPLUS AFTER SUBORDINATION PERIOD.
Distributions paid out Available Cash from Operating Surplus, if any,
for any quarter after the Subordination Period will be made in the
following manner:
(a) FIRST, 100% to all common shares, pro rata, until each share
has been paid an amount equal to the Target Quarterly
Distribution for that quarter; and
(b) THEREAFTER, in the manner set forth in paragraph 6.5.1.,
section (d) (1) through (3) set forth above of this article,
with due observance of the fact that no subordinated shares
shall be outstanding after the Subordination Period.
6.5.3. DISTRIBUTIONS FROM INTERIM CAPITAL TRANSACTIONS. Distributions of
Available Cash from Interim Capital Transactions for any quarter during
or after the Subordination Period will be made in the following manner:
(a) FIRST, 100% to the common shares and subordinated shares, if
any, pro rata until each outstanding common share has been
paid Available Cash from Interim Capital Transactions in an
aggregate amount per common share equal to the Initial Price;
(b) SECOND, 100% to the common shares until each outstanding
common share has been paid Available Cash from Interim Capital
Transactions in an aggregate amount equal to any unpaid Common
Share Arrearages; and
(c) THEREAFTER, all distributions of Available Cash from Interim
Capital Transactions will be made as if they were from
Operating Surplus, in the manner of paragraph 6.5.1. and
6.5.2. of this article, as applicable.
6.6.1. ADJUSTMENT OF TARGET QUARTERLY DISTRIBUTION - ADDITIONAL DISTRIBUTION
LEVELS. Upon a distribution of Available Cash from Interim Capital
Transactions, the Target Quarterly Distribution and the additional
distribution levels as referred to in paragraph 6.2. and 6.5.1. (d) (1)
through (3) of this article, respectively, will be adjusted
30
by the Board of Directors downward by multiplying each such amount by a
fraction equal to:
(1) the Unrecovered Initial Price;
divided by
(2) the Initial Price, or the Unrecovered Initial Price, as the
case may be, of the common shares immediately prior to that
distribution of Available Cash from Interim Capital
Transactions.
6.6.2. ADDITIONAL ADJUSTMENTS. In addition to the provisions of paragraph
6.6.1. above, in the event of any combination or subdivision of common
shares (whether effected by a distribution by way of dividend or
otherwise payable in common shares or otherwise) but not by reason of
the issuance of additional common shares for cash or property, the
following amounts will be proportionately adjusted upward or downward,
as appropriate, by the Board of Directors:
(a) the Target Quarterly Distribution;
(b) the additional distribution levels;
(c) the Unrecovered Initial Price;
(d) the number of additional common shares issuable during the
Subordination Period without a shareholder vote pursuant to
the provision of paragraph 3 of article 4 of these articles of
incorporation;
(e) the number of common shares outstanding upon conversion of
subordinated shares; and
(f) other amounts calculated on a per common share and/or
subordinated share basis.
6.7. PAYMENT OF AVAILABLE CASH; HOLDERS OF RECORD ENTITLED THERETO. Each
distribution from Available Cash shall be made by the company to the
holders of record as they appear in the Register on such record date,
approximately forty-five days after the end of each calendar quarter,
commencing with the calendar quarter ending June 30, 1999, as shall be
fixed by the Board of Directors from time to time. Any distribution of
the Target Quarterly Distribution or of amounts of the additional
distribution levels as referred to in paragraph 6.2. and paragraph
6.5.1. of this article, respectively, for the period
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from the Initial Issue Date through June 30, 1999 will be adjusted
downward by the Board of Directors based on the actual length of such
period.
6.8. AMOUNT OF DISTRIBUTABLE AVAILABLE CASH AS DIVIDENDS OR OTHERWISE -
INDENTURE LIMITATION - SENIOR NOTES INDENTURE. If on any distribution
date, being a date as set by the Board of Directors to pay the Target
Quarterly Distribution out of Available Cash and/or such or other
amounts on the shares as set out in this article, during or after the
Subordinated Period, an Indenture Limitation (as defined below) is in
effect, the Board of Directors shall determine the amount, if any, of
dividends or other distributions out of Available Cash on the shares
that the company shall be permitted to pay in cash to its shareholders
consistent with the Indenture Limitation. For the purpose hereof, an
"Indenture Limitation" shall be deemed to be in effect on any date to
the extent that on such date any section of the Indenture shall
prohibit or make impossible the payment of cash dividends by the
company's subsidiaries to the company on such date. The "Indenture"
means (i) that certain indenture dated as of November 27, 1996, as
amended, pursuant to which the 11 3/4 Mortgage Notes Due 2003 have been
issued by Statia Terminals International N.V., a Netherlands Antilles
company, and Statia Terminals Canada, Incorporated, a Nova Scotia,
Canada company and as subsidiaries of the company, as in effect from
time to time and (ii) any successor indenture pursuant to which debt
obligations have been issued refinancing the debt obligation referred
to in clause (i) above.
6.9. DEFERRAL OF PAYMENT ON SUBORDINATED SHARES. The company shall with
respect to any payment of Available Cash on the subordinated shares,
defer the payment of the first US$ 6.8 million (being the amount equal
to the aggregate Target Quarterly Distribution on the subordinated
shares for one year) in the form of cash distributions, by dividend or
otherwise, until the end of the Deferral Period (as defined below), but
the same will be deemed paid for purposes of determining Available
Cash, Operating Surplus, Adjusted Operating Surplus, additional
distribution levels, early conversion rights and the expiration of the
Subordinated Period. For the purpose hereof, the Deferral Period shall
mean the period from the Initial Issue Date until the tests set forth
below have been met for any quarter ending on or after June 30, 2001
for which:
1) distributions (by dividend or otherwise) of Available Cash
from Operating Surplus on the common shares and subordinated
shares (including deferred distributions) for each of the two
consecutive non-overlapping four-quarter periods immediately
preceding the date of determination that equaled or exceeded
the sum of the Target Quarterly Distribution on all of the
outstanding common shares and subordinated shares during such
periods;
2) the Adjusted Operating Surplus generated during each of the
two consecutive
32
non-overlapping four-quarter periods immediately preceding the
date of determination that equaled or exceeded the sum of the
Target Quarterly Distribution on all of the common and
subordinated shares that were outstanding on a fully diluted
basis during those periods; and
3) there are no outstanding Common Share Arrearages.
6.10. PAYMENT AFTER DEFERRAL PERIOD. After the Deferral Period, the company
will pay on the subordinated shares until the deferred distributions
have been paid in full all Available Cash from Operating Surplus
remaining after all Common Share Arrearages and the Target Quarterly
Distributions have been paid on all common shares and subordinated
shares prior to any further distribution under the provisions of this
article.
AMENDMENT OF THE ARTICLES OF INCORPORATION; DISSOLUTION
AND LIQUIDATION OF THE COMPANY/DISTRIBUTION OF LIQUIDATION
PROCEEDS/PROHIBITION AGAINST CERTAIN ACTIONS ADVERSE TO
CERTAIN CLASSES OF SHARES
ARTICLE 18
1. RESOLUTIONS TO AMEND THE ARTICLES OF INCORPORATION, TO DISSOLVE THE
COMPANY OR TO SELL ITS ASSETS. Resolutions to amend the articles of
incorporation, to dissolve the company or to sell all or substantially
all of the assets of the company, may only be taken in a General
Meeting by at least a sixty-six and two thirds percent majority of
votes cast at which meeting at least one-half of the outstanding voting
capital is represented.
2. SECOND MEETING IN CERTAIN CIRCUMSTANCES. If the required capital is not
represented at the meeting referred to paragraph 1 of this article, a
second meeting shall be convened, to be held within one month after the
first meeting, at which (second) meeting valid resolutions may then be
taken with an absolute majority of votes cast, irrespective of the
issued and outstanding voting capital represented.
3. PROHIBITION AGAINST CERTAIN ACTIONS ADVERSE TO INCENTIVE SHARES. In
accordance with the provisions of Article 93a of the Commercial Code of
the Netherlands Antilles, the General Meeting shall not, without the
vote of the absolute majority of holders of incentive shares then
outstanding, amend, alter or repeal any of the provisions of these
articles of incorporation so as to affect adversely the rights or
powers of such incentive shares.
4. PROCEDURES FOR LIQUIDATION. In the event of a dissolution of the
company, the liquidation shall take place under such provisions as the
General Meeting shall determine with due observance of (i) the
remaining paragraphs of this article 18, and
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(ii) the provisions of applicable law on dissolution and liquidation of
Netherlands Antilles companies.
5. ALLOCATION OF PROFITS. If the profit and loss account covering the
financial year closing per the date of the dissolution of the company
shows a profit, this profit shall be allocated in conformity with the
provisions of article 17 hereof.
6. LIQUIDATION EVENT--DEFINITION AND ALLOCATION TO SHARES. In case of any
dissolution, liquidation or winding up of the affairs of the company,
whether voluntary or otherwise (a "Liquidation Event"), after
satisfaction of all the company's creditors in the order of priority as
set out by or under applicable law, proceeds of such liquidation will
be distributed to the holders of common and subordinated shares and the
holders of incentive shares in accordance with their respective
priorities as described below, provided however, that the holders of
common shares shall be entitled to receive, out of the assets of the
company available for distribution to its shareholders, in cash, (i)
their Unrecovered Initial Price, (ii) the amount of the Target
Quarterly Distribution due on each such share, plus (iii) any
arrearages, before any distribution shall be made to the holders of any
other class of shares, as further described below. If the company is
dissolved and liquidated before the end of the Subordination Period,
any distribution will be made as follows:
(a) FIRST, 100% to the common shares, pro rata, until each common
share receives an amount equal to the sum of:
(1) the Unrecovered Initial Price of such common share;
(2) the amount of the Target Quarterly Distribution for
the quarter(s) during which the company's liquidation
occurs; and
(3) any Unpaid Common Share Arrearages on that common
share;
(b) SECOND, 100% to the subordinated shares, pro rata, until each
subordinated share receives an amount equal to the sum of:
(1) the Unrecovered Initial Price of that subordinated
share;
(2) the amount of the Target Quarterly Distribution for
the quarter(s) during which the company's liquidation
occurs; and
(3) any unpaid deferred distributions on that
subordinated share;
34
(c) THIRD, 85% to the common shares and subordinated shares, pro
rata, and 15% to the incentive shares, pro rata, until there
has been allocated under this paragraph (c) an amount per
common share and subordinated share equal to:
(1) the cumulative excess of the first additional
distribution over the Target Quarterly Distribution
for all common shares and subordinated shares for
each quarter of the company's existence as from the
Initial Issue Date,
LESS
(2) the cumulative amount per share of any prior
distributions (by dividend or otherwise) of Available
Cash from Operating Surplus in excess of the Target
Quarterly Distribution that the company paid 85% to
the common shares and subordinated shares, pro rata,
and 15% to the incentive shares, pro rata, for each
quarter of the company's existence as from the
Initial Issue Date;
(d) FOURTH, 75% to the common shares and subordinated shares, pro
rata, and 25% to the incentive shares, pro rata, until there
has been allocated under this paragraph (d) an amount per
common share and subordinated share equal to:
(1) the cumulative excess of the second additional
distribution over the first additional distribution
for each quarter of the company's existence as from
the Initial Issue Date,
LESS
(2) the cumulative amount per share of any distributions
of Available Cash from Operating Surplus in excess of
the first target distribution that the company paid
75% to the common shares and subordinated shares, pro
rata, and 15% to the incentive shares, pro rata, for
each quarter of the company's existence as from the
Initial Issue Date; and
(e) THEREAFTER, 50% to all common shares and subordinated shares,
pro rata, and 50% to the incentive shares, pro rata.
7. If the dissolution and liquidation of the company occurs after the
Subordination Period so as a result of which only common shares and
incentive shares, if any, are outstanding, all of paragraph (b) above
will no longer be applicable, and any reference to distribution on
subordinated shares need no longer be followed.
8. LIQUIDATION EVENT--MAINTENANCE OF BOOKS AND RECORDS. During a period of
ten years
35
after the end of the liquidation relating to any Liquidation Event, the
books and records of the company shall remain in the custody of the
person designated for that purpose by the General Meeting.
SEPARATE MEETINGS OF CLASSES OF SHARES/
ACTION BY WRITTEN CONSENT
ARTICLE 19
1. GENERAL. Separate meetings of the holders of any class of shares shall
be held and may be convened by the Board of Directors at the request of
the holders of the respective classes of shares, being the holders of
common shares, subordinated shares or incentive shares, by the holders
of ten percent of any shares of such class issued and outstanding (each
a "class meeting").
2. CONVOCATION. A convocation of such class meeting shall be given by
means of a written notice mailed not fewer than ten days and no more
than thirty days prior to the date of the meeting to the address of
each holder of a class of shares, appearing in the Register.
3. AGENDA. The notice shall contain the agenda of the meeting or shall
state that it may be examined by the holders of such class of shares
for inspection at the registered office of the company.
4. SEPARATE MEETING AS DETERMINED BY BOARD OF DIRECTORS. Separate meetings
may also be held as often as the Board of Directors deems necessary.
5. RESOLUTIONS OUTSIDE MEETINGS BY WRITTEN CONSENT FOR A CLASS OF SHARES
ONLY; RECORDS. Resolutions of holders of a class of shares may also be
adopted by written consent (without recourse to a separate meeting of
holders of a class as provided herein), provided (i) all holders of
shares of such class have had an opportunity to express themselves in
connection with such action by written consent and (ii) such expression
is made in writing. The Board of Directors shall keep a record of the
resolutions thus made by written consent.
6. APPLICATION OF PROVISIONS OF ARTICLES OF INCORPORATION AND LAWS. All
the provisions of these articles of incorporation and the laws of the
Netherlands Antilles as to General Meetings, in as far as possible,
apply to separate meetings, except as otherwise specifically provided
in this article 19.