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Title: |
Articles of Association |
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Date: |
2002 |
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Preview shows 16KB of 110KB total |
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$55 |
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ID: |
#341362 |
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ARTICLES OF ASSOCIATION
COMPLETEL EUROPE N.V.
having its seat in Amsterdam, as they read as of the eighteenth day of
September two thousand and two after taking effect of a provisional clause as
provided in the deed of amendment to the articles of association executed on
the seventeenth day of September two thousand and two before Paul Hubertus
Nicolaas Quist, civil-law notary in Amsterdam,
in respect of which amendment the Minister of Justice has advised on
twenty-third day of August two thousand and two under number N.V. 1055197 that
no objections have become apparent;
Definitions
Article 1.
In these Articles of Association the following definitions apply:
a. Annual Accounts shall mean: the balance sheet, the profit and loss
account and the explanatory notes to these accounts;
b. Annual Meeting shall mean: the General Meeting with the purpose of
considering and adopting the Annual Accounts, the annual report and
any other documents required by law;
c. Articles of Association shall mean: the articles of association of
the Company;
d. Board of Management shall mean: the board of management of the
Company;
e. C shares shall mean: class C shares in the capital of the Company;
f. Company shall mean: CompleTel Europe N.V., registered in Amsterdam;
g. Company Sale shall mean: any sale of the Company to a third party
(including by way of merger or a sale of substantially all of the
Company's assets) to which the Company is a party or to which the
Supervisory Board has given its approval;
h. Delegated Supervisory Board Committee shall mean: the delegated
supervisory board committee of the Company;
i. Distributable reserves shall mean: that part of the Company's
shareholders' equity which is in excess of (i) the paid-up and
called-up part of the capital, and (ii) the reserves, if any, which
are required by law and by virtue of these Articles of Association;
j. General Meeting shall mean: both the body formed by shareholders and
others with voting rights as well as the meeting of shareholders and
others with meeting rights;
k. Group Company shall mean: a legal entity or a company which is
associated with the Company in a group, as defined in article 2:24b
Dutch Civil Code;
l. Investors shall mean: Meritage Private Equity Fund, L.P., Meritage
Private Equity Parallel Fund, L..P., Meritage Entrepreneurs Fund,
L.P., DeGeorge Telcom Holdings L.P. or any of their affiliates;
m. Preference Amount shall mean: in relation to an outstanding Preferred
Share, an amount equal to two thousand ten euro (EUR 2,010) per
share;
n. Preferred shares shall mean: both the Preferred A shares and the
Preferred B shares;
o. Preferred A shares shall mean: series A convertible cumulative
preferred shares in the capital of the Company;
p. Preferred B shares shall mean: series B convertible cumulative
preferred shares in the capital of the Company;
q. Subsidiary shall mean:
1. a legal entity in which the Company or one or more of its
Subsidiaries, whether or not pursuant to an agreement with
other persons entitled to vote, can jointly or by itself
exercise more than half of the voting rights at the general
meeting;
2. a legal entity, of which the Company or one or more of its
Subsidiaries are member or shareholder and, whether or not
pursuant to an agreement with other persons entitled to vote,
can jointly or by itself appoint or remove from office more
than half of the members of the board of management or the
supervisory board, even if all the persons entitled to vote
cast their votes;
3. a company acting under its own name in which the Company or one
or more of its Subsidiaries, as partner is or are fully liable
for the debts towards creditors;
r. Supervisory Board shall mean: the supervisory board of the Company.
Name and seat
Article 2.
1. The name of the Company is: CompleTel Europe N.V..
2. Its registered seat is in Amsterdam.
3. The Company may have branch offices and branch establishments
elsewhere, both at home and abroad.
Objects
Article 3.
The objects of the company are:
o to finance companies and other enterprises, to borrow, to lend and to
raise funds, to participate in all types of financial transactions,
including the issue of bonds, promissory notes or other securities or
evidences of indebtedness, to invest in securities;
o to grant guarantees, to bind the Company and to grant security over
its assets, for the obligations of companies and other enterprises
with which the company is affiliated and of third parties;
o to enter into additional financial and other agreements (including
swaps and derivatives transactions) in relation to the activities
named above;
o to incorporate and to participate in any way whatsoever in, to
manage, to supervise and to co-operate with companies and other
enterprises, to acquire, to keep, to alienate or in any other manner
to manage all sorts of participations and interests in other
companies and other enterprises, to enter into joint ventures with
other companies and enterprises;
o to acquire, to manage, to operate, to encumber and to alienate
personal and real property and any right to or interest in personal
and real property;
o to obtain, to exploit and to alienate patents and other intellectual
property rights, to acquire and to grant licenses, sub-licenses and
similar rights of whatever name and description and if necessary, to
protect rights derived from patents and other intellectual property
rights, licenses, sub-licenses and similar rights against
infringement by third parties;
o to enter into agreements concerning the indemnification of its
managing directors and its supervisory directors, and
o to undertake all that which is connected to the foregoing or in
furtherance thereof, all in the widest sense of the words.
Capital and shares
Article 4.
1. The authorized capital amounts to eight hundred twelve thousand euro
(EUR 812,000).
2. It is divided into:
o six million three hundred thousand (6,300,000) ordinary shares,
each with a par value of four cents (EUR 0.04);
o twenty-four thousand (24,000) series A convertible cumulative
preferred shares, each with a par value of four euro (EUR 4.-);
o sixteen thousand (16,000) series B convertible cumulative
preferred shares, each with a par value of four euro (EUR 4.-);
o ten million (10,000,000) class C shares, each with a par value
of four cents
o (EUR 0.04).
Where these Articles of Association refer to shares and shareholders,
these shall be understood to refer to the aforementioned classes and
holders thereof, unless the contrary is indicated.
Where these Articles of Association refer to Preferred shares and
holders of Preferred shares, these shall be understood to refer
to the aforementioned classes of Preferred shares and holders
thereof, unless the contrary is indicated.
3. Each Preferred A share and each Preferred B share is convertible into
one hundred or more ordinary shares with due observance of Article 9.
If, in accordance with Article 9 Preferred A shares, or, as the case
may be, Preferred B shares are converted into ordinary shares, the
number of Preferred A shares, or, as the case may be, Preferred B
shares in the authorized capital will be decreased in an amount equal
to the number of Preferred A shares, or, as the case may be,
Preferred B shares that are converted and the number of ordinary
shares in the authorized capital will be increased with one hundred
ordinary shares for each converted Preferred A share, or, as the case
may be, Preferred B share.
4. The ordinary shares, the Preferred shares and C shares are registered
shares. Share certificates for C shares shall not be issued.
5. If a share belongs to more than one person, the collectively entitled
parties may only have themselves represented vis-a-vis the Company by
one person.
6. C shares shall not be entitled to any distribution from any reserve
of the Company.
Share certificates
Article 5.
1. To the extent the Company is listed on one or more stock exchanges,
ordinary and Preferred registered shares shall be available:
o in the form of an entry in the shareholders register without
issue of a share certificate; shares of this type are referred
to in these Articles of Association as type I registered
shares;
o and, should the Board of Management so decide - also in the
form of an entry in the share register with issue of a
certificate, which certificate shall consist of a main part
without dividend coupon; shares of this type and share
certificates relating thereto are referred to in these Articles
as type II registered shares and type II share certificates.
2. The Board of Management can decide that the registration of type I
registered shares may only take place for one or more quantities of
shares, which quantities are to be specified by the said Board, at
the same time.
3. Type II share certificates shall be available in such denominations
as the Board of Management shall determine.
4. All share certificates shall be signed by or on behalf of the Board
of Management or by the CEO acting jointly with another member of the
Board of Management; the signatures may be effected by printed
facsimile.
Furthermore, type II share certificates shall, and all other share
certificates may, be countersigned by one or more persons designated
by the Board of Management for that purpose.
5. All share certificates shall be identified by numbers and/or letters.
6. Subject to the approval of the Supervisory Board, the Board of
Management can determine that for the trade at foreign exchanges
share certificates shall be issued complying with the requirements
set by said foreign exchange(s) and not provided with any dividend
sheet.
7. The expression `share certificate' as used in these Articles shall
include a share certificate in respect of more than one share.
Duplicates
Article 6.
1. Upon written request from a shareholder, missing or damaged share
certificates, or parts thereof, may be replaced by new certificates
or by duplicates bearing the same numbers and/or letters, provided
the applicant proves his title and, in so far as applicable, his loss
to the satisfaction of the Board of Management, and further subject
to such conditions as the Board of Management may deem fit.
2. In appropriate cases, at its own discretion, the Board of Management
may stipulate that the identifying numbers and/or letters of missing
documents be published three times, at intervals of at least one
month, in at least three newspapers to be indicated by the Board of
Management announcing the application made;
in such a case new certificates or duplicates may not be issued until
six months have expired since the last publication, always provided
that the original documents have not been produced to the Board of
Management before that time.
3. The issue of new certificates or duplicates shall render the original
document invalid.
Shareholders register
Article 7.
1. Notwithstanding the provisions of the law in respect of registered
shares, a register shall be kept by or on behalf of the Company,
which register shall be regularly updated and, at the discretion of
the Board of Management, may, in whole or in part, be kept in more
than one copy and at more than one place.
If the listing of the shares of the Company on a stock exchange or a
regulated over the counter market in a country or countries other
than the Netherlands so requires, part or parts of the shareholders
register may be kept in such country or countries.
2. Each shareholder's name, his address and such further data as the
Board of Management deems desirable, whether at the request of a
shareholder or not, shall be entered in the register, with reference
to the class of shares.
3. The form and the contents of the share register shall be determined
by the Board of Management with due regard to the provisions of
paragraphs 1 and 2 of this Article.
The Board of Management may determine that the records shall vary as to
their form and contents according to whether they relate to type I
registered shares or to type II registered shares.
4. Upon request a shareholder shall be given free of charge a
declaration of what is stated in the register with regard to the
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