EXHIBIT 3.1
Hengeler Xxxxxxx
Convenience Translation Only
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THIS DOCUMENT IS THE ENGLISH TRANSLATION OF THE ORIGINAL GERMAN LANGUAGE VERSION
OF THE ARTICLES OF ASSOCIATION (SATZUNG) OF XXXXXX GRIESHEIM HOLDING AG AS OF
APRIL 2001 AND SERVES CONVENIENCE PURPOSES ONLY AND MAY NOT BE RELIED UPON BY AN
PARTY.
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ARTICLES OF ASSOCIATION
OF
XXXXXX GRIESHEIM HOLDING AG
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PART I
GENERAL PROVISIONS
SECTION 1
CORPORATE NAME, REGISTERED OFFICE AND FINANCIAL YEAR
(1) The corporate name of the Company is Xxxxxx Griesheim Holding AG.
(2) The Company shall have its registered office in Frankfurt.
(3) The financial year shall run from 1 January of one year to 31 December
of the following year.
SECTION 2
CORPORATE PURPOSE
(1) The object of the Company is holding and management and the acquisition
of participations in enterprises dedicated to the production and
distribution of industrial gases in Germany or abroad.
(2) The Company may itself also become active in the business sectors
mentioned in Paragraph 1 as well as in other sectors. The Company shall
be entitled to undertake all acts and measures which are related to or
directly or indirectly suited to serve the object of the Company.
(3) The Company may also form, acquire or participate in enterprises active
in sectors other than the sector mentioned in Paragraph (1).
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SECTION 3
PUBLICATIONS
Publications of the Company shall be made exclusively in the BUNDESANZEIGER.
PART II
CAPITAL AND SHARES
SECTION 4
TOTAL CAPITAL
The total capital of the Company shall amount to E 90,000 (in words: Euro ninety
thousand).
SECTION 5
SHARES
(1) The capital shall be divided into 90,000 non par value shares.
(2) The shares shall be in bearer form.
(3) The Management Board shall determine the form and content of the share
certificates as well as the dividend and renewal coupons. The right of
shareholders to have their shares certificated is excluded.
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PART III
CONSTITUTION OF COMPANY
SECTION 6
CORPORATE BODIES
The bodies of the Company shall include:
1. the Management Board;
2. the Supervisory Board;
3. the Shareholder's Meeting.
ARTICLE 1
MANAGEMENT BOARD
SECTION 7
(1) The Management Board shall consist of at least three members. The exact
number of the members of the Management Board shall be determined by
the Supervisory Board.
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(2) The Supervisory Board may appoint a member of the Management Board as
chairperson of the Executive Board.
(3) Resolutions of the Management Board may be adopted with the majority of
the votes of the members of the Management Board.
SECTION 8
REPRESENTATION
The Company shall be represented by all members of the Management Board acting
jointly.
ARTICLE 2
SUPERVISORY BOARD
SECTION 9
COMPOSITION AND TERM OF OFFICE
(1) The Supervisory Board shall consist of six members.
(2) The members of the Supervisory Board are elected for the period until
the end of the Shareholders' Meeting which the actions of the
Supervisory Board are approved for the fourth financial year after the
beginning of the term of office. The financial year in which the term
of office begins shall not be counted in this regard. The election of
the successor for a member leaving office prior to the expiration of
his or her term of office shall be made for the residual term of office
of such member,
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unless the Shareholders' Meeting determines otherwise.
(3) When electing a member of the Supervisory Board, a deputy member may
also be appointed; such deputy member shall become member of the
Supervisory Board if the Supervisory Board member withdraws prior to
the expiration of his or her term and no successor is appointed. The
term of an deputy member having moved up into the Supervisory Board
shall expire as soon as a successor for the withdrawn Supervisory Board
member has been appointed or, at the latest, upon the expiration of the
term of office of the withdrawn Supervisory Board member.
(4) The members and deputy members of the Supervisory Board may resign from
their office by way of a written declaration addressed to the
chairperson of the Supervisory Board upon observance of four weeks'
notice.
SECTION 10
CHAIRPERSON AND VICE CHAIRPERSON
(1) The Supervisory Board shall elect a chairperson and vice chairperson
from its midst. The term of office of the chairperson and vice
chairperson shall correspond to their terms of office as member of the
Supervisory Board, unless a shorter term of office is determined during
the election. Following the Shareholders' Meeting at which the
Supervisory Board members to be elected by the shareholders have been
appointed, the chairperson and vice chairperson shall be elected in a
session which is to take place without any further convocation.
(2) In the event the chairperson or the vice chairperson withdraws from his
or her office prior to the expiration of the term thereof, the
Supervisory Board must immediately conduct a new election for the
residual term of office of the withdrawn person.
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SECTION 11
CONVOCATION
(1) The chairperson shall convoke meetings of the Supervisory Board in
writing with notice of 14 days. The date the invitation is sent and the
date of the meeting shall not be counted when calculating the period.
In urgent events, the chairperson may shorten the period and convoke a
meeting orally, by phone or telefax.
(2) The items on the agenda shall be communicated with the invitation.
Additions to the agenda must be communicated prior to the expiration of
the convocation period.
(3) The chairperson may cancel or adjourn any convoked meeting after due
assessment of the circumstances.
SECTION 12
VOTING
(1) Resolutions of the Supervisory Board shall normally be adopted in
meetings. The chairperson shall determine the order in which the items
on the agenda are to be discussed as well as the type and order of the
votes. Resolutions concerning items on the agenda which were not
communicated in due time may only be adopted provided no member
objects. In such event, absent members must be given the opportunity to
subsequently object to the resolution within one week after the notice
thereof; the resolution shall only become effective provided no absent
member has objected thereto within the period.
(2) Outside of meetings, resolutions shall be permitted by casting votes in
writing or transmitting them by telefax, provided no member objects to
such procedure within a reasonable period to be determined by the
chairperson. The result of such
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resolutions shall be determined in writing by the chairperson and made
available to all members.
(3) A quorum of the Supervisory Board shall be constituted if at least half
of the members of which the Supervisory Board is composed in accordance
with the Bylaws participate in the vote. Absent members may participate
in the vote by having a written ballot submitted by another member.
(4) Resolutions of the Supervisory Board shall require a majority of the
votes cast, unless another majority is mandatorily prescribed by law.
In the event of a lock-up, the chairperson shall have two votes in any
new ballot in which a lock-up also occurs. The second vote may also be
cast pursuant to Paragraph (3) Sentence 2 above.
(5) The chairperson shall be empowered to issue the declarations of intent
necessary to execute resolutions of the Supervisory Board and its
committees in the name of the Supervisory Board.
(6) The Supervisory Board shall only be authorized to resolve upon
modifications of these Bylaws which affect the wording hereof.
SECTION 13
DUTY TO MAINTAIN SECRECY
(1) Even after withdrawing from office, the members of the Supervisory
Board must maintain secrecy regarding all confidential information and
secrets of the Company, namely business and trade secrets, of which
they become aware through their activity on the Supervisory Board.
(2) In the event any member of the Supervisory Board desires to disclose
information to third parties and it cannot be ruled out with certainty
that the information is con-
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fidential or relates to secrets of the Company, the member shall be
obligated to inform the chairperson of the Supervisory Board thereof in
advance, providing the chairperson the opportunity to comment.
SECTION 14
REMUNERATION
(1) Apart from their expenses, the members of the Supervisory Board shall
receive a fixed annual remuneration payable after the close of the
financial year as determined by Shareholders' Meeting.
(2) Supervisory Board members who have only pertained to the Supervisory
Board for part of the financial year shall receive less remuneration on
a PRO RATA TEMPORIS basis.
(3) The Company shall reimburse any turnover tax payable on the
remuneration.
ARTICLE 3
SHAREHOLDERS' MEETING
SECTION 15
CONVOCATION AND CHAIR
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(1) The Shareholders' Meeting shall take place at the domicile of the
Company or in a city having more than 250,000 inhabitants.
(2) The Shareholders' Meeting shall be called by the Management Board by
registered mail with a notice of six weeks. The day of the
Shareholders' Meeting and the day of the convocation shall not be
counted.
(3) The ordinary Shareholders' Meeting shall take place within the first
eight months of the financial year. The annual financial statements,
the management report, the report of the Supervisory Board as well as
the proposed application of net earnings are to be presented and
explained to the shareholders in general meeting. The ordinary general
shareholders' meeting shall resolve upon:
1. the approval of the annual financial statements;
2. the application of the net earnings;
3. the approval of the actions of the members of the Supervisory
Board;
4. the selection of the independent auditor.
(4) The chairperson of the Supervisory Board or any other Supervisory Board
member who is determined by him shall chair the meeting. In the event
neither the Supervisory Board chairperson nor any Supervisory Board
member determined thereby assumes the chair, the chair shall be elected
by the Shareholders' Meeting.
(5) The chairperson shall direct the meeting. The chairperson shall
determine the order in which the items on the agenda are to be
discussed, as well as the type and order of the votes.
SECTION 16
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VOTING
(1) Each share shall grant the holder one vote at Shareholders' Meeting.
(2) Resolutions of the general meeting of shareholders shall be adopted by
the majority of the votes and capital as determined by statute.
(3) A quorum of the general shareholders meeting shall be constituted
provided at least 75% of the capital is represented at the
Shareholders' Meeting.
PART 4
ANNUAL FINANCIAL STATEMENTS AND
APPLICATION OF NET INCOME
SECTION 17
ANNUAL FINANCIAL STATEMENTS AND APPLICATION OF NET INCOME
(1) The Executive Board shall prepare the annual financial statements and
the management report for the previous financial year and present such
to the independent auditor. Immediately after receipt of the auditor's
report, the annual financial statements, the management report together
with the auditor's report shall be presented to the Supervisory Board.
(2) Net earnings determined by the annual financial statements after
possible write-downs, value adjustments, provisions and reserves
applied by the Management Board and the Supervisory Board shall be
distributed to the shareholders, unless the general shareholders'
meeting resolves on a different application.
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SECTION 18
PROFIT PARTICIPATION OF THE SHAREHOLDERS
(1) Profit participation of the shareholders shall be determined according
to their participation in the share capital of the Company.
(2) In case of an increase of the capital, the profit participation of the
new shares may be determined as deviating from Section 60 AktG.
PART 5
MISCELLANEOUS
SECTION 19
FORMATION EXPENSES
The Company may bear the costs in connection with its incorporation to an amount
of up to DM 1,500.00. No fee is paid to the founders.
