SvA/MMB/402051
27062001/V6
This day, the twenty-eight day of June two thousand and one, appears before me, mr. Kornelis Hans Pentinga, civil law notary in Utrecht:
1. Mr Job Petrus Witteman, born in
Amsterdam, The Netherlands, residing in The Netherlands, for this purpose
acting as a managing director of Amsterdam Internet Exchange B.V.,
a private company with limited liability, with registered office in
Amsterdam, having its principal place
of business in Amsterdam;
2. Susanne van Asselt, junior civil-law
notary, born in Woudrichem, residing in Utrecht (The Netherlands), acting for the purpose of this instrument as
a written mandatary of:
Mr John Bernard Souter, born
in Barnet, Leicester, United Kingdom,
residing in Cambridge, United Kingdom, for this purpose acting as a
managing director of The London Internet Exchange Ltd., a company
incorporated under the laws of the United Kingdom, with registered office in
Peterborough, Cambridgeshire, United Kingdom, having its principal place of
business in PE1 2UK Peterborough, Cambridgeshire, 3 Park Road, United Kingdom.
The appearing parties declare to form an
association under the adoption of the following articles of association:
The name of the association is: European
Internet Exchange Associations (Euro- IX).
Article 2
The association has its registered office in Amsterdam.
1. The object of the association is:
the thebundling building, sharing and developing of
know-how in the field of Internet communication exchange points and all that contributes to this in the
widest sense of the word.
TIn doing so, he
association will not aim at making a profit.
2. 2. The association will attempt to realise
this object by, inter alia, the following:
a. the exchange of information with
respect to Unix and Open Systems;
b. the distribution of software and
documentation;
c. the giving of advice on hardware and software
aspects;
d. all other legal means that may be conductive
to the realisation of its object.
The activities of the association will not be in competition with
individual member activities.
MEMBERS
Article 4
1. The following entities may be members of the association:
enterprises or organisations that
possess legal personality under The Netherlands law and/or foreign law and that
aim at, or are active in the field of, the rendering of services regarding
Internet Exchange points.in the widest
sense of the word.
2. The Executive Committee shall keep a
register, in which the names and addresses of all members shall be included.
3. The association shall not bind individual members to any obligations other than stated in
the articles of
association and/or by laws.
1. Patrons are those who have declared to
be willing to support the association financially by means of a minimum fee to
be determined [by the general meeting].
2. Patrons shall have no other rights and
obligations than those granted to and imposed on them by or pursuant to the
articles of association.
1. The Executive Committee shall decide
about the admission of members and patrons.
2. In the event of non-admission as a
member, the general meeting may as yet decide to admit the entity in question.
1. The membership shall end by:
a. the
dissolution or winding up of the member-legal entity;
b. termination
by the member;
c. termination by the association; this may occur
(if the member has ceased to comply with the requirements for membership made
in the articles of association), if the member does not perform its obligations
towards the association, as well as if it can not be reasonably demanded from the association in all fairness
to have the membership continue;
d. disqualification of the member; this may only
occur if the member acts in contravention of the articles of association,
regulations or resolutions of the association, or if the member harms the
association in an unreasonable and unfair manner.
2. Termination by the association shall
be done by the Executive Committee.
3. Termination of the membership by the
member or by the association may only occur per the end of a financial year and
with due observance of a term of notice of four weeks. However, the membership
may be terminated with immediate effect if it can not be demanded in all
fairness from the association or from the member to have the membership
continue.
4. A termination in contravention of the
provisions of the preceding paragraph shall have the membership end at the
earliest permitted point of time following the date per which the termination
was done.
5. A
member may terminate its membership with immediate effect within one month
after it has been informed of a resolution to convert the association into a
different legal form or of a resolution to merge.
6. Disqualification from the membership
shall be done by the Executive Committee.
7. The member in question may lodge appeal
with the general meeting against a resolution to terminate its membership by
the association based on the grounds that the member does not perform its
obligations towards the association or that it can not be demanded in all
fairness from the association to have its membership continue or against a
resolution to disqualify the member from membership, within one month after the
receipt of the notification of the resolution in question.
For this purpose it shall be
informed in writing of the resolution under mentioning of the reasons for it as
soon as possible.
During the term of appeal and
pending the appeal the member shall be suspended, it being understood that the
suspended member shall have the right to account for its acts and omissions at
the general meeting, at which the appeal mentioned in this paragraph is
discussed.
8. If the membership ends during the
course of a financial year, the annual fee shall remain due for its entirety.
1. The rights and obligations of a patron
may be mutually ended at all times by termination, it being understood that the
annual fee over the current financial year shall remain due for its entirety.
2. Termination by the association shall
be done by the Executive Committee.
1. The members and the patrons shall be obliged to pay an annual fee, that shall be determined by the general meeting. For this purpose they may be subdivided into categories that shall each pay a different fee.
2. The Executive Committee is authorised
to grant full or partial exemption from the obligation to pay a fee in special
cases.
1. The Executive Committee shall consist
of minimally three and maximally ten seven natural persons, who shall be appointed
by the general meeting. The Members of the Executive Committee shall be elected
from the circle of persons as mentioned in article 16, paragraph 4, subject to
the provisions in paragraph 2.
2. The general meeting may resolve that
one or more Member(s) of the Executive Committee not originating from the
circle of persons as mentioned in article 16 paragraph 4 shall be appointed.
3. The appointment of Members of the
Executive Committee shall be done on the basis of one or more binding
nomination(s), subject to the provisions of paragraph 4.
Both the Executive Committee and one[***] or more
members shall be authorised to draw up such a nomination.
The nomination by the Executive
Committee shall be notified in the letter of convocation of the general
meeting. A nomination by one
[***]
or more members should be submitted to the Executive Committee in writing
before the commencement of the general meeting.
4. Each nomination may be deprived of its
binding nature by a resolution of the general meeting adopted with a majority of at least
two thirds of two/third of the votes cast at a meeting at which at
least one half of the members entitled to vote are present or represented.
5. If no nomination has been drawn up or
if the general meeting resolves to deprive the nominations drawn up of their
binding nature in conformity with the previous paragraph, the general meeting
shall be free in its choice.
6. If there is more than one binding
nomination, the appointment shall be done on the basis of those nominations.
7. A resolution to appoint Members of the
Executive Committee requires a majority of at least two thirds of
the votes cast, at a meeting at which at least one half of the members is
present or represented. If not one half of the members is present or
represented, then a second meeting shall be convened after that meeting, which
second meeting shall be held not earlier than one daymonth and not later than six monthsmonths after the first meeting, at which a
resolution may be adopted about the proposal as discussed at the previous
meeting, irrespective of the number of members present or represented, provided
that this is done with a majority of at least two thirds of the votes cast.
RESIGNATION –
SUSPENSION
Article 11
1. Each Member of the Executive Committee, also if appointed for a definite period, may be dismissed or suspended by the general meeting at all times. The provisions of paragraph 7 of the preceding article shall apply, mutatis mutandis.
A suspension that is not followed by
a resolution to dismiss within three months, shall end by the mere lapse of
that term.
2. Each Member of the Executive Committee
shall resign ultimately two years after his appointment, in accordance with a
schedule of resignation to be drawn up by the Executive Committee. The person
resigning shall be eligible for reappointment; whoever shall be appointed in an
interim vacancy shall take the place of his predecessor in the schedule.
3. In addition the Membership of the
Executive Committee shall end:
a. by
resignation;
b. if the Member has been appointed from amongst
the circle of persons mentioned in article 16, paragraph 4:
-
by the
ending of his authority to represent the member-legal entity in question in the
association;
-
by the
ending of the membership of the association of the member-legal entity that he
is representing in the association.
EXECUTIVE COMMITTEE FUNCTIONS – THE ADOPTION OF RESOLUTIONS BY THE EXECUTIVE COMMITTEE
Article 12
1. The Executive Committee shall appoint from amongst its Members a Chairman, a Secretary and a Treasury. It may designate from amongst its Members a substitute for each of them. One Member of the Executive Committee may hold more than one position.
2. The Secretary shall draw up minutes of the business transacted at each meeting, which shall be adopted and signed by the Chairman and the Secretary. In deviation from the provisions of the law in this respect, the opinion of the Chairman about the establishment and the contents of a resolution shall not be decisive.
3. By means of a set of standing orders further regulations with respect to meetings of and the adoption of resolutions by the Executive Committee may be given.
TASKS OF THE EXECUTIVE COMMITTEE –
REPRESENTATION
Article 13
1. Subject to the limitations prescribed by the articles of association, the Executive Committee shall be charged with the management of the association.
2. If the number of the Executive Committee Members has become less than three, the Executive Committee shall remain authorised. However, it shall be obliged to convene a general meeting as soon as possible, at which meeting the filling in of the open place or places shall be discussed.
3. The Executive Committee is authorised to have executed under its own responsibility certain parts of its tasks by subcommittees to be appointed by the Executive Committee.
4. The Executive Committe has, subject to the
prior approval of the general meeting, authority to resolve to enter into
agreements to purchase, dispose of or encumber registered property or to enter
into agreements by which the association commits itself as guarantor or joint
and several debtor, warrants performance by a third party or undertakes to
provide security for a debt of a third party. The said approval shall also
apply to the authority to represent the association in respect of such acts. The
Executive is authorised, provided that this is approved of by the general
meeting, to conclude agreements to acquire, alienate or encumber registered
property, to conclude agreements by which the association accepts an obligation
as a guarantor or as a several co-debtor, ******** ???warrants performance
by a third party or provides security for the debt of a third party.
The
absence of the aforementioned approval may be invoked by, and against, a third
party.
Unclear!!!!!)
5. Without prejudice to the provisions of the last sentence of paragraph 4, the association shall be represented in court and out of court:
a. either by the Executive BoardCommittee;
b. or by two Members of the Executive Board Committee, acting jointly.
ANNUAL REPORT – THE RENDERING OF
ACCOUNT
Article 14
1. The financial year of the association coincides with the calendar year. The first financial year will end on the thirty-first day of December, two thousand and two.
2. The Executive Committee shall be obliged to keep such records of the association’s financial position that the association’s rights and obligations can be known from them at any time.
3. The Executive Committee shall report about the previous financial year at a general meeting to be held within six months after the end of the financial year in question, subject to extension of this term by the general meeting, and shall render account, under submission of a balance sheet and a list of income and expenditure together with an explanation, of the management conducted by it during the past financial year.
These documents shall be signed by the Members of the Executive Committee; if the signature of one or more of them is missing, then this shall be mentioned under mentioning of the reasons for this.
After the lapse of this term of six months, each member may claim before a court that the Executive Committee should render account as mentioned above.
4. Each year the general meeting shall appoint from amongst the members a committee of at least two persons, who are not allowed to be Members of the Executive Committee. The committee shall audit the account rendered by the Executive Committee and shall report its findings on the subject to the general meeting.
5. If the audit of the account rendered
requires special expertise in the field of bookkeeping, the committee may have
itself supported by an expert. The Executive Committee shall be obliged to
provide to the committee all information that it requests, to allow it to inspect
the cash register and the values if desired so and to allow it to inspect the
books and documents of the association.
6. The mandate of the committee may be
revoked by the general meeting at all times, but only by the appointment of
another committee.
7. If a declaration in respect of the
truthfulness of the documents as mentioned in paragraph 3 is submitted to the
general meeting that originates from a registered accountant, the appointment
of a committee as mentioned in paragraph 4 may be omitted.
8. The Executive Committee shall be
obliged to keep custody of the documents mentioned in the paragraphs 2 and 3
for seven years.
1. Within the association the general
meeting shall hold all authority that is not given to the Executive Committee
by operation of law or by the articles of association.
2. Each year, but ultimately six months
after the end of the financial year, a general meeting (the annual meeting)
shall be held. At the annual meeting, inter alia, the following subjects shall
be discussed:
a. the approval of the annual report and the
account rendered as mentioned in article 14;
b. the appointment of the committee mentioned in
article 14 or the appointment of a
registered accountant for the next financial year;
c. the filling in of any vacancies;
d. proposals from the Executive Committee or from
the members, announced in the letter of convocation for the meeting.
3. Other general meetings shall be held as
often as deemed desirable by the Executive Committee.
4. In addition, the Executive Committee
shall be obliged to convene a general meeting within in a term of no more than
fourfour
weeks upon the written request of at least such a number of members as is
authorised to cast one tenthtenth part of the votes. If this request
is not complied with within fourteen days, the requesting members themselves
may convene the meeting by a convocation in accordance with article 19. or by advertising in at least
one daily newspaper that is read frequently at the place at which the association
has its registered office, with due observance of the term of convocation
mentioned in article 19.
The requesting members may in such a
case charge other persons than the Members of the Executive Committee with the
task of chairing the meeting and drawing up the minutes.
Article 16
1. All members of the association, the Member of the Executive Committee who is not a member of the association and all patrons shall have access to the general meeting. Suspended members shall have no access with due observance of the provisions of article 7, paragraph 7, and neither shall suspended Members of the Executive Committee have access.
2. The general meeting shall decide about
the admission of other persons than the persons mentioned in paragraph 1.
3. Each member of the association that has
not been suspended shall have the right to cast one vote. The Member of the
Executive Committee that is not a member of the association shall have an
advisory vote.
4. Each member-legal entity should
designate in writing a natural person who shall represent the member at the
meeting and who shall exercise the right to vote on behalf of the member. The
members-legal entities shall preferably designate one of their board members.
5. A member may cast its vote by another
member who has been granted written power of attorney for this purpose. The number of powers of
attorney that can be granted to one member is restricted to twenty percent (20
%) of the total number of possible votes of all members of the association.
Article 17
1. The general meeting shall be chaired by the Chairman of the association or by his substitute. If the Chairman and his substitute are absent, then one of the other Members of the Executive Committee, to be designated as such by the Executive Committee, shall acts as chairman. If in this way the chairmanship can not be provided for either, then the meeting itself shall provide its own chairman.
2. The Secretary orf another person designated by the
meeting for this purpose shall draw up minutes of the business transacted at
each meeting, which shall be adopted and signed by the chairman and the person
drawing up the minutes.
Those who convene the meeting may
have an official report drawn up of the business transacted by a civil law
notary.
The contents of the minutes or of
the official report shall be notified to the members.
1. The opinion of the chairman about the
result of a ballot pronounced at the general meeting shall be decisive. The
same applies to the contents of a resolution adopted in as far as the ballot
concerned a proposal not laid down in writing.
2. However, if immediately after the
pronouncing of the opinion mentioned in the first paragraph the correctness of
this opinion is disputed, then a second ballot shall take place, if the
majority of the meeting or, if the original ballot did not occur by roll-call
or in writing, a person present who is entitled to vote desires so. By this second
ballot the legal consequences of the original ballot shall have become null and
void.
3. In as far as the articles of
association or the law do not provide for otherwise, all resolutions of the
general meeting shall be adopted by an absolute majority of the votes cast.
4. Invalid and blank votes shall be deemed
not to have been cast.
5. If upon the occasion of an election of
persons nobody has obtained the absolute majority, a second ballot, or in the
case of a binding nomination, a second ballot between the candidates nominated,
shall take place. If then again nobody has obtained the absolute majority, then
re-voting shall take place until one person has obtained the absolute majority,
or if the voting is done between two persons, the votes are equally divided. In
the event of the aforementioned re-voting (not including the second ballot) the
voting shall always be done between the persons, who have obtained votes in the
preceding ballot, however, with the exception of the person who obtained the smallest
number of votes upon the occasion of the preceding ballot.
If upon the occasion of the
preceding ballot more than one person obtained the smallest number of votes,
then lots shall be drawn to decide which of those persons shall be excluded
from the new ballot. In the event of an equal number of votes upon the occasion
of a ballot concerning two persons, the drawing of lots shall decide which
person has been elected.
6. If there is an equal number of votes
about a proposal not concerning the election of persons, then the proposal
shall be deemed to have been rejected.
7. All ballots shall occur orally, unless
the chairman deems a ballot in writing desirable of if one of the persons
entitled to vote desires so before the ballot.
A ballot in writing shall be done by
means of unsigned and sealed ballots.
The adoption of resolutions by
acclamation is possible, unless a person entitled to vote desires a ballot by
roll-call.
8. A unanimous resolution by all members,
even if they have not gathered at a meeting, provided that the Executive
Committee had been informed of the ballot beforehand, shall have the same force
and effect as a resolution adopted by the general meeting.
9. For as long as all members are present
or represented at a general meeting, valid resolutions may be adopted, provided
that this is done by general vote, with respect to all subjects discussed –
therefore also with respect to a proposal to amend the articles of association
or to dissolve the association – even if no convocation has taken place or if
the convocation was not done according to the prescribed manner or if any other
prescription in respect of the convocation or holding of meetings or a related
formality have not been complied with.
Article 19
1. The
general meetings shall be convened by the Executive Committee. The convocation
shall be done in writing by means of letters of convocation addressed to the
addresses of the members asd
mentioned in the register of members mentioned in article 4 paragraph 2 convocation may take place in
another form of writing.
Unless otherwise provided in these articles of
association, the term
of convocation shall be at least twenty eightseven days, not counting the day of the sending of the letters of
convocation.
2. In the letters of convocation the
business to be transacted shall be mentioned, without prejudice to the
provisions of the articles 20 and 21.
Article 20
1. The articles of association of the association may only be amended by a resolution of the general meeting, convened with mentioning of the fact that a proposal to amend the articles of association shall be discussed at that meeting.
2. Those
persons who have convoked the general meeting for the discussion of a proposal
to amend the articles of association, shall send a copy of that proposal that
contains the literal wording of the amendment proposed, to all members of the
association minimally fourteen days before the day of the meeting, either by
means of a written notification to the members at their addresses as mentioned
in the register of members as mentioned in article 4 paragraph 2, or by
publication in the publication of the association and shall deposit such a copy
with the office of the association for inspection by the members at least five
days before the day of the meeting in question until after the end of the day
at which the meeting is being held., and shall deposit such a copy
with the office of the association for inspection by the members at least five
days before the day of the meeting in question until after the end of the day
at which the meeting is being held.
3. A
resolution to amend the articles of association requires a majority of at least three fourth at least two
thirds of the votes cast at a meeting at which at least one half
of the members is present or represented. If not one half of the members is
present or represented, then a second meeting after that meeting shall be
convoked, to be held not earlier than seven daysone month and not later than six
months after the first meeting, at which a resolution may be adopted with
respect to the proposal as having been discussed at the first meeting,
irrespective of the number of members present or represented, provided that
this is done with a majority of at least three fourth two thirdsof the
votes cast.
4. An amendment of the articles of association shall only become effective after a notarial deed has been drawn up in respect of the amendment in question. Each Member of the Executive Committee is authorised to have such a deed be drawn up and executed.
DISSOLUTION
Article 21
1. The association may be dissolved by a resolution of the general meeting.
The provisions of the paragraphs 1, 2 and 3 of the preceding article apply, mutatis mutandis.
2. The positive balance after liquidation shall fall to the legal entities who were members at the time of the resolution to dissolve.
Each of them shall receive a share, in proportion to the contribution, paid during each of their membership.
However,
upon the resolution to dissolve also another appropriation may be determined in
respect of the positive balance.
STANDING ORDERS
Article 22
1. The general meeting may determine a set of standing orders.
2. The standing orders shall not be allowed to be in contravention of the law, even where this law is not mandatory, nor in contravention of the articles of association.
FINAL STATEMENTS
The appearing parties declare as follows:
a. The parties forming the association are the first and presently only members of the association.
b. As Members of the Executive Committee the following persons are appointed for the first time:
1. Mr Pascal Delmoitié, born in Schaerbeek, Belgium, residing at Brussels,
Belgium, as ChairmanPresident;
2.
Mr Job Petrus Witteman, born in
Amsterdam, The Netherlands, , residing at Amsterdam, The Netherlands, as SecretarySecretary / Treasurer,
3. Mrs Valeria Maria Rossi, born in Milan, Italy, residing at Monza, Italy, as Treasurer;
4. Mr John Bernard Souter, born in Barnet, Leicester, United Kingdom , residing at Cambridge, United Kingdom, as Member;
5. Mr Arnold Heinrich Nipper, born in Essen, Germany, residing at , Germany, as Member;
6. Mr Christian Panigl, born in Vienna, Austria, residing at Vienna, Austria, as Member;
The appearing parties are known to me, civil law notary.
WHEREOF DEED, executed in one authentic copy in Utrecht, on the date mentioned in the first line of this deed.
After having been listed the sum and substance of the contents of this deed, the appearing parties unanimously declared to have taken cognisance of the contents of this deed and to not require a full reading aloud of the contents of the deed.
Subsequently this deed, after a limited reading aloud thereof, was signed by the appearing parties and by me, civil law notary.