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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE
13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of August, 1999
EXCEL MARITIME CARRIERS LTD.
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(Translation of registrants name into English)
Par La Ville Place, 14 Par-La-Ville Road, Hamilton HM JX Bermuda
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(Address of principal executive office)
[Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F.
Form 20-F / X / Form 40-F / /
[Indicate by check mark whether the registrant by furnishing the
information contained in this Form is also thereby furnishing the
information to the Commission pursuant to Rule 12g3-2(b) under
the Securities Exchange Act of 1934. Yes / / No / X /
[If Yes is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2 (b):
82-___________________________.]
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The following are the proxy materials distributed with regard
to the 1999 Annual Meeting of Shareholders:
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EXCEL MARITIME CARRIERS LTD.
PAR LA VILLE PLACE
14 PAR-LA-VILLE ROAD
HAMILTON, HM JX, BERMUDA
August 18, 1999
TO THE SHAREHOLDERS OF
EXCEL MARITIME CARRIERS LTD.
Enclosed is a Notice of the Annual Meeting of
Shareholders of Excel Maritime Carriers Ltd. (the "Company")
which will be held at Par La Ville Place, 14 Par-La-Ville Road,
Hamilton HM JX Bermuda on Tuesday, August 31, 1999 at 11:00 a.m.
(Bermuda time).
At this Annual Meeting of Shareholders (the "Meeting"),
shareholders of the Company will consider and vote upon the five
proposals set forth in the accompanying proxy statement. These
proposals pertain to the organization of the Company, and it is
important that you pay close attention to them.
You are cordially invited to attend the Meeting in
person. Whether or not you plan to attend the Meeting, please
sign, date and return as soon as possible the enclosed proxy in
the enclosed stamped, self-addressed envelope. If you attend the
Meeting, you may revoke your proxy and vote your shares in
person.
The affirmative vote of the holders of two-thirds of the
shares of the Company entitled to vote is required to approve
certain of the proposals.
IT IS IMPORTANT TO VOTE. WHETHER OR NOT YOU PLAN TO
ATTEND THE ANNUAL MEETING, PLEASE COMPLETE, DATE, SIGN AND RETURN
THE ENCLOSED PROXY IN THE ENCLOSED ENVELOPE, WHICH DOES NOT
REQUIRE POSTAGE IF MAILED IN THE UNITED STATES. THE VOTE OF
EVERY SHAREHOLDER IS IMPORTANT AND YOUR COOPERATION IN RETURNING
YOUR EXECUTED PROXY PROMPTLY WILL BE APPRECIATED. ANY SIGNED
PROXY RETURNED AND NOT COMPLETED WILL BE VOTED IN FAVOR OF ALL
THE PROPOSALS LISTED IN THE PROXY STATEMENT.
Very truly yours,
Gabriel Panayotides
Chairman
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EXCEL MARITIME CARRIERS LTD.
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
AUGUST 31, 1999
NOTICE IS HEREBY given that the Annual Meeting (the
"Meeting") of the shareholders of Excel Maritime Carriers Ltd.
(the "Company") will be held on Tuesday, August 31, 1999 at 11:00
a.m., Bermuda time, at Par La Ville Place, 14 Par-La-Ville Road,
Hamilton, Bermuda for the following purposes, which are more
completely set forth in the accompanying proxy statement:
1. To approve the Amended and Restated Articles of
Incorporation of the Company;
2. To amend Section 9.07 of the By-laws of the Company in
conjunction with the proposed amendments to the Articles
of Incorporation;
3. To approve the issuance of 1,860,063 common shares, par
value $0.01 per share, to Vilpa Investments S.A., an
affiliate of the Company and its largest beneficial
shareholder, in exchange for shares of the holding
company which owns the vessel ALMAR;
4. To elect the Directors of the Company;
5. To ratify and approve the appointment of the Company's
independent auditors; and
6. To consider such other matters as may properly come
before the Meeting.
The close of business on August 6, 1999, has been set as
the record date for the determination of shareholders entitled to
receive notice and to vote at the Meeting or any adjournment
thereof.
You are invited to attend and participate.
IT IS IMPORTANT TO VOTE. WHETHER OR NOT YOU PLAN TO
ATTEND THE ANNUAL MEETING, PLEASE COMPLETE, DATE, SIGN AND RETURN
THE ENCLOSED PROXY IN THE ENCLOSED ENVELOPE, WHICH DOES NOT
REQUIRE POSTAGE IF MAILED IN THE UNITED STATES. THE VOTE OF
EVERY SHAREHOLDER IS IMPORTANT AND YOUR COOPERATION IN RETURNING
YOUR EXECUTED PROXY PROMPTLY WILL BE APPRECIATED. ANY SIGNED
PROXY RETURNED AND NOT COMPLETED WILL BE VOTED IN FAVOR OF ALL
THE PROPOSALS LISTED ABOVE.
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In the event you decide to attend the Meeting, you may
revoke your proxy and vote in person.
By Order of the Directors
Georgina E. Sousa
SECRETARY
Dated: August 18, 1999
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EXCEL MARITIME CARRIERS LTD.
PAR LA VILLE PLACE
14 PAR-LA-VILLE ROAD
HAMILTON, HM JX, BERMUDA
-------------------------
PROXY STATEMENT
FOR
ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON AUGUST 31, 1999
-----------------------
INFORMATION CONCERNING SOLICITATION AND VOTING
The enclosed proxy is solicited on behalf of the Board
of Directors (the "Board") of Excel Maritime Carriers Ltd., a
Liberian corporation (the "Company"), for use at the Annual
Meeting of Shareholders to be held at Par La Ville Place, 14 Par-
La-Ville Road, Hamilton, Bermuda on Tuesday, August 31, 1999, at
11:00 a.m. local time (the "Meeting"), or at any adjournment or
postponement thereof, for the purposes set forth herein and in
the accompanying Notice of Annual Meeting of Shareholders. This
Proxy Statement and the accompanying form of proxy are expected
to be mailed to shareholders of the Company entitled to receive
notice and to vote at the Meeting, on or about August 18, 1999.
The outstanding shares of the Company at August 6, 1999
(the "Record Date"), consisted of 6,571,806 common shares, par
value $0.01 (the "Common Shares"). Each holder of record of the
Common Shares at the close of business on the Record Date is
entitled to receive notice of the Meeting and to one (1) vote for
each Common Share then held by such holder. A majority of the
outstanding Common Shares shall constitute a quorum at the
Meeting, however, approval of Proposals One and Two will require
the affirmative vote of the holders of two-thirds of the
outstanding Common Shares. The Common Shares represented by any
proxy in the enclosed form will be voted in accordance with the
instructions given on the proxy if the proxy is properly executed
and is received by the Company prior to the close of voting at
the Meeting or any adjournment or postponement thereof.
The Common Shares are listed on the American Stock
Exchange (the "AMEX") under the symbol "EXM."
A shareholder giving a proxy may revoke it at any time
before it is exercised. A proxy may be revoked by filing with
the Secretary of the Company at the Company's principal office,
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Par La Ville Place, 14 Par-La-Ville Road, Hamilton HM JX,
Bermuda, a written notice of revocation by a duly executed proxy
bearing a later date, or by attending the Meeting and voting in
person.
All Common Shares of the Company represented by valid
proxies received pursuant to this solicitation, and not revoked,
will be voted at the Meeting.
In the event there are not sufficient votes for approval
of any of the matters to be voted upon at the Meeting, the
Meeting may be adjourned in order to permit further solicitation
of proxies.
The Company will bear the cost of the solicitation of
proxies and will reimburse brokerage houses and other custodians,
fiduciaries and nominees for their expenses in sending
solicitation material to their principals. In addition to the
solicitation of proxies by the use of the mails, proxies may also
be solicited by the directors, officers and employees of the
Company by telephone, cable and personal interviews. Directors,
officers and employees of the Company who solicit proxies will
not receive additional compensation therefor.
PROPOSAL ONE - APPROVAL OF THE AMENDED AND RESTATED ARTICLES
OF INCORPORATION
INTRODUCTION
The Board of Directors hereby submits to the Company's
shareholders a proposal to approve and adopt in full the Amended
and Restated Articles of Incorporation attached hereto as Exhibit
A and marked to show each proposed change to the Articles of
Incorporation currently in effect. You should make reference to
Exhibit A when reading through the following description of the
proposed amendments to the Article of Incorporation.
BACKGROUND
The Company, which was formerly known as B+H Maritime
Carriers Ltd. ("BHM"), was originally designed to be a self-
liquidating vessel-owning holding company of limited duration
with limited purpose. On December 4, 1996, BHM disposed of its
assets and ceased operations. Following a change of control in
October 1997, the Company was renamed "Excel Maritime Carriers
Ltd.," and resumed business as an owner and operator of vessels.
However, the Company's Articles of Incorporation remain from the
BHM period. In the view of the Board, these provisions do not
suit a dynamic vessel owner and operator that intends to increase
the size of its fleet. Accordingly, the Board proposes that the
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Articles of Incorporation of the Company be comprehensively
revised to fit the Company's current operations and to
incorporate certain anti-takeover devices to protect the Company
from hostile or unsolicited attempts at changes of control.
Among the changes which the Board has proposed are an
expansion of the purposes for which the Company may be engaged,
inclusion of certain anti-takeover devices including a
recapitalization of the Company's share capital to protect the
voting control of the current shareholders, and a general
revision of the text of the Articles to conform its provisions to
those of other publicly traded companies. The share
recapitalization, which is described below under "Article FIFTH,
Capitalization, (1) Authorized Amount," is very significant
because it establishes a class of super-voting common stock. You
are urged to read this section especially carefully.
In connection with the proposed Amended and Restated
Articles of Incorporation, the Board is considering revisions to
the By-laws of the Company provided approval of the shareholders
is given to amend Section 9.07 of the By-laws, as more fully
described in Proposal Two, below.
DISCUSSION
The following discusses each of the material revisions to the
Articles of Incorporation which are proposed:
- -- ARTICLE THIRD. CORPORATE PURPOSES.
The current text of Article THIRD, as amended June 26,
1996, limits the Company's purposes. In the Board's view, the
standard Liberian omnibus corporate purposes provision is more
appropriate to a vessel owner and operator that needs flexibility
to adapt to changing market conditions. The proposed provision
would enable the Company to pursue any activity permissible under
Liberian law. While the Board has no current plans to pursue
activities outside of shipping, the proposed Article THIRD would
permit the Company to pursue such activities.
- -- ARTICLE FIFTH. CAPITALIZATION.
1) AUTHORIZED AMOUNT. Currently, the Company has
authorized 30,000,000 Common Shares and 5,000,000 preferred
shares. The Board proposes the adoption of the amended text to
redesignate the Company's existing Common Shares (hereinafter
referred to as "Class A Shares") and to authorize a new super-
voting class of common shares (hereinafter referred to as "Class
B Shares"). The Class A and Class B Shares will vote together as
a single class on all matters that require shareholder consent,
including the election of Directors. Each Class B Share will be
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entitled to 1,000 votes, while each Class A Share will continue
to be entitled to one vote.
The purpose of this proposed recapitalization is to
enable the Company to expand its operations through the
acquisition of additional assets in the future in exchange for
Class A Shares without significantly diluting the voting control
of the present shareholders.
The proposed amended and restated Article FIFTH (1) is
as follows:
"AUTHORISED AMOUNT. The aggregate number of shares
which the Corporation shall have authority to issue
is 55,000,000 of which (a) 49,000,000 shares shall
be common shares par value $.01 per share,
(hereinafter referred to as "Class A Shares"), to
be issued in registered form, (b) 1,000,000 shares
shall be Class B common shares, par value $.01 per
share (hereinafter referred to as "Class B
Shares"), to be issued in registered form and
(c) 5,000,000 shares shall be shares of Preferred
Stock, par value $.01 per share, to be issued in
registered form and in series (the "Preferred
Stock"). The holders of the Class A Shares shall
be entitled to one vote per share on each matter
requiring the approval of the holders of common
shares of the Corporation, and the holders of Class
B Shares shall be entitled to 1,000 votes per share
on each matter requiring the approval of the
holders of common shares of the Corporation whether
pursuant to these Articles of Incorporation, the
Corporation's by-laws, the Business Corporation Act
or otherwise. The holders of the Class A Shares
and the Class B Shares shall vote as a single class
on all such matters. In addition, the Board of
Directors shall have the fullest authority
permitted by law to provide by resolution for any
voting powers, designations, preferences and
relative, participating, optional or other rights
of, and any qualifications, limitations or
restrictions on, the Preferred Stock as a class or
any series of the Preferred Stock. Such
resolutions shall be filed with the Minister of
Foreign Affairs in accordance with Section 5.1(5)
of the Business Corporation Act."
If Proposal One is approved, following the Meeting, the
Board intends to declare a distribution of one Class B Share by
way of a dividend for every hundred Class A Shares held by each
shareholder. No fractional Class B Shares will be distributed
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(the "Special Distribution"). Under the rules of the AMEX, the
record date for determining those shareholders entitled to
receive Class B Shares must be no earlier than ten days from the
declaration of the dividend. Accordingly, the earliest possible
record date for determining shareholders entitled to receive
Class B Shares in the Special Distribution will be September 10,
1999.
The Company currently anticipates purchasing four
vessels in a series of separate transactions in exchange for an
aggregate of 4,924,347 Common Shares. The sellers of those four
vessels will be entitled to receive Class B Shares in the Special
Distribution. Thus, should this Proposal be approved, a total of
114,961 Class B Shares, based on 11,496,153 outstanding Common
Shares, will be issued.
Many public companies acquire new assets through the
issuance of shares. The Board believes that the Company may be
able to acquire additional vessels in exchange for shares issued
by the Company. By distributing the Class B Shares, the Company
will be free to issue Class A Shares in exchange for assets
without significantly diluting the present shareholders' voting
power in the Company. For every one hundred common shares you
hold, you will have one hundred Class A Shares and one Class B
Share after the Special Distribution. Assuming that you do not
dispose of your Class B Shares, the combination of the voting
rights of your Class A and Class B Shares will equal the voting
rights of the Common Shares that you presently hold.
The Class B Shares, in the aggregate, will have voting
power ten times that of the Class A Shares, in the aggregate.
Accordingly, the holders of the Class B Shares will control the
vote of the common shares on all matters, as the Class A Shares
and the Class B Shares will vote together as a single class on
all matters which require the approval of the common shareholders
of the Company.
SPECIAL CONSIDERATION: The proposed issuance of the Class B
Shares may change the way in which you will be able to transfer
your holdings in the Company. The Common Shares of the Company
are currently listed on the AMEX, and as Class A Shares, they
will continue to be listed. However, the Company will not apply
to have the Class B Shares listed on the AMEX. As only 114,961
Class B Shares are expected to be issued in the Special
Distribution, the Class B Shares are not expected to have a
liquid trading market. Accordingly, that portion of the value of
the current Common Shares which will be represented by the Class
B Shares will not be as easily transferable as the Common Shares
are today. Subject to restrictions applicable to resales by
affiliates, however, the Class B Shares will not be subject to
restrictions on transfer under the U.S. Securities Act of 1933,
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as amended (the "Act"), and the Company intends to register them
under Section 12(g) of the Securities Exchange Act of 1934. Due
to their relatively small number and illiquidity, the Board of
Directors does not anticipate that the Class B Shares will
represent a very significant portion of the value of your present
Common Shares. If Proposal One is approved, an additional
885,039 Class B Shares will be available for issuance by the
Board.
The Board also seeks to authorize an additional nineteen
million Class A Shares for issuance by the Company. The Board
believes that the number of shares which the Company is currently
authorized to issue may be insufficient to meet the potential
need for issuance of common shares in exchange for assets and for
other purposes as the Board shall determine. Once authorized,
shares of the Company may be issued by action of the Board of
Directors pursuant to Article III of the By-laws of the Company.
Further issuances of common shares will dilute the percentage
equity interest of the pre-issuance shareholders, and further
issuances of Class B Shares could dilute their voting interest.
The Board has no present plans to issue additional Class B
Shares.
2) NO PREEMPTIVE RIGHTS. Article FIFTH (2) of the
Company's Articles of Incorporation currently states that there
are no preemptive rights with respect to the issuance of
additional shares. The Board of Directors proposes the adoption
of the proposed restatement of the restrictions currently set
forth in this section. The Board of Directors believes the
proposed text is more appropriately worded for a publicly-traded
corporation than the current text.
3) NO CUMULATIVE VOTING. The Board of Directors
proposes the adoption of the proposed text as separate provision
to replace and expand upon the current restriction against
cumulative voting which is presently within in Article SIXTH
(2)(i). Cumulative voting is a device by which shareholders who
do not control a majority of the shares entitled to vote may
nevertheless elect some number of Directors. The Board believes
cumulative voting could allow unsolicited bidders for control of
the Company to gain unwarranted representation on the Board. In
the Board's view, the explicit terms of the proposed text, which
is set out as its own section of this Article, should be adopted
in place of the current one-sentence restriction.
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- -- ARTICLE SIXTH. PROVISIONS FOR THE REGULATION OF THE AFFAIRS
OF THE CORPORATION.
1) DEFINITIONS.
"FUNDAMENTAL TRANSACTION." The Board of Directors
proposes limiting the definition of Fundamental Transactions with
regard to the Articles of Incorporation to include only the
amendment of Articles FIFTH, SIXTH and EIGHTH -- covering the
classification of the Board, issuance of rights and other
interests, no preemptive rights or cumulative voting, and
Fundamental Transactions themselves. The definition of
Fundamental Transactions currently requires the consent of two-
thirds of the outstanding shares to amend ANY provision of the
Articles of Incorporation. The Board of Directors believes the
need for a super-majority to change, for example, the Company's
name or to increase its authorized shares is unduly restrictive.
Amendment of the remainder of the Articles of Incorporation will
continue to require the affirmative vote of the holders of Common
Shares representing a majority of the votes present and entitled
to vote at a shareholder meeting, pursuant to Liberian law.
"SHAREHOLDER" or "SHAREHOLDERS." The Board of Directors
proposes revising this definition in accordance with the
amendment to Article FIFTH regarding the authorization and
issuance of the Class B Shares, as set forth above.
2) BOARD OF DIRECTORS.
(i) NUMBER; CLASSIFICATION. The term of four of the
five sitting Directors of the Company expires at the Annual
Meeting. The Board of Directors proposes that the Directors of
the Company be redesignated into Classes A and B, with both
classes to be elected at the Meeting. Class A shall serve until
2000, and Class B shall serve until 2001. This redesignation
reestablishes numerical parity between the two classes of the
currently configured Board in accordance with Liberian law.
Currently, there is only one Class B Director.
The Board further proposes the incorporation of the
ability to add a third class of Directors, should the Board wish
to add such a class in the future. These revisions could
discourage potential unsolicited bidders by facilitating a
further staggering of the election of Directors. Were an
unsolicited bidder to take control a majority of the votes of the
common shares of the Company, that controlling shareholder would
not be able to replace the Directors until their terms in office
had run. Should the Company establish a third class of
Directors, Directors would serve for a period of three years and
no more that approximately one-third of the sitting Directors
could be replaced in any given year. The Board of Directors
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believes a staggered Board of Directors to be a standard device
regularly employed by publicly traded companies to help protect
against hostile or unsolicited bids.
(ii) QUALIFICATIONS. The Board of Directors proposes
that this section be deleted in its entirety. The process by
which Director candidates are nominated is set forth in Section
8.10 of the By-laws, as amended. The Board of Directors does not
believe that there is any compelling reason to include this
section in the Articles of Incorporation.
- -- ARTICLE SEVENTH. RESTRICTIONS UPON INDEBTEDNESS OF THE
CORPORATION.
The Board of Directors proposes the remaining portion of
this Article, which portion contains definitions that are no
longer used in any text, be deleted. The operative restrictions
which had been incorporated in the former Section (2) of this
Article were deleted on June 26, 1996.
- -- ARTICLE EIGHTH. ISSUANCE OF RIGHTS, WARRANTS AND OPTIONS.
The Board of Directors proposes the adoption of this
provision which would explicitly enable the Board to issue and
create rights warrants and options to purchase shares of the
Company. This provision, if adopted, would provide the Board
with standard flexibility in relation to most other publicly
traded companies. Note, however, that further share issuances
upon the exercise of rights, warrants or options issued by the
Board may result in dilution to pre-issuance shareholders.
Pursuant to Article SIXTH of the current Articles of
Incorporation, the affirmative vote of the holders of two-thirds
of the shares of the Company entitled to vote is required to
approve the Amended and Restated Articles of Incorporation. You
are urged to indicate the way you wish to vote on the matter in
the space provided. The form of proxy provides a space for you
to abstain from voting on the proposal to approve the Amended and
Restated Articles of Incorporation if you choose to do so, which
will have the same effect as voting against the proposal. If no
space is marked, your shares will be voted by the proxies named
therein FOR the approval of the Amended and Restated Articles of
Incorporation.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL ONE. PROXIES RECEIVED BY THE BOARD OF DIRECTORS WILL BE
VOTED IN FAVOR OF SUCH APPROVAL OF THE AMENDED AND RESTATED
ARTICLES OF INCORPORATION UNLESS A CONTRARY VOTE IS INDICATED.
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PROPOSAL TWO - APPROVAL OF THE AMENDED SECTION 9.07 OF THE BY-
LAWS OF THE COMPANY, AS AMENDED
The Board of Directors hereby submits to the Company's
shareholders a proposal to amend Section 9.07 of the By-laws of
the Company so that it is less restrictive with regard to the
amendment of the By-laws generally. This proposal is made in
anticipation of Board approval of a comprehensive revision of the
By-laws, currently being considered by the Board, which is
designed to work in conjunction with the proposed Amended and
Restated Articles of Incorporation.
Section 9.07 would be revised to read as follows, marked
to show changes to the present text:
"SECTION 9.07. AMENDMENT OF BY-LAWS
Any provision of these by-laws other than this
Section 9.07 may be altered, amended, supplemented
or repealed, or new by-laws may be adopted, by vote
in person or by proxy of two-thirds of the entire
board of directors at any regular meeting of the
board of directors or at any special meeting of the
board of directors if notice of such alteration,
amendment, repeal or adoption of new by-laws be
contained in the notice of such special meeting, or
by the affirmative vote of the holders of shares
representing a majority of the total number of
votes which may be cast at any meeting of
shareholders .
This section 9.07 may only be amended pursuant to
Article SIXTH of the company's articles of
incorporation."
The Board believes that it should have the ability to
amend Sections 2.03 ("Special Meetings"), 2.11 ("Amendments to
Management Agreement"), 3.02 ("Directors: Number and Term of
Office"), 3.03 ("Directors: Vacancies") and 3.10 ("Audit
Committee of the Board"), which is restricted by the current
Section 9.07. The restrictions in Section 9.07 are neither
necessary nor are they appropriate to the structure of a publicly
traded company. Should this proposal be approved, Section 9.07
of the By-laws and all references thereto will be redesignated
"Section 9.04" upon implementation of the comprehensive revision
of the By-laws presently being considered by the Board.
Pursuant to Article SIXTH of the current Articles of
Incorporation, the affirmative vote of the holders of two-thirds
of the shares of the Company entitled to vote is required to
approve the Amended Section 9.07 of the By-laws. You are urged
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to indicate the way you wish to vote on the matter in the space
provided. The form of proxy provides a space for you to abstain
from voting on the proposal to approve the Amended Section 9.07
of the By-laws if you choose to do so, which will have the same
effect as voting against the proposal. If no space is marked,
your shares will be voted by the proxies named therein FOR the
approval of the Amended Section 9.07 of the By-laws.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL TWO. PROXIES RECEIVED BY THE BOARD OF DIRECTORS WILL BE
VOTED IN FAVOR OF SUCH APPROVAL OF THE AMENDED SECTION 9.07 OF
THE BY-LAWS UNLESS A CONTRARY VOTE IS INDICATED.
PROPOSAL THREE - APPROVAL OF SHARE ISSUANCE TO VILPA
The Board of Directors hereby submits to the Company's
shareholders a proposal to approve the issuance of 1,860,063
Common Shares to Vilpa Investments S.A. ("Vilpa"), an affiliate
of the Company and the holder of record of 3,587,069 Common
Shares, constituting 54.6% of the outstanding Common Shares, in
exchange for 312 shares of the holding company which owns the
vessel ALMAR. The Company will purchase the remaining issued and
outstanding capital stock of the holding company which owns the
vessel ALMAR from two separate sellers.
The shares are to be issued to Vilpa at a price per
share of $1.15. The Board believes the acquisition of the ALMAR
in consideration for Common Shares of the Company to be a
fundamental step in the formation of a substantial trading fleet.
The Board further believes the price of the ALMAR to be fair in
all respects to the Company.
The Company will make application to have the common
shares to be issued in this transaction listed on the AMEX.
This proposal is therefore made pursuant to Section 712
of the American Stock Exchange Guide, whereby approval of
shareholders is a prerequisite to approval by the AMEX of
applications to list additional shares which are to be issued as
consideration for an acquisition of the stock or assets of
another company if any individual director, officer or
substantial shareholder has a 5% or greater interest, directly or
indirectly, in the company or assets to be acquired or in the
consideration to be paid in the transaction and the present or
potential issuance of common stock could result in an increase in
outstanding common shares of 5% or more.
Vilpa has a 62.4% interest in the company whose shares
are to be acquired, and the common share issuance will result in
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an increase in outstanding Common Shares of the Company of
greater than 5%.
If Proposal Three is approved, the Company expects to
issue the additional Common Shares to Vilpa prior to the record
date for the Special Distribution described in Proposal One.
Accordingly, these additional Common Shares will be taken into
account in determining the number of Class B Shares that Vilpa
will be entitled to receive in the Special Distribution.
The affirmative vote of the holders of shares
representing a majority of the votes present and entitled to vote
at the Meeting is required to approve the Share Issuance to
Vilpa. You are urged to indicate the way you wish to vote on the
matter in the space provided. The form of proxy provides a space
for you to abstain from voting on the proposal to approve the
Share Issuance to Vilpa if you choose to do so. However,
abstention will not count towards determining whether this
proposal will be adopted. If no space is marked, your shares
will be voted by the proxies named therein FOR the approval of
the Share Issuance to Vilpa.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL THREE. PROXIES RECEIVED BY THE BOARD OF DIRECTORS WILL
BE VOTED IN FAVOR OF SUCH PROPOSED SHARE ISSUANCE TO VILPA UNLESS
A CONTRARY VOTE IS INDICATED.
PROPOSAL FOUR - ELECTION OF DIRECTORS
The Company currently has five Directors, four of whom
are Class A Directors whose terms expire at the Meeting. The
sole remaining Class B Director, Mr. Agadakis, shall continue to
serve his term which expires at the annual meeting of
shareholders in 2000.
To reestablish parity in number between the two classes
of Director, the Directors to be elected at this Meeting shall be
divided into two classes as provided in Article SIXTH (2) of the
Amended and Restated Articles of Incorporation and contingent
upon the approval of Proposal One.
The Board shall be divided into two classes, each
consisting of at least three Directors. The two classes of
Directors shall be comprised as follows:
-- Class A shall be comprised of directors who shall
serve until the annual meeting of Shareholders in
2000 and the qualification of their successors.
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-- Class B shall be comprised of directors who shall
serve until the annual meeting of Shareholders in
2001 and the qualification of their successors.
Set forth below is information concerning each nominee
for Director and the class for which each is nominated. Each
nominee, except for Mr. Baltatzis, is currently a Director of the
Company.
The affirmative vote of the holders of shares
representing a majority of the votes present and entitled to vote
at the Meeting is required to elect Directors. You are urged to
indicate the way you wish to vote on the matter in the space
provided. The form of proxy provides a space for you to withhold
you vote for each of the nominees for the Board of Directors if
you choose to do so. However, abstention will not count towards
determining whether this proposal will be adopted. If no space
is marked, your shares will be voted by the proxies named therein
FOR the election of Directors as set forth below.
It is expected that each of these nominees will be able
to serve, but if it develops that any of the nominees are
unavailable, the persons named in the accompanying proxy will
vote for the election of such substitute nominee or nominees as
the current Board of Directors may recommend.
NOMINEES FOR ELECTION TO THE COMPANY'S BOARD OF DIRECTORS
Information concerning the nominees for Directors of the
Company is set forth below:
NAME AGE NOMINATED FOR POSITION
- --------------------- ---- ----------------------
Gabriel Panayotides 43 Class B Director
Theodore Baltatzis 41 Class B Director
Loukis Papaphilippou 62 Class A Director
Gregory J. Timagenis 53 Class A Director
Trevor J. Williams 54 Class A Director
NOMINEES FOR CLASS A DIRECTOR
LOUKIS PAPAPHILIPPOU has been a Director of the Company
since October 1997 and has been the chief legal executive of L.
Papaphilippou & Co., a law firm in Cyprus since July 1963. He
has been Vice President of Minerva Insurance since January 1978
and President of Antenna TV Ltd. and Antenna FM Ltd., two leading
Cypriot broadcasting networks, since December 1989 and December
1995, respectively.
GREGORY J. TIMAGENIS has been a Director of the Company
since August 1998 and is a member of the Law Office of Gr. J.
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Timagenis, the Company's Greek counsel. He holds a law degree
and a Masters degree in economics and political sciences from the
University of Athens. He was also awarded an L.L.M. and a Ph.D.
by the University of London. He was admitted to the Piraeus Bar
Association in 1971, and, since 1981, he has been qualified to
practice before the Supreme Court of Greece. He has taught legal
courses at the University of Athens and the Greek Naval Academy
in addition to having written several books and articles.
TREVOR J. WILLIAMS has been a Director of the Company
since November 1988 and has been principally engaged as President
and Director of Consolidated Services Limited, a Bermuda-based
firm providing management services to the shipping industry since
1985.
NOMINEES FOR CLASS B DIRECTOR
GABRIEL PANAYOTIDES has been President, Chief Executive
Officer and a Director of the Company since October 1997 and
Chairman since February 1998. He has participated in the
ownership and management of ocean going vessels since 1978 and
has been head of operations of Maryville Maritime Inc since July
1983. He is also a member of the Greek Committee of Bureau
Veritas, an international classification society. He holds a
Bachelors degree from the Piraeus University of Economics.
THEODORE BALTATZIS has been Technical Manager of
Maryville Maritime Inc. since 1996. He was also Fleet Manager of
Maryville from 1994 until he assumed his current position. He
has been involved with the shipping industry since 1985 and has
held engineering positions at three other shipping companies. He
holds a Master of Science degree in Marine Engineering from the
University of Newcastle-upon-Tyne and a Master of Business
Administration degree in finance from the University of Surrey.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL FOUR. PROXIES RECEIVED BY THE BOARD OF DIRECTORS WILL
BE VOTED IN FAVOR OF ALL SUCH PROPOSED DIRECTORS UNLESS A
CONTRARY VOTE IS INDICATED.
PROPOSAL FIVE - RATIFICATION AND APPROVAL OF APPOINTMENT OF
INDEPENDENT AUDITORS
The Board of Directors hereby submits for ratification
and approval at the Meeting the selection of Arthur Andersen - S.
Pantzopoulos S.A. as the Company's independent auditors for the
fiscal year 1999. The approval of this proposal will require the
affirmative vote of the holders of shares representing a majority
of the votes present and entitled to vote at the Meeting.
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Arthur Andersen - S. Pantzopoulos S.A. has advised the
Company that the firm does not have any direct or indirect
financial interest in the Company, nor has such firm had any such
interest in connection with the Company during the past three
fiscal years other than in its capacity as the Company's
independent auditors.
All services rendered by the independent auditors are
subject to review by the Audit Committee of the Board of
Directors.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL FIVE. PROXIES RECEIVED BY THE BOARD OF DIRECTORS WILL
BE VOTED IN FAVOR OF SUCH RATIFICATION AND APPROVAL UNLESS A
CONTRARY VOTE IS INDICATED.
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OTHER INFORMATION
The Board of Directors knows of no business which will
be presented for consideration at the Annual Meeting other than
that stated in the Notice of Meeting. Should any additional
matter come before the Annual Meeting, it is intended that
proxies in the accompanying form will be voted in accordance with
the judgment of the person or persons named in the proxy.
By Order of the Directors
Georgina E. Sousa
SECRETARY
August 18, 1999
Hamilton, Bermuda
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EXHIBIT A
EXCEL MARITIME CARRIERS LTD.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
PURSUANT TO THE BUSINESS CORPORATION ACT
The undersigned, for the purpose of forming a corporation
pursuant to the provisions of the Liberian Business Corporation
Act, does hereby make, subscribe, acknowledge and file in the
Office of the Minister of Foreign Affairs this instrument for
that purpose, as follows :
FIRST. CORPORATE NAME. The name of the Corporation
(hereinafter called the "Corporation") is EXCEL MARITIME
CARRIERS LTD.
SECOND. DURATION. The duration of the Corporation shall be
perpetual.
THIRD. CORPORATE PURPOSES. The purpose of the Corporation is
to engage in any lawful act or activity for which
corporations may now or hereafter be organised under the
Liberian Business Corporation Act and, without limiting
the generality of the foregoing:
1) To act in any and all parts of the world in any
capacity whatsoever as principal, agent, broker, or
consultant or representative, general or special,
for any person or public authority.
2) To enter into, make and perform contracts of every
kind and description with any person, firm,
association, corporation, municipality, county,
state, body politic, or government or colony or any
dependency thereof.
3) To appoint or act as an agent, broker, or
representative, general or special, in respect of
any or all of the powers expressed herein or
implied hereby; to appoint agents, brokers or
representatives.
4) To carry on its business, to have one or more
offices, and to exercise its powers in foreign
countries, subject to the laws of the particular
country.
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5) To borrow or raise money and contract debts, when
necessary for the transaction of its business or
for the exercise of its corporate rights,
privileges or franchise or for any other lawful
purpose of its incorporation; to draw, make accept,
endorse, execute and issue promissory notes, bills
of exchange, bonds, debentures, and other
instruments and evidences of indebtedness either
secured by mortgage, pledge, deed of trust, or
otherwise, or unsecured.
6) To give a guarantee although not in furtherance of
its corporate purposes when authorised at a meeting
of shareholders by a vote of holders of shares
representing at least a majority of the votes
present and entitled to vote or by the written
consent of all such shareholders; and, if
authorised by a like vote, or a like written
consent, to secure such guarantee by a mortgage or
pledge of, or the creation of a security interest
in, all or any part of its property or any interest
therein.
7) To purchase, receive, take by grant, gift, device,
bequest, or otherwise, lease or otherwise acquire,
own, hold, improve, employ, use and otherwise deal
in and with, real or personal property, or any
interest therein, wherever situated.
8) To sell, convey. lease, exchange, transfer or
otherwise dispose of, or mortgage or pledge, or
create a security interest in, all or any of its
property, or any interest therein, wherever
situated.
9) To purchase or otherwise acquire, underwrite, hold,
pledge, turn to account in any manner, sell,
distribute, or otherwise dispose of and generally
to deal in, bonds, debentures, notes, evidences of
indebtedness, shares of stock, warrants, rights,
certificates, receipts or any other instruments or
interests in the nature of securities created or
issued by any person, partnership, firm,
corporation, company, association, or other
business organisations, foreign or domestic, or by
any domestic or foreign governmental, municipal or
other public authority, and exercise as holder or
owner of any such securities all rights, powers and
privileges in respect thereof; to do any and all
acts and things for the preservation, protection,
improvement and enhancement in value in any such
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securities and to aid by loan, subsidy, guaranty or
otherwise those issuing, creating or responsible
for any such securities; to acquire or become
interested in any such securities by original
subscription, underwriting, loan participation in
syndicates or otherwise, and irrespective of
whether such securities be fully paid or subject to
future payments; to make payments thereon as called
for or in advance of calls or otherwise and to
underwrite or subscribe for the same conditionally
or otherwise and either with a view to resale or
investment or for any other lawful purpose; and in
connection therewith or otherwise to acquire and
hold membership in or otherwise secure trading
privileges on any board of trade, exchange or other
similar institution where any securities are dealt
in and to comply with the rules of any such
institution; as used herein the term "securities"
shall include bonds, debentures, notes, evidences
of indebtedness shares of stock, warrants, options,
rights, certificates, receipts or any other
instruments or interests in the nature of
securities of any kind whatsoever which a
corporation organised under the Liberian Business
Corporation Act is legally permitted to acquire or
deal in, by whomsoever issued or created; the term
"person" shall include any person, partnership,
firm, corporation, company, association or other
business organisation, domestic or foreign; and the
term "public authority" shall include any domestic
or foreign governmental, municipal or other public
authority.
10) To purchase or otherwise acquire, hold, pledge,
turn to account in any manner, import, export,
sell, distribute or otherwise dispose of, and
generally to deal in, commodities and products
(including any future interest therein) and
merchandise, articles of commerce, materials,
personal property and real property of every kind,
character and description whatsoever, and
wheresoever situated, and any interest therein, at
any place or places in Liberia or abroad, either as
principal or as a factor or broker, or as
commercial, sales, business or financial agent or
representative, general or special, or, to the
extent permitted by the laws of Liberia, in any
other capacity whatsoever for the account of any
domestic or foreign person or public authority, and
in connection therewith or otherwise to acquire
trading privileges on any board of trade, exchange
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or other similar institution where any such
products or commodities or personal or real
property are dealt in, and to comply with the rules
of any such institution.
11) To engage in any mercantile, manufacturing or
trading business of any kind or character
whatsoever, within or without Liberia, and to do
all things incidental to such business.
12) To render advisory, investigatory, supervisory,
managerial or other like services, permitted to
corporations, in connection with the promotion,
organisation, reorganisation, recapitalisation,
liquidation, consolidation or merger of any person
or in connection with the issuance, underwriting,
sale or distribution of any securities issued in
connection therewith or incident thereto; and to
render general investment advisory or financial
advisory or managerial services to any person or
public authority.
13) To extent suitable or necessary to carry out any of
the purposes hereinbefore or hereinafter set forth,
but only insofar as the same may be permitted to be
done by a corporation organised under the Liberian
Business Corporation Act, to buy, sell and deal in
foreign exchange.
14) To invest its uninvested funds and/or surplus from
time to time to such extent as the Corporation may
deem advisable in securities or in call and/or in
time loans or otherwise, upon such security, if any
as the Board of Directors may determine, but the
Corporation shall not engage in the banking
business or exercise banking powers, and nothing in
this Certificate contained shall be deemed to
authorise it to do so.
15) To do any and all the acts and things herein set
forth, as principal, factor, agent, contractor, or
otherwise, either alone or in company with others;
and in general to carry on any other similar
business which is incidental or conducive or
convenient or proper to the attainment of the
foregoing purposes or any of them and which is not
forbidden by law; and to exercise any and all
powers which now or hereafter may be lawful for the
Corporation to exercise under the laws of Liberia;
to establish and maintain offices and agencies
within and anywhere outside of Liberia; and to
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exercise any or all of its corporate powers and
rights in Liberia and in any foreign countries.
16) To have and exercise all powers necessary or
convenient to effect any and all of the purposes
for which the Corporation is formed including the
powers listed in Section 2.2 of the Liberian
Business Corporation Act.
FOURTH. REGISTERED ADDRESS AND AGENT. The registered address of
the Corporation in the Republic of Liberia shall be 80
Broad Street, Monrovia, Liberia. The name of the
registered agent of the Corporation at such address
shall be The International Trust Company of Liberia or
whoever else shall be appointed in that respect by the
Government of Liberia.
FIFTH. CAPITALIZATION.
1) AUTHORISED AMOUNT. The aggregate number of shares
which the Corporation shall have authority to issue
is 55,000,000 of which (a) 49,000,000 shares shall
be common shares par value $.01 per share,
(hereinafter referred to as "Class A Shares"), to
be issued in registered form, (b) 1,000,000 shares
shall be Class B common shares, par value $.01 per
share (hereinafter referred to as "Class B
Shares"), to be issued in registered form and
(c) 5,000,000 shares shall be shares of Preferred
Stock, par value $.01 per share, to be issued in
registered form and in series (the "Preferred
Stock"). The holders of the Class A Shares shall
be entitled to one vote per share on each matter
requiring the approval of the holders of common
shares of the Corporation, and the holders of Class
B Shares shall be entitled to 1,000 votes per share
on each matter requiring the approval of the
holders of common shares of the Corporation whether
pursuant to these Articles of Incorporation, the
Corporation's by-laws, the Business Corporation Act
or otherwise. The holders of the Class A Shares
and the Class B Shares shall vote as a single class
on all such matters. In addition, the Board of
Directors shall have the fullest authority
permitted by law to provide by resolution for any
voting powers, designations, preferences and
relative, participating, optional or other rights
of, and any qualifications, limitations or
restrictions on, the Preferred Stock as a class or
any series of the Preferred Stock. Such
resolutions shall be filed with the Minister of
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Foreign Affairs in accordance with Section 5.1(5)
of the Business Corporation Act.
2) NO PREEMPTIVE RIGHTS. All preemptive rights of
shareholders are hereby denied, so that no shares
of capital stock of the Corporation of any class
whether now or hereafter authorised and no other
security of the Corporation shall carry with it and
no holder or owner of any share or shares of
capital stock of the Corporation of any class
whether now or hereafter authorised or of any other
security of the Corporation shall have any
preferential or preemptive right to acquire
additional shares of capital stock of the
Corporation of any class whether now or hereafter
authorised or of any other security of the
Corporation.
3) NO CUMULATIVE VOTING. All cumulative voting rights
are hereby denied, so that none of the capital
stock of the Corporation of any class whether now
or hereafter authorised or of any other security of
the Corporation shall carry with it and no holder
or owner of any share or shares of capital stock of
the Corporation of any class whether now or
hereafter authorised or of any other security of
the Corporation shall have any right to cumulative
voting in the election of directors or for any
other purpose.
SIXTH. PROVISIONS FOR THE REGULATION OF THE AFFAIRS OF THE
CORPORATION.
1) DEFINITIONS. For the purpose of this Article Sixth
the following terms shall have the meaning set
forth below:
"FUNDAMENTAL TRANSACTION." Shall mean any
amendment of Articles Fifth, Sixth or Eighth of
these Articles of Incorporation, or the adoption,
amendment or repeal of Section 9.04 of the By-laws
of the Corporation as amended, or the merger,
consolidation or division of the Corporation, if
any such transaction requires the approval of the
Shareholders under the Business Corporation Act.
"SHAREHOLDER" or "SHAREHOLDERS." Shall mean a
holder or holders of shares of common shares of the
Corporation, whether Class A Shares or Class B
Shares, whether such shares are held as fiduciary,
receiver, pledgor, pledgee or otherwise.
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2) BOARD OF DIRECTORS.
(i) NUMBER; CLASSIFICATION. The Board of
Directors of the Corporation shall consist of
such number of Directors, not less than
three, as shall be determined from time to
time by the Board of Directors as provided in
the By-laws or by vote of the Shareholders.
Shareholders may only change the number of
directors or quorum requirements for meetings
of the Board of Directors by the affirmative
vote of the holders of shares representing at
least two-thirds of the total number of votes
which may be cast at any meeting of
Shareholders as calculated pursuant to
Article FIFTH hereof The Board shall be
divided into two classes, each consisting of
at least three Directors. The two classes of
Directors shall be comprised as follows:
Class A shall be comprised of directors who
shall serve until the annual meeting of
Shareholders in 2000 and the qualification of
their successors.
Class B shall be comprised of directors who
shall serve until the annual meeting of
Shareholders in 2001 and the qualification of
their successors.
At each annual meeting of the shareholders of
the Corporation, the successors of the class
of directors whose term expires at such
meeting shall be elected to hold office for a
term expiring as of the second succeeding
annual meeting. Should the Board of
Directors at any time determine, upon a two-
thirds vote, that a third class of directors
is necessary, the Board shall provide the
means for election of such third class
pursuant to Section 3.02 of the By-laws, as
amended, and the terms and provisions of the
Business Corporation Act.
(ii) REMOVAL OF DIRECTORS. Directors of the
Corporation may be removed with or without
cause by vote of the holders of shares
representing at least a majority of the votes
present and entitled to vote at a duly
constituted meeting of Shareholders. If the
Shareholders remove any Director, the vacancy
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shall be filled by vote of two-thirds of the
Directors then in office, although less than
a quorum may exist. No decrease or increase
in the size of the Board shall shorten or
otherwise affect the term of any incumbent
Director.
(iii) BY-LAWS. By-laws may be amended, repealed
or adopted by the Board of Directors in the
manner provided in the By-laws.
3) APPROVAL OF FUNDAMENTAL TRANSACTIONS. The
affirmative vote of the holders of shares
representing at least two-thirds of the total
number of votes which may be cast at any meeting of
Shareholders as calculated pursuant to Article
FIFTH hereof shall be required to authorise any
Fundamental Transaction.
SEVENTH. RESERVATION OF RIGHT TO AMEND. Subject to the
provisions of Article SIXTH hereof, the Corporation
reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation
in the manner now or hereafter described by the Business
Corporation Act, and all rights conferred upon
Shareholders herein are granted subject to this
reservation.
EIGHTH. ISSUANCE OF RIGHTS, WARRANTS AND OPTIONS. The
Corporation by action of its Board of Directors may
create and issue, from time to time, whether or not in
connection with the issuance and sale of any shares of
stock or other securities of the Corporation, rights,
warrants and options entitling the holders thereof to
purchase from the Corporation shares of any class or
classes of its capital stock or other securities or
property of the Corporation, at such times, in such
amounts, to such persons, for such consideration, if
any, and upon such other terms and conditions as the
Board of Directors may deem advisable.
NINTH. ORIGINAL INCORPORATOR. The name and mailing address of
each incorporator of these Articles of Incorporation and
the number of shares of stock subscribed by each
incorporator is:
NUMBER OF SHARES OF
NAME POST OFFICE ADDRESS COMMON STOCK SUBSCRIBED
B.B. Gowen 80 Broad Street One
Monrovia, Liberia
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TENTH. The existence of the Corporation shall begin upon the
filing of these Articles of Incorporation with the
Minister of Foreign Affairs as of the filing date stated
on these Articles.
IN WITNESS WHEREOF, I have made, subscribed and acknowledged this
instrument on the ...... day of ............, 199....
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
EXCEL MARITIME CARRIERS LTD.
Date: August 24, 1999 by /s/ Gabriel Panayotides
___________________________
Gabriel Panayotides
Chairman
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02545001.AB6
