33/2011 - Proposed amendments to the Company?s Statutev
In connection with current report no. 31/2011 of 20 May 2011 and proposed amendments to the Company’s Statute, The Management Board of Trakcja Polska Spółka Akcyjna, with its registered office in Warsaw (hereinafter: “Company”) is hereby announcing the current wording and proposed changes to the Company’s Statute. The proposed amendments to the Company’s Statute are as follows:
- amendment of article 1 of the Company’s Statute, whose current wording is as follows:
“Article 1.
The business name of the Company shall be: Trakcja Polska Spółka Akcyjna. The company can use an abbreviated business name: Trakcja Polska S.A. The Company can use a distinguishing graphic mark.”
content of article 1 after proposed amendment:
“Article 1.
The business name of the Company shall be: Trakcja-Tiltra Spółka Akcyjna. The Company can use an abbreviated business name: Trakcja-TiltraS.A. The Company can use a distinguishing graphic mark.”
- amendment of article 8.2 of the Company’s Statute, whose current wording is as follows:
“2. The Supervisory Board may call an Annual General Meeting if the Management Board fails to do this at the time specified in the applicable regulations or these Articles of Association.”
content of article 8.2 after proposed amendment:
“2. The Extraordinary General Meeting is convened by the Management Board either at its own initiative or at the request of the Supervisory Board or the Shareholders who represent at least 5% of the share capital”.
- amendment of article 8.3 of the Company’s Statute, whose current wording is as follows:
“3. Extraordinary General Meetings are called by the Management Board on its own initiative or on the request of the Supervisory Board or Shareholders holding at least 5 % of the share capital. Extraordinary General Meetings may also be called by the Supervisory Board or the Shareholders on the principles specified in the applicable regulations.”
content of article 8 .3 after proposed amendment:
“3. The General Meeting may be convened by the Supervisory Board or any of the Supervisory Board members, if:
1) the Management Board fails to convene an ordinary General Meeting within the required period;
2) despite the request referred to in Article 8.2, the Management Board fails to convene an Extraordinary General Meeting in accordance with Article 8.2.”
- amendment of article 9.1 of the Company’s Statute, whose current wording is as follows:
“1. The powers of the General Meeting of Shareholders, aside from other matters set forth
in applicable laws and this Charter, include adoption of resolutions in the following matters:
1) examination and approval of the Management Board’s report on the Company’s activities, and the financial statements for the past financial year as well as granting of the vote of discharge to the members of the Company’s bodies from the performance of their duties;
2) sale and lease of the enterprise or its organised part (concern) as well as establishment of a limited right in rem thereon; and
3) issue of convertible bonds or bonds carrying the right of first refusal”
content of article 9.1 after proposed amendment:
“1.The powers of the General Meeting include adoption of resolutions related to matters set forth in applicable laws and this Statute.”
- amendment of article 10 of the Company’s Statute, whose current wording is as follows:
“Article 10
The General Meeting shall be called by an announcement posted in Trakcja Polska S.A.’s official website at www.trakcja.com and in the manner specified for the provision of current information in accordance with the regulations on the public offering and the conditions for introducing financial instruments into an organised trading system and on listed companies.”
content of article 10 after proposed amendment:
“Article 10
The General Meeting shall be convened by way of public disclosure made in accordance the Commercial Companies Code and Public Offering Act.”
- amendment of article 11 of the Company’s Statute, whose current wording is as follows:
“Article 11
Unless the applicable laws or the provisions of this Charter provide otherwise, the resolutions of the General Meeting of Shareholders are adopted with absolute majority of votes case, save that the resolutions concerning redemption of shares shall be passed with the majority of ¾ (three fourths) of the votes cast.”
content of article 11 after proposed amendment:
“Article 11
The resolutions of the General Meeting shall be adopted by a majority of votes representing more than 2/3 (two thirds) of the votes cast or by a majority of votes representing a higher percentage of the votes cast if a more stringent qualified majority of the votes is required by the applicable provisions of law, for the following matters:
1) liquidation of the Company;
2) increase of the Company’s share capital, redemption of the shares and decrease of the Company’s share capital;
3) issuing of convertible bonds or any other securities granting their holder the right to vote;
4) granting of options giving the right to acquire the shares and/or other securities of the Company and determining of the conditions of the share options;
5) revocation of the pre-emptive rights to the Shareholders to acquire newly issued shares;
6) sale of the enterprise of the Company or an organized part thereof;
7) removal or suspension of the members of the Management Board or the members of the Supervisory Board;
8) merger of the Company with another company, division, transformation of the Company;
9) delisting of the Company;
10) amendment to the Statute.”
- amendment of article 12 of the Company’s Statute, whose current wording is as follows:
“Article 12
The General Meeting of Shareholders is opened by the Chairman or Vice-Chairman of the Supervisory Board and in the case of their absence – by another member of the Supervisory Board. In the case of absence of the members of the Supervisory Board, the General Meeting of Shareholders is opened by the President of the Management Board or the person appointed by the Management Board.”
content of article 12 after proposed amendment:
“Article 12
The General Meeting is opened by the Chairman or Vice-Chairman of the Supervisory Board and in the case of their absence – by another member of the Supervisory Board. In the case of absence of the members of the Supervisory Board, the General Meeting is opened by the President of the Management Board or the person appointed by the Management Board. In the case of absence of the President of the Management Board or the person appointed by the Management Board, the General Meeting is opened by a notary public delegated to take minutes from the General Meeting.”
- amendment of article 13 of the Company’s Statute, whose current wording is as follows:
“Article 13
1. The Supervisory Board shall be composed of five members.
2. The Supervisory Board shall consist of the Chairman, Vice-Chairman and other
members.”
content of article 13 after proposed amendment:
“Article 13
1. The Supervisory Board shall be composed of 7 (seven) members.
2. The Supervisory Board shall consist of the Chairman, two Vice-Chairmen and other members. Chairman and two Vice-Chairmen, subject to Article 13.9 below, should be elected by the Supervisory Board.
3. The members of the Supervisory Board are appointed and dismissed by the General Meeting, subject to Article 13.4 below.
4. COMSA is entitled to appoint and dismiss 4 (four) members of the Supervisory Board by written notice sent to the Company. In the event that the number of the members of the Supervisory Board is lower or higher than 7 (seven) due to the changes to Article 13.1 or applicable provisions of law, COMSA should be entitled to appoint and dismiss such number of the Supervisory Board members that is equal to 50% of the total number of Supervisory Board members plus 1 (one) member (rounded down to the closest integer).
5. One member of the Supervisory Board appointed by the General Meeting shall meet the following independency criteria
1) not to be a member of the Management Board of the Company or an associated company, and not having been in such a position for the previous five years;
2) not to be an employee of the Company or an associated company, and not having been in such a position for the previous three years;
3) not to receive, or have received, significant additional remuneration from the Company or an associated company apart from a fee received as a Supervisory Board member;
4) not to be or to represent in any way the controlling shareholder(s) or any shareholder holding at least 5% of all votes at the General Meeting;
5) not to have, or have had within the last year, a significant business relationship with the Company or an associated company, either directly or as a partner, shareholder, director or senior employee of a body having such a relationship;
6) not to be, or have been within the last three years, partner or employee of the present or former external auditor of the Company or an associated company;
7) not to be an executive or managing director in another company in which a member of the Management Board of the Company is a non-executive or supervisory director, and not to have other significant links with members of the Management Board of the Company through involvement in other companies or bodies;
8) not to have served on the Supervisory Board for more than three terms;
9) not to be a close family member of an executive or managing director, or of persons in the situations referred to in points (1) to (8).
6. The Supervisory Board which, for any reasons, does not include an independent Supervisory Board member, shall have the power to adopt valid resolutions.
7. In the event that COMSA fails to appoint the Supervisory Board member(s) within 21 (twenty one) days from the date of the expiry of the mandate of the Supervisory Board member(s) appointed by COMSA, such Supervisory Board member(s) shall be appointed and dismissed by the General Meeting until COMSA exercises its right under Article 13.4 above, in which case the mandate of the Supervisory Board member(s) appointed by the General Meeting pursuant to this provision shall automatically expire, provided, however, that it shall not affect the term of such Supervisory Board.
8. The Supervisory Board which, due to the expiry of the mandate(s) of certain Supervisory Board members (for any reason other than dismissal), consists of less than 7 (seven) but at least 5 (five) members of the Supervisory Board, shall have the power to adopt valid resolutions until the appointment of the missing members.
9. In the event the Supervisory Board is elected pursuant to Article 385 § 5 and/or 6 of the Polish Commercial Companies Code, the Chairman shall be appointed by COMSA from among candidates elected pursuant to Article 385 § 5 and/or 6 of the Polish Commercial Companies Code. The above right to appoint the Chairman shall be exercised by a written notice sent to the Company.”
- amendment of article 14 of the Company’s Statute, whose current wording is as follows:
“Article 14
1. The term of office of the Supervisory Board shall be three years. The members of the Supervisory Board shall be appointed for a joint term of office.
2. The Supervisory Board or its individual members elected by the General Meeting of Shareholders can be dismissed before the end of their term of office by virtue of a resolution of the General Meeting of Shareholders. If a member of the Supervisory Board is dismissed during his/her term of office and a new person is appointed in his/her place, the term of office of the new appointee shall end when the entire Supervisory Board’s term of office ends. This applies also when the entire Supervisory Board is dismissed during its term of office and new composition of the Supervisory Board is appointed as well as when the composition of the Supervisory Board is expanded with new members during the term of office.
3. From among its members the Supervisory Board shall appoint the Chairman and Vice- Chairman.
4. The work of Supervisory Board shall be directed by the Chairman and in the case of his/her absence – by the Vice-Chairman of the Supervisory Board.
5. The members of the Supervisory Board can be re-appointed for next terms of office of the Supervisory Board.
6. The members of Supervisory Board shall act in the Supervisory Board in person. It shall be also admissible to adopt resolutions without holding a meeting of the Supervisory Board, by circular or with use of means of direct remote communication.”
content of article 14 after proposed amendment:
“Article 14
1. The term of office of the Supervisory Board shall be three years. The members of the Supervisory Board shall be appointed for a joint term of office.
2. The Supervisory Board or its individual members elected by the General Meeting can be dismissed before the end of their term of office by virtue of a resolution of the General Meeting. If a member of the Supervisory Board is dismissed during his/her term of office and a new person is appointed in his/her place, the term of office of the new appointee shall end when the entire Supervisory Board’s term of office ends. This applies also when the entire Supervisory Board is dismissed during its term of office and new composition of the Supervisory Board is appointed as well as when the composition of the Supervisory Board is expanded with new members during the term of office.
3. The work of Supervisory Board shall be directed by the Chairman and in the case of his/her absence – by one of the Vice-Chairman of the Supervisory Board.
4. The members of the Supervisory Board can be re-appointed for next terms of office of the Supervisory Board.
5. The members of Supervisory Board shall act in the Supervisory Board in person. It shall be also admissible to adopt resolutions without holding a meeting of the Supervisory Board, by circular or with use of means of direct remote communication.”
- amendment of article 15 of the Company’s Statute, whose current wording is as follows:
“Article 15
1. Meetings of the Supervisory Board are convened at least once in two months, by the Chairman of the Supervisory Board. The meetings are chaired by the Chairman and in the case of his/her absence – by the Vice-Chairman of the Supervisory Board. The Chairman of the Supervisory Board shall also convene a meeting of the Supervisory Board at a written request of the Company’s Management Board or a member of the Supervisory Board.
2. Aresolution of the Supervisory Board can be adopted at the meeting if all members of the Supervisory Board have been invited.
3. Resolutions of the Supervisory Board shall be adopted with simple majority of votes. In the case of a tie, the Chairman of the Supervisory Board has the casting vote.
4. Detailed procedure of operation of the Supervisory Board shall be set out in the Rules of Supervisory Board, to be adopted by the General Meeting of Shareholders.”
content of article 15 after proposed amendment:
“Article 15
1. Meetings of the Supervisory Board are convened at least four times a year, by the Chairman of the Supervisory Board. The meetings are chaired by the Chairman and in the case of his/her absence – by one of the Vice-Chairmen of the Supervisory Board. The Chairman of the Supervisory Board shall also convene a meeting of the Supervisory Board at a written request of the Company’s Management Board or a member of the Supervisory Board. The Chairman is selecting a secretary of the Supervisory Board.
2. A resolution of the Supervisory Board can be adopted at the meeting if all members of the Supervisory Board have been invited in writing (such invitation being delivered to them at least 7 (seven) days prior to the date designated for such meeting) and at least half of the members must be present at the meeting, including Chairman and at least one Vice-Chairman of the Supervisory Board. The Supervisory Board meetings may also be validly held without being formally convened in the event that all Supervisory Board members are present at such meeting and none of them objected against holding such meeting or any matters on the agenda.
3. Subject to Article 388 §4 of the Polish Commercial Companies Code, resolution of the Supervisory Board may also be adopted by votes cast in writing or through means of instantaneous communication. In such cases draft resolutions shall be presented to all members of the Supervisory Board by the Chairman of the Supervisory Board or, in his/her absence, by one of the Vice-Chairmen of the Supervisory Board.
4. Resolutions of the Supervisory Board shall be adopted with simple majority of votes. In the case of a tie, the Chairman of the Supervisory Board has the casting vote.
5. Detailed procedure of operation of the Supervisory Board shall be set out in the Rules of Supervisory Board, to be adopted by the General Meeting.”
- amendment of article 16 of the Company’s Statute, whose current wording is as follows:
“Article 16
The Supervisory Board exercises regular supervision over the Company’s operations. Furthermore, the powers of the Supervisory Board, aside from other matters provided for in applicable laws, include:
1) appointment and dismissal of the members of the Management Board of the Company;
2) determination of rules of remuneration of the Management Board members;
3) approval of the Rules of the Management Board of the Company and any amendments
thereto;
4) consent for the Management Board to undertake activities competitive to the Company;
5) consent for the members of the Supervisory Board and candidates for the Supervisory Board, in accordance with the provisions of Article 17 herein below, to undertake competitive activities;
6) consent for appointment and dismissal of members of any bodies of any subsidiaries of
the Company;
7) appointment of the chartered accountant for the Company;
8) approval of the Company’s annual budget, business plan and strategy plan as well as any modifications thereof;
9) consent to undertake activities other than those covered by the scope of the Company’s core operations or included in the business plan and strategy plan as approved by the Supervisory Board;
10) opinion on increase or reduction of the Company’s share capital before the draft resolution in this matter is presented to the General Meeting of Shareholders (with the proviso that the opinion of the Supervisory Board in this matter is not binding upon the General Meeting of Shareholders);
11) consent for award of options or any other securities convertible or exchangeable to the Company’s shares;
12) opinion on dissolution of the Company before the draft resolution in this matter is presented to the General Meeting of Shareholders (with the proviso that the opinion of the Supervisory Board in this matter is not binding upon the General Meeting of Shareholders);
13) consent for the Company to incur financial liabilities (including loans) in the amount exceeding the limits set out by the Supervisory Board;
14) consent to extend loans, issue guarantees, issue promissory notes or bills of exchange or similar instruments on the Company’s behalf to secure third parties’ obligations and to take actions aimed at securing third parties’ obligations in the amount exceeding the limits set out by the Supervisory Board;
15) consent for purchase, lease, sale or any other form of transfer of a real property, perpetual usufruct or interest in real property by the Company, in the amount exceeding the limits set out by the Supervisory Board;
16) consent for suggested amendments of charters (articles of association) of any subsidiaries of the Company as well as other draft resolutions presented by relevant Management Boards prior to their presentation to the General Meeting of Shareholders of a given subsidiary;
17) consent for appointment of commercial proxy [prokurent] for the Company;
18) consent for the Company to enter into a contract, transaction or several related contracts or transactions going beyond the scope of the Company’s regular operations or unrelated to the Company’s core operations, in the amount exceeding the limits set out by the Supervisory Board;
19) consent for purchase, sale, rental and disposal or any tangible assets or any other assets of the Company under a transaction going beyond the scope of the Company’s regular operations or unrelated to the Company’s core operations, with the purchase price exceeding the limits set out by the Supervisory Board;
20) consent to take up or buy shares in other companies or to make another investment in other companies or to join a joint venture, when the amount of single investment exceeds the limits set out by the Supervisory Board;
21) consent to form a joint venture with third parties or enter into a similar agreement with third parties, in the amount exceeding the limits set out by the Supervisory Board;
22) consent for participation in tender procedure, in the amount exceeding the limits set out
by the Supervisory Board;
23) establishment of any encumbrance or other collateral or any assets or commercial undertakings of the Company, in the amount exceeding the limits set out by the Supervisory Board, except for encumbrances established in relation to guarantees issued by the Company or for the Company’s obligations in connection with transactions referred to in the point herein below;
24) guarantees to third parties, other than guarantees given in connection with works that may arise from transactions under regular operations of the Company with regard to railway industry and municipal rolling stock;
25) consent to purchase or sell intellectual and/or industrial property and to enter into license agreements, in the amount exceeding the limits set out by the Supervisory Board;
26) consent to enter into any contracts, transactions or several related contracts or transactions with related parties as defined in Article 4.1.4 and 4.1.5 of the Polish Commercial Companies Code (except for contracts and transactions with the companies being members of the Company’s group), in the amount exceeding the limits set out by the Supervisory Board;
27) consent to enter into exclusivity agreements, in the amount exceeding the limits set out by the Supervisory Board.”
content of article 16 after proposed amendment:
“Article 16
1. The Supervisory Board exercises regular supervision over the Company’s operations.
2. The powers of the Supervisory Board, aside from other matters provided for in applicable laws, include:
1) appointment and dismissal of the members of the Management Board of the Company;
2) determination of rules of remuneration and terms of employment of the Management Board members;
3) approval of the Rules of the Management Board of the Company and any amendments thereto;
4) consent for the Management Board to undertake activities competitive to the Company;
5) consent for the members of the Supervisory Board and candidates for the Supervisory Board, in accordance with the provisions of Article 17 herein below, to undertake competitive activities;
6) consent for appointment and dismissal of members of any bodies of any subsidiaries or affiliates of the Company;
7) appointment or removal of the chartered accountant for the Company and the subsidiaries;
8) approval of the Company’s annual budget, business plan and strategy plan as well as any modifications thereof;
9) consent to undertake activities other than those covered by the scope of the Company’s core operations or included in the business plan and strategy plan as approved by the Supervisory Board;
10) opinion on increase or reduction of the Company’s share capital before the draft resolution in this matter is presented to the General Meeting (with the proviso that the opinion of the Supervisory Board in this matter is not binding upon the General Meeting);
11) consent for award of options or any other securities convertible or exchangeable to the Company’s shares;
12) opinion on dissolution of the Company before the draft resolution in this matter is presented to the General Meeting (with the provision that the opinion of the Supervisory Board in this matter is not binding upon the General Meeting);
13) consent for the Company to incur financial liabilities (including loans, but excluding financial liabilities as set forth in item 14 below) in the amount exceeding the limits set out by the Supervisory Board;
14) consent for the Company to taking bank loans or otherwise undertaking borrowing obligations outside ordinary course of business;
15) consent to extend loans in favour of third parties in the amount exceeding the limits set out by the Supervisory Board;
16) consent for granting by the Company or its subsidiaries surety, guarantee or other collateral (including on the basis of promissory notes law) for the obligation of third parties, except in the ordinary course of business and in particular (i) for benefit of the companies being members of the Company’s group or (ii) for benefit of joint venture partners or consortium members in joint projects under regular operations of the Company and its subsidiaries with regards to railway industry, municipal rolling stock or any other similar entity in construction;
17) consent for purchase, lease, sale or any other form of transfer of a real property, perpetual usufruct or interest in real property by the Company, in the amount exceeding the limits set out by the Supervisory Board;
18) consent for suggested amendments of statutes (articles of association) of any subsidiaries or affiliates of the Company as well as other draft resolutions presented by relevant management boards or the boards of directors prior to be called to the General Meeting of a given subsidiary or affiliated company;
19) consent for appointment of commercial proxy [prokurent] for the Company;
20) consent for the Company to enter into a contract, transaction or several related contracts or transactions exceeding the scope of the Company’s regular operations or unrelated to the Company’s core operations, in the amount exceeding the limits set out by the Supervisory Board;
21) consent for purchase, sale, rental and disposal of any tangible assets or any other assets of the Company under a contract, transaction or several related contracts or transactions outside of the ordinary course of business, in the amounts exceeding the limits set out by the Supervisory Board;
22) consent to take up or acquire or transfer shares or other investment instruments by the Company in other companies or to make other investments in other companies or participate in partnerships or join a joint venture or incorporate any entity, when the amount of single investment exceeds the limits set out by the Supervisory Board;
23) consent for participation in tender procedure, in the amount exceeding the limits set out by the Supervisory Board;
24) consent for granting guarantees to third parties, other than guarantees given in connection with works that may arise from transactions in the ordinary course of business of the Company;
25) consent to purchase or sell intellectual and/or industrial property and to enter into license agreements, in the amount exceeding the limits set out by the Supervisory Board;
26) consent to enter into any contracts, transactions or several related contracts or transactions with: (i) shareholders of the Company having shares representing more than 5% of the total number of votes at the General Meeting or their related parties, and (ii) related parties (except for contracts and transactions with the companies being members of the Company’s group). For the purposes of this section, a term “related parties” shall mean entities defined in Articles 4.1.4 and 4.1.5 of the Polish Commercial Companies Code;
27) consent to enter into exclusivity agreements, in the amount exceeding the limits set out by the Supervisory Board;
28) consent to enter into, withdraw from, or amend any shareholders’ agreement in the Company’s subsidiaries and affiliates;
29) consent to fundamental changes of the business of the Company or its model, or starting of new business areas by the Company or its subsidiaries;
30) consent to start a new activity by the Company or its subsidiaries which is not related or supplemental to the business activity of the Company or its subsidiaries;
31) setting out the limits set forth in items 13), 17), 23), 25), and 27) above;
32) setting out the limits set forth in items 14), 15), 16), 20), 21) and 22) above; and
33) deciding on the companies to be qualified as the Company’s additional Material Subsidiaries as defined in Article 29.1 .
3. The resolutions of the Supervisory Board concerning the matters listed in Article 16.2 items 2)(whenever the changes to the existing terms of employment are significant), 14) (except for taking loans in order to refinance bonds issued by the Company), 15), 16), 20), 21), 22), 28), 29), 30) and 32) above require for their validity the approval of at least six members of the Supervisory Board and the resolutions of the Supervisory Board concerning the matters listed in Article 16.2 items 7), 9)and 26)require for their validity the approval of at least six members of the Supervisory Board, including the independent member of the Supervisory Board.
4. Each member of the Supervisory Board shall have an individual right to examine all documents of the Company, to request the Management Board and the employees of the Company to provide him/her with all information and clarifications regarding the Company, its subsidiaries and the Company’s and its subsidiaries’ operations that he/she deems necessary and to inspect the Company’s and its subsidiaries’ assets.
5. The Management Board shall undertake to procure to the extent allowed by mandatory provisions of law that the relevant corporate documents of each Material Subsidiary include provisions requiring a consent of the Company (or any other corporate body of such Material Subsidiary controlled by the Company) for taking by each Material Subsidiary any of actions listed in Article 11 and Art. 16.2 (“Key Actions”). If such provisions cannot be directly included in the relevant corporate documents of a Material Subsidiary due to legal constraints, the Management Board shall include such provisions mutatis mutandis in such a way so as to best preserve the purpose of such provisions.
6. The Management Board shall obtain the prior consent of the Supervisory Board before passing any resolution (including any resolution at the level of the corporate bodies of any Material Subsidiary) or taking any other action resulting in approving or consenting to taking by any Material Subsidiary of any Key Action.
7. The provisions of Article 16.3 shall apply accordingly to any such resolutions of the Supervisory Board regarding approval of Key Actions (except for actions listed in Article 11.1 item 7 and mergers between the companies belonging to the Company’s group) and such resolutions of the Supervisory Board shall require for their validity the approval of at least six members of the Supervisory Board and/or the independent member of the Supervisory Board, as the case may be.”
- The addition of article 16A to the Company’s Statute, whose wording is as follows:
“Article 16A
1. If Article 18.6applies,the powers of the Supervisory Board, aside from other matters provided for in applicable laws,shall be limited to:
1) assessment of financial statements and the Management Board’s annual report and opining the motion of the Management Board on the distribution of profit or covering of losses;
2) making inquiries regarding the Company’s business as well as reviewing all documents of the Company;
3) convening the annual General Meeting if the Management Board fails to do this within the prescribed period and convening other General Meetings when the Supervisory Board deems it appropriate;
4) attending the General Meeting;
5) presenting comments to items included in the agenda of the General Meeting, other than the proposed resolutions;
6) appealing to a court against a resolution of the General Meeting;
7) matters listed in Article 16.2 items 2)(whenever the changes to the existing terms of employment are significant), 7), 9) 14) (except for taking loans in order to refinance bonds issued by the Company), 15), 16), 20), 21), 22), 26), 28), 29), 30) and 32) in relation to the Company and each of the Material Subsidiary as well as matters listed Article 11.1 (except for actions listed in Article 11.1 item 7 and mergers between the companies belonging to the Company’s group) in relation to each of the Material Subsidiary; and
8) other matters provided for in applicable laws.
2. For the avoidance of doubt, the provisions of Articles 16.3, 16.5, 16.6 and 16.7 shall apply accordingly.”
- amendment of article 17.1 point 4 of the Company’s Statute, whose current wording is as follows:
“4) be an employee, agent, representative or act in conjunction with a competitor, unless he/she was given an express prior consent of the Supervisory Board. For avoidance of doubts, any relation as described hereinabove with a shareholder, who together with its associated companies holds over 50% of votes at the General Meeting of Shareholders, shall not be treated as competitive activities or conflict of interest for the purposes of this Article.”
content of article 17.1 point 4 after proposed amendment:
“4) be an employee, agent, representative or act in conjunction with a competitor,unless he/she was given an express prior consent of the Supervisory Board. For avoidance of doubts, any relation as described hereinabove with a shareholder, who together with its associated companies holds over 25% of votes at the General Meeting, shall not be treated as competitive activities or conflict of interest for the purposes of this Article.”
- amendment of article 18 of the Company’s Statute, whose current wording is as follows:
“Article 18
1. The Management Board of the Company is composed of 1 to 5 members.
2. The term of office of the Management Board shall be three years. The members of the Management Board shall be appointed for a joint term of office.
3. The mandate of the Management Board members shall expire on the day, on which the General Meeting of Shareholders, which approves the report, balance sheet and income statement for the last year of the term of office, is held.
4. Individual members of the Management Board can be dismissed any time. If a member of the Management Board is dismissed during his/her term of office and a new person is appointed in his/her place, the term of office of the new appointee shall end when the entire Management Board’s term of office ends. This applies also when the entire Management Board is dismissed during its term of office and new composition of the Management Board is appointed as well as when the composition of the Management Board is expanded with new members during the term of office.
5. The detailed rules of operation of the Management Board shall be set out in the Rules of the Management Board of the Company, to be approved by the Supervisory Board.”
content of article 18 after proposed amendment:
“Article 18
1. The Management Board of the Company is composed of up to 10 members.
2. The members of the Management Board are appointed and dismissed by the Supervisory Board, subject to Article 18.6 and 18.7.
3. The term of office of the Management Board shall be three years. The members of the Management Board shall be appointed for a joint term of office.
4. The mandate of the Management Board members shall expire on the day, on which the General Meeting, which approves the report, balance sheet and income statement for the last year of the term of office, is held.
5. Individual members of the Management Board can be dismissed any time. If a member of the Management Board is dismissed during his/her term of office and a new person is appointed in his/her place, the term of office of the new appointee shall end when the entire Management Board’s term of office ends. This applies also when the entire Management Board is dismissed during its term of office and new composition of the Management Board is appointed as well as when the composition of the Management Board is expanded with new members during the term of office.
6. In case that due: (i) to changes to Article 13.1, 13.4, (ii) applicable provisions of law or (iii) in the event the Supervisory Board is elected pursuant to Article 385 § 5 and/or 6 of the Polish Commercial Companies Code, COMSA may not appoint such number of the Supervisory Board members that would constitute a majority of the members of the Supervisory Board, COMSA shall be entitled to appoint and dismiss such number of the Management Board members that is equal to 50% of the total number of Management Board members plus 1 (one) member (rounded down to the closest integer).
7. In case the number of the Supervisory Board members appointed by COMSA ceases to constitute a majority of the members of the Supervisory Board, a resolution of the General Meeting to dismiss or suspend in their duties member(s) of the Management Board appointed by COMSA shall be passed with a majority of 2/3(two thirds) of the votes cast.
8. The detailed rules of operation of the Management Board shall be set out in the Rules of the Management Board of the Company, to be approved by the Supervisory Board.”
- amendment of article 19.2 of the Company’s Statute, whose current wording is as follows:
“2. The powers of the Management Board encompass all matters not reserved for the
General Meeting of Shareholders or the Supervisory Board.”
content of article 19.2 after proposed amendment:
“2. The powers of the Management Board encompass all matters not reserved for the General Meeting or the Supervisory Board.
- amendment of article 21.1 of the Company’s Statute, whose current wording is as follows:
“1. The share capital of the Company amounts to PLN 16.010.548,00 (say: sixteen million ten thousand five hundred forty eight) and is divided into:
a. 1,599,480 (say: one million five hundred ninety nine thousand four hundred eighty) ordinary registered shares of series A, with the nominal value of PLN 0.10 (ten hundredths) each;
b. 83,180,870 (say: eighty three million one hundred eighty thousand eight hundred seventy) ordinary registered shares of series C, with the nominal value of PLN 0.10 (ten hundredths) each;
c. 19,516,280 (say: nineteen million five hundred sixteen thousand two hundred eighty) ordinary registered shares of series D, with nominal value of PLN 0.10 (ten hundredths) each;
d. 25,808,850 (say: twenty five million eight hundred eight thousand eight hundred fifty) ordinary registered shares of series E, with the nominal value of PLN 0.10 (ten hundredths) each, and
e. 30.000.000 (say: thirty million) ordinary registered shares of series F, with the nominal value of PLN 0.10 (ten hundredths) each.
content of article 21.1 after proposed amendment:
“The share capital of the Company amounts to PLN 23,210,548 (say: twenty three million two hundred ten thousand five hundred forty eight) and is divided into:
a. 1,599,480 (say: one million five hundred ninety nine thousand four hundred eighty) ordinary bearer shares of series A, with the nominal value of PLN 0.10 (say: ten hundredths) each;
b. 83,180,870 (say: eighty three million one hundred eighty thousand eight hundred seventy) ordinary bearer shares of series C, with the nominal value of PLN 0.10 (say: ten hundredths) each;
c. 19,516,280 (say: nineteen million five hundred sixteen thousand two hundred eighty) ordinary bearer shares of series D, with nominal value of PLN 0.10 ( say: ten hundredths) each;
d. 25,808,850 (say: twenty five million eight hundred eight thousand eight hundred fifty) ordinary bearer shares of series E, with the nominal value of PLN 0.10 (say: ten hundredths) each,
e. 30,000,000 (say: thirty million) ordinary bearer shares of series F, with the nominal value of PLN 0.10 (say: ten hundredths) each, and
f. 72,000,000 (say: seventy two million) ordinary bearer shares of series G, with the nominal value of PLN 0.10 (say: ten hundredths) each.”
- deletion of article 21.2 of the Company’s Statute, whose current wording is as follows:
“2. The shares of series A, C, D and E shall be converted into bearer shares on the date of execution of an agreement between the Company and the National Depository for Securities (Krajowy Depozyt Papierów Wartościowych – KDPW) regarding the registration of those shares with the KDPW in connection with their dematerialization and application for admission of those shares into trading on regulated market.”
- deletion of article 21 A of the Company’s Statute, whose current wording is as follows:
„Article 21a
1) The share capital of the Company has been conditionally increased by no more than PLN 7.200.000 (seven million two hundred thousand PLN) through the issuance of up to 72.000.000 (seventy two million) ordinary bearer series G shares with a nominal value of PLN 0.10 (ten hundredths) each.
2) The objective of the conditional share capital increase is to grant the rights to subscribe for the series G shares to the holders of the series A subscription warrants issued pursuant to resolution No. 3 of the General Meeting dated 19 January 2011].
3) The holders series A subscription warrants are authorized to subscribe for series G shares until 31 December 2011.
4) Series G shares shall be covered with cash contributions.”
- The addition of article 29 to the Company’s Statute, whose proposed wording is as follows:
“Article 29
1. The definition of “COMSA” used in this Statute has the following meaning - COMSA S.A., a company incorporated under the laws of Spain with its registered office in Barcelona and registered at the Commerce Register of Barcelona under the number B-78158 and/or any of its legal successors. The definition of “Material Subsidiary used in this Statute has the following meaning - a company which is a direct or indirect subsidiary or affiliate of the Company which book value of total assets accounts to at least PLN 5,000,000 or equivalent in other currencies and other additional companies selected by the Supervisory Board in accordance with Article 16.2.33.
2. The provisions of Articles 11, 13.4, 13.7, 13.9, 15.2, 16.3, 16.5, 16.6, 16.7, 16a, 18.6 and 18.7 shall apply as long as (i) COMSA remains shareholder of the Company holding directly at least 25% (twenty five percent) of the total number of votes at the General Meeting; and (ii) COMSA EMTE, a company incorporated under the laws of Kingdom of Spain and at Commerce Register of Barcelona under the number B-58982, continues to control COMSA or its legal successor (i.e. it continues to hold at least 51% of the entire share capital of COMSA and/or at least 51% of all votes at the shareholders’ meeting of COMSA). Once either of such conditions ceases to be met the rights afforded by provisions of Articles 11, 13.4, 13.7, 13.9, 15.2, 16.3, 16.5, 16.6, 16.7, 16a, 18.6 and 18.7 shall expire permanently.”
Due to the extensive range of proposed changes of the Company’s Statute, the Companyis hereby announcing the wording of the proposed draft of the new consolidated text of the statute of the Company:
“STATUTE
OF A JOINT STOCK COMPANY
I.General Provisions
Article 1.
The business name of the Company shall be: Trakcja-Tiltra Spółka Akcyjna. The Company can use an abbreviated business name: Trakcja-TiltraS.A. The Company can use a distinguishing graphic mark.
Article 2.
The seat of the Company shall be the capital city of Warsaw.
Article 3.
The Company shall operate in the territory of the Republic of Poland and abroad.
Article 4.
1. The Company may act in its own name and on its own account as well as in the name and on the account of third parties, under commission, agency, consignment or other contract.
2. The Company may establish, in Poland and abroad, its divisions, branches, representative offices and other organisational units as well as acquire shares in companies and partnerships incorporated under commercial and civil law, and form and participate in companies and partnerships incorporated under commercial and civil law, co-operatives, associations and other joint undertakings in legally admissible forms.
Article 5.
The duration of the Company shall be unlimited.
Article 6.
According to the Polish Classification of Activities, the subject of the Company’s activities is:
6.1 Forestry and logging (Polish SIC code 02);
6.2 Other mining and quarrying (Polish SIC code 08);
6.3 Mining and quarrying support service activities (Polish SIC code 09);
6.4 Manufacture of products of wood and cork, except furniture; manufacture of products from straw and plaiting materials (Polish SIC code 16);
6.5 Manufacture of other non-metallic mineral products (Polish SIC code 23);
6.6 Manufacture of metals (Polish SIC code 24);
6.7 Manufacture of fabricated metal products, except machinery and equipment (Polish SIC code 25);
6.8 Manufacture of computer, electronic and optical products (Polish SIC code 26);
6.9 Manufacture of electrical equipment (Polish SIC code 27);
6.10 Manufacture of machinery and equipment, not classified elsewhere (Polish SIC code 28);
6.11 Other manufacturing (Polish SIC code 32);
6.12 Repair, maintenance and installation of machinery and equipment (Polish SIC code 33);
6.13 Waste collection, processing and treatment activities; raw material recovery (Polish SIC code 38);
6.14 Construction of buildings (Polish SIC code 41);
6.15 Works related to the construction of civil and marine engineering facilities (Polish SIC code 42);
6.16 Specialised construction activities (Polish SIC code 43);
6.17 Wholesale and retail trade of motor vehicles and repair of motor vehicles (Polish SIC code 45);
6.18 Wholesale trade, except motor vehicle wholesaling (Polish SIC code 46);
6.19 Retail trade, except motor vehicle retailing (Polish SIC code 47);
6.20 Land transport and transport via pipelines (Polish SIC code 49);
6.21 Warehousing and support activities for transportation (Polish SIC code 52);
6.22 Hotels and similar accommodation services (Polish SIC code 55);
6.23 Telecommunications (Polish SIC code 61);
6.24 Financial service activities, except insurance and pension funding (Polish SIC code 64);
6.25 Real estate activities (Polish SIC code 68);
6.26 Legal, accounting and bookkeeping, as well as tax consulting services (Polish SIC code 69);
6.27 Activities of head offices; management consultancy activities (Polish SIC code 70);
6.28 Architectural and engineering activities; technical testing and analysis (Polish SIC code 71);
6.29 Scientific research and development (Polish SIC code 72);
6.30 Advertising, market research and public opinion polling (Polish SIC code 73);
6.31 Other professional, scientific and technical activities (Polish SIC code 74);
6.32 Rental and leasing activities (Polish SIC code 77);
6.33 Security and investigation activities (Polish SIC code 80);
6.34 Services to buildings and landscape activities (Polish SIC code 81);
6.35 Education (Polish SIC code 85).
If a permit or concession is required for a specific subject of activities, the Company shall commence such activities after obtaining the permit or concession."
II.Bodies of the Company
Article 7
The Company’s bodies are:
1. General Meeting,
2. Supervisory Board,
3. &nb Back to list