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73/2019 - Registration of the increase of the share capital and amendments in the Company’s Articles of Association in the National Court Register

The Management Board of Trakcja PRKiI S.A. (”Company”) hereby informs that on 29 November it was notified that on 29 November 2019 the District Court for the Capital City of Warsaw in Warsaw, 12th Economic Division of the National Court Register, registered the increase of the share capital and amendments in the Company’s Articles of Association adopted by the Company’s Extraordinary General Meeting on 27 September 2019.

The increase of the share capital was performed on the basis of resolution no. 5 of the Company’s Extraordinary General Meeting of 27 September 2019 on the increase of the share capital from PLN 41,119,638.40 (forty one million one hundred and nineteen thousand six hundred and thirty eight zloty and forty groszy), up to PLN 69,160,780.80 (sixty nine million one hundred and sixty thousand seven hundred an eighty zloty and eighty groszy), meaning by PLN 28,041,142.40 (twenty million forty one thousand one hundred and forty two zloty and forty groszy) through an issue of: (i) 10,279,909 (ten million two hundred and seventy nine thousand nine hundred and nine) ordinary B series bearer shares, subscribed at the issue price of PLN 1.70 (one zloty and seventy groszy) per one share, and (ii) 24,771,519 (twenty four million seven hundred and seventy one thousand five hundred and nineteen) individual C series shares, subscribed at the issue price of PLN 1.70 (one zloty and seventy groszy) per one share.

Following the registration of the increase of the share capital, it is currently divided into: 86,450,976 (eighty six million four hundred and fifty thousand nine hundred and seventy six) individual and bearer shares with the nominal value of PLN 0.80 (eighty groszy) each, i.e.:

  1. 51,399,548 (fifty one million three hundred and ninety nine thousand five hundred and forty eight) ordinary A series bearer shares;

 

  1. 10,279,909 (ten million two hundred and seventy nine thousand nine hundred and nine) ordinary B series bearer shares;

 

  1. 24,771,519 (twenty four million seven hundred and seventy one thousand five hundred and nineteen) individual C series shares.

Following the registration of the change of the Company’s share capital, the general number of votes from all shares issued by the Company amounts to 86,450,976 (eighty six million four hundred and fifty thousand nine hundred and seventy six).

Simultaneously, pursuant to resolution no. 5 of the Extraordinary General Meeting of 27 September 2019, the following changes to the Company’s Articles of Association were adopted:

  • Article 21.1 of the Company’s Articles of Association shall read:

“The Company’s share capital shall amount to no less than PLN 69,160,780.80 (sixty nine million one hundred and sixty thousand seven hundred an eighty zloty and eighty groszy) and shall be divided into:

a. 51,399,548 (fifty one million three hundred and ninety nine thousand five hundred and forty eight) ordinary A series bearer shares;

b. 10,279,909 (ten million two hundred and seventy nine thousand nine hundred and nine) ordinary B series bearer shares;

c. 24,771,519 (twenty four million seven hundred and seventy one thousand five hundred and nineteen) ordinary individual C series shares.

Moreover, pursuant to resolution no. 6 of the Extraordinary General Meeting of 27 September 2019, the following changes to the Company’s Articles of Association were adopted:

  • A new Article 11A of Articles of Association is added, reading as follows:

 

“1. Resolutions of the General Meeting on the change of Articles 13.1, 13.7, 16.3 and 16.7 of Articles of Association shall require, for validity, at least 80% of “for” votes of persons present at the Meeting.

2. Resolutions of the General Meeting on the redemption of shares shall require, for validity, at least 80% of “for” votes of persons present at the Meeting.”

  • A new Article 11B of Articles of Association is added, reading as follows:

 

“Purchase, lease, sale as well as any transfer of the ownership of real estate, the right of perpetual usufruct, or an interest in real estate by the Company shall not require the General Meeting’s consent.”

  • Article 13.4 of Articles of Association has been amended by changing the text to read as follows:

 

"4. Hereunder:

1) COMSA shall be entitled to appoint and remove four members of the Supervisory Board, through a written statement presented to the Company;

2) The Key Investor shall be entitled to appoint and remove two members of the Supervisory Board, through a written statement presented to the Company;

If the number of Supervisory Board members is higher or lower than seven due to amendments of Article 13.1 or applicable laws, COMSA shall be entitled to appoint and remove 50% of Supervisory Board members (rounded down to the whole number) and additionally one more Supervisory Board member. COMSA’ s right referred t in the previous sentence shall expire on 1 January 2022, subject to the provisions of Article 29.4 of Articles of Association.”

  • Article 13.5 of Articles of Association has been amended by changing the text to read as follows:

 

“At least two Supervisory Board members, including one member selected by the General Meeting, should meet the criteria of independence defined in Article 129.3 of the Act of 11 May 2017 on statutory auditors, audit companies and public supervision, as amended or replaced.

At least one member of the Supervisory Board, including at least one member appointed by the General Meeting, should fulfil the following criteria of independence:

1) Is not member of the Management Board of the Company or a related company, including the last five years;

2) Is not an employee of the Company or a related company, including the last three years;

3) Is not and has not been receiving any significant additional remuneration from the Company or its related company, apart from remuneration received in relation with his/her function as a member of the Supervisory Board;

4) Is not, and does not represent, a majority shareholder or any shareholder with at least 5% of votes at the General Meeting;

5) Does not have and has not had during the last year any significant business relationships with the Company or its related companies, both directly and as a partner, shareholder, director or a key employee of an entity that has such relationships;

6) Is not and during the three years was not a partner or employee of an existing or former external auditor of the Company or its related companies;

7) Is not a managing director or an executive director in another company, where a Management Board member is a non-executive director or supervisory director, and does not have any other significant relationships with members of the Company’s Management Board through an activity in other companies or entities;

8) Has not been a member of the Supervisory Board for more than three terms of office;

9) Is not a close family member of the executive director or the managing director, or persons referred to in items 1) to 8).”

  • Article 13.6 of Articles of Association has been amended by changing the text to read as follows:

 

“The Supervisory Board, excluding - regardless of the reason - independent Supervisory Board members referred to in Article 13.5, shall have the ability to adopt valid resolutions.”

  • Article 13.7 of Articles of Association has been amended by changing the text to read as follows:

 

“Should COMSA or the Key Investor fail to appoint a Supervisory Board member (members) within twenty one days from the date of expiry of the mandate of a Supervisory Board a member (members) appointed by COMSA or the Key Investor, respectively, such Supervisory Board member (members) should be appointed and removed by the General Meeting until COMSA or the Key Investor exercise their rights pursuant to Article 13.4 above. Should COMSA or the Key Investor exercise their rights under Article 13.4 above, the mandate of a Supervisory Board member (members) appointed by the General Meeting hereunder shall automatically expire, without effect on the term of office of the Supervisory Board.”

  • Article 16.2.1 of Articles of Association has been amended by changing the text to read as follows:

 

“appointment and removal of Management Board members, subject to Article 18.2.2) & 3).”

  • A new Article 16.2.6a of Articles of Association is added, reading as follows:

 

“consent forthe appointment and removal of members of the Supervisory Board of AB Kauno tiltai.”

  • Article 16.2.17 of Articles of Association has been amended by changing the text to read as follows:

 

“consent to purchase, lease, sale as well as any transfer of the ownership of real estate, the right of perpetual usufruct, or an interest in real estate by the Company, with the value exceeding PLN 3,000,000.”

  • Article 16.2.31 of Articles of Association has been amended by changing the text to read as follows:

 

“determining the limits referred to in items 13), 23), 25) and 27) above;”

  • Article 16.2.33 of Articles of Association has been amended by changing the text to read as follows:

 

“deciding which companies are defined as additional Key Subsidiaries, pursuant to the definition in Article 29.2.”

  • Article 16.3 of Articles of Association has been amended by changing the text to read as follows:

 

“Resolutions of the Supervisory Board concerning matters defined in Article 16.2.2) (if amendments of applicable conditions of employment are substantial), 7), 9), 10), 11), 13), 14) (save for loans incurred to refinance liabilities related with bonds issued by the Company), 15), 16), 17), 18), 20), 21), 22), 26), 27), 28), 29), 30), 31) and 32) above, and 18.8 below, shall require, for their validity, consent of at least six members of the Supervisory Board.”

  • A new Article 16.3 of Articles of Association is added, reading as follows:

 

“A resolution of the Supervisory Board on matters defined in Article 16.2.6a) shall require, for its validity, consent of at least five Supervisory Board members.”

  • Article 16.7 of Articles of Association has been amended by changing the text to read as follows:

 

“The provisions of Article 16.3 shall apply respectively to resolutions of the Supervisory Board on the approval of Key Activities as defined in Article 11 (save for activities listed in Article 11.1.7) and merger of companies within the Group). These resolutions of the Supervisory Board shall required, for validity, consent of at least six members of the Supervisory Board.”

  • Article 16A.1.7 of Articles of Association has been amended by changing the text to read as follows:

 

“matters listed in Articles 16.2.2) (if amendments of the conditions of employment are significant), 7), 9), 10), 11), 13), 14) (save for loans incurred to refinance liabilities related with bonds issued by the Company), 15), 16), 17), 18), 20), 21), 22), 26), 27), 28), 29), 30), 31) and 32) above as well as Article 18.8 below, concerning the Company or any of the Key Subsidiaries, as well as matters listed in Article 11.1 (save for activities referred to in Article 11.1.7) and mergers of companies within the Group) in regard to each Key Subsidiary.”

 

  • Article 16A.2 of Articles of Association has been amended by changing the text to read as follows:

 

“Resolutions of the Supervisory Board on matters defined in Article 16A.1.7) shall require, for validity, consent of at least six Supervisory Board members.” For the avoidance of doubt, Articles 16.3a, 16.5, 16.6 and 16.7 shall apply accordingly.”

  • Article 18.2 of Articles of Association has been amended by changing the text to read as follows:

 

“Members of the Management Board shall be appointed and removed in the following manner, save for Articles 18.6 and 18.7 below:

1) Up to eight Management Board members shall be appointed and removed by the Supervisory Board;

2) One Management Board members in charge of internal audit shall be appointed and removed by the Key Investor based on a written statement submitted to the Company;

3) One Management Board members in charge of key accounts shall be appointed and removed by the Key Investor based on a written statement submitted to the Company.”

  • Article 29.1 of Articles of Association has been amended by changing the text to read as follows:

 

“The term “COMSA” in these Articles of Association shall mean COMSA S.A., a company established pursuant to the provisions of the Spanish law, based in Barcelona and entered in the Commercial Register of Barcelona under the number B-78158 and (or) its every legal successor.”

  • Article 29.2 of Articles of Association was amended by adding the following sentence:

 

“The term “Key Subsidiary” in these Articles of Association shall mean a company which is directly or indirectly dependent on, or related with, the Company, with the net value of all assets amounting to at least PLN 5,000,000 or its equivalent in foreign currency, as well as other companies selected by the Supervisory Board pursuant to Article 16.2.33. For the purpose of these Articles of Association, the term “Related Entity or Related Entities” shall mean the entity or entities referred to in Article 4.1.4) & 5) of the Code of Commercial Companies.”

  • A new Article 29.3 of Articles of Association is added, reading as follows:

 

“The term “Key Investor” in these Articles of Association shall mean the company: Agencja Rozwoju Przemysłu Spółka Akcyjna.”

  • A new Article 29.4 of Articles of Association is added, reading as follows:

 

“The provisions of Articles 11A, 13.4.1), 13.7, 13.9, 16.3, 16.5, 16.6, 16.7, 16A, 18.6 and 18.7 shall remain valid:

a) (i) As long as COMSA remains a shareholder of the Company and directly holds at least 25% of the general number of votes at the Company’s General Meeting; and (ii) COMSA EMTECORPORACIÓN DE INFRAESTRUCTURAS, S.L., a company established pursuant to the provision of the Spanish law and entered in the Commercial Register of Barcelona under the number B-58982, shall control COMSA or its legal successors (i.e.: hold at least 51% of the entire share capital of COMSA or at least 51% of the total number of votes at COMSA’s General Meeting);

or

b) by 1 January 2022;

or

c) Until the General Meeting passes a resolution, which adopts, amends or violates the provisions of Article 11A, 13.4.2), 13.7, 16.3, 16.3a, 16.7, 18.2.2) and 3) of Articles of Association, as long as COMSA voted for this resolution and the Key Investor voted against this resolution;

depending on which event occurs first.

If one of the conditions listed in item a) above is no longer met, or upon the expiry of the deadline defined in item b) above, the rights vested in COMSA under Articles 11A, 13.4.1), 13.7, 13.9, 16.3, 16.5, 16.6, 16.7, 16A, 18.6 and 18.7 shall expire permanently.”

  • A new Article 29.5 of Articles of Association is added, reading as follows:

 

“The provisions of Articles 11A, 13.4.2), 13.7, 16.3, 16.3a, 16.7, and 182.2) and 3) shall remain valid:

a) as long as the Key Investor remains the shareholder of the Company and holds, directly or indirectly, at least 5% of the total number of votes at the Company’s General Meeeting;

or

b) by 1 January 2022;

or

c) Until the General Meeting passes a resolution, which adopts, amends or violates the provisions of Article 11A, 13.4.1), 13.7, 13.9, 16.3, 16.5, 16.6., 16.7, 18.6 or 18.7 of the Articles of Association, as long as the Key Investor voted for this resolution and COMSA voted against this resolution;

depending on which event occurs first.

If the condition listed in item a) above is no longer met, or upon the expiry of the deadline defined in item b) above, or if the condition listed in item c) is met, the rights vested in the Key Investor under Articles 11A, 13.4.2), 13.7, 16.3, 16.3a, 16.7, and 18.2.2) & 3) shall expire permanently.”

Simultaneously, the Company presents the uniform text of the Articles of Association, accounting for the amendments introduced on the basis of resolutions no. 5 and 6 of the Extraordinary General Meeting of 27 September 2019.

Legal basis:

Article 5.1 of the Resolution of the Minister of Finance of 29 March 2018 regarding current and periodic information published by issuers of securities and conditions for recognising as equivalent information required by the laws of a non-member state.

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