Registration of amendments to the Articles of Association of PKP CARGO S.A.

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Registration of amendments to the Articles of Association of PKP CARGO S.A.

New note

Legal basis (selected in ESPI): Art. 56 sec.1 item 2 of the Act on Offering – current and periodic information

With reference to the current report no. 51/2015 of 29 September 2015, the Management Board of PKP CARGO S.A. (“Company”) hereby informs that on 22 October 2015, based on information corresponding to the current excerpt from the Register of Entrepreneurs, downloaded under Article 4.4aa of the Polish Act on the National Court Register of 20 October 1997, which presents the situation as at 22 October 2015, the Company was informed about the decision of the District Court for the Capital City of Warsaw in Warsaw, 12th Commercial Division of the National Court Register, on registration on 22 October 2015 of amendments to the Company’s Articles of Association, adopted by the resolutions no. 11/2015, no. 14/2015 and no. 15/2015 of the Extraordinary General Meeting of 29 September 2015.

Below the Management Board of the Company shall publicize the previous wording of the Company’s Articles of Association and the content of the amendments adopted by the resolutions no. 11/2015, no. 14/2015 and no. 15/2015 of the Extraordinary General Meeting of 29 September 2015.

In § 5 Sec. 1 of the Articles of Association, after point 2, the following point “2a)” was added:

“2a) financial and insurance activities, including:

a) activities of financial holdings (PKD – 64.20.Z);

b) other financial service activities, not classified elsewhere, excluding insurance and pension funds (PKD – 64.99.Z);

c) other activities auxiliary to financial services, excluding insurance and pension funds (PKD – 66.19.Z); ”

Current wording of § 5 Sec. 1 point 3 of the Articles of Association:

“3) professional, scientific and technical activities, including:

a) accounting and bookkeeping; tax consultancy PKD [Polish Classification of Activities] – (PKD – 69.20.Z);

a1) testing and analyses connected with food quality (PKD – 71.20.A);

b) other technical testing and analysis (PKD – 71.20.B);

c) other research and experimental development with regard to natural sciences and engineering (PKD – 72.19.Z);

d) advertising agency work (PKD – 73.11.Z);

e) intermediation in the sale of time and space for advertising purposes in radio and television (PKD – 73.12.A);

f) intermediation in the sale of space for advertising purposes in printed media (PKD – 73.12.B);

g) intermediation in the sale of time and space for advertising purposes in electronic media (the Internet) (PKD – 73.12.C);

h) intermediation in the sale of time and place for advertising purposes in other media (PKD – 73.12.D);

i) other professional, scientific and technical activities n.e.c. (PKD – 74.90.Z).”

was replaced by new wording:

“3) professional, scientific and technical activities, including:

a) accounting and bookkeeping; tax consultancy PKD [Polish Classification of Activities] – (PKD – 69.20.Z);

a1) activities of central companies (head offices) and holdings, excluding financial holdings (PKD – 70.10.Z);

a2) other consultancy as regards business and management activities (PKD – 70.22.Z);

a3) testing and analyses connected with food quality (PKD – 71.20.A);

b) other technical testing and analysis (PKD – 71.20.B);

c) other research and experimental development with regard to natural sciences and engineering (PKD – 72.19.Z);

d) advertising agency work (PKD – 73.11.Z);

e) intermediation in the sale of time and space for advertising purposes in radio and television (PKD – 73.12.A);

f) intermediation in the sale of space for advertising purposes in printed media (PKD – 73.12.B);

g) intermediation in the sale of time and space for advertising purposes in electronic media (the Internet) (PKD – 73.12.C);

h) intermediation in the sale of time and place for advertising purposes in other media (PKD – 73.12.D);

i) other professional, scientific and technical activities n.e.c. (PKD – 74.90.Z).”

Current wording of § 5 Sec. 1 point 9 of the Articles of Association:

“9) other activities, including:

a) repair and maintenance of other transport equipment (PKD – 33.17.Z);

b) production and supply of steam, hot water and air to air conditioning (PKD – 35.30.Z);

c) other monetary intermediation (PKD – 64.19.Z);

d) other education n.e.c. (PKD – 85.59.B);

e) publishing of journals and periodicals (PKD – 58.14.Z);

f) other publishing activities (PKD – 58.19.Z);

g) data processing, hosting and related activities (PKD – 63.11.Z);

h) public relations and communication activities (PKD – 70.21.Z);

i) business and other management consultancy activities (PKD – 70.22.Z);

j) market research and public opinion polling (PKD – 73.20.Z);

k) activities of employment placement agencies (PKD – 78.10.Z);

l) other human resources provision (PKD – 78.30.Z);

m) office administrative service activities (PKD – 82.11.Z);

n) organization of conventions and trade shows (PKD – 82.30.Z);

was replaced by new wording:

“9) other activities, including:

a) repair and maintenance of other transport equipment (PKD – 33.17.Z);

b) production and supply of steam, hot water and air to air conditioning (PKD – 35.30.Z);

c) other monetary intermediation (PKD – 64.19.Z);

d) other education n.e.c. (PKD – 85.59.B);

e) publishing of journals and periodicals (PKD – 58.14.Z);

f) other publishing activities (PKD – 58.19.Z);

g) data processing, hosting and related activities (PKD – 63.11.Z);

h) public relations and communication activities (PKD – 70.21.Z);

i) business and other management consultancy activities (PKD – 70.22.Z);

j) market research and public opinion polling (PKD – 73.20.Z);

k) activities of employment placement agencies (PKD – 78.10.Z);

l) other human resources provision (PKD – 78.30.Z);

m) office administrative service activities (PKD – 82.11.Z);

n) organization of conventions and trade shows (PKD – 82.30.Z);

o) the activities of collection agencies and credit bureaus (PKD – 82.91.Z);

p) other business support activities, not classified elsewhere (PKD – 82.99.Z).”

The previous § 14 sec. 1 – 5 of the Company’s Articles of Association, which read as follows:

“1. The Management Board shall be composed of one to five members, including the President of the Management Board, appointed for a joint term of office of three years.

2. As long as PKP S.A. holds all the votes at the Shareholder Meeting and as long as it is required by the mandatory provisions of law, the President of the Management Board and other Management Board member shall be appointed and dismissed by the Shareholder Meeting.

3. Subject to section 2 above, as long as the State Treasury, PKP S.A. or other state legal persons hold less than 100% of the Company’s shares, the President of the Management Board and other Management Board members are appointed and dismissed by the Supervisory Board, on the terms and conditions set forth in sections 4-6 below.

4. In the event that PKP S.A.’s share in the Company’s share capital is 50% or less, PKP S.A. will have the personal powers to select the candidates for the President of the Management Board on its own. The personal powers referred to in the preceding sentence shall be performed by way of delivering a written statement to the Supervisory Board Chairperson.

5. The Supervisory Board will elect one Management Board member from among the candidates submitted by the Company’s employees. A candidate should have higher education, at least 5-year tenure of work in the PKP capital group and have no criminal record. The bylaws for electing candidates for a representative of employees in the Management Board shall be adopted by the Supervisory Board. Failure to appoint a representative of employees to the Management Board shall not preclude the appointment of the Management Board or its effective adoption of resolutions.”

shall read as follows:

“1. The Management Board shall be composed of one to five members, including the President of the Management Board, appointed for a joint term of office of three years.

members are appointed and dismissed by the Supervisory Board, on the terms and conditions set forth in sections 4-6 below.

5. The Supervisory Board will elect one Management Board member from among the candidates submitted by the Company’s employees. A candidate should have completed master’s degree studies or equivalent higher education, have at least 5-year tenure of work in the PKP capital group and have no criminal record. The bylaws for electing candidates for a representative of employees in the Management Board shall be adopted by the Supervisory Board. Failure to appoint a representative of employees to the Management Board shall not preclude the appointment of the Management Board or its effective adoption of resolutions. The power referred to in the first sentence above was granted to the Company’s employees in connection with Article 4 section 4 of the Act on Commercialization, Restructuring and Privatization of PKP and the provisions of the Employee Guarantee Package.”

The previous § 14 sec. 7 – 10 of the Company’s Articles of Association, which read as follows:

“7. If any of the shareholders or any Grouping within the meaning of § 13 section 6 reaches or exceeds a 33% stake in the Company’s share capital then the Supervisory Board will need a 75% majority of votes to adopt a resolution to dismiss or suspend the Management Board or a Management Board member. The 75% majority is also required for the Shareholder Meeting to adopt a resolution to dismiss or suspend the Management Board or a Management Board member.

8. The provisions in section 7 above do not apply to a situation in which the shareholder who reached or exceeded the 33% stake in the Company’s share capital is PKP S.A. or the Grouping where PKP S.A. is a member.

9. The Supervisory Board sets the number of Management Board members.

10. The power referred to in section 5 above was granted to the Company’s employees in connection with Article 4 section 4 of the Act on Commercialization, Restructuring and Privatization of PKP and the provisions of the Employee Guarantee Package.”

shall read as follows:

9. The Supervisory Board sets the number of Management Board members.

10. A Management Board member may not discharge an elected function or sit in the bodies of a company, inter-company or national trade union organization, a federation of trade unions or a confederation of trade unions.”

“11. Whereas the obligation ties connecting each Management Board member with the Company constitute a unique organizational and corporate relationship aimed at handling the Company’s matters and managing the Company with due diligence, from which the Management Board member’s obligation ensues to act with care and an increased measure of diligence, given the professional nature of duties performed in a management body, each Management Board member:

1) is obligated to exercise his/her rights and perform his/her obligations in person, with utmost professional care, subject to the Articles of Association and applicable provisions of law;

2) cannot take any action or perform any activities that would be in contradiction to his/her duties or could raise suspicion of bias of that Management Board member or of promotion of his/her private interest;

3) is obligated to keep confidential business secrets of the Company and documents conveyed to the Management Board member in connection with the exercise of rights and performance of duties in the Management Board and not to disclose them to other persons, unless required by mandatory provisions of law.”

The previous § 19 of the Company’s Articles of Association, which reads as follows:

“1. Subject to sections 8 and 10 below and § 22, the Supervisory Board consists of between eleven and thirteen members, including the Chairperson and the Deputy Chairperson of the Supervisory Board, appointed for a joint term of office. Subject to the provisions of sections 2 and 3 below, Supervisory Board members shall be appointed and dismissed by the Shareholder Meeting.

2. PKP S.A. shall be entitled to appoint and dismiss Supervisory Board members in a number equal to half the composition of the Supervisory Board determined in accordance with section 8 (if such number is not an integer, it shall be rounded down to the nearest integer) plus one. At least one of the Supervisory Board members appointed by PKP S.A. in accordance with this section should comply with the conditions of independence within the meaning of Article 86 Section 5 of the Act on Auditors and be qualified in accounting or auditing.

3. The Company’s employees shall be entitled to appoint and dismiss their three representatives to the Supervisory Board. The bylaws for electing employee representatives to the Supervisory Board shall be adopted by the Supervisory Board. Failure to elect the Supervisory Board members representing the employees shall not preclude the appointment of the Supervisory Board or its effective adoption of resolutions.

4. Subject to section 5 below, the Supervisory Board shall elect the Chairperson and the Deputy Chairperson of the Supervisory Board from among its members.

5. PKP S.A. shall have a personal power to appoint the Chairperson of the Supervisory Board from among the Supervisory Board members elected by voting in separate groups in accordance with the procedure prescribed in Article 385 § 3-7 of the Commercial Companies Code. In the event of PKP S.A.’s failure to appoint the Chairperson of the Supervisory Board within thirty days of the election of the Supervisory Board in accordance with the procedure referred to in the preceding sentence, the Supervisory Board shall elect the Chairperson of the Supervisory Board from among its members .

6. The personal powers mentioned above in section 2 and section 5 shall be performed by way of delivering a written statement to the Company about the appointment or dismissal of a given Supervisory Board member or about selecting the Supervisory Board Chairperson.

7. The term of office of Supervisory Board members is three years.

8. The number of Supervisory Board members shall be set by PKP S.A. and this provision is also applicable to the election of the Supervisory Board by voting in separate groups in accordance with the procedure prescribed in Article 385 of the Commercial Companies Code (in which case the Supervisory Board may be composed of between five and thirteen members). The personal powers referred to in the preceding sentence shall be performed by way of delivering a written statement to the Company.

9. In the event of expiration of the mandate of any Supervisory Board member elected by voting in separate groups in accordance with the procedure prescribed in Article 385 § 3-7 of the Commercial Companies Code, PKP S.A. shall be entitled to a personal power to appoint one new Supervisory Board member in his/her place. The other Supervisory Board members shall be appointed by the Shareholder Meeting.

10. In the event of the dismissal of a Supervisory Board member appointed from among persons elected by the employees during the term of office, until such vacancy in the position of a Supervisory Board member elected by the employees is filled, resolutions adopted by the Supervisory Board shall be valid provided that the Supervisory Board is composed of at least five members.

12. Representatives of the Company’s employees in the Supervisory Board may only be persons who have passed an examination for candidates for members of supervisory boards in companies in which the State Treasury is the sole shareholder, persons exempt from the obligation to pass such examination in accordance with applicable laws and the holders of other equivalent qualifications.

13. A Supervisory Board member appointed in accordance with the provisions of section 3 above may also be dismissed for important reasons by the Shareholder Meeting.”

shall read as follows:

4. Subject to section 5 below, the Supervisory Board shall elect the Chairperson and the Deputy Chairperson of the Supervisory Board from among its members.

7. The term of office of Supervisory Board members is three years.

11. The granting of the power referred to in section 3 above to the Company’s employees was effected in conjunction with Article 4 Section 4 of the Act on Commercialization, Restructuring and Privatization of PKP and the provisions of the Employee Guarantee Package. Representatives of the Company’s employees in the Supervisory Board may only be persons who have passed an examination for candidates for members of supervisory boards in companies in which the State Treasury is the sole shareholder, persons exempt from the obligation to pass such examination in accordance with applicable laws and the holders of other equivalent qualifications.

12. A Management Board member, commercial proxy, liquidator, branch manager, plant manager or the chief accountant, a legal counsel or attorney employed by the company or a person directly reporting to a Management Board member or to a liquidator may not simultaneously be a Supervisory Board member. The rule laid down in the first sentence shall apply accordingly to management board members and liquidators of a subsidiary company or cooperative. A Supervisory Board member may not discharge an elected function or sit in the bodies of a company, inter-company or national trade union organization, a federation of trade unions or a confederation of trade unions.

13. A Supervisory Board member appointed in accordance with the provisions of section 3 above may also be dismissed for important reasons by the Shareholder Meeting.

14. Whereas the obligation ties connecting each Supervisory Board member with the Company constitute a unique organizational and corporate relationship aimed at exercising continuous supervision over the Company, from which relationship the Supervisory Board member’s obligation ensues to act with care and an increased measure of diligence, given the professional nature of duties performed in a supervisory body, each Supervisory Board member:

1) should have higher education;

2) is obligated to exercise his/her rights and perform his/her obligations in person, with utmost professional care, subject to the Articles of Association and applicable provisions of law;

3) cannot take any action or perform any activities that would be in contradiction to his/her duties or could raise suspicion of bias of that Supervisory Board member or of promotion of his/her private interest;

4) is obligated to keep confidential business secrets of the Company and documents conveyed to the Supervisory Board member in connection with the exercise of rights and performance of duties in the Supervisory Board and not to disclose them to other persons unless required by mandatory provisions of law.

15. The requirement referred to in § 14 item 1) above shall apply only to the members of the Supervisory Board appointed to the Supervisory Board after the date of registration of amendments to the Articles of Associations adopted by the Resolution No. 15/2015 of the Extraordinary General Meeting of Shareholders of 29 September 2015.”

Legal basis:
§ 38 section 1 item 2 of the Regulation of the Minister of Finance of 19 February 2009 on current and periodic information disclosed by issuers of securities and conditions for recognizing as equivalent information required by the law of a non-member state (Journal of Laws of 2014, item 133).

Attachment

Current report no. 54/2015 (pdf, 258.26 kB)