Excerpt of the shareholders? agreement disseminated upon request and on behalf of GIAN MARCO MORATTI S.a.p.A.
04 Oktober 2013 - 10:18AM
Italian Regulatory (Text)
Excerpt of the shareholders' agreement communicated to the
Commissione Nazionale per le Società e la Borsa ("CONSOB") pursuant
to art. 122 of the Legislative Decree no. 58 of February 24, 1998,
as subsequently amended and supplemented ("T.U.F.") and the
applicable provisions of the Regulation adopted by Consob by
resolution no. 11971 of May 14, 1999, as subsequently amended and
supplemented GIAN MARCO MORATTI S.a.p.A. di Gian Marco Moratti
Registered office in Milan, Foro Buonaparte 69 Share capital: Euro
50,000,000.00 fully paid-in Registered with the Register of
Enterprises of Milan at no. 08379580965 On October 1, 2013, the
companies Gian Marco Moratti S.a.p.A. di Gian Marco Moratti ("GMM
S.a.p.A.") and Massimo Moratti S.a.p.A. di Massimo Moratti ("MM
S.a.p.A.") executed a shareholders' agreement relating to the
shares respectively held by each of the aforementioned companies in
Saras S.p.A., having as object, inter alia, the appointment of the
company's bodies of Saras S.p.A., the exercise of the voting right
at the shareholders' meetings of Saras S.p.A. and a reciprocal
prohibition of transfer the shares respectively held by each of the
aforementioned companies in Saras S.p.A.. (the "Saras Shareholders'
Agreement") 1. Company whose financial instruments are subject to
the shareholders' agreement. Saras S.p.A. Â Raffinerie Sarde, an
Italian company with shares listed on the Mercato Telematico
Azionario organized and managed by Borsa Italiana S.p.A., with
registered office at S.S. Sulcitana 195 Km 19, 09018 Sarroch
(Cagliari), with headquarters and administrative offices at
Galleria de Cristoforis 1, 20122 Â Milano, share capital of Euro
54,629,667.00 fully paid-in, divided into 951,000,000 ordinary
shares without par value ("Saras"). 2. Financial instruments
subject to the shareholders' agreement and percentage in respect of
the share capital. All the Saras shares owned, respectively, by GMM
S.a.p.A. and MM S.a.p.A. (the "Parties"), representing,
respectively, 25.01% of the share capital of Saras and, in the
aggregate, 50.02% of the share capital of Saras, are subject to the
Saras Shareholders' Agreement. In addition, GMM S.a.p.A. and MM
S.a.p.A. have agreed that all Saras shares that may be held by GMM
S.a.p.A. and MM S.a.p.A. in the future shall be subject to the
Saras Shareholders' Agreement.
3. Parties to the agreement. The following parties are Parties to
the Saras Shareholders' Agreement: (i) Gian Marco Moratti S.a.p.A.
di Gian Marco Moratti, società in accomandita per azioni with share
capital of Euro 50,000,000.00 and registered office in Milano, Foro
Buonaparte 69; owner of 237,854,559 Saras shares, representing
25.01% of the share capital of Saras (and 50% of the syndacated
shares), and (ii) Massimo Moratti S.a.p.A. di Massimo Moratti,
società in accomandita per azioni with share capital of Euro
50,000,000.00 and registered office in Milano, Foro Buonaparte 69,
owner of 237,854,558 Saras shares, representing 25.01% of the share
capital of Saras (and 50% of the syndacated shares). It is also
specified that pursuant to article 93 of the T.U.F. none of the
Parties has the right to individually exercise the control of the
issuer. The control of the issuer is therefore exercised jointly by
the Parties through the Saras Shareholder's Agreement. 4. Content
of the shareholders' agreement. 4.1 Appointment of the company's
bodies of Saras 4.1.1 The Parties shall do everything in their
power to ensure that the board of directors is comprised of twelve
members and agree to submit and vote at the shareholders' meetings
of Saras that shall be convened for the appointment of the
company's offices, a list of candidates for the appointment as
members of the board of directors of Saras in which half of the
candidates shall be designated by GMM S.a.p.A. and the other half
shall be designated by MM S.a.p.A. 4.1.2 The Parties agree to
present and vote at the shareholders' meetings of Saras that shall
be convened for the appointment of the company's offices, a list of
candidates for the appointment as members of the board of statutory
auditors of Saras composed as follows: for the first appointment
following the effective date, GMM S.a.p.A. shall designate
candidate no. 1 on the list of statutory auditors and candidate no.
2 on the list of alternate auditors, and MM S.a.p.A. shall
designate candidates no. 2 and no. 3 on the list of statutory
auditors and candidate no. 1 on the list of alternate auditors.
Such designation rights shall alternate between GMM S.a.p.A. and MM
S.a.p.A. for the following appointment of the members of the board
of statutory auditors of Saras and the same alternation shall
continue for subsequent appointments. 4.1.3 In the event, for any
reason, a director appointed from the list filed pursuant to the
Saras Shareholders' Agreement terminates from his or her office,
the Parties shall procure that, both in the event of cooptation, by
the board of directors, and in the event of confirmation or
substitution by shareholder's meeting resolution, the member of the
board of directors cooptated, appointed or substituted is
designated by the Party which designated the director terminated
from his or her 2
office. 4.2 Exercise of the voting right at the shareholders'
meetings of Saras 4.2.1 The Parties agree to meet in advance to
examine and discuss the items on the agenda of each ordinary and
extraordinary shareholders' meeting of Saras, except for
resolutions on the appointment of the company's offices. 4.2.2 The
Parties shall consult in good faith in order to agree upon their
vote on any matter on the agenda for upcoming shareholders'
meetings of Saras. After their consultations, the Parties shall
give to the secretary appointed pursuant the Saras Shareholders'
Agreement their agreed voting instructions, granting him their
respective voting proxies. 4.2.3 In the event the Parties do not
reach an agreement on the voting instructions relating to one or
more items on the agenda, the Secretary (as defined below) of the
Saras Shareholders' Agreement shall refrain from voting in respect
to such items at the shareholder's meeting of Saras. In the event
the Parties do not reach an agreement on the voting instructions
relating to all the items on the agenda, the proxy vote to the
Secretary (as defined below) of the Saras Shareholders' Agreement
for the related shareholders' meeting shall be deemed revoked and
the Parties shall refrain from attending the shareholders' meeting.
4.3 Prohibition of Transfer The Parties have agreed not to transfer
their respective Saras shares, and the rights arising from or
relating thereto, which are covered by the Saras Shareholders'
Agreement. The term "transfer" (and any other related term having
the same root) includes, inter alia, any transfer, other
transaction or inter vivos deed of any nature, whether gratuitous
or for consideration, having as its object or effect, directly or
indirectly, the assignment, conveyance, or transfer of shares of
Saras or rights relating thereto to any person other than the
Parties. 4.4 Purchase and subscription of Saras shares Neither
Party shall become the owner of Saras shares in addition to their
respective Saras shares held at the date of execution of the Saras
Shareholders' Agreement without the prior consent of the other
Party, except in the case of subscription to capital increases or
stock split, provided that the Parties shall not purchase Saras
shares and or rights thereunder or relating thereto or execute any
other transaction or inter vivos deed of any nature, whether
gratuitous or for consideration, or any other transaction, directly
or indirectly, having as its object or effect shares of Saras
and/or rights thereof or relating thereto or that may trigger the
application of the provisions of the Legislative Decree no. 58 of
February 24, 1998 concerning mandatory takeover bids. 5. Duration
and renewal of the shareholders' agreement. 3
The Saras Shareholders' Agreement shall be effective until the
expiration of the third year from the date of effectiveness of the
Demerger and shall be automatically renewed for further periods of
three years each if none of the Parties gives written notice to the
others of its intention not to renew the Saras Shareholders'
Agreement at least six months before the first or any subsequent
expiration date 6. Type of shareholders' agreement. The Saras
Shareholders' Agreement may be ascribed to the type contemplated by
art. 122, fifth paragraph, letters a) and b) of the T.U.F. 7.
Filing of the shareholders' agreement. The Saras Shareholders'
Agreement is to be communicated to Consob and has been filed with
the Register of Enterprises of Cagliari on October 2, 2013 at no.
PRA 56118/2013. 8. Other information. 8.1 The Saras Shareholders'
Agreement provides for the appointment of a secretary (the
"Secretary") in relation to the Parties' performance thereunder.
The Secretary of the Saras Shareholders' Agreement shall be in
office for the duration of the Saras Shareholders' Agreement or
until it will be jointly revoked by the Parties. 8.1 The Saras
Shareholders' Agreement does not contemplate any obligation put in
escrow the shares subject to the Saras Shareholders' Agreement.
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