Attached files
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8-K - FORM 8-K - Liberty Acquisition Holdings Corp. | y84438e8vk.htm |
EX-4.1 - EX-4.1 - Liberty Acquisition Holdings Corp. | y84438exv4w1.htm |
EX-2.1 - EX-2.1 - Liberty Acquisition Holdings Corp. | y84438exv2w1.htm |
EX-10.2 - EX-10.2 - Liberty Acquisition Holdings Corp. | y84438exv10w2.htm |
EX-10.1 - EX-10.1 - Liberty Acquisition Holdings Corp. | y84438exv10w1.htm |
Exhibit 99.1
PROMOTORA
DE INFORMACIONES, S.A.
CORPORATE BYLAWS (PROPOSED AMENDMENT)
CORPORATE BYLAWS (PROPOSED AMENDMENT)
CHAPTER I
GENERAL PROVISIONS
GENERAL PROVISIONS
Article 1.
Corporate Name and Applicable Law
The Companys corporate name is Promotora de Informaciones,
S.A., and it is governed by the Spanish Corporations Law of
22 December 1989, applicable legal or regulatory provisions
and these Bylaws. References to the Law shall be
understood to refer to either the Spanish Corporations Law of
22 December 1989 or to the Securities Market Law of
29 July 1988, as applicable.
Article 2.
Corporate Purpose
1. The Companys corporate purpose includes:
a) Managing and operating all types of owned or third-party
news and social communications media, regardless of format,
including the publication of printed newspapers, among others.
b) Promoting, planning, and executing on behalf of the
Company or for others, either directly or through third parties,
of all types of communications media, industrial, commercial and
services projects, businesses or companies.
c) Incorporating businesses or companies, holding an
interest in previously existing companies, including a
controlling interest, and entering into association with third
parties in transactions and businesses through collaboration
arrangements.
d) Acquiring, holding either directly or indirectly,
leasing or otherwise exploiting and disposing of all types of
movable or real property or rights.
e) Contracting and providing services of consulting,
acquisitions and management of interests of third parties, by
intermediation, representation, or any other type of
collaboration for the account of the Company or for third
parties.
f) Acting in capital and money markets through the
management, purchase and sale of fixed income or equity
securities or any other type of securities on behalf of the
Company.
2. The aforementioned activities are understood to refer to
national or international companies and businesses, operations
or transactions, complying with their respective legal
requirements.
3. The Company may engage in all or part of the activities
comprising the corporate purpose indirectly through holdings in
other companies having a similar corporate purpose.
Article 3.
Duration
The Company commenced its operations upon the execution of its
notarized Articles of Incorporation and was incorporated for an
indefinite term. If the Law requires an administrative license,
registration with a public register or any other requisite prior
to the commencement of any of the operations described in the
previous Article, the Company shall not commence such operations
until it has fulfilled that requirement.
Article 4.
Nationality and Registered Offices
The Company is a Spanish company and has its registered offices
in Madrid at 32 Gran Vía. The Board of Directors is
empowered to open, close or transfer as many branches, agencies
or representative offices as it deems appropriate and to change
its registered office to any other address within the city in
which it is domiciled.
1
Article 5.
Jurisdiction for Court Action
Shareholders shall submit any action brought against the Company
to the courts having jurisdiction where the Company maintains
its registered offices.
CHAPTER II
SHARE CAPITAL AND SHARES
SHARE CAPITAL AND SHARES
Article 6.
Share Capital
The capital is
[ ]
divided in:
a) [ ]
Class A ordinary shares, each having a par value of TEN
EURO CENTS (0.10), numbered consecutively from 1 through
[ ]; and
b) [ ]
Class B non-voting convertible shares, each having a par
value of 0.1955034, numbered consecutively from
[ ]
through
[ ],
that shall be subject to the system contemplated expressly in
Article 8 of these Bylaws and Article 90 et seq. of
the Spanish Corporations Law. According to the
shareholders meeting resolution whereby they were issued:
Class B non-voting convertible shares shall have an initial
stated value of 7.331378, which stated value may be
increased as described below, and their main characteristics
shall be the following, which shall be further specified in the
shareholders meeting resolution whereby they were issued:
a) Dividends:
Holders of Class B non-voting convertible shares shall have
the right to receive the minimum annual dividend contemplated in
the following paragraph as long as distributable profits exist
according to the terms and limitations contemplated in
Article 213 of the Spanish Corporations Law and so long as
there is no legal restriction against such payment.
The minimum annual dividend to be paid to each Class B non
voting convertible share shall be equal to 7% of the then
current stated value, from the date of issuance. On the fifth
anniversary of their issuance, the minimum annual dividend of 7%
shall be increased by 25 basis points (0.25%) and,
thereafter, by an additional 25 basis points (0.25%) every
three months following the day of the fifth anniversary of the
date of issuance, up to a maximum of 9%.
If the Company has distributable profits, the Company will be
obliged to approve the distribution of the minimum dividend
established in the preceding paragraph.
If the Company has no distributable profits during a certain
fiscal year, then Class B non-voting convertible shares
will not have the right to the minimum dividend corresponding to
that certain fiscal year.
If the Company did have distributable profits, but not enough
distributable profits in the amount necessary to pay the minimum
dividend in full to the Class B non-voting convertible
shares, then the full amount of the distributable profits shall
be paid to the holders of Class B non-voting convertible
shares, pro-rata amongst the same.
The minimum dividends that have been unpaid due to the lack of
enough distributable profits will not be cumulative.
The minimum dividend that corresponds to the Class B
non-voting convertible shares shall be paid as soon as possible,
once the ordinary general shareholders meeting of each
year which should resolve the payment of the minimum
dividend- has been held, and, in any event, prior to September
30 of each year. The minimum dividend will be paid in connection
with the fiscal year to which the annual accounts approved by
the ordinary shareholders meeting that approves said
dividend refer to, applying the corresponding annual rate to the
then current stated value, except for the first year in which
the minimum annual dividend will be multiplied by a fraction,
the numerator of which will be the days elapsed from the date of
issuance to December 31, 2010 and the denominator of which
will be 365. In the event that in a fiscal year, there were
changes to the annual rate minimum dividend rate applicable, the
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rate applicable each day will be that in force from time to
time. In the events of conversion or liquidation the special
rules defined below shall apply.
If payable, the Company may elect to pay the annual dividend
either in cash or in kind by increasing the then current stated
value of Class B non-voting convertible shares by the
amount of such dividend. If the Company elects to pay the annual
dividend in kind, it will take all appropriate action (including
the allocation of a special un-distributable reserve in the
amount necessary attributable only to Class B non voting
convertible shares for it to be capitalized upon conversion, as
needed) to ensure that the Class B non-voting convertible
shares are fully convertible into Class A ordinary shares
at the new stated value promptly after any conversion date.
Once the minimum dividend has been approved, holders of
Class B non-voting convertible shares shall have the right
to receive the same dividend that corresponds, as the case may
be, to the Class A ordinary shares.
If the Company elects to convert the Class B non-voting
convertible shares as provided below and such election shall be
announced after March 31, or after any other prior date
when the annual accounts were prepared by the Board of Directors
of the Company or the Company had become aware of the existence
of distributable profits in the preceding year, the Company
shall pay the holders of Class B non-voting convertible
shares, in cash, the amount of the minimum dividend of the
preceding year at least simultaneously to the conversion or to
the holding of the general shareholders meeting that should
resolve on the payment of the dividend, whichever occurs later.
b) Conversion
Class B non-voting convertible shares shall be convertible
in the following conditions:
(i) At the option of each holder of Class B non-voting
convertible shares, each share may be converted into a number of
Class A ordinary shares that results from dividing the then
current stated value by 3.75, at any time after the second
anniversary of their issuance. If the then current stated value
were 7.331378 euros, then each Class B non voting
convertible share will give the right to 1.955034 Class A
ordinary shares.
(ii) At the option of the company:
| Prior to the second anniversary of the issuance date, each Class B non-voting convertible share may be converted into a number of Class A ordinary shares that results from dividing the then current stated value by 3.75, so long as the average volume weighted trading price of the Class A ordinary shares of each of the twenty consecutive trading days on the Spanish Market (Mercado Continuo) immediately prior to the announcement by the Company of its decision to proceed with such conversion, shall have been 7.50 or higher. | |
| From and after the second anniversary of the issuance date, and until the fifth anniversary of the issuance date, each Class B non-voting convertible share may be converted into a number of Class A ordinary shares that results from dividing the then current stated value by 3.75, so long as the average volume weighted trading price of the Class A ordinary shares of each of the twenty consecutive trading days on the Spanish Continuous Market (Mercado Continuo) immediately prior to the announcement by the Company of its decision to proceed with such conversion, shall have been 4.875 or higher. | |
| From and after the fifth anniversary of the issuance date, each Class B non-voting convertible B share may be converted into a number of Class A ordinary shares that results from dividing the then stated value by 3.75, so long as the average volume weighted trading price of the Class A ordinary shares of each of the twenty consecutive trading days on the Spanish Continuous Market (Mercado Continuo) immediately prior to the announcement by the Company of its decision to proceed with such conversion shall have been 3.75 or higher. |
In addition, from and after the fifth anniversary of the issue
date, the Company may, at its election, always complying with
applicable legal requirements, redeem the Class B
non-voting convertible shares for cash at the then current
stated value only so long as the average volume weighted trading
price of the Class A ordinary shares of each of the twenty
consecutive trading days on the Spanish Continuous Market
(Mercado Continuo) immediately prior to the announcement
by the Company of such redemption shall have been less than
3.75 per share. If the
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Company elects to redeem the Class B non-voting convertible
shares as provided in this paragraph and such election is
announced after March 31, or after any other prior date
when the annual accounts were prepared by the Board of Directors
of the Company or the Company had become aware of the existence
of distributable profits in the preceding year, the Company
shall pay the holders of Class B non-voting convertible
shares, in cash, the amount of the minimum dividend of the
preceding year at least simultaneously to the redemption.
The resolution to issue Class B non-voting convertible
shares will detail the conditions and the conversion dates
foreseen, within the framework described above.
The Company will not effect any reorganization,
recapitalization, reclassification, stock split, reverse stock
split or other similar changes in capitalization relating to the
Class A ordinary shares unless an appropriate adjustment to
the conversion rate of the Class B non-voting convertible
shares (as described above) is provided for.
Once the decision to convert has been announced, the
implementation of the same shall take place as promptly as
practicable.
c) Liquidation
For liquidation purposes, the disbursement value per
Class B non-voting convertible share shall be 7.331378
euros or the then current stated value.
In general, holders of Class B non-voting convertible
shares shall have the right to the same liquidation quota as
that corresponding to the rest of the shares.
Notwithstanding the above, holders of Class B non-voting
convertible shares shall have the right, in the terms of
Article 91.3 of the Spanish Corporations Law, to obtain
refund of the disbursement value before any amount is
distributed to the rest of the shares in the event of
liquidation of the Company, if the liquidation quota of all the
shares were lower than 7.331378 euros or the then current stated
value.
In the event that the balance sheet prior to liquidation,
contained distributable profits, holders of Class B
non-voting convertible shares shall have the right to perceive
the minimum dividend corresponding to the preceding year and the
then current year, before any distribution is paid to the rest
of the shareholders.
The share capital is fully subscribed for and paid up.
Article 7.
Representation of Shares
Shares shall be represented by book entry and considered as such
by virtue of their registration in the corresponding accounting
ledger, which shall reflect the terms included in the issue deed
and whether or not the shares have been fully paid up.
Entitlement to exercise shareholders rights, including the
transfer of shares, is evidenced by entry on the accounting
ledger, which is deemed to constitute the legitimate title and
enables the holder to require the Company to recognize it as a
shareholder. This right may be evidenced by submitting the
appropriate certificates issued by the entity having custody of
the accounting ledgers.
If the Company provides any benefit to a party deemed to be
entitled thereto, the Company shall be released from that
obligation even if the party is in fact not the actual
shareholder, provided that the Company acts in good faith and in
the absence of gross negligence.
If a person or entity is listed as a shareholder on the share
ledger by virtue of a nominee shareholder appointment or similar
document, the Company may require the party to disclose the
identity of the actual shareholders, as well as any transfer of
or encumbrance over the shares.
Article 8. Non-voting shares
1. The Company may issue non-voting shares for a par value
that does not exceed half of the paid up share capital. The
legal procedure governing non-voting shares shall be that
contemplated in the Bylaws and in the Spanish Corporations Law.
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2. Holders of non-voting shares shall have a right to
receive the minimum dividend established in the issue
resolution. Once the minimum dividend has been approved, holders
of non-voting shares shall have the right to receive the same
dividend that corresponds to the ordinary shares. Where there
are distributable profits, the Company is obliged to resolve to
pay the aforementioned minimum dividend. Unpaid minimum
dividends, either because there are no distributable profits or
because the profits cannot be distributed due to any legal
restriction, in a given year shall not be successively
accumulated.
3. Non voting shares shall have preemptive rights on the
same conditions as the voting shares. However, such preemptive
rights may be excluded pursuant to Article 159 of the
Spanish Corporations Law and these Bylaws.
4. The issuance of additional non-voting shares shall
require the approval, in a separate ballot or at a special
shareholders meeting, of the existing non-voting
shareholders.
5. Non-voting shares shall gain voting rights in the event
the Company does not fully pay the minimum dividend during two
consecutive financial years.
6. The Shareholders Meeting may issue convertible non
voting shares at a fixed conversion rate (determined or to be
determined) or at a variable conversion rate. The resolution
authorizing the issuance shall establish if the right to convert
or exchange is held by the shareholders or the Company or, as
the case may be, if the conversion will mandatorily occur at a
specific time.
Article 8
bis.- Redeemable shares
The Company may issue redeemable shares for a par value that is
not to exceed one quarter of the share capital and in compliance
with all other statutory requirements.
Article 9.
Share issues, subscription, and payment
The Shareholders Meeting, complying with the legal
requisites, may increase the share capital by issuing new shares
or by increasing the par value of existing shares. The
Shareholders Meeting shall establish the term and
conditions for each new issuance, and the Board of Directors
shall have the necessary powers to implement the resolutions
adopted with as wide a margin of discretion as the legal
framework allows and in accordance with the conditions defined
at the Shareholders Meeting. If not established at the
Shareholders Meeting, in accordance with the Law, the
Board of Directors may establish the procedure and maximum term,
which shall not exceed five years, to satisfy any unpaid share
capital, if any. In capital increases involving the issue of new
shares, ordinary or privileged, in cash, the existing
shareholders may, within the term granted by the Board of
Directors, that may not be less than fifteen days from the
announcement of the offer of subscription of the new issue in
the Boletín Oficial del Registro Mercantil
(Official Gazette of the Commercial Registry); exercise their
proportional preemptive rights to subscribe shares in accordance
with Article 158 of the Spanish Corporations Law, unless
such rights are excluded pursuant to Article 159 of the
Spanish Corporations Law.
The Shareholders Meeting, subject to the requirements
established for amendment of these bylaws, may delegate to the
Board of Directors, the powers that in connection with the
increase of share capital are contained in Articles 153 and
159 of the Spanish Corporations Law.
Article 10.
Transferability of Shares
Shares in the Company are freely transferable through any legal
procedure.
CHAPTER III
CORPORATE GOVERNANCE, MANAGEMENT, AND REPRESENTATION
CORPORATE GOVERNANCE, MANAGEMENT, AND REPRESENTATION
Article 11.
Corporate Bodies
The Company shall be governed by the Shareholders Meeting
and managed and represented by the managing body that it
appoints.
5
A.
SHAREHOLDERS MEETINGS
Article 12.
Powers
The Shareholders Meeting is the sovereign body of the
Company. The Shareholders Meeting shall decide in relation
to all matters within its competence as established in the
Bylaws, its own Regulations and the Law, and especially in
relation to the following:
a) The approval of the financial statements, the
consolidated financial statements, the management of the Board
of Directors and the proposal on the allocation of profit (loss).
b) The setting of the effective number of Directors.
c) The appointment and dismissal of the Directors, together
with the ratification or the revocation of the provisional
appointments of Directors made by the Board of Directors itself.
d) The appointment and re-election of Auditors.
e) The increase and reduction of the share capital, the
issuing of debentures and, in general, of negotiable securities
of any nature, including preferred shares, the transformation,
merger, spin-off and dissolution of the Company and any
amendment to the Bylaws.
f) Authorizing the Board of Directors to increase the share
capital, pursuant to the Spanish Corporations Law and to issue
debentures of any nature and delegate any other powers to the
Board of Directors in conformity with the Law and the Bylaws.
g) Approval and modification of the Regulations of the
Shareholders Meeting, subject to the terms of the Law and
the Bylaws.
h) Annual approval of the remuneration of the Board of
Directors, in accordance with the second paragraph of art. 19 of
the Company Bylaws.
i) Authorization of the remuneration of Directors
consisting of the delivery of shares or of options over the
same, or that is referenced to the value of the shares.
j) The exercise of any other power attributed to it by the
Law or by the Bylaws and the knowledge of or decision about any
other matter that the Board of Directors resolves should be
reported to or decided by the Shareholders Meeting
considering that it is of special relevance for the corporate
interest.
Article 13.
Types of Shareholders Meetings
Shareholders Meetings may be ordinary or extraordinary.
These meetings must be called and held within the time period
and in the manner stipulated in the Law, in these Bylaws and in
the internal Regulations of the Company. An ordinary
Shareholders Meeting shall be held each year on the date
agreed upon by the Board of Directors within the time period
established in Article 95 of the Law.
Extraordinary Shareholders Meetings may be held when the
Companys managing body deems appropriate or upon receipt
of a request from shareholders representing at least five
percent of the share capital, setting forth the matters to be
discussed at the meeting; in such case the meeting shall be
called to be held within 30 days after a notarized request
for a meeting has been submitted to the directors.
Article 14.
Preparation of Shareholders Meetings
All Shareholders Meetings shall be called within the time
periods and in the manner set forth in the Law, these Bylaws and
general Regulations of the Shareholders Meetings.
The notice of the Shareholders Meeting (the Call
Notice) shall contain the statements related to the
Company, the place, date and time that the meeting is to be
held, and the items on the agenda.
Shareholders representing at least 5% percent of the total share
capital may request that a supplement to the Call Notice be
issued to include one or more additional items on the agenda.
This right shall be exercised through a
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notice issued by any reliable means, received at the
companys registered offices within five days following
publication of the initial Call Notice.
The supplement to the Call Notice must be published at least
fifteen days prior to the date on which the meeting is to be
held.
Prior to or during the meeting, shareholders may request any
reports, documents or clarifications that they deem necessary,
as provided for in the Law.
Nevertheless, the meeting shall be deemed to have been validly
convened and assembled to discuss any matter, provided that
shareholders representing all of the share capital are present
and the attendees unanimously agree to hold the meeting,
pursuant to Article 99 of the Law (Universal
Meeting).
Article 15.
Holding of Shareholders Meetings
a) Location. Shareholders Meetings shall be held at
the venue indicated in the Call Notice in the town where the
Company has its registered offices, on the stipulated date and
time, unless it is a Universal Meeting.
b) Shareholders who own a minimum of 60 shares, that
are registered in the appropriate stock ledger five days prior
to the date of the meeting and who have obtained the
corresponding attendance card, may attend the Shareholders
Meeting.
The Board of Directors shall attend the meeting. The Chairman of
the Shareholders Meeting may authorize the attendance of
any person he deems appropriate; however, the Shareholders
Meeting may revoke that authorization.
c) Proxies: Shareholders may authorize another shareholder
to act for them as proxies. The appointment of proxy shall be
valid for a specific Shareholders Meeting. This requisite
shall not apply when the proxy holds a notarized power of
attorney to manage all of the shareholders assets located
in Spain. The appointment of proxy must be indicated in writing
on the attendance card provided with the Call Notice, in a
letter, or by electronic means of communication. In the latter
case, requirements similar to those established for electronic
voting must be met.
d) Quorum. Without prejudice to the procedures set forth in
the Law for special cases, a Shareholders Meeting may be
held at first call when shareholders present or represented hold
at least 25% of the subscribed voting capital. At second call, a
Shareholders Meeting may be validly held regardless of the
capital in attendance.
e) Chairman of the Shareholders Meeting
The Chairman of the Shareholders Meeting shall be the
Chairman of the Board of Directors and, in the absence thereof,
the Vice Chairman, if any. In the absence of both the Chairman
of the Board of Directors and the Vice Chairman, the Chairman of
the Shareholders Meeting shall be the longest-serving
Director and, in the absence of all the foregoing, the
shareholder designated for such purpose by the
Shareholders Meeting.
The Chairman shall submit to deliberation all the matters
included in the agenda and direct the deliberations in a manner
such that the meeting progresses in an orderly manner. The
Chairman shall exercise all the necessary powers, including
those of order and discipline.
The Chairman shall be assisted by the Secretary, who shall be
the Secretary of the Board of Directors, or in the absence
thereof, the Vice Secretary and, in the absence of all the
foregoing, the person designated for such purpose by the
Shareholders Meeting.
The Presiding Committee (Mesa) of the Shareholders Meeting
shall be constituted by the Chairman and the Secretary, together
with the other members of the Board of Directors in attendance.
f) Voting by mail or distance electronic means.
Shareholders may vote by mail or by distance electronic means on
resolutions proposed concerning the items on the agenda for any
type of Shareholders Meeting. The identity of the party
exercising its voting rights must be ensured in accordance with
the requirements set forth in the Shareholders Meeting
Regulations. Shareholders using distance voting shall be deemed
present when determining whether a quorum for the meeting
exists. Votes cast using such methods must have been received at
the Companys registered offices at least twenty-four hours
prior to the time when the Shareholders Meeting is to be
held on first
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call. Otherwise, the vote shall be deemed not to have been cast.
The Board of Directors may set an earlier deadline when calling
each Shareholders Meeting.
g) Voting. The Chairman shall announce the voting results,
summarizing the number of votes in favor and against the
proposed resolution by reading the results aloud.
The Regulations of the Shareholders Meeting shall
establish the procedures and systems of the computation of the
votes in relation to the proposals to be passed.
h) Resolutions. Resolutions shall be adopted by vote of the
majority of the voting capital attending as required in these
Bylaws and the Spanish Corporations Law. Each voting share,
whether its holder is present or represented at the
Shareholders Meeting, shall grant the holder the right to
one vote.
The approval of a resolution shall require the favorable vote of
one-half plus one of the voting shares whose holders are present
in person or by proxy at the Shareholders Meeting, except
when the Bylaws or the Law require a greater majority.
Notwithstanding the provisions of the foregoing paragraph, no
shareholder may cast a number of votes greater than those
corresponding to shares representing thirty (30%) percent of
share capital with voting rights, even if the number of shares
held exceeds such percentage of capital. This limitation does
not affect votes corresponding to shares which are considered to
be represented by a shareholder as a result of letter c) of
this article, provided, however, that with respect to the number
of votes corresponding to the shares of each shareholder
represented by proxy, the limitation set forth above shall apply.
Neither shall this limitation affect the total voting rights
corresponding to the shares of which the depositary of shares
issued by the Company under an American Depositary Shares (ADS)
program represented by American Depositary Receipts (ADR) is the
fiduciary holder, or the voting rights corresponding to the
shares held by a financial intermediary on behalf of its
clients, provided that this is evidenced by the financial
intermediary and without prejudice to the limitation of 30% of
the voting rights applying to the shares of investors on behalf
of which the financial intermediary or the depositary bank acts.
The limitation set forth in the foregoing paragraph shall also
apply to the maximum number of votes that may be collectively or
individually cast by two or more shareholders which are entities
or companies belonging to the same group. Such limitation shall
also apply to the number of votes that may be cast collectively
or individually by an individual and the shareholder entity,
entities or companies controlled by such individual, or by
persons acting in concert or through an intermediary person. A
group shall be deemed to exist in the events set forth in
Section Four of the Securities Market Law, and an
individual shall be deemed to control one or more entities or
companies, in the events of control set forth in such
Section Four.
The voting limitations established in this article shall not
prevent all attending shareholders to be computed to determine
the attending quorum. Shares deprived of voting rights pursuant
to the application of the foregoing paragraphs shall be deducted
from the shares in attendance at the Shareholders Meeting
for purposes of determining the number of shares upon which the
majorities needed for the approval of resolutions submitted to
the Shareholders Meeting shall be calculated.
Article 15
bis.- Special Resolutions
A special qualified majority of 75% of the share capital with
voting rights, present or represented at a Shareholders
Meeting, shall be necessary to approve any of the following
matters:
a) Amendments of the Bylaws, including, among others,
change of corporate purpose or nature of the business, and
increases or reductions of share capital, except if such
increase or reduction of capital is mandatory by law;
b) Transformation, merger or spin-off in any of their forms
as well as the transfer en bloc of assets and liabilities;
c) Liquidation or dissolution of the Company;
8
d) Elimination of preemptive subscription rights in
increases of capital in cash;
e) Modification of the managing body of the Company and the
number of the members of the board of directors;
d) Appointment by the Shareholders Meeting of a
directors proposed by one or more shareholders.
Article 16.
Implementation of Corporate Resolutions
a) Powers. The Board of Directors shall have powers to
implement all Shareholders Meeting resolutions without
prejudice to any powers delegated or powers of attorney granted
in accordance with these Bylaws.
b) Drafting and approval of the minutes. The minutes of the
Shareholders Meeting may be drawn up and approved in
accordance with Article 113 of the Law and signed by the
chairman and the secretary. If the Shareholders Meeting is
held in the presence of a Notary requested to issue the minutes
by the Board of Directors, as established in article 114 of
the Spanish Corporation Laws, the notarial minutes will be
considered to be the minutes of the Shareholders Meeting,
which minutes therefore need not be approved.
B. BOARD
OF DIRECTORS
Article 17.
Nature, number of members, and officers
The Board of Directors shall manage, direct and represent the
Company, without prejudice of the powers that pursuant to the
Law or the Bylaws within the competence of the
Shareholders Meetings.
The Board of Directors will have a minimum of three and a
maximum of fifteen members. The Shareholders Meeting shall
determine the number and shall appoint its members. The
Shareholders Meeting may establish such number either by
express resolution or indirectly, through the filling or not of
vacancies or the appointment or not of new Directors within the
minimum and maximum numbers mentioned above.
From among its members the Board of Directors shall appoint a
Chairman and may likewise appoint one or several deputy
chairmen. It may also appoint from among its members an
Executive Committee or one or several Managing Directors, to
whom it may grant joint or joint and several powers to represent
the Company.
The Board of Directors shall also appoint a secretary, who need
not be a board member, and may appoint a vice-secretary who
likewise need not be to be a board member.
The Board of Directors shall approve the Regulations governing
its organization and procedures.
Article 17
bis.- Qualitative Composition of the Board of
Directors
1. It would be deemed as:
a) Executive directors: those directors who perform senior
management duties or are top executive employees of the Company.
In any case, those directors who have permanent general
faculties of the Board of Directors delegated upon them or/and
are engaged under senior management contracts or professional
services agreements that have as their subject matter the
provision of executive services on a full-time basis, will be
considered to be executive directors.
b) External dominical directors: those Directors
(i) who hold a shareholding is greater than or equal to
that legally regarded as significant at any time or who have
been appointed in consideration of their status as shareholders,
although their shareholding interest does not reach such amount;
(ii) or whose appointment has been proposed to the Company
by shareholders of the type described in the preceding letter
(i).
c) External independent directors: those directors who are
not included in any of the preceding categories and that have
been appointed because of their personal and professional
prestige, their experience and knowledge for the discharge of
the position, unrelated to the Companys significant
shareholders or its managers.
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d) Other external directors: those external directors who
do not have status as dominical or independent directors.
The Regulations of the Board of Directors may further elaborate
upon and develop these concepts.
2. The Board of Directors shall be composed in such a
manner that the external or non-executive directors, represent a
majority over the executive directors, with the presence of
independent directors.
Article 18.
Tenure of Office
All Board of Directors members shall be elected for a term of
five years and are eligible for re-election for terms of equal
duration.
Article 19.
Remuneration
1. The Corporate Governance, Appointments and Remuneration
Committee shall propose to the Board of Directors, in accordance
with the Bylaws and the Corporate Governance, Appointments and
Remuneration Regulation: i) the general policy of
directors and managers compensation; ii) the
individual compensation of the executive directors and the rest
of the content of their contracts and iii) the individual
compensation of honorary directors.
2. Directors compensation shall consist of an annual
fixed amount, on the terms decided by the board of directors,
after a proposal of the Corporate Governance, Appointments and
Remuneration Committee, within the limits established by the
Shareholders Meeting for such remuneration.
The remuneration of individual directors may differ depending on
the offices they hold and their service on board committees, and
shall be compatible with per diem expenses paid for attendance
to meetings.
When approving the financial statements, the ordinary
Shareholders Meeting may amend the limit set on
directors remuneration and, if not amended, the current
limit shall automatically be updated at the beginning of the
fiscal year, based on any variation in the total national
Consumer Price Index.
The Board of Directors shall establish the exact amount of per
diem expenses and individual compensation to be paid to each
director, within the limits established by the
Shareholders Meeting.
Without prejudice to the remuneration set forth above,
directors compensation may also consist of delivery of
stock or stock options, or amounts referenced to share value.
Such compensation shall require the approval of the
Shareholders Meeting which will indicate the number of
shares to be awarded, the exercise price for stock options, the
value of shares taken as a reference, and the duration of this
compensation system.
The Company may arrange civil liability insurance for its
directors.
Article 20.
Representation of the Company
In accordance with Article 129 of the Law, the Board of
Directors shall represent the Company, whether in court or
otherwise. Thus it is granted broad powers to manage, direct,
administer assets and represent the Company, with the capacity
to enter into all types of transactions and contracts to dispose
of or acquire absolute ownership of all types of personal or
real property, securities, currencies or negotiable instruments.
Such broad powers of representation shall consequently extend to
mercantile, commercial, or banking transactions, including those
generally requiring express powers of attorney, and shall
suffice to encumber or mortgage property, reach settlements,
acquire interests in other companies, file appeals at both the
Supreme Court and Constitutional Court, to confess or to testify
in court, or guarantee third-party transactions, with no
limitations other than those set forth in the Law.
The Board of Directors may, even when exercising delegated
powers, grant and withdraw general or special powers of attorney
with the powers it determines, including the power to have other
parties substitute for it, or confer such powers, in whole or in
part, upon other persons.
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The Board of Directors may not delegate its obligation to render
accounts, submit balance sheets to the Shareholders
Meetings or any powers that the Shareholders Meeting may
have granted the Board without being expressly authorized to
delegate the same.
Article 21.
Powers of members of the Board of Directors
Members of the Board of Directors shall have the following
powers:
a) Chairman: Represents the Company in court and out of
court. He/she may exercise the powers delegated to him/her by
the Board of Directors, with authority to grant general powers
of attorney for litigation and such special powers of attorney
as he/she
deems appropriate. He/she shall ensure that the Board of
Directors meetings are held in an orderly fashion, issue notices
of meeting, and inspect and review all corporate resolutions
proposed by any corporate body.
b) Deputy Chairmen: Exercise, as the case may be, all of
the powers of the Chairman in the event of the Chairmans
temporary absence or incapacity, or those powers expressly
delegated to them by the Chairman.
c) Secretary: Draft minutes, if applicable, of the
resolutions adopted by the Board of Directors and at
Shareholders Meetings, maintaining records and issuing
certificates countersigned by the Chairman.
Article 21
bis. Audit Committee
The Board of Directors shall appoint an Audit Committee. The
Audit Committee shall have the appropriate functions pursuant to
applicable law, the Bylaws and the internal Regulations of the
Company, without prejudice to any other function that may be
attributed to it by the Board of Directors.
The Audit Committee shall have the number of members to be
established by the Board of Directors from time to time, with a
minimum of three and a maximum of five members. At least a
majority of the Audit Committee members shall be non-executive
directors, and they shall likewise meet all other
legally-established requirements.
Committee members shall be appointed by the Board of Directors
at the proposal of the Chairman and shall cease in their
functions when they are no longer Board members or when so
decided by the Board of Directors.
The Committee Chairman shall be elected by the Board of
Directors from among the committee members who are non-executive
directors and who likewise meet the other legally established
requirements. The Committee Chairman shall be replaced every
four years and may be reappointed one year after his removal.
The members of the Audit Committee shall have a Secretary
appointed by the Board of Directors from among the members of
that Committee. The Secretary shall draw up the minutes of the
Committee meetings in accordance with the terms set forth for
the Board of Directors.
The Committee shall meet periodically as appropriate, and at
least four times a year, after it is called by its Chairman.
The Audit Committee shall be governed by the same regulations
established in the Corporate Bylaws for the Board of Directors,
provided that they are compatible with the nature and functions
of this Committee.
Artículo
21 ter.-
Corporate
Governance, Appointments and Remuneration Committee.
The Board of Directors shall organize a Corporate Governance,
Appointments and Remuneration Committee, which shall have the
functions legally pertaining to it in accordance with the
applicable Law, the Bylaws and the internal Regulation of the
Company, and any other function that the Board of Directors may
attribute to it.
The Corporate Governance, Appointments and Remuneration
Committee shall have a minimum of three (3) and a maximum
of five (5) external directors, to be established by
resolution of the Board of Directors upon a motion from the
Chairman.
The Corporate Governance, Appointments and Remuneration
Committee may request the attendance of the Companys
Managing Director to its meetings.
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The members of the Corporate Governance, Appointments and
Remuneration Committee shall leave their posts when they do so
in their capacity as directors or when so resolved by the Board
of Directors.
The Chairman and the Secretary of the Committee shall be
selected by the Board of Directors from among its members who
are independent directors.
Article 22.
Board of Directors Meetings
The Board of Directors shall meet at least once every quarter
and whenever the Chairman deems this appropriate, or when
requested by two or more directors or by the Managing Director.
In the latter two cases, the Chairman shall not delay issuing a
notice of meeting more than five days after the date that the
request is received.
Notice of Board of Directors meetings including the agenda for
the meeting shall be issued by the Chairman or his substitute,
by fax, telegram,
e-mail, or
registered mail to each and all of the directors at least seven
days prior to the date of the meeting.
Under urgent circumstances and at the Chairmans
discretion, a board meeting may be called without the
aforementioned prior notice, indicating the matters to be
discussed.
Article 23.
Constitution and Quorum at Board of Directors Meetings
A Board of Directors meeting may be validly held when one-half
plus one of the members is present or represented by proxy. Any
director may appoint another director as
his/her
proxy. Resolutions shall be passed by the majority vote of the
members in attendance. In the event of a tie, the Chairman shall
have the casting vote.
The Board of Directors may delegate the power to approve the
minutes to two of the directors who may be appointed at the
corresponding meeting.
Article 24.
Minutes Book
Board of Directors resolutions shall be recorded in the minutes
book and signed by the chairman and the secretary or by their
substitutes. Certificates of the minutes shall be issued by the
Secretary with the approval of the Chairman.
Article 25.
Compatibility of Office
Directors may serve the Company in any other capacity, for
consideration or otherwise, in the absence of any
incompatibility established by law or deemed as such by the
Board of Directors.
Directors remuneration pursuant to these bylaws shall be
compatible with and independent from any other salaries,
remuneration, indemnities, pensions or consideration of any type
collectively or individually afforded to those members to the
Board of Directors who hold any other post or remunerated
position of responsibility, whether under an employment contract
or otherwise, in the Company or in any other company within its
Group as defined in Article 42 of the Commercial Code.
Article 26.
Substitutions and Appointments
In the event of the Chairmans temporary absence or
incapacity, the vacancy shall be filled by the deputy chairman,
if any, and otherwise by a director appointed by the Board of
Directors. With regard to the Secretary, under the same
circumstances, a director appointed by the Board of Directors
shall assume the Secretarys functions. When performing
such duties the office assumed shall be indicated, followed by
the word interim and the reason for the substitution.
Until the first Shareholders Meeting is held, vacancies on
the Board of Directors may be filled provisionally by
shareholders appointed by the Board of Directors.
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Article 27.
Removal and resignation
In addition to the legal grounds for terminating their term of
office, members of the Board of Directors may be removed by the
Shareholders Meeting or by their own resignation.
Article 28.
Remuneration for Delegated Officers
Remuneration for the Chairman, the Deputy Chairman, if any, and
the Managing Director shall be fixed and determined by the Board
of Directors, after a report of the Corporate Governance,
Appointments and Remuneration Committee, without prejudice to
any remuneration that they might receive pursuant to
Article 19 of these Bylaws.
C. OTHER
PERSONS HOLDING POWERS OF ATTORNEY
Article 29.
Persons Holding Special Powers of Attorney
The Board of Directors may grant other persons powers of
attorney for specific matters, issuing the corresponding
notarized powers of attorney.
D. ANNUAL
CORPORATE GOVERNANCE REPORT AND WEBSITE
Article 29
bis. Annual corporate governance report
The Board of Directors, following a report of the Audit
Committee, shall annually approve a corporate governance report
for the Company which shall include all the specifications
legally provided for and any other specifications which the
Board of Directors deems appropriate.
The annual corporate governance report shall be approved prior
to the publication of the call of the Companys annual
shareholders meeting for the fiscal year to which such
report refers, and shall be made available to the shareholders
together with the rest of documents relating to the
Shareholders Meeting.
In addition, public notice shall be given of the annual
corporate governance report as provided in the Securities Market
Law.
Article 29
ter.- Website
The Company shall maintain a website for shareholders and
investors information, which shall include the documents
and information provided for by Law, and at least the following:
a) The Bylaws in force.
b) The Shareholders Meeting Regulation in force.
c) The Board Regulations in force.
d) The annual report.
e) The current Internal Regulations of Conduct in the
Securities Markets.
f) The annual corporate governance reports.
g) The documents related to annual and special
shareholders meetings, information on the agenda,
resolutions proposed by the Board of Directors and any other
relevant information that the shareholders may need in order to
vote.
h) The information on the proceedings of the
Shareholders Meetings held, and in particular, on the
composition of the Shareholders Meeting at the time when
it assembled, and the resolutions adopted, with a statement of
the number of votes cast and the sense of such votes on each of
the proposals included in the agenda.
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i) The existing channels of communication between the
Company and the shareholders and, in particular, relevant
explanations on the exercise of a shareholders right to
receive information, indicating the mail and
e-mail
addresses to which the shareholders may direct their requests.
j) The means and procedures for granting a proxy to attend
a Shareholders Meeting.
k) The means and procedures for casing votes remotely,
including, where applicable, the forms required to evidence
attendance and the casting of votes by means of data
transmission procedures at the Shareholders Meeting.
l) All relevant events of which notice was given to the
National Securities Market Commission.
CHAPTER IV
FINANCIAL AND ADMINISTRATIVE PROCEDURES
FINANCIAL AND ADMINISTRATIVE PROCEDURES
Article 30.
Fiscal Year
The fiscal year shall commence on January 1 and end on
December 31.
Article 31.
Financial statements and Auditors
1. The Board of Directors, within the period of time
established by Law, shall draw up the Companys Annual
Financial Statements, the Management Report and the Proposal for
Allocation of Profit and Losses, and, if applicable, the
consolidated Financial Statements and the consolidated
Management Report.
2. The Companys Annual Financial Statements and the
Management Report, as well as, the consolidated Financial
Statements and the consolidated Management Report shall be
reviewed by the Auditors.
Article 32.
Allocation of Profits/Losses
1. The Shareholders Meeting shall resolve upon the
allocation of profits or losses in accordance with the approved
balance sheet.
2. Once such payments as are provided for by these Bylaws
or by Law have been made, dividends may only be distributed
against the profits for the fiscal year or against undistributed
reserves, if the book value of net assets is not less than the
share capital, or does not become so as a result of the
distribution.
If there were losses accumulated from previous fiscal years
which reduced the referred book value of net assets below the
share capital, the profits shall be allocated to off set such
losses.
Additionally, profits may not be distributed until the start up
expenses, together with research and development expenses and
goodwill as stated in the balance sheet are fully written off,
unless the amount of unrestricted reserves is, at least, equal
to the amount of expenses which have not been written off.
3. Legal reserves shall be provided for in accordance with
Article 214 of the Law. Additional provisions shall also be
created by deducting 10% of after-tax profits to create a
reserve amounting to at least 20% and no more than 50% of the
paid up share capital to cover matters determined by the
Shareholders Meeting. The Shareholders Meeting may
also establish any voluntary reserves that it considers
appropriate.
Article 33.
Distribution of profits
1. If there are distributable profits, the Company shall be
obliged to resolve upon the payment of a minimum dividend in the
event that there were non-voting shares according to the Spanish
Corporations Law and these Bylaws.
2. Annual net profits shall be distributed among
shareholders in proportion to their holdings, once the
companys obligations have been met, legal, statutory and
voluntary reserves, if any, have been allocated, and the Board
of Directors remuneration has been paid, without prejudice
of what is established in paragraph 1 above.
14
In its dividend distribution resolution, the Shareholders
Meeting shall establish the payment date and procedure. The
Board of Directors may declare interim dividends, subject to the
limitations and requirements set forth in the Law.
Article 34.
Lapse of dividends
Dividends for a given year that are not received by a
shareholder within five years of the dividend payment date shall
lapse for the benefit of the Company.
CHAPTER V
DISSOLUTION AND LIQUIDATION
DISSOLUTION AND LIQUIDATION
Article 35.
Dissolution of the Company
The Company shall be dissolved upon occurrence of any of the
events set forth in Article 260 and related articles.
If the Companys dissolution is due to the value of its net
worth having fallen below half of the share capital, dissolution
may be avoided by a resolution increasing or reducing share
capital in accordance with the provisions of
Article 260.1.4 of the Law.
Article 36.
Liquidation Procedures
After the Shareholders Meeting has resolved to dissolve
the Company, at the proposal of the Board of Directors, it shall
open the liquidation period, appoint one or more liquidators in
an odd number, and define their powers.
This appointment shall terminate the powers of the Board of
Directors.
During the liquidation period the Shareholders Meeting
shall enjoy the same powers as it exercised during the normal
life of the Company and shall specifically have the power to
approve the financial statements and the final liquidation
balance sheet.
Article 37.
Remuneration of liquidators
Upon appointment of the liquidators, the Shareholders
Meeting shall establish the fees or remuneration to be paid to
the liquidators for their services.
Article 38.
Liquidation Procedures
Without prejudice to what is established under Article 277
of the Spanish Corporations Law, in general, all shares
(Class A ordinary shares and Class B non-voting
convertible shares) shall have the right to the same liquidation
quota, if any.
Notwithstanding the above, holders of Class B non-voting
convertible shares shall have the right, in the terms of
Article 91.3 of the Spanish Corporations Law, to obtain
refund of the then current stated value before any amount is
distributed to the rest of the shares in the event of
liquidation of the company, if the liquidation quota of all the
shares were lower than 7.331378 euros or the then current stated
value of the Class B non-voting convertible shares, as
provided in Article 6 of these By-laws.
The provisions of the Law shall apply to all other matters not
addressed herein.
CHAPTER VI
APPLICABLE
LAW
Article 39
The provisions of the Spanish Corporations Law and the
Securities Market Law shall be observed and applied in any
matters not addressed in these Bylaws.
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CHAPTER VII
NEUTRALIZATION
OF LIMITATIONS IN THE EVENT OF PUBLIC
TENDER OFFERS
TENDER OFFERS
Article 40.-
Removal of voting limitations
The limitation on the maximum number of votes that may be cast
by a single shareholder contained in article 15 of these
Bylaws shall have no effects upon occurrence of the following
circumstances:
a) When the Company is the target of a public tender offer
aimed at the share capital as a whole and
b) as result of the public tender offer, the party
launching the offer had acquired an interest equal or higher
than 75% of the capital providing voting rights of the Company.
Article 41.-
Effectiveness of the Removal
1. The removal of the limitations mentioned in the above
paragraph shall be effective from the date of the publication of
the settlement of the offer in the Listing Bulletin
[Boletín de Cotización] of the Stock Markets at which
the securities of the Company were traded.
2. The Directors of the Company shall have the power and
the duty to execute the corresponding public instrument
formalizing the by-law amendment referred to in the paragraph
one above and to seek registration thereof with the Commercial
Registry.
Article 42.-
Amendments to Articles in Chapter VII
All resolutions intended to eliminate or amend the provisions
contained in this Chapter shall require the affirmative vote of
75% of the voting share capital in attendance, present or
represented, at a Shareholders Meeting.
16