RB 30/2021: Decision on amendments to the company's articles of association


RB: 30/2021
Date: 3 September 2021
Decision on amendments to the company's articles of association
Legal basis: Article 56 Sec. 1 Item 2 of the Act on Public Offering – Current and Periodic Information

Text of the report:

The Management Board of Benefit Systems S.A. with its registered seat in Warsaw (the "Company") hereby announces that the Company received court decision dated 31 August 2021 issued by the District Court for the Capital City of Warsaw in Warsaw regarding the registration of the amendment into the Articles of Association of the Company (the “Registration”) on basis of the Resolution No. 21/29.06.2021 of the Ordinary General Meeting of the Company adopted on 29 June 2021. The Management Board of the Company informed about the adoption of the above mentioned resolution in current report No. 24/2021 of 29 June 2021.
Following the Registration:
1)     § 6 Section 1 of the Articles of Association of the Company now reads as follows:
“1. The share capital of the Company amounts to PLN 2,894,287.00 (say: two million eight hundred ninety-four thousand and two hundred and eighty-seven zlotys) and is divided into 2,894,287.00 (say: two million eight hundred ninety-four thousand and two hundred and eighty-seven) ordinary shares, each with the nominal value of PLN 1.00 (say: one zloty), including:
(a) 2,204,842 (say: two million two hundred and four thousand eight hundred and forty-two) series A bearer shares numbered from A0000001 to A2204842;
(b) 200,000 (say: two hundred thousand) series B bearer shares numbered from B000001 to B200000;
(c) 150,000 (say: one hundred and fifty thousand) ordinary series C bearer shares, each with the nominal value of PLN 1.00 (say: one zloty), which have been taken up as a result of exercise of the rights derived from subscription warrants issued by the Company on the basis of Resolution No. 6/2010 of the Extraordinary General Meeting of 24 November 2010;
(d) 120,000 (say: one hundred and twenty thousand) ordinary series D bearer shares, each with the nominal value of PLN 1.00 (say: one zloty), which have been taken up as a result of exercise of the rights derived from subscription warrants issued by the Company on the basis of Resolution No. 19/31.05.2012 of the Ordinary General Meeting of 31 May 2012;
(e) 35,445 (say: thirty-five thousand four hundred forty-five) ordinary series E bearer shares, each with nominal value of PLN 1.00 (say: one zloty), which have been taken up as a result of exercise of the rights derived from subscription warrants issued by the Company on the basis of Resolution No. 21/15.06.2016 of the Ordinary General Meeting of 15 June 2016
(f) 184,000 (say: one hundred and eighty four thousand) ordinary series F bearer shares, each with the nominal value of PLN 1.00 (say: one zloty).”
2)    § 7 Section 2 of the Articles of Association of the Company now reads as follows:
“2. If a shareholder so requests, registered shares may be converted into bearer shares.  Conversion of registered shares into bearer shares shall be carried out by the Management Board upon request submitted by a shareholder within thirty (30) days from the date of receipt of such a request.”
3)    § 7 Section 4 of the Articles of Association of the Company is deleted;
4)    § 12 Section 4 of the Articles of Association of the Company now reads as follows:
“4. During the financial year, the Company may establish and dissolve reserve capitals and special-purpose funds by way of adopting a resolution of the General Meeting.”
5)    § 15 Section 3 of the Articles of Association of the Company now reads as follows:
„3. Members of the Management Board shall be appointed and recalled by the Supervisory Board with the proviso that the Management Board of the first term of office has been appointed in a resolution of the Shareholders Meeting upon transformation of limited liability company Benefit Systems Spółka z ograniczoną odpowiedzialnością into joint stock company Benefit Systems Spółka Akcyjna. The Supervisory Board shall decide about the number of members of the Management Board and may appoint the President and the Vice President of the Management Board from among Management Board members. In the event that a mandate of a Management Board member expires before the lapse of specific term of office, the Supervisory Board shall promptly make up for such a vacancy in the panel of the Management Board.”
6)    § 17 Section 2 and § 17 Section 5 of the Articles of Association of the Company now reads as follows:
“2. Meetings of the Management Board shall be convened:
a) in the event that the President of the Management Board has been appointed - by the President of the Management Board, or, in the event of where it is necessary to act in lieu of the President of the Management Board, by a member of the Management Board appointed by the President of the Management Board to this end;
b) in the event that no President of the Management Board has been appointed: by any member of the Management Board or two (2) members of the Management Board acting jointly.
5. Resolutions of the Management Board shall be adopted with the absolute majority of votes. In the event of a tie, the President of the Management Board, provided that the Supervisory Board has nominated the President of the Management Board, shall have the casting vote.”
7)    § 17 Section 9 of the Articles of Association of the Company is added with the following wording:
“9. The competencies to run the Company’s affairs have been internally distributed among the members of the Management Board of the Company. Specific scopes of competencies of individual members of the Management Board of the Company are specified in the by-laws of the Management Board.”
8)    § 19 of the Articles of Association of the Company now reads as follows:
“1. Members of the Management Board may be engaged by the Company on the basis of employment contract or on the basis of a different civil law contract. Employment contracts or other contracts providing the basis for engagement of the members of Management Board, as well as other contracts between Management Board members and the Company shall be executed by a proxy to act on behalf of the Company who shall be appointed in a resolution of the General Meeting, or by the Supervisory Board who shall be represented to this end by its Chairperson authorized by the Supervisory Board to execute such civil law transactions.
2.  In disputes with members of the Management Board, the Company shall be represented by the Supervisory Board or by a proxy appointed to this end in a resolution of the General Meeting in conformity with Article 379 §1 of the Code of Commercial Companies. The Supervisory Board may authorize, in a resolution, its Chairperson or another member of the Supervisory Board, to carry out such civil law transactions.
3. A member of the Management Board may not, unless they obtain a consent from the Supervisory Board to this end, pursue an activity competitive to the activity of the Company, cooperate with other entities on any basis whatsoever, in particular on the basis of employment contract, mandate contract, contract to perform specific task or hold, take up, subscribe for, or acquire shares or stocks in the competitive or in any other entities, or serve on any bodies of such other entities.”
9)    § 20 of the Articles of Association of the Company now reads as follows:
“1. The Supervisory Board shall be composed of five (5) members who shall be appointed and recalled by the General Meeting.
2. Candidacies for members of the Supervisory Board should be notified to the Company no later than seven (7) days before the scheduled date of the General Meeting, along with the candidate’s biographical note and their declaration as to whether they meet the conditions set forth in Sec. 4 below.
3. Members of the Supervisory Board shall be appointed to a joint five-year term of office.
4. As long as the Company continues to be an entity of public interest within the meaning of Statutory Auditor, Auditor’s Firms and Public Supervision Act of 11 May 2017 (hereinafter the “Statutory Auditor, Auditor’s Firms and Public Supervision Act”), at least two (2) members of the Supervisory Board should be independent and meet the independence criteria stipulated in Article 129 Sec. 3 of the Act (hereinafter, the “Independent Members of the Supervisory Board”). A failure to meet the requirement stipulated in sentence one above (in particular in the event of a failure to appoint, to the Supervisory Board, a member meeting the independence criteria, or if an independent member of the Supervisory Board has lost that status during the term of their mandate or in the event that the mandate of such an independent member of the Supervisory Board has expired) shall not trigger the Supervisory Board’s losing its status of a [governing] body of the Company or prevent adoption of valid resolutions by the Supervisory Board.
In the event that the Management Board or the Supervisory Board receives from an Independent member of the Supervisory Board a statement to the effect that they no longer meet the independence criteria, as specified in Sec. 4 above, or the Management Board or the Supervisory Board obtains such an information from a different source, then, within two (2) days from receipt of the statement or becoming aware of the fact, the Management or the Supervisory Board shall convene the General Meeting to appoint a new Independent Member of the Supervisory Board.
5. In the event that a mandate of a member of the Supervisory Board expires due to their submitting of resignation or due to their death, the other members of the Supervisory Board may appoint a new member by adopting a resolution on cooptation. A member of the Supervisory Board so elected shall exercise their duties until a new member of the Supervisory Board is elected by the General Meeting. Provisions of Sec. 4 above shall apply to appointment of a member of the Supervisory Board in line with the principles stipulated in this Sec. 5, accordingly. The Supervisory Board may include no more than two (2) members who have been appointed in line with the above-specified principles.
6. Members of the Supervisory Board may be reappointed.”
10)    § 22 Section 6 of the Articles of Association of the Company now reads as follows:
“6. Meetings of the Supervisory Board may also be held using means of distance communication.”
11)    § 23 Section 3 of the Articles of Association of the Company now reads as follows:
“3. The Supervisory Board may adopt resolutions in writing or using means of distance communication. A resolution adopted using such means of communication shall only be valid if all members of the Supervisory Board have been informed about the content of draft resolution.”
12)    § 26 of the Articles of Association of the Company is added with the following wording:
“1. As long as the Company shall remain an entity of public interest within the meaning of the Statutory Auditor, Auditor’s Firms and Public Supervision Act, the Supervisory Board shall appoint an audit committee that shall be composed at least of three (3) members, whereby most of the members of the audit committee shall meet the independence criteria, as referred to in § 20 Sec. 4 of the Articles of Association of the Company. With regard to the composition of the audit committee, provisions of the Statutory Auditor, Auditor’s Firms and Public Supervision Act shall apply.
2. The tasks of the audit committee shall include in particular:
(a)    the monitoring of: the financial reporting procedure, the effectiveness of the systems of: the internal control, the risk management, as well as the internal audit, in particular within the scope of the financial reporting and the exercising of the financial audit activities;
(b)    exercising control of and monitoring the independence of the statutory auditor’s and of the auditor’s firm;
(c)    informing the Supervisory Board about the outcomes of the audit and explaining of how the audit contributed to the accuracy of the financial reporting in the Company and of the role of the audit committee in the audit process;
(d)    assessing the independence of the statutory auditor and granting consent to the auditor’s provision of the permitted services other than an audit with the Company;
(e)    development of policy to choose the auditors’ firm to carry out the audit;
(f)     development of policy for the providing of the permitted services not constituting an audit by the auditors’ firm auditing the financial statements, by its related entities and/or by a member of the auditors’ firm’s network:
(g)    establishing the procedure for the Company’s choice of an auditors’ firm;
(h)    submitting recommendations with a view to ensuring accuracy of the financial reporting at the Company.
3. The Supervisory Board may also appoint other committees. Specific tasks and the rules for the appointing and the functioning of the committees shall be provided in the by-laws of the Supervisory Board.”
13)    there are changes in the numbering of the existing sectioning units: §26 shall become §27; §27 shall become §28; §28 shall become §29; §29 shall become §30; §30 shall become §31; and §31 shall become §32;
14)    Section 4 and Section 6 of § 28  (i.e. § 29, after the change of the numbering) of the Articles of Association of the Company now reads as follows:

“4. Subject to Sec. 5 below, resolutions concerning: (i) removal of an item that has already been included in the agenda from the debates shall require the majority of three fourths (3/4) of the votes cast, with the shareholders representing at least 50% of the share capital of the Company being present. In the event that removal of an item from the agenda is requested by the Management Board of the Company, the resolution shall require the absolute majority of votes.
6. Adoption of a resolution concerning holding a shareholder to account vis-a-vis the Company for whatever reason shall require the majority of three fourths (3/4) of votes with of the shareholders representing at least 50% of all the shares in the Company entitling to voting on adoption of such a resolution being present.”
15)    § 30  (i.e. § 31 after the change of the numbering) of the Articles of Association of the Company now reads as follows:

“Participation in General Meeting using electronic means of communication shall be allowed provided that a notice of specific General Meeting notifies of that option. The above-specified mode of participation shall include in particular:
1.    broadcast of the General Meeting s session in the real time;
2.    bilateral communication in the real time, as part of which shareholders will be able to speak during the session of the General Meeting while staying at a place different from the place at which the session of the General Meeting is held; and
3.    exercising, by shareholder(s) their voting right in the course of the General Meeting, whether personally or through their proxy (ies).”
16)    Section 1 of § 31  (i.e. § 32 after the change of the numbering), of the Articles of Association of the Company now reads as follows:

”1. The Company shall place its announcements that are required by law in official gazette of the Republic of Poland: “Monitor Sądowy i Gospodarczy,”. In the instances provided by law, the Company may place its announcements on its website.”

A consolidated text of the Articles of Association of the Company incorporating the above amendments is attached as appendix hereto.

DateFull NamePosition/function
2021-09-03Bartosz JózefiakManagement Board Member
2021-09-03Emilia RogalewiczManagement Board Member
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