| | POLISH FINANCIAL SUPERVISION AUTHORITY | |
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| | | UNI - EN REPORT No | 64 | / | 2011 |
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| | Date of issue: | 2011-11-07 | | | | | | | | |
| | Short name of the issuer | | | | | | | |
| | KERNEL HOLDING S.A. | |
| | Subject | | | | | | | | | | |
| | DRAFT RESOLUTIONS TO BE VOTED ON AT ANNUAL GENERAL MEETING AND EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS TO BE HELD ON 7 DECEMBER 2011 | |
| | Official market - legal basis | | | | | | |
| | Art. 56 ust. 1 pkt 1 Ustawy o ofercie - informacje poufne
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| | Unofficial market - legal basis | | | | | |
| | Contents of the report: | | | | | | | | |
| | The Board of Directors of Kernel Holding S.A. presents draft resolutions to be considered and voted on at the Annual General Meeting of the Company’s shareholders (the “AGM") and EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS to be held on Wednesday 07 December 2011 at the Company’s registered office, boulevard Grande Duchesse Charlotte No 65, L-1331 Luxembourg.
ANNUAL GENERAL MEETING OF SHAREHOLDERS TO BE HELD ON 7 DECEMBER 2011
We refer you to the annual general meeting of shareholders to be held at the registered office of Kernel Holding S.A. (referred to as the “Company" or the “Parent Company" as the case may be) on 7 December 2011 at 13:45 CET.
In accordance with the provisions of the law of 24 May 2011 implementing the Directive 2007/36 EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders of listed companies, we hereby inform you of the resolutions to be proposed for adoption at the annual general meeting of shareholders:
1. Approval of the consolidated financial statements of Kernel Holding S.A. for the financial year ended 30 June 2011
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting, after having reviewed the management report of the Board of Directors and the report of the independent auditor, approves in their entirety the consolidated financial statements of Kernel Holding S.A. for the financial year ended 30 June 2011, with a resulting consolidated net profit of USD 226,047.-"
This resolution shall come into force on the day of its adoption.
2. Approval of the Parent Company annual accounts (unconsolidated) for the financial year ended 30 June 2011
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting, after having reviewed the management report of the Board of Directors and the report of the independent auditor (Reviseur d’Entreprises), approves in their entirety the Parent Company annual accounts (unconsolidated) for the financial year ended 30 June 2011, with a resulting net profit/loss for Kernel Holding S.A. as parent company of the Kernel Holding S.A. group of USD 38,165,947.14.-"
This resolution shall come into force on the day of its adoption.
3. Appropriation of results for the financial year ended 30 June 2011
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting approves the proposal of the Board of Directors to carry forward the net profit/loss of the Parent Company annual accounts (non-consolidated) of USD 38,165,947.14.- and to declare a dividend at nil for the financial year ended 30 June 2011."
This resolution shall come into force on the day of its adoption.
4. Discharge of the Directors
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting decides to grant discharge to the Directors for their management duties and the exercise of their mandates in the course of the financial year ended 30 June 2011."
This resolution shall come into force on the day of its adoption.
5. Acknowledgement of the resignation of Mr. Patrick Conrad as member of the board of directors with effect as of 1 November 2011 and discharge
The Board of Directors proposes the adoption of the following resolution:
“The General meeting acknowledges the resignation of Mr. Patrick Conrad as member of the board of directors with effect as of 1 November 2011 and decides to grant discharge to Mr. Patrick Conrad for the exercise of its management duties and its mandate until 1 November 2011."
This resolution shall come into force on the day of its adoption.
6. Statutory election of independent Directors of the Board Andrzej Danilczuk and Ton Schurink
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting, having acknowledged the end of the mandates of the two independent directors and in consideration of the proposal to re-elect both Mr. Andrzej Danilczuk and Ton Schurink for a one-year term mandate, decides to re-elect Andrzej Danilczuk and Ton Schurink for a one-year term mandate, which shall terminate on the date of the general meeting of shareholders to be held in 2012."
This resolution shall come into force on the day of its adoption.
7. Statutory election of new Board members Kostiantyn Lytvynskyi and Yuriy Kovalchuk
The Board of Directors proposes the adoption of the following resolution:
The General Meeting, following proposal by the Board to appoint Mr. Kostiantyn Lytvynskyi and Mr. Yuriy Kovalchuk as new Board member, decides to elect Mr. Kostiantyn Lytvynskyi born on 2 December 1972 in Karaganda, Republic of Kazakhstan, residing at Apt. 12, 5 Yerevanska Str, Kiev, Ukraine, 03048 and Mr. Yuriy Kovalchuk, born on 17 February 1981 in Severodonetsk, Luganska Oblast, Ukraine, residing at Apt.5, 30 Mezihorska Str., Kiev, Ukraine, 0407, for a three-year term mandate, which mandate shall terminate on the date of the general meeting of shareholders to be held in 2014.
8. Statutory remuneration of independent Directors of the Board
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting, having acknowledged that fees (tantiemes) paid to the independent directors for their previous term in office amounted in total to USD 95 000, approves the independent Directors’ fees for the new one-year mandate, which shall terminate on the date of the general meeting of shareholders to be held in 2012, for a total gross annual amount of USD 95 000."
This resolution shall come into force on the day of its adoption.
9. Termination of the mandates of the independent auditors Baker Tilly Ukraine and TEAMAUDIT S.A. and appointment of PJSC “Deloitte & Touche USC" and DELOITTE S.A, having its registered office at 560, rue du Neudorf, L-2220 Luxembourg, registered with the Luxembourg Trade and Companies’ Register under number 67 895 as new independent auditors for the audit of the consolidated and unconsolidated annual accounts of Kernel Holding S.A. for a one-year term mandate, which shall terminate on the date of the general meeting of shareholders to be held in 2012
The Board of Directors proposes the adoption of the following resolution:
“The General Meeting, following proposal by the Board to terminate the mandates of the independent auditors Baker Tilly Ukraine and TEAMAUDIT S.A. and to appoint PJSC “Deloitte & Touche USC" and DELOITTE S.A, having its registered office at 560, rue du Neudorf, L-2220 Luxembourg, registered with the Luxembourg Trade and Companies’ Register under number 67 895 as new independent auditors of Kernel Holding S.A., hereby resolves to terminate the mandates of Baker Tilly Ukraine and TEAMAUDIT S.A. and to appoint PJSC “Deloitte & Touche USC" and DELOITTE S.A, having its registered office at 560, rue du Neudorf, L-2220 Luxembourg, registered with the Luxembourg Trade and Companies’ Register under number 67 895 as new independent auditors of Kernel Holding S.A. for a one-year term mandate, which shall terminate on the date of the general meeting of shareholders to be held in 2012."
This resolution shall come into force on the day of its adoption.
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EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS TO BE HELD ON 7 DECEMBER 2011
We refer you to the extraordinary general meeting of shareholders to be held at the registered office of Kernel Holding S.A. (referred to as the “Company") on 7 December 2011 at 14:30 CET.
In accordance with the provisions of the law of of 24 May 2011 implementing the Directive 2007/36 EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders of listed companies, we hereby inform you of the resolutions to be proposed for adoption at the extraordinary general meeting of shareholders:
1. Granting of a new authorisation to the board of directors of the Company to issue, from time to time, up to 2,550,000 new shares without indication of nominal value, hence creating an authorised share capital, excluding the current issued share capital, of an amount of sixty seven thousand three hundred thirty five US Dollar and thirty cents (USD 67,335.30) in accordance with the provisions of article 32 of the law of 10 August 1915 regarding commercial companies, as amended.
Limitation of the authorisation to a period expiring right after the closing of any public offering of the shares of the corporation, and in any case no later than a term of five (5) years from the date of the publication of the present authorisation in the Luxembourg official gazette (Mémorial C, Recueil des Sociétés et Associations).
Authorisation to the board of directors to issue such new shares without reserving to the existing shareholders any preferential subscription rights.
The Board of Directors proposes the adoption of the following resolution:
“The general meeting resolves to authorise again the board of directors of the Company to issue, from time to time, as specified below, up to two million five hundred fifty thousand (2,550,000) new shares without indication of a nominal value, hence creating an authorised share capital, excluded the current issued share capital, of sixty seven thousand three hundred thirty five US Dollar and thirty cents (USD 67,335.30) in accordance with the provisions of article 32 of the law of 10 August 1915 regarding commercial companies, as amended.
This authorisation shall be limited to a period to expire right after the closing of any public offering of the shares of the Company, and in any case no later than a term of five (5) years from the date of the publication of the present authorisation in the Luxembourg official gazette (Mémorial C, Recueil des Sociétés et Associations).
Upon presentation of the justifying report of the Board of Directors, pursuant to article 32-3 (5) of the law of August 10, 1915 on commercial companies, the general meeting further resolves that the board of directors is authorised to issue such new shares without reserving to the existing shareholders any preferential subscription rights."
2. Amendment of the articles of incorporation of the Company in order to comply with the provisions of the law of 24 May 2011 implementing the Directive 2007/36 EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders of listed companies and further to the approval of item 1 of the Agenda
The Board of Directors proposes the adoption of the following resolution:
“The general meeting of shareholders resolves to amend the articles of incorporation of the Company in order to comply with the provisions of the law of 24 May 2011 implementing the Directive 2007/36 EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders of listed companies."
3. Amendments to articles 5, 6, 13 and 17 of the articles of incorporation as proposed and made available on the website of the Company (www.kernel.ua);
The Board of Directors proposes the adoption of the following resolution:
“The general meeting of shareholders resolves to amend article 5 of the articles of incorporation of the Company which shall henceforth read as follows:
“ARTICLE 5. The share capital of the Company is set at two million one hundred four thousand one hundred twenty US Dollars and eleven cents (USD 2,104,120.11) divided into seventy nine million six hundred eighty three thousand four hundred and ten (79,683,410) shares without indication of a nominal value.
The shares of the company may be created at the owner’s option in certificates representing single shares or in certificates representing two or more shares.
The shares shall be in a bearer or in a registered form.
The corporation may, to the extent and under the terms permitted by law, purchase its own shares.
The corporate capital may be increased or reduced in compliance with the legal requirements.
The authorised share capital, excluded the current issued share capital, is fixed at sixty seven thousand three hundred thirty five US Dollar and thirty cents (USD 67,335.30)) represented by two million five hundred fifty thousand (2,550,000) shares without indication of a nominal value.
During a period to expire right after the closing of any public offering of the shares of the Company, and in any case no later than a term of five (5) years from the date of publication of the present deed in the Memorial C, Recueil des Sociétés et Associations, the board of directors will be and is hereby authorised to issue shares with or without share premium and to grant options to subscribe for shares within the limit of the authorised share capital, to such persons and on such terms as it shall see fit, and specifically to proceed to such issue by suppressing or limiting the existing shareholder’s/shareholders’ preferential right to subscribe for the new Shares to be issued.""
The Board of Directors proposes the adoption of the following resolution:
“The general meeting of shareholders resolves to insert a new article 6 in the articles of incorporation of the Company which shall henceforth read as follows:
“ARTICLE 6.- The shares are freely transferable, subject to the provisions of the law and these articles of association. All rights and obligations attached to any share are passed to any transferee thereof.""
The Board of Directors proposes the adoption of the following resolution:
“The general meeting of shareholders resolves amend article 13 of the articles of incorporation of the Company which shall henceforth read as follows and to renumber it as article 14:
“ARTICLE 14.-
14.1 The general meeting of shareholders shall represent the entire body of shareholders of the corporation. It shall have the broadest powers to order, carry out or ratify all acts relating to the operations of the corporation.
14.2 The annual meeting will be held in Luxembourg at the place specified in the convening notices on the fifteenth of November at 5.00 p.m..
14.3 If such day is a legal holiday, the general meeting will be held on the next following business day. Other meetings of shareholders may be held at such places and times as may be specified in the respective notices of meeting.
14.4 The general meeting of shareholders shall meet upon call by the board of directors. Shareholders representing ten per cent (10 %) of the subscribed share capital may, in compliance with the law of August 10th 1915 on commercial companies and the amendment hereto, request the board of directors to call a general meeting of shareholders.
14.5 The convening notice for any general meeting of shareholders must contain the agenda of the meeting, the place, date and time of the meeting, the description of the procedures that shareholder must comply with in order to be able to participate and cast their votes in the general meeting, and such notice shall take the form of announcements published (i) thirty (30) days before the meeting, in the Memorial C, Recueil des Sociétés et Associations and in a Luxembourg newspaper and (ii) in a manner ensuring fast access to it on a non-discriminatory basis in such media as may reasonably be relied upon for the effective dissemination of information throughout the European Community. A notice period of seventeen (17) days applies, in case of a second or subsequent convocation of a general meeting convened for lack of quorum required for the meeting convened by the first convocation, provided that this article 14.5 has been complied with for the first convocation and no new item has been put on the agenda. In case the shares are listed on a foreign stock exchange, the notices shall in addition be published in such other manner as may be required by laws, rules or regulations applicable to such stock exchange from time to time.
14.6 One or several shareholders, representing at least five percent (5%) of the Company's issued share capital, may (i) request to put one or several items to the agenda of any general meeting of shareholders, provided that such item is accompanied by a justification or a draft resolution to be adopted in the general meeting, or (ii) table draft resolutions for items included or to be included on the agenda of the general meeting. Such request must be sent to the Company's registered office in writing by registered letter or electronic means at least twenty-two (22) days prior to the date of the general meeting and include the postal or electronic address of the sender. In case such request entails a modification of the agenda of the relevant meeting, the Company will make available a revised agenda at least fifteen (15) days prior to the date of the general meeting.
14.7 If all shareholders are present or represented at a general meeting of shareholders and state that they have been informed of the agenda of the meeting, the general meeting of shareholders may be held without prior notice.
14.8 Any shareholder who holds one or more share(s) of the Company at 24:00 o’clock (Luxembourg time) on the date falling fourteen (14) days prior to (and excluding) the date of general meeting (the "Record Date") shall be admitted to the relevant general meeting of shareholders. Any shareholder who wishes to attend the general meeting must inform the Company thereof at the latest on the Record Date, in a manner to be determined by the board of directors in the convening notice. In case of shares held through an operator of a securities settlement system or with a professional depository or sub-depository designated by such depository, a holder of shares wishing to attend a general meeting of shareholders should receive from such operator or depository or sub-depository a certificate certifying the number of shares recorded in the relevant account on the Record Date. The certificate should be submitted to the Company at its registered address no later than three (3) business days prior to the date of the general meeting to the extent applicable. In the event that the shareholder votes through proxies, the proxy has to be deposited at the registered office of the Company at the same time or with any agent of the Company, duly authorised to receive such proxies to the extent applicable. The board of directors may set a shorter period for the submission of the certificate or the proxy.
14.9 A shareholder may act at any general meeting of shareholders by appointing another person, shareholder or not, as his/her/its proxy in writing by a signed document transmitted by mail, facsimile, electronic mail or by any other means of communication prior to the meeting, a copy of such appointment being sufficient proof thereof. One person may represent several or even all shareholders. The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing or if the appointor is a company under its common seal or under the hand of an officer or attorney duly authorised or in the case of shares held in a European central securities depository, a statement of the relevant participant. In the case of shares registered in the name of or held by a European central securities depository or an affiliated institution, a shareholder may submit a written declaration via its participant or affiliated institution which shall constitute an instruction appointing a proxy from the relevant registered shareholder confirming that the number of shares mentioned in each written declaration form part of a collective deposit and that the person mentioned in the declaration is a participant for the mentioned number of shares in the collective deposit and shall be entitled to exercise all rights attached to those shares and voting rights as a proxy in respect of such shares at the relevant general meeting of shareholders of the Company provided further that such participant shall be entitled to delegate his proxy to a third party by delivering such form of proxy executed in writing in accordance with the present articles of incorporation
14.10 Any shareholder who participates, provided that the board of directors has put in place such facilities for a given meeting, in a general meeting of shareholders by conference-call, video-conference or by any other means of communication which allow such shareholder’s identification and which allow that all the persons taking part in the meeting hear one another on a continuous basis and may effectively participate in the meeting, is deemed to be present for the computation of quorum and majority.
14.11 Each shareholder may vote through a signed voting form sent by mail, facsimile, electronic mail, by electronic voting or by any other means of communication to the Company’s registered office or to the address specified in the convening notice. The shareholders may use voting forms provided by the Company which contain at least the place, date and time of the meeting, the agenda of the meeting, the proposals submitted to the resolution of the meeting as well as for each proposal three boxes allowing the shareholder to vote in favour of or against the proposed resolution or to abstain from voting thereon by marking the appropriate box with a cross or an electronic cross. The Company will only take into account voting forms received prior to the general meeting of shareholders which they relate to.
14.12 In case of electronic voting where such means of voting is made available by a European central securities depository or an affiliated institution or the operator of a securities settlement system or a professional depository or sub-depository designated by such depository, the aforementioned entities may issue a summary of the votes for the given general meeting of shareholders via their system, including a proxy to the chairman of the meeting, in the form of a spreadsheet or otherwise, as the board of directors may see fit, setting out the votes in favour of or against the proposed resolution or to abstain from voting.
14.13 The board of directors may determine all other conditions which must be fulfilled by shareholders in order to attend a meeting of shareholders and to vote.
14.14 The general meeting of shareholders shall designate its own chairman who shall preside over the meeting. The chairman shall designate a secretary who shall keep minutes of the meeting.
14.15 The business transacted at any meeting of the shareholders shall be limited to the matters contained in the agenda (which shall include all matters required by law) and business incidental to such matters.
14.16 Each share is entitled to one vote at all general meetings of shareholders.
14.17 Unless otherwise provided by law, the resolutions of the general meeting are passed by a simple majority vote of the shareholders present or represented."
The Board of Directors proposes the adoption of the following resolution:
“The general meeting of shareholders resolves amend article 17 of the articles of incorporation of the Company which shall henceforth read as follows and to renumber it as article 18:
“ARTICLE 18. - All matters not governed by these articles of association are to be construed in accordance with the law of August 10th 1915 on commercial companies and the amendments hereto and with the law of 24 May 2011 implementing the Directive 2007/36 EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders of listed companies."
4. Renumbering of the articles of incorporation and cross-references following the insertion of a new article 6 of the articles of incorporation
The Board of Directors proposes the adoption of the following resolution:
“The general meeting of shareholders resolves to proceed to a renumbering of the articles and of the cross references within the articles of incorporation of the Company further to the insertion of a new article 6 of the articles of incorporation."
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