AGM Information • Nov 16, 2020
AGM Information
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Digest No. 17000 Registry No. 11337
MINUTES OF THE ORDINARY AND EXTRAORDNARY GENERAL MEETING OF
REPUBLIC OF ITALY
On the thirtieth day of October,
two thousand and twenty
at 10.00 a.m.
at Via Alberto Bergamini, 50, in Rome,
| 30 October 2020 | Registered Laziale |
in | Albano |
|---|---|---|---|
| As requested by "ATLANTIA SPA" with registered offices at Via | on 30 October 2020 | ||
| Antonio Nibby 20, Rome, fully paid-up issued capital of | No. 14774 | ||
| €825,783,990.00, Rome Companies' Register Number and Tax Code and | Series 1/T | ||
| VAT Registration Number 03731380261, REA RM-1023691, the | €200.00 | ||
| undersigned, Salvatore MARICONDA, Notary in Rome, a member of the | |||
| Board of Notaries for the United Districts of Rome, Velletri and | |||
| Civitavecchia, proceeded on the above date at 10.00 a.m. to Via | |||
| Alberto Bergamini, 50, Rome, to attend and minute the resolutions | |||
| of the ordinary and extraordinary general meeting of the | |||
| shareholders of the requesting Company, convened for 10.00 a.m. | |||
| at that location, in single call, to deliberate and vote on | |||
| resolutions relating to the following |
1. Election of a Director in accordance with art. 2386 of the
Italian Civil Code. Determination of the related remuneration. Related and resulting resolutions.
On entering the location of the General Meeting, I noted the
presence at the table of the Chairman, Fabio CERCHIAI, born in Florence on 14 February 1944 and domiciled for the purposes of his position in Rome, as above, Chairman of the requesting Company's Board of Directors who, as such, pursuant to article 15 of the Articles of Association, acted as Chairman of the Meeting.
I, the Notary, am certain of the identity of the person, who, as agreed by the Shareholders, requested me, the Notary, to minute the General Meeting.
Before going ahead with the official part of the proceedings, the Chairman welcomed those in attendance:
"Good morning, Ladies and Gentlemen. Due to the current health emergency, Atlantia SpA has elected to take advantage of the option granted by the applicable legislation, which means that Shareholders may only attend the General Meeting through the appointed representative, without the need for Shareholders to be physically present. I would like, therefore, to warmly welcome Mr. Enrico Monicelli, representing Computershare SpA, to the General Meeting and, through him, send greetings to all our Shareholders on behalf of the Board of Directors, the Board of Statutory Auditors and the Company's management".
On finishing his introductory greetings, and before declaring the meeting open, the Chairman referred the Meeting to the press release issued by the Company on 28 October of this year. He reminded the Meeting that, on the same date, the Board of Directors had decided to withdraw item 3) on the agenda for the extraordinary session of that day's General Meeting, regarding "Approval of the proposed partial, proportional demerger of Atlantia SpA in favour of a wholly owned subsidiary, Autostrade Concessioni e Costruzioni SpA; proposed amendment of article 6 of the Articles of Association; related and resulting resolutions", and to postpone discussion of this matter to a later General Meeting to be held on 15 January 2021. This was in response to events occurring since that day's General Meeting was called and publication of the demerger plan and the related Directors' explanatory report.
In this regard, the Chairman noted that on 24 September of this year the Company's Board of Directors had formally decided to launch a dual-track process in order to conclude the outright sale of Atlantia's stake in Autostrade per l'Italia SpA ("ASPI") under a transparent, market-based approach safeguarding the interests of all Atlantia's and ASPI's stakeholders.
For this purpose and at that meeting, the Board approved the plan for Atlantia's partial, proportional demerger in favour of the newly established beneficiary, Autostrade Concessioni e Costruzioni SpA, calling this General Meeting and, at the same time, launched a competitive process, managed by independent financial advisors, to result in the outright sale of the 88.06% stake in ASPI.
Later, on 14 October of this year, the Transport Regulator
("ART"), as required as part of the approval process, released its non-binding opinion on the Financial Plan submitted to the Ministry of Infrastructure and Transport (the "MIT"), requesting major changes that could potentially have an impact on ASPI's regulatory and tariff framework and, therefore, on its value. On 22 October, the MIT, on the basis of the observations made by ART, unexpectedly requested ASPI "to amend the proposed Financial Plan" submitted by ASPI on 14 September 2020.
This effectively cast doubt on key aspects of the Plan previously considered to have been agreed on following lengthy negotiations between ASPI and the relevant ministries.
Finalisation of the Financial Plan constitutes a key prerequisite for the conclusion of a Settlement Agreement between MIT and ASPI, and thereby for the agreed resolution of the dispute regarding serious breaches of the concession arrangement, representing a condition for effectiveness of the demerger that was to be discussed at the General Meeting.
At the same meeting of 28 October, the Board of Directors concluded that, in view of the importance of the Financial Plan, it was in the Company's interests to withdraw the proposal to approve the demerger plan that was to have been put to that day's General Meeting. At the same time, the Board of Directors also decided to schedule a new Extraordinary General Meeting of Shareholders to discuss the same Agenda item for 15 January 2021, confident in the expectation that in the meantime it would be possible to agree on the Settlement Agreement and the attached Financial Plan and that it would be possible to resolve all the uncertainties surrounding the regulatory and tariff framework.
The Board concluded that Shareholders do not currently have all the information needed in order to reach a decision on the proposed demerger plan and, for this reason, decided that it was in the Company's interests to withdraw the proposal. In view of the upcoming General Meeting, the Directors will proceed to revise their report to reflect the above developments and any offers for the proposed acquisition of the 88.06% in ASPI that might in the meantime be received. This would enable Shareholders to exercise their voting rights in as full possession of the facts as possible. Finally, the Chairman noted that, following the Board of Directors' resolution of 28 October, withdrawing item 3) from the agenda for the extraordinary session and postponing its discussion to a later General Meeting, the Company had published the related press release and a notice on the "General Meetings" page of the Company's website.
The Chairman thus declared the meeting open and stated for the record that:
following the entry into effect of Law Decree 18/2020 (the so-called Cura Italia Decree), converted in Law 27 of 24 April 2020, which has introduced a number of exceptional COVID-19-related measures applicable to the general meetings of listed companies, in order to reduce the risks linked to the current health emergency, Atlantia SpA has elected to take advantage of the option – granted by the above Decree – that means that Shareholders may only attend the General Meeting through the appointed representative designated in accordance with art. 135-undecies of Legislative Decree 58 of 24 February 1998, as amended (the "Consolidated Finance Act or "CFA"), without the need for Shareholders to be physically present;
this General Meeting had been called for 10.00 am on 30 October 2020, to be held in single call at Via Alberto Bergamini 50 in Rome, in conformity with art. 12 of the Articles of Association. It was called by notice containing the information required by art. 125-bis of the CFA, with the full text of the notice having been published on the Company's website and on the storage platform () on 29 September 2020, and an extract from such notice having been published in "MF Milano Finanza" on 30 September 2020;
pursuant to art. 135-undecies of the CFA and the above Cura Italia Decree, in preparation for the General Meeting, Computershare SpA, with registered offices at Via Lorenzo Mascheroni, 19, Milan, was designated Appointed Representative for the Meeting, and on 29 September 2020 the "Proxy form appointing the Appointed Representative in accordance with art. 135-undecies of the CFA" and the "Proxy form appointing the Appointed Representative in accordance with art. 135-novies of the CFA" were made available to the public on the Company's website
at www.atlantia.it (in the section Investor Relations – General Meetings);
as of 29 September 2020, all information required pursuant to the relevant provisions of the CFA and the regulations adopted by CONBSOB by resolution 11971 of 14 May 1999, as amended (the "Regulations for Issuers") were made available to the public on the Company's website at www.atlantia.it (in the section Investor Relations – General Meetings) and on the storage platform ();
as required by article 125-bis, paragraph 2 of the CFA, explanatory reports regarding General Meeting agenda item 1 for the ordinary session of the General Meeting and agenda items 1, 2 and 3 for the extraordinary session of that day's General Meeting, together with the Demerger Plan and the related attachments, as approved by the Board of Directors on 24 September 2020, relating to item 3 on the agenda for the extraordinary session were made available to the public by 29 September 2020, as required by article 125-ter of the CFA. As required by law, notice of publication was given on the Company's website and on the SDIR system;
in addition to the provisions of art. 126-bis, paragraph 1 of the CFA, with regard to requests to add agenda items or submit new motions to be deliberated on from Shareholders separately or collectively holding at least 2.5% of the issued capital, Atlantia SpA allowed holders of the right to attend the General Meeting to submit individual proposals regarding agenda items to be presented to the Meeting, in accordance with the terms and conditions described in the notice of call and on the Company's website;
the Company had not received any requests for other items or motions to be added to the agenda for the Meeting; - 1 shareholder had designated the Appointed Representative to
serve as proxy with voting instructions by the deadline established by art. 135-undecies of the CFA;
The folder containing with the pre-Meeting questions is attached to these minutes under letter "D".
The Chairman thus noted that at that point in time the holders of 614,427,003 ordinary voting shares were represented by the Appointed Representative designated by proxy, accounting for 74.405294% of the total issued capital of 825,783,990 shares (7,772,693 being treasury shares). These referred to the 1,233 Shareholders who had designated the Representative to be their proxy.
The Chairman informed the Meeting that the proxy forms were received by Computershare SpA, as the Appointed Representative, via the voting platform made available on the Company's website, by email sent to [email protected] and by fax to +39-06-45417450, and that, having been correctly submitted, would be filed in the Company's records.
In this regard, taking into account the procedures governing the participation of Shareholders in the Meeting and through which voting instructions on all agenda items had been provided to the Appointed Representative, the Chairman noted that the Meeting was quorate for all the above matters to be dealt with.
In addition, the Appointed Representative announced that it had no interests in respect of the proposed resolutions to be put to the vote during the General Meeting.
The Chairman specified that in view of the Board of Directors' decision to withdraw item 3) from the agenda for the extraordinary session, voting instructions communicated to the Appointed Representative in relation to this item would not be taken into account.
In accordance with the legislation relating to the processing of
the personal data of natural persons, the Meeting was advised that Atlantia SpA was the controller of such data and that the personal data (first and last names and any other data such as place of birth, residence and professional qualifications) of the persons attending the Meeting, through the Appointed Representative, had and would be requested in the form and subject to the restrictions of the legislation currently in force having regard to the obligations, processing and purposes of such data. This data would be included in the minutes of the General Meeting, following its manual and/or digital processing, and may be communicated to overseas parties, in the form and subject to the restrictions of legislation currently in force having regard to the obligations, processing and purposes of such data. For further information, attendees were referred to the information published on the Company's website, on the "General Meetings" page.
Attendees were advised that, for the purposes of participating in the Meeting that day, pursuant to art. 83-sexies, paragraph 2, of the CFA, third-party documentary evidence had been provided to the Company in accordance with statutory requirements, confirming the possession of voting rights based on information to hand at the close of business on 21 October 2020, being the seventh trading day preceding the date fixed for the General Meeting to be held in single call (the "Record Date"). The Chairman thus declared the Meeting, to be held in single call, to be quorate.
The Chairman informed the Meeting that the outcomes of the votes on all the agenda items for the General Meeting, with the sole exception of item 3) on the agenda for the extraordinary session, would be provided by Computershare SpA as the entity with responsibility for managing the Meeting and that the system for recording votes would produce the necessary documents to attached to the minutes, consisting of:
lists of the shareholders represented;
separate lists for the different votes.
The Chairman then announced that, in addition to himself, the Chief Executive Officer, Carlo Bertazzo, was present at the location of the General Meeting, and that the following persons were in attendance via audio/video link:
Prof. Riccardo BRUNO
Prof. Cristina DE BENETTI
Dario FRIGERIO
Prof. Giuseppe GUIZZI
Prof. Anna Chiara INVERNIZZI
Valentina MARTINELLI
The Directors Sabrina BENETTON, Prof. Andrea BOITANI, Gioia GHEZZI, Carlo MALACARNE, Lucia MORSELLI, Ferdinando NELLI FEROCI and Licia SONCINI were absent with leave.
and that the following members of the Board of Statutory Auditors were in attendance via audio/video link:
Prof. Corrado GATTI Chairman
Alberto De Nigro Statutory Auditor - Sonia Ferrero Statutory Auditor - Lelio FORNABAIO Statutory Auditor
The Statutory Auditor, Prof. Livia SALVINI, was absent with leave. The Chairman announced that Mr. Enrico Monicelli, representing Computershare SpA, the company designated by Atlantia SpA as the Appointed Representative, was also present via audio/video link. It was also stated for the record that, based on available information and notifications pursuant to art. 120 of the CFA, the holders of voting shares exceeding 3% (three per cent) of the issued capital, and their percentage shareholdings, were as follows:
Edizione Srl, indirectly holding 30.254% (thirty point two, five, four per cent) of Atlantia's issued capital through its subsidiary, Sintonia SpA, which directly holds this interest; - Government of Singapore Investment Corporation Pte Ltd, which holds 8.285% (eight point two, eight, five per cent) of the issued capital, of which 0.231% (nought point two, three, one per cent) is held directly and 8.054% (eight point zero, five, four per cent) held indirectly through InvestCo Italian Holdings Srl;
Fondazione Cassa di Risparmio di Torino, which holds 4.846% (four point eight, four, six per cent) of the issued capital; - HSBC HOLDINGS Plc, which holds 5.007% (five point zero, zero, seven per cent) of the issued capital, including 4.892% (four point eight, nine, two per cent) held through HSBC BANK Plc and 0.115% (nought point one, one, five per cent) held through other of its subsidiaries.
HOHN CHRISTOPHER ANTONY, the indirect holder, through TCI FUND MANAGEMENT LIMITED, of an interest in voting shares representing 1.203% of the issued capital and other long positions for settlement in cash amounting to 8.835% of the issued capital, amounting to a total interest of 10.038%.
It should also be noted that NORGES BANK has, in accordance with CONSOB Resolution 21304 of 17 March 2020, notified that it holds an interest of 1.377% (one point three, seven, seven per cent) in the issued capital.
It was noted that under the exemptions provided for in paragraphs 7 and 8 of art. 119-bis of the Regulations for Issuers, without prejudice to CONSOB resolutions 21304 of 17 March 2020 and 21326 of 9 April 2020, asset management companies and licensed parties that have acquired shareholdings, in the due course of business, of over 3% (three per cent) but less than 5% (five per cent) are not required to comply with the disclosure requirements set out in art. 117 of the Regulations for Issuers. It is, consequently, possible that as a result of such exemptions, the interests of certain shareholders may not be consistent with the data processed and released from different sources to the extent that such variations in interests were not subject to disclosure by the shareholder.
In addition, Atlantia SpA holds treasury shares of approximately
0.94% (nought point nine, four per cent) of the issued capital, regarding which voting rights are suspended ex lege. The Chairman asked the Appointed Representative whether, in the case of one or more shareholders, there were any legal defects with respect to voting rights under existing statutory requirements.
The Appointed Representative stated that it was not aware of any such defects.
Prior to opening deliberations of agenda items, the Chairman informed the Meeting that, in accordance with the approach adopted in previous general meetings, he would omit a full reading of the documents and explanatory reports relating to all agenda items, given that all such documents had been promptly made available to the public, as required by law.
Opening deliberations on agenda item 1) for the ordinary session of the General Meeting: "Election of a Director in accordance with art. 2386 of the Italian Civil Code. Determination of the related remuneration. Related and resulting resolutions.", the Chairman reminded the Meeting that the Board of Directors' explanatory report had been made available to the public according to the procedures and within the time limits required by law. On the assumption that the content and the opinions expressed therein are agreed with by those present, the Chairman then invited the General Meeting to adopt the following resolution, which he read out in full and that is as follows:
"The Ordinary General Meeting of Atlantia SpA's shareholders:
- having heard the Board of Directors' proposal,
i) to elect Lucia Morselli, born in Modena on 9 July 1956, tax code MRSLCU56L49F257H as Directors of the Company to remain in office until approval of the financial statements for the year ended 31 December 2021;
ii) to award the above Director the same fees determined by the Annual General Meeting of 18 April 2019 for members of the Board of Directors, amounting to €80,000.00 per annum.".
The Chairman declared voting on item 1) on the agenda for the ordinary session to be open.
Computershare SpA, as the Appointed Representative, announced the voting instructions received for item 1) on the agenda for the ordinary session.
Having completed the vote, the Chairman read out the results: For 592,162,670 96.376407% of the ordinary shares Against 20,952,998 3.410169% of the ordinary shares Abstentions 161,335
0.026258% of the ordinary shares
Not cast 1,150,000
0.187166% of the ordinary shares.
The Chairman thus declared the proposal set out in the Board of
Directors' Report referred to in item 1) on the agenda for the ordinary session approved by a majority.
No shares for which the Appointed Representative had acted as proxy were excluded from the vote pursuant to paragraph three of art. 135-undecies of the CFA.
Moving on to item 1) on the agenda for the extraordinary session: "Revocation of the resolution by which the Extraordinary General Meeting of 8 August 2013 approved the capital increase to service the contingent value rights. The resulting release in full of the statutory reserve named the "Non-distributable reserve for contingent value rights", established under the same shareholder resolution in order to cover payment for the shares to be issued to service the contingent value rights. Amendments to article 6 of the Articles of Association; related and resulting resolutions.", the Chairman referred the Meeting to the Board of Directors' Report made available to the public according to the procedures and within the time limits required by law. On the assumption that the content and the opinions expressed therein are agreed with by those present, the Chairman then invited the General Meeting to adopt the following resolution, which he read out in full and that is as follows:
"Having regard to the report of the Board of Directors and the proposal contained therein; taking into account the presentation of the Board of Directors on the amendments to the Articles of Association, the Extraordinary General Meeting of the shareholders of Atlantia SpA hereby
1. to revoke the resolution by which the Extraordinary General Meeting of shareholders on 8 August 2013, in relation to item 3 on the agenda, approved Atlantia SpA's capital increase to service the Contingent Value Rights, for a maximum nominal amount of €18,455,815.00 through the issue of up to 18,455,815 ordinary Atlantia shares with a par value of €1.00 each ("Conversion Shares");
2. consequently, to release in full the Statutory Reserve named "Non-distributable reserve for Contingent Value Rights", established under the same shareholder resolution of 8 August 2013 as an undistributable equity reserve, reflecting an amount equal to the par value of the maximum number of Conversion Shares to be issued to service the Contingent Value Rights;
3. to amend accordingly article 6 of the Articles of Association, as per the text shown alongside the current version in the Board of Directors' report."
The Chairman declared voting on item 1) on the agenda for the extraordinary session to be open.
Computershare SpA, as the Appointed Representative, announced the voting instructions received for item 1) on the agenda for the extraordinary session.
Having completed the vote, the Chairman read out the results: For 613,069,434
99.779051% of the ordinary shares
Against 0
0% of the ordinary shares
Abstentions 1,357,569
0.220949% of the ordinary shares
Not cast 0
0% of the ordinary shares.
The Chairman thus declared the proposal set out in the Board of Directors' Report referred to in item 1) on the agenda for the extraordinary session approved by a majority.
No shares for which the Appointed Representative had acted as proxy were excluded from the vote pursuant to paragraph three of art. 135-undecies of the CFA.
Moving on to item 2) on the agenda for the extraordinary session: "Proposed amendments to the following Articles of Association: (i) 6 to eliminate the reference to the par value of the shares; (ii) 20 and 32 to comply with the legislation on gender quotas; and (ii) 23 to amend the procedure for calling Board of Directors' meetings; related and resulting resolutions", the Chairman referred the Meeting to the Board of Directors' Report made available to the public according to the procedures and within the time limits required by law. On the assumption that the content and the opinions expressed therein are agreed with by those present, the Chairman then invited the General Meeting to adopt the following resolution, which he read out in full and that is as follows:
"Having regard to the report of the Board of Directors and the proposal contained therein; taking into account the presentation of the Board of Directors on the amendments to the Articles of Association, the Extraordinary General Meeting of the shareholders of Atlantia SpA hereby
1. to eliminate the par value of the Company's shares and, consequently, to amend article 6 of the Articles of Association as per the text shown alongside the current version in the Board of Directors' report;
2. to adapt the Articles of Association to the applicable laws on gender quotas and, consequently, to amend articles 20 and 32 of the Articles of Association as per the text shown alongside the current version in the Board of Directors' report;
3. to modify the procedure for calling Board of Directors' meetings and, consequently, to amend article 23 of the Articles of Association as per the text shown alongside the current version in the Board of Directors' report;
4. to authorise the Board of Directors and, on its behalf, the Chairman of the Board and the CEO, severally and with the authority to delegate any and all powers, none excluded or excepted, necessary or appropriate in order to implement the foregoing resolutions, as well as to make such amendments, additions or non-substantive deletions to said resolutions as may be necessary, at the request of any competent authority when filing such amendments with the Companies' Register, in their capacity as the Company's representatives."
The Chairman declared voting on item 2) on the agenda for the extraordinary session to be open.
Computershare SpA, as the Appointed Representative, announced the voting instructions received for item 2) on the agenda for the extraordinary session.
Having completed the vote, the Chairman read out the results:
For 614,415,667
99.998155% of the ordinary shares
Against 1
0.000000% of the ordinary shares
Abstentions 11,335
0.001845% of the ordinary shares
Not cast 0
0% of the ordinary shares.
The Chairman thus declared the proposal set out in the Board of Directors' Report referred to in item 2) on the agenda for the extraordinary session approved by a majority.
No shares for which the Appointed Representative had acted as proxy were excluded from the vote pursuant to paragraph three of art. 135-undecies of the CFA.
At this point, given that item 3 on the agenda for the extraordinary session of the General Meeting had been withdrawn by the Board of Directors for the reasons described at the beginning of the General Meeting, having completed the deliberations of all other agenda items for the General Meeting and there being no other business and no one having requested the floor, the Chairman thanked the attendees and declared the Meeting closed at 10.40 a.m..
Annex A to these minutes contains a list of shareholders attending the Meeting in person or by proxy, showing the number of shares for which proxies were appointed, the names of the shareholders appointing proxies and any parties holding voting rights in their capacity as creditors with a lien on shares, holders of shares under buy and sell-back arrangements and beneficiaries under nominee shareholding arrangements as well as any directors and statutory auditors in attendance.
Lists of shareholders with the number of their shares who voted in favour, in addition to those with their number of shares who voted against and those with their number of shares who abstained, as well as those who did not cast votes for each of the votes held, are contained in Annex B to these minutes.
The following are also attached to these minutes:
Annex C, which is separately bound, containing the reports of the Board of Directors on all other agenda items;
Annex D, containing a document relating to pre-Meeting questions (art. 127-ter of Legislative Decree no. 58/98);
Annex E, containing Atlantia SpA's Articles of Association, with
the amendments approved by the Extraordinary General Meeting that day.
The person appearing before me excused me from reading all the annexes, declaring that he was fully aware of their content. I have read these minutes to the person appearing before me, who, at my request, has stated that they are in conformity with his intentions and who joined me, the Notary, in signing them. Written by my trustee on seven foils containing twenty-six pages and typewritten until this twenty-seventh page, with a small amount of text written by hand.
Signed: Fabio CERCHIAI
Salvatore MARICONDA, Notary
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