Pre-Annual General Meeting Information • Sep 29, 2020
Pre-Annual General Meeting Information
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REPORT OF THE BOARD OF DIRECTORS OF ATLANTIA SPA ON ITEM 1 ON THE AGENDA FOR THE EXTRAORDINARY GENERAL MEETING TO BE HELD IN SINGLE CALL ON 30 OCTOBER 2020:
"1. 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".
THIS REPORT HAS BEEN PREPARED IN ACCORDANCE WITH ARTICLE 72 OF THE REGULATION ADOPTED WITH CONSOB RESOLUTION 11971 OF 14 MAY 1999, AND ARTICLE 125-TER OF LEGISLATIVE DECREE 58 OF 24 FEBRUARY 1998.
| 1. | Reasons for the proposal 3 | |
|---|---|---|
| 2 | Amendments to Articles of Association 4 | |
| 3 | Information on the right of withdrawal. Lack of grounds for exercising any right of withdrawal. 7 |
This report (the "Report") has been prepared by the Board of Directors of Atlantia SpA ("Atlantia" or the "Company") pursuant to article 125-ter of Legislative Decree no. 58 of 24 February 1998, as subsequently amended and supplemented (the "CFA"), and article 72 of the Regulations adopted with Consob resolution no. 11971 of 14 May 1999, as subsequently amended and supplemented (the "Regulations for Issuers"), as well as in keeping with Annex 3A, model 3, of the Regulations for Issuers.
Specifically, this Report, which relates to item 1 on the agenda of the Extraordinary General Meeting, illustrates the proposals that Atlantia's Board of Directors intends to submit for your approval, for the reasons that will be specified later in this Report, to revoke the resolution by which the Extraordinary General Meeting of Atlantia approved the capital increase to service the Contingent Value Rights (as defined hereinbelow), and the resulting release in full of the statutory reserve named "Nondistributable reserve for Contingent Value Rights" established under the same shareholder resolutions and subject to the release of the Conversion Shares (as defined hereinbelow). Approval of the above proposal entails the amendment of article 6 of the Articles of Association.
* * *
In the context of the merger of Gemina SpA with and into the Company, which took effect on 1 December 2013, Atlantia's Extraordinary Shareholder Meeting held on 8 August 2013 resolved to issue up to 164,025,376 conditional warrants named "Atlantia SpA 2013 Ordinary Share Contingent Value Rights" (the "Contingent Value Rights") to Gemina savings and ordinary shareholders - as well as new ordinary Atlantia shares - giving them the right to obtain newly issued Atlantia shares (the "Conversion Shares"), on occurrence of conditions of allotment laid down in the relevant terms and conditions (the "Terms and Conditions") , based on a share exchange ratio indicated in the Terms and Conditions1 .
At the same time, the Extraordinary General Meeting of Atlantia's shareholders approved a capital increase to service the Contingent Value Rights, amounting to up to a total par value of €18,445,815, accordingly modifying article 6 of the Articles of Association. The increase was to take the form of the issue of up to 18,445,815 Conversion Shares with a par value of €1.00 each (the "Capital Increase"), and was to be accompanied by the establishment of a non-distributable equity reserve of an amount equal to the par value of the maximum number of Conversion Shares to be issued. The reserve was intended to cover
1 On 10 April 2013, the Ministry of the Environment brought a civil claim against ASPI, alleging civil liability and claiming of €810 million in "equivalent damages", for which ASPI was considered jointly and severally liable with the other parties charged as a result of criminal investigation 9147/2007, pending before the Pontassieve division of the Court of Florence. The case, which dated back to 2007 and related to events in 2005, involved two of ASPI's managers and a further 18 people from contractors, who were accused of breaching environmental laws during construction of the Variante di Valico (the "Criminal Proceedings"). The Contingent Value Rights were considered a financial instrument capable of protecting Gemina SpA's shareholders from the potential negative impact, at the effective date of the merger, of the possible cost to Atlantia were ASPI to be found guilty of the alleged criminal offence or were it to be ordered to pay damages as a result of the civil claim. On 30 October 2017, the Judge, pursuant to article 530 of the code of penal procedure, acquitted Autostrade per l'Italia's managers, ruling that there was no case to answer in the criminal proceedings pending before the Court of Florence, brought for alleged breaches of environmental laws with respect to the re-use of excavated soil and rocks in connection with the works performed for the Variante di Valico, with a claim for damages filed by the Ministry of the Environment as a civil party. The reasons for the judgment were filed on 27 April 2019. On 20 June 2019, the Florence Public Prosecutor's Office filed an appeal "per saltum" with the Supreme Court. To that end, it is noted that that for the Event of Discharge of Claim or the Relevant Event, as defined in the Terms and Conditions, to occur, it is necessary for the acquittal or conviction to become final in accordance with the provisions of article 1 and 4 of the Terms and Conditions.
the cost of the final number of Conversion Shares to be issued on fulfilment of the conditions provided for in the Terms and Conditions (the "Statutory Reserve").
However, as of today, the number of Contingent Value Rights remaining in circulation has declined to 3,257,652 as the remaining rights (approximately 98% of those originally issued) have been sold by the respective holders to Atlantia – and thus cancelled by the Company – in execution of the put option provided for in the Terms and Conditions.
Considering, therefore, the small number, on the one hand, of the Contingent Value Rights still in circulation and, on the other, the Conversion Shares to be issued on fulfilment of the conditions of allotment, on 24 September 2020, Atlantia's Board of Directors decided to exercise, nunc pro tunc, the option granted by art. 3.3 of the Terms and Conditions to settle the full amount due to holders of the Contingent Value Rights in cash, instead of in Conversion Rights2 .
The exercise of this option thus renders the Capital Increase resolution ineffective.
As such, exercise of this option supersedes the Capital Increase resolution and defeats the purpose for which the Statutory Reserve was established, namely to cover the release of Conversion Shares to be exchanged for Contingent Value Rights.
Approval of the proposals in question shall in no way compromise the interests of the holders of Contingent Value Rights as, with the full release of the Statutory Reserve, on the date of approval of the proposals the Company will open an escrow account, with the exact form of the account to be agreed with the chosen bank. The company will then deposit the maximum amount theoretically due to the holders of the Contingent Value Rights currently in circulation, calculated on the basis of the officially quoted price of Atlantia's shares at the date on which the deposit is made, bearing in mind the dividend adjustment paid by Atlantia at the Date of Allotment of the Contingent Value Rights. Atlantia will increase or reduce the amount deposited based on the officially quoted price of Atlantia's shares and taking into account any changes in the meantime occurring in the value of the dividend adjustment, providing appropriate disclosure at the time of approval of its periodic financial reporting3 . Accordingly, the restriction will be lifted from the Statutory Reserve and the relevant amount will be transferred to the "Extraordinary Reserve", which is included in the Company's distributable reserves.
The Contingent Value Rights will become invalid and the funds in the escrow account will be released, provided that by the Expiry Date: (i) no Relevant Event has occurred; (ii) no Event of Discharge of Claim has occurred in accordance with the Terms and Conditions.
All the other provisions of the Terms and Conditions, attached herewith, will remain unchanged, including the procedure for determining the amount to be paid to the holders of the Contingent Value Rights.
If the revocation of the resolution by which Capital Increase and the establishment of the Statutory Reserve is approved, it will be necessary to amend article 6 of the Articles of Association.
Below, the current text of article 6 is provided alongside the text resulting from approval of the proposals in question.
2 The quoted article 3.3 of the Terms and Conditions states: "Instead of a full or partial allotment Conversion Shares, Atlantia shall, furthermore, have the right to make a cash payment in euro to Holders, the amount of which is determined by multiplying the number of Conversion Shares given by the Final Allotment Ratio by the weighted average of Atlantia's officially quoted share price for the 20 (twenty) Exchange Trading Days following the date of the Atlantia Announcement. Holders shall be notified by the fifth Exchange Trading Day preceding the Delivery Date in the manner provided for in Article 7 below.".
3 As of 23 September 2020 the maximum amount theoretically attributable to the Contingent Value Rights outstanding would be approximately Euro 7 milion.
The issued capital shall be €825,783,990.00 (eight hundred twenty-five million, seven hundred eighty-three thousand, nine hundred ninety) divided into 825,783,990 ordinary shares with a par value of € 1.00 each.
The Atlantia Extraordinary General Meeting of 8 August approved a new provision for inclusion in the Plan for the merger of Generale Mobiliare Interessenze Azionarie SpA ("Gemina") with and into Atlantia SpA ("Merger Plan") to which the Terms and Conditions of the "Atlantia SpA 2013
Ordinary Share Contingent Value Rights" were attached; Shareholders also approved (i) the issuance, at the effective date of the Merger, together with the issue of new shares to service the Share Exchange Ratio for the Merger, of up to 164,025,376 (one hundred sixty-four million twenty-five thousand three hundred seventy-six) contingent value rights (a "Contingent Value Right" or, collectively, the "Contingent Value Rights") to the ordinary and/or savings shareholders of Gemina who will receive Atlantia shares at that date in the ratio of 1 (one) Contingent Value Right for each Atlantia share issued in exchange to Gemina shareholders; (ii) at the same time, an irrevocable capital increase to service the Contingent Value Rights of up to a par value of €18,455,815.00 (eighteen million four hundred fifty-five eight hundred fifteen euros only) through the issuance of up to 18,455,815 (eighteen million four hundred fifty-five eight hundred fifteen) new ordinary shares in Atlantia with a par value €1.00 (one euro) ("Conversion Shares") being the difference between:
a) the maximum number of Atlantia shares that would have been issued to service the share exchange ratio if it had been computed as the ratio of (aa) Atlantia's closing share price of €12.74 (twelve point seven four euros) on 7 March 2013 (date immediately preceding the date on which the Share Exchange Ratio was determined) less the final dividend of €0.391 (zero point ninety-one euros) paid by Atlantia in May 2013 and €810,000,000.00 (eight hundred ten million euros only) divided by the number of Atlantia shares in issue on 7 March 2013 and (bb) a Gemina share price of €1.372 (one point three seven two euros) determined as the ratio of (i) Atlantia's closing share price of €12.74 (twelve point seven four euros) on 7 March 2013 (date immediately preceding the date on
The issued capital shall be €825,783,990.00 (eight hundred twenty-five million, seven hundred eighty-three thousand, nine hundred ninety) divided into 825,783,990 ordinary shares with a par value of € 1.00 each.
The Atlantia Extraordinary General Meeting of 8 August approved a new provision for inclusion in the Plan for the merger of Generale Mobiliare Interessenze Azionarie SpA ("Gemina") with and into Atlantia SpA ("Merger Plan") to which the Terms and Conditions of the "Atlantia SpA 2013
Ordinary Share Contingent Value Rights" were attached; Shareholders also approved (i) the issuance, at the effective date of the Merger, together with the issue of new shares to service the Share Exchange Ratio for the Merger, of up to 164,025,376 (one hundred sixty-four million twenty-five thousand three hundred seventy-six) contingent value rights (a "Contingent Value Right" or, collectively, the "Contingent Value Rights") to the ordinary and/or savings shareholders of Gemina who will receive Atlantia shares at that date in the ratio of 1 (one) Contingent Value Right for each Atlantia share issued in exchange to Gemina shareholders; (ii) at the same time, an irrevocable capital increase to service the Contingent Value Rights of up to a par value of €18,455,815.00 (eighteen million four hundred fiftyfive eight hundred fifteen euros only) through the issuance of up to 18,455,815 (eighteen million four hundred fifty-five eight hundred fifteen) new ordinary shares in Atlantia with a par value €1.00 (one euro) ("Conversion Shares") being the difference between:
a) the maximum number of Atlantia shares that would have been issued to service the share exchange ratio if it had been computed as the ratio of (aa) Atlantia's closing share price of €12.74 (twelve point seven four euros) on 7 March 2013 (date immediately preceding the date on which the Share Exchange Ratio was determined) less the final dividend of €0.391 (zero point ninety-one euros) paid by Atlantia in May 2013 and €810,000,000.00 (eight hundred ten million euros only) divided by the number of Atlantia shares in issue on 7 March 2013 and (bb) a Gemina share price of €1.372 (one point three seven two euros) determined as the ratio of (i) which the share exchange ratio was determined) less the final dividend of €0.391 (zero point nine one euros) paid by Atlantia in May 2013 to (ii) the corresponding number of Gemina shares to be exchanged for Atlantia shares as given by the share exchange ratio (being 9); and
b) the maximum number of Atlantia shares to be issued on the date of effectiveness of the Merger pursuant to the Share Exchange Ratio as defined in the Merger Plan, being 164,025,376 (one hundred sixty-four million twenty-five thousand three hundred seventysix) shares;
and (iii) at the same time as the allotment of the Contingent Value Rights, the establishment of a nondistributable equity reserve being equal to the maximum number of Conversion Shares to be issued to service the Contingent Value Rights in order to provide for the issuance of the final number of Conversion Shares to be issued on the fulfilment of the conditions of allotment pursuant to these Terms and Conditions of the "Atlantia SpA 2013 Ordinary Share Contingent Value Rights".
Applying this formula gives a maximum allotment ratio i.e., the ratio of the maximum number of Conversion Shares to service the Contingent Value Rights to the number of Contingent Value Rights issued by Atlantia on the effective date of the Merger, of 0.1125 (zero point one one two five) newly issued ordinary Atlantia shares for each Contingent Value Right (the "Allotment Ratio").
A capital increase was also approved, the exact amount of which, the final number of Conversion Shares to be issued and, consequently, the final Allotment Ratio, would be determined in the Terms and Conditions of the "Atlantia SpA 2013 Ordinary Share Contingent Value Rights".
Shareholders also approved that, subject to the Terms and Conditions of the Contingent Value Rights (subject to the rights and obligations of the relevant Terms and Conditions) and to the extent foreseen therein, Conversion Shares issued and allotted to holders of Contingent Value Rights shall have the same entitlement to participate in profits as Atlantia's ordinary shares in issue at the allotment date and shall rank equally in all respects with Atlantia's ordinary shares.
Atlantia's closing share price of €12.74 (twelve point seven four euros) on 7 March 2013 (date immediately preceding the date on which the share exchange ratio was determined) less the final dividend of €0.391 (zero point nine one euros) paid by Atlantia in May 2013 to (ii) the corresponding number of Gemina shares to be exchanged for Atlantia shares as given by the share exchange ratio (being 9); and
b) the maximum number of Atlantia shares to be issued on the date of effectiveness of the Merger pursuant to the Share Exchange Ratio as defined in the Merger Plan, being 164,025,376 (one hundred sixty-four million twenty-five thousand three hundred seventy-six) shares;
and (iii) at the same time as the allotment of the Contingent Value Rights, the establishment of a nondistributable equity reserve being equal to the maximum number of Conversion Shares to be issued to service the Contingent Value Rights in order to provide for the issuance of the final number of Conversion Shares to be issued on the fulfilment of the conditions of allotment pursuant to these Terms and Conditions of the "Atlantia SpA 2013 Ordinary Share Contingent Value Rights".
Applying this formula gives a maximum allotment ratio i.e., the ratio of the maximum number of Conversion Shares to service the Contingent Value Rights to the number of Contingent Value Rights issued by Atlantia on the effective date of the Merger, of 0.1125 (zero point one one two five) newly issued ordinary Atlantia shares for each Contingent Value Right (the "Allotment Ratio").
A capital increase was also approved, the exact amount of which, the final number of Conversion Shares to be issued and, consequently, the final Allotment Ratio, would be determined in the Terms and Conditions of the "Atlantia SpA 2013 Ordinary Share Contingent Value Rights".
Shareholders also approved that, subject to the Terms and Conditions of the Contingent Value Rights (subject to the rights and obligations of the relevant Terms and Conditions) and to the extent foreseen therein, Conversion Shares issued and allotted to holders of Contingent Value Rights shall have the same entitlement to participate in profits as Atlantia's ordinary shares in issue at the allotment date and shall rank equally in all respects with Atlantia's ordinary shares.
The proposed amendment to the Articles of Association hereunder does not entail the right of withdrawal under article 2437 of the Italian Civil Code for dissenting shareholders.
* * *
If you agree with the foregoing, please adopt the resolution 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
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Rome, 29 September 2020
Atlantia SpA On behalf of the Board of Directors The Chairman Fabio Cerchiai
Criminal Proceedings or the award of damages to the claimant in any civil hearing (together the "Proceedings").
Applying this formula gives a maximum allotment ratio, i.e., the ratio of the Maximum Number of Conversion Shares to service the Contingent Value Rights to the number of Contingent Value Rights issued by Atlantia, of 0.1125 newly issued ordinary Atlantia shares for each Contingent Value Right (the "Allotment Ratio").
Atlantia's shareholders at general meeting approved a capital increase, the exact amount of the increase, the Final Number of Conversion Shares to be issued and, consequently, the Final Allotment Ratio, each of which as determined in the Terms and Conditions of the Atlantia SpA 2013 Ordinary Share Contingent Value Rights.
Shareholders also approved that, subject to the conditions of the Contingent Value Rights (as defined below and subject to the rights and obligations of the relevant Terms and Conditions) and to the extent foreseen therein, the Conversion Shares issued and allotted to holders of Contingent Value Rights shall have the same entitlement to participate in
profits as Atlantia's ordinary shares in issue at the allotment date and shall rank equally in all respects with Atlantia's ordinary shares.
J. The establishment of a non-distributable equity reserve was also approved at the same time as the Contingent Value Rights with the amount of the reserve being equal to the Maximum Number of Conversion Shares to be issued to service the Contingent Value Rights in order to provide for the issuance of the Final Number of Conversion Shares (as defined below) to be issued on the fulfilment of the Conditions of Allotment (as defined below) pursuant to these Terms and Conditions.
In addition to the definitions contained elsewhere in these Terms and Conditions, the following capitalised terms shall mean:
"Dividend Adjustment" means the total amount of dividends that should have been paid to holders of the Final Number of Conversion Shares if they had been issued on the Effective Date of the Merger after adjusting for any changes in such Final Number of Conversion Shares as a result of corporate actions on capital within the meaning of paragraph 6.1. The Dividend Adjustment shall be based on such adjustment to the Final Number of Conversion Shares as of the relevant effective date. All such dividends shall be capitalised at the Capitalisation Rate and compounded from the date of the payment of dividends as may be distributed from time to time to the Delivery Date.
"Conversion Shares" means the issue of new Atlantia ordinary shares of the same class as Atlantia's ordinary shares in issue at the date of issuance of the Conversion Shares, with full dividend rights, issued to service Contingent Value Rights in accordance with these Terms and Conditions.
"Atlantia Announcement": as defined in paragraph 5.1, below.
"Notice of Relevant Event": as defined in paragraph 4.2 (A), below.
"Conditions of Allotment": means the conditions of the Contingent Value Rights regulating the allotment of the Final Number of Conversion Shares pursuant to paragraph 4.1 of these Terms and Conditions.
"Final Cost": means, without prejudice to paragraph 4.3 (ii), Decontamination and Clearance costs borne by ASPI in accordance with statutory requirements, as may be in force from time to time, determined as: (i) for the final designs developed by ASPI and approved by the relevant services conference, to the extent such approval was given in the services conference and the relevant environmental impact analysis was provided within eighteen months of the Notice of Relevant Event, or (ii) in the event such approval and environmental impact assessment were not approved in the services conference by the deadline pursuant to (i), above, the Environmental Expert, to be appointed to determine such costs, as set out in ASPI's final plans, shall notify ASPI and the Independent Expert thereof within six months of the deadline pursuant to (i) above subsequent to consulting Atlantia and ASPI.
"Delivery Date" means a date between the twenty-fifth and fortieth Exchange Trading Day following the Atlantia Announcement on which (i) Conversion Shares are issued to entitled persons, (ii) any amounts to Holders pursuant to Paragraphs 3.3 and 6.3, and (iii) any amounts payable by operation of the Dividend Adjustment are settled either in cash or through the allotment of Atlantia shares pursuant to Paragraph 3.4.
"Effective Date of the Merger" means the date from which the Merger takes effect within the meaning and for the intents and purposes of article 2504-bis, Italian Civil Code.
"Expiry Date": the fifteenth anniversary of the effective date of the Merger, inclusive (or, if such date is not an Exchange Trading Day the next following Exchange Trading Day).
"Environmental Expert" means a well-reputed company specialised in environmental matters determined by the Independent Expert to the extent that the Relevant Event is a court order for Decontamination and Clearance.
"Independent Expert" means a well-reputed, international firm of auditors, other than Atlantia's statutory auditors at the date of the occurrence of the Relevant Event, appointed pursuant to and for the intents and purposes of Paragraph 4.2 (B).
"Event of Discharge of Claim" means (i) a definitive dismissal of the claim on ASPI in the Proceedings; (ii) a definitive finding in the Proceedings adverse to ASPI's employees resulting in an order to ASPI to pay damages of an amount below the Allowance; or (iii) any statutory and/or administrative requirement and/or contractual obligation to the Ministry of the Environment or other relevant authority resulting in the definitive discharge, revocation or waiver of the Ministry of the Environment's civil claim on ASPI without prejudice to any other agreements with the Ministry of the Environment or other relevant authority in this connection providing that ASPI's liability is less than the Allowance. In the event of preceding points (ii) and (iii), the Event of Discharge of Claim shall be authenticated in the Independent Expert's Report.
"Relevant Event" means, with respect to the Proceedings, the handing down of a judgment adverse to ASPI during the Contingent Value Rights Validity Period, or the conclusion of a settlement imposing a payment obligation on ASPI or requiring specific performance such as Decontamination and Clearance of damaged sites or other measures of a compensatory nature.
"Exchange Trading Day" means any day shown by the Trading Calendar provided for each year by Borsa Italiana or other market authority shows that regulated markets are open for trading.
"Decontamination and Clearance" means the decontamination and clearance or other compensatory measures as determined by the Court and thus constituting a Relevant Event, to be provided by ASPI, in accordance with law as may be in force from time to time, as shown in the final designs or as determined by the Environmental Expert pursuant to sub-paragraphs (i) and (ii) of the definition of Final Cost.
"Monte Titoli" means Monte Titoli SpA, with registered offices in Piazza degli Affari 6, Milan, Italy, and its successor and assigns, in their capacity of central depository of financial instruments.
"MTA" means Mercato Telematico Azionario organised and operated by Borsa Italiana SpA.
"Final Number of Conversion Shares": means the difference between:
without, however, prejudice to Paragraph 6, below.
"Contingent Value Rights Validity Period" means the period from the Effective Date of the Merger (inclusive) to the earlier of (i) the Expiry Date; and, (ii) the Exchange Trading Day for the date of the notice to Holders pursuant to Paragraph 7, below, on the occurrence of an Event of Discharge of Claim, or, if such date is not an Exchange Trading Day the preceding Exchange Trading Day. The Contingent Value Rights Validity Period shall be automatically extended to the Expiry Date in the event that a Relevant Event occurs prior to the Expiry Date.
"Holder" means the holder of Contingent Value Rights.
"Final Allotment Ratio" means the ratio of the Final Number of Conversion Shares and the number of Contingent Value Rights issued by Atlantia.
"Capitalisation Rate" means: the annual interest rate calculated as the average, in the period between March 2013 and the last month prior to the Delivery Date, of the yield on Italian government bonds with terms of between 8 (or closer) and 12 (or closer) years, as recorded and published by the Bank of Italy ("Rendistato"). The arithmetic mean of the Rendistatos shall be computed by using Bank of Italy monthly statistics. In the event that such rate is not available, a similar rate for the same term from another monetary authority shall be used.
"Discount Rate" means the Capitalisation Rate.
"TUF" means Testo Unico della Finanza [Consolidated Finance Act] being Legislative Decree 58 of 24 February 1998.
"Final Amount of the Claim" means the present value, for the period between the Delivery Date and 8 March 2013 determined using the compound discount rate, of the (aa) compensation payable by ASPI as a result of the occurrence of a Relevant Event, (bb) the Final Cost where ASPI is ordered bear the costs of Decontamination and Clearance. Both of these amounts shall be net of any insurance claims actually awarded to ASPI by insurance companies and paid on the date of the Atlantia Announcement. The Final Amount of the Claim shall be reduced by any tax benefits as a result of the deductibility of any costs borne by ASPI. Premia paid for insurance arranged after 8 March 2013 to cover the specific risk of a Relevant Event shall be added.
2.1. Contingent Value Rights shall be allotted to Gemina ordinary and/or savings shareholders as of the Effective Date of the Merger, without payment who receive Atlantia's ordinary
shares in exchange. The Rights shall be allotted in the ratio of 1 (one) Contingent Value Right for each Atlantia share allotted in exchange to such Gemina shareholders.
occurrence of a Relevant Event" means (i) the date of the notice to ASPI, being the date of the handing down of a definitive judgment ordering ASPI to pay damages or requiring specific performance; or (ii) the date on which a settlement is signed with the Ministry of the Environment or other relevant authority imposing a payment obligation on ASPI or requiring specific performance such as Decontamination and Clearance of damaged sites or other measures of a compensatory nature.
(B) Atlantia shall, within 5 (five) Exchange Trading Days of said Notice of Relevant Event, apply to the President of the Court of Rome for the appointment of an Independent Expert. In the event Atlantia has not applied to the President of the Court of Rome within 15 (fifteen) Exchange Trading Days, any Holder may file such application at Atlantia's expense.
4.3. In the event of a court order requiring ASPI to perform all or part of Decontamination and Clearance, the Independent Expert shall, within ten Exchange Trading Days subsequent to the Independent Expert's appointment nominate an Environmental Expert for the determination of the Final Cost.
The Independent Expert shall, moreover, report in writing to Atlantia (the "Independent Expert's Report") within:
The Independent Expert's Report shall indicate the following as well as the methods used for their determination:
Alternatively, the Independent Expert's Report shall attest to the occurrence of an Event of Discharge pursuant to sub-paragraphs (ii) and (iii) of the Definitions contained in Paragraph 1.
The cost of the Independent and Environmental Experts shall be borne by Atlantia.
4.4. In the event the Final Amount of the Claim is greater than the Maximum Amount of the Claim, the Final Number of Conversion Shares and the Final Allotment Ratio shall be determined with reference to the Maximum Amount of the Claim.
In the event of sub-paragraph (i), the Contingent Value Rights shall be delisted as of the first Exchange Trading Day following the Expiry Date.
In the event of sub-paragraph (ii), the Contingent Value Rights shall be delisted as of the first Exchange Trading Day following the Atlantia Announcement confirming the occurrence of an Event of Discharge of Claim.
The corporate bodies of Atlantia shall, for each of the above cases, approve all of those resolutions necessary and in accordance with statutory and regulatory requirements as may be in force from time to time to assure that the rights of Holders are not prejudiced and that these Terms and Conditions are not altered as a result of such actions.
there shall be no adjustment to the Maximum Number of Conversion Shares or the Allotment Ratio.
6.3. (A) If, prior to the Delivery Date the trading in Atlantia shares is suspended on the MTA and an application for the listing and trading of shares on another regulated exchange has not been made and the Conditions of Allotment of have been satisfied, Atlantia shall, instead of allotting Conversion Shares, pay Holders a euro amount computed multiplying the number of Conversion Shares, as determined in the Independent Expert's Report, that would otherwise have been allotted, by the market value of Atlantia's ordinary shares as determined by two leading independent firms of accountants or merchant banks designated by the President of the Court of Rome (the "Valuer(s)"). Their methods of determining the amount shall be consistent with generally accepted practice and applied for the purposes of this Paragraph 6.3 without prejudice to the payment of the Dividend Adjustment. The Valuers' conclusions shall be notified to Atlantia which, in turn, shall inform Holders within five Exchange Trading Days. In the event of a conflict in the Valuers' conclusions, the amount of the payment to Holders shall be referred to another independent leading accountancy firm or merchant bank designated by the President of the Court of Rome (the "Third Valuer"). The Valuers and, if appointed, the Third Valuer, shall act autonomously and at their own discretion and their conclusions, consequently, made in accordance with these Terms and Conditions shall, except for instances of fraud or gross negligence, be deemed final and binding on Atlantia and the Holders. A copy of the mandate shall be made available to Holders by Atlantia at no cost. In the event of a termination of the mandate, regardless of reason or cause, Atlantia shall:
(i) apply to the President of the Court of Rome within 5 (five) Exchange Trading Days of the termination of the mandate for the appointment of a new Valuer. In the event Atlantia has not applied to the President of the Court of Rome within 5 (five) Exchange Trading Days, any Holder may file such application at Atlantia's expense; and, (ii) provide prompt notice to Holders of the termination of the mandate and the designation of a new Valuer.
(B) Atlantia shall apply to the President of the Court of Rome for the appointment of the Valuers or Third Valuer within 15 (fifteen) Exchange Trading Days of the submission to Atlantia of the Independent Expert's Report or of the last of the differing conclusions reported. In the event Atlantia has not applied to the President of the Court of Rome within 15 (fifteen) Exchange Trading Days, any Holder may file such application at Atlantia's expense.
6.4. Each Holder shall acknowledge and accept that the number of Conversion Shares to be allotted as a result of the satisfaction of the Conditions of Allotment will be rounded down due to the fact that it is not possible to deliver fractions of Conversion Shares.
6-bis.1 (A) Atlantia, hereby, undertakes to pay an Additional Amount to Holders, who are so entitled, on the Delivery Date at the terms and conditions pursuant to this Paragraph 6-bis.
(B) In the event the allotment of Conversion Shares pursuant to para. 5 is subject to substitute tax pursuant to art. 5 of Legislative Decree 461 of 21 November 1997 or any other income tax that could replace substitute tax (the "Tax"), Atlantia shall pay Holders an additional amount in euros, less any Tax and subject to Paragraph 6-bis.2, below, in such a manner as to assure that Holders receive sufficient Conversion Shares and/or such amounts pursuant to Paragraph 3.3 (the "Additional Amount").
6-bis.2 Payment of the Additional Amount shall only be made to Holders who:
(i) are required to pay the Tax exclusively as a result of the operation of art. 5; and,
(ii) would not have been required to pay the Tax if the Contingent Value Rights had been listed on a regulated market;
for the avoidance of doubt, if the Contingent Value Rights had been listed on a regulated market and the allotment were subject to a tax other or lower than the Tax, the Additional Amount paid would be limited to the difference.
entitled has provided, in accordance with the instructions separately notified by Atlantia through the depository bank, or authorised brokers who are members of the centralised Monte Titoli securities administration services, a declaration confirming entitlement to the Additional Amount. Such declaration shall be provided 3 (three) Business Days before the Delivery Date.
All notices from Atlantia to Holders shall be made by public notice on Atlantia's internet site in addition to other methods as may be required by law and regulation as may be in force from time to time.
The first and last days of the Exercise Period shall be promptly notified to the market by the Issuer in the manner pursuant to Paragraph 7.
Day of the calendar month immediately subsequent to the calendar month in which the Application to Exercise the Put Option was received by the authorised broker provided that such Application was received between the 16th (sixteenth) and the last day of the calendar month (both inclusive), without additional costs or fees payable by the Holder. For the avoidance of doubt, in the event that the Put Option Rights transfer and the Purchase Consideration payment date does not fall on a business day, the transfer of the Put Option Rights and simultaneous payment of the Purchase Consideration shall be the first business day following such date with no further requirement to pay a make-up or similar amount as a result of the delayed payment.
Any transactions related to or in consequence of the exercise of the Put Options shall be executed by authorised brokers who are members of the centralised Monte Titoli SpA securities administration services.
8.6. Put Options not exercised by the end of the Exercise Period shall lapse and may no longer be exercised or used in any other way in dealings with the Issuer.
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