A response to a shareholder’s request submitted under Article 428.6 of the Commercial Companies Code
The Apator SA Management Board provides below a response to a shareholder’s request submitted under Article 428.6 of the Commercial Companies Code (CCC):
Why the Issuer’s Management Board, having at its disposal legal tools to redeem 3,600,000 of own shares (held by a subsidiary, Apator Mining sp. z o.o.) does not undertake any actions to redeem them (Article 628 of CCC)?
What are the reasons hindering the process of redeeming the said 3,600,000 own shares?
Why the Management Board sells 1,000,000 of own shares to institutional investors - as in the current report No. 33/2010, while in the second case, the current report No. 7/2012, implements a programme for redemption of own bearer shares marked with a code PLAPATR0018 without remuneration or reduction in the share capital, knowing that according to legal requirements (CCC) own shares should have been redeemed long ago, when new regulations of the Commercial Companies Code doctrine came into force by implementation of legal acts?
What is a legal basis for including by the Management Board(s) of Apator SA the Issuer’s subsidiary, Apator Mining sp. z o.o. with its registered office in Katowice, in the list of the Company shareholders authorised to participate in the General Shareholders Meeting, as well as to perform the voting right?
What is basis used by the Issuer’s Management Board to take into account the shares belonging to the subsidiary, Apator Mining sp. z o.o., when distributing the dividend?
Apator SA Management Board answer:
The subsidiary Apator Mining sp. z o.o. purchased the Apator S.A. shares when the Commercial Code of 1934 was still in force, and it did not provide a restriction concerning the purchase of shares of the parent company by its subsidiary. Therefore, such subsidiary companies or associations could purchase shares or stocks of the parent company and perform all associated rights without any restrictions, as well as were not obliged to sell the shares or stocks held. It was only the Commercial Companies Code that introduced changes in this respect. However, in accordance with the adopted rule of the intertemporal law, to legal relations of commercial companies existing at the time when the new Act came into force the provisions of the new Act apply, unless the Act provides for exceptions. Article 613 of CCC specifying the rule for protection of the acquired right definitely is such an exception. A subsidiary which purchased shares of the parent company before January 1, 2001, uses the protection provided for in the indicated provision, and under the Commercial Companies Code it can also perform rights from these shares, including its right to a dividend, without any restrictions.
It should be emphasised here that an opinion on maintaining by the subsidiaries a freedom in performance of their rights resulting from shares of the parent company held, purchased before the Commercial Companies Code came into force, is widely accepted in the body of ruling and in the doctrine (see the Supreme Court ruling of Jan 7, 2005, IV CK 367/04, Lex No. 177257, the Comment to Article 613 of the Commercial Companies Code, [in]: A. Kidyba, Kodeks spółek handlowych. Komentarze Tom II. Komentarz do art. 301-633 k.s.h., Lex 2010, wyd. VII.).
Furthermore, the issue of Apator S.A. shares being held by its subsidiary Apator Mining Sp. z o. o. was directly settled by the Court of Appeal in Gdańsk which, ruling in the proceedings with a Ref. No. I ACa 1369/09, confirmed the above position as justified on April 21, 2010. That ruling was made publicly available in the current report No.18/2010 of April 22, 2010.
Taking into account the above circumstances, the Company Management Board indicates that it is not legally obliged to initiate actions aiming at redeeming the Company own shares. The subsidiary Apator Mining Sp. z o.o., which purchased shares of Apator S.A. before January 1, 2001, uses the protection provided for in Article 613 of CCC, and under the Commercial Companies Code it can also perform rights from these shares, including its right to a dividend.
Specific legal grounds:
Article 19.1.12 of the Minister of Finances Regulation of 29 March 2018 concerning current and periodic information provided by issuers of securities and conditions for considering as equivalent information required by regulations of a state not being a Member State.
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