UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
|
Tenaris S.A.
|
|
(Name
of Issuer)
|
|
Ordinary Shares, $1.00 par value per
share
|
|
(Title
of Class of Securities)
|
|
88031 M 10 9
|
|
(CUSIP
Number)
|
|
Fernando
R. Mantilla, Av. Leandro N. Alem 1067, 28th
Floor, Buenos Aires, Argentina,
|
|
Telephone:
+54-11-4018-2245
|
|
(Name,
Address and Telephone number of Person Authorized to
|
|
Receive
Notices and
Communications)
|
|
February 11, 2011
|
|
(Date
of Event Which Requires Filing of this
Statement)
|
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of §§240.13d–1(e), 240.13d–1(f) or 240.13d–1(g), check the
following box. ¨
Note:
Schedules filed in paper format shall include a signed original and five copies
of the schedule, including all exhibits. See Rule 13d–7 for other parties to
whom copies are to be sent.
*The
remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
|
CUSIP
NO. 88031 M
10 9
|
|
1.
|
NAMES
OF REPORTING PERSONS
|
|
|
ROCCA
& PARTNERS STICHTING ADMINISTRATIEKANTOOR AANDELEN SAN
FAUSTIN
|
||
|
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
|
00-0000000
|
||
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
|
|
|
(a) ¨
|
||
|
(b) ¨
|
||
|
3.
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SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS (SEE INSTRUCTIONS):
|
|
|
N/A
|
||
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e): ¨
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
|
|
|
THE
NETHERLANDS
|
||
|
7. SOLE
VOTING POWER: 0
|
|
|
NUMBER
OF
|
8. SHARED
VOTING POWER: 713,605,187
|
|
SHARES
|
|
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BENEFICIALLY
|
|
|
OWNED
BY
|
9. SOLE
DISPOSITIVE POWER: 0
|
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EACH
|
|
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REPORTING
|
|
|
PERSON
|
10. SHARED
DISPOSITIVE POWER: 713,605,187
|
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WITH:
|
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
713,605,187
|
|
|
12.
|
CHECK BOX IF THE
AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS)
|
|
|
¨
|
||
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 60.4%
|
|
|
14.
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TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS): HC
|
|
Page 2 of
43
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CUSIP
NO. 88031 M
10 9
|
|
1.
|
NAMES
OF REPORTING PERSONS
|
|
|
SAN
FAUSTIN S.A.
|
||
|
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
|
00-0000000
|
||
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
|
|
|
(a) ¨
|
||
|
(b) ¨
|
||
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS (SEE INSTRUCTIONS):
|
|
|
N/A
|
||
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e): ¨
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
|
|
|
GRAND
DUCHY OF
LUXEMBOURG
|
||
|
7. SOLE
VOTING POWER: 0
|
|
|
NUMBER
OF
|
8. SHARED
VOTING POWER: 713,605,187
|
|
SHARES
|
|
|
BENEFICIALLY
|
|
|
OWNED
BY
|
9. SOLE
DISPOSITIVE POWER: 0
|
|
EACH
|
|
|
REPORTING
|
|
|
PERSON
|
10. SHARED
DISPOSITIVE POWER: 713,605,187
|
|
WITH:
|
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
713,605,187
|
|
|
12.
|
CHECK BOX IF THE
AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS)
|
|
|
¨
|
||
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 60.4%
|
|
|
14.
|
TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS): CO
|
|
Page 3 of
43
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CUSIP
NO. 88031 M
10 9
|
|
1.
|
NAMES
OF REPORTING PERSONS
|
|
|
TECHINT
HOLDINGS S.À R.L.
|
||
|
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
|
00-0000000
|
||
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE
INSTRUCTIONS)
|
|
|
(a) ¨
|
||
|
(b) ¨
|
||
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS (SEE INSTRUCTIONS):
|
|
|
N/A
|
||
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e): ¨
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
|
|
|
GRAND
DUCHY OF
LUXEMBOURG
|
||
|
7. SOLE
VOTING POWER: 713,605,187
|
|
|
NUMBER
OF
|
8. SHARED
VOTING POWER: 0
|
|
SHARES
|
|
|
BENEFICIALLY
|
|
|
OWNED
BY
|
9. SOLE
DISPOSITIVE POWER: 713,605,187
|
|
EACH
|
|
|
REPORTING
|
|
|
PERSON
|
10. SHARED
DISPOSITIVE POWER: 0
|
|
WITH:
|
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
713,605,187
|
|
|
12.
|
CHECK BOX IF THE
AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS)
|
|
|
¨
|
||
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 60.4%
|
|
|
14.
|
TYPE
OF REPORTING PERSON (SEE INSTRUCTIONS): CO
|
|
Page 4 of
43
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Item
1.
|
Security
and Issuer
|
This
statement on Schedule 13D (this "Schedule 13D") relates to the Ordinary Shares,
par value $1 per share (the “Ordinary Shares”), of Tenaris S.A. The principal
executive offices of the Issuer are located at 46A, Av. J. F. Kennedy,
L-1855- Luxembourg, Grand-Duchy of Luxembourg.
|
Item
2.
|
Identity
and Background
|
This
Schedule 13D is being jointly filed by each of the following persons pursuant to
Rule 13d-1(k) (collectively, the “Reporting Persons”).
|
|
(a)
|
ROCCA
& PARTNERS STICHTING ADMINISTRATIEKANTOOR AANDELEN SAN FAUSTIN (“RP
STAK”)
|
Wilhelminakade
91 – 3072 AP Rotterdam, The Netherlands.
RP STAK
is a private foundation (stichting) organized under
the laws of The Netherlands. RP STAK was incorporated on December 17, 2010, by
Rocca & Partners S.A., a company organized under the laws of the British
Virgin Islands (“R&P”). No person or group of persons controls RP
STAK.
|
|
(b)
|
SAN
FAUSTIN S.A. (“SAN FAUSTIN”)
|
Boulevard
Prince Henri 3B – 3rd floor, L-1724 Luxembourg, Grand-Duchy of
Luxembourg.
SAN
FAUSTIN (formerly San Faustin N.V.) is a holding company formerly organized
under the laws of the Netherlands Antilles, which, on January 27, 2011,
transferred its seat to the Grand-Duchy of Luxembourg and became a société anonyme (public
limited liability company) under the Luxembourg Companies Act. RP STAK controls
a significant portion of the voting power of SAN FAUSTIN and has the ability to
influence matters affecting, or submitted to a vote of the shareholders of SAN
FAUSTIN, including the election of directors, the approval of certain corporate
transactions and other matters concerning SAN FAUSTIN’s policies.
|
|
(c)
|
TECHINT
HOLDINGS S.À R.L. (“TECHINT
HOLDINGS”)
|
Boulevard
Prince Henri 3B– 3rd floor, L-1724 Luxembourg, Grand-Duchy of
Luxembourg.
TECHINT
HOLDINGS (formerly I.I.I.-Industrial Investments Incorporated) is a holding
company formerly organized under the laws of the Cayman Islands, which, on
January 27, 2011, transferred its seat to the Grand-Duchy of Luxembourg and
became a société à
responsabilité limitée (private limited liability company) under the
Luxembourg Companies Act. All of the shares of TECHINT HOLDINGS are
held by SAN FAUSTIN.
The name,
present principal occupation or employment (and the name, principal business and
address of any corporation or other organization in which such employment is
conducted) and citizenship of each voting committee member or director, as
applicable, of each Reporting Person is set forth in Schedule I and is
incorporated into this Item 2 by reference. The name, present principal
occupation or employment (and the name, principal business and address of any
corporation or other organization in which such employment is conducted) and
citizenship of each executive officer of each Reporting Person is set forth in
Schedule I and is incorporated into this Item 2 by reference.
During
the last five years, none of the Reporting Persons, nor, to the knowledge of the
Reporting Persons, none of the persons listed on Schedule I has (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to federal or
state securities laws or finding any violation with respect to such
laws.
Page 5 of
43
Information
with respect to each of the Reporting Persons is given solely by such Reporting
Person, and no Reporting Person assumes responsibility for the accuracy or
completeness of information given by another Reporting Person.
|
Item
3.
|
Source
and Amount of Funds or Other
Consideration
|
The
events requiring the filing of this Schedule 13D did not involve any transfer of
funds or any kind of consideration. As discussed in “Item 4 – Purpose of
Transaction” below, RP STAK acquired all of its SAN FAUSTIN shares as a result
of the deposit of such shares with RP STAK by certain shareholders of SAN
FAUSTIN. RP STAK did not acquire and does not own any Ordinary
Shares.
There
were no changes in the holdings of Ordinary Shares of SAN FAUSTIN, TECHINT
HOLDINGS or TENARIS since such Reporting Persons filed their most recent
statement on Schedule 13G on February 2, 2010.
None of
the Reporting Persons and none of the individuals listed on Schedule I has
contributed any funds or other consideration towards the purchase of securities
of the Issuer.
|
Item
4.
|
Purpose
of Transaction
|
On
December 17, 2010, R&P incorporated RP STAK as a private foundation (stichting) organized under
the laws of The Netherlands.
Immediately
prior to the incorporation of RP STAK, R&P controlled a significant portion
of the voting power and had the ability to influence matters affecting, or
submitted to a vote of the shareholders of SAN FAUSTIN, including the election
of directors and the approval of certain corporate transactions and other
matters concerning SAN FAUSTIN’s policies.
In
connection with the redomiciliation of SAN FAUSTIN into the Grand-Duchy of
Luxembourg, it was deemed convenient that certain significant holdings in SAN
FAUSTIN be reorganized. For these purposes, R&P incorporated RP STAK and, on
February 11, 2011, shares in SAN FAUSTIN representing approximately 51.6% of SAN
FAUSTIN’s votes and 39,7% of SAN FAUSTIN’s share capital were deposited with RP
STAK. RP STAK holds all such SAN FAUSTIN shares in its own name but for the
account of the depositors. The voting of the SAN FAUSTIN shares deposited with
RP STAK is determined by RP STAK’s voting committee. The members of RP STAK’s
voting committee (listed on Schedule I) are appointed annually by the meeting of
depositors of SAN FAUSTIN voting shares.
Following
the deposit with RP STAK of the SAN FAUSTIN shares, RP STAK will continue to
control SAN FAUSTIN (i.e., it will have the ability to influence matters
affecting, or submitted to a vote of the shareholders of SAN FAUSTIN, including
the election of directors and the approval of certain corporate transactions and
other matters concerning SAN FAUSTIN’s policies)
The
description contained in this Item 4 is qualified in its entirety by reference
to the Articles of Association of RP STAK and the Conditions of Administration
of RP STAK, the terms of each of which are incorporated herein by reference to
Exhibits A and B hereto.
Except as
stated above, none of the Reporting Persons, or, to the best of each the
Reporting Person's knowledge, any of the individuals or entities named in
Schedule I hereto, currently has any plans or proposals which relate to or would
result in any of the actions listed in subparagraphs (a) through (j) of item 4
of Schedule 13D.
Page 6 of
43
|
Item
5.
|
Interest
in Securities of the Issuer
|
|
(a)
(b)
|
RP
STAK. See items (7) through (11) and (13) on page
2
|
SAN
FAUSTIN. See items (7) through (11) and (13) on page 3
|
|
TECHINT
HOLDINGS. See items (7) through (11) and (13) on page
4
|
|
|
(c)
|
Except
as described in this Schedule 13D, there have been no transactions in
Ordinary Shares effected by the Reporting Persons or, to the best of the
Reporting Person's knowledge, any person or entity identified on Schedule
I hereto, during the last 60 days.
|
|
|
(d)
|
Not
applicable.
|
|
|
(e)
|
Not
applicable.
|
|
Item
6.
|
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities
of the Issuer
|
The
information set forth under Items 3, 4 and 5 and the Articles of Association of
RP STAK and the Conditions of Administration of RP STAK set forth on Exhibits A
and B, respectively, are incorporated herein by reference.
Other
than the Articles of Association of RP STAK and the Conditions of Administration
of RP STAK, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) among the Reporting Persons or, to the best
of the Reporting Person's knowledge, any person listed on Schedule I hereto, and
any person with respect to any Ordinary Shares.
|
Item 7.
|
Material
to Be Filed as Exhibits
|
|
Exhibit
|
Description
|
|
|
A
|
Articles
of Association of ROCCA & PARTNERS STICHTING
|
|
|
ADMINISTRATIEKANTOOR
AANDELEN SAN FAUSTIN, dated December 17, 2010.
|
||
|
B
|
Conditions
of Administration of ROCCA & PARTNERS STICHTING
|
|
|
ADMINISTRATIEKANTOOR
AANDELEN SAN FAUSTIN, dated December 27, 2011
|
||
|
C
|
Power
of Attorney of ROCCA & PARTNERS STICHTING
|
|
|
ADMINISTRATIEKANTOOR
AANDELEN SAN FAUSTIN dated February 4, 2011.
|
||
|
D
|
Power
of Attorney of San Faustín S.A. (formerly San Faustin N.V.) dated February
4, 2011.
|
|
|
E
|
Power
of Attorney of Techint Holdings S.à r.l. (formerly I.I.I.- Industrial
Investments Inc.), dated February 3,
2011.
|
Page 7 of
43
Schedule
I
ROCCA
& PARTNERS STICHTING ADMINISTRATIEKANDOOR AANDELEN SAN FAUSTIN
MANAGEMENT
|
Manager
|
Business
Address
|
Present
Principal
occupation
|
Citizenship
|
|||
|
Zenco
Management BV
|
Wilhelminakade
91, 3072 AP, Rotterdam, Netherlands
|
Management
Company
|
Dutch
|
VOTING
COMMITTEE
|
Members
|
Business
Address
|
Present
principal
occupation
|
Citizenship
|
|||
|
Paolo
Rocca (Chairman)
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
Chairman
& CEO of Tenaris S.A.
|
Italian
|
|||
|
Gianfelice
Rocca
|
Via
Monte Rosa 93, Milano, Italy
|
Chairman
of San Faustin S.A.
|
Italian
|
|||
|
Roberto
Bonatti
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
President
of San Faustin S.A.
|
Italian
|
|||
|
Enrico
Bonatti
|
Via
Monte Rosa 93, Milano, Italy
|
Chairman
of Techint Compagnia Tecnica Internazionale S.pA.
|
Italian
|
|||
|
Giovanni
Sardagna
|
Via
Monte Rosa 93, Milano, Italy
|
Director
of Investors’ relations of Tenaris S.A.
|
Italian
|
|||
|
Andres
Piñeyro
|
Cerrito
1266, Buenos Aires, Argentina
|
President
of Meridium S.A.
|
Argentine
|
|||
|
Lodovico
Rocca
|
Itaim
Bibi 41, Sao Paulo, Brasil
|
VicePresident,
Techint Engenharia e Construçao S.A., São Paulo, Brazil
|
Italian
|
Page 8 of
43
SAN
FAUSTIN S.A.
BOARD OF
DIRECTORS
|
Name
|
Business
Address
|
Present
principal
occupation
|
Citizenship
|
|||
|
Gianfelice
Rocca
|
Via
Monte Rosa 93, Milan, Italy
|
Chairman
of San Faustin S.A.
|
Italian
|
|||
|
Roberto
Bonatti
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
President
of San Faustin S.A.
|
Italian
|
|||
|
Paolo
Rocca
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
Chairman &
CEO of Tenaris S.A.
|
Italian
|
|||
|
Guido
Bonatti
|
Via
Donizetti 57, Milan, Italy
|
Financial
Advisor
|
Italian
|
|||
|
Marco
Drago
|
13,
via Cattaneo, Novara, Italy
|
Chairman,
De Agostini SpA
|
Italian
|
|||
|
Vincenzo
Figus
|
Via
Parigi 11, Roma, Italy
|
Attorney-at-Law
|
Italian
|
|||
|
Bruno
Marchettini
|
Via
Dante, 25, San Quirico D’Orcia, 53027, Siena, Italy
|
Director,
Ternium S.A., Luxembourg
|
Italian
|
|||
|
Andres
Piñeyro
|
Cerrito
1266, Buenos Aires, Argentina
|
President,
Meridium S.A., Buenos Aires
|
Argentine
|
|||
|
Lodovico
Rocca
|
Itaim
Bibi 41, São Paulo, Brazil
|
VicePresident,
Techint Engenharia e Construçao S.A., São Paulo, Brazil
|
Italian
|
|||
|
Giovanni
Sardagna
|
Via
Monte Rosa 93, Milan, Italy
|
Director
of Investors’ relations of Tenaris S.A.
|
Italian
|
|||
|
Alberto
Valsecchi
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
President,
Dalmine SpA, Bergamo, Italy
|
Italian
|
|||
|
Roberto
Vidigal
|
Rua
Manoel Coelho 303, São Paulo, Brazil
|
Chairman
of the Board of Directors, Confab Industrial S.A., Brazil
|
Brazilian
|
OFFICERS
|
Name
|
Business
Address
|
Present
principal
occupation
|
Citizenship
|
|||
|
Chairman
of the Board
Gianfelice
Rocca
|
Via
Monte Rosa 93, Milan, Italy
|
Chairman
of San Faustin S.A.
|
Italian
|
|||
|
President
Roberto
Bonatti
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
President
of San Faustin S.A.
|
Italian
|
|||
|
Vice-president
Paolo
Rocca
|
Av.
Leandro N. Alem 1067, 29th
floor, Buenos Aires, Argentina
|
Chairman
& CEO of Tenaris S.A.
|
Italian
|
|||
|
Secretary
of the Board of Directors
Fernando
Mantilla
|
Av.
Leandro N. Alem 1067, 28th
floor, Buenos Aires, Argentina
|
Secretary
of the Board of Directors
|
Argentine
|
Page 9 of
43
TECHINT
HOLDINGS S.à r.l.
BOARD OF
DIRECTORS
|
Name
|
Business
Address
|
Present
principal
occupation
|
Citizenship
|
|||
|
Carlos
M. Franck
|
Av.
Leandro N. Alem 1067, 28th
floor, Buenos Aires, Argentina
|
President
of Santa Maria SAIyF.
|
Argentine
|
|||
|
Alain
Renard
|
412F,
route d’Esch, L-2086, Luxembourg
|
Executive
Vice- president of S.G.G. S.A., Luxembourg
|
French
|
|||
|
Mauro
L. A. Rezzonico
|
1,
via Emilio Bossi, Lugano, Switzerland
|
Director
of TCH Services S.A.
|
Swiss
|
|||
|
Juan
P. Boo
|
Edificio
Beta 3, Zonamerica, Montevideo, Uruguay
|
President
of Socominter S.A., Uruguay
|
U.S.A.
|
|||
|
Fernando
R. Mantilla
|
Av.
Leandro N. Alem 1067, 28th
floor, Buenos Aires, Argentina
|
Secretary
of San Faustin S.A.
|
Argentine
|
Page 10
of 43
SIGNATURE
After reasonable inquiry and to the
best of my knowledge and belief, I, Fernando R. Mantilla, attorney duly
authorized by ROCCA & PARTNERS STICHTING ADMINISTRATIEKANTOOR
AANDELEN SAN FAUSTIN to sign this statement, certify that the information set
forth in this statement is true, complete and correct.
Pursuant to Rule 13d-1(k)(1), the
undersigned joins in the filing of this Schedule 13D on his own behalf and on
behalf of SAN FAUSTIN S.A. and TECHINT HOLDINGS S.À R.L.
February
14, 2011
|
/s/ Fernando R. Mantilla
|
|
|
Fernando
R. Mantilla
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|
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Attorney-in-fact
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Page 11
of 43
SIGNATURE
After reasonable inquiry and to the
best of my knowledge and belief, I, Fernando R. Mantilla, attorney duly
authorized by SAN FAUSTIN S.A. to sign this statement, certify that the
information set forth in this statement is true, complete and
correct.
Pursuant to Rule 13d - 1(k)(1), the
undersigned joins in the filing of this Schedule 13D on his own behalf and on
behalf of ROCCA & PARTNERS STICHTING ADMINISTRATIEKANTOOR AANDELEN SAN
FAUSTIN and TECHINT HOLDINGS S.À R.L.
February
14, 2011
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/s/ Fernando R. Mantilla
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Fernando
R. Mantilla
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Attorney-in-fact
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Page 12
of 43
SIGNATURE
After reasonable inquiry and to the
best of my knowledge and belief, I, Fernando R. Mantilla, attorney duly
authorized by TECHINT HOLDINGS S.À R.L. to sign this statement, certify that the
information set forth in this statement is true, complete and
correct.
Pursuant to Rule 13d-1(k)(1), the
undersigned joins in the filing of this Schedule 13D on his own behalf and on
behalf of ROCCA & PARTNERS STICHTING ADMINISTRATIEKANTOOR AANDELEN SAN
FAUSTIN and SAN FAUSTIN S.A.
February
14, 2011
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/s/ Fernando R. Mantilla
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Fernando
R. Mantilla
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Attorney-in-fact
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Page 13
of 43
Exhibit
A
ROCCA
& PARTNERS Stichting Administratiekantoor Aandelen SAN FAUSTIN
ARTICLES
OF ASSOCIATION:
CHAPTER
I. DEFINITIONS.
Definitions.
Article
1.
|
1.1
|
In
these Articles of Association the following words shall have the following
meanings:
|
|
(a)
|
the
“Board”:
|
|
|
the
board of the Foundation consisting of one member (the
Manager);
|
|
|
(b)
|
a
“Business
Day”:
|
|
|
any
day on which banks are usually open for business in Uruguay, Italy as well
as Luxembourg, excluding Saturdays, Sundays and public holidays in any of
these countries;
|
|
|
(c)
|
the
“Company”:
|
|
|
San Faustin
N.V., a limited liability company under the laws of Curaçao, having
its registered office in Willemstad, Curaçao and its office address at
Berg Ararrat 1, Willemstad, Curaçao, which company intends to transfer its
seat to Luxembourg and to be converted into a Luxembourg “SA” company
(‘Société
Anonyme’);
|
|
|
(d)
|
the
“Conditions of
Administration”:
|
|
|
the
terms and conditions of the Foundation for the custody and holding in
administration (in Dutch: 'in administratie') of
Shares, in exchange for the issuance of Depositary Receipts, to be
established in accordance with Article 18 as they will read from time to
time;
|
|
|
(e)
|
a
“Depositary
Receipt”:
|
|
|
a
convertible (in Dutch:
‘decertificeerbaar’) registered depositary receipt (in Dutch: ‘een
certificaat') issued by the Foundation for a deposited Share,
representing the beneficial ownership of (in Dutch: ‘economische
gerechtigdheid tot’) the Share corresponding to the relevant
depositary receipt;
|
|
|
unless
the contrary is apparent, this shall include each Ordinary Depositary
Receipt, each Reconvertible Ordinary Depositary Receipt and each Preferred
Depositary Receipt;
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|
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(f)
|
a
“Depositor”:
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|
|
a
holder of one or more Depositary Receipts, and as such the beneficial
owner of (in Dutch:
‘economisch gerechtigde tot’) the Shares corresponding to the
relevant Depositary Receipts;
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|
|
unless
the contrary is apparent, this shall include each Ordinary Depositor, each
Reconvertible Ordinary Depositor and each Preferred
Depositor;
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|
|
(g)
|
the
“Distributions”:
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|
|
has
the meaning as attributed thereto in Article
3.1;
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|
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(h)
|
the
“Foundation”:
|
|
|
ROCCA & PARTNERS
Stichting Administratiekantoor Aandelen SAN FAUSTIN, a foundation
under the laws of the Netherlands, having its registered office in the
municipality of Rotterdam, the Netherlands, and its office address at 3072
AP Rotterdam, the Netherlands, Wilhelminakade 91,
Maastoren;
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Page 14
of 43
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|
(i)
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the
“General Meeting of
Shareholders”:
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|
|
a
meeting of Shareholders and other persons entitled to attend meetings of
Shareholders or the body of the Company consisting of Shareholders
entitled to vote;
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|
|
(j)
|
the
“Incorporator”:
|
|
|
Rocca & Partners
S.A., a company under the laws of the British Virgin Islands,
having its registered office in Road Town, Tortola, British Virgin Islands
and its office address at Vanterpool Plaza 1, Tortola, British Virgin
Islands and registered in the companies register of the British Virgin
Islands under number 435.473;
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|
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(k)
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an
“Instruction
Notice”:
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|
|
a
notice in writing from the Voting Committee to the Manager including
instructions in respect of the exercise of the voting rights on the
Shares;
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|
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(l)
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“in
writing”:
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|
|
by
letter, by telecopier, by e-mail or by message which is transmitted via
any current means of communication and which can be received in writing,
provided that the identity of the sender can be sufficiently
established;
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|
|
(m)
|
the
“Joint Meeting of
Ordinary/Reconvertible
Depositors”:
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|
|
the
joint meeting of Ordinary Depositors and Reconvertible Ordinary Depositors
and other persons entitled to attend such a meeting, as referred to in
Article 17;
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|
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(n)
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the
“Management
Fee”:
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|
|
has
the meaning as attributed thereto in Article
5.5;
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|
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(o)
|
the
“Manager”:
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|
|
the
sole member of the Board;
|
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(p)
|
the
“No Instruction for
Ordinary Company Matters
Proxy”:
|
|
|
has
the meaning as attributed thereto in Article 12.3
(ii);
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|
|
(q)
|
the
“Nominated Person
Proxy”:
|
|
|
has
the meaning as attributed thereto in Article
12.2;
|
|
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(r)
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the
“Ordinary Company
Matters”:
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|
Ordinary
Company Matters 1 and/or the Ordinary Company Matters
2;
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|
|
(s)
|
the
“Ordinary Company Matters
1”:
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|
|
has
the meaning as attributed thereto in Article 12.1 paragraph a.
(i).;
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|
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(t)
|
the
“Ordinary Company Matters
2”:
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|
|
has
the meaning as attributed thereto in Article 12.1 paragraph a.
(ii);
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|
|
(u)
|
an
“Ordinary Depositary
Receipt”:
|
|
|
a
convertible (in Dutch:
‘decertificeerbaar’) registered depositary receipt (in Dutch: ‘een
certificaat’) issued for a deposited Ordinary Share by the
Foundation, representing the beneficial ownership of (in Dutch: ‘economische
gerechtigdheid tot’) the Ordinary Share corresponding to the
relevant depositary receipt;
|
|
(v)
|
an
“Ordinary
Depositor”:
|
|
|
a
holder of one or more Ordinary Depositary Receipts and as such the
beneficial owner of (in
Dutch: ‘economisch gerechtigde tot’) the Ordinary Shares
corresponding to the relevant Ordinary Depositary
Receipts;
|
|
(w)
|
an
“Ordinary
Share”:
|
|
|
an
ordinary share in the capital of the
Company;
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|
|
(x)
|
an
“Ordinary Shares
Meeting”:
|
|
|
a
meeting of holders of Ordinary Shares and other persons entitled to attend
such meetings or the body of the Company consisting of holders of Ordinary
Shares entitled to
vote;
|
Page 15
of 43
|
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(y)
|
the
“Other Company
Matters”:
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|
|
has
the meaning as attributed thereto in Article 12.1 paragraph
c.;
|
|
|
(z)
|
the
“Other Company Matters
Proxy”:
|
|
|
has
the meaning as attributed thereto in Article 12.1 paragraph c.
(i);
|
|
(aa)
|
a
“Preferred Depositary
Receipt”:
|
|
|
a
convertible (in Dutch:
‘decertificeerbaar’) registered depositary receipt (in Dutch: ‘een
certificaat’) issued for a deposited Preferred Share by the
Foundation, representing the beneficial ownership of (in Dutch: ‘economische
gerechtigdheid tot’) the Preferred Share corresponding to the
relevant depositary receipt;
|
|
|
(bb)
|
a
“Preferred
Depositor”:
|
|
|
a
holder of one or more Preferred Depositary Receipts, and as such the
beneficial owner of (in
Dutch: ‘economisch gerechtigde tot’) the Preferred Shares
corresponding to the relevant Preferred Depositary
Receipts;
|
|
|
(cc)
|
a
“Preferred
Share”:
|
|
|
a
preferred share in the capital of the
Company;
|
|
|
(dd)
|
a
“Preferred Shares
Meeting”:
|
|
|
a
meeting of holders of Preferred Shares and other persons entitled to
attend such meetings or the body of the Company consisting of holders of
Preferred Shares entitled to
vote;
|
|
|
(ee)
|
a
“Qualified Majority
Resolution”:
|
|
|
a
resolution to be taken by the meeting of Depositors (and/or by the meeting
of Ordinary Depositors, the meeting of Reconvertible Ordinary Depositors,
the meeting of Preferred Depositors and/or the Joint Meeting of
Ordinary/Reconvertible Depositors, as the case may be) in the manner as
set forth in Article 13.6 (second paragraph) (and Article 14, 15, 16 or 17
as the case may be);
|
|
|
(ff)
|
a
“Reconvertible Ordinary
Depositary Receipt”:
|
|
|
a
convertible (in Dutch:
‘decertificeerbaar’) registered depositary receipt (in Dutch: ‘een
certificaat’) issued for a deposited Reconvertible Ordinary Share
by the Foundation, representing the beneficial ownership of (in Dutch: ‘economische
gerechtigdheid tot’) the Reconvertible Ordinary Share corresponding
to the relevant depositary
receipt;
|
|
(gg)
|
a
“Reconvertible Ordinary
Depositor”:
|
|
|
a
holder of one or more Reconvertible Ordinary Depositary Receipts and as
such the beneficial owner of (in Dutch: ‘economisch
gerechtigde tot’) the Reconvertible Ordinary Shares corresponding
to the relevant Reconvertible Ordinary Depositary
Receipts;
|
|
(hh)
|
a
“Reconvertible Ordinary
Share”:
|
|
|
a
reconvertible ordinary share in the capital of the
Company;
|
|
(ii)
|
a
“Reconvertible Ordinary
Shares Meeting”:
|
|
|
a
meeting of holders of Reconvertible Ordinary Shares and other persons
entitled to attend such meetings or the body of the Company consisting of
holders of Reconvertible Ordinary Shares entitled to
vote;
|
|
|
(jj)
|
a
“Share”:
|
|
|
a
share in the capital of the Company, unless the contrary is apparent, this
shall include each Ordinary Share, each Reconvertible Ordinary Share and
each Preferred Share in the capital of the
Company;
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Page 16
of 43
|
|
(kk)
|
a
“Shareholder”:
|
|
|
a
holder of one or more Shares;
|
|
|
(ll)
|
a
“Simple Majority
Resolution”:
|
|
|
a
resolution to be taken by the meeting of Depositors (and/or by the meeting
of Ordinary Depositors, the meeting of Reconvertible Ordinary Depositors,
the meeting of Preferred Depositors and/or the Joint Meeting of
Ordinary/Reconvertible Depositors, as the case may be) in the manner as
set forth in Article 13.6 (first paragraph) (and Article 14, 15, 16 or 17
as the case may be);
|
|
(mm)
|
a
“Specific Class of
Depositors Meeting”:
|
|
|
a
meeting of Ordinary Depositors, a meeting of Reconvertible Ordinary
Depositors, a meeting of Preferred Depositors and/or a Joint Meeting of
Ordinary/Reconvertible Depositors, as the case may
be;
|
|
|
(nn)
|
a
“Specific Class
Meeting”:
|
|
|
an
Ordinary Shares Meeting, a Reconvertible Ordinary Shares Meeting and/or a
Preferred Shares Meeting, as the case may
be;
|
|
(oo)
|
the
“VC Interim
Members”:
|
|
|
has
the meaning as attributed thereto in Article
9.4;
|
|
(pp)
|
the
“VC Interim
Vacancies”:
|
|
|
has
the meaning as attributed thereto in Article
9.4;
|
|
|
(qq)
|
the
“Voting
Committee”:
|
|
|
the
committee entitled to give voting instructions to the Manager in respect
of exercising the voting rights attached to Shares held by the Foundation
pursuant to and in accordance with the provisions of these Articles of
Association.
|
|
1.2
|
References
to Articles shall be deemed to refer to articles of these Articles of
Association, unless the contrary is
apparent.
|
CHAPTER
II. NAME, REGISTERED OFFICE AND OBJECTS.
Name
and registered office.
Article
2.
|
2.1
|
The
name of the Foundation is:
|
ROCCA & PARTNERS Stichting Administratiekantoor
Aandelen SAN FAUSTIN.
|
2.2
|
It
shall have its registered office in the municipality of Rotterdam, the
Netherlands.
|
Objects.
Article
3.
|
3.1
|
The
object of the Foundation is to custody (and within the framework thereof
to acquire) Shares in its own name for the risk and account of the
Depositors, in exchange for the issuance of Depositary Receipts, for the
purposes of administration of such Shares and to exercise the rights
attributable to such Shares, such as the voting rights as well as the
collecting of dividends, capital repayments and other distributions due on
account of such Shares (the “Distributions”) under the
obligation to pay such Distributions immediately upon receipt thereof to
the Depositors or to have the Distributions that are due on account of
such Shares being paid directly by the Company to the Depositors, and to
take all actions connected therewith, all in accordance with the
Conditions of Administration.
|
|
3.2
|
The
Foundation shall exercise the rights attached to the Shares in such a way
as to safeguard the interests of the Depositors taking into account the
relevant laws applicable to the Company from time to
time.
|
Page 17
of 43
|
3.3
|
The
Foundation exceptionally may -pursuant to and in accordance with the
provisions of Article 6.2 (iii) and (iv), Article 8, Article 12.1
paragraph a. (i) and (ii), Article 12.1 paragraph c. (i) as well as
Article 12.3 (ii)- grant a power of attorney to Depositors to exercise the
voting rights attached to the Shares corresponding to the Depositary
Receipts held by such Depositors.
|
|
3.4
|
The
object shall exclude disposal and encumbrance of the Shares. Disposal
shall not include the transfer of (the legal title to) the Shares to
Depositors made upon the conversion of the Depositary Receipts into Shares
and termination of the custody and holding in administration of Shares in
accordance with the Conditions of Administration and upon the dissolution
and liquidation of the Foundation.
|
|
3.5
|
Administration
of the Shares, exercising the rights attached thereto and any other
activities related thereto shall be conducted duly observing the
applicable Conditions of
Administration.
|
CHAPTER
III. FINANCE REPORTING.
Finance
Reporting.
Article
4.
|
4.1
|
The
funds of the Foundation shall consist of contributions made by the
Depositors to the Foundation to reimburse it for its expenses, including
but not limited to the Management Fee, as well as any amounts received by
the Foundation from other sources, such as the contributions or payments
that the Incorporator will make to cover the expenses of the Foundation
until there will be an inflow of contributions by the
Depositors.
|
|
4.2
|
The
financial year of the Foundation shall run from the first day of July of a
calendar year until the thirtieth day of June of the following calendar
year.
|
|
4.3
|
The
Manager shall administer the financial position of the Foundation and all
activities associated with the Foundation, in such a way as required by
these activities and shall keep the books, documents and other exponents
of data belonging thereto in such a way that its rights and obligations
may be established at any time.
|
|
4.4
|
Each
year, within six months from the end of the financial year, the Manager
shall prepare and put the balance sheet and the statement of income and
expenditure of the Foundation in writing. The balance sheet and the
statement of income and expenditures of the Foundation will not include
the Shares nor any income there from for accounting
purposes.
|
|
4.5
|
The
Manager shall keep the documents referred to in the Articles 4.3 and 4.4
for seven (7) years.
|
|
4.6
|
The
Manager may appoint a certified accountant (‘register-accountant’)
to conduct an audit of the balance sheet and the statement of income and
expenditure, to report and issue an opinion in this
respect.
|
CHAPTER
IV. THE MANAGER.
The
Manager.
Article
5.
|
5.1
|
The
Board shall only consist of one (1) member, being the
Manager.
|
|
5.2
|
The
Manager is appointed -for a limited or unlimited period of time- by the
Joint Meeting of Ordinary/Reconvertible
Depositors.
|
|
|
The
Manager may be dismissed by the Joint Meeting of Ordinary/Reconvertible
Depositors at any time.
|
|
|
The
resolutions of the Joint Meeting of Ordinary/Reconvertible Depositors to
appoint or dismiss the Manager (or to ratify the appointment of the
interim-Manager as referred to in Article 5.4) are taken by a Simple
Majority Resolution.
|
Page 18
of 43
|
5.3
|
The
Manager ceases to hold office:
|
|
|
(a)
|
upon
the expiry of the period for which he was
appointed;
|
|
|
(b)
|
upon
his voluntary resignation;
|
|
|
(c)
|
upon
his dismissal by Joint Meeting of Ordinary/Reconvertible
Depositors;
|
|
|
(d)
|
upon
his removal from office by the court in cases provided for by
law;
|
|
|
(e)
|
upon
his death;
|
|
|
(f)
|
upon
his being declared bankrupt, applying for a suspension of payments or
petitioning for application of the debt restructuring provision referred
to in the Dutch Bankruptcy Act.
|
|
5.4
|
In
case the Manager ceases to hold office and Joint Meeting of
Ordinary/Reconvertible Depositors has not appointed a new Manager in stead
of the Manager ceasing to hold office at the time of his resignation, the
Voting Committee shall be entitled to appoint an interim-Manager with the
same powers and duties as the Manager, which interim-Manager will be in
office until the moment of appointment of a new Manager by Joint Meeting
of Ordinary/Reconvertible
Depositors.
|
|
|
The
Joint Meeting of Ordinary/Reconvertible Depositors shall appoint a new
Manager or ratify the appointment of the interim-Manager made by the
Voting Committee at the earliest opportunity. In case the Joint Meeting of
Ordinary/Reconvertible Depositors ratifies the appointment of the
interim-Manager made by the Voting Committee, the interim-Manager shall
remain in office with the understanding that as of the date of such
ratification the interim-Manager shall be the
Manager.
|
|
|
The
provisions of this Article 5 and the provisions of Articles 6, 7 and 8 as
well as all other relevant provisions of these Articles of Association in
respect of the Manager, shall -to the extent required- equally apply to
the interim-Manager.
|
|
5.5
|
The
Manager shall be entitled to a remuneration for its services performed as
sole member of the Board (the “Management
Fee”).
|
Duties
and powers of the Manager.
Article
6.
|
6.1
|
The
Manager shall be entrusted with the management of the
Foundation.
|
|
6.2
|
The
Manager shall -in accordance with the provisions of these Articles of
Association and the Conditions of Administration- for the exercise of the
voting rights attached to the Shares which are held by the
Foundation:
|
|
|
(i)
|
attend
the General Meetings of Shareholders and Specific Class Meetings and
exercise (or abstain from the exercise of) the voting rights in such
meetings in accordance with the voting instructions given by the Voting
Committee in the Instruction Notice, which voting instructions in their
turn are to be determined by the Voting Committee itself or by the
relevant Specific Class of Depositors Meeting, as the case may
be,
|
|
|
pursuant
to and in accordance with the provisions of Article 12 (and more
specifically the provisions of Article 12.1 and 12.3
(i));
|
|
|
(ii)
|
grant
a power of
attorney -pursuant to and in accordance with the Instruction Notice
given by the Voting Committee- to a person nominated by the Voting
Committee (the Nominated
Person Proxy, as defined hereafter in Article 12.2 last paragraph),
on the basis of the provisions of Article 7.2 and Article 12.2 last
paragraph;
|
|
|
(iii)
|
grant
a power of
attorney -pursuant to and in accordance with the Instruction Notice
given by the Voting Committee- to each of the relevant Depositors to
exercise all or some of the voting rights attached to the Shares
corresponding to the Depositary Receipts held by such Depositor in respect
of Other Company
Matters (the Other
Company Matters Proxy, as defined hereafter in Article 12.1
paragraph c.(i)), on the basis of the provisions of Article 12.1 paragraph
c.(i) and Article 8.1; or
|
Page 19
of 43
|
|
(iv)
|
grant
a power of
attorney to each (a) Ordinary
Depositor to exercise all or some of the voting rights attached to
the Ordinary Shares corresponding to the Ordinary Depository Receipts held
by such Ordinary Depositor and (b) Reconvertible Ordinary
Depositor to exercise the voting rights attached to the
Reconvertible Ordinary Shares corresponding to the Reconvertible Ordinary
Depository Receipts held by such Reconvertible Ordinary
Depositor,
|
|
|
in
respect of any Ordinary Company
Matter for which the Voting Committee has not granted any voting
instructions by means of the Instruction Notice to the Manager in time
(No Instruction for
Ordinary Company Matters Proxy as defined hereafter in Article 12.3
(ii)), on the basis of the provisions of Article 12.1 paragraph a.,
Article 12.3 (ii) and Article
8.2.
|
|
6.3
|
Prior
to the exercise of the voting rights attached to the Shares which are held
by the Foundation in a General Meeting of Shareholders and in a Specific
Class Meeting, the Manager shall obtain voting instructions from the
Voting Committee on such exercise to be determined and given by the Voting
Committee to the Manager in accordance with the provisions of Article
12.
|
|
6.4
|
If
a resolution of the General Meeting of Shareholders or a Specific Class
Meeting is to be taken outside a (formal) meeting, whether or not in
writing, the Manager shall obtain voting instructions from the Voting
Committee in respect of the exercise of the voting rights attached to the
Shares which are held by the Foundation to be determined and given by the
Voting Committee to the Manager in accordance with the provisions of
Article 12, prior to taking or signing such resolution on behalf of the
Foundation.
|
Representation
and delegation by the Manager.
Article
7.
|
7.1
|
The
Foundation shall be represented by the
Manager.
|
|
7.2
|
The
Manager shall grant special power of attorney to a person nominated by the
Voting Committee (the Nominated Person Proxy,
as defined hereafter) to represent the
Foundation in the General Meeting of Shareholders or in a Specific Class
Meeting, if and when the Voting Committee instructs the Manager to grant
such power of attorney, such in accordance with the provisions of Article
12.2 last paragraph and the provisions of the Conditions of
Administration.
|
Power
of attorney to Depositors.
Article
8.
|
8.1
|
The
Manager shall grant special power of attorney in respect of Other Company
Matters,
|
|
|
to
each Depositor that holds Depositary Receipts issued in exchange for
Shares, the holder whereof is entitled to vote in respect of the relevant
Other Company Matter,
|
|
|
to
exercise the voting rights attached to the Shares corresponding to the
Depository Receipts held by such Depositor in the General Meeting of
Shareholders or in a Specific Class Meeting for some or all of the items
on the agenda of the General Meeting of Shareholders and/or on the agenda
of any Specific Class Meeting, as the case may
be,
|
|
|
in
so far as it regards Other Company Matters and if and when the Manager is
so instructed by the Voting Committee in the Instruction Notice, in
accordance with and pursuant to the provisions of Article 12.1 paragraph
c.(i)
|
|
|
(the
Other Company Matters
Proxy as defined hereafter in Article 12.1 paragraph c.
(i)).
|
|
|
The
Other Company Matters Proxy shall be limited to the Other Company Matters
detailed in the Instruction Notice
only.
|
Page 20
of 43
|
8.2
|
In
addition, the Manager shall grant special power of attorney to each
Ordinary Depositor and each
Reconvertible Ordinary Depositor (the No Instruction for Ordinary
Company Matters Proxy as defined hereafter in Article 12.3 (ii)) to
exercise voting rights attached to:
|
|
|
(a)
|
the
Ordinary Shares corresponding to the Ordinary Depository Receipts held by
such Ordinary Depositor in the General Meeting of Shareholders (and/or in
the Ordinary Shares Meeting), and
|
|
|
(b)
|
the
Reconvertible Ordinary Shares corresponding to the Reconvertible Ordinary
Depository Receipts held by such Reconvertible Ordinary Depositor in the
General Meeting of Shareholders (and/or in the Reconvertible Ordinary
Shares Meeting),
|
|
|
if
and when with respect to any of the Ordinary Company Matters no voting
instructions have been given (nor can be given) to the Manager by the
Voting Committee by means of a duly executed Instruction Notice -in
accordance with the provisions of these Articles of Association-
ultimately five Business Days prior to the date of the General Meeting of
Shareholders (and/or the Ordinary Shares Meeting and/or the Reconvertible
Ordinary Shares Meeting, as the case may
be).
|
|
|
The
No Instruction for Ordinary Company Matters Proxy shall be limited to
Ordinary Company Matters only.
|
|
8.3
|
The
Foundation shall not exercise the voting rights attached to Shares with
regard to a relevant subject matter in respect of which a power of
attorney to a Depositor has been
granted.
|
|
|
A
Depositor shall be free to vote in the manner as preferred by him by and
pursuant to the power of attorney granted to him in accordance with the
provisions of this Article 8. and the Foundation shall not be liable for
the voting behaviour of a Depositor or the consequences
thereof.
|
|
|
A
power of attorney will only be granted for a certain General Meeting of
Shareholders and/or a certain Specific Class Meeting, as the case may be,
and shall terminate at the closing of such
meeting.
|
CHAPTER
V. VOTING COMMITTEE.
Voting
Committee members.
Article
9.
|
9.1
|
The
Voting Committee shall consist of an odd number of at least three (3) and
at the maximum nine (9) members. The Voting Committee members are
appointed by the Joint Meeting of Ordinary/Reconvertible Depositors
annually.
|
|
9.2
|
The
number of members of the Voting Committee shall be determined by the Joint
Meeting of Ordinary/Reconvertible Depositors when annually appointing the
members of the Voting Committee.
|
|
|
The
resolutions of the Joint Meeting of Ordinary/Reconvertible Depositors to
appoint the new Voting Committee members (by means of a renewal of all
Voting Committee members as described in Article 9.3) and to determine the
number of members of the Voting Committee are taken by a Simple Majority
Resolution.
|
|
9.3
|
Voting
Committee members are appointed for the first time by this
deed.
|
|
|
The
first renewal (of all Voting Committee members) is to be made by the Joint
Meeting of Ordinary/Reconvertible Depositors during the first semester of
two thousand and eleven and subsequently every year thereafter, each time
for a one year term, which term starts to run as of the date of
appointment and shall end on the date of the appointment of the new Voting
Committee members.
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Page 21
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|
9.4
|
If
any (interim) vacancies arise during the (one year) term as referred to in
Article 9.3 (the “VC
Interim Vacancies”), the (remaining members of the) Voting
Committee shall -without prejudice to the provisions of Article
9.5-
|
|
|
appoint
(interim) members of the Voting Committee (the “VC Interim Members”) at
the earliest opportunity.
|
|
|
A
VC Interim Member that is appointed by the Voting Committee to fill a VC
Interim Vacancy shall take the seat (and continue the already running
term) of its predecessor and shall have the same authorities and
duties.
|
|
|
An
incomplete Voting Committee shall retain its
authorities.
|
|
9.5
|
Any
member of the Voting Committee as well as any VC Interim Member as
appointed by the Voting Committee in accordance with the provisions of
Article 9.4, may be dismissed by means of a Qualified Majority Resolution
of the Joint Meeting of Ordinary/Reconvertible
Depositors.
|
|
|
The
Joint Meeting of Ordinary/Reconvertible Depositors shall be entitled by
means of a Simple Majority Resolution to appoint a VC Interim Member at
the time of dismissal, which entitlement to appoint a new VC Interim
Member shall prevail over the entitlement of the Voting Committee as
referred to in Article 9.4.
|
|
|
A
VC Interim Member as appointed by the Joint Meeting of
Ordinary/Reconvertible Depositors to fill a VC Interim Vacancy shall take
the seat (and continue the already running term) of its predecessor and
shall have the same authorities and
duties.
|
|
9.6
|
The
Voting Committee shall appoint one of its members as chairperson of the
Voting Committee.
|
|
|
The
Voting Committee may also, from among its members, appoint a deputy
chairperson, who shall take over the duties and powers of the chairperson
the latter’s absence.
|
|
|
The
Voting Committee shall also appoint a secretary of the Voting Committee
who may not be member of the Voting Committee, and make arrangements for
his substitution in case of
absence.
|
|
9.7
|
The
Voting Committee may establish rules regarding its decision-making process
and its working methods, in addition to the relevant provisions of these
Articles of Association and the Conditions of
Administration.
|
Voting
Committee meetings.
Article
10.
|
10.1
|
A
Voting Committee meeting shall be held, at least ten Business Days prior
to each General Meeting of Shareholders, whether or not provided for in
the Articles of Association of the Company, and in which voting rights can
be exercised which are attached to one or more Shares held in
administration by the Foundation, unless, for the relevant meeting,
decision-making with regard to all proposals mentioned in the notice of
that meeting, has taken place in accordance with Article
11.6.
|
|
|
Additional
meetings of the Voting Committee shall be held as often as a Voting
Committee member, the Manager or Ordinary Depositors and/or Reconvertible
Ordinary Depositors jointly representing at least one-twentieth of the
aggregate nominal value of the Ordinary Depositary Receipts and/or
Reconvertible Ordinary Depositary Receipts
issued,
|
|
|
deems/deem
such necessary for the giving of voting instructions by the Voting
Committee in respect of the exercise of the voting rights attached to the
Shares held by the Foundation, such in accordance with and with view to
the provisions of Article 12.
|
|
10.2
|
Voting
Committee meetings shall be convened
by:
|
|
|
-
|
the
chairperson of the Voting
Committee,
|
Page 22
of 43
|
|
-
|
the
secretary of the Voting Committee, in consultation with the chairperson of
the Voting Committee; or
|
|
|
-
|
two
or more (other) Voting Committee
members.
|
|
|
If
the chairperson, the secretary or two or more (other) Voting Committee
members have not convened a meeting within five Business Days after a request
has been made thereto to the Voting Committee by any of the parties as
referred to in the second paragraph of Article 10.1, the parties who made
the request shall be authorized to convene a meeting
themselves.
|
|
10.3
|
Notice
of a Voting Committee meeting shall be given in writing, no later than on
the fifth business day prior to the day of the
meeting.
|
|
|
In
urgent cases, however, at the discretion of the Voting Committee members
or other persons as referred to in Articles 10.1 (second paragraph) and
10.2 convening the meeting, notice to convene a meeting may be given
within a shorter period, but not later than twenty-four hours before the
relevant meeting.
|
|
10.4
|
The
notice of the meeting shall specify the subjects to be discussed. Subjects
which were not specified in such notice may be announced at a later date,
with due observance of the provisions of this Article
10.
|
|
10.5
|
Voting
Committee meetings are held at a place to be determined by the chairperson
of the Voting Committee. However, if a meeting is called by two or more
other Voting Committee members or any of the persons referred to in
Articles 10.1 (second paragraph) and 10.2, the place of the meeting shall
be determined by them.
|
|
10.6
|
A
Voting Committee member may be represented at a meeting by another Voting
Committee member authorized in writing. A Voting Committee member may not
represent more than one other Voting Committee member at a meeting. The
Voting Committee members present at the meeting may decide on admittance
of other persons to the meeting, by majority of
votes.
|
|
10.7
|
The
Voting Committee meetings shall be presided over by the chairperson of the
Voting Committee or his deputy. In their absence, the chairperson of the
meeting shall be appointed by the Voting Committee members present at the
meeting, by majority of votes. The chairperson of the meeting shall
appoint a secretary for the
meeting.
|
|
10.8
|
The
secretary of the meeting shall take minutes of the proceedings at the
meeting. Evidencing the adoption, the minutes shall be signed by the
chairperson and the secretary of the meeting at which they are adopted and
by two other members of the Voting Committee attending the meeting (if
any).
|
Voting
Committee. Decision-making Process.
Article
11.
|
11.1
|
When
making Voting Committee resolutions, each member may cast one
vote.
|
|
11.2
|
To
the extent that, for the adoption of a resolution, the law or these
Articles of Association or the Conditions of Administration do not require
a higher majority and/or quorum, all resolutions of the Voting Committee
shall be adopted by a simple majority of votes, representing a majority of
all members of the Voting Committee then in
office.
|
|
11.3
|
If
there is a tie in voting, the proposal is thus
rejected.
|
|
11.4
|
Meetings
of the Voting Committee may be held by means of an assembly of its members
in person at a formal meeting or by conference call, video conference or
by any other means of communication, provided that all members of the
Voting Committee participating in such meeting are able to communicate
with each other simultaneously. Participation in a meeting held in any of
the above ways shall constitute presence at such
meeting.
|
Page 23
of 43
|
11.5
|
If
the formalities for convening and holding of Voting Committee meetings, as
prescribed by these Articles of Association, have not been complied with,
valid resolutions of the Voting Committee may only be adopted in a
meeting, if in such meeting all Voting Committee members then in office
are present or represented and none of the Voting Committee members then
opposes to adopting resolutions.
|
|
11.6
|
Voting
Committee resolutions may also be adopted in a manner other than at a
meeting, in writing or otherwise, provided the proposal concerned is
submitted to all members and none of them objects to the relevant manner
of adopting resolutions. A report shall be prepared by the secretary of
the Voting Committee on a resolution adopted other than at a meeting which
is not adopted in writing, and such report shall be signed by the chairman
and the secretary of the Voting Committee and at least two other members
of the Voting Committee. Adoption of resolutions in writing shall be
effected by written statements from all Voting Committee members in
office.
|
Voting
Committee. Voting instructions to the Manager.
Article
12.
|
12.1
|
The
voting instructions to be given by the Voting Committee to the Manager for
the exercise of the voting rights attached to the Shares shall be
determined by the Voting Committee as
follows:
|
|
|
a.
|
pursuant
to and in accordance with a resolution of the Voting
Committee:
|
|
|
(i)
|
taken
with a two/thirds (2/3) majority of votes, representing a two/thirds (2/3)
majority of all members of the Voting Committee then in office, in respect
of the following matters (these matters jointly also referred to as the
"Ordinary Company Matters
1"):
|
|
|
-
|
to
appoint, suspend and/or dismiss members of the board of directors of the
Company;
|
|
|
if
said majority and/or quorum is not reached in the Voting Committee for any
such Ordinary Company Matter(s) 1,
|
|
|
each
Ordinary Depositor and each Reconvertible Ordinary Depositor shall be
entitled to cast the votes corresponding to (a) the Ordinary Share for
which his Ordinary Depositary Receipt has been issued and (b) the
Reconvertible Ordinary Share for which his Reconvertible Ordinary
Depositary Receipt has been issued,
respectively,
|
|
|
in
the General Meeting of Shareholders
directly;
|
|
|
for
that purpose, the Manager shall grant a power of attorney (the No Instruction for Ordinary
Company Matters Proxy as defined hereafter in Article 12.3 sub
(ii)) in accordance with the provisions of Article 12.3 sub
(ii);
|
|
|
(ii)
|
taken
with a simple majority of votes, representing a majority of all members of
the Voting Committee then in office, in respect of the following matters
(these matters jointly also referred to as the "Ordinary Company Matters
2"):
|
|
|
(a)
|
to
approve the financial statements of the
Company;
|
|
|
(b)
|
to
approve profit allocations and dividend distributions as well as other
Distributions of the Company;
|
|
|
(c)
|
to
grant discharge to the members of the board of directors of the Company
for the management and duties
performed;
|
|
|
(d)
|
to
authorize to acquire Shares by the Company, up to ten per cent (10%) of
the Company’s outstanding capital;
|
Page 24
of 43
|
|
(e)
|
to
cancel Shares held by the Company and any related reduction of
capital;
|
|
|
if
said majority and/or quorum is not reached in the Voting Committee for any
such Ordinary Company Matter 2, the relevant Ordinary Company Matter(s) 2
shall subsequently be subject to a Simple Majority Resolution of the Joint
Meeting of Ordinary/Reconvertible
Depositors;
|
|
|
if
the majority (or majorities) and/or quorum as required for the Simple
Majority Resolution(s), as the case may be, is (are) not reached in the
Joint Meeting of Ordinary/Reconvertible
Depositors,
|
|
|
each
Ordinary Depositor and each Reconvertible Ordinary Depositor shall be
entitled to cast the votes corresponding to (a) the Ordinary Share for
which his Ordinary Depositary Receipt has been issued and (b) the
Reconvertible Ordinary Share for which his Reconvertible Ordinary
Depositary Receipt has been issued,
respectively,
|
|
|
in
the General Meeting of Shareholders
directly;
|
|
|
for
that purpose, the Manager shall grant a power of attorney (the No Instruction for Ordinary
Company Matters Proxy as defined hereafter in Article 12.3 sub
(ii)) in accordance with the provisions of Article 12.3 sub
(ii);
|
|
|
|
(the
“Ordinary Company Matters
1” and the “Ordinary Company Matters
2” jointly also referred to as the “Ordinary Company
Matters”);
|
|
|
b.
|
pursuant
to and in accordance with:
|
|
|
(i)
|
a
Qualified Majority Resolution of the meeting of Depositors, that are
holding Depositary Receipts issued in exchange for Shares, the holders
whereof are entitled to vote in respect of the relevant matter in the
General Meeting of Shareholders of the Company,
and/or
|
|
|
(ii)
|
a
Qualified Majority Resolution or Qualified Majority Resolutions of a
separate Specific Class of Depositors Meeting(s) of the separate class or
classes of Depositors, that are holding Depositary Receipts issued for the
corresponding (respective) class(es) of Shares, the holders whereof are
entitled to vote in respect of the relevant matter in the relevant
Specific Class Meeting(s),
|
|
|
as
the case may be,
|
|
|
in
respect of the following matters:
|
|
|
(x)
|
any
amendment to the articles of association of the Company;
and
|
|
|
(y)
|
any
resolution that may affect the rights of the Shareholders and requires a
resolution of the General Meeting of Shareholders, a resolution of a
Specific Class Meeting and/or resolutions of the Ordinary Shares Meeting,
the Reconvertible Ordinary Shares Meeting as well as the Preferred Shares
Meeting pursuant to or on the basis of the articles of association of the
Company;
|
|
|
if
the majority (or majorities) and/or quorum as required for the Qualified
Majority Resolution(s), as the case may be, is (are) not reached, the
proposal is deemed to be rejected by the relevant
meeting;
|
|
|
c.
|
in
respect of all other matters, which are not included in a. and b. above
(hereinafter also referred to as: the “Other Company
Matters”):
|
|
|
(i)
|
unless
the provision below under c. (ii)
applies,
|
|
|
pursuant
to and in accordance with a resolution of the Voting Committee, taken with
a simple majority of votes, representing a majority of all members of the
Voting Committee in office;
|
Page 25
of 43
if said
majority and/or quorum is not reached, the proposal is deemed to be rejected and
no Other Company Matters Proxy (as referred to below in this paragraph (i)) can
be granted;
|
|
said
resolution of the Voting Committee can -in stead of or next
to voting instructions to the Manager in respect of some of the
Other Company Matters- include the instruction to the
Manager
|
|
|
to
grant a general or specific power of attorney to Depositors -that are
holding Depositary Receipts issued in exchange for Shares, the holders
whereof are entitled to vote in respect of the relevant Other Company
Matter-
|
|
|
to
exercise all or some of the voting rights attached to the Shares
corresponding to the Depositary Receipts held by such Depositor in respect
of (some or all of the relevant) Other Company Matters (the “Other Company Matters
Proxy”);
|
|
|
the
provisions of Articles 8.1 and 8.3, apply to the Other Company Matters
Proxy;
|
|
|
(ii)
|
if
any two members of the Voting Committee request to the Voting Committee,
that the relevant Other Company Matter is submitted to a resolution of the
meeting of Depositors:
|
|
|
-
|
pursuant
to and in accordance with a Simple Majority Resolution of the meeting of
Depositors;
|
|
|
|
if
the majority and/or quorum as required for the Simple Majority Resolution
is not reached, the proposal is deemed to be
rejected.
|
|
12.2
|
The
Voting Committee shall give instructions to the Manager in respect of the
exercise of the voting rights on Shares ultimately five Business Days
prior to the relevant General Meeting of Shareholders or Specific Class
Meeting where voting rights on Shares can be exercised, by means of an
Instruction Notice signed by the chairperson, the secretary and two other
members (if any) of the Voting
Committee.
|
|
|
The
Instruction Notice shall be drawn up pursuant to and in accordance with
the resolutions taken or rejected by the Voting Committee or the meeting
of Depositors (of the relevant class), as the case may be, in the way as
provided for in Article 12.1.
|
|
|
An
Instruction Notice may also include the instruction to the Manager to
grant a power of attorney to a person nominated by the Voting Committee to
attend the General Meeting of Shareholders and/or a Specific Class Meeting
and to exercise the voting rights on the relevant Shares in such meeting;
such power of attorney may be split (and granted to different nominated
persons) for different items to be voted on in the relevant meeting(s)
(the “Nominated Person
Proxy”).
|
|
12.3
|
In
respect of any matter where no voting instructions (nor proxy granting
instructions) are given (nor can be given) to the Manager by the Voting
Committee in time, by means of a duly executed Instruction Notice (whether
or not including the instruction to grant a Nominated Person Proxy and/or
an Other Company Matters Proxy), in accordance with the provisions of
these Articles of Association, the Manager
shall:
|
|
|
(i)
|
abstain
from exercising any voting rights on behalf of the Foundation in respect
of the relevant matter, except in so far as it regards an Ordinary Company
Matter, in which case paragraph (ii) of this Article 12.3 applies;
or
|
|
|
(ii)
|
grant
a power of attorney on behalf of the Foundation to each Ordinary Depositor
and to each Reconvertible Ordinary Depositor to exercise the voting rights
attached to (a) the Ordinary Shares corresponding to the Ordinary
Depository Receipts held by such Ordinary Depositor and (b) the
Reconvertible Ordinary Shares corresponding to the Reconvertible Ordinary
Depository Receipts held by such Reconvertible Ordinary Depositor,
respectively,
|
|
|
in
respect of any Ordinary Company
Matter,
|
|
|
the
contents of which power of attorney shall be limited to the exercise of
voting rights in respect of the relevant Ordinary Company Matter only (the
“No Instruction for
Ordinary Company Matters Proxy”); the provisions of Articles 8.2
and 8.3 apply
to the No Instruction for Ordinary Company Matters
Proxy.
|
Page 26
of 43
CHAPTER
VI. MEETINGS OF DEPOSITORS.
Meetings
of Depositors.
Article
13.
|
13.1
|
Meetings
of Depositors shall be held if pursuant to (i) these Articles of
Association or (ii) the Conditions of Administration, a resolution of the
meeting of Depositors is required, and in addition whenever the Manager
deems such necessary. Moreover, the Manager shall convene a meeting of
Depositors, stating the reasons therefore, at the written request of
Depositors, representing in the aggregate at least one-twentieth of the
aggregate nominal value of the Depositary Receipts
issued.
|
|
|
If
the Manager has not called a meeting within fourteen Business Days after
such request, the Depositors who made the request shall be authorized to
convene a meeting themselves.
|
|
13.2
|
Notice
of meetings of Depositors shall be given in writing, no later than five
Business Days prior to the day of the meeting, and shall specify the
topics to be dealt with.
|
|
|
Any
notice will include a convocation for a first meeting and a convocation
for a second meeting, if there is no quorum for the first meeting, to be
held three Business Days after the first
meeting.
|
|
|
If
notice has not been given in writing, if the topics to be dealt with have
not been specified in the notice, or if the (first) meeting is convened
with shorter notice than five Business Days or other convocation
formalities have not been complied
with,
|
|
|
Depositors
may nevertheless adopt valid resolutions, provided that all Depositors are
present or represented at the meeting, none of the Depositors objects to
the adoption of such resolutions, and the Manager as well as the secretary
of the Voting
Committee were informed of the holding of the
meeting.
|
|
13.3
|
Meetings
of Depositors shall be held in the municipality in which the Foundation,
according to these Articles of Association, has its registered office, as
well as in Amsterdam, Luxembourg (Luxembourg), Lugano (Switzerland) or
Montevideo (Uruguay) or other place that the Manager deems
appropriate.
|
|
13.4
|
Each
Depositor -either personally or by attorney-, the chairperson of the
meeting, the Manager as well as those who are expressly admitted by the
Depositors at a meeting shall be entitled to attend such meeting of
Depositors.
|
|
|
A
Depositor may be represented at a meeting by any other Depositor or by any
other person authorized in writing for that purpose, who shall in that
case be admitted to the meeting.
|
|
13.5
|
Each
Depositor shall have one vote per Depository Receipt held by him for each
corresponding Share deposited under the Conditions of
Administration.
|
|
13.6
|
Unless
these Articles of Association or the Conditions of Administration provide otherwise,
resolutions can be validly taken in meetings of Depositors as
follows:
|
|
|
-
|
if
it regards a first
meeting of Depositors as referred to in Article 13.2, resolutions
can be taken if a quorum of a majority of the Depositary Receipts that
have been issued is present or represented at such meeting, with a simple
majority of the votes cast in such
meeting;
|
Page 27
of 43
|
|
-
|
if
it regards a second meeting of
Depositors as referred to in Article 13.2, which is to be held within
three Business Days after the first meeting if the quorum requirement for
the first meeting has not been met, resolutions can be taken if a quorum
of one third (1/3) of the Depositary Receipts that have been issued is
present or represented at such meeting, with a simple majority of the
votes cast in such meeting;
|
|
|
the
resolution taken (or to be taken) by the meeting of Depositors in the
manner as set forth above, hereinafter referred to as: a “Simple Majority
Resolution”.
|
|
|
In
addition, certain resolutions as specifically described in these Articles
of Association or the Conditions of Administration require a
resolution taken with a qualified majority to be validly taken in meetings
of Depositors as follows:
|
|
|
-
|
if
it regards a first meeting of Depositors as referred to in Article 13.2,
such resolutions can be taken if a quorum of a majority of the Depositary
Receipts that have been issued is present or represented at such meeting,
with a two/thirds (2/3) majority of the votes
cast;
|
|
|
-
|
if
it regards a second meeting of Depositors as referred to in Article 13.2,
which is to be held within three Business Days after the first meeting if
the quorum requirement for the first meeting has not been met, such
resolutions can be taken if a quorum of one third (1/3) of the Depositary
Receipts that have been issued is present or represented at such meeting,
with a two/thirds (2/3) majority of the votes
cast;
|
|
|
the
resolution taken (or to be taken) by the meeting of Depositors in the
manner as set forth above, hereinafter referred to as: the “Qualified Majority
Resolution”.
|
|
|
Abstentions
and invalid votes shall not be counted as votes
cast.
|
|
13.7
|
All
votes shall be taken orally, unless one of the Depositors present at the
meeting requires a vote by ballot, in which case voting shall take place
by means of unsigned ballot papers.
|
|
13.8
|
The
meetings shall be presided over by a chairperson to be elected by the
meeting.
|
|
13.9
|
The
business transacted at a meeting shall be recorded in minutes by a person
designated for that purpose by the chairperson of the meeting. The minutes
shall be adopted either at that meeting or at the next meeting and shall,
as evidence thereof, be signed by the chairperson and the person who took
such minutes.
|
|
13.10
|
The
Depositors may also adopt resolutions in a manner other than at a meeting
thereof, provided that the Manager was informed, all Depositors are given
the opportunity to cast their votes and that all of them have declared in
writing that they do not object to the manner of adopting
resolutions.
|
|
|
A
resolution shall then be adopted if the required majority of the votes are
cast in favour of the proposal.
|
|
13.11
|
The
Manager shall prepare a report of a resolution adopted without holding a
meeting and shall attach such report to the
minutes.
|
Meetings
of Ordinary Depositors.
Article
14.
The
provisions of Article 13 of these Articles of Association with respect to
meetings of Depositors shall apply by analogy to meetings of Ordinary
Depositors, with the understanding that the terms “Depositary Receipt” and “Depositor” should be read as
“Ordinary Depositary
Receipt” and “Ordinary
Depositors”, as the case may be, and that the terms “Simple Majority Resolution”
and “Qualified Majority
Resolution” have the same meaning in respect of resolutions (to be) taken
by the meeting of Ordinary Depositors as in respect of resolutions (to be) taken
by the meeting of Depositors.
Page 28
of 43
Meetings
of Reconvertible Ordinary Depositors.
Article
15.
The
provisions of Article 13 of these Articles of Association with respect to
meetings of Depositors shall apply by analogy to meetings of Reconvertible
Ordinary Depositors, with the understanding that the terms “Depositary Receipt” and “Depositor” should be read as
“Reconvertible Ordinary
Depositary Receipt” and “Reconvertible Ordinary
Depositors”, as the case may be, and that the terms “Simple Majority Resolution”
and “Qualified Majority
Resolution” have the same meaning in respect of resolutions (to be) taken
by the meeting of Reconvertible Ordinary Depositors as in respect of resolutions
(to be) taken by the meeting of Depositors.
Meetings
of Preferred Depositors.
Article
16.
The
provisions of Article 13 of these Articles of Association with respect to
meetings of Depositors shall apply by analogy to meetings of Preferred
Depositors, with the understanding that the terms “Depositary Receipt” and “Depositor” should be read as
“Preferred Depositary
Receipt” and “Preferred
Depositors”, as the case may be, and that the terms “Simple Majority Resolution”
and “Qualified Majority
Resolution” have the same meaning in respect of resolutions (to be) taken
by the meeting of Preferred Depositors as in respect of resolutions (to be)
taken by the meeting of Depositors.
Joint
Meetings of Ordinary/Reconvertible Depositors.
Article
17.
|
17.1
|
The
provisions of Article 13 of these Articles of Association with respect to
meetings of Depositors shall apply by analogy to the joint meetings of
Ordinary Depositors and Reconvertible Ordinary Depositors -such as the
meetings to appoint members of the Voting Committee or decide the voting
on the Deposited Shares as provided for in Article 12-, with the
understanding that the terms “Depositary Receipt” and
“Depositor” should
be read as “Ordinary
Depositary Receipt and Reconvertible Ordinary Depositary Receipt”
and “Ordinary Depositors
and Reconvertible Ordinary Depositors”, as the case may be, and
that the terms “Simple
Majority Resolution” and “Qualified Majority
Resolution” have the same meaning in respect of resolutions (to be)
taken by the joint meeting of Ordinary Depositors and Reconvertible
Ordinary Depositors (the “Joint Meeting of
Ordinary/Reconvertible Depositors”) as in respect of resolutions
(to be) taken by the meeting of
Depositors.
|
|
17.2
|
The
rights and obligations of each of the Ordinary Depositors and
Reconvertible Ordinary Depositors shall be (deemed to be) equal in the
Joint Meeting of Ordinary/Reconvertible
Depositors.
|
|
|
In
such meeting, each Ordinary Depositor and each Reconvertible Ordinary
Depositor shall have one vote per Ordinary Depository Receipt and/or per
Reconvertible Ordinary Depositary Receipt held by him for each
corresponding Ordinary Share or Reconvertible Ordinary Share, as the case
may be, deposited under the Conditions of
Administration.
|
CHAPTER
VII. CONDITIONS OF ADMINISTRATION.
Conditions
of Administration.
Article
18.
|
18.1
|
The
Foundation shall establish the Conditions of Administration, by having the
Manager executing the Conditions of Administration annexed as exhibit 1
hereto, with its signature and capacity as Manager of the Foundation
certified by a notary.
|
|
18.2
|
The
Conditions of Administration may be amended pursuant to a Qualified
Majority Resolution of the meeting of Depositors. The provisions of
Article 19.2 of these Articles of Association shall apply by analogy to a
resolution of the meeting of Depositors to amend the Conditions of
Administration. The Conditions of Administration may include further
regulations with respect to (the effectuation of) amendments
thereof.
|
Page 29
of 43
CHAPTER
VIII. AMENDMENT TO THE ARTICLES OF ASSOCIATION AND DISSOLUTION.
Article
19.
|
19.1
|
The
Manager shall be authorized to amend these Articles of Association
pursuant to a Qualified Majority Resolution to that effect of the meeting
of the Depositors.
|
|
19.2
|
A
copy of the proposal, containing the verbatim text of the proposed
amendment, shall be attached to the notice of the meeting in which an
amendment of the Articles of Association is to be
discussed.
|
|
19.3
|
An
amendment of these Articles of Association shall be laid down in a
notarial deed. The Manager shall be authorized to execute such
deed.
|
Dissolution
and Liquidation.
Article
20.
|
20.1
|
The
Foundation may be dissolved pursuant to a Qualified Majority Resolution to
that effect of the meeting of the
Depositors.
|
|
|
If
there are no Depositors, the Foundation may be dissolved pursuant to a
resolution to that effect by the
Manager.
|
|
20.2
|
The
resolution to dissolve the Foundation shall determine how the balance of
the remaining funds is to be used, which funds may be transmitted to a
charitable institution.
|
|
|
20.3 The
Manager shall become the liquidator of the dissolved Foundation's property
unless the meeting of Depositors appoints one or more (other) liquidators
(next to or in stead of the
Manager).
|
|
20.4
|
During
liquidation, the provisions of these Articles of Association shall remain
in force to the extent possible.
|
|
20.5
|
After
the dissolution, the Shares held by the Foundation shall be transferred to
the Depositors and the Depositary Receipts issued therefore shall be
cancelled.
|
|
20.6
|
After
completion of the liquidation, the books and records of the dissolved
Foundation shall remain in the custody of the person to be designated for
the purpose by the liquidators, for the period prescribed by
law.
|
|
20.7
|
In
addition, the liquidation shall be subject to the relevant provisions of
Book 2, Title 1 of the Dutch Civil
Code.
|
Final
Provision.
Article
21.
The first
financial year of the Foundation shall end on the thirtieth day of June [two thousand and eleven].
Finally,
the person appearing declared:
|
1.
|
The
first Manager of the Foundation shall
be:
|
|
|
Zenco Corporate Services
B.V., a company under Dutch law, having its registered office in
Rotterdam, the Netherlands, and its office address at 3072 AP Rotterdam,
the Netherlands, Wilhelminakade 91, Maastoren, registered with the trade
register of the Chamber of Commerce of Rotterdam, the Netherlands, under
number 24191163.
|
|
2.
|
In
deviation from the provisions of Articles 9.1 and 9.2 of these Articles of
Association, the first Voting Committee shall consist of seven (7)
members, which initial members of the Voting Committee are hereby
appointed:
|
|
|
(i)
|
Paolo Rocca, residing at
Buenos Aires, Argentina, born at Milan, Italy, on the fourteenth day of
October nineteen hundred fifty-two;
|
|
(ii)
|
Gianfelice Mario Rocca,
residing at Milan, Italy, born at Milan, Italy, on the second day of March
nineteen hundred forty-eight;
|
Page 30
of 43
|
|
(iii)
|
Roberto Bonatti,
residing at Buenos Aires, Argentina, born at Milan, Italy, on the eleventh
day of December nineteen hundred
forty-nine.
|
|
|
(iv)
|
Enrico Luca Maria
Bonatti, residing at Milan, Italy, born at Buenos Aires, Argentina,
on the fourteenth day of July nineteen hundred
fifty-eight;
|
|
|
(v)
|
Andres Pineyro, residing
at Buenos Aires, Argentina, born at Buenos Aires, Argentina, on the
fifteenth day of September nineteen hundred
sixty-two;
|
|
|
(vi)
|
Giovanni Sardagna,
residing at Milan, Italy, born at Milan, Italy, on the tenth day of August
nineteen hundred sixty-seven; and
|
|
|
(vii)
|
Lodovico Andrea Palu
Rocca, residing at Sao Paulo, Brasil, born at Milan, Italy, on the
fourth day of April nineteen hundred
seventy-four,
|
and which
initial members of the Voting Committee shall be in office until the meeting of
Ordinary Depositors has appointed new Voting Committee members in accordance
with the provisions of Article 9.3, in the first semester of two thousand and
twelve.
Page 31
of 43
Exhibit
B
CONDITIONS
OF ADMINISTRATION
ROCCA
& PARTNERS STICHTING ADMINISTRATIEKANTOOR AANDELEN SAN FAUSTIN
The
undersigned:
ROCCA & PARTNERS Stichting
Administratiekantoor Aandelen SAN FAUSTIN, a foundation under Dutch law
('stichting'), having
its official seat in Rotterdam, the Netherlands, and its office address at 3072
AP Rotterdam, the Netherlands, Wilhelminakade 91, Maastoren;
(the
“Foundation”)
organized
to administer shares in the capital of San Faustin N.V., a limited
liability company under the laws of the Netherlands Antilles, having its
registered office in Wilemstad, Curaçao (Netherlands Antilles) and its office
address at Berg Ararrat 1, Wilemstad, Curaçao (Netherlands Antilles) (the “Company”),
hereby
establishes the following terms and conditions (hereinafter: the “Conditions of Administration”)
for the custody and administration of shares in the capital of the Company to be
evidenced by depositary receipts for such shares,
pursuant
to and in accordance with the provisions of Article 18.1 of the Articles of
Association of the Foundation, as evidenced by a true certified copy of the
Articles of Association that is attached hereto (Annex).
FOUNDATION ROCCA & PARTNERS
Stichting Administratiekantoor Aandelen SAN FAUSTIN hereby establishes
the following Conditions of Administration.
CONDITIONS
OF ADMINISTRATION:
Definitions.
Article
1.
In these
Conditions of Administration the following words shall have the following
meanings:
|
1.1
|
(a)
|
the
"Administration
Costs":
|
|
|
has
the meaning as attributed thereto in Article
4;
|
|
|
(b)
|
the
"Board":
|
|
|
the
board of the Foundation consisting of one member (the
Manager);
|
|
|
(c)
|
a
"Business
Day":
|
|
|
any
day on which banks are usually open for business in Uruguay, Italy as well
as Luxembourg, excluding Saturdays, Sundays and public holidays in any of
these countries;
|
|
|
(d)
|
the
"Company":
|
|
|
San Faustin
N.V., a limited liability company under the laws of Curaçao, having
its registered office in Willemstad, Curaçao and its office address at
Berg Ararrat 1, Willemstad, Curaçao, which company intends to transfer its
seat to Luxembourg and to be converted into a Luxembourg “SA” company
(‘Société
Anonyme’);
|
Page 32
of 43
|
|
(e)
|
the
"Conditions of
Administration":
|
|
|
the
terms and conditions of the Foundation for the custody and holding in
administration ('in
administratie') of Shares, in exchange for the issuance of
Depositary Receipts, to be established in accordance with Article 18 of
the Articles of Association of the Foundation, as they will read from time
to time;
|
|
|
(f)
|
a
"Depositor":
|
|
|
a
holder of one or more Depositary Receipts, and as such the beneficial
owner of (in Dutch:
‘economisch gerechtigde tot’) the Shares corresponding to the
relevant Depositary Receipts;
|
|
|
unless
the contrary is apparent, this shall include each Ordinary Depositor, each
Reconvertible Ordinary Depositor and each Preferred
Depositor;
|
|
|
(g)
|
a
"Depositary
Receipt":
|
|
|
a
convertible (in Dutch:
‘decertificeerbaar’) registered depositary receipt (in Dutch: ‘een
certificaat') issued by the Foundation for a deposited Share,
representing the beneficial ownership of (in Dutch: ‘economische
gerechtigdheid tot’) the Share corresponding to the relevant
depositary receipt;
|
|
|
unless
the contrary is apparent, this shall include each Ordinary Depositary
Receipt, each Reconvertible Ordinary Depositary Receipt and each Preferred
Depositary Receipt;
|
|
|
(h)
|
the
"Distributions":
|
|
|
has
the meaning as attributed thereto in Article 3.1 of the Articles of
Association of the Foundation;
|
|
|
(i)
|
the
"Foundation":
|
|
|
ROCCA & PARTNERS
Stichting Administratiekantoor Aandelen SAN FAUSTIN, a foundation
under the laws of the Netherlands, having its registered office in the
municipality of Rotterdam, the Netherlands, and its office address at 3072
AP Rotterdam, the Netherlands, Wilhelminakade 91,
Maastoren;
|
|
|
(j)
|
the
"Incorporator":
|
|
|
Rocca & Partners
S.A., a company under the laws of the British Virgin Islands,
having its registered office in Road Town, Tortola, British Virgin Islands
and its office address at Vanterpool Plaza 1, Tortola, British Virgin
Islands and registered in the companies register of the British Virgin
Islands under number 435.473;
|
|
|
(k)
|
"in
writing":
|
|
|
by
letter, by telecopier, by e-mail or by message which is transmitted via
any current means of communication and which can be received in writing,
provided that the identity of the sender can be sufficiently
established;
|
|
|
(l)
|
the
"Management
Fee":
|
|
|
has
the meaning as attributed thereto in Article 5.5 of the Articles of
Association of the Foundation;
|
|
|
(m)
|
the
"Manager":
|
|
|
the
sole member of the Board;
|
|
|
(n)
|
the
"No Instruction for
Ordinary Company Matters
Proxy":
|
|
|
has
the meaning as attributed thereto in Article 12.3 (ii) of the Articles of
Association of the
Foundation;
|
|
|
(o)
|
the
"Nominated Person
Proxy":
|
|
|
has
the meaning as attributed thereto in Article 12.2 of the Articles of
Association of the
Foundation;
|
Page 33
of 43
|
|
(p)
|
an
"Ordinary Depositary
Receipt":
|
|
|
a
convertible (in Dutch:
“decertificeerbaar”) registered depositary receipt (in Dutch: “een
certificaat”') issued for a deposited Ordinary Share by the
Foundation, representing the beneficial ownership of (in Dutch: “economische
gerechtigdheid tot”) the Ordinary Share corresponding to the
relevant depositary receipt;
|
|
|
(q)
|
an
"Ordinary
Depositor":
|
|
|
a
holder of one or more Ordinary Depositary Receipts and as such the
beneficial owner of (in
Dutch: “economisch gerechtigde tot”) the Ordinary Shares
corresponding to the relevant Ordinary Depositary
Receipts;
|
|
|
(r)
|
an
"Ordinary
Share":
|
|
|
an
ordinary share in the capital of the
Company;
|
|
|
(s)
|
the
"Other Company Matters
Proxy":
|
|
|
has
the meaning as attributed thereto in Article 12.1 paragraph c. (i) of the
Articles of Association of the
Foundation;
|
|
|
(t)
|
a
"Preferred Depositary
Receipt":
|
|
|
a
convertible (in Dutch:
“decertificeerbaar”) registered depositary receipt (in Dutch “een
certificaat”') issued for a deposited Preferred Share by the
Foundation, representing the beneficial ownership of (in Dutch: “economische
gerechtigdheid tot”) the Preferred Share corresponding to the
relevant depositary receipt;
|
|
|
(u)
|
a
"Preferred
Depositor":
|
|
|
a
holder of one or more Preferred Depositary Receipts, and as such the
beneficial owner of (in
Dutch: “economisch gerechtigde tot”) the Preferred Shares
corresponding to the relevant Preferred Depositary
Receipts;
|
|
|
(v)
|
a
"Preferred
Share":
|
|
|
a
preferred share in the capital of the
Company;
|
|
|
(w)
|
a
"Reconvertible Ordinary
Depositary Receipt":
|
|
|
a
convertible (in Dutch:
“decertificeerbaar”) registered depositary receipt (in Dutch: “een
certificaat”') issued for a deposited Reconvertible Ordinary Share
by the Foundation, representing the beneficial ownership of (in Dutch: “economische
gerechtigdheid tot”) the Reconvertible Ordinary Share corresponding
to the relevant depositary
receipt;
|
|
|
(x)
|
a
"Reconvertible Ordinary
Depositor":
|
|
|
a
holder of one or more Reconvertible Ordinary Depositary Receipts and as
such the beneficial owner of (in Dutch: “economisch
gerechtigde tot”) the Reconvertible Ordinary Shares corresponding
to the relevant Reconvertible Ordinary Depositary
Receipts;
|
|
|
(y)
|
a
"Reconvertible Ordinary
Share":
|
|
|
a
reconvertible ordinary share in the capital of the
Company;
|
|
|
(z)
|
a
"Share":
|
|
|
a
share in the capital of the Company, unless the contrary is apparent, this
shall include each Ordinary Share, each Reconvertible Ordinary Share and
each Preferred Share in the capital of the
Company;
|
|
|
(aa)
|
a
"Shareholder":
|
|
|
a
holder of one or more Shares;
|
|
|
(bb)
|
the
"Voting
Committee":
|
|
|
the
committee entitled to give voting instructions to the Manager in respect
of exercising the voting rights attached to Shares held by the Foundation
pursuant to and in accordance with the provisions of these Articles of
Association.
|
Page 34
of 43
|
1.2
|
References
to Articles shall be deemed to refer to articles of these Conditions of
Administration, unless the contrary is
apparent.
|
Deposit
of Shares; Depositary Receipts.
Article
2.
|
2.1
|
The
Foundation shall receive in deposit Shares from the Depositors, who will
transfer such Shares to the Foundation that will issue Depositary Receipts
to the Depositors for such Shares.
|
|
2.2
|
To
be a Depositor under these Conditions of Administration a Shareholder must
be included in the list attached as Annex 1 or be
accepted as Depositor by the Voting
Committee.
|
|
2.3
|
It
shall be at the sole discretion of the Voting Committee, by resolution
taken with a majority representing two thirds of all members of the Voting
Committee then in office, to accept offers of Shares in deposit under
these Conditions of Administration made to the Foundation by parties which
are not yet Depositors. A resolution of the Voting Committee to refuse any
such offer does not have to be
motivated.
|
|
|
If,
however, parties which are already a Depositor offer Shares to be
deposited under the present Conditions of Administration, the Foundation
shall not require the approval from the Voting Committee to do
so.
|
|
2.4
|
The
Foundation may receive in deposit fully paid Shares
only.
|
|
2.5
|
The
transfer of the Shares by the Depositor to the Foundation for the purposes
of the holding in administration of these shares by the Foundation shall
be effected by means of a (private or notarial) transfer deed in
accordance with the laws to which the Company is subject, which transfer
deed shall include the acknowledgement and acceptance by the Depositor of
these Conditions of Administration.
|
|
2.6
|
Deposited
Shares shall be recorded (formally) under the name of the Foundation in
the Share Register of the Company.
|
|
2.7
|
All
Depositary Receipts are to be
registered.
|
|
2.8
|
Certificates
of Depositary Receipts shall not be
issued.
|
Register
of Depositors.
Article
3.
|
3.1
|
The
Manager shall keep a register in which the names and addresses of all
Depositors shall be registered.
|
|
3.2
|
The
register shall be kept up-to-date regularly. Depositors shall inform the
Foundation of their addresses.
|
|
3.3
|
At
the request of a Depositor, the Manager shall issue, free of charge, an
extract from the register.
|
|
3.4
|
The
Manager shall make the register available at the office of the Foundation
for inspection by the Depositors, members of the Voting Committee and the
Company.
|
|
3.5
|
The
Manager shall issue to the Company, free of charge, a list of all
Depositors, their holdings of Depositary Receipts and their addresses and
the Company will treat that list with the same degree of confidentiality
that it applies to its own Share
register.
|
Page 35
of 43
Administration
costs.
Article
4.
The
Depositors shall pay the Foundation an administration contribution to cover the
costs and expenses incurred by the Foundation, including but not limited to
the Management Fee, for the administration of the Shares (the "Administration
Costs").
The
Administration Costs shall be borne by the Depositors on a pro rata basis of
their holdings of deposited Depositary Receipts.
The
Depositors shall each irrevocably authorize the Foundation to instruct the
Company to deduct the Administration Costs from any dividend or other
Distribution, so that each Depositor will receive dividends and/or other
Distributions net of its quota from the Administration Costs.
Transfer
of Depositary Receipts.
Article
5.
|
5.1
|
Depositary
Receipts are freely transferable. The transfer of a Depositary Receipt
implies (i) the transfer of the beneficial ownership of the Share
corresponding to the Depositary Receipt that is subject to the transfer
from the transferor to the transferee and requires (ii) the assignment of
all rights and obligations under the Conditions of Administration of the
Depositor as transferor in favour of the
transferee.
|
|
5.2
|
The
assignment and transfer of a Depositary Receipt shall require a private
deed to that effect and notification thereof to the Foundation by either
the transferor or the transferee. The foregoing sentence applies by
analogy to the vesting of a right of pledge or usufruct on the Depositary
Receipts.
|
|
5.3
|
To
record the transfer of a Depositary Receipt, the Foundation will require
identity documents of the transferee, deposit of specimen signatures,
confirmation of the addresses of the transferee and transfer instructions
for any payment to be made by the Company to the Depositor. Additionally,
an electronic mail address will be
requested.
|
|
5.4
|
The
Manager shall notify the Company of any transfer of Depositary Receipts
and/or the vesting of a right of pledge or usufruct
thereon.
|
Dividends
and other Distributions.
Article
6.
|
6.1
|
The
Foundation shall instruct the Company to pay all dividends or other
Distributions on the Shares it holds in administration directly to the
Depositors (net of its quota of any Administration Costs due by the
Depositors to the Foundation as referred to in Article
4).
|
|
6.2
|
In
the event the Company issues bonus Shares or stock dividends to the
Foundation, the new Shares will be automatically deposited under the
present conditions and the Foundation shall issue Depositary Receipts
accordingly, to the parties entitled
thereto.
|
|
6.3
|
In
the event the Company makes Distributions either in cash or in other
valuables, at the option of each shareholder the Foundation shall, as soon
as possible, give written notice thereof to the parties entitled to such
Distributions, and such parties shall inform the Foundation of their
preference not later than five Business Days
prior to the last day on which the Foundation must give notice of the
preference.
|
|
6.4
|
In
the event of the Company's liquidation, final distributions on Shares held
in administration shall be paid directly to the Depositors and the
Foundation will cancel the Depositary
Receipts.
|
Page 36
of 43
Issue
of Shares; Shares on Offer.
Article
7.
|
7.1
|
If,
upon issuance of Shares, Shareholders have pre-emptive rights, the
Foundation shall, within one week of the announcement of the issue, give
written notice thereof to the Depositors, in order to enable them to
exercise corresponding pre-emptive rights on Depositary Receipts no later
than on the fourth day prior the day on which the Foundation must have
exercised the pre-emptive rights on the
Shares.
|
|
7.2
|
Insofar
as Depositors have indicated on time and in writing their intention to
have the pre-emptive exercised as mentioned in Article 7.1, the Foundation
shall exercise the pre-emptive rights on the
Shares.
|
|
7.3
|
If
and insofar the Foundation has been requested by a Depositor to exercise
the pre-emptive rights, in accordance with Article 7.1, the Foundation may
request such Depositor to make a deposit or give other security, for the
subscription of the new Shares.
|
|
7.4
|
The
provisions of this Article 7 shall apply by analogy, insofar as possible,
when rights to subscribe for Shares are granted by the
Company.
|
|
7.5
|
Furthermore,
the provisions of this Article 7 shall apply by analogy, insofar as
possible, when Shares held by the treasury of the Company are offered for
sale to all shareholders.
|
Reconversion
of Reconvertible Ordinary Shares into Preferred Shares.
Article
8.
|
8.1
|
Whenever
the Company reconverts all or some of the Reconvertible Ordinary Shares
(back) into Preferred Shares, the Reconvertible Ordinary Depositary
Receipts corresponding to the relevant Reconvertible Ordinary Shares shall
(automatically) be converted into Preferred Depositary Receipts as a
result thereof.
|
|
8.2
|
The
Manager shall record such a conversion of the Reconvertible Ordinary
Depositary Receipts into Preferred Depositary Receipts in the register of
Depositors, stating the conversion of the relevant Reconvertible Ordinary
Depositary Receipts -corresponding to the relevant Reconvertible Ordinary
Shares that have been reconverted into Preferred Shares- into Preferred
Depositary Receipts. In addition, the Manager shall notify such conversion
to the (Ordinary Reconvertible) Depositors
involved.
|
|
8.3
|
Upon
the conversion of Reconvertible Ordinary Depositary Receipts into
Preferred Depositary Receipts shall the relevant Depositor have the rights
and obligations as attached to the Preferred Depositary Receipts pursuant
to the Articles of Association and the Conditions of Administration in
stead of the rights and obligations as attached to the Reconvertible
Ordinary Depositary Receipts, provided that the exercise of specific
rights attached to the Reconvertible Ordinary Depositary Receipts as
effected prior to the conversion shall be
respected.
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The
exercise of voting rights.
Article
9.
The
Foundation shall exercise the voting rights attached to the Shares in the manner
as determined and provided for in the Articles of Association of the Foundation,
without prejudice to the fact that the Foundation in the specific cases as
described and provided for in the Articles of Association of the Foundation
shall grant a Nominated Person Proxy, an Other Company Matters Proxy and/or a No
Instruction for Ordinary Company Matters Proxy, as the case may be, for the
exercise of such voting rights.
Page 37
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Termination
of deposit and cancellation of Depository Receipts.
Article10.
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10.1.
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A
Preferred
Depositor is entitled to request the termination of the deposit of
the Preferred Shares (totally or partially) corresponding to the Preferred
Depositary Receipts held by such Preferred Depositor at any time, with a
one month prior notice.
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The
termination will be effected by (i) transferring the relevant Preferred
Shares to such Preferred Depositor in accordance with the laws applicable
to such transfer and the registration thereof in the Share register of the
Company and (ii) cancellation of the corresponding Preferred Depositary
Receipts. Such cancellation shall be registered in the register of
Depositors by the Manager.
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10.2
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An
Ordinary
Depositor is entitled to request the termination of the deposit of
the Ordinary Shares (totally or partially) corresponding to the Ordinary
Depositary Receipts held by such Ordinary Depositor at any time, with a
twelve months prior notice.
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The
termination will be effected by (i) transferring the relevant Ordinary
Shares to such Ordinary Depositor in accordance with the laws applicable
to such transfer and the registration thereof in the Share register of the
Company and (ii) cancellation of the corresponding Ordinary Depositary
Receipts. Such cancellation shall be registered by the Manager in the
register of Depositors.
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10.3
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A
Reconvertible
Ordinary Depositor is entitled to request the termination of the
deposit of the Reconvertible Ordinary Shares (totally or partially)
corresponding to the Reconvertible Ordinary Depositary Receipts held by
such Reconvertible Ordinary Depositor at any time, with a twelve months
prior notice.
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The
termination will be effected by (i) transferring the relevant
Reconvertible Ordinary Shares to such Reconvertible Ordinary Depositor in
accordance with the laws applicable to such transfer and the registration
thereof in the Share register of the Company and (ii) cancellation of the
corresponding Reconvertible Ordinary Depositary Receipts. Such
cancellation shall be registered by the Manager in the register of
Depositors.
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If
all or part of the Reconvertible Ordinary Shares - corresponding to the
Reconvertible Ordinary Depositary Receipts in respect whereof a
termination of deposit request has been made - are converted (back) into
Preferred Shares during the twelve months prior notice period, the one
month prior notice period for termination of deposit of Preferred Shares
as referred to in Article 10.1 will in that case automatically apply to
the termination request in respect of such Shares, starting as of the date
of the conversion (unless the twelve months prior notice period -that has
already been started prior to conversion- ends at an earlier date than the
date that the one month notice period -as started as of the conversion
date- will end, in which case such earlier ending date shall
apply).
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10.4
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In
case of:
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(i)
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an
amendment of these Conditions of Administration pursuant to
Article 12;
or
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(ii)
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an
amendment of the Articles of Association of the Foundation pursuant to
Article 19 of such Articles,
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shall
each Ordinary
Depositor and each Reconvertible Ordinary
Depositor whose rights are or may be affected pursuant to such an
amendment and who has not approved of such amendment -irrespective whether
and/or in which manner such Ordinary Depositor or such Reconvertible
Ordinary Depositor participated in the meeting(s) of Depositors or the
decision making process where the amendment has been resolved upon or
approved of-
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be
entitled to request for the termination of the deposit of all Shares
corresponding to all Depositary Receipts
held by such Ordinary Depositor and/or Reconvertible Ordinary
Depositor,
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during
the three months period following the date of the meeting of Depositors
that resolved to effect the amendment, notwithstanding the provisions of
Article 10.2. and 10.3.
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Page 38
of 43
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The
request can only relate to all Depositary Receipts
-of whatsoever class- held by such Ordinary Depositor and/or Reconvertible
Ordinary Depositor, and by consequence also includes any Preferred
Depositary Receipts held by the relevant
Depositor.
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10.5
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The
Foundation shall not charge a special or specific termination fee for the
termination of the deposit as referred to in this Article
10.
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Termination
of holding in administration of all Shares held by Foundation.
Article
11.
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11.1
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If
the aggregate of the deposited Ordinary Shares and the Reconvertible
Ordinary Shares falls below thirty-three percent (33 %) of the issued and
outstanding Ordinary Shares and Reconvertible Ordinary Shares, the
Foundation shall terminate the holding in administration of Shares
pursuant to a request made to that effect in writing by any Ordinary Depositor.
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The
termination will then be effected with respect to all Shares held in
administration by the Foundation.
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11.2
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In
addition, the Foundation may terminate the holding in administration of
all Shares
with the prior written consent of all
Depositors.
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11.3
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Upon
termination of the holding in administration of all Shares, the Foundation
will (i) transfer (the legal title to) all Shares -corresponding to the
Depositary Receipts held by the relevant Depositors- to each of the
relevant Depositors in accordance with the laws applicable to such
transfer and register the same in the Share register of the Company and
(ii) cancel all the (corresponding) Depositary Receipts. Such cancellation
shall be registered by the Manager in the register of
Depositors.
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Amendment
of the Conditions of Administration.
Article
12.
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12.1
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The
Manager shall be authorized to amend these Conditions of Administration
pursuant to a resolution of the meeting of the
Depositors.
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12.2
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The
provisions of Article 18.2 of the Articles of
Association of the Foundation shall apply to a resolution of the meeting
of Depositors to amend these Conditions of
Administration.
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12.3
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An
amendment of these Conditions of Administration shall become effective
only after a private deed thereof has been executed by the
Manager.
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Choice
of Law.
Article
13.
These
Conditions of Administration shall be governed by Dutch law.
Term.
Article
14.
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14.1
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The
holding in administration of the Shares by the Foundation under the
present Conditions of Administration shall be effective from the date of
deposit of the relevant Shares to the Foundation up to and
including the [thirty-first day of
December two thousand and fifteen].
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Page 39
of 43
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14.2
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The
holding of the Shares in administration as referred to in Article 14.1
will be renewed automatically for a successive five year periods, except
in respect of the Shares corresponding to the Depositary Receipts held by
the relevant Depositors for which these Depositors give a non-renewal
notice in writing to the Foundation twelve months prior to the relevant
expiration date.
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14.3
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The
non-renewal notice triggers the termination of the deposit of all Shares
corresponding to the Depositary Receipts held by the notifying Depositor
which termination shall -at least beneficially- be effective as per the
end of the then effective term of the present Conditions of Administration
as referred to in this Article 14.
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Such
termination shall (legally) be effected -as much as possible- as per the
end of the then effective term of the present Conditions of Administration
by (i) transferring the relevant Shares to such notifying Depositor in
accordance with the laws applicable to such transfer and the registration
thereof in the Share register of the Company and (ii) cancellation of the
corresponding Depositary Receipts. Such cancellation shall be registered
by the Manager in the register of
Depositors.
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Page 40
of 43
Exhibit
C
[LETTERHEAD OF ROCCA & PARTNERS
STICHTING ADMINISTRATIEKANTOOR AANDELEN SAN FAUSTIN]
POWER
OF ATTORNEY
The
undersigned, J. E. Missaar and J. de Jong, Directors of Zenco Management B.V.,
sole Director of ROCCA & PARTNERS STICHTING ADMINISTRATIEKANTOOR AANDELEN
SAN FAUSTIN, a private foundation (Stichting) organized under the laws of the
Netherlands, hereby constitutes and appoints Carlos Manuel Franck, Fernando R.
Mantilla and Eduardo A. Ottino, and each of them, as attorneys or
attorney of the undersigned with full power of substitution and resubstitution,
to sign on its behalf a Statement on Schedule 13G or 13D relating to the Common
Stock of TENARIS S.A., including any agreements attached as exhibits thereto,
and to sign any or all amendments to such Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission of the United States of America, granting
unto said attorneys or attorney, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, hereby ratifying and confirming all that said
attorneys or attorney, or any of them or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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By:
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/s/
J. E. Missaar
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/s/
J. de Jong
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(on
behalf of Zenco Management B.V.)
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(on
behalf of Zenco Management
B.V.)
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Dated:
February 4th,
2011.
Page 41
of 43
Exhibit
D
[LETTERHEAD OF SAN FAUSTIN
S.A.]
POWER
OF ATTORNEY
The
undersigned, Gianfelice Rocca, Chairman of the Board of Directors of SAN FAUSTIN
S.A., a company organized under the laws of the Grand Duchy of Luxembourg,
hereby constitutes and appoints Carlos Manuel Franck, Fernando R.
Mantilla and Eduardo A. Ottino, and each of them, as attorneys or
attorney of the undersigned with full power of substitution and resubstitution,
to sign on its behalf a Statement on Schedule 13G or 13D relating to the Common
Stock of TENARIS S.A., including any agreements attached as exhibits thereto,
and to sign any or all amendments to such Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission of the United States of America, granting
unto said attorneys or attorney, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, hereby ratifying and confirming all that said
attorneys or attorney, or any of them or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
By:
/S/ Gianfelice
Rocca
Chairman
of the
Board of
Directors
Dated:
February 4th,
2011.
Page 42
of 43
Exhibit
E
[LETTERHEAD OF TECHINT HOLDINGS
S.ÀR.L.]
POWER
OF ATTORNEY
The
undersigned, Juan Pablo Boo and Carlos M. Franck, Directors (“gérants”) of TECHINT HOLDINGS
S.ÀR.L., a company organized under the laws of the Grand Duchy of Luxembourg,
hereby constitutes and appoints Fernando R. Mantilla, Carlos Manuel
Franck and Eduardo A. Ottino, and each of them acting severally, as
attorneys or attorney of the undersigned with full power of substitution and
resubstitution, to sign on its behalf a Statement on Schedule 13G or 13D
relating to the Common Stock of TENARIS S.A., including any agreements attached
as exhibits thereto, and to sign any or all amendments to such Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission of the United States of
America, granting unto said attorneys or attorney, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, hereby ratifying and confirming
all that said attorneys or attorney, or any of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
By:
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/s/
Juan Pablo Boo
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/s/
Carlos M. Franck
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Director
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Director
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Dated:
February 3rd,
2011
Page 43
of 43