C I M E N T S F R A N Ç A I S

Transcription

1 C I M E N T S F R A N Ç A I S BY-LAWS 4 November 2014 Translation* *This is an unofficial translation. In case of doubt or difference of interpretation, the official French version of the Articles of Association shall prevail over the English text.

2 C I M E N T S F R A N Ç A I S Simplified Joint Stock Company (Société par actions simplifiée) with capital of 142,393,396 Registered office: Puteaux (Hauts-de-Seine) Tour Ariane - 5 place de la Pyramide - Quartier Villon Trade register # R.C.S. Nanterre - SIRET # BY-LAWS - SECTION I - Form - Purpose - Company Name - Head Office - Duration Article 1: Form The company, initially established as a Public Limited Company, was converted by decision of the General Meeting of 4 November 2014 into a Simplified Joint Stock Company (Société par Actions Simplifiée) which continues between the current or future owners of the shares described in article 6 and of those that may be created later; it is governed both by the current laws and regulations and by the present By-laws. Article 2: Purpose The purpose of the company is: - The running, foundation, acquisition or transfer of cement factories, using lime or other hydraulic binding substances and construction materials in France, in French overseas regions and any other country, and generally all that relates to the manufacture, trade, industry and applications of any binding substance and construction material as well as all products which are used in their manufacturing process or any derivatives therefrom. - All surveys, research, experiments, tests relating to these applications. - The research into all invention patents, franchise to use such patents, filing of any trademarks and franchises in relation to the use of such trademarks. - The making of investment in all civil, commercial, industrial, movable, property or real estate company, either by subscribing or purchasing shares, creating new companies, contributions, or by association, alliance, partnership or granting advances or credit facilities. CIMENTS FRANÇAIS SAS BY-LAWS 2/16

3 - More generally, all commercial, industrial, financial or real estate transactions relating directly or indirectly to the activities listed above or likely to promote the development of the company. Article 3: Company name The name of the company shall be: Ciments Français Article 4: Head office The registered office of the company is located at the Tour Ariane, 5 place de la Pyramide, Quartier Villon in Puteaux (Hauts-de-Seine). It may be transferred to any place by means of a decision taken by the chairman who is hereby authorized to amend the By-laws accordingly. Article 5: Duration The duration of the company set to thirty years on 1 January 1881 was then extended by fifty years to finish on 1 January 1961, and then once again extended to seventy nine years to finish, except in the case of further extensions or premature dissolution, on 1 January 2040 as foreseen in the By-laws. - SECTION II - Share Capital Article 6: Share capital The share capital amounts to 142,393,396 euros divided into 35,598,349 fully paid shares of the same class with a face value of 4 euros each. Article 7: Shares The fully paid shares must be registered shares. As a result they shall be entered upon an account under the conditions and according to the procedures laid down by law. Article 8: Transfers, changes of control, exclusions 1. Shares are freely negotiable between partners, unless provided otherwise by law or regulation. The same applies to any transfer to a third party (legal entity) who is not a partner CIMENTS FRANÇAIS SAS BY-LAWS 3/16

4 and at least 50% of the voting rights in whose capital is controlled by an entity which controls the company s voting rights in the same way. 2. The transfer of shares to any third person who is not a partner must be approved in advance by means of a majority collective decision taken by the majority of the partners who are present or represented at the meeting. Notice of the request for approval stating the surname, first names and address of the transferee, the number of shares whose transfer is planned and the price offered must be sent to the chairman by registered letter with a request for proof of receipt. The chairman shall notify the partners of this request for approval. Approval shall be granted either if there is a decision in favor, of which the applicant is given notice, or if there is no answer within a period of three months from the date of the request. If approval is refused, the company must acquire the shares itself or have them acquired from the transferor partner either by partners or by third parties within a period of three months from the decision to refuse approval. If the company proceeds to buy the shares back from the transferor partner, it must either transfer them or cancel them by means of a reduction to its capital within six months from this buyback transaction. The price of the buying back of the shares by a third party or by the company shall be set by mutual agreement between the parties. If no agreement on this price can be reached, it shall be set in accordance with the provisions of article of the Civil Code. If the company has given its consent to a plan to pledge shares under the conditions provided for in this article, this consent shall automatically imply approval of the transferee in the event of the forced sale of the pledged shares according to the provisions of article 2078, paragraph 1 of the Civil Code, unless the company prefers to buy back the shares immediately during the compulsory sale, with a view to cancelling them by reducing its capital. 3. Changes to control over a partner 3.1 A change of control of a partner of the company means the acquisition by one person, or group of persons acting in concert (not themselves controlled by the previously controlling person) of the control of such partner. In the event of any such change of control of a partner, this latter must inform the chairman of the company of the fact by sending him a registered letter with a request for proof of receipt within a period of 20 days from the change of control. This notification must specify the date of the change of control and any information about the new person or persons exercising this control. The chairman immediately informs the other partners. In the event of any failure to adhere to this procedure, the partner whose control has changed may be excluded from the company under the conditions stated in (4.) below. 3.2 Within 20 days from the notice of the change of control to the chairman, any other CIMENTS FRANÇAIS SAS BY-LAWS 4/16

5 partner may request the chairman to implement the exclusion procedure as stated in (4) below. If no exclusion request is sent within the above mentioned 20 days the company shall be deemed to have approved the change of control. 3.3 The provisions above apply to any partner which has assumed this status following a merger, split-off or dissolution operation. 4. Exclusion of a partner: Automatic exclusion shall take place in the event of a partner being dissolved, going into receivership or being wound up. A partner may also be excluded in the following cases: - any breach of the provisions of these By-laws; - pursuant to the provisions referred to in (3.) above; - the direct or indirect exercising of a business activity in competition with that of the company; - if a partner is removed from his/her functions as one of the company s authorized representatives; - if a partner receives a criminal conviction. Exclusion is ordered by means of a collective decision taken by the partners ruling by a majority of votes cast by those partners who have voting rights, such voting right being maintained to the partner whose exclusion is required. The partners shall be consulted about the exclusion on the chairman s initiative. If there is a motion to exclude the chairman himself, the partners shall be consulted upon the initiative of the first of the partners to take such action. The exclusion decision may only be taken subject to notification of the partner in question by registered letter with a request for proof of receipt sent seven working days prior to the scheduled date of the meeting of the group of partners, of the planned exclusion measure, of the grounds for this measure and the date of the meeting which is to rule upon the exclusion. This notification must also be sent to all of the other partners. The exclusion decision, which may be taken either in the presence or in the absence of the partner in question, takes effect from the moment it is pronounced. This decision must also rule upon the buying back of the excluded partner s shares and nominate the purchaser or purchasers of these shares. Notice of the exclusion decision shall be sent to the excluded partner by registered letter with a request for proof of receipt on the chairman s initiative. As soon as it has been ordered, exclusion shall lead to the suspension of the non-pecuniary rights attached to all of the shares belonging to the partner who has been excluded. All of the shares belonging to the partner who has been excluded must be transferred within ten days from the exclusion decision to any person nominated in the manner stated above. CIMENTS FRANÇAIS SAS BY-LAWS 5/16

6 The price at which the shares belonging to the partner who has been excluded are bought back shall be set either by mutual agreement or, failing this, by an expert ruling under the conditions stated in article of the Civil Code. Article 9: Rights and obligations attached to shares In addition to the voting rights assigned to them by law, each share confers a right on a proportion of the number of shares existing, of ownership of company assets, of a share in profits and liquidations dividend, in accordance with article 34 below. Whenever it may be necessary to own a certain number of shares in order to exercise a right, it is the responsibility of the owners who do not possess such number to make arrangements to regroup the required number of shares. Shares shall be indivisible with respect to the company. The rights and obligations attached to a share shall be transferred to any owner thereof. Article 10: Paying-up of shares The amount of shares issued during a capital increase and to be paid up in cash is payable under the conditions determined by the competent body on the day of the decision. Article 11: Failure to pay up shares Any delay in the payment of amounts due on the unpaid amount of shares will automatically and without further formalities result in payment of interest at the legal rate, compounded daily, accruing from the date such payment was due, without prejudice to actions that the company may bring against the defaulting partner, or any measures of enforcement provided for by law. - SECTION III - Changes to the Share Capital Article 12: Capital increase - Depreciation and decrease The share capital may be increased (either by the issuing of new shares or the increase of the face value of existing shares) or decreased by collective decision of the partners; the latter may give power to the chairman to increase the share capital once or several times within the legal time-frame, to establish the terms and execution, to duly record its completion and to amend the By-laws accordingly. CIMENTS FRANÇAIS SAS BY-LAWS 6/16

7 The partners have, proportionally to the par value of the shares they hold, a preferential subscription right for new shares issued for a capital increase. The law regulates the conditions for exercising this right. However, partners may individually renounce their preferential right of subscription. The capital increase decision may also cancel this preferential right under the conditions established by law. Amortization and capital decrease are carried out as per legal provision. - SECTION IV - Bonds Article 13: Creation and type of bonds The company may issue bonds, registered to the owner or to the bearer, according to the conditions set by law. - SECTION V - Administration, Management and Control of the Company Article 14: Chairing of the company The partners shall appoint a chairman for either a fixed or an indeterminate period of time by means of a collective decision. The chairman may be either a partner or a non-partner, a physical person, with no age limit, or a legal entity (in which case it is represented by its corporate managers) which handles the general management of the company. The chairman shall represent the company in its relations with third parties, with regard to whom he/she is granted the most wide-ranging powers to act on the company s behalf in all circumstances, within the limits set out by the purpose of the company and the powers expressly laid out by the legal provisions, these By-laws and any collective decisions which may be taken by the partners. The chairman may, under his/her own responsibility, grant any delegations of powers to any third party for one or more specific objects. If the chairman is a physical person he/she should be attributed remuneration which is set by the supervisory committee, if any formed, or failing that, by collective decision of the partners. The chairman may be removed freely solely upon the initiative of the partners acting by a majority without these latter having to give any grounds for this removal. CIMENTS FRANÇAIS SAS BY-LAWS 7/16

8 Article 15: General management - Chief Executive Officer Partners may also appoint by collective decision a chief executive officer (CEO). The CEO may be a partner or a non-partner; he/she is a physical person, with no age limit, responsible for the general management of the company. He/she is appointed for a duration set out in the appointment notice which may not exceed the duration of the term of office of the chairman. However, in the event of cessation of the office of the chairman for any reason whatsoever, the CEO shall stay in office, unless otherwise decided by the partners, until a new chairman is appointed. Except in the case of a limitation laid out in the appointment notice or by a later collective decision of the partners, the CEO has the same powers as the chairman: he/she shall represent the company in its relations with third parties, with regard to whom he/she is granted the most wide-ranging powers to act on the company s behalf in all circumstances, within the limits set out by the purpose of the company and the powers expressly laid out by the legal provisions, these By-laws and any collective decisions which may be taken by the partners. The CEO may, under his/her own responsibility, grant any delegations of powers to any third party for one or more specific objects. The CEO may be attributed remuneration which is determined by the supervisory committee, if any formed, or failing that, by collective decision of the partners. The CEO may be removed freely solely upon the initiative of the partners acting by a majority without these latter having to give any grounds for this removal. Article 16: General management - Chief Operating Officer Lastly, partners may appoint a (or several) Chief Operating Officer (COO) by collective decision based on a proposal of the CEO. The COO may be a partner or a non-partner; he/she is a physical person, with no age limit, responsible for assisting the CEO in the general management of the company. He/she is appointed for a duration set out in the appointment notice which may not exceed the duration of the term of office of the CEO. Except in the case of a limitation laid out in the appointment notice or by a later collective decision of the partners, the COO has the same powers as the CEO: he/she shall represent the company in its relations with third parties, with regard to whom he/she is granted the most wide-ranging powers to act on the company s behalf in all circumstances, within the limits set out by the purpose of the company and the powers expressly laid out by the legal provisions, these By-laws and any collective decisions which may be taken by the partners. The COO may, under his/her own responsibility, grant any delegations of powers to any third party for one or more specific objects. The COO may be attributed remuneration which is determined by the supervisory committee, if any formed, or failing that, by collective decision of the partners. The COO may be removed freely solely upon the initiative of the partners acting by a majority without these latter having to give any grounds for this removal. CIMENTS FRANÇAIS SAS BY-LAWS 8/16

9 Article 17: Supervisory committee Composition 1. A supervisory committee shall be instituted. It shall be made up of at least three members and no more than seven, who may be physical persons or legal entities, all of them appointed freely for either a fixed or an indeterminate period of time, with no age limit for physical persons, by a decision taken by the partners acting as a majority. They may be removed freely under the same conditions as for their appointment. The institution of the supervisory committee remains optional and is performed as a result of the decision taken by the partners on whether or not to appoint its members. 2. Any members of the supervisory committee who are legal entities must be represented by one of their own legal representatives or, failing this, by any person who has been specially authorized for this purpose by one of their legal representatives. 3. The members of the supervisory committee shall appoint a committee director from among themselves whose role is to chair its meetings. 4. The chairman, as well as the CEO and the COO if any, shall participate in the meetings of the Supervisory committee. He shall not be entitled to vote in the resolutions. Article 18: Deliberations of the supervisory committee 1. The members of the supervisory committee may be called upon to attend meetings by any means, including verbally, by the director of the committee or by the chairman giving sufficient notice. The notice to attend must specify the agenda for the meeting, which shall be purely indicative. 2. Meetings of the supervisory committee shall be held either at head office or at any other place stated in the notice to attend. However, meetings may be considered to be validly held by telephone conference or videoconferencing between the various members on the day and at the time set by the author of the notice to attend. 3. The supervisory committee shall only have a quorum if at least two of its members are present. Each member may be freely represented by any other member with no limitations on the number of authorities which each member who is present may be granted. Any person from outside the supervisory committee may be invited to take part in all or part of a supervisory committee meeting solely with the committee director s agreement. The delegates of the labor-management committee shall take part in all meetings of the supervisory committee in dealings with whom they shall exercise the rights defined by article L of the Labor Code. In the event the supervisory committee has not been formed or has been cancelled, those rights can be exercised with the CEO, or in his/her absence, with the chairman. CIMENTS FRANÇAIS SAS BY-LAWS 9/16

10 4. Decisions shall be passed by a majority of the members who are present or represented. Each member has one vote, with the exception of the director of the committee who shall also have a right of veto. If the vote is tied, the director of the committee shall have the casting vote. 5. The supervisory committee shall designate from among its members or outside, a secretary responsible for drawing up the minutes of the meeting. The minutes must contain the following details: - the date and venue for the meeting; - the name of the author of the notice to attend and the method used to give this notice; - the agenda for the meeting; - the name of the secretary for the meeting, where applicable; - the names of the members who are present or represented; - the names of any persons who may have attended all or part of the meeting; - a summary of the debates; - the results of any votes which may have taken place. 6. The minutes of supervisory committee meetings shall be signed by the director of the committee and by a member who was present. They shall be kept in a filing cabinet at head office, filed in chronological order. Article 19: Powers of the supervisory committee The supervisory committee has permanent monitoring powers on the management of the company. In this respect, it may at any time collectively ask the chairman or the CEO of the company to provide any documents or any information it may consider useful. The supervisory committee meets at least once a year when the annual accounts are closed by the chairman and the general meeting is asked to approve the accounts. It sets the amount of the annual or multi-annual remuneration of the chairman, the CEO and the COO, if any, as part of the overall remuneration policy of the group to which the company belongs. It may address any report to the meeting of partners. Article 20: Remuneration of the supervisory committee The members of the supervisory committee may receive some remuneration by collective decision of the partners. The amount and allocating method shall be laid down in that decision. Article 21: Agreements with the company The statutory auditor, or if there is none, the chairman of the company presents a report to the partners on the agreements concluded directly or through third parties between the CIMENTS FRANÇAIS SAS BY-LAWS 10/16

11 company and its chairman, its CEO or one of its COOs, one of its shareholders with more than 10% of the voting rights or, for a shareholding company, the company controlling it, within the meaning of article L of the French Commercial Code. Partners shall give its views on this report. The preceding notwithstanding, when the company is the sole proprietorship, only the agreements concluded directly or through third parties between the company and its officer(s) are entered in the record of deliberations. The above-mentioned conditions are not applicable to the agreements bearing on current business concluded in normal conditions. For these agreements the duty to inform is that which is set by the current laws. Article 22: Responsibility of the chairman, of the Chief Executive Officer and of the Chief Operating Officers The chairman, the CEO and the COOs are liable for decisions taken during their mandate as per conditions set in current laws. - SECTION VI - Company Controlling Article 23: Statutory auditors One or more statutory and deputy auditors appointed by a collective decision taken by the partners shall inspect the company s accounts under the conditions set by law. They shall be appointed for a period of six financial years. They fulfil their duties and are renewed within the scope of statutory regulations. - SECTION VII - Collective Decisions of Partners Article 24: Compulsory collective decisions The partners as a group are solely competent to take the following decisions: - changes to the company s capital: increases, depreciations or reductions; - mergers, split-offs and partial transfers of assets, CIMENTS FRANÇAIS SAS BY-LAWS 11/16

12 - dissolution; - appointment of statutory auditors; - appointment, remuneration and removal of the chairman or the chief executive officer or the chief executive officer(s) - appointment and removal of members of the supervisory committee; - approval of the annual financial statements and assignment of profits; - approval of any agreements concluded between the company and its executive officers; - changes to the By-laws, except for transfer of the head office; - appointment of the liquidator and decisions on liquidation operations; - approval of transfers of shares; - exclusion of a partner and suspension of his/her voting rights. Article 25: Form of collective decisions Collective decisions shall be taken at a general meeting, by written consultation or by signed consent of the partners. However, the following decisions must be taken at a general meeting: - appointment of the statutory auditors, - approval of the annual financial statements and earnings appropriation, - recognition of the loss of half of the capital - any decision resulting in changes in the By-laws, - any decision of dissolution of the company. Article 26: Convening notice Prior information Collective decisions shall be passed on notice to attend given by the chairman or a partner representing at least 50% of the capital of the company, or by a representative appointed by the courts should the chairman fail to fulfill such requests. The party convening the meeting shall send the agenda and the text of the proposed resolutions to each partner and statutory auditor. When the decision is taken by written consultation, the partners have ten days after reception of the text of the resolutions to send their vote to the company by any written means, including telecopy or . Failure to reply within the prescribed time limit shall be regarded as a vote in favor of the proposed resolution(s). When a meeting is held, the convening notice indicates the place and time of meeting. The notice is made by any written means of communication at least five days before the date of the meeting. However, the meeting may be called upon verbal convocation without delay provided all the partners agree and the statutory auditor(s) is convened in cases prescribed by law. During the period when the company is being liquidated, collective decisions shall be taken on notice to attend given or on the initiative of the liquidator. CIMENTS FRANÇAIS SAS BY-LAWS 12/16

13 Whatever the consultation mode, partners shall receive an advance notice including all the documents and information enabling them to reach a well-founded decision on the resolutions submitted for their approval. When collective decisions have to be taken pursuant to the law on the chairman's report and/or the statutory auditors' report, the report(s) shall be communicated to the partners five days before the date the minutes of the decision of the partners is issued. Article 27: Participation in collective decisions Each of the partners shall have the right to participate in collective decisions, either in person or through a representative, regardless of the number of shares held. He/she must prove evidence of both his/her identity and the registration of his/her shares in an account on the day on which the collective decision is to be taken. The presence of the partner at the meeting cancels any proxy. Article 28: Majority voting rules Each partner is entitled to a number of votes equal to the number of shares he/she owns or represents. Collective decisions shall be passed by a majority of the votes cast by the partners who have voting rights and who are either present or represented. However the following changes shall be adopted by a majority of two thirds: - statutory changes, - liquidation of the company and the appointment of a liquidator, - approval of the annual financial statements in case of liquidation. Lastly any other decision than those specified above are to be taken unanimously under a legal provision. Article 29: Bureau of the general meetings - Attendance sheet In the event collective decisions are taken at meetings, those meetings shall be chaired by the chairman or in his/her absence by a partner designated by the meeting; one or several scrutineers may be designated from among the partners. A secretary is also appointed. The partners participating in the meetings shall sign the attendance sheet. Article 30: Minutes of collective decisions Any collective decisions taken at meetings must be recorded in minutes. The minutes shall be signed by the chairman of the meeting and the members of the bureau. CIMENTS FRANÇAIS SAS BY-LAWS 13/16

14 The minutes must state the date and venue for the meeting, the surname, first names and the capacity in which the chairman of the meeting is acting, the identities of the partners who are present and represented, any documents and information sent to the partners in advance, a summary of the debates and the text of any resolutions put to the vote plus, for each resolution, how each of the partners voted. In the event of a collective decision taken by the consent of the partners expressed in a document, this document must mention the documents and information previously supplied to the partners. It shall be signed by all of the partners. The minutes of collective decisions shall be transcribed onto a register. Article 31: Sole partner If the company should reach a point where it has only one partner, this latter shall exercise the powers devolving upon the partners when these By-laws make provision for the taking of a collective decision. - SECTION VIII - Company Financial Year - Annual Financial Statements - Distribution of Profits Article 32: Company financial year The company s financial year shall commence on 1 January and shall end on 31 December of each year. Article 33: Annual financial statements At the closing of each financial year, the chairman shall decide upon the inventory of the different assets and liabilities existing at that time. He/she also decides up on the income statement, the balance sheet and the notes to the financial statements commenting and completing information given by the balance sheet and the income statement. He/she establishes a written report on the company s state of affairs and activities for that financial year. He/she also prepares the consolidated financial statements and the notes thereof whenever they are required. CIMENTS FRANÇAIS SAS BY-LAWS 14/16

15 Article 34: Distribution of profits From the benefits of the financial year, minus, if need be, losses brought forward from previous years, an amount is deducted for the purpose of constituting funds for the legal reserve which must be at least equal in sum to the minimum amount required by law. The balance increased, if need be, by profits brought forward from previous years constitutes the available profit from which is deducted successively: - Any sums that the shareholders meeting considers suitable to be allocated to any special or general reserve account; - The necessary sum to, if need be, distribute a dividend to all existing shares. The balance, if any, is carried forward to the following financial year. Partners may in addition decide at any time to distribute any sum drawn from available reserves. The decision taken by the partners or, failing this, by the chairman, shall set out the procedures for the payment of the dividends. - SECTION IX - Dissolution - Liquidation Article 35: Dissolution The chairman may, at any time and for whatever cause, propose to a partners' meeting the early dissolution and the liquidation of the company. In case of loss of half of the share capital, the chairman has four months following the approval of the accounts having made clear this loss, to summon the shareholders in an extraordinary shareholders meeting, so as to rule on the continuation or the early dissolution of the company. Article 36: Liquidation At the dissolution of the company, one or several liquidators shall be appointed by the partners' collective decision. The liquidator(s) shall represent the company with full powers to realize the assets including by amicable arrangements. He/she shall be authorized to pay the company s creditors and to distribute any available balance. CIMENTS FRANÇAIS SAS BY-LAWS 15/16

16 The shareholders general meeting may authorize the liquidators to continue current business or to engage in new business solely for the purposes of the liquidation. The distribution of remaining net assets after settlement of liabilities and reimbursement of the face value of shares shall be done amongst shareholders, proportionally to the number of shares they own. - SECTION X - Disputes Article 37 Any dispute which during the life term of the company or during the liquidation, would arise either between the company and partners, or between the partners themselves about business matters, shall be subject to the jurisdiction of the competent courts of the registered office. For that purpose, in case of dispute, any partner shall be bound to elect residency in the area of the competent court for the registered office and all summons or notices shall be regularly delivered at this elected place of residency, without regard for the real place of residency; if no choice of place of residency is made, summons or notices shall rightfully be made to the Parquet de Monsieur le Procureur de la République (public prosecutor's department) at the Tribunal de Grande Instance (court of justice) nearest to the registered office. CIMENTS FRANÇAIS SAS BY-LAWS 16/16