6.1 Information about the Company
Rubis is a Partnership Limited by Shares (Société en Commandite par Actions) under French law, governed by Articles L. 226-1 to L. 226-14 and L. 22-10-74 to L. 22-10-78 of the French Commercial Code and, insofar as they are compatible with the aforementioned Articles, by the provisions relating to ordinary Limited Partnerships and public limited companies (sociétés anonymes). Within this legal framework, the Company is also governed by its by-laws.
The law and Rubis’ by-laws make the Partnership Limited by Shares a modern structure, adapted to the principles of good corporate governance, as reflected in:
|•||the clear separation of powers between the General Management, which governs corporate affairs, and the Supervisory Board, whose members are appointed by the shareholders, tasked with overseeing the Company’s management, giving its opinion on the compensation of the General Management, and determining the components of the compensation to be awarded and paid ex-post to corporate officers;|
|•||the unlimited personal liability of the General Partner, proving the appropriate match between commitment of assets, authority and responsibility;|
|•||the awarding to the Supervisory Board of the same powers and rights of communication and investigation as those granted to the Statutory Auditors;|
|•||the shareholders’ right to oppose the appointment of a candidate for General Management when he or she is not a General Partner.|
6.1.1 General Partners
|•||Sorgema, a limited liability company whose Managing Partner is Gilles Gobin and whose partners are the members of the Gobin family group;|
|•||GR Partenaires, a Limited Partnership whose General Partners are Gobin family group companies and Jacques Riou. The Limited Partners of GR Partenaires are Agena and the members of the Riou family group.|
6.1.2 Limited Partners (or shareholders)
The main Limited Partners (or shareholders) are listed in the table in section 6.2.2 of this chapter.
6.1.3 Organization chart
6.1.4 Main by-law provisions
The complete by-laws are available on the Company’s website (https://rubis.fr/en/ corporate-governance/rubis-by-laws).
Acquiring interests in any civil or commercial companies, by creating new companies, contributing, subscribing for or purchasing securities, corporate rights or convertible or non-convertible bonds, mergers, joint arrangements or otherwise.
This may be done directly or indirectly, by creating new companies and business combinations, contributing Limited Partnerships, subscribing for or purchasing securities or corporate rights, mergers, joint arrangements, combinations, joint-venture companies, or by obtaining any property or other rights under a lease or management of a lease.
And in general, any industrial, commercial, financial or civil operation or transaction in movable or immovable property that might be associated directly or indirectly with one of the purposes listed above or any similar or connected purpose.
The Company was formed on July 21, 1900. Its current form was created from the merger, on June 30, 1992, of Rubis Investment & Cie and Compagnie de Penhoët. The Company’s duration extends until May 30, 2089, except in the event of early dissolution or further extension.
The share capital amounts to one hundred twenty-nine million, five hundred thirty-eight thousand, three hundred forty-six euros and twenty-five eurocents (129,538,346.25) as of December 31, 2020.
It is divided into 103,625,489 ordinary shares, 3,108 Class B preferred shares, 1,706 Class C preferred shares and 374 Class D preferred shares, each with a par value of €1.25, fully paid up.
The share capital may be increased or reduced in accordance with the provisions of the law and these by-laws.
Preferred shares issued pursuant to Articles L. 228-11 et seq. of the French Commercial Code may be created under the legal and regulatory conditions, the specific rights of which are defined in these by-laws in Articles 14 bis, 33, 48 and 57.
Several classes of preferred shares with different characteristics may be created, in particular with respect to (i) their issue date and (ii) their conversion period. Consequently, the corporate body deciding the preferred share issue shall amend this Article accordingly, so as to specify the designation and characteristics of such issued class, including those referred to in (i) and (ii) above.
The 2,884 Class A preferred shares of the plan of September 2, 2015 were canceled following their conversion into 288,400 ordinary shares.
3,722 Class B preferred shares were issued on July 11, 2019. Ninety-two Class A preferred shares were also issued on July 13, 2020 following the decision by certain beneficiaries whose compensation is taxable outside France to opt for an additional one-year deferred vesting period. The 3,814 Class B preferred shares may be converted starting on July 13, 2020 and for a period of 18 months, into a maximum of 381,400 ordinary shares. As of December 31, 2020, 706 Class B preferred shares were canceled following their conversion into 70,600 ordinary shares.
1,706 Class C preferred shares were issued on March 13, 2020. They may be converted for a period of 18 months from March 13, 2021 into a maximum number of 170,600 ordinary shares, depending on the level of achievement of the target Average Annual Overall Rate of Return (AAORR), set at 10% by decision of the Management Board on March 13, 2017.
374 Class D preferred shares were issued on July 20, 2020. They may be converted for a period of 18 months from July 19, 2021 into a maximum number of 37,400 ordinary shares, depending on the level of achievement of the target AAORR, set at 10% by decision of the Management Board on July 19, 2017.
Each share of the same class entitles the holder to a share, proportional to the fraction of the share capital it represents, of the corporate assets, the liquidation surplus and the profits. All shares of the same class have the same par value and are fully fungible with each other, with the sole exception of the starting point of their dividend rights.
A Limited Partner is liable for corporate liabilities up to the amount of the par value of the shares he or she owns.
Ownership of a share automatically implies acceptance of these by-laws and the resolutions regularly adopted by the Shareholders’ Meeting.
The Company is managed and run by one or more Managing Partners, either individuals or corporations, irrespective of whether they are General Partners or not.
If the Managing Partner is a corporate entity, its Senior Managers are subject to the same conditions and obligations and incur the same civil and criminal liability as if they were Managing Partners in their own right, without prejudice to the joint and several liability of the corporation they manage.
During the Company’s existence, the General Partners are responsible for appointing any new Managing Partner and re-electing him or her by unanimous vote. However, if the said Managing Partner candidate is not a General Partner, his or her appointment may only take place with the approval of the Ordinary Shareholders’ Meeting of Limited Partners.
Each Managing Partner has extensive powers to act in any circumstance in the Company’s name, within the limits of the corporate purpose and subject to those expressly granted by law or the by-laws to the Shareholders’ Meetings and to the Supervisory Board.
In the event of multiple Managing Partners, the unanimous approval from the Management Board is required for any decision involving expenses greater than €152,449.
The Company has a Supervisory Board whose members are chosen from among the shareholders not holding the position of General Partner or Managing Partner.
The members are appointed and revoked by the Ordinary Shareholders’ Meeting, although General Partners may not vote in resolutions pertaining to this.
They have a maximum three-year term of office, expiring at the end of the Shareholders’ Meeting ruling on the financial statements for the previous fiscal year and held in the year during which their term of office expires. Members are re-eligible for office.
The number of Board members over 70 years of age may not exceed one-third of the members in office. In the event that this proportion is exceeded, the oldest member is deemed to have resigned from office at the end of the next Shareholders’ Meeting.
The Supervisory Board meets whenever it may be in the Company’s interests, at the request of its Chairman or the General Management, and at least once every six months.
The Supervisory Board assumes permanent control over the management of the Company as provided by law. Each year, for the Ordinary Shareholders’ Meeting, it prepares a report which is made available to shareholders at the same time as the General Management report and the financial statements for the fiscal year. Its Chairman also prepares a report on the functioning of the management and control bodies, as well as on the internal control procedures implemented within the Group.
The corporate rights attached to the position of General Partner may only be surrendered with the unanimous agreement of all the other General Partners. In cases when the assignee is not already a General Partner, approval of the Extraordinary Shareholders’ Meeting of Limited Partners, as defined for extraordinary decisions, must be obtained.
General Partners may exercise all of the powers pertaining to their position as provided by law and the by-laws. The General Partners’ decisions may be sought, either during the Shareholders’ Meetings, or by written request.
All of the General Partners’ decisions (Article 24.4) are carried by unanimous vote, except for those concerning the revocation of a Managing Partner without the status of General Partner, which is decided by majority vote (Article 20.2).
Limited Partner Shareholders’ Meetings are convened by the General Management or the Supervisory Board, or by any other person who is so entitled by law, in accordance with the statutory procedures and time frames.
The Management Board sends or makes available to shareholders, in accordance with the legislative provisions, documents allowing shareholders to make informed decisions.
The right to participate in Shareholders’ Meetings is dependent upon the registration of securities in the shareholder’s name at least two business days prior to the Shareholders’ Meeting, at 00:00, Paris time, either in the registered securities list held by the Company, or in the bearer security accounts held by authorized intermediaries. The listing or registration of securities in the bearer securities accounts held by authorized intermediaries is recorded by a shareholder certificate issued by the latter.
Any transfer taking place after the aforementioned registration date shall have no influence on the functioning of the Shareholders’ Meeting: the transferor may vote for the entire amount of his or her previous interest.
Each shareholder has as many votes as the number of voting shares he or she possesses or represents. Each ordinary share entitles the holder to one vote, it being specified that the ratio of one vote per share shall prevail over any non-mandatory statutory or regulatory provisions to the contrary.
Preferred shares do not confer voting rights at Limited Partner Shareholders’ Meetings (Article 14 bis of the by-laws).
If a shareholder cannot attend the Shareholders’ Meeting in person, the shareholder may issue a proxy to another shareholder or to his or her spouse, or any other individual or corporation of his or her choice. He or she may also issue a proxy without naming a representative, which means that the Chairman of the Shareholders’ Meeting will vote in favor of those draft resolutions presented or approved by the General Management and against all other draft resolutions. Shareholders may also vote by post.
Documents pertaining to the Company, and in particular the by-laws, the minutes of Shareholders’ Meetings, and the reports presented at Shareholders’ Meetings by the Management Board, the Supervisory Board or the Statutory Auditors, can be consulted at the Company’s registered office as well as on the Company’s website (www.rubis.fr).
A 5% levy is deducted from net, less any previous losses where applicable, in order to form the legal reserve. This levy is no longer mandatory once said reserve is equivalent to one-tenth of the share capital. The legal reserve, formed to consolidate the share capital paid in by Limited Partners, shall remain the property of the Limited Partners. Under no circumstances may it be distributed to General Partners, even through a capital increase. This reserve, calculated on all of the profits made by the Company, will be the sole responsibility of Limited Partners.
The balance of said profits, less any previous losses and plus retained earnings, make up the distributable profits.
The General Partners shall receive a dividend for a fiscal year (the “Relevant Fiscal Year”) equal to 3% of the total shareholder return (the “TSR”), if positive, of Rubis’ shares, determined as indicated below. This dividend may in no case exceed 10% of net income, Group share for the Relevant Fiscal Year, nor the distributable profit as defined in Article 55.
The TSR is the change in market capitalization, plus dividends paid and rights detached from shares.
The change in market capitalization is equal to the difference between (i) the average of the opening prices of the last 20 trading days of the Relevant Fiscal Year and (ii) the highest among the averages of the opening prices of the last 20 trading days of the three fiscal years preceding the Relevant Fiscal Year (the “Reference Price”), multiplied by the number of outstanding shares at the close of the Relevant Fiscal Year less the number of shares held by the Company for cancelation at the close of the Relevant Fiscal Year. New shares created as a result of any capital increase since the close of the fiscal year of the Reference Price will not be taken into account, with the exception of shares freely granted as part of a capital increase through capitalization of reserves, profits or issue premiums and as part of a stock split or reverse stock split.
To the positive or negative amount corresponding to the change in market capitalization are added the amount(s) of any cumulative dividends and interim dividends paid by Rubis to its Limited Partners between the fiscal year during which the Reference Price was determined and the close of the Relevant Fiscal Year, as well as the sums corresponding to the value of rights detached from shares and to the value of any securities, other than Company shares, freely granted to shareholders during this same period.
When they are listed, the value of the rights detached from the shares and the value of any securities freely granted to shareholders correspond to the average opening price on the first days of listing, within the limit of 10 days.
The amount of the statutory dividend is recorded by the Ordinary Shareholders’ Meeting of General Partners and of Limited Partners. Half of it is reinvested in Company shares, blocked for three years (Agreement between General Partners dated June 19, 1997 supplementing the by-law provisions pertaining to their consideration).
The portion distributed to Limited Partners requires the approval of the Ordinary Shareholders’ Meetings of General Partners and of Limited Partners.
The option of receiving payment of the dividend or interim dividend in cash or in shares may be granted to each General Partner and Limited Partner holding ordinary shares, for all or part of the dividend or interim dividend paid.
Under no circumstances may this option be granted to General Partners without it being open to Limited Partners holding ordinary shares under the same conditions.
Shareholders holding preferred shares shall not be entitled to opt for the dividend to be paid in shares.
The Shareholders’ Meeting appropriates the non-distributed portion of the distributable profit from the fiscal year in the proportions that it determines, either to one or more general or special reserve funds, which remain at its disposal, or to the “Retained earnings” account.
In addition to the legal threshold crossing declaration as defined in Article L. 233-7 of the French Commercial Code, a shareholder must inform the General Management within five trading days of any change subsequent to the first legal threshold (5%), of greater than 1% of the share capital or voting rights.
In the event of non-compliance with the above-mentioned reporting obligations, shares exceeding the fraction that should have been reported are deprived of voting rights at any Shareholders’ Meeting for a period of two years following the notification. Unless one of the thresholds defined in I of Article L. 233-7 of the French Commercial Code is crossed, the suspension of voting rights will only take place at the request, recorded in the minutes of the Shareholders’ Meeting, of one or more shareholders holding at least 5% of the Company’s share capital or voting rights.
6.1.5 Additional information concerning the General Partners
|•||There are no family ties between the General Partners and members of the Supervisory Board.|
|•||No General Partner has any conflict of interest between his/her duties with respect to Rubis and his/her private interests and/or other duties held.|
|•||No General Partner has ever been convicted of fraud, filed for bankruptcy or been placed in receivership or liquidation.|
|•||No General Partner has ever been the subject of criminal prosecution or official public sanction by the statutory or regulatory authorities.|
|•||No General Partner has ever been disqualified by a court from acting as a member of an administrative, management or supervisory body of an issuer or from managing or directing the affairs of an issuer in the last five years at least.|
To the best of Rubis’ knowledge, no restrictions have been agreed by the General Partners with respect to the disposal of their shares in the Company, with the exception of the commitment made by the General Partners to invest half of the dividend received in Rubis shares, for a period of three years.