EXECUTION COPY
"REGISTERED" APPROVED
in amended and restated form BY THE FOUNDER:
Executive Committee of the "INNOVA FILM GmbH"
Council of Peoples' Deputies as represented by
of the Shevchenko District Boris Fuchsmann,
City of Kyiv General Director
January 23, 1997
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Decision No.__________________
dated _____________, 199__
Certificate No. 7193
Registration No. 23389360
Deputy Head of the
Executive Committee
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AMENDED AND RESTATED CHARTER
OF THE ENTERPRISE
"INTER-MEDIA"
Identification No. 23389360
Kyiv - 1997
AMENDED AND RESTATED CHARTER
OF THE ENTERPRISE
"INTER-MEDIA"
ARTICLE 1 GENERAL PROVISIONS
1.1 The Enterprise "Inter-Media" ("Enterprise") has been established
pursuant to the Ukrainian Law on Enterprises and other applicable
Ukrainian legislation on August 6, 1995, and registered with the
Executive Committee of the Council of Peoples' Deputies of the
Shevchenko District of the City of Kyiv on August 9, 1995,
registration No. 23389360.
1.2 The full name of the Enterprise shall be:
in the Ukrainian language - " - "
in the English language - Enterprise "Inter-Media".
1.3 The legal address of the Enterprise shall be at 3 Dehtyarivska Street,
Kyiv, Ukraine.
1.4 The founder of the Enterprise is the firm "Innova Film GmbH", a legal
entity under the laws of Germany, with its legal address at
Friedreich-Ebert-Str. 31-33, 40210 Dusseldorf, settlement account No.
4708076 in Dresdener Bank ("Founder"). This Amended Charter
("Charter") amends and replaces in its entirety the charter executed
by the Founder on August 6, 1995.
1.5 The Enterprise shall be a legal entity under applicable Ukrainian
legislation. The Enterprise shall acquire the rights of a legal entity
as of the date of its State registration. The Enterprise shall be
created for an indefinite period. Such period may be shortened upon
the appropriate decision of the Founder.
1.6 The Enterprise shall have a seal bearing its name which shall be
approved by the Founder. The seal may be in the Ukrainian and/or
English languages. The Enterprise shall maintain an independent
balance sheet, possess trademarks and service marks, letterhead,
stamps and other requisites for its activities.
1.7 As a legal entity the Enterprise shall have its own property separate
and apart from the property of the Founder and separate and apart from
property belonging to any third party.
1.8 The Enterprise shall not be responsible for the obligations of the
Founder and the Founder shall only be responsible for obligations of
the Enterprise to the extent of the value of property transferred by
the Founder in contribution to the
Charter Fund of the Enterprise or to the extent that additional
obligations are assumed by the Founder pursuant to a written
agreement.
1.9 The Enterprise is established for the purpose of facilitating the
objects of activity of the Founder and of obtaining profit by carrying
out business and other activities not prohibited by applicable
legislation. As a legal entity, the Enterprise shall have the
following powers:
1.9.1 in its own name and according to applicable Ukrainian
legislation, to enter into any agreements and to carry out
any business and other activities not specifically prohibited
by law;
1.9.2 to participate independently in foreign economic activity
necessary for the achievement of the statutory purposes of
the Enterprise;
1.9.3 within the limits of applicable Ukrainian legislation, to
build, acquire, alienate, sell, lease or rent any movable or
immovable property, including the rights to lease and acquire
plots of land, buildings and constructions;
1.9.4 to acquire, or to acquire the right to use, proprietary and
non-proprietary rights and to ensure legal protection of all
its rights and interests;
1.9.5 within the limits permitted by applicable legislation, to
open and maintain bank accounts in Ukraine and abroad in both
Ukrainian and convertible currency;
1.9.6 to sue and be sued in courts of law and arbitration tribunals
(including international arbitration) and to conclude
amicable settlements;
1.9.7 in accordance with applicable Ukrainian legislation, to incur
loan obligations in both Ukrainian and convertible currency,
to secure the repayment of any money borrowed or owing with
all or any part of the property or assets of the Enterprise
and to issue debentures, bonds and other securities within
the limits permitted by applicable Ukrainian legislation;
1.9.8 to purchase, acquire and hold stock, shares, debentures,
bonds, obligations and securities issued by any Ukrainian or
foreign legal or governmental entity;
1.9.9 to act as trustee in connection with any stocks,
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bonds, obligations or other securities;
1.9.10 in accordance with applicable Ukrainian legislation, to take
part in the formation and management of any company or legal
entity; to acquire fully or partially any legal entity or its
assets or merge with any other legal entity;
1.9.11 either with or without remuneration, to guarantee the payment
of monies or debts of any person or company and to guarantee
the performance of any contract or obligation of any person
or company;
1.9.12 to sell, improve, manage, develop, exchange, lease, mortgage
or dispose of all the property, assets and rights of the
Enterprise or any part thereof; to distribute to the Founder
in-kind any property of the Enteprise, including any stocks
or securities held by the Enterprise in other legal entities;
1.9.13 to appoint attorneys and/or commission agents with either
full or restricted powers for the purpose of carrying out and
completing all or any of the statutory objects of the
Enterprise or to act as an attorney and/or commission agent
for any person or company;
1.9.14 to select potential contracting parties and to organize
meetings and technical discussions with and between
representatives of such parties;
1.9.15 to advertise, organize or participate in exhibitions,
seminars or symposia or to participate in trade fairs both in
Ukraine and abroad;
1.9.16 to carry out the transmission of information within Ukraine
and overseas by means of written correspondence, telegraph,
telex, telefax, telephone and other means of communication;
and
1.9.17 to carry out any other acts and acquire any other rights and
obligations that fall within the authority of a legal entity
according to applicable Ukrainian legislation.
1.10 The Enterprise shall carry out its foreign economic activities
pursuant to the following guidelines:
1.10.1 foreign economic activities of the Enterprise shall be
performed on the basis of monetary self-sufficiency and
mutual benefit;
1.10.2 the Enterprise shall have the right independently
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to establish relationships with foreign legal entities and
individuals, and to enter into direct foreign economic
agreements with foreign partners;
1.10.3 the Enterprise shall be authorized to carry out any kind of
foreign economic transaction with regard to any property,
materials, products, works and services within the framework
of its principal activities contemplated by this Charter,
including its own production needs.
1.11 The Enterprise shall at all times carry out its activities in
accordance with the instructions of the Founder and the provisions of
this Charter and applicable Ukrainian legislation. Those activities
which are subject to licensing in Ukraine shall be carried out by the
Enterprise only after obtaining a required special permission
(license) pursuant to applicable Ukrainian legislation.
1.12 The Enterprise may form subsidiaries, representative offices and
branches on the territory of Ukraine and in other countries in
accordance with existing law. When creating a subsidiary, the Founder
shall determine all matters relating to the creation, activities and
liquidation of such subsidiary. Subsidiaries established as separate
legal entities shall not be liable for the obligations of the
Enterprise, and the Enterprise shall not be liable for the obligations
of such subsidiaries, unless such liability is expressly undertaken by
contract. Representative offices and branches established by the
Enteprise shall not be separate legal entities and shall operate in
the name of, and on behalf of, the Enterprise.
ARTICLE 2 PURPOSE AND SUBJECT MATTER OF THE ENTERPRISE
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2.1 The Enterprise shall have the following specific object of activities:
2.1.1 the production of movies, movie products, and the acquisition
and sale of rights to movies;
2.1.2 charitable activities;
2.1.3 manufacturing and the sale of folk and hand-made objects and
other souvenirs;
2.1.4 publishing, exhibition and advertising activities;
2.1.5 the provision of various services, including informational,
marketing and brokerage services;
2.1.6 the carrying out of intermediary, wholesale and retail trade;
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2.1.7 intermediary activities in advertising;
2.1.8 construction;
2.1.9 service maintenance of automobile machinery of various types;
2.1.10 automobile transportation services;
2.1.11 the establishment and operation of automobile enterprises; and
2.1.12 such other activities which are not expressly prohibited by
applicable Ukrainian legislation.
ARTICLE 3 PROPERTY; FUNDS; PROFIT
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3.1 The property of the Enterprise ("Property") shall consist of:
3.1.1 funds and property transferred to the Enterprise as a
contribution to the Charter Fund;
3.1.2 products or services produced by the Enterprise as a result
of its economic activities;
3.1.3 income and profits; and
3.1.4 other property and proprietary rights legally obtained by the
Enterprise.
3.2 The Enterprise shall be the owner of the Property. Without restricting
the generality of the foregoing, the Property shall include all fixed
and current assets and other items as reflected in the independent
balance sheet of the Enterprise.
3.3 In order to ensure the operation of the Enterprise, a charter fund of
the Enterprise ("Charter Fund") has been established by and from the
Founder's contribution in the amount of fifty one thousand one hundred
thirty six ($51,136) U.S. dollars which equals eighty eight thousand
three hundred fifty (88,350.06) Ukrainian hrynvias and six kopecks
(eight billion eight hundred thirty five milliion sixty thousand one
hundred (8,835,060,100) Ukrainian karbovantsy) at the exchange rate of
the National Bank of Ukraine as of September 12, 1995. The Founder has
formed the Charter Fund by providing the Enterprise with the following
assets:
3.3.1 automobiles;
3.3.2 office equipment; and
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3.3.3 other technical equipment.
3.4 The amount of the Charter Fund may be increased or decreased as
determined by the Founder. Decisions regarding a change to the Charter
Fund shall enter into force from the moment of State registration of
the appropriate changes and additions to this Charter.
3.5 The increase of the Charter Fund may be carried out by making
additional contributions by the Founder or allocation of the
Enterprise's profit or income (or a portion of it) to the Charter
Fund. Additional contributions may be made in cash or in the form of
other tangible or intangible assets.
3.6 The Founder shall decide upon matters concerning the insurance of the
Enterprise's property, proprietary rights and property accountability.
3.7 In addition to the Charter Fund, the Founder may establish such other
funds of the Enterprise as it deems necessary. The procedure for the
formation of such other funds and their use shall be determined by the
Founder.
3.8 The net profits resulting from the Enterprise's activities may be
transferred to the Founder as dividends or reinvested in the
Enterprise, as determined by the Founder.
ARTICLE 4 CONTROL AND MANAGEMENT OF THE ENTERPRISE
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4.1 The Enterprise shall be governed by the Founder and the management
body of the Enterprise ("Directorate").
4.2 The Founder may from time to time designate those actions which will
be within its exclusive competence.
4.3 All decisions and resolutions of the Founder shall be binding upon the
Enterprise in the event they are in writing and comply with, and are
adopted pursuant to, applicable provisions of the Founder's foundation
documents.
4.4 The Founder may delegate any of its powers to either the General
Director or any other member of the Directorate. Such resolution shall
be in writing and include an express list of those powers transferred,
as well as the term for which such powers are transferred to either
the General Director or any other member of the Directorate.
4.5 The Founder shall appoint a Directorate comprised of a General
Director, Deputy General Director, Finance Director (Chief
Accountant), a Sales Director and such other positions as may from
time to time be determined by the Founder. The Founder shall appoint
and dismiss the individuals who shall serve on the Directorate.
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4.6 The Directorate shall be accountable to the Founder and shall ensure
that the decisions of the Founder are carried out. The Directorate
shall resolve all matters related to the Enterprise's activities,
excluding those within the exclusive competence of the Founder. In the
event of a controversy between members of the Directorate, the view or
position of the General Director shall prevail.
4.7 Subject to the limitations provided in this Charter, the General
Director shall be granted the following authority and
responsibilities:
4.7.1 overall authority over all decisions relating to the
day-to-day operations and management of the Enterprise and
the Enterprise's facilities;
4.7.2 hiring, supervising and dismissing personnel of the
Enterprise (except for members of the Directorate);
4.7.3 performance of all other duties which are assigned to the
General Director by the Founder.
4.8 The General Director may delegate any of its authority and
responsibilities to another member of the Directorate.
4.9 Other members of the Directorate shall have such powers and duties as
specified by the Founder.
4.10 The Founder may, from time to time, appoint an audit committee of
three members. The scope of powers and responsibilities of the audit
committee, as well as the procedures for convening and holding its
meetings, shall be determined from time to time by the Founder.
ARTICLE 5 ENTERING INTO AGREEMENTS AND OTHER DOCUMENTS
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5.1 Subject to Articles 5.2 and 5.3, the General Director alone (and only
the General Director) shall have the authority to enter into
documents, agreements and contracts which bind the Enterprise;
provided, however, that the General Director may issue written powers
of attorney to other members of the Directorate to act in his stead.
5.2 Notwithstanding the foregoing Article 5.1, the entering into,
amendment or termination of any agreement, contract or other document
(or series of agreements, contracts or documents) or the issuance of
any payment order having a value in excess of Ten Thousand ($10,000)
U.S. Dollars or which have a duration of more than one (1) calendar
year and any act of currency conversion must be signed by at least two
(2) members of the Directorate: (i) the General Director and (ii)
either the Deputy General Director or the Finance Director (Chief
Accountant); provided, however, that all
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banking transactions with a value of more than $5,000 U.S. dollars
must be signed by both the General Director and the Finance Director
(Chief Accountant); and further provided, that any banking
transactions with a value of $5,000 U.S. dollars or less may be signed
by the Finance Director alone.
5.3 To the extent required by Ukrainian law, any foreign economic
agreements on behalf of the Enterprise must be signed by the General
Director and by a person authorized to sign by a power of attorney
issued under the signature of the General Director.
ARTICLE 6 FINANCIAL ACTIVITY OF THE ENTERPRISE
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6.1 The fiscal year of the Enterprise shall correspond to the calendar
year and shall encompass the period from January 1 up to and including
December 31 of the current calendar year.
6.2 In accordance with applicable Ukrainian legislation, the Directorate
shall be responsible for implementing the procedures established for
maintaining and insuring the accuracy of the financial and accounting
records of the Enterprise.
6.3 To the extent required by applicable Ukrainian law and/or according to
the decision of the Founder, audits of the Founder's financial and
economic activities may be carried out by Ukrainian and/or foreign
auditing organizations as determined by the Founder.
ARTICLE 7 LABOR ISSUES
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7.1 Issues relating to the Enterprise's employees shall be regulated in
accordance with the applicable provisions of the Ukrainian labor
legislation.
7.2 The Enterprise shall provide employees with the social guarantees and
privileges provided for under applicable legislation.
ARTICLE 8 REORGANIZATION AND LIQUIDATION OF THE ENTERPRISE
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8.1 The Enterprise shall terminate its activity as a result of its
reorganization or liquidation. Reorganization of the Enterprise shall
result in transfer of all its property, rights and obligations to the
Enterprise's legal successor(s).
8.2 The Enterprise may be liquidated or reorganized (merged, acquired,
divided, spin-off, modified) upon the decision of the Founder and in
cases provided for by the legislation of Ukraine.
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8.3 In the event that the decision on liquidation is adopted by the
Founder, the Founder shall appoint a liquidation committee
("Liquidation Committee") which shall prepare and submit a liquidation
account balance to the Founder. Upon appointment of the Liquidation
Committee, the powers of the General Director and the Directorate of
the Enterprise shall be terminated and shall pass to the Liquidation
Committee.
8.4 Upon receiving and approving the liquidation account balance, the
Liquidation Committee shall take all measures necessary to satisfy all
of the Enterprise's liabilities pursuant to the requirements of
applicable Ukrainian legislation. Any remaining property of the
Enterprise (including any funds in cash) shall be returned to the
Founder.
8.5 The liquidation of the Enterprise shall be registered with the
appropriate governmental authority as required by Ukrainian
legislation. The Enterprise shall forfeit the rights of a legal entity
from the date of its removal from the State register or from such
other date as may be specified by applicable legislation.
ARTICLE 9 MISCELLANEOUS
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9.1 This Charter shall enter into force on the date of its State
registration.
9.2 Any additions or amendments to this Charter mentioned herein shall
constitute an integral part of this Charter.
9.3 The headings in this Charter are for convenience only and shall not
govern the interpretation of any provisions of this Charter.
9.4 If any provision of this Charter is or becomes invalid, ineffective,
unenforceable or illegal for any reason, this fact shall not affect
the validity or enforceability of any or all of the remaining
provisions hereof.
9.5 This Charter shall be governed by and construed in accordance with the
laws of Ukraine.
[Signature page to follow]
Executed by the sole Founder: INNOVA FILM GMBH:
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By: Boris Fuchsmann
Title: General Director
Date: January 23, 1997